Catherine the Great

Turning to the role of laws in regulating the lives and relationships of people, Catherine wrote: “The laws ought to be so framed as to secure the safety of every citizen as much as possible.… Political liberty does not consist in the notion that a man may do whatever he pleases; liberty is the right to do whatsoever the laws allow.… The equality of the citizens consists in that they should all be subject to the same laws.” In confronting the great issue of crime and punishment, she wholeheartedly accepted the views of Montesquieu and Beccaria, agreeing that “it is much better to prevent than to punish crimes.” She insisted that capital punishment be inflicted only in cases involving political murder, sedition, treason, or civil war. “Experience shows,” she wrote, “that the frequent use of severe punishment has never rendered a people better. The death of a criminal is a less effective means of restraining crimes than the permanent example of a man deprived of his liberty during the whole of his life to make amends for the injury he has done to the public.” Even sedition and treason were given narrow definitions. She distinguished between sacrilege and lèse-majesté. A sovereign may be said to rule by divine right, but he or she is not divine, and therefore it is neither sacrilege nor treason to commit a nonphysical offense against him. Words cannot be called criminal unless accompanied by deeds. Satirical writings in monarchies, even those relating to the monarch—and here she may have had in mind Voltaire’s struggles in France—should be regarded as misdemeanors, not crimes. Even here, care should be taken, because censorship can be “productive of nothing but ignorance and must cramp the rising efforts of genius and destroy the very will for writing.”

She rejected torture, traditionally used in extracting confessions, obtaining evidence, and determining guilt in Russia. “The use of torture is contrary to sound judgment and common sense,” she declared. “Humanity itself cries out against it, and demands it to be utterly abolished.” She gave the example of Great Britain, which had prohibited torture “without any sensible inconveniences.” She was particularly incensed by the use of torture to force a confession:

What right can give anyone authority to inflict torture upon a citizen when it is still unknown whether he is innocent or guilty? By law, every person is innocent until his crime is proved.… The accused party on the rack, while in the agonies of torture, is not master enough of himself to be able to declare the truth.… The sensation of pain may rise to such a height, that it will leave him no longer the liberty of producing any proper act of will, except what at that very instant he believes may release him from that pain. In such an extremity, even an innocent person will cry out, ‘Guilty!’ provided they cease to torture him.… Then the judges will be uncertain whether they have an innocent or a guilty person before them. The rack, therefore, is a sure method of condemning an innocent person whose constitution is weak, and of acquitting the guilty who depends upon his bodily strength.

Catherine also condemned torture on purely humanitarian grounds. “All punishments by which the human body might be maimed are barbarism,” she wrote.

Catherine wanted punishments tailored to fit the crimes, and the Nakaz provided detailed analysis of different categories of crime and the appropriate punishments. Crimes against property, she said, should be punished by deprivation of property, although she understood that those guilty of stealing property were most often people who had none. She insisted that due process govern legal and courtroom procedures. She demanded that attention be paid to the role of judges, the truth of evidence, and the quality of proof required in reaching verdicts.

Some judges should be of the same rank of citizenship as the defendant; that is, his equals, so that he will not think himself fallen into the hands of people who will automatically decide against him. Judges should not have the right to interpret the law; only the sovereign, who makes the law, can do that. Judges must judge according to the letter of the law because this is the only way of ensuring that the same crime is judged the same way in all places at all times. If adherence to the law leads to injustice, the sovereign, as lawgiver, will issue new laws.