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according to the Constitution, come under the jurisdiction of the Confederation, but for which a uniform order was sought.
When the Diet came to a decision upon such matters there arose, when there was a majority or unanimity, a Federal concordat which was, however, only binding for the agreeing Cantons. The decisions by majority, on the contrary, which the Diet made within its constitutional competency were of course binding for all Cantons. These Federal concordats were considered, as were the actual decisions of the Diet, parts of the Federal law; they. originated outwardly in the same way as the Federal laws, but they had binding force as state treaties only for the Cantons which accepted them or later adhered to them. In this manner many matters have been uniformly settled for a large number of Cantons. Of these Federal concordats, some are still in force to-day, while others have been abrogated and replaced by Federal laws.
When disputes arose between the Cantons the Federal authorities had first to endeavor to bring about a mediation. Failing this the dispute was then decided, as a last resort, by the Diet. The latter, for this purpose, constituted itself into a syndicate (federal court of justice) in which all Cantons had only one vote and their envoys could vote, not as in other matters according to the instructions of their directors, but freely as judges. In case the Diet was not in session the “ Landammann ” (President) had authority to introduce mediation.
3 The expression “ concordat” for intercantonal contracts seems to come from the fact that the first contract made between two Cantons, after the reestablishment of the cantonal personality of statehood under the Mediation of 1803, dealt with matters relating to the church. As the treaties between civil governments and the Roman curia (papal court) had been designated as concordats ever since the Middle Ages, it seems that these intercantonal agreements had also been given the name concordat. The name was then applied also in other cases which had nothing to do with church matters.
However, it does not follow that all intercantonal agreements were called concordats. The terminology has unhappily never been strictly adhered to, but it can be said that as a rule only those treaties were called concordats which established legal norms and did not deal with mere concrete relations. About the different meanings of the eidgenössische Kankordate” (Federal concordats) before and after the introduction of the Federal Constitution of 1848, as opposed to the special concordats, it will be discussed farther on.
With the downfall of Napoleon, his work, the Mediation Constitution, also fell. In the years 1813 to 1815 a unitary organization was totally lacking in Switzerland, as the Mediation Constitution was formally abolished; the negotiations regarding the conclusion of a new Federal treaty advanced but slowly in some of the Cantons, owing to separatistic efforts. Finally, in September, 1814, the establishing of a new constitution was reached. On the 7th of August, 1815, the oath was solemnly taken to the new Confederation, to which, in the meantime, in consequence of the new disposition of the European relations through the Vienna Congress, three other Cantons had joined. By that the Confederation reached the number of twenty-two Cantons, which it still has to-day.
The League of 1815 was a confederacy, viz, a union of states, whose organization was based exclusively upon the allied states and whose constitution rested upon the principle of agreement — that is, it could only be changed by unanimous consent. But it is not correct with the prevailing theory to perceive in these confederacies merely international law relations of partnership. A federal government, even though weak and incapable of development, was attained through the Federal League, and the sovereignty viz, the complete independence — of the allied states had ceased to exist. The League was perpetual and therefore irredeemable. With regard to the secession of 1847, Federal execution was provided, but not war of an international character waged.
But it is unquestionably true, on the other hand, that the twentytwo Cantons of the Confederation still continued to exist as states; they styled themselves therefore“ sovereign,” as in the present Federal Constitution, though they were no longer sovereign, i. e., wholly independent. Their personality in international intercourse was not suppressed. They could conclude treaties about matters of state economy and public administration, as well as military capitulations, by means of which the enlisting of Swiss soldiers was permitted to foreign governments. These agreements must be brought to the knowledge of the Diet and must contain nothing contrary to the Federal treaty or to the rights of other Cantons. Declarations of war and conclusions of alliances and commercial treaties were exclusively the affair of the Diet as the representative of the entire Confederation. Diplomatic intercourse also belonged to the Confederation; still, it was not forbidden to the Cantons to negotiate with a foreign country regarding matters within their competency.
The right which Cantons had of concluding treaties with each other was limited only by the principle that these agreements between the Cantons should not be opposed either to the Federal agreement nor to the rights of a third Canton. The concordats and agreements concluded under the Mediation Constitution were ratified by the new Federal agreement as far as they were capable of being united with the latter. The Federal concordats were, however, revised by the Diet after 1815 simultaneously with the actual decrees of the old Diet, but in substance they were ratified. Since the competency of the League of 1815 was more restricted than that given by the Mediation Constitution, some of already existing Federal laws were changed into mere concordats.
As already under the Mediation, there were besides the real intercantonal agreements Federal concordats which were intermediary between contract and law; thus Federal law has in this way become further developed under the Federal treaty of 1815. As the Federal treaty could not be revised by a majority of votes, and as the competency given to the Diet by it was insufficient, the Diet had to be satisfied to consider the decrees made by it outside of its actual jurisdiction as Federal concordats and therefore only binding for the consenting Cantons. In so far the condition was the same as under the Mediation. On the other hand, this peculiar institution of Federal concordats was further developed, in a peculiar way, by a decree of the Diet of July 25, 1836. While it was undisputed that the agreements of the Cantons concluded outside of the Diet were to be judged among themselves entirely according to international law, even in reference to giving notice, still it was different with the Federal concordats, which although not universally binding, yet constituted a part of the Federal law. The decree of 1836 acted as intermediary between the fixed irredeemability of the Federal laws and the free redeemability of undelayed agreements. According to this no Canton that had agreed to a concordat concluded by a majority of all the Cantons at the Diet could withdraw from it without having received
the consent of the majority of the Cantons subscribing to the concordat in question. The withdrawal being granted by the majority of the contracting parties, it was also necessary to determine whether the concordat should endure for the remainder. In case the withdrawal was refused, the Canton had the right of appeal to the Diet and the latter had power of itself to permit the withdrawal. But the Canton released in this way from the concordat was bound to give an indemnity to its former joint contractors, within the measure that could be determined according to the nature of the matter.
When the number of the contracting parties was diminished by withdrawals to eleven — that is, to less than the majority of the Cantons -- then the agreement lost the character of a Federal concordat.
With regard to disputes of Cantons with each other, all measures of self-aid were prohibited to the Cantons, just as it should be in every confederacy. They had to submit themselves, just as was the case before 1798, to the so-called “ Eidgenössisches Recht" (Federal mediation and arbitration). The Federal treaty designated as coning under Federal mediation and arbitration all disputes not relating to the rights guaranteed by the Federal treaty. About this decision a dispute arose in which the representatives of the national idea represented the right conception, that in these very weighty questions (integrity of cantonal property, freedom of trade among cantons, etc.) the Diet, as the highest organ of the league, was competent, whilst the partisans of cantonal sovereignty interpreted that decision with restrictions and accepted no obligatory Federal tribunal when the latter was not expressly stipulated by the Federal treaty.
Private legal disputes between Cantons were also to be decided by Federal mediation and arbitration, as no Canton, on account of its sovereignty, could be compelled to accept a sentence before the jurisdiction of another Canton.
The mediation and arbitration proceedings were as follows: Each of the contending Cantons was to designate two judges from the magistrates of other Cantons.
In the first place, these judges were to try to bring about friendly mediation. If they did not succeed in bringing about an understanding, they then elected from among the high Swiss magistrates one as president who neither belonged to a party nor to the states of which
any of the judges designated by the contending Cantons was a citizen.
In case of necessity the president was elected by the Diet. The court thus formed had to try to bring about a second mediation or so make itself a binding agreement when all parties were ready to vest it with such powers. If both forms of the mediation failed, the arbitrators decided in first and last instance according to law. The Diet executed the award if it was not freely executed by the defeated party.
The organization of the Confederation from 1815 to 1848 had a decidedly federative character. The highest organ was the “ Tagsatzung (Diet), in which all the twenty-two Cantons were represented by deputies. All Cantons, whether large or small, had one vote, but the half Cantons (which had been formed by division) had only one vote which they could exercise only in common.
The deputies were instructed by the governments and the Diet was not considered as a parliament. Besides the Diet there existed a “ Vorort” (presidential state), which changed about every two years between the Cantons Zurich, Berne, and Lucerne and exercised the same administrative and business functions as before 1798. In addition to the keeper of the record and certain military organizations there were no federal organizations which were not primarily cantonal. The Confederacy, except in individual military matters, was lacking in all direct authority. The powers of the Federal Government were exercised, not directly by the Confederacy itself, but through the Cantons.
III. INTERCANTONAL LAW UNDER THE PRESENT FEDERAL
1. The legal status of cantons The Cantons are to be considered as states in their relations to the Confederation, to foreign nations, and among each other. Though in all federal states the federal government be superordinate and the
4 Modern intercantonal law has been fully and very ably treated by Arnold Bolle, “ Das interkantonale Recht,” La Chaux-de-Fonds, 1907. This work is the only comprehensive and systematical description of the subject. Special ques