The trial of the Soviet of Workers’ Deputies is only one episode in the revolution’s struggle with the government of the conspirators of Peterhof. Hardly anyone, even among the police representatives of the prosecution, can really believe that the trial of the Soviet’s members is a legally sound act – that it was begun and was conducted on the independent initiative of the legal authorities in the interests of the “inner logic” of the law. Anyone and everyone knows that the arrest of the Soviet was not a legal, but a military – political act, one of many’ incidents in the murderous campaign being waged by a power rejected and disowned by the people.
We will not go here into the question of why, of all the possible methods of dealing with the workers’ representatives, the authorities chose the relatively complicated one of having them tried by the Chamber of Justice assisted by representatives of the estates. They could have picked any one among a number of other means, which would have been no less effective but simpler. Besides the rich arsenal of administrative measures, there is, for example, the court-martial or that form of justice which, it is true, is not listed in any legal textbook but which has been used successfully in numerous instances. It consists of inviting the accused to take a few steps away from their judges and to turn their backs on them. When the accused have complied with this procedure, a volley of shots is fired to signify a court sentence against which there is no appeal.
But the fact is that the government, instead of dealing with the fifty-two persons singled out by its agents by the torture-chamber method, has organized a legal trial which, moreover, is not simply a trial of fifty-two persons but a trial of the Soviet of Workers’ Deputies. By so doing it forces us to make a critique of the legal position it has adopted.
The indictment states that the fifty-two persons named in it are accused of “joining an association ... which, to their knowledge, aimed at changing the system of government established by fundamental laws in Russia, and replacing it by a democratic republic.” Therein lies the substance of the charge, which is supposed to come under Articles 101 and 102 of the Criminal Code.
Thus the indictment depicts the Soviet of Workers’ Deputies as a revolutionary “association” formed on the basis of a previously formulated political aim – as an organization whose every member, by the very fact of joining it, subscribed to a definite, previously outlined political program. Such a definition of the Soviet is in profound contradiction with the picture presented by the indictment itself, of the circumstances in which the association came into being. On the first page we read that the initiators of the future Soviet called for the “election of deputies to a Workers’ Committee which would put organization, unity, and strength into the working-class movement” and would act as “the spokesman of the needs of Petersburg workers before the rest of society. Elections of deputies were carried out forthwith at a number of factories,” the indictment continues. What, then, was the political program of the Soviet while it was being formed? There wasn’t one; indeed, there couldn’t have been one, for the Soviet, as we have seen, was not formed on the basis of a group of persons holding the same political opinions (like a political party or conspiratorial organization), but on the basis of electoral representation (like a duma or zemstvo). It follows beyond any doubt from the very conditions under which the Soviet was formed that the persons named in the indictment, like all other members of the Soviet, were not joining a conspiratorial association which, to their knowledge, aimed at the forcible overthrow of the existing system of government and the establishment of a democratic republic, but a representative body whose further activities were to be determined by the subsequent collective decisions of its members.
If the Soviet is an association as provided in Articles 101 and 102, then where are the limits of that association? Deputies do not sit on the Soviet because they choose to do so, as do the members of an association, but because they are sent there by their electors. Moreover, the electoral body is never dissolved; it always remains in existence at the plant, the deputy accounts to it for his actions and, through its deputy, it most definitely influences the direction of the Soviet’s activities. The initiative on all the most important issues – strikes, the struggle for the eight-hour day, the arming of the workers – did not come from the Soviet but from the most progressive plants. The workers, that is to say, the electors, held meetings and adopted resolutions which were then submitted to the Soviet by their deputies. Hence the Soviet’s organization was, both formally and actually, the organization of the vast majority of the Petersburg workers. It was based on an aggregate of electoral bodies in relation to which the Soviet, in a certain sense, played the same part as the Executive Committee did in relation to the Soviet itself. In one instance the indictment categorically admits this. “The aspiration of the Workers’ Committee  to achieve the arming of all citizens,” it reads, “was expressed ... in the decisions and resolutions of individual organizations forming part of the Workers’ Committee”; and the indictment goes on to quote the relevant decision adopted by a meeting of print-workers. But if the Union of Print-workers, in the opinion of the prosecution, “formed part” of the Soviet (or rather, of the Soviet’s organization), then it is evident that every member of the Union was, by that token, a member of an association aiming at the forcible overthrow of the existing system. And not only the Union of Print-workers, but workers in every factory and every plant, by sending their deputies to the Soviet, thereby entered the organization of the Petersburg proletariat as an electoral body. So that if the prosecution intended to apply Articles 101 and 102 fully and consistently in accordance with their precise meaning and spirit, not less than 200,000 Petersburg workers should actually appear in the dock: which is, in fact, the viewpoint of those workers themselves, as witness a number of the strongly worded resolutions they adopted in June demanding to be brought to trial. And this demand is not merely a political demonstration; it is a reminder to the prosecution of its elementary legal obligations. But legal obligations are the last things that interest the prosecution. It knows that the authorities want a few dozen victims to complete its “victory,” and so it limits the number of defendants by means of a series of inconsistencies and crude sophisms.
It completely shuts its eyes to the elective nature of the Soviet and persists in regarding it as a league of like-minded revolutionaries.
Because the total number of the Soviet’s members – 500 to 600 persons – is too high for the purposes of a tendentious trial of supposed conspirators manipulating the mass of the working class, the prosecution quite artificially singles out the Executive Committee. It deliberately ignores the elective nature of the Executive Committee and the fact that its composition was fluid and variable and, taking no account of documentary evidence, ascribes to the Executive Committee decisions which were in fact adopted by the Soviet in plenary session.
Out of the Soviet’s membership, in addition to members of the Executive Committee, the prosecution brings to justice only those deputies who “took an active and (?) personal part in the Soviet's activities.” Such a selection is purely arbitrary. The Criminal Code condemns not only “active and personal” participation but any form of participation in a criminal association. The nature of the participation determines only the degree of punishment.
But in what area is the prosecution s criteria? In its eyes, such facts as checking entrance tickets, taking part in a strike picket or even simply admitting that one belonged to the Soviet are proof of active and personal participation in an association aiming at the forcible overthrow of the government. For example, in respect to the defendants Krasin, Lukanin, lvanov, and Marlotov, the prosecution quotes only their own admission of participation in the Soviet and from that admission it somehow deduces that their participation was “active and personal.”
4. If we add the handful of “outsiders” who were arrested on December 3 purely accidentally as the Soviet’s guests, and who had no relation whatsoever to the Soviet and had never opened their mouths at any of its meetings, we obtain a still clearer picture of the indecently arbitrary manner in which the choice of defendants was made.5. But even that is not all. After December 3 new members joined what was left of the Soviet. The Executive Committee was reconstituted, Izvestia went on being published (No.8 appeared on the day following the Soviet’s arrest), and the reconstituted Soviet issued the December strike call. After a certain time the Executive Committee of the new Soviet was arrested. And what happened? Despite the fact that it was merely continuing the work of the old Soviet and in no way differed from it in its aims or methods of struggle, the case of the new Soviet is not, for some reason, pursued legally but is dealt with by administrative measures.
Did the Soviet stand on legal ground? No, it did not, because no such ground existed.
Even had it wanted to, the Soviet could not have been formed on the basis of the manifesto of October 17 for the simple reason that it was formed before the manifesto: in fact it was thrown up by the revolutionary movement which also gave rise to the manifesto.
The whole indictment is constructed on the crude fiction that legality in Russia during the last year was continuous. The prosecution proceeds from the absurd assumption that all the articles of the Criminal Code remained in force all the time, and that they were applied all the time and were never abolished – neither de jure, nor even de facto.
What actually happened was that a whole number of articles were ripped out of the Code by the hand of the revolution, with the authorities’ tacit consent.
Did the zemstvo congresses take place on legal ground? Were all the banquets and demonstrations consistent with the Criminal Code? Did the press observe the censorship rules? Did not various associations of the intelligentsia come into being with impunity and “without preliminary permission,” as the phrase goes?
But let us stick to the fate of the Soviet itself. In supposing that Articles 101 and 102 of the Criminal Code remained in force without interruption, the prosecution regards the Soviet as a consciously criminal organization from the day of its birth, and therefore sees the very act of joining the Soviet as a crime. But, from this standpoint, how to explain the fact that the supreme representative of power entered into negotiations with a criminal association aiming at the establishment Of a republic by revolutionary means? From the standpoint of legal continuity, Count Witte’s parleying with the Soviet was a criminal act.
The incident with Count Witte demonstrates to what absurdities the prosecution is reduced by insisting that legality in Russia remained continuous throughout 1905.
In quoting the debate which took place in connection with the sending of the deputation to Witte to demand the release of three members of the Soviet arrested at a street meeting outside Kazansky Cathedral, the indictment speaks of this appeal to Witte as “a legitimate attempt to obtain the release of the arrested persons.” (p.6)
Thus the prosecution considers it “legitimate” for Count Witte, the supreme representative of the state executive, to negotiate with a revolutionary association which was aiming at the overthrow of the state system Count Witte was meant to defend.
What was the result of this “legitimate attempt”?
The indictment quite correctly records that the chairman of the Committee of Ministers, “after discussion with the city governor, ordered the release of the arrested persons.” (p.6) In other words, the state power met the demand of a criminal association whose members, according to Articles 101 and 102, should not have been in the Prime Minister’s ante-room but at hard labor.
Where, then, was “legitimacy”? Was the street meeting held outside Kazansky Cathedral on October 8 legitimate? Apparently not, since the Soviet’s members who conducted the meeting were arrested. Was the sending of a deputation to the government from an anti-government association legitimate? The prosecution replies in the affirmative. It would appear that “legitimacy” demanded, not the release of the arrested persons, but the arrest of their confederates still at liberty. Or did Count Witte grant an amnesty to the criminals? But who gave him the right to grant amnesties?
The Soviet of Workers’ Deputies did not stand on legal ground. But neither did the government. Legal ground did not exist.
The October and November days set vast masses of the population in motion, revealed a multitude of profound interests, created a multitude of new organizations and new forms of political life. The old system solemnly liquidated itself by the manifesto of October 17. But no new system as yet existed. Old laws patently at variance with the manifesto had not been abolished; but in fact they were infringed upon at every step. The authorities not only tolerated thousands of such infringements but, in some measure, openly encouraged them. The manifesto of October 17 not only rendered a whole series of existing laws logically null and void – it liquidated the actual legislative apparatus of absolutism.
New forms of public life came into being and existed outside the limits of any legal definition. The Soviet was one of these forms.
The caricatural inconsistency between the definition in Article 101 and the real physiognomy of the Soviet is due to the fact that the Soviet was an institution absolutely not provided for in the laws of old Russia. It came into being at a moment when the old, rotten garment of legality was bursting at every seam and its ragged scraps fell to the ground to be trampled upon by the revolutionary nation. The Soviet did not come into being because it was legally justifiable but because it was factually necessary.
When, after the first battles, the ruling reactionary forces began to regain their strength, they started invoking laws which had in fact been abolished, just as those involved in a street brawl will make use of the first stone that comes into their hands. Article oi of the Criminal Code was the stone they picked up, and the Chamber of Justice, by imposing a certain penalty on the persons presented by an ignorant gendarmerie and a servile prosecution, was obliged to play the role of catapult.
The question of the participation of official party representatives in the Soviet’s decisions reveals more clearly than anything else the hopelessness of the prosecution’s legal position.
Anyone who had anything at all to do with the Soviet knows that the representatives of parties had no voting rights either in the Soviet or in the Executive Committee; they took part in the debates but not in the voting. This was due to the fact that the Soviet was organized on the principle of representation of workers by enterprises and trades but not by party groupings. Party representatives were entitled to make their political experience and their knowledge available to the Soviet, and this they did; but they could not enjoy voting rights without violating the principle of representation of the working masses. They were, so to speak, political experts within the Soviet’s membership.
This simple fact could have been established without difficulty, yet it presented the greatest difficulties to the investigating and prosecuting authorities.
The first difficulty was of a purely legal nature. If the Soviet is a criminal association having certain previously established aims, if the defendants are members of this criminal association and have to appear as such before the court, what is to be done with those defendants who belonged to the Soviet merely in a consultative capacity and were entitled only to expound their point of view but not to take part in the voting, that is, in the direct and immediate determining of the criminal association’s collective will? Just as an expert’s statements in court may exercise an important influence on the verdict, without, however, making the expert responsible for that verdict, so the statements of party representatives, however great their influence on the Soviet’s actions, cannot make them legally responsible for those actions. They told the Soviet: here is our opinion, here is the opinion of our party, but the decision must depend on you. It goes without saying that the party representatives have no intention of hiding from the prosecution behind this argument. After all, the prosecution is not defending any “articles,” any “legality” or “law” but the interests of a certain caste. And since the party representatives by their work dealt as many blows to that caste as did any other members of the Soviet, it is quite natural that the government’s vengeance, in the form of the verdict of the Chamber of Justice, should strike them in the same measure as it strikes the representatives of factories and plants.
But one thing is certain: whereas, by a crass distortion of the facts and of their legal meaning, it may be just possible to qualify the deputies as members of a criminal association, the application of Article 101 to the representatives of political parties in the Soviet is the very embodiment of legal absurdity. That, at least, is what human logic tells us; and legal logic cannot be anything other than the application of universal human logic to a specific sphere of phenomena.
The second difficulty facing the prosecution in connection with the status of party delegates in the Soviet was of a political nature. The task set before General Ivanov of the gendarmerie and, later, Assistant Prosecutor Baltz, or whoever was lurking behind him, was simple indeed: they had to represent the Soviet as a conspiratorial organization which, under pressure from a group of energetic revolutionaries, controlled the terrorized masses. Everything speaks against this Jacobin parody of the Soviet as seen by the police: the Soviet’s membership, the open character of its activities, its method of discussing and settling all questions, finally the absence of voting rights for party representatives. What, then, does the investigating authority do? If the facts speak against it, too bad for the facts: it disposes of them “by administrative means.” From the minutes and the vote counting, indeed from the testimony of its own agents, the gendarmerie could easily discover that the party representatives enjoyed only consultative rights in the Soviet. The gendarmerie knew this; but because this fact would have reduced the scope of its lofty considerations and plans, it did everything in its power to mislead the prosecution on this point. Despite the importance of the question of the legal status of party representatives with the Soviet, the gendarmerie quite systematically and deliberately avoided this question at interrogations. The gendarmerie were very interested in knowing in what places individual members of the Executive Committee sat and how they entered and left the committee room, but they did not in the least want to know whether the 70 social-democrats and 3g socialist revolutionaries, a total of i 05 men, had the right of vote on such issues as the general strike, the eight-hour working day, etc. They refrained from putting certain questions to the defendants and the witnesses solely in order to avoid establishing certain facts.  This is perfectly obvious and no one can dispute it.
We have said that the investigating authority was thus misleading the prosecuting authority. But is that so? The prosecution, in the person of its representative, is present at interrogations or, at least, signs the records of interrogations. Thus it is never lacking an opportunity to manifest its interest in the truth; all that is wanted is such an interest. Of course no trace of such an interest exists. The prosecution not only covered up the “blunders” of the preliminary investigation but actually made use of them to draw conclusions which it knew to be false.
This is most blatantly obvious in that part of the indictment which deals with the Soviet’s activity in arming the workers.
We do not propose to discuss here the question of an armed rising and of the Soviet’s attitude toward it. This topic has been considered in other articles. Here it is quite enough for us to say that the armed rising as a revolutionary idea inspiring the masses and guiding their elective organization differs from the prosecution’s and the police’s “idea” of an armed rising as much as the Soviet of Workers’ Deputies differs from the association envisaged in Article 101. But the authorities’ hopeless failure to understand the meaning and spirit of the Soviet, their hopeless confusion regarding its political ideas, is directly proportional to their desire to base their accusations on a perfectly simple mechanical object: a Browning revolver.
Although, as we shall see, the police investigation yielded very scant materials on this matter, the author of the indictment makes an attempt – remarkable for its audacity – to prove as a fact that the Executive Committee armed the workers on a mass scale for the purpose of an armed rising. We are obliged to quote the relevant passage of the indictment and examine it in its separate parts.
“It would appear,” the prosecution reasons, “that the actual putting into effect of all the above-mentioned intentions of the Executive Committee as regards arming the Petersburg workers belonged to the same period (i.e., the second half of November), since, according to the deposition of Grigory Levkin, a deputy from Bogdanov’s tobacco factory, it was decided (by whom?) at one of the meetings around the middle of November, to form armed ‘tens’ and ‘hundreds’ for the support of demonstrations, and at precisely the same period the deputy Nikolai Nemtsov pointed out that the workers lacked arms and a collection of money for arms was held among the assembled persons (where?).” Thus we learn that in the middle of November the Executive Committee put into effect “all” its intentions with regard to the arming of the proletariat. What proof is there of this? Two unchangeable pieces of evidence. First, Grigory Levkin testifies that around this time it was decided (presumably by the Soviet) to form armed “tens” and “hundreds.” Thus, obviously, the Soviet in the middle of November put into effect its intention to arm the workers by, at precisely that time, expressing ... the intention (or adopting a decision) to arm them! Yet is it even true that the Soviet adopted such a decision? Nothing of the kind. In this instance the indictment is not referring to a decision of the Soviet, which never existed, but to a speech by one of the members of the Soviet (myself), quoted previously on page 17 of the same indictment.
Thus, as proof of the putting into effect of “intentions,” the prosecution produces a resolution which, even had it been adopted, would only have been the expression of one such intention.
The second proof of the arming of the Petersburg workers in the middle of November is supplied by Nikolai Nemtsov who “precisely at that time” (!) drew attention to the fact that the workers had no arms. It is not easy to understand why Nemtsov’s testimony concerning the absence of arms should prove the presence of arms. But after this it is stated that “a collection of money for arms was held among the assembled persons.” The fact that money for arms was collected among the workers is not in doubt. Let us assume that, in particular, such a collection was also made on the occasion to which the prosecution is referring. But why should it follow from this that “the actual putting into effect of all the above-mentioned intentions of the Executive Committee to arm the Petersburg workers belonged to the same period?” Further: to whom did Nikolai Nemtsov point out that arms were lacking? Evidently to a meeting of the Soviet or the Executive Committee. Therefore we must assume that funds for arming the workers were collected from amidst a few dozen or hundred deputies; and this fact, fairly unlikely in itself, serves as proof that at this time the masses were already armed!
And so the arming of the workers has been proved; now for revealing the purpose of this action. Here is what the indictment has to say on this issue: The pretext for such arming, according to the testimony of deputy Alexey Shishkin, was the possible occurrence of pogroms, but Shishkin says that this was only a pretext and that, in reality, an armed rising was allegedly being prepared for January 9. “In reality,” the indictment continues, “the distribution of arms, according to Mikhail Khakharev, a deputy from Odner’s plant, was begun by Khrustalev Nosar as far back as October, and he, Khakharev, received a Browning from Khrustalev ‘for protection against the Black Hundreds.’ However, this defensive purpose of the distribution of arms is disproved, apart from all the above-mentioned decisions of the Soviet, also by the contents of certain documents found among Georgy Nosar’s papers. For example, these papers contain the original copy of a Soviet resolution, without any indication of the date on which it was drafted, which contains an appeal to arms and to the forming of armed detachments and a workers’ army “prepared to repulse the Black Hundreds government which is ravaging the Russian land.”
Let us stop there for the moment. Resisting the Black Hundreds is only a pretext; the real object of the Soviet’s universal arming of the population, carried out in the middle of November, was an armed rising on January 9. This real aim was unknown not only to those who were being armed but also to those who did the arming, so that, but for Alexey Shishkin’s testimony, it would never have transpired that the organization of the working masses had fixed a definite date for an armed rising. Another proof that it was precisely in the middle of November that the Executive Committee armed the masses for a rising in January is the fact that, in October, Khakharev received a Browning from Khrustalev “for protection against the Black Hundreds.”
But, in the prosecutor’s opinion, the defensive purpose of the arming is further disproved by certain documents found among Nosar’s papers, e.g., the original copy (?) of a resolution appealing to the workers to arm themselves in order to “repulse the Black Hundreds government which is ravaging the Russian land.” That the Soviet pointed out to the masses the necessity of arming themselves and the inevitability of a rising is clear from many of the Soviet’s decisions; no one can dispute it; the prosecution does not have to find proofs of it. What it does want to prove is that the Executive Committee in the middle of November put into effect “all its intentions” as regards the arming of the masses, and that this arming was actually carried out and had the direct and immediate aim of an armed rising; and, to prove this point, the prosecution adduces yet another resolution which differs from the others by the fact that its date cannot be ascertained and it is impossible to tell whether in fact it was adopted by the Soviet at any time. And, finally, it is precisely this doubtful resolution, meant to disprove the defensive nature of the arming, which speaks clearly and unequivocally of repulsing the Black Hundreds government which is ravaging the country.
However, the prosecution’s long misadventure in the matter of the Brownings does not end there. “Further,” the prosecution continues in order to refute the defensive object of the operation, “in Nosar’s papers there was found a note from an unknown person pointing out that Khrustalev had promised to hand out several Browning or Smith & Wesson revolvers at the organization’s price, and the writer, whose address is at Kolpino, asks that the promised arms be handed to him.”
To understand why the author of the note, “whose address is at Kolpino,” could not have obtained the revolvers “at the organization’s price” for purposes of self-defense rather than of an armed rising is as difficult as all the rest. Another note containing a request for revolvers adds nothing new.
In the end the prosecution’s data on the question of the arming of the Petersburg workers turn out to be absolutely negligible. “Very insignificant expenses on the acquisition of arms were found in Nosar’s documents,” the indictment plaintively states, “since (!) his papers included a notebook and a separate sheet containing notes on the distribution of revolvers of various makes and boxes of cartridges to the workers, and, according to these notes, only sixty-four revolvers were thus distributed.”
These sixty-four revolvers as proof of the putting into effect of “all” the Executive Committee’s intentions” concerning an armed rising in January are evidently an embarrassment to the prosecution. It therefore decides upon a bold step: if it cannot be proved that the revolvers were bought, it must be proved that they might have been bought. With this end in view, the prosecution prefaces the sorry total of sixty-four revolvers with impressive suppositions of a financial nature, After pointing out that a collection of funds for arms was carried out at the plant of the Compagnie des Wagons-Lits, the indictment states: “Subscriptions of this kind offered an opportunity of acquiring arms, the Soviet of Workers’ Deputies being able, in case of need, to obtain arms in large quantities because it disposed of large sums of money ... The total receipts of the Executive Committee amounted to 30,063 roubles 52 kopecks.”
Here we have the tone and manner of a newspaper feature which spurns even the outward semblance of proof. First you quote certain notes and “original copies” of resolutions, then you dismiss their testimony with a bold and simple conjecture: the Executive Committee had a lot of money, therefore it had a lot of arms.
If we were to arrive at conclusions by the prosecution’s method, we might say: the secret police departments have a lot of money, therefore the pogromists have a lot of arms. But such a conclusion would only superficially resemble that offered in the indictment, for whereas every kopeck in the Soviet’s hands was accounted for, which makes it easy to dismiss the prosecution’s bold guess as pure nonsense, the cash out goings of the Secret Police belong to a realm of total mystery which has long awaited criminal investigation. To finish once and for all with the arguments and conclusions of the indictment concerning the arming of the population, let us try to present them in strictly logical form.
Around the middle of November the Executive Committee armed the Petersburg proletariat for the purpose of an armed rising.
(a) One of the Soviet’s members at the meeting of November 6 advocated the organizing of the workers in armed units of 10 and 100.(b) In the middle of November Nikolai Nemtsov referred to the lack of arms.(c) Alexey Shishkin knew that a rising was fixed for January 9.(d) As far back as October, Khakharev received a revolver for self-defense against the Black Hundreds.(e) An undated resolution refers to the necessity for arms.(f) An unknown person “whose address is at Kolpino” asked for revolvers “at the organization’s price.”(g) Although the distribution of only sixty-four revolvers has been established, the Soviet had money, and since money is a universal equivalent, it might have been exchanged for revolvers.
These conclusions are not good enough even to serve as examples of elementary sophisms in secondary-school textbooks of logic. They are so crude that their crudeness is an insult to any normally constituted intelligence.
It is on these materials and on this legal construction that the Chamber of Justice will have to base its verdict.
1. The name sometimes given to the Soviet in the early stages.
2. Only in one passage does the indictment state that, according to Rastorguyev, “the representatives of parties did not, allegedly, have voting rights during ballots.” (p.39.) But the prosecution has taken no trouble whatever to clarify the matter for itself, or rather it has deliberately avoided doing so.