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Published online by Cambridge University Press: 25 March 2019
When The Russian Duma was called into existence, in 1906 by Tsar Nicholas II, only a small section of the Russian intelligentsia greeted the event as a fulfillment of its liberal aspirations, and as the beginning of a new era in Russia. The rest of the country was either indifferent, or fundamentally hostile to any compromise with the Crown, or else disappointed by the half-hearted nature of the reforms.
Diehard supporters of autocracy were unwilling to cooperate with any of these groups. Eleven years later, when the Duma was abolished, new, more important events claimed the attention of the scholar, and radically modified the way of life of all sections of the Russian people. As a result, the Duma was soon forgotten, and it passed on into history as a mere incident in the history of the Romanov autocracy.
1 The present article is based upon a chapter in the author's forthcoming book: “Studies in the Procedure of the Russian Duma.“
2 The text of Bulygin's draft may be found in Zhurnal Ministerstva Justitsii, No. 7, September 1950, pp. 3-11. Materialy po uchrezhdenju Gosudarstvennoj Dumy, 1905 (unofficial edition) pp. 144-60. M. Mironov (ed.): Gosudarstvennye Akty Osvoboditel'noj Epokhy (St. Petersburg, 1906 [unofficial edition]), pp. 237-45. French text: Journal de St. Petersbourg, Mardi, 9 (22) Août, 1905, No. 208. The most important provisions relating to the procedure in the Bulygin Duma were reproduced by Pierre, E.: Traité de Droit Politique, Electoral et Parlementaire. Supplément Paris, 1906 Google Scholar. The modifications inspired by the October Manifesto were discussed by Lvov, T. in: Uchrezhdenie Gosudarstvennoj Dumy (Moscow, January, 1906)Google Scholar.
3 Article 57, Organic Law of the Duma, of August 6, 1905.
4 S. Jushkov continues to speak of a purely consultative assembly (op. cit., Part I, ch. XI, p. 614). The same view is shared by E. I. Michelet (op. cit., Vol. I, 1907, Part I, ch. VI, p. 126); and by Ambassador Maurice Paléologue who assumes that the Duma of 1906 and that of 1907 were established under the authority of the Organic Law of 1905 (Les Précurseurs de Lenine. Paris, 1938, ch. X, pp. 158-60). Léon Duguit wrote cautiously that the Duma of 1906 had, at least in theory, real legislative power (Manuel de Droit Constitutionnel. (Paris, 1918) Part III, Ch. I, § 79, p. 344).
5 The text of the Fundamental Laws of 1906 may be found in the following collections: Savich, G.: Novyj gosudarstvennyj stroj Rosii (St. Petersburg, 1907), Part I, pp. 70–81 Google Scholar. Lazarevsky, N.: Zakonodatel'nye akty perekhodnago vremeni (St. Petersburg, 1907), appendix I, pp. 615-67Google Scholar. Hessen, V. M. and Nolde, Baron B. E.: Soxrremennyja konstitutsii (Modern Constitutions), (St. Petersburg, 1907), vol. 2, pp. 563-88Google Scholar. Zhurnal Ministerstxm Justitsii, No. 3, March 1906, pp. 4-13 (Organic Law of Duma), and No. 5, May 1906, pp. 37-47 (Fundamental Laws). See also: Slonimsky, L.: Konstitutsja Rossijskoy Imperii, (St. Petersburg, 1907 [?])Google Scholar. Godlewski, Stefan: Pierwszy rok konstytucii w panstxvie rosyjskym, (Warsaw, 1907)Google Scholar, (Russian Text and Polish Translation). Official edition: Sbornik Zakonopolozhenij i postanovlenij (St. Petersburg, 1912).
6 This is an innovation in comparison with the Bulygin Duma.
7 This distinction was well understood by Anton Palme: “Von der Initiative ist im russischen Staatsrecht streng die Einbringung zu unterscheiden. Das Einbringen einer Vorlage ist eine subordinierte Tätigkeit bei der Gesetzgebung; es geschieht stets im Auftrage. Wenn die Minister Gesetzvorlagen in die Staatsduma einbringen, so geschieht dies entweder als Verwaltungsakt im Auftrage des Kaisers, oder im Auftrage der Staatsduma” (Die Russische Verfassung, Berlin, 1910, p. 99).
8 CF.: Alexeev, G. A., in: Zhurnal Ministerstva Justitsit, (St. Petersburg). No. 2, February 1913, pp. 59–92 Google Scholar. Of the various definitions proposed, this one seems to be the most satisfactory in application to the system of 1906.
9 The same logical pattern must be applied here as in the case of Bulygin Duma.
10 A similar rule applied, mutatis mutandis, to the State Council.
11 There is absolutely no truth in Professor H. Seton-Watson's assertion that “In practice the powers of the Tsar and of the Council of State were used to stop the Duma's projects” (The Decline of Imperial Russia, 1855-1914 [London, 1952], Part III, Ch. VII, p. 247-)
12 This is a relic from the Bulygin Duma: there the ministers submitted all bills to the Duma as a preliminary step to the discussion of these bills in the State Council.
13 The formula of promulgation was the following: “Law approved by the State Council and the State Duma, sanctioned by the Sovereign.” There followed the title of the new law and the traditional three words written on the minute in the Tsar's own handwriting: Byt’ po semu! As for the publication, article 92 of the Fundamental Laws said that “legislative provisions shall not be made public as Laws (by the Senate), unless they are established in the form required by the Fundamental Laws.” Theoretically, this control could constitute a serious guarantee of the constitutionality of laws. Practically, we have here a case somewhat similar to that of the control of the constitutionality of the laws by the French Senate of the Year VIII.
14 The chapter of the Fundamental Laws dealing with the question of the competence of the ministers does not contain any allusion to the right of legislative initiative. This fact supports the view that article 8 of the Fundamental Laws did not simply “forget” to mention the ministerial right of the legislative initiative. (Cf. G. A. Alexeyev, loc. cit., p. 69). See also V. Gribovsky: Das Staatsrecht des russischen Reiches (Tübingen, 1912), part VI, p. 80, § 26: “Weder die einzelnen Minister, noch der Ministerrat besitzen das Recht der gesetzgeberischen Initiative.“
15 Thus Julius Hatschek stated that “die Gesetzesinitiative, d.h. die Einbringung des Gestezentwurfes kann nur durch die Regierung erfolgen” Das Interpellationsrecht (Leipzig, 1909) p. 9.
16 Pierre Chasles is of a different opinion. He thinks that the minister who drafted the bill could completely distort the spirit of the initial proposition of the Duma, so as to reduce the legislative initiative of this assembly to a mere right of “legislative petition” (op. cit., Part II, ch. I, p. 168).
17 A confusion between the nature of the rights established in articles 8 and 107 of the Fundamental Laws, on the one hand, and article 34, Organic Law of the Duma, on the other hand, caused the French jurist Pierre Chasles to say that the initiative belonged primarily to members of the government. (Op. cit., Second Part, Ch. I, p. 165). The author adds in a note: “II semble resulter des textes que les ministres ont un droit d'initiative propre, même sans le consentement de l'Empereur. Mais, en fait, ils ne peuvent agir qu'au nom du gouvernement tout entier”. “However“—he continues—“the ministers can submit projects of law only to the Duma, since they do not possess the initiative in the Upper Chamber, with the exception of the case when the project of law is being drafted by the minister under the impulse of the State Council itself.“ It is difficult to grasp the sense of this argumentation. Chasles distinguished the “impulse” from the initiative proper, and from the drafting of bills without defining the relationship between these three notions, or basing it on the letter of the law. Speaking more particularly about the legislative competence of the houses of Parliament, Chasles observed that the law of February 20, 1906, gave the legislative assemblies “only a very limited initiative“; and that the role of the Upper Houses was essentially a passive one: the State Council merely examined the projects submitted to this assembly by the Duma, using but very rarely of its own “right of initiative.“ This is all we are told about the legislative initiative of the Duma and of the State Council. As for the Tsar, Chasles wrote that “there is only one instance when the Emperor could exercise alone his right of initiative, namely in the case of the revision of the Fundamental Laws (Eodem loco, p. 166), by submitting a proposition in this sense to the Parliament.” After this description we certainly do not know more about the mechanism of the legislative procedure in Russia than we knew before.
18 According to this author, the Tsar's approval was not necessary in this case (Lektsii… . Part II, Ch. I, § 4, p. 140).
19 See A. S. Taguer, In Pravo, No. 23, June 191a, pp. 1268-77. N. I. Lazarevskij: Russkoye gosudarstvennoye pravo, 3rd edition, (St. Petersburg, 1913), Vol. 1; Part IVI, ch. I; § 1, p. 605.
20 Cf. Baron B. Nolde, in Pravo, No. 45, November 1911, p. 2483.
21 Cf. Lazarevskij: Lektsii. . . . Part II, Ch. I, 4, pp. 138-39.
22 In the project of Bulygin the legislative rights of the Duma are defined in the same terms as the right of legislative initiative of the Emperor in the Fundamental Laws. On the other hand, the members of the Peterhof Conference of igos frequently spoke of the “legislative initiative” of the Duma. Yet it is perfectly clear that the Bulygin Duma possessed no right of legislative initiative.
23 See Shershenevich, G. F.: Obshchaja teorija prava (Moscow, 1911), Vol. I, Part II, pp. 385–86Google Scholar.
24 Thus there seems to be no change in the nature of the State Duma of 1906 in comparison to its prototype of 1905.
25 Nolde himself makes this distinction in: Ocherki russkago gosudarstvennago prava, (St. Petersburg, 1911) Ch. II, § 8, p. 181 and § 9; p. 193.
26 Cf.: Shershenevich, loc. cit., p. 383.
27 Chasles admitted the possibility of a substitution of legislative initiative when he wrote: “Le Ministre fait en quelque sorte sienne la proposition de loi présentée par 50 membres de la Douma” (op. cit., Part II, ch. I, p. 1O8). See also: N. A. Zakharov: Systema russkoj gosudarstvennoj vlasti (Novocherkassk, 1912), Ch. VI, pp. 186-88.
28 N. Zakharov does not deny this (op. cit., Ch. VI, p. 180). However, he makes a distinction between the right of the house commissions to submit bills to the legislative assembly, which merely constitutes a part of the mechanism of legislative procedure, and the same right of the ministers which he recognized to be autonomous, based on article 160, Organic Law of the Ministries, of 1906 (sicl) This distinction is ingenious, but purely gratuitous. Zakharov himself recognized elsewhere that this right of the ministers was autonomous only vis-à-vis the assembly, not vis-à-vis the Emperor (Ch. VI, p. 185); and still further that, from the purely formal point of view, it did not exist (Ch. VI, pp. 190-91). On the other hand, Zakharov does not say what was the distinctive moment of legislative initiative; according to him, initiative belonged (a) to the Emperor, in virtue of article 8, Fundamental Laws, (b) to the ministers who exercised it by drafting and submitting to the legislative assembly their own, and the assembly's bills. However, this initiative was limited, not in substance but as to its exercise (quo ad exercitium) 1) by the duty to seek the consent of the Emperor for their own bills; and 2) by the prohibition established by the Organic Law, to submit their bills to the State Council. Finally c) the initiative belonged to the members of the legislative houses who exercised it by introducing into the assembly projects of bills, signed by at least thirty members.
29 Cf.: Nolde in Pravo; loc. cit., and Shershenevich, op. cit., Vol. I, Part II, Ch. VII, § 39. p. 386.
30 Svod xakonov; Vol. I, Part II; edition of 1906.
31 Svod zakonov; Vol. I, Part II; edition of 1908. This rule was re-stated expressis verbis only in the amended edition of 1908. Cf.: P. I. Ljubinskij, in Pravo, No. 22, June, 1913, Note 1 to p. 1378.
32 This is fully in harmony with the situation of the Ministers in the Bulygin Duma.
33 Cf.: G. A. Alexeyev, loc. cit., p. 72. This was evidently an innovation of the Organic Laws connected with the transformation of the nature of the Duma.
34 The italics are mine (S.L.).