The Quality of Mercy in Early Modern Legal Practice

Those of us required to memorize works of literature in grade school will probably remember at least the first few words of Portia's speech to Shylock in The Merchant of Venice—"The quality of mercy is not strained." We might, however, have forgotten how the text goes on. For anyone interested in early modern European judicial principles, it is worth a look. The text develops into an astute commentary on the virtue of employing mercy in judicial practice.

The quality of mercy ... is twice blest; It blesseth him that gives and him that takes: 'Tis mightiest in the mightiest: it becomes The throned monarch better than his crown; His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptred sway; It is enthroned in the hearts of kings, It is an attribute to God himself.

(Act 4, Scene 1)

Shakespeare asserts that mercy, while benefiting the recipient, also rewards its bestower. When the merciful figure is a monarch, mercy becomes a tool of power as potent as the "dread and fear" instilled by coercive force. Shakespeare praises benevolence—the ruler most closely approaches God not when he wields his scepter, but when he "seasons" justice with mercy.

The issue of violence and mercy has a particular resonance for Muscovite history, or perhaps for Russian history in general, since Russia has so often, and so long, been considered an excessively violent society. From 16th-century foreign travelers to modern observers and historians, attention has been drawn to the degree of brutality in private life, in revolutionary action, and in political life—that is, in the use of state-sanctioned violence in governance. In a recent issue of Kritika dedicated to violence in Russia, two Muscovite-era articles claimed that Muscovy was more violent than its West European counterparts.¹ V. A. Rogov and Evgenii Anisimov have sparred over the extent of brutality in the judicial system, and Richard Hellie has argued that all of Muscovite society was more violent than the West. Similarly, Christoph Schmidt has argued that the system of enserfment created a culture of coercion and brutality.²

Such debates over how violent Muscovy was as a society or a polity, however, strike me as perilous. How can one measure the degree of violence in a society? For some early modern European societies one can establish crime rates as a basis of comparison, but not for Muscovy, since sources are so incomplete.³ Can one assess the experience of violence for "Muscovites" when the empire was so large and socially diverse?

We might, however, fruitfully explore violence in the political sphere more narrowly conceived. That judicial practice in Muscovy involved ample violence cannot be denied. Muscovy may not have engaged in public spectacles of execution as horrific as those of contemporaneous Amsterdam or London, but its judicial practice for serious offenses rested on a solid foundation of brutality. Beatings by knout were used not only as punishment but also as the principal form of torture. We can try better to understand these practices by seeing them as strategies of governance and thus asking when the judicial system employed violence and how it used it. Of the various means that states have at hand to maintain control, however—coercion, material reward, and ideological indoctrination are principal strategies—violence is the riskiest. Rarely sufficient in itself, it is most effective when used consciously and sparingly for specific purposes.⁴

Such a generalization is borne out by an analysis of how the Muscovite court system mitigated judicial violence by the use of the tsar's "mercy" in the 17th century. Here I examine how mercy was meted out by judges and by litigants in criminal cases (those involving the most serious crimes and the sysk investigatory procedure). I focus on criminal cases because in such serious crimes the state's temptation to use coercive power is greatest. I stop short of the Petrine era (1689–1725) because Peter's judicial innovations had implications for...