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were forced to assure their possessions and liberties by leagues. The cities and territories of the Switzerland of to-day were forced to recur to such measures of self-aid because the house of Austria, whose political ballast was originally in Switzerland, was working systematically for the consolidation of its possessions there.
Thus, on the 1st of August, 1291, a perpetual league was concluded between the three forest Cantons, Uri, Schwyz, and Unterwalden, which may be considered as the foundation of the Swiss Confederation. It was
It was a defensive alliance directed against the threatening encroachments of the Hapsburgs, whose acquired rights, however, were recognized in the league. Furthermore, the league aimed, by penal and legal procedures, to strengthen public security, which, owing to the weakness of the imperial power, was no longer sufficiently protected.
The stipulation made in articles 5 and 12 is also worthy of mention and reads as follows:
If dissension shall arise between any of the confederates, prudent men of the Confederation shall come together to settle the dispute between the parties as shall seem right to them, and the party which rejects their judgment shall be an enemy to the other confederates. If war or discord shall arise among any of the confederates, and one contending party refuses to accept proffered justice or satisfaction, the confederates are bound to assist the other party.”
These stipulations of the treaty of 1291 may be considered as the beginning of the modern system of international arbitration. Other leagues of the Middle Ages also contained clauses of arbitration, but none of these treaties has held until modern times. It is also worthy of notice that the law of the treaty of 1291 not only provides for an obligatory jurisdiction, but also a collective guaranty for the carrying out of the award.
In the period from 1291 until 1513 the Confederation was successively enlarged through the accession of several towns and territories. From 1513 to 1798 the Confederation was composed of thirteen “ Orte,” that is, thirteen states possessing every qualification
2 English translation taken from J. M. Vincent, Government in Switzerland New York, 1900.
required. Aside from these, there were the so-called “ Zugewandte Orte” (allied states). A great part of modern Switzerland, was then deprived of political independence because it was under the common rule of a more or less large number of other states.
The states and allied states accepted a different legal status towards foreign nations. Among the concluding parties of the first leagues there were imperial and territorial towns and estates; and when, after the victorious war of the Swiss against the German Empire in 1499, all “ Orte” (states) had become really sovereign states there were still among the allied states nonsovereign communities and territorial lords, especially members of the German Empire. It was not, however, only the political status of the individual members of old Switzerland which offered a varied picture, but the federal relations among them likewise differed entirely. There was no unitary federal treaty, but a system of leagues. The leagues of the sovereign states among each other were sharply defined from those with the mere allied states. But also among the leagues of the “ Orte” there again existed differences; those which had joined later had in part lesser rights. Moreover, every “Ort” was not even allied with every other. The old Confederation was therefore not similar in essence with the modern confederacies as they have arisen in America (1777-1789), in Switzerland (1815–1848), and in Germany (1815–1866). Yet, on the other hand, there existed an organic connection between these different federal leagues, first, because in substance they materially agreed and because in the course of time common institutions were created, which were considered as representative of the commenalty and which proceeded as such towards foreign lands, according to international law.
These leagues aimed above all, just as the first one of 1291, at establishing defensive alliances. A broader, more general, and original aim was also that of fortifying the internal legal order, namely, the security of the ways of traffic. The so-called “Pfaffenbrief” (priest charter) of 1370 was also a state treaty, which established the principle of forum domicilii (court of the domicile), limited the jurisdiction of the church, forbade arbitrary seizure, and other things besides. Another treaty, the so-called “Sempacher Brief” (Sempach charter), even stipulated norms as to martial law, and was probably the first state treaty relating to the humanization of war. The “Orte ” of the old Confederation had the right to conclude treaties as well with each other as with foreign nations, especially since in 1499 they became independent -- that is, sovereign in fact, and in 1648 through the Peace of Westphalia became so in form. As the leagues were perpetual ones, the pledges which they assumed took precedence over later treaties, but the “Orte” had in an authorized manner the right of free, international, and interstate concluding of treaties, except the five states which had last joined the league and only had a limited right of concluding treaties.
As the Confederation has arisen from leagues and was not created as an organization, what it naturally first felt the need of was organs. Even in the beginning the individual leagues provided that the deputies of the allied communities must meet in common councils, but that varied in every league according to the contracting parties. It was only gradually that there was formed through custom from these separate meetings a unitary “ Tagsatzung" (Diet), which met regularly at a fixed place. This development was mainly necessitated by the fact that a great many of the “ Orte” had made common conquests and governed in common over these conquered territories.
As a rule, it was only the “ Orte” which took part in the Diets ; the allied states only sent delegates upon special request. The Diets had, on the whole, the character of a congress of envoys. They had no specified power, like a modern federal parliament, but dealt with everything about which the governments of the confederate states gave instructions. Resolutions could not be taken by majority, excepting where the leagues made such a provision for special cases. Moreover, every state could refuse to join in the treaties concluded by the Diet with foreign nations. On the contrary, however, the states could make contracts with each other at the Diet.
Aside from the Diet there was another permanent organ, the Vorort” (presidential state). This institution was based entirely upon custom. Zurich obtained this position; its delegates presided at the Diet and when the Diet was not in session its government looked after the current affairs, namely, the diplomatic intercourse. It had, however, no exclusive right to do the latter.
One of the weightiest limitations which the leagues imposed upon the sovereignty of the states was the interdiction of self-aid, of war with each other. The subsequent leagues also stipulated, as that of 1291 had done, the principle of obligatory mediation and arbitration. When differences broke out between the states the mediation or arbitral procedure had to be called upon, in so far as a party required it. The stipulations in the individual treaties differed; however, a sort of confederative unwritten law was formed. Each party designated its own arbitrators, who when unable to reach an amicable understanding elected a neutral umpire from some one of the states. Such resolutions have repeatedly been passed and only recently the Federal Court had recourse to such a sentence in an intercantonal process, as to a decision of actual legal authority. Obligatory arbitral procedure has not, however, saved Switzerland from civil wars, but it has undoubtedly rendered great service to the Confederation. The greatest internal war.of Switzerland — the so-called Zurich war (1436-1450) — was precisely an execution war against Zurich, which did not want to accept the arbitral procedure.
As a result of the Revolution and French intervention of the year 1798, which brought about the founding of the democratic Helvetic unitary State and the elimination, on principle, of all feudal elements in the organization of the State, all interstate law came to an end. The states which up to that time had been sovereign states now sank to mere administrative districts deprived of all autonomy, when they were not wholly suppressed and consolidated with other Cantons into new districts.
This complete break with the past must soon call for a reaction. The Helvetic Republic never reached a tranquil development. In the numerous new projects for a constitution, which originated at the time, the attempt was made to call into existence both a central and local organization for the administration. Here it must be remarked that then for the first time in Switzerland, and probably for the first time in all Europe, the Constitution of the United States was held up as a modei to be copied for a state to be organized on a federative basis.
The external and internal troubles of the "Helvetik” (as the period from 1798 to 1803 is called) came to an end when Bonaparte, in the autocratically assumed rôle of mediator of Switzerland, imposed the Mediation Constitution of February 19, 1803.
Hereby the nineteen Cantons having equal rights were recognized as states and to each was given its own constitution and all the powers which were not expressly ascribed to the Confederation. Switzerland was given the character of a federal state, albeit of a weak one, such as then suited the needs of French politics. The organization of the confederation was based upon that of the old Confederacy. The highest organ was the “ Tagsatzung” (Diet), in which a number of larger Cantons had two votes; the others only one. The envoys voted according to instructions. The official business was dispatched by the directorial Canton, for which position six Cantons changed off in yearly terms. The president of the directorial Canton had the title of “Landammann der Schweiz" and was invested with no little authority.
The Cantons could not have any diplomatic intercourse with foreign nations and could only enter into contracts by special permit from the Diet. They were not allowed to form any special alliances with each other and the Constitution did not make any mention of nonpolitical contracts of the Cantons with each other. The Diet, however, by a decree of June 29, 1803, recognized the power of the Cantons to make contracts among themselves relating to church, civil, police, and local matters, in so far as they brought these agreements to the knowledge of the Diet, so that the latter could examine them as to their accordance with the Federal Constitution. These contracts were considered as a particular kind of international contract and were judged according to the principles of international law.
Aside from these particular intercantonal contracts there was still another special kind of intercantonal agreements which was intermediary between the Federal laws and the aforementioned contracts. The Constitution had given to the Confederation only a rather limited competence and a revision of the Constitution was not provided for. The powers of the Federal Government could therefore not be increased through decisions by majority. That, however, did not prevent matters from being dealt with at the Diet which did not,