This general organizing act of 1874 fixes the number of members of the court and the alternates; their terms of office, salaries, and other details. The number of judges is reduced from eleven to nine, and the court shall never contain, at any given time, two or more persons from the same family; the term is extended from three to six years. The president and the vice-president are to be elected by the Federal Assembly from among the judges, for the term of two years. The salaries are fixed at 10,000 francs a year for the judges; 11,000 francs for the president (or chief justice), and from 6000 to 8000 francs for each of the secretaries. There must be two secretaries at least, one from German-, the other from French-speaking Switzerland; both must speak German and French, and one also Italian. They are chosen by the court by ballot, and for a term of six years. The assistant judges or alternates receive twenty-five francs a day when serving, and a fixed travelling allowance. These assistant judges only sit in the place of the judges who are prevented for some reason from sitting in person. The judges and the secretaries when away from the seat of the court on official business are paid fifteen francs a day additional, and a travelling allowance. The vacations of the court must not exceed four weeks in the year; but either the president or vice-president must always remain at the permanent seat of the court. Temporary leave of absence may be granted to the members of the court and to the secretaries. The judges (but not the assistant judges) are required to reside where the court is fixed. In cases of elections and in civil and constitutional causes, seven judges form a quorum, and the number present must always be uneven (apparently because the president has no casting vote). A judge, ordinary or assistant, cannot sit when his relatives of blood, or by marriage in an ascending or descending line, or collaterals up to and including cousin-german or brother-in-law, are in any way interested in the case. A judge is similarly disqualified from sitting, when the affairs of his wards are under consideration, or in a case in which he has taken any part personally as federal or cantonal official, or judge, or arbitrator, or counsel; or in affairs relating to an incorporated company of which he is a member; or when his Commune or Canton of birth is a party; or when a suit is brought against the executive or legislature of his Canton of birth. A judge of either kind, ordinary or alternate, may be objected to by a party to a suit, if the said judge is an enemy of or dependent on one of the parties; or since the institution of the suit, as a member of the court, has expressed his opinion on it; but the Federal Court as a whole must be accepted by the parties. If by reason of such objections there are not enough members to form a quorum, the chairman selects by lot from among the presidents of the Supreme Cantonal Courts a sufficient number of “extraordinary assistant judges,” pro hac vice. The act designates three thousand francs as the minimum amount for “degree of importance” to give jurisdiction in cases where a money value must be fixed by federal legislation.
All members and officials of the court must be bound by oath to fulfil the duties of their respective offices; the oath to be administered to the judges in the presence of the Federal Assembly. This oath may be taken by a “Handgelübde,” or raising of the hand, in the case of persons objecting on conscientious grounds to take an oath. The court is to sit and give judgment in public; this does not apply to the juries or to preliminary inquiries. The president settles the order of business and maintains order in court; being empowered to imprison disobedient persons for twenty-four hours; and in extreme cases to fine up to a hundred francs and to imprison up to twenty days. Every year the court must submit an account of the business transacted by it to the Federal Assembly, which has a right to criticise any act of the court, but can alter only by a federal law any of its decisions of which it may disapprove. The officials of the court have the right of transacting in any Canton, without asking leave of the cantonal authorities, all business which falls within their jurisdiction. Each judge is permitted to deliver opinions in his own dialect. Another federal law regulates with great detail the costs of the court, which are defrayed out of the federal treasury, and likewise the fees which are to be paid by parties to the suits. In the exercise of the criminal jurisdiction the court goes on a circuit. For this purpose the Confederation is divided into five assize districts. One of these districts embraces French Switzerland; a second, Bern and surrounding Cantons; a third, Zurich and the Cantons bordering upon it; a fourth, central and part of east Switzerland; and the fifth, Italian Switzerland. The court annually divides itself for criminal business into three sections; a Chamber of Accusation and a Criminal Chamber, each composed of three judges and three alternates, and a Court of Criminal Appeal (Tribunal de Cassation), with five judges and five alternates. Sentences are only valid when the court consists of five members. The Criminal Chamber decides at what places in the several districts assizes shall be held. The localities selected furnish at their own cost places of meeting. The cantonal police and court officials serve as officers of the court. The court elects every six years, to hold for the whole term of the court, two “Judges of Inquest” (Untersuchungsrichter), who are charged with the preparation of cases. The federal assizes are composed of the Criminal Chamber and a jury of twelve, elected in the Cantons by the people, and drawn by lot from the list of the district in which the assizes are to be held. There is one juror for every one thousand inhabitants in the first four districts as above given; and one for every five hundred in the fifth district. With certain exceptions, every citizen having the right to vote in federal matters is eligible as a juror. The exemptions are: those of the full age of sixty, those whose names were placed on the previous list of jurors, and those who are incapacitated by sickness or infirmity. The names of all the jurors of the district are placed in an urn, and fifty-four are drawn by lot. The Procureur-général or states-attorney, appointed by the Federal Council for the case, has the right to challenge twenty and the accused also twenty; the remaining fourteen are summoned, and two of this number are selected by lot to act as substitutes in case of need. In order to acquit or condemn a prisoner there must be a majority of at least ten out of the twelve; otherwise, a new trial must take place with another jury. These federal assizes are of rare occurrence, the last one being at Neuchâtel in 1879, when an anarchist was condemned for a crime against international law (instigation to the assassination of sovereigns).
The power of the court in the matter of claims for violation of rights of citizens has been exercised with much latitude. The most usual and proper cases arising under it are: infringements of the federal guarantee to the citizen of equality before the law, of freedom of settlement, of security against double taxation, of liberty of the press, etc. But the court has gone much beyond these; its jurisdiction has been extended to the hearing of complaints against cantonal authorities, for ordinary alleged failures of justice, such as could hardly have been contemplated by the constitution. It has even taken jurisdiction of cases where the appellant asserts a denial of his claim by a cantonal judge, grounded upon merely obstructive motives or an arbitrary application of the law.
The Constitution of 1874 had as one of its chief objects the strengthening of the federal judiciary; and by statutes, enacted in pursuance of the constitutional authority given to the Federal Assembly to place other matters within the competence of the court, there have been transferred generally to it the appeals heretofore made from the Federal Council to the Federal Assembly. There is no purpose to entirely exclude the legislative branch from judicial action; for the constitution, in dealing with the Federal Tribunal, expressly provides that “administrative” cases are reserved to the Assembly; and the act of 1874 defined the jurisdiction of the Federal Council and Federal Assembly, under this reservation, to embrace disputes respecting public primary schools of the Cantons, liberty of commerce and trade, rights of established Swiss, religious disputes relating to matters of public law, questions as to the calling out of the cantonal militia, consumption taxes and import duties, exemption from military service, and the validity of cantonal elections and votes. In all these cases an appeal lies from the Federal Council to the Federal Assembly. Thus a wide field of judicial action is withheld from the sphere of the court, and upon questions which do not appear to possess any “administrative” character; producing a division of functions which is very anomalous. There has always existed in Switzerland a very strong current of opinion, that the court should be occupied exclusively with questions of public law, and should possess no jurisdiction in matters of private law. The Federal Tribunal has no officers of its own to execute its judgments; but its judgments, as well as the decrees of courts of arbitration in intercantonal conflicts, are executed by the Federal Assembly; and the Federal Assembly in turn is obliged to resort to cantonal machinery for the purpose of doing this; so that, in fact, these judgments finally are executed by the cantonal authorities.
The Federal Tribunal had no permanent seat from 1848 to 1874, and met in different places. In 1874, by action of the Federal Assembly, Lausanne was chosen for its permanent location; the Canton of Vaud, in consideration of this honor, erected and presented to the Confederation a palais de justice, the most elegant and commodious public building in Switzerland.
No professional qualification is required for eligibility to the Federal Tribunal; any Swiss citizen eligible for the lower branch of the Federal Assembly may be elected to the Tribunal. There is no qualification for any federal office in Switzerland higher than that for a member of the Nationalrath, or lower House of the Federal Assembly. Any vote-possessing Swiss, twenty years of age (except a naturalized citizen, who must wait for five years after his naturalization), may be President of the Confederation or president of the Federal Tribunal,—i.e., chief justice of the Confederation. It naturally occurs that there should be some better guarantee for the depth of knowledge and solidity of judgment necessary for the intelligent consideration and discreet determination of the responsible duties attached to these high positions, and which can be the result of nothing but the thought and experience of more mature years. Certainly in high judicial life there should be a tact, a ripeness, and a nicety of judgment, an intuitive apprehension of the relations of things, and a wisdom, which age indeed does not always bring, but which age alone can bestow.
The courts in Switzerland have no place in the political government of the country. The Federal Tribunal does not simply owe its existence to the Federal Assembly, but is constitutionally forbidden to pass upon the validity of the acts of its creator. It is not empowered to judge of violations of the constitution, or to keep the legislature within the limits of a delegated authority, by annulling whatever acts exceed it. According to the Swiss theory, the legislative department wields supreme power; is the sole judge of its own powers; and if, therefore, its enactments conflict with the constitution, they are nevertheless valid, and must operate pro tanto as modifications or amendments of it. The legislature is deemed to have the right of taking its own view of the constitution. Its utterance is the guide for the court, which is always subordinate to it, and bound to enforce every law passed by it.[39] How different from the authoritative position of the courts in the United States, where there is no department of the government in which sound political views are more valuable than in the judiciary. No lawyer can be found with the requisite strength of mind and character to make a good judge on the Supreme Bench who is not a man of clear, well-defined, and vigorous political opinions. The interpretation of the more difficult legal problems calls for the application of those fundamental principles of government upon which the great parties are founded. In the history of the United States, parties have been broadly characterized by their attitude towards the constitution. Their greatest victories have been won in the decisions of the Supreme Court, as each in turn has been represented there, and has impressed its views upon the decisions of the judicature. Marshall, Taney, Chase, are the names which stand as the high-water marks of the juridic-political history. De Tocqueville, referring to the Supreme Court, says, “That the peaceful and legal introduction of the judge into the domain of politics is perhaps the most standing characteristic of a free people.” The Supreme Court of the United States is universally regarded as the most perfect instance of a court exercising the office of guardian and interpreter of the constitution. It must not be forgotten that, as such, it came into existence only under the second constitution; previous to 1787, it was a mere committee of appeals, the judges appointed directly by Congress, and dependent on it, or on its indirect action. To-day it is the pivot on which the constitutional arrangements of the country turn. It determines the limits to the authority, both of the government and of the legislature; its decision is without appeal; completely filling the idea held by some writers, that federalism implies the predominance of the judiciary in the constitution. It is a tribunal which can set aside a law of Congress, and enjoin the executive from proceeding, when it is satisfied that either law or proceeding is contrary to the constitution. It spurns the warning of Lord Bacon to his ideal judge, in consulting with the king and the state, “to remember that Solomon’s throne was supported with lions on both sides; let them (the judges) be lions, but lions under the throne, circumspect, that they do not check or oppose any point of sovereignty.” Such power no other tribunal in any country of the world possesses. No other country has a court whose power is absolute to thwart, even the present will of the nation, by declaring it out of harmony with a fundamental law adopted a century ago. Caleb Cushing thus addressed the Supreme Court: “You are the incarnate mind of the political body of the nation. In the complex institutions of our country, you are the pivot upon which the rights and liberties of all government and people alike turn; or, rather, you are the central light of constitutional wisdom around which they perpetually revolve.” The question of the court being identical with or independent of the legislature of the supreme or federal government, and the separation of the legislative and the judicial functions of government, is strongly set forth in No. 78 of the “Federalist,” written by Alexander Hamilton:
“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the constitution ought to be preferred to the statute. Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
Jefferson apprehended encroachments by the Supreme Court, and declared that it had the power “to lay all things at its feet.” This alarm proved to be unfounded, and Mr. Jefferson himself, when the court in his judgment passed beyond the undoubted limits of its authority, did not hesitate to disregard the opinion of Chief-Justice Marshall, that it was the duty of his secretary to deliver a judicial commission which had been signed by his predecessor.[40]
To many the Supreme Court in its inception seemed the weakest of the three departments; and it is doubtful if either Madison or Hamilton, both of whom expected the court to exercise the power of declaring laws unconstitutional, appreciated the mighty force passing into the hands of the hitherto subordinate power. The judiciary act of 1789 provided for a review in the Supreme Court of cases where the validity of a State statute or of any exercise of State authority should be drawn in question on the ground of repugnancy to the constitution, treaties, or laws of the United States, and the decision should be in favor of the validity.[41] Though in the line of natural development, and previous to the convention of 1787, asserted in New Jersey, Virginia, Massachusetts, New York, and North Carolina, the exercise of the full measure of this power in constitutional law presents an interesting study in the history of the national and State governments. A resolution was introduced in Congress in 1824 (Letcher, of Kentucky), so to amend the judiciary act as to require more than a majority of the judges to declare a State law void; and in 1830 an attempt was made to repeal that section of the act, but it failed by a vote of one hundred and thirty-seven to fifty-one. The doctrine of a co-ordinate judiciary met with violent opposition in some of the States, notably in Ohio in 1805, and in Kentucky in 1824 (“old court and new court” struggle), and in the State of Pennsylvania as late as 1843. This power to disregard the acts of the legislature and declare them null and void because contrary to the supreme law of the constitution has been a source of endless wonder to foreign students of the American system. In speaking of it, Sir Henry Maine says, “There is no exact precedent for it, either in the ancient or in the modern world.”[42] It is a new and original idea in political science, introduced and applied exclusively in the courts of the United States. The elevation of the judiciary to equal rank with the executive and the legislature was the outgrowth of a natural process of political evolution through a written constitution and a federal system of government. Kent, in referring to the case of Marbury vs. Madison, writes: “The power and duty of a judiciary to disregard an unconstitutional act of Congress or of any State legislature were declared in an argument approaching to the precision and certainty of a mathematical demonstration.”[43] The power was never seriously questioned in the federal courts after that clear and conclusive opinion, and it was gradually established in all the States.