The decree published on May 7, 1744 put a hold on executions for prisoners sentenced to death, political death and in some cases to permanent exile. Chancelleries were to send to the senate the descriptions of such cases and wait for further instructions.
On the one hand, it was ordered to “not carry out executions”, but on the other hand the number of death sentences was not regulated in any way, so such sentences were inevitably imposed based on the existing legislation. Few people even among the upper class knew about the moratorium. The decree was prepared by the Empress herself as a conclusion after she studied the report of the Senate and using the same sheets the report was written on. The original document was immediately hidden in a secret dispatch, while the public dispatch carried a copy, which contained only the order of the Empress to immediately forward extracts from the legal cases of prisoners sentenced to death. That copy did not mention the existence of the hidden decree and was forwarded to departments and chancelleries, regions and provinces.
Nevertheless, the Empress and her administration took the decree close to heart and was proactive: after conquering new lands they immediately forwarded the decree there to put on hold or abolish death penalty. The moratorium even covered those sentenced by the Secret Police as well as war criminals. In less than ten years after the decree was published the Senate accumulated 279 death penalty sentences and 3579 more cases involving homicide, theft and robbery were being processed and awaited the confirmation by the Empress.
Interpretation of death
No lesser problems rose around the terminology in the course of implementing the second part of the 1744 Decree – that part dealt with “non-execution of death penalty sentences and the political death”. While the meaning of the “natural death” was clear more or less both in St. Petersburg and the provinces, the term “political death” caused deep bewilderment at all levels of authority. Elisabeth demanded that the Senate worked on the issue and presented her with a paper that would list the laws that regulated the ritual of political death and precisely defined the crimes that called for such a punishment.
A detailed interpretation of the term political death was given only in 1753: “The Senate stipulates: the political death is when somebody is prepared for execution by decapitation or hanging, but at the site of execution is punished by whipping and nose-cutting or left without any punishment but a permanent exile”. The seeming controversy of such interpretation was that sentences to political death were not implemented, while whipping and nose-cutting, as well as exile for theft and robbery were widely used without any reports to the Senate and weren’t considered political death.
Thus, not only death penalty, but also its imitation, which was considered equal to death penalty in terms of the gravity of punishment, was subject to some form of the supreme authority’s ban.
“No application of the political death”
While the issue of the political death was a matter of terminology and judicial theory for the Senators and the Empress, the moratorium on death penalty turned into a general ideological problem. During Elisabeth’s reign taking out bodies of hung prisoners and attaching lists of their crimes to teach others a lesson were common in Russia’s social domain.
The Senators tried to reason with the monarchy and proposed a number of arguments against the moratorium on death penalty. First, they assumed the number of thieves, robbers, killers and counterfeiters left alive would only grow. It appeared that a wave of riots and robberies would drown the country if the state did not install “inherited fear” in the minds of its people – the fear that lieutenant-general knight Vasily Urusov wrote about describing the suppression if the uprising in Bashkiria. Secondly, the people themselves were expected to be prone to criminal activity in the absence of punishment, while the troops would turn disobedient. Thirdly, such harmful clemency contradicted the traditions of the Russian legislation, specifically the strict regulations introduced by Peter the Great, the father of the Empress, who had punished mortal crimes with cruel executions. The nobility timidly suggested that only criminal cases with a death sentence be presented for the supreme review, while the political death sentences be carried out as before, at the level of the provinces. The Empress responded with one order – “no implementation of any political death sentences”.
In the imperial Russia the opinions of the ruling elite were easily ignored. The moratorium on death penalty and political death was established and rigorously observed. But the contradictions hidden by the loyal wording of the Senate reports were clearly seen during the compilation of the text of the new regulation that was never completed.
“No mention of the death penalty”
In August 1754 on the initiative of Petr Shuvalov, a confidant of the Empress, a special group set up in the Senate launched on the task of “creating clear and understandable laws”. Experienced clerks assisted the legislators, who also received financing from the state-office for paper, ink, sealing wax, firewood and candles. They were supposed to write a draft law in four parts – “on the court”, “on various states of the subjects”, “on property and real estate” and “on executions, punishment and fines”. A year later two parts that the committee considered best elaborated were ready – the “court” and the “criminal” parts. Most likely, the wax and the ink were wasted: the articles completely ignored all the decrees of the ruling Empress concerning the death penalty and the political death. After a decade of effective moratorium on implementing such sentences, the sphere of application of such sentences was extended, while the procedure of execution became more severe.
The situation with the preparation of the law and the position taken by Empress Elisabeth appears even more unbelievable given that prior to the beginning of the committee work on the second edition minister Adam Olsufyev had announced: “Her Imperial Majesty has ordered that no death penalty punishment for the corresponding crimes be entered in the newly drafted law”. There appeared subsequent decrees regarding the selection of nobility and merchants for the hearings of the “newly composed law” in various towns. Public discussions could include the issue of not only the moratorium on capital punishment and political death, but fundamental changes of the criminal legislation. It is clear now that the Empress would have not bended and only her death interrupted Russia’s unprecedented standoff between the monarch and the political elite on the issue of humanization of punishment for serious crimes.
“Nobody will be subjected to death penalty”
Apparently, historian Mikhail Scherbatov was not far from the truth when he wrote about the 1741 palace coup: “During the ceremony of accepting the Russian throne she promised in front of the Holy Face icon that if she ascended to the throne of her ancestors nobody would be subjected to death penalty during her reign”.
In this case we are seeing obvious collisions of the consciousness of a person. In desperate situations a person tends to turn to God and hope for a miracle when it appears that nobody can help and nothing can save. Depending on the individual experience, religion, and depth of personal spiritual experience such irrational “deals with God” can be phrased with unexpected choice of words. Apparently, Elisabeth really took certain obligations upon her with God as her witness under the condition that God provided for a successful army coup. The coup was successful and she had to pay up.
The intricacies of the individual religious feelings would have remained the sacred experience of a person, but that person happened to be an empress. On the one hand, the Byzantine ritual of coronation added a special exaltation to Christian faith of any Russian monarch. On the other hand, the sacred will of the monarch anointed by God was considered immutable. Those specific circumstances that were far from political pragmatism can explain the context of the laws that banned death penalty as well as political death execution.
One gathers an impression that the Empress’s decision to ban the implementation of death penalty and political death sentences without the supreme confirmation solely concerned her relationship with God. Her subjects and the criminals whose destinies depended on her decision were not supposed to know any details. There was no decree on the moratorium with detailed definitions and praise for the monarch’s humanity. The Empress was not concerned with the destiny of the pardoned prisoners and the salvation of their sinning souls with potential correction. They all perished either during the whipping or later from the unbearable prison labor.
“And who appointed me the judge: who is to live and who to die”
Reflections of the religious empress during absolute monarchy in Russia 20 years prior to the release of the famous work by Cesare Beccaria easily implemented the philosopher’s dream that Europe was only beginning to contemplate. However, Empress Elisabeth and the Italian philosopher were separated not by two decades, but an entire epoch. The death penalty moratorium in the Russian Empire was based not on the ideals of enlightenment, but on the religiousness of the Middle Ages on the one hand and the monarch’s belief that the state law and the monarch’s will are the same thing on the other hand. Putting on hold executions for serious crimes had no theoretical basis and was in no way related to the development of judicial knowledge of that period. Any arguments about the limitation on the publicity of execution and the shift of accent from the entertainment aspect of the punishment towards the triumph of justice in court, about the transition from the punishment of the body to the prevention of repeated offense and other ideas that inspired European philosophers and lawyers did not bother the Empress too much. The logic of the Christian commandments directly led her to the well-known question: “Who appointed me the judge of who is to live and who to die?” By deciding that the best show of gratitude to God would be the ban on death penalty the Russian Empress by her autocratic will did not allow a single execution or even imitation execution in the form of political death. A few months before her death she raised the issue of a fundamental change of criminal legislation, which apparently was to match her belief system.
That is why two generations of people were formed in Russia that did not see the scaffold. The executioner’s trade was gradually disappearing along with the skill of building the gallows, which was confirmed by the tragic events during the execution of the Decembrists. The ruling elite developed the habit that the death penalty exists only on paper and public executions were no longer the main condition for preserving order in the society.
In only two decades the ruling and the educated elite became prepared for a discussion on the expediency of execution. And it happened not because of the work of Beccaria, but because of the internal rules of Empress Elisabeth. The insightful historian Sergey Solovyev wrote: “The people had to lose the habit of the horrible sight of the death penalty. The was no law issued abolishing the death penalty: probably, Elisabeth was afraid to increase the number of crimes by taking away the fear of the last punishment; the courts issued death sentences, but those sentences were never implemented, and a great beginning was introduced into the people’s education”.
PhD in History, leading researcher at the Institute of Russian History of the RAS