No. 616.
Mr. Rublee
to Mr. Fish.
Berne , July 23, 1874. (Received August 20.)
Sir: Believing that the subject will not be without interest to you, I subjoin a summary of the recent law re-organizing the federal judiciary of Switzerland, and extending its jurisdiction in accordance with the provisions of the new constitution.
A federal tribunal, is constituted of composed of nine members and the same number of substitutes. These are chosen by the federal assembly, which will take care that the three national languages are represented in the tribunal. The term of office is six years. During their tenure of office the members of the tribunal are not permitted to hold any other office or employment in the service of the confederation or of the cantons, to follow any other career or profession, nor to act as a director or member of the executive board of any association which has for its object pecuniary gain.
I may here mention, parenthetically, that hitherto a curious accumulation of public functions has, in this country, frequently been allowed to be vested in a single individual. As an instance, I recall the circumstance that quite recently one of the members and the president of the old federal tribunal was at the same time a member of the federal legislature and the president of his canton.
[Page 1276]The new law, not content with prohibiting the members of the federal tribunal from holding any other office, provides further that kinsmen or relatives, in the line direct, indefinitely, and in the line collateral, to the degree of cousin-german, may not be members or officers, at the same time, of the tribunal. A member or officer of the tribunal who may contract a marriage which brings him within the prohibited relations to another member or officer will be held by this act to have resigned.
The president and vice-president of the tribunal are chosen from among its members by the federal assembly every two years. Seven members form a quorum. Their salaries are fixed at ten thousand francs per annum, with the exception of the president, who receives eleven thousand francs. The members are required to reside at the place selected for the seat of the tribunal. Vacations may be taken once or twice a year, not to exceed four weeks in the aggregate, during which the members, except the president and vice-president, may absent themselves from their official residence.
The cases in which a member of the tribunal is forbidden to sit as judge are carefully enumerated, and include those to which his native canton or commune is a party.
Objection to a judge’s sitting in a given case may be made by either of the parties thereto, or he may himself demand to be excused. When such objection is contested the tribunal will pronounce upon it.
civil jurisdiction.
The civil jurisdiction of the tribunal extends to differences—
- (1.)
- Between the confederation and one or several cantons;
- (2.)
- Between corporations or individuals, as plaintiffs, and the confederation, as defendant, where the interest involved is not less than three thousand francs;
- (3.)
- Between the cantons;
- (4.)
- Between cantons and corporations, or individuals, when a sum not less than three thousand francs is in question.
Further, it has jurisdiction in case of differences relating to the heimathlosat, (a condition of certain natives of Switzerland who have no local citizenship,) of contests that arise between communes of different cantons, and of all causes placed within its competence by special federal legislation.
By existing federal laws it has jurisdiction: (a) In contests respecting expropriations for railways or other works of public utility; (b) respecting divorces and mixed marriages; (c) in differences between the confederation and railway companies, and especially of actions for damages; (d) of actions for damages by railway companies against individuals; (e) or by one railway company against another; and (f) of all contests arising from the sale of railways under an execution.
In causes where the application of federal laws by a cantonal tribunal is brought in question, the amount involved being not less than three thousand francs, or not susceptible of estimation, either of the parties may appeal to the federal tribunal from the cantonal court of last resort. By an agreement, the parties to such causes may appeal directly to the tribunal from the cantonal court of first instance.
Further, the tribunal has jurisdiction of causes placed within its competence by the constitution or laws of a canton, with the ratification of the federal assembly; and those brought before it, by agreement of the parties thereto, when a sum of not less then three thousand francs is in question.
[Page 1277]penal jurisdiction.
The tribunal, aided by the jury, has jurisdiction—
- (1.)
- In cases of high treason against the confederation, or of revolt or violence against the federal authorities;
- (2.)
- Over offenses against the law of nations;
- (3.)
- In cases of political offenses which are the cause or the consequence of troubles requiring armed federal intervention;
- (4.)
- In case of charges brought against functionaries named by a federal authority when committed to the tribunal by such authority.
Further, in other cases placed within its competence by the constitution or laws of a canton, ratified by the federal assembly.
For the administration of penal justice, the federal tribunal is divided into three sections, to wit, a chamber of accusation, a criminal-chamber, and a tribunal of cassation. These three chambers are designated at the beginning of each year. No judge can act in the same case in more than one section of the tribunal.
The federal assizes are composed of the criminal-chamber, consisting of three members of the federal tribunal and three substitutes, with twelve jurymen. The three national languages must be represented among the judges of this court. The jurymen are taken by lot from lists chosen by the people of the cantons.
The territory of the confederation is divided into five assize districts, one comprising that portion of the country in which the French language predominates; one that in which the Italian language is spoken, while that where the German language prevails, comprises the three remaining districts. One juror is chosen for everyone thousand inhabitants in the several districts, except in the fifth, (the Italian district,) where the proportion is one to every five hundred inhabitants. The names of the jurors elected are placed on the lists of their respective districts, to be drawn by lot, as occasion requires. The lists of jurors are renewed every Six years.
The mode of impaneling the jury is as follows: Prior to the opening of each session of the assizes, the criminal-chamber causes the names of the jurors of the district to be placed in an urn; fifty-four names are then drawn from the urn, read, and registered; copies of the special list thus formed are communicated to the prosecuting attorney, as well as to the accused or his counsel. Twenty jurors may be challenged by the defense, and twenty by the prosecution. If as many as forty in all are not challenged, the chamber chooses fourteen by lot from among those not excepted to: and from the fourteen, two are chosen by lot and joined to the remaining twelve who constitute the jury, to act as substitutes in case of need.
The cantonal governments are required to provide suitable accommodations for the assize courts, the expenses, except for rent, being borne by the treasury of the federal tribunal. A court of cassation is provided for, composed of the president of the federal tribunal, of four other judges, and three substitutes. It has jurisdiction in appeals in cassation, applications for revision or rehabilitation in criminal cases, and appeals from the decision of cantonal tribunals respecting violations of the federal fiscal laws.
public law.
The federal tribunal has jurisdiction in case of questions of competence arising between the federal and cantonal authorities. When a [Page 1278] difference of opinion exists as to whether a given case falls within the competence of the tribunal, or of the federal council, the federal assembly will decide upon such difference.
The tribunal has jurisdiction, also, in controversies relating to public law, arising between the cantons, such as those concerning the rectification of intercantonal boundaries; questions of jurisdiction between the authorities of different cantons; the construction and application of intercantonal treaties, &c. It will also decide upon demands for extradition, made by virtue of existing extradition treaties, in so far as the application of the treaty in question is contested. The preliminary measures in such cases will remain, however, within the competence of the federal council.
Further, it will decide upon appeals taken by individuals or corporations against decisions of cantonal authorities, relating to the violation of rights guaranteed to them by the constitution, or federal legislation, or by the constitution of their respective canton, as well as of appeals against the decision of cantonal authorities concerning violations of intercantonal conventions and concordats, and of treaties with foreign powers.
The seat of the tribunal was established at Lausanne by a separate decree of the federal assembly. In the balloting which occurred in order to determine upon the locality to be so designated, Lucerne united the greatest number of ballots as a first choice. It was deemed, however, expedient to reward the French cantons for the more favorable attitude which they have lately assumed toward the federal government. Hence, I think, the vote of the friends of Berne, Zurich, and Basle for Lausanne as their second preference.
In consideration of becoming the seat of the tribunal, and the judicial center of Switzerland, Lausanne assumes all the expenses attendant upon the local establishment of the court. Temporary rooms will be in readiness for it toward the close of the present year, and a palais de justice will be erected for its exclusive occupation with as little delay as possible. * * *
I have, &c.,