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national law relations of the confederated states, the range of matters to which interstate law is applicable and accordingly the practical importance of this law are limited. Nevertheless, it forms a more or less important part of the public right of every federal state.
However, interstate law has not only interest for the federal states but also for other countries, for it shows us a higher system of international law, so to speak: an international law having its sanction not in the loyalty of those bound by custom and treaty and in the ultima ratio of war, but in a developed judicial and executive power. The special forms of interstate law depending on the existence of a real national executive power will, of course, always remain irreconcilable with the existence of pure international law, but other interstate institutions could perhaps be typical up to a certain degree for the further formation of international law. The tendency of contemporary international law is more and more towards an association of states not only on the ground of the administration of common economic interests but also upon that of justice. At this point it is well to remark that the American delegation to the Second Peace Conference, upon the introduction of a project for a “Cour de justice arbitrale,” also brought before the conference Article XIX of the Constitution of the Confederated States of 1777.
Interstate law takes on a different status in the various federal states of the present time according to the independence left to the members of the confederacy by the constitution.
The Constitution of the United States has sought to assure the liberties of the States by means of a sharp restriction of competency of the confederation toward the States and by making a revision of the Constitution difficult, but it has at the same time almost entirely deprived the States of their position as international subjects. The case is a similar one with regard to the constitutions of Latin America and of the British self-governing colonies, which were fashioned upon the North American model. It is different in the German Empire. There the Constitution is flexible and the Empire has repeatedly increased its competency, making it in many respects the most united federal state. The States have — only in a few respects,
however — been nominally robbed of their international capacities. In so far as the interests of the Empire are not opposed to their treaties and laws, they have the power to make treaties among themselves or with foreign nations; they can even have diplomatic inter
This is, however, of practical importance to-day only in a limited sphere; it is a concession to old tradition and to the monarchical principle of the sovereignty of the confederate princes.
An intermediary stand between the American and the German system is offered by the Swiss Federal Constitution of 1848 and also the revised Constitution of 1874. According to this the strength of the National Government is assured by a relatively easily obtained revision of the Constitution, which, however, is sharply differentiated from the ordinary federal promulgation of law. On the other hand, the character of state of the Cantons, the Swiss“ states," is left to them as much as possible, at least with regard to their mutual relations. This is shown by the fact that only through the intervention of the Federal Council can the Cantons enter into agreements with foreign countries about the administration of public property, border, and police intercourse. But the competency of the Cantons (powers of the states) reaches much farther in their mutual relations. Here, the Cantons are entitled to make, without the interference of Federal authorities, contracts about all matters coming within the powers of the states. The rights and duties arising through these contracts are to be classed according to international law, and the Federal tribunal, which as court of justice has under it the jurisdiction of the disputes between Cantons, has already repeatedly proclaimed that the relations of the Cantons among themselves are to be judged by the fundamental principles of the law of nations in so far as no Federal decrees are opposed to it.
The legal maxims which apply to the relations of the Cantons among themselves can be classed, on the ground of the modern Swiss Federal public law, in the following way, which is also applicable in substance to other federal states :
1. The Federal laws establishing a national system for affairs, which would be regulated among the Cantons by common international law and state agreements if these were sovereign states. To
these belong the stipulation of the Constitution that Switzerland form only one territory with regard to customs duties; also that the free right of settling in any community of any state be given all Swiss citizens, etc. On these grounds the character of the Cantons as states in their mutual relations is entirely taken away from them.
2. The Federal laws determining the competency and capacity of action of the Cantons in their mutual relations; the right of concluding treaties, the prohibition of political contracts or secession leagues, the decree against violence, the guaranty of the independence and territory of the Canton through the Confederation. To these belong also the stipulations of the Constitution as to the competency of the Federal tribunal to decide upon questions of intercantonal differences, both public and private; the control of the Federal Council and of the Federal Assembly over intercantonal agreements, and the cooperation of the Federal executive power for the carrying
of intercantonal agreements (formal intercantonal Federal laws).
3. The Federal laws governing the legal material relations of the Cantons to each other as states; the decree against the double taxation of the same object of duty in different Cantons; intercantonal legal cooperation in civil and criminal matters (e. g., extradition, execution of civil sentences, etc.). Here Federal municipal laws take the place of international, viz, interstate legal maxims (material intercantonal Federal law).
4. The decrees of the purely intercantonal law, namely: (a) Intercantonal agreements;
(b) Common international law for those conditions not coming under the head of Federal laws or under the laws of intercantonal contracts.
Of these four classes the first does not belong to interstate law; the essence of these legal maxims consists precisely in eliminating the system of a number of small states in the interest of national power and unity. The fourth class is diametrically opposed to the latter, for it is lacking in national unity; there the Cantons can wield justice by treaties, just as sovereign states, or put it to the issue of the maxims of common international law. This purely
intercantonal or interstate law is merely international law or particular law established by treaties and is of no especial interest here. What is original are the statutes of the interstate law which are promulgated by the Confederation and determine the relations of the Cantons with each other. It is with these norms, different and characteristic in every state association and every federal state, that we shall deal with mainly in the following. However, before we enter into a description of the Swiss interstate law of to-day, of the intercantonal law, it will be well to cast a glance over the historical development of this law.
Historically, Swiss interstate law can only be understood as a relic of former conditions. That does not mean, however, that it only has the character of a relic without capacity for life and motive for existence. Intercantonal law has changed together with the transformations of the league and developed organically with it. A large part of the Federal law of to-day has passed through the more incomplete form of interstate law.
The political history of Switzerland is divided, as well with regard to the national whole as to the separate Cantons, into two great periods. The great turning point is the year 1798, when, as result of the French Revolution and through the immediate interference of the French Republic, the old Confederation, with its system of different leagues, protectorates, “gemeinen Herrschaften ” (common subject territories), was destroyed and the manifold democratic, aristocratic, and monarchical constitutions of the individual members of the Confederacy were swept away. In its place the Helvetic unitary State was erected on the foundation of the sovereignty of the people. This Helvetic Republic, however, only lasted five years. By the Mediation Constitution of 1803, forced upon Switzerland by Bonaparte, then First Consul, Switzerland was again changed back into a compound state, viz, a federal state, and the Cantons were again made states. After the downfall of the Napoleonic Empire (1813) and under the influence of the reaction of that period, the Constitution of the Federal State of 1803 was replaced by a simple Confederacy. However, in opposition to the anorganic conditions before 1798, Switzerland yet remained a Confederacy held
together by uniform institutions. The Confederacy of 1815 lasted until the year 1848. As in the United States in the war of secession, thus also in Switzerland in the year 1847 there was a secession to fight against; it was the so-called “Sonderbund.” The Federal treaty of 1815 had proved too weak to hold together the Cantons which, notably through religious questions, had come into conflict with each other. Therefore, a powerful national Government had to be created, which could give to Switzerland necessary strength and unity on the outside and firm coherence on the inside. This was reached through the Federal Constitution of 1848, which is based mainly on the same principles as the Constitution of the United States. This Constitution has since then been revised, at several times, especially by the total revision of 1874, and always in the sense of broadening the competencies of the Federal Government at the cost of the Cantons and of strengthening the immediate supremacy of the people at the expense of purely representative government. The fundamental relations between the Confederacy and the Cantons and of the Cantons among themselves, however, have remained unchanged.
II. HISTORICAL DEVELOPMENT (1291–1848) The development of the Swiss Cantons into states and the origin of the Swiss Confederation is not the result of a single historical event, but the outcome of a long development. The Cantons of the present day were, in the eighteenth century, a part of the German Empire. Some of them were cities subject to the Emperor alone; others were a part of duchies, counties, and other possessions of territorial lords; others were associations of free peasants. The measure of their self-government varied a great deal; they were not states in the same sense as to-day, not even in that of the Middle Ages. In the thirteenth century, during the interregnum of 12501273, the German realm had completely ceased to represent. an effective sovereignty such as protects the rights of the people, and the Habsburg family, who rose to the Throne with Rudolph I (1273), did not carry out national, imperial policies, but an expansive system of Austrian home policies, so that the communities menaced thereby