Imagens das páginas
PDF
ePub

Judicial Procedure The Parties to an Action.-Of the procedure in the courts only a few general features can be given. In every case in all countries there must be an accuser or plaintiff, an accused, and a judge. It should be noted that in the United States no case can be brought before a court without an information or statement under oath, or an indictment by a grand jury. These preliminary proceedings are intended to prevent the presentation of unfounded or capricious actions to a court. In England and the United States, and to some extent in other countries, the judge may in cases of some importance be assisted by a jury. The accused is permitted to be represented and defended by a lawyer or advocate, who has thus become in all civilized states to-day an essential element in civil and criminal cases. The accuser or plaintiff may be an individual citizen, also represented by a lawyer or advocate, or may be (and commonly is in the states of continental Europe) an official of a government department charged with this duty.

The Jurisdiction of Various Courts.—The grade or degree of court into which a case is first introduced is determined by the nature and importance of the case.

In civil cases a common custom is to give original jurisdiction to the lowest grade of courts in cases involving an amount less than a stipulated value, as two hundred dollars; and to give original jurisdiction in cases involving greater value to a higher grade of courts. In criminal cases a similar procedure is followed, petty offenses being dealt with in courts of the lowest grade and crimes of a serious nature in courts of higher grade. Cases of a special nature not coming within the province of the regular system of courts are dealt with in special courts. In some countries, as France, where doubt exists as to which courts properly have jurisdiction, as, for example, whether the regular civil courts or the administrative courts should receive a case, courts of conflict have been established, the function of which is to refer cases to the proper courts. Commonly, under the system in

various countries, certain specified cases fall in the jurisdiction of a certain grade of courts; thus, for example, in the United States under the constitution the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a

party.” 1

The Right of Appeal.-A feature of the judicial system common to all great states is the right of appeal from the decision of a court of a lower grade to that of a court of a higher grade. The right of appeal may be exercised in both civil and criminal cases and in the special cases in the special courts. The ground on which an appeal is based is usualiy error in trial. The granting of an appeal is in some cases a perfunctory matter, being insured under the legal system, and in other cases is in the power of the higher court itself; but such grant is not understood in any case to prejudice the upper court in its consideration of the trial by, and decision of, the lower court. The action of the superior court, upon appeal, may be either to affirm the decision of the lower court, or to reverse it and to remand the case to the inferior court for retrial. A case of importance may be carried from the lower courts to the highest court in the state by successive appeals. So commonly is the right of appeal taken and granted that it has been found necessary in many states to have intermediate courts which deal with these cases alone, such as the circuit court of appeals in the United States, the court of criminal appeals in England, and the court of petition (chambre des requêtes) in France.

Penalties and Punishments. In the modern state the infliction of penalties and punishments in the courts is upon a very different basis from that of former times. For criminal offenses the punishments in former times were usually severe, such punishments being inflicted on the theory of revenge or retaliation, or on the theory that cruel punishments served to frighten prospective criminals. Thus in England of the eigh*U. S. Constitution, Art. III, Section 2.

teenth century there were approximately two hundred and fifty offenses for which the punishment was death, and as late as 1830 a nine-year-old boy was sentenced to death for breaking a shop window and stealing a trifling amount of paint. The jails and prisons, too, were kept in an inhuman way. In modern times the theory of the aim of punishment has entirely changed. Painstaking investigation of the causes of crime has inspired the belief that on the one hand a considerable proportion of crime can be prevented, and that on the other many criminals can be converted into useful members of society. Thus prevention of crime and reformation of the criminal have become the ends of modern justice. In view of these ends, the offenses for which death (capital punishment) is meted out have been reduced in numbers, juvenile courts have been established to deal with the cases of children, reform schools have taken the place of prisons for youthful offenders, prisons have been made light, clean, and airy, criminals have been taught useful trades during their term of imprisonment, and numerous social agencies outside of the judicial department coöperate in finding honest work for the released criminal.

II. INTERNATIONAL COURTS In relatively modern times, serious attempts have been made to establish an international tribunal to which nations might refer cases in dispute for arbitration. These attempts have been bound up with the endeavors by thoughtful and forwardlooking men in various advanced countries to remove, or at least to minimize, the chances for disastrous wars. The burdens of the huge armaments maintained by great nations in the late XIXth and early XXth centuries and the devastating possibilities of war between nations of the first rank gave special impetus to the movement during this period and the increasing number of cases in which nations were willing to pledge themselves to arbitration and to abide by arbitrators' decisions gave the movement its direction.

International arbitration of disputes is no new practice be

tween nations. Continued resort to arbitration by nations of all ranks during the XIXth century in cases not considered as involving national honor gave this practice the stamp of authority. Some two hundred cases had been thus settled in the last three quarters of the century, and it is interesting to note that Great Britain and the United States had frequently taken the initiative in suggesting this practice. Before 1899, the United States had participated in fifty-seven arbitrations, of which twenty were with Great Britain.

It is true, however, that though this method of settling disputes of certain kinds had become common, it had by no means been reduced to a system. Each presented anew a problem involving the suggestion of arbitration by one or another of the interested parties, the acceptance of this method of settlement, the selection of the arbitrators, the agreement upon a statement of the case and the conditions of arbitration. Negotiations were always delicate and often protracted. The possibilities of a resort to war were ever present.

The Czar of Russia has the honor of having taken the first decisive step in an endeavor to bring the nations of the world into common agreement upon measures to reduce the possibilities of war and to systematize and legitimize existing practices for the settlement of international disputes. In August, 1898, he issued invitations to all nations diplomatically represented at St. Petersburg to participate in a conference at The Hague, the agenda of the proposed conference being as follows:

"1. An understanding not to increase for a fixed period the present effective of the armed military and naval forces, and, at the same time, not to increase the budgets pertaining thereto, a preliminary examination of the means by which a reduction might even be effected in future in the forces and budgets above mentioned.

"2. To prohibit the use in the armies and fleets of any new kind of firearms whatever, of any new explosives or any powders more powerful than those now in use either for rifles or cannon.

"3. To restrict the use in military warfare of the formidable explosives already existing, and to prohibit the throwing of

projectiles or explosives of any kind from balloons or by any similar means.

"4. To prohibit the use in naval warfare of submarine torpedo boats or plungers, or other similar engines of destruction; to give an undertaking not to construct vessels with rams in the future.

“5. To apply to naval warfare the stipulations of the Geneva Convention of 1864 on the basis of the articles added to the Convention of 1868.

“6. To neutralize ships and boats employed in saving those overboard during or after an engagement.

“7. To revise the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, which has remained unratified to the present day.

“8. To accept in principle the employment of the good offices of mediation and facultative arbitration in cases lending themselves thereto, with the object of preventing armed conflicts between nations; an understanding with respect to the mode of applying these good offices, and the establishment of a uniform practice in using them.”

The conference assembled May 18, 1899. As might have been expected, certain of the great powers were so suspicious of the motives underlying proposals for reduction of armaments that none of these could be brought to a decision. Germany was the worst offender in this respect, its delegates having been carefully instructed to refuse an agreement to or any discussion of such proposals. It was difficult in this atmosphere of mutual suspicion to obtain an agreement even upon a declaration of principles upon any question of international relations. Conventions were finally adopted with respect to the laws and customs of land warfare, and to the adaptation of maritime warfare to the principles of the 1864 Geneva Convention. The most prominent result of the conference, however, finally adopted after long deliberation, was a "Convention for the pacific settlement of international disputes," which provided for a permanent court of arbitration.

Although called a "court of arbitration,” this institution consisted merely of an eligible list of persons designated respec

« AnteriorContinuar »