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DOI: 10.25136/2409-868X.2022.2.35338
Received:
25-03-2021
Published:
12-03-2022
Abstract:
The subject of the study was the updated part of the theoretical and legal heritage of the outstanding Russian lawyer of the late XIX - early XX century, professor, senator of the I Department of the Governing Senate Eduard Nikolaevich Berendts (1860-1930). In this article, the main attention was paid to the memoirs of E. N. Berendts about the work of the Governing Senate in the conditions of the revolutionary transformations of 1917, about the change in the system of public administration, about the transformations in the mechanism of the state in general and the state apparatus in particular, about the abdication of Emperor Nicholas II for himself and for the heir, about the legality of coming to power The Provisional Government. When writing the article, universal, general scientific (primarily systemic, structural and functional, modeling, forecasting methods), special (primarily sociological) and private (primarily formal legal, comparative legal, reconstruction and interpretation of legal ideas) methods were used. The scientific novelty is determined by the absence of comprehensive studies in domestic and foreign legal science devoted to the theoretical legacy of E. N. Berendts. The works of E. N. Berendts, which were not translated into Russian earlier, archival materials, which are being introduced into scientific circulation for the first time, are used. For the first time in historical and legal science, the analysis of E. N. Berendts' views on the role and place of the Governing Senate of the Russian Empire in the mechanism of the state, on the problems of the revolutionary transformations of 1917 and the subsequent changes in the work and functional purpose of the Governing Senate, on the formation and activities of the Provisional Government was carried out
Keywords:
Berendts, police law, administrative law, Governing Senate, revolution, abdication of power, Provisional Government, Supreme power, the mechanism of the state, state apparatus
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"Revolution is never successful, there have never been successful revolutions"[1, p. 438]. Revolutionary events in most cases bring with them a whole bunch of consequences such as: exhaustion and fragmentation of the country, great human sacrifices, arrests, executions, strict censorship, as well as the scrapping of the old system, transformations in the state apparatus. The revolution of 1917, the Civil War that followed it, and the reconstruction of the state system and Russian society are events that radically changed the face of the state, the fate of the Fatherland as a whole and its individual citizens in particular[2]. The lives of imperial statesmen and scientists have changed radically. Their confidence that the Russian Empire had the opportunity to become a developed legal state and the conviction that it was necessary to take into account the legal traditions that had developed in the state were destroyed overnight by the concept of building communism. Some scientists were forced to adapt to a new life and a new political order, others left the country and attempted to implement their experience and ideas abroad [3, pp. 162-163]. Eduard Nikolayevich Berendts (9 (21) December 1860, St. Petersburg – August 4, 1930, Tallinn [4, l. 9] Russian scientist, statesman, polizeist, administrativist, senator of the I Department of the Governing Senate, who did not recognize political changes and in August 1918 made a strong-willed decision to leave Russia and emigrate to the Republic of Estonia [5, p. 8],[6]. In the Republic of Estonia, he managed to adapt to a new life, did not lose his former optimism and ardent passion for science. There he obtained citizenship and was invited to the University of Tartu as a professor of the Department of Financial Law to give lectures on political Economy [8, pp. 149-161],[9, pp. 22-27]. In addition to teaching, E. N. Berendts published in Estonian political magazines such as: "Erigus" (1920-1923), "Eesti Majandus" (1921-1925), "Majaomanik" (1924), "Eesti politseileht" (1923-1925), as well as in the newspapers "Life" (1920), "Latest News" (1921-1930), "Old Narva Leaflet" [6, pp. 828-843]. In the newspaper "Life" E. N. Behrendts published a number of articles with the same title "From the memoirs of an old senator". In these articles, the scientist talks about his last days of service in the I Department of the Governing Senate [10, l 47-51],[11],[12, pp. 12, 26, 31, 37]. The Governing Senate of the Russian Empire was established by Peter I on February 19 (March 2), 1711, was the highest state organ of legislative, executive and judicial power, subordinate to the emperor [13, p. 55]. At the beginning of the XX century, for more than 200 years of its existence, this state body has achieved significant transformations. Historically established competencies enabled the Senate not only to protect the legal system in the country, but also to provide all the necessary conditions for this. The Governing Senate had the exclusive right to promulgate laws; to refuse to publish laws that contradict the Basic State Laws; to discuss the thoroughness of codification changes in laws, to check the compliance of these changes with the laws in force promulgated by it; to interpret regulatory legal acts; to supervise the activities of institutions subordinate to the Governing Senate; to monitor the correctness of: elections to the State Duma, to zemstvo meetings, to the city duma; for the correctness of the elections: merchant, craft, petty bourgeois [14, pp. 4-8]. The February revolution of 1917 radically changed the work of the Governing Senate, the Provisional Government appropriated all the rights of the Emperor in relation to the Senate. E. N. Berendts, recalling these difficult and turbulent days of work, wrote that on March 5, 1917 In the evening, senators of the First Department of the Governing Senate received an invitation to appear in full at the Department meeting by one o'clock in the afternoon. The senators were almost in full force, with the exception of General A.V. Chartoriysky, who was killed by sailors on March 1, 1917. In the conference room, the senators violently discussed the abdication of the Sovereign Emperor Nicholas II for himself and for the heir, which took place on March 2, 1917 in a train carriage in Pskov.
The senators unanimously came to the conclusion that the monarch could personally abdicate for himself, but the removal of a minor heir from the throne and the transfer of the throne to Grand Duke Mikhail Alexandrovich were illegal acts. However, it was decided to refuse to issue a decree on abdication, since the Sovereign and the heir were in Tsarskoye Selo among the rebellious troops and most senators feared that recognizing the abdication illegal could lead to the beating of the entire royal family. We decided to make peace with the deviation from the law. Senators among themselves asked the question, "why was it necessary to convene the Governing Senate?! Why didn't the Provisional Government, which represented the Supreme Power, itself publish a Manifesto of Abdication? Obviously, they wanted to hide behind the authority of the oldest state institution of the Russian Empire by the Governing Senate" [11]. From the memoirs of E. N. Berendts: "at one o'clock in the afternoon we went to the hall of the first general meeting, the portrait of Nicholas II was already removed, the rest of the royal portraits were left in place for the time being, the double-headed eagle was removed from the "mirror of laws". At the prosecutor's desk sat a small man in a jacket, with a smooth-shaven face, with narrowed eyes and protruding ears, it was the new prosecutor general, a protege of the left parties A. F. Kerensky. Senators took their seats, Senator S. B. presided. Vrasky. A. F. Kerensky got up and approached the senators' table, announcing that the Provisional Government was asking the Senate to publish a decree on the abdication of Nicholas II for himself and for the heir and a decree on the abdication of Grand Duke Mikhail and handed over the acts of abdication to Vrasky"[11]. To successfully complete the coup, the Provisional Government needed to legitimize its power on the territory of the state. For this purpose, the Provisional Government considered it necessary to take an oath before the Governing Senate, and publish documents on abdication [15, p. 4]. E. N. Berendts recalled: "The act of abdication of Nicholas II was written on a blue telegraph form in pencil, the paper was crumpled, as if it was carried in a pocket, the paper clip was from the Minister of the Imperial Court, Count V. B. Fredericks, and not as it should be, from the chairman of the Council of Ministers. The act of abdication is, after all, a state act, and not a matter of the palace department" [11]. As noted by another senator, the famous lawyer V. D. Nabokov, the act "On the refusal of Grand Duke Mikhail Alexandrovich from the perception of supreme power until the establishment of the way of government and the new Basic Laws of the Russian State in the Constituent Assembly" was the only act that determined the scope of power of the Provisional Government and at the same time resolved the question of the forms of its functioning, in particular in particular, the question of the further activities of legislative institutions. From the moment of the act of refusal, it was considered established that the Provisional Government also fully owns the legislative power [16, pp. 382-383]. The normative acts submitted to the Governing Senate contradicted the Basic State Laws of April 23, 1906 in form and content. The Act of abdication of Nicholas II violated the provisions of Chapter Two of the Main State Laws "On the order of succession to the Throne". Articles 37 and 38 of the Basic State Law provided for the possibility of abdication of only the person to whom the specified throne passed after the death of the previous emperor and it was possible to abdicate only for himself [17],[18, p. 18]. The act of abdication had no legal force due to the fact that its form and structure should be drawn up in the form of a "Manifesto", and not in the form of a telegram to the "chief of staff", signed in pencil and sealed with the pen of the Minister of the Imperial Court [19, p. 172]. The act of Mikhail Alexandrovich's refusal to accept the supreme power was also illegal. This act violated article 8 of the Basic State Laws. In particular, the act stated that Mikhail Alexandrovich decided "in that case to accept the supreme power, if such is the will of our great people, who should establish the way of government and the new Basic Laws of the Russian state by popular vote through their representatives in the Constituent Assembly" [20, p. 126]. According to Article 8 of the Basic State Laws, only on the initiative of the emperor could the Basic State Laws be subject to revision, and not in the Constituent Assembly, but in the State Council and the State Duma [17]. The governing Senate had every right to refuse A. F. Kerensky in the promulgation of the two acts submitted by him. However, the political situation and worries about the life of the Sovereign and the heir pushed the senators to give up the law and recognize the acts of abdication as legal [11]. E. N. Berendts recalled: "Then the new prosecutor General uttered the following witty phrase: "Citizens senators, now I will leave the courtroom, so that my presence does not embarrass citizens senators." A curious prosecutor general! He obviously did not know that since he is the prosecutor general, then he must attend the meeting and his duty is to give an opinion on the legality or illegality of the abdication, because, according to Peter the Great, he is "the eye of the sovereign and a lawyer in state affairs"" [11]. The Senate, after a short discussion, decided to issue a decree, Senator S. B. presiding in the I Department. Vrasky, announced a resolution. After the senators turned to A. F. Kerensky with the following words: "The Senate has decided to issue the required decree and asks you to convey to the Provisional Government that it will support the Provisional Government in everything that will help strengthen the rule of law in Russia" [11]. Thus, the Provisional Government legitimized the legality of its power, its next step was the oath before the Governing Senate.
From the memoirs of Senator E. N. Behrendts: "March 9, 1917 The entire I Department of the Governing Senate was assembled again. This time because the Provisional Government wanted to take the oath before the Senate. At that time, the Provisional Government was already the Supreme Power. Why should he swear an oath before the Senate, before which only the highest judges swore? Again at one o'clock we took our seats. The Provisional Government entered. Prince G. E. Lviv, A. I. Guchkov and A. A. Manuilov with serious faces, in black coats and ties, and the rest, some in a jacket, some in a jacket, some in a cheerful mood" [11]. The governing Senate in the Russian Empire occupied a central place in the system of state bodies, in fact, led the entire state life. In this regard, a special responsibility was imposed on officials (officials), in order to consolidate the importance of the position, Peter I defined the procedure for taking the oath of senators, all civil servants and compiled its text. At the end of the text of the oath were the following words: "in conclusion of this oath of mine, I kiss the words and the cross of my Savior. Amen" [14, pp. 4-8], after which the official appointed to the service had to kiss the cross and the gospel in the presence of the priest. E. N. Berendts recalled: "Senator Vrasky read the formula of the oath. There was no cross, no gospel, no priest. Guchkov, Manuilov and Prince Lvov raised their hands and folded their fingers according to the ritual, while the others somehow held their raised hand. Then everyone signed the oath sheet. After this incomprehensible action, the Provisional Government announced that a group of senators of the I Department and members of the Provisional Government would be filmed by photographer K. K. Bulla, the same one who filmed a group of senators around the Sovereign Emperor Nicholas II on the day of the 200th anniversary of the Governing Senate on March 2, 1911" [11]. E. N. Behrendts wrote: "We sat down, took off and dispersed. Six months later, a new government appeared and stopped all activities of the Senate. For the time being, the last chapter in the history of the Governing Senate has ended" [11]. After the October Revolution of 1917, by Decree of the Council of People's Commissars on the Court No. 1 of November 22 (December 5), 1917, it was decided "to abolish the hitherto existing general judicial institutions, such as: district courts, judicial chambers and the Governing Senate with all departments ..." [21]. The Ruling Senate, which had existed for 206 years, was abolished, and the Romanov dynasty, which lasted for 304 years, ended with the abdication of Emperor Nicholas II from the throne. A terrible time has come for Russia. "Man has experienced the brutal cruelty of anarchism and the oppressive soul and mind of the system of socialism, and over the centuries has moved to life in the state, to the recognition of the need to obey the authorities, the law, to the recognition of private property limited by laws, so that the freedom of one could be consistent and coexist with the freedom and property of all others" [22, p. 18-20]. The scientist loved his homeland dearly, but he clearly understood that he would not be able to return to Russia, explaining this to himself by the fact that the great, understandable and native Russian Empire had disappeared. E. N. Berendts is one of the many famous scientists who made up the intellectual wealth of Russia and left it after October 1917.
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