The problem of the position of magistrates in the social life of the Kalmyks of the second half of the XIX century

Bovaev Nikolai Borisovich ORCID: 0009-0007-1466-6769 Teacher, Department of History of Russia, Records Science and Archival Science, Kalmyk State University named after B.B. Gorodoviko 358000, Russia, Elista, Pushkin Republic str., 11 nikbov678@gmail.com Other publications by this author

Introduction

The study of legal aspects in the history of the social life of the nomadic peoples of the south of Russia remains relevant. Scientists pay considerable attention to the reform of the judicial system of the Kalmyks during their integration into the Russian state in the second half of the XIX century.

When analyzing the pre-revolutionary historiography of this problem, attention should be paid to the record of a contemporary of these events, such as "Statistical and economic description of the Kalmyk steppe of Astrakhan province" by I. K. Kostenkov, where problematic issues of judicial proceedings in Astrakhan province were first touched upon ^{[13, p.11]}. In his article "Government bills on reforms of the administrative and social structure of the Kalmyks and the court" F. I. Plyunov emphasizes the need for judicial reforms in the Kalmyk steppe. In his monograph "Kalmykia in national politics, the system of power and governance of Russia" K. N. Maksimov describes the main stages of the process of integration of Kalmyk society, including judicial aspects, using the problem-chronological method. Of particular value are materials from the pre-revolutionary fund of the state archive of the Astrakhan region, including the case with the records of the chief trustee of the Kalmyk people on the change of the judicial process in the Kalmyk steppe. The problems related to the preparation of judicial proceedings in the Kalmyk steppe are objectively considered in the work of E. A. Komandzhaev "The administration of justice in Kalmykia in the XIX century" ^{[12, p.227]}, as well as in the second volume of the collection "The History of Kalmykia from ancient times to the present day" ^{[10, p.25]}. Using a historical and evolutionary approach, the author of the article "Changes in the judicial system of Kalmykia in the XVII-XIX centuries" Ts. A. Sarangov tells about the modifications of national institutions of governance and power in Kalmyk society, including the first half of the XIX century ^{[16, p.234]}. New approaches to the study of this problem are presented in the work of U.B. Ochirov and V.S. Shurguchieva "Stages of judicial proceedings in the Kalmyk steppe in the second half of the XIX – early XX century: features of law enforcement practice". The authors, using universal approaches, including methods of critical analysis of information, came to the conclusion that there is a three-stage structure of the judicial process in the nomadic life of the Kalmyks and the imperfection of the judicial system among the Kalmyks ^{[17, p.144]}.

The position of justices of the peace

The need for radical reform was recognized in the legal proceedings and the judicial system of the Kalmyk people, since the Zargo ulus courts also faced shortcomings. In accordance with the records of the chief trustee of the Kalmyk people on the change of judicial proceedings, the following problems were identified:

 - the need to create local courts for the Kalmyk people, which will be closer to the daily activities of the population;

- not fast enough processes in judicial operations in the Kalmyk steppe;

- the ulus Zargo, which unites the judicial and administrative authorities, could not meet the needs of the government and the people, and in both cases it turned out to be insufficiently independent.

Thus, the question arose about the need to introduce local courts, transform the Sargo or replace it with another body that meets the modern requirements of science, law and society.

The government assumed that local courts should be entrusted to magistrates ^{[1, l.35]}. This assumption led to reflections on the introduction of world institutions into the Kalmyk legal order with the replacement of magistrates' posts.

Justices of the peace dealt with civil and criminal cases, which had their own peculiarity. Civil cases were based on private interests, while criminal cases were associated with public and state interests ^{[8, L.2]}.

This legal information led to the possibility of entrusting the conduct of civil proceedings to magistrates selected from the Kalmyks themselves. The nature of civil cases, which have an exclusively private connotation, and most importantly, the position in which the justice of the peace should have been in relation to fellow citizens, emphasize the importance of this proposal. Magistrates needed to earn the full trust of local residents, which could be achieved through familiarization with folk concepts, rights and customs, and therefore with the peculiarities of local life ^{[9, l.305]}. The Kalmyk justice of the peace did not require a deep legal education and familiarity with the current state of legal science. It was expected that the judge would deal exclusively with civil and private cases, carefully attaching them to general legal principles. The judicial process itself was simplified and presented no particular difficulties in resolving. The key task of the justices of the peace was to justly satisfy the needs of the people in court proceedings and to achieve reconciliation as the highest quality of justice ^{[7, l.12]}.

In addition, the Kalmyks had a custom of resolving controversial issues by transferring them to authoritative members of society who enjoyed trust and respect.

Thus, the existing custom of introducing magistrates from among the Kalmyks has received legislative confirmation, gaining greater significance and validity. As a result, the assignment of magistrates from among the Kalmyks to deal with civil cases did not cause difficulties and did not contradict the basic principles of the world institute ^{[2, l.36]}.

Kalmyk judges were not granted surety in criminal cases due to their nature. Their judicial principles were based on the general legislation of the State. Russian Russian judges, corresponding to the level of development of Russian state life, had to be appointed to the posts of magistrates not only Kalmyks, but also Russian judges for the full and rational development of the world institute in the Kalmyk legal space.

The positive consequences of the introduction of the world institute are clear: the Kalmyks were able to peacefully consider their cases and sort them out in places close to their place of nomadism. The procedure of legal proceedings was simple, oral and accessible, based on their own views and values. The practical benefit consisted in the systematic inclusion of the Kalmyk legal experience, the expansion of the moral and legal horizons of the Kalmyks, as well as in facilitating the path of progress for the Kalmyk society ^{[13, p.11]}.

Proceeding from the above, the chief trustee of the Kalmyk people considered it expedient to formulate a provision on the transformation of the judicial system in the Kalmyk ulus as follows:

- both Kalmyks and Russians were appointed as justices of the peace for the Kalmyk people;

- the Russian justice of the peace dealt with all cases transferred to district magistrates by decision of the government;

- the Kalmyk magistrate dealt with civil cases without considering criminal cases, even if they were insignificant;

- Kalmyk judges often acted as assistants to Russian magistrates and intermediaries between them and the people ^{[4, l.39]}.

For residents of the Kalmyk steppe, up to seven magistrates were distributed to the world congresses of Bagatsokhurov, Ikitsokhurov, Maloderbetovsky, Kharakhusovsky, Hosheutovsky, Erketenevsky and Yandykovsky uluses, among whom there had to be Russians ^{[3, l.37]}.

It was required that the justice of the peace was not a local resident of the Astrakhan province and did not necessarily own property, taking into account certain sizes, but he had to have completed secondary education and provide a copy of the certificate of immaculate service. This condition was based on local preferences and was considered satisfactory for the Astrakhan province.

Justices of the Peace were appointed for one year, and in case of satisfactory performance, they were granted the right to apply for an extension of service. The appointment of a judge for a term of more than one year was considered as a measure requiring special justification ^{[6, l.41]}.

The lists of candidates for magistrates of the uluses were formed by the chairman of the judicial place and the chief trustee of the Kalmyk people, after which they were sent from the governor of the Astrakhan region to the Senate for approval.

The amount of salary sent to the office ranged from 300 to 1500 rubles for each judge, respectively.

The subject of the department and the space of power of magistrates in the Russian state were also family issues specified in the regulation on the transformation of judicial proceedings ^{[7, l.12]}.

A feature of the magistrates from among the Russians was their competence in cases of cattle theft, if the value of the stolen did not exceed five hundred rubles, and provided that the theft was not accompanied by violent actions. This initiative was justified by the fact that cattle theft was characteristic of the Kalmyk mentality.

Since the regulation of 1825, the theft of livestock has been considered as a crime that does not belong to serious categories. Pointing to this circumstance, it should be noted the small significance of such offenses in the Kalmyk way of life, since it was not known about the disclosure of such crimes ^{[4, l.39]}.

This particular situation pointed to the imperfection of the ulus court and the concealment of criminals among the Kalmyks themselves. They, seeking only financial gain, reached a friendly agreement with each other, not seeking to punish the culprit, as prescribed by law.

A justice of the peace of Russian origin, if possible, investigated cases involving at least two Kalmyk judges, whose function in this case was advisory.

In this context, the Russian justice of the peace, having received the help of two Kalmyk judges, used their knowledge of the customs and customs of his people to supplement his work ^{[14, p.9]}.

A justice of the peace from among the Kalmyks was appointed in the ulus to consider civil cases only when both sides of the conflict appealed to him by agreement.

The magistrate was assigned from 600 to 700 tents.

The selection of justices of the peace was carried out at a general ulus meeting of all Kalmyks, regardless of rank and social status.

The structure of the ulus assemblies and the organization of elections remained unchanged, as indicated in the fourth chapter of the regulations on the administration of the Kalmyk people.  ^{[15, p.4]}

The justice of the peace was appointed by the chief trustee of the Kalmyk people for a period of twelve months. The candidate had to have an impeccable reputation, not be previously noticed in court and investigation, have a sufficient level of trust and respect in society. The candidate for the position of justice of the peace also had to be adapted to the conditions of steppe life and own at least five hundred heads of cattle. If a candidate was elected with at least 70% of the votes, a smaller number of cattle could be taken into account.

Due to the necessity of the property status of the Kalmyk justice of the peace, since the main wealth of the Kalmyks consisted of cattle breeding, a certain amount of cattle was required. In some uluses, for example, in Yandykovsky, because of the poverty of the Kalmyks, it was difficult to find candidates owning 500 heads of cattle. In such cases, priority was given to candidates elected by two-thirds of the votes. This election confirmed the trust and respect for the elected persons ^{[5, l.40]}.

Justices of the peace used the rights and advantages associated with the social status of the Kalmyk service. A sign similar to the one assigned to peace mediators was used to designate the title of magistrates. This sign did not belong to a justice of the peace, but was passed from one to another.

For the honest and diligent performance of their duties, justices of the peace received awards in accordance with the general legislation of the province. Kalmyk magistrates did not receive any monetary remuneration for their service.

The determination of incentives for Kalmyk magistrates caused difficulties due to the need to attract additional funds from the Kalmyks, which was a significant burden. In addition, taking into account practical considerations, the Kalmyk justice of the peace, combining his activities with nomadic life, did not create expenses for the office, that is, the absence of a salary for a judge was considered justified ^{[11, p.365]}.

The trial of cases before the Justice of the peace was carried out mainly orally and openly.

The justice of the peace made decisions of cases in accordance with the customs and legal data of his people.

Both parties to the conflict had to appear in person to the magistrates or could send an authorized representative accompanied by two witnesses confirming the identity of the representative and the existence of a power of attorney for the case.

The field of activity of a Kalmyks justice of the peace included preferably short-term cases. Usually, the procedure began with complaints from the injured party, which ended with reconciliation (Article III of the Code of 1857) ^{[5, l.40 vol.]}.

The Kalmyk Justice of the Peace was also not granted the following powers:

- consideration of forms of claims and other provisions specified in the formal act;

- consideration of cases for damages.

      Justices of the Peace had the opportunity to conclude oral transactions among the Kalmyks.

The second instance was the world congress, consisting of three Kalmyk and three Russian magistrates, who were geographically close to each other.

The daily salary of a Kalmyk justice of the peace, when he was at the congress, could reach fifty kopecks ^{[15, p.4]}.

The issues of jurisdiction of the World Congress remained the same as indicated in the provisions on the transformation of the judicial proceedings of the Russian state.

Subsequently, the ulus Zargs were to be abolished, and the ulus trustees were left with the power of police supervision. A judicial investigator became the deputy trustee of the ulus under the project of I.K. Kostenkov ^{[10, p.8]}.

The first judicial instance for the population of the province was the court, whose structure and management issues had to remain the same and be recognized as useful for the Astrakhan province ^{[6, l.41]}.

Conclusion

In the second half of the XIX century, it was not possible to implement any of the envisaged programs for the reform of the judicial system in the Kalmyk steppe. This happened as a result of several factors.

First of all, it should be noted the incomplete completion of the process of reorganization of the administrative structure of the Kalmyk steppe as part of the Astrakhan province. Another factor was the difficulty in coordinating the developed projects between different ministries, which led to significant time delays and loss of relevance of the project.

The government was aware of the need to reform the judicial system in the ulus of the province, but was not ready to weaken control and abandon the guardianship system in the Kalmyk steppe.

The second half of the XIX century became a period defining the development and implementation of fundamental transformations in the social life of the nomadic peoples of southern Russia, including the Kazakhs of the Inner Horde and the Kalmyks of the Astrakhan province. The reform of the judicial system in the Kalmyk ulus remained an important task. This article reveals the most problematic aspects of the work of magistrates and the organization of world congresses of the Kalmyk steppe as part of the Astrakhan province. The historiography of this study is also briefly covered. The specific reasons that led to the delay in the restructuring of the judicial system of the Kalmyk steppe in the second half of the XIX century have been identified.

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