Every Swiss citizen eligible for the National Council can be elected; but a Judge cannot also be a member of the Federal Council or Assembly, or be appointed as an official by the Federal Council or Assembly, or follow any profession.

The jurisdiction of the Swiss Federal Tribunal falls under four heads :

I. As a Court of Original Civil Jurisdiction:

It can decide cases :

(i.) Between the Confederation and one or more Cantons (ii.) Between Cantons.

(iii.) Between individuals or corporations as plaintiff and the Confederation as defendant, if the matter in dispute amounts to 3,000 francs

(iv.) Between Cantons and Corporations or Individuals; if one party demands trial before the Federal Tribunal and the amount in dispute is 3,000 francs.

(v.) Between Communes of different Cantons as to disputed questions of citizenship.

(vi.) As to homeless people, expropriations for railways or public works, civil questions between the Confederation and Railway Companies and the winding-up of the latter. (vii.) Questions which by the Constitution or the legislation of a Canton [duly ratified by the Federal Assembly] are entrusted to its competency

(viii.) Questions brought before it by agreement between the parties, where the amount in dispute is 3,000 francs

II. As a Court of Civil Appeal:

Cases where the Federal laws have to be applied by Cantonal tribunals and the amount in dispute is 3,000 francs or cannot be estimated; either party can appeal against the judgment of the highest Cantonal tribunal. [This includes Federal laws respecting contracts, other than those relating to real estate; copyright; trade-marks; divorce and nullity of marriage.]

III. As a Court of Criminal Jurisdiction:

For this purpose the Swiss Federal Tribunal is divided into three sections-the Chamber of Accusation; the Criminal Chamber, which holds the Federal Assizes; and the Court of Criminal Appeal [Tribunal de Cassation].

As a Court of Criminal Jurisdiction the Swiss Federal Tribunal has cognisance of the following cases :

(i.) High Treason against the Federation.

(ii.) Revolt or violence against Federal authorities.

(iii.) Crimes and offences against International Law.

(iv.) Crimes and political offences which are the cause or the consequence of troubles occasioning an armed intervention by the Federal authority.

(v.) Charges against officials appointed by a Federal authority, when the latter makes application to the Federal Tribunal. It has also, by Statute, jurisdiction over certain minor offences.

IV. As a Court to decide upon questions of Public Law:

Under Article 113 of the Constitution of 1874 it has cognizance of :

(i.) Conflicts of competency between Federal and Cantonal authorities.

(ii.) Such disputes between Cantons as are within the domain of Public Law.

(iii.) Claims for violation of rights of citizens or corporations guaranteed by the Federal or by a Cantonal Constitution. (iv.) Federal laws which have been passed in execution of the Federal Constitution.

(v.) Claims of individuals or of corporations for violation of concordats [agreements] between Cantons, as well as of treaties with foreign countries.

[N.B.-These details as to the Swiss Federal Tribunal are taken from Messrs. Adams and Cunningham's book on "The Swiss Confederation," published in 1889. At the end of their chapter on the Federal Tribunal the authors point out that "the Federal Council has announced its intention of presenting before long a new law which will introduce extensive modifications." The law thus referred to was passed in 1893. The number of Judges and substitutes was raised to sixteen of each. But the changes in the jurisdiction of the Federal Tribunal do not seem to have been very material. Vide, upon the whole question, Lowell, "Governments and Parties in Continental Europe," Vol. II, pp. 214-220.]

CHAPTER XII.

APPEAL TO THE PRIVY COUNCIL.

The right of appeal to the Privy Council, from the Courts of a In general. Union of States under the British Crown, is a subject of extreme complication. In Canada there have been a multitude of decided cases of very varying importance-which have turned upon this point; whilst in Australia the clause in the draft Constitution, sent for the approval of the Imperial Parliament, which attempted to define the right of appeal to the Privy Council from the Courts of Federated Australia, was the clause which caused most contention between the Australian delegates and the Law Officers of the Crown This has been briefly alluded to in the chapter on "the growth of the Australian Commonwealth." Not only was this so, but since the Australian Federal Constitution came into operation the clause relating to Privy Council appeals has given occasion for constant friction. With the latter fact, however, we have in this work nothing to do. All that has here been attempted is to give a brief outline of the practice that obtains in Canada as to appeals to the Privy Council-founded as it is on the accumulated results of a long series of decisions; and to supply an equally brief outline of the provisions of the Australian Constitution on the point. For in this respect, as in many others, the Constitution of Australia is more explicit than that of Canada.

To take first the case of Canada, the student of this important Canada. subject will find an exhaustive, though not very clear or connected account of the various enactments and legal decisions with regard to the right of appeal to the Privy Council from both the Provincial and the Dominion Courts, in Wheeler's Confederation Law of Canada [pp. 396, 406, 410-483]. The short sketch which follows is however, taken in the main from Todd's Parliamentary Government in the British Colonies [pp. 304-312]. As stated by Todd, the Canadian practice can be very briefly summarised. It was pointed out in Chapter XI. of this book that the British North America Act makes no provision for the establishment of a Dominion Court, though it gives the Dominion Parliament power to make such provision. In Appendix C the various Acts passed by the Dominion Parliament, as to the establishment of a Supreme Court for the Dominion, are reviewed. The Act of 1875, establishing the Supreme Court, contains a clause declaring that

Double Right of Appeal.

Grant of Leave to Appeal.

"The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which her Majesty may be graciously pleased to exercise by virtue of her royal prerogative."

Two questions arise under this clause: Firstly, does it take away the right of appeal to the Privy Council from the Canadian Supreme Court? Secondly, Does it, by implication, restrict the right of appeal to the Privy Council from the highest Provincial Court of last resort, without reference to the Dominion Supreme Court? To both these questions the answer is in the negative. In fact, there is nothing in the section to prevent a Provincial Court of last resort from granting leave to a party to appeal to the Privy Council although the adverse party to the same suit has previously obtained leave, from the same Court, though on application to another Judge in chambers, to appeal from the same judgment to the Supreme Court of Canada.

"This double appeal," says the Registrar of the Supreme Court of Canada, "which exists as a matter of statutory right, may seem an anomaly, but in practice no difficulty has resulted from it. The statement that the judgment of the Supreme Court is final is subject to some qualification. As has been said, the section of the Supreme and Exchequer Courts Act which declares that the judgment of the Supreme Court shall be final, also says saving any right which Her Majesty may be graciously pleased to exercise by virtue of her Royal prerogative'; and an appeal may be allowed to the Privy Council from the judgment of the Supreme Court of Canada [except in criminal appeals and also election appeals, as will be seen hereafter], and in fact many such appeals have been allowed, not as a matter of statutory right, but of grace. The exercise of the prerogative in this direction would therefore prevent any evil which might be threatened from conflicting judgments. Further, it may reasonably be assumed that in the event of concurrent appeals being taken, the Supreme Court would withhold its decision pending the result of the appeal to the Privy Council."*

In several cases the Privy Council has declared its reluctance to entertain appeals from the Supreme Court of Canada, "except where the case is one of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount." It will not allow an appeal on a question merely of fact, and "parties petitioning for leave to appeal must state succinctly, but fully, the grounds on which they make their application; and must afterwards confine their proceedings to those grounds." Generally, it may be said that though the Privy Council-through its Judicial Committee-has again and again asserted its right to grant leave to appeal from the judgments of the Supreme Court of Canada; it has consistently regarded itself as bound by the desire of the Dominion Parliament-expressed in the section of the Act of 1875 which is quoted above-that the

* Quoted by Todd : " Parl. Govt. in Brit. Col., p. 309.

judgments of the Supreme Court of Canada shall be final, and has only granted leave as an act of grace to be exercised only in cases of general interest and importance.

As far as appeals to the Privy Council from Provincial Courts are concerned, they can only take place after leave to appeal has been granted by the Court against whose judgment the appeal is to be brought. That leave will only be granted if the sum in dispute exceeds a certain amount. Thus in Quebec the amount in dispute must exceed £500, and in Ontario 4,000 dollars.

There are, however, two cases in which there is no appeal to the Cases in which Privy Council.

(1) 51 Vic. c. 43, sec. 5 enacts that* :-" Notwithstanding any Royal prerogative . . . . . no appeal shall be brought in any criminal case from any judgment or order of any Court in Canada to any Court of Appeal by which in the United Kingdom appeals or petitions to Her Majesty in Council may be heard."

(2) Under an Act of the Quebec Parliament giving jurisdiction to the Judges of the Superior Court to try election petitions, declaring that "such judgment shall not be susceptible of appeal," the Privy Council-whilst safeguarding itself against any admission that the prerogative of the Crown to grant leave to appeal can be taken away by anything less than an express enactment of a Colonial Parliament to that effect-has refused in two cases to hear an appeal on an election matter from that Province, on the ground that the Act had received the assent of the Crown and that its clear intention was to exempt the judgment in such matters from any such appeal; more especially as the Court had been given jurisdiction to try election cases in substitution for the Legislative Assembly of the Province.

there is no

Appeal.

The history of the clause in the Australian Constitution dealing Australia. with appeals to the Privy Council is a very interesting and not an History of the uninstructive one. It is excellently summarised in "The Annotated matter. Constitution of the Australian Commonwealth" [pp. 748-750]. In the Commonwealth Bill of 1891 it was proposed to give the Federal Parliament power to require that any appeal to the Privy Council that had hitherto been allowed from the State Courts should be made to the Federal Courts instead; whilst the Queen was to have power to allow an appeal to herself "in any case in which the public interests of the Commonwealth, or of any State, or of any part of the Queen's dominions, are concerned." At the Adelaide Convention in 1897 the clause was adopted in the form of a prohibition against any appeal to the Privy Council, either from the State Courts or the Federal Court" except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court."

* The validity of this Act is held to be doubtful by the writers of text-books; but it has never been disputed in practice.