No. 5.

Conclusions from the foregoing examination of French lavo.

From the above cases two lessons are to be learned:

First; that long before 1787 a French judicial court criticised legislation and, in two constitutional instances, declared legislation to be void because contrary to binding right ascertained by itself.

Second; that the history of France shows clearly that the court got into extrajudicial affairs in so doing, a thing which in the end produced disastrous results to all the parliaments in France.

The Framers of the constitution of the United States must certainly have known the first lesson. In the subsequent pages that discuss the Framers' intentions as to the Supreme Court of the United States, reasons will be given for thinking that they also profited by the second lesson.

It is contended from the foregoing that the history of French public law shows the following remarkable results:

First; that under the constitution of the old monarchy, a judicial power or right to hold legislation void because contrary to binding right, was well known:

Second; that the first written French constitution in 1791 prohibited any judicial power or right to criticise laws for unconstitutionality or other cause, or to hold them void for any reason; which provision has continued to be public law in France until the present day:

Third; that the constitution of the old monarchy was unwritten, while that of 1791 was written, and that the said judicial power or right existed under the former, but was prohibited under the latter, and has been prohibited under various subsequent written constitutions. French public law upon the subject is thus in direct contradiction to Marshall's view of written constitutions. French legal history is also in curious contrast with the prevailing idea among Americans of the present day as to the relation of judicial power to written and unwritten constitutions.

CHAPTER VIII.

Of Swiss public law in connection with the subject of this Essay.

No. 1. Of Swiss public law and the present federal constitution and federal government.

No. 2. Of the Federal Tribunal and federal laws conAlicting with the federal constitution.

No. 3. Of the relations between cantonal constitutions and the federal constitution.

No. 4. Of the relation of the judiciary of a canton to a cantonal law conflicting with the cantonal constitution. No. 5. Of cantonal laws conflicting with the Federal constitution.

No. 6. Of a cantonal law conflicting with the federal guarantee of the cantonal constitution.

The next topic for consideration in connection with the subject of this Essay is the public law of Switzerland.

No. 1.

Of Swiss public law and the present federal constitution and federal government.

Swiss public law has long naturally attracted American attention. In 1789, the subject of Swiss institutions was not neglected by the men who framed and ratified the U. S. constitution. In the Federalist (Dawson's ed., 302), Swiss public law and Swiss political history are appealed to in support of the excellence of "the domestic violence" provision of section 4. IV., of the new constitution. A parallel

is made between Shays' rebellion in Massachusetts and similar events in Swiss Cantons.

Swiss publicists and legislators of the present day have given great attention to American constitutional law. An elaborate work by Prof. Rüttiman is a striking proof of this assertion. It compares in detail the law of the two federal systems, besides adding much relating to the constitutional law of the respective states of the two unions. It is entitled: The Public Law of the North American Federal Republic compared with the Political Institutions of Switzerland Zurich, 1867, 1872, and 1876. (Das nordamerikanische Bund sstaatsrecht verglichen mit den politischen Einrichtungen der Schweiz; von Professor Rüttiman.)

The example of the constitution of the United States has been followed by the Swiss in what C. J. Marshall has declared to be its most marked characteristic. The federal constitution of the Swiss Eidgenossenschaft is a written one. It provides for a federal government capable of directly operating upon individuals and not restricted to indirectly doing so through the medium of the cantons or states. This system was introduced by the constitution of 1848 and continued by that of 1874. It is avowedly copied from the constitution of the United States.*

The federal government has three branches. The legislature is the Federal Assembly, which consists of two chambers. In one chamber the several cantons are equally represented, in the other the people of the several cantons are represented according to their respective numbers. The executive is the Federal Council, which consists of seven members. The judiciary consists of one supreme court, the Federal Tribunal. There are no inferior federal courts. The judges of the Federal Tribunal are appointed by the Federal Assembly for six years. They are nine in number. Care is taken that they represent the three legal languages. There are also nine substitute judges.†

* See 6 Wheaton, 388; Von Orelli: Das Staatsrecht der schweizerischen Eidgenossenschaft, p. 25, (in Marquardsen's series) Freiburg i. B., 1885.

†Adams and Cunningham on the Swiss Confederation, London, 1889. Chapters 3, 4, 5.

Sir F. M. Adams and Mr. C. D. Cunningham observe on their page 48:

"The separation of powers is not very strictly observed "between the Federal Assembly and the Federal Council (nor, indeed, as mentioned in our chapter upon the Fed"eral Tribunal, between the judicial authority and the two "political federal authorities)."

No. 2.

Of the Federal Tribunal and federal laws conflicting with the federal constitution.

The Federal Tribunal has a civil and a criminal jurisdiction and "also deals with questions of public law," (same work p. 68). Its organization and authority are the subject of articles 106 to 114 of the federal constitution. The last paragraph of article 113 is thus translated:

"In all these cases, however, the laws and generally ob"ligatory resolutions passed by the Federal Assembly, and "also the treaties ratified by it, shall be binding for the "Federal Tribunal."

The Federal Tribunal is thus bound to obey and apply all laws of the Federal Assembly in all cases coming under its jurisdiction.

To an important extent the Federal Tribunal has jurisdiction of conflicts between the authorities of the confederation and those of the cantons. Prof. Von Orelli, in speaking of this disposition, calls attention to its resemblance to the model of the U. S. Constitution. He regrets, however, that, while in North America the tribunals of the Union decide upon the constitutionality of the laws of Congress, it is ordained in Switzerland that the laws and general resolutions of the Federal Assembly must be applied, without any such qualification, by the Federal Tribunal.*

*Von Orelli, 26, 27, 43. Adams and Cunningham, 73.

No. 3.

Of the relation between the cantonal constitutions and the federal constitution.

Thus the Federal Tribunal is not competent to decide the question whether a federal law be constitutional or unconstitutional. There can be no such judicial question. Neither can it be a judicial question whether the constitution of a canton contain any thing contrary to the constitution of the confederation. Such a question is extrajudicial and is decided by the Federal Assembly. Before the constitution of a canton or an alteration thereof can go into vigour, it must be subjected to the criticism and receive the consent of the Federal Assembly: (compare the final paragraph of section 9. I. of the U. S. constitution, which prescribes that no state shall, without the consent of Congress, enter into a compact with another state). The action of the Federal Assembly on a cantonal constitution appears to be final and so to bind the Federal Tribunal.*

No. 4.

*

Of the relation of the judiciary of a canton to a cantonal law conflicting with the cantonal constitution.

The judiciary of a canton are not competent to decide whether a cantonal law is or is not repugnant to the cantonal constitution. Such a question is not a judicial one. Mr. Vincent observes on his page 142:

"Contrary to the practice of American courts, the Swiss "cantonal tribunal does not try acts of the legislature. No "court can set aside a statute because of disagreement with "a state constitution, because the legislature is regarded as "the final authority upon its own act."

*See, J. M. Vincent on State and Federal Government in Switzerland, Baltimore, 1891, page 34.