The Swiss Federal Tribunal, in its present form, dating from 1874, was originally set up in 1848. It is, however, the product of an historical development extending over nearly six hundred years, and the history of this period only will explain the exact meaning of the carefully-balanced and guarded phrases which describe its jurisdiction. Previous to 1848 there existed two methods for peaceably settling disputes among members of the Confederation,—friendly remonstrance and arbitration.
1. Friendly Remonstrance.—This was the plan adopted in the two earliest treaties of alliance, those of 1291 and 1315. In both cases there were only three parties to the treaty,—Uri, Schwyz, and Unterwalden,—and the object was to settle disputes between neighbors, and in a friendly and informal way. The “Witan,” or wise men, met together to heal the quarrel according to the rules of equity and right. If either party refused to accept their decision, the other confederates were to enforce obedience.
2. Arbitration.—This first appeared in 1351, when Zurich joined the League. It became more common as the number of the confederates increased, and was the method employed when friendly remonstrance failed, and when war was not declared. The arrangement as to the place of meeting, the number and the method of choosing the arbitrators, and other details, varied according to the stipulations contained in the various treaties by which each Canton had been admitted into the Confederation. The number of arbitrators was usually fixed at two for each party, and, in case of disagreement, they selected an impartial foreman or umpire; “the question of the choice of the foreman,” says a contemporary historian, “was unquestionably the main point in the whole system of the Courts of Arbitration, for, generally, he was the only real and impartial judge.” This method was substantially the only one employed from 1351 to 1798. During the existence of the Helvetic Republic, there was established a Central Judiciary along with a Central Executive and Legislature. It consisted of a member and an assistant, nominated by each Canton, one-fourth being renewed annually. It had original jurisdiction over the members of the executive and of the legislature, and in criminal cases involving the penalty of death or of imprisonment and banishment. It acted as a Court of Appeals in civil matters, when the decisions of the inferior courts were invalid by reason of want of jurisdiction, whether through informality or violation of the constitution. This court practically subsisted under Napoleon’s Act of Mediation, set up in 1803. With the partial restoration of things in 1815 to the status quo ante 1798, came naturally the restoration of the arbitration system, with reference to which the most elaborate regulations were laid down in the Federal Pact. This codification legally subsisted till 1848. A revision was attempted in 1832, when, after the Paris Revolution of 1830, more liberal ideas began to assert themselves in Switzerland, but it failed through the opposition of the Conservatives. The Reformers, however, were successful in 1848, and by the constitution adopted that year, a Federal Court was created, with jurisdiction in civil and criminal cases, and also a limited jurisdiction in cases where rights guaranteed by the constitution were alleged to have been infringed; provided that the Federal Legislature referred such cases to it. The court consisted of eleven judges and eleven substitutes, elected by the Federal Assembly for a term of three years. The president and vice-president of the court were appointed by the same body annually. Another attempt at revision was made in 1872, by which the functions of the court as an interpreter and upholder of rights guaranteed by the federal and cantonal constitutions would be very much extended, but it was rejected. There was an appeal on questions of public law to the Federal Council, from which there was a further appeal to the Federal Assembly. If the two chambers agreed, the decision was final; if they disagreed, the decision of the Federal Council prevailed. This system was found unsatisfactory, as a large part of the time of the chambers was occupied in the discussion of mixed questions of law and politics. When the Constitution of 1874 was adopted, this and many other defects were in a measure remedied.
The fourth or last division of Chapter II. of the Swiss constitution, “Federal Authorities,” is devoted to the Federal Tribunal, and declares:
1. There shall be a Federal Tribunal for the administration of justice so far as it belongs to the Confederation. There shall be, moreover, a jury for criminal cases.
2. The members of the Federal Tribunal and their alternates shall be chosen by the Federal Assembly, which shall take care that all three national languages are represented therein. The organization of the Federal Tribunal and of its sections, the number of its members and alternates, and their terms of office and salary shall be determined by law.
3. Any Swiss citizen who is eligible to the National Council may be chosen to the Federal Tribunal. The members of the Federal Assembly or Federal Council, or officials appointed by those authorities, shall not at the same time belong to the Federal Tribunal. The members of the Federal Tribunal shall not during their term of office hold any other office, either in the service of the Confederation or any Canton, nor engage in any other pursuit, nor practise a profession.
4. The Federal Tribunal shall organize its own chancery, and appoint the officials.
5. The judicial authority of the Federal Tribunal shall extend to civil cases:
(a) Between the Confederation and the Cantons.