* This article is a by-product of an inquiry concerning judicial settlement of controversies between member states of federacies, in the pursuit of which the author has been assisted by grants from the University of Wisconsin and from the American Philosophical Society (Penrose Fund).

¹ The usual modern dress of the constitution, a specific enactment with its amendments, is a development of public law attributable to the United States. Lenhoff, “America’s Legal Inventions Adopted in Other Countries,” 1 Buffalo Law Review (1951) 118. Of the two principal functions of a written constitution, that of distribution of power between organs is peculiarly important in federacies, since the basic division of power between the central authority and the members must be settled, the relationship between them expounded, and a method of resolving controversies between the members provided, all of which involves some definition of the branches of central authority in addition to that needed in a unitary state. Such was the chief function in the U. S. of the Articles of Confederation of 1777 and the Constitution of 1787; such was the chief function in Switzerland of the Constitution of 1798, the Act of Mediation of 1803, and the Pact of 1815. The other function of constitutions, to limit governmental power, to safeguard interests of individuals and minority groups against governmental tyranny, is almost absent from the Articles of Confederation, subordinate in the Constitution of 1787, but is the main matter of its earliest and its Civil War amendments, and of course the dominant note of the French Constitution of 1791. These rights of man, which, according to Swiss usage, are the content of “constitutional law,” are, so far as European constitutions are concerned, attributable more to French than to American example, if it is proper to give to legal demands that are so universal any national tag. The Swiss Constitution of 1848 (totally revised 1874, and frequently amended) has drawn more from the Constitution of the United States than has any other European constitution. Tripp, the Swiss and United States Federal Constitutional Systems (1940), translated and revised by Swiss Federal Judge Hans Huber, Der Schweizerische und der Amerikanische Bundesstaat (1942).

² Contrast the judicial control exercised in the U. S. over lower courts and administrative agencies with the judicial non-control over military agencies. Ex parte Quirin, 317 U. S. 1 (1942); Application of Yamashita 327 U. S. 1 (1946); Hiatt v. Brown, 339 U. S. 103 (1950); Johnson v. Eisentrager, 339 U. S. 763 (1950).

³ This is the nub of many refusals of U. S. courts to review executive action, such as Z & F Assets Realization Co. v. Hull, 311 U. S. 470 (1941); Chicago & Southern Air Lines v. Waterman Corp., 333 U. S. 103 (1948); Ludeeke v. Watkins, 335 U. S. 160 (1948) ; U. S. ex rel. Knauff v. Shaughnessy, 338 U. S. 537 (1950).

⁴ Constitution, Article 46, cl. 2. “Here, as in other areas where the Federal Assembly has failed to legislate to carry out the Constitution, the Federal Tribunal has succeeded in making a case law entirely based on the Constitution … not a bit inferior to the statute law that governs in other areas.” Solyom, La Juridiction eonstitutionelle aux Etats Unis et en Suisse (1923), p. 112.

⁵ Rappard, “Le contrôle de la Constitutionnalité de lois fédérales par le juge aux Etats Unis et en Suisse,” 53 Zeitschrift für Schweizerisches Recht (1934) 36a, esp. 113a–139a. Proposals to adopt the U. S. rule have been frequently considered and defeated. Panchaud, “Les garanties de la constitutionnalité et de la légalité en droit fédéral,” 69 Zeitschrift für Schweinerisches Secht (1950) la, 36a–41a.

⁶ This opinion concerning the referendum, readily invocable as to all legislation, was expressed to me repeatedly by judges, professors, and attorneys. It is felt that review of statutes, since they have been or may be subjected to referendum (Const., Art. 89), would be review of the people’s constitutional decision, a perversion of democracy; also perhaps a futility in view of the simplicity of constitutional amendment, popularly initiable (Const., Art. 121), and effected by majority vote of those voting (a) in the whole country, and (b) in each of a majority of the cantons (Const., Art. 123). Though, on the one hand, the referendum as to statutes argues against judicial review, yet, on the other hand, the ease of constitutional amendment dispels the chief argument in the United States against judicial review—the danger of judicial autocracy.

⁷ Panchaud, loc. cit. (note 5 above), 54a–56a; Giacometti, Das Vollmachtenregime der Eidgenossenschaft (1945).

⁸ The language of the Swiss Constitution directing the Federal Tribunal to apply the laws is the basis for the doctrine of legislative omnipotence in Switzerland. The third and last paragraph of Art. 113 (the opening words of which are not treated as a limitation) reads: “In all the foregoing cases [of Federal Tribunal jurisdiction], the Federal Tribunal shall apply the statutes and general joint resolutions of the Federal Assembly as well as the treaties which it has ratified.” This enables the Federal Assembly to disregard both individual and cantonal rights: “According to Const., Art. 113, last paragraph, cantonal law within cantonal authority has to gire way to federal law without federal authority, in so far as it is embodied in a statute or a general joint resolution.” Giacometti, Schweinerisches Bundegstaatsrecht (1949), $ 7 (p. 94). Yet an amendment to Art. 113 or any amendment designed to supersede existing legislation would clearly prevail. To say that legislation is superior to the constitution, even in Switzerland, is therefore misleading.

⁹ In this examination consideration is given only to statutes in the narrow sense of enactments of the Federal Assembly, not decrees of the Federal Council; and only to treaties approved by the Federal Assembly (Const., Art. 85 (8)).

¹⁰ Only in that its provisions regarding the process of ratification at once empower and burden the signing states, is it law before ratification is fully accomplished.

¹¹ The difference between the U. S. rule, by which treaties (may) become internal law, and the British rule is illustrated by two cases relating to the same treaty: Be Arrow Eiver Boom Co., 65 Ont. L.B. 575, 581, [1931] 1 D.L.B. 260, 266, and [1932] S.C.R. 495, 502, [1932] 2 D.L.B. 250, 251 (op. of Lamont and Cannon); Pigeon Biver Improvement Co. v. Cox, 291 IT. 8. 138, 160 (1934). At least in Canada there appears to be some attrition of the British rule in recent years: (1) by holding treaties declaratory of public policy, Be Drummond Wren, [1945] O.B. 778, [1945] 4 D.L.R. 674; and (2) by inventing exceptions: Sec. of State v. Alien Property Custodian, [1931] S.C.R. 169, 198, [1931] 1 D.L.B. 890, 902 (but see Bitter v. Sec. of State, [1944] Ex. C.B. 61, 76, [1944] 3 D.L.B. 482, 497). Conversely the American Bar Association recommends amendment of the IT. 8. Constitution to conform with the British rule. Sutherland, “Restricting the Treaty Power,” 65 Harvard Law Rev. (1952) 1305.

¹² The more important diplomatic treaties, as enumerated in Art. 27, including “those modifying internal French legislation,” are binding only if “ratified by virtue of a legislative act,” and, by Art. 28, may not be “abrogated, modified, or suspended without previous formal denunciation … approved by the National Assembly, except in the case of commercial treaties.” The formation and termination of such treaties are thus under tight control of the legislative authority.

¹³ The rule of Art. 26 is repeated in Art. 28: “Diplomatic treaties duly ratified and published have authority superior to that of French internal legislation.”

¹⁴ Preuss, “The Relation of International Law to Internal Law in the French Constitutional System,” this Journal, Vol. 44 (1950), pp. 641, 657.

¹⁵ Ibid., pp. 658–667.

¹⁶ Ibid.

¹⁷ Cf. Panohaud, loc. cit. (note 5 above), at 29a–35a.

¹⁸ Other recent constitutions (German Federal Bepublic, 1949, Art. 25; German People’s Bepublic, 1949, Art. 5; Italy, 1948, Art. 10) contain general language that may be interpreted to have the same effect, or even to give all international law priority. See Fritz Munch, “Droit international et droit interne d’après la constitution de Bonn,” 19 Revue international française du droit des gens (1950) 5, 14; and Lawrence Preuss, “The Execution of Treaty Obligations through Internal Law,” Proceedings, American Society of International Law, 1951, p. 82, esp. notes 31 and 41.

¹⁹ National (or internal or municipal) as contrasted to international; not national (or central or federal) as contrasted to state (of a federacy). State courts and federal courts apply the same law in Switzerland, just as they do in the U. S. A. And in the law they apply there is no doubt that state (cantonal) law of every sort is subordinate both to federal law and to international law. (There is question, however, whether treaties made by states—“compacts” in U. S. parlance; usually “concordats” in Swiss—with each other are state law, federal law, or some other class of law.)

²⁰ The constitutions mentioned in note 18 above, may alter this rule.

²¹ “The Charter [of the United Nations], the moment it becomes part of the positive law of a national legal system, is superior to all previous legislation. But at least in theory this superiority is basically unstable (essentiellement précaire). In every legal system legislative measures subsequent to the adoption of the Charter can be taken that conflict with it. The internal agencies of government (organes internes), undoubtedly bound by the most recent manifestation of the legislative will, would be bound then to apply the later statute [even in Prance after 1946?] and not the Charter … [Yet] does not the judicial rule, which is more and more widely accepted as to ordinary treaties, avoid all possibility of implied conflict between international rules of law and internal rules of law by presuming that the legislature in general does not intend to violate any treaty? … Thus neither the carelessness nor the concealed hostility of the national legislature would prevent the application of the Charter, but only an express command in effect requiring [its disregard]. And that really is a possibility little to be feared.” Kopelmanas, L’Organisation des Nations Unies (1947), p. 98, note 3. In this passage Kopelmanas states the rule of “live and let live” in extreme favor of international legislation. So it should be applied when the conflict is between an international constitution and any form of national law. Likewise, it is submitted, it should be applied in favor of national law when the conflict is between a merely bilateral treaty and a national constitution.

²² Perhaps following the rule, whose correctness I do not endorse, that: “A municipal decree, whether executive, legislative or judicial, contravening the law of nations, has no extraterritorial force.” 1 Moore, Digest of International Law 6. Cf. Kopel-manas, “Du Conflit entre le traité international et la loi interne,” 18 Revue de droit international et de législation eomparée (1937) 88, 107.

²³ Professor Guggenheim states that he intends to maintain this view in the forthcoming revised (French language) edition of this work. Compare the view that, despite heavily contrary preponderance of decisions of U. S. courts, “not only are treaties and customary international law of authority superior to national statutes and the Constitution … but also … courts in the United States are bound in observing sound principles of law to act upon this fact,” the conclusion of Pitman B. Potter, “Relative Authority of International Law and National Law in the United States,” this Journal, Vol. 19 (1925), pp. 315, 326.

²⁴ In referring to the official reports of decisions of the Federal Tribunal, the abbreviation Trib. Féd, is used for Tribunal Fédéral (Bundesgericht), with volume number preceding. The year of the decision is always 1874 plus the volume number. In later years, reports of decisions of the several divisions of this large court are separately paged. The part of the reports is then indicated by a roman numeral after Trib. Féd.: I is public and administrative law; II, civil law; III, law of execution and bankruptcy; IV, penal law.

²⁵ Examination is made of all sixteen cases listed by Guggenheim as important, and several others, including all those of recent date that seem relevant, in order to give a full picture of the court’s present attitude.

²⁶ Kopelmanas, loc. cit. (note 22 above), at pp. 101–102. The Stübler ease, 18 Trib. F6d. 189, is similar; also the earlier civil law case of Schweizerische Ereditanstalt v. Postfiskus, 10 ibid. 583, where a postal treaty was held not affected by general postal legislation.

²¹ “If statutes introduce the vague (problematisch) concepts of public and private law without defining them, one must resort for help to jurisprudence. But here the greatest disagreement reigns, a uniform answer is never obtainable, and the distinction itself is not unquestioned in modern writings.” Gut, Staatsrechtliche Streitigkeiten zwischen den Kantonen und ihre Beilegung (1942), pp. 10–11.

²⁸ This periodical now prints in French translation a large proportion of the Germanlanguage decisions of the Federal Tribunal. These are accurate unofficial versions, occasionally presenting more, and now and then less, of the opinions than appears in the official reports. In citations of the Journal des Tribunaux, which appears in several sections, the roman numeral I indicates a federal court decision.

²⁹ This French decree could not in any event affect liability, if any, derived from that of the Swiss railroad, the delivering carrier whose car was used, the federal court points out.

³⁰ The court cited this case and repeated this rule, still leaving the background hazy and the reasoning muddy, in Helvetia v. Kuch (April 15, 1946; not officially reported), quoted (but misidentifled) in VII Schweizerisches Jahrbuch für Internationales Becht (1947) 143. Meanwhile, however, the Swiss Government in an official communication to the League of Nations (O. 75. M. 69. 1929. V) had taken the contrary view, with which most Swiss juristic writers agree. For instance, Qiacometti, in discussing intercantonal treaties, says that they are (or may be) “binding not only on the contracting cantons but, upon publication, like cantonal statutes, also on persons subject to the territorial jurisdiction of the contracting cantons. Thus the intercantonal convention becomes automatically part of cantonal law, as an international treaty becomes part of federal law.” Sehweizerisches Bundesstaatsrecht (1949), p. 162. See also id., p. 829, and the Tribunal’s language in Thurgau v. Lang, quoted below, p. 664, and in Landis v. Zug, 78 Trib. Féd. I, 124 (not yet published).

³¹ No translation of the remainder of the sentence is satisfactory because of the obscurity of the original: “zum Widerruf des betreffenden Aktes, den Weiterhestand des letzteren selbst aber unberührt lassen.”

³² Though the court has not clearly adopted this view, it prevails. See note 30, above.

³³ Quoted in note 42, below.

³⁴ Also 33 Bemie critique du droit international (1938) 252, and (in part) 1935–1937 Annual Digest of International Law Cases, No. 4.

³⁵ The passage here omitted is quoted above, p. 650.

³⁶ Though the convention was revised at Eome in 1928 after the statute, “and in Switzerland this revision was ratified by vote of the Federal Assembly,” the court held that since “the Borne meeting did not make any but purely formal changes in art. 13,” it remains “the old rule, which cannot overcome the new rule, namely art. 21 of the federal statute.”

³⁷ Kopelmanas, in his comment on the case (quoted above, p. 650), maintains that no conflict existed, because the convention gives leeway for such a statutory variation by providing in sec. 13(2) that “The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country ….”

³⁸ This statement and the following quotation appear in his Lehrbuch des Völkerrechts (1947), Vol. 1, p. 38. In Fiches Juridiques Suisses (1942), No. 487, he calls the Steenworden case “directly contrary to earlier decisions of the Federal Tribunal.”

³⁹ The Journal des Tribmaux text continues: “This argument has already been disposed of in previous litigation by this defendant. Dewald v. Bitscher [listed but not reported, 62 Trib. Féd. I, 299; opinion summarized in 1939 Journal des Trib. I, 28].”

⁴⁰ Deutsche Feuerversioherungs A–O. v. Lucas, 58 Trib. Féd. I, 307, 312; “So long as this [the taking of executive measures in response to the foreign state’s action] has not happened, the judicial authorities have to hold to the rules set forth in the treaty. [Lepeschkm v. Upper Court,] 49 Trib. Féd. I, [188,] 194.”

⁴¹ Despite much search, this word is used with reservations, since the Tribunal’s reports are without index, adequate headnotes, or detailed tables of contents. No tables of cases cited (though citation of cases is increasingly frequent) exist, and the separate index volumes of the reports are slow to appear and not arranged to disclose discussion of this particular issue. The case cited in note 30 contains a fence-sitting dictum.

⁴² Heini v. Pietsch, 57 Trib. Féd. I, 19, 22: “Breach of the treaty … is to be decided by the Federal Tribunal freely and not of course from the point of view of Constitution article 4 [equality of all citizens before the law]. The plaintiff cannot complain of a violation of Const, art. 59 [personal actions to be brought at defendant’s domicile—with exceptions]. The above mentioned treaty … is controlling even if in conflict with Const, art. 59, for treaties ratified by the Federal Assembly are controlling for the Federal Tribunal, pursuant to Const, art. 113, par. 3, and Judicature Act art. 175, par. 3.”

⁴³ Lepeschkin v. Upper Court, 49 Trib. Féd. I, 188, 196, quoted above, pp. 657–658.

⁴⁴ The judgment under review was, however, sustained (pp. 52–53) because the Federal Council had abrogated the convention pursuant to its terms, effective Dec. 12, 1947, that is, before the conviction of the defendants; and, by the Swiss penal code, “the law in force at the time of judgment, if milder for the accused, is to be applied,” a principle “good not only for matters covered by the penal code but also for those which other federal law provisions make or have made punishable.”

⁴⁵ This is the well-settled rule in the United States.

⁴⁶ The rule is tersely expressed: Bundesrecht bricht kantonales Recht; le droit fédéral prime le droit cantonal. It is evolved from the Constitution, Art. 113. See note 8, above.

⁴⁷ In the United States it is not wholly unknown; for national courts when entrusted by a statute carrying out a treaty with the adjudication of an international claim properly prefer international law to national law. The Ship Rose, 36 U. S. Ct. CI. 290, 301 (1901); Royal Holland Lloyd v. U. S., 73 U. S. Ct. CI. 722, 731 (1931). A statute intended to fulfill a quasi-international obligation was held to have similar effect in U. S. v. Alcea Band of Tillamooks, 329 U. S. 40 (1946).