Reforms of the Military Judicial System of Switzerland in 1799-1800: on the Question of French Influence

Krichevtsev Mikhail Vladimirovich PhD in History Associate professor, Department of Theory and History of State and Law, Novosibirsk State University of Economics and Management 630099, Russia, Novosibirsk, Kamenskaya Street 52/1 cm.martellus@gmail.com Other publications by this author

At the end of the XVIII century. the territory of Switzerland became the scene of a major military conflict. In 1799, the armies of three great powers converged here, on the one hand, revolutionary France, on the other – the participants of the second anti-French coalition of Austria and Russia. Switzerland itself was split into two camps. Part of the population, who wanted revolutionary changes and the weakening of the local cantonal patriciate, supported France and welcomed the entry of its troops in 1798. Another part, ready to preserve the rule of the Patrician nobility, tried to resist the French occupation and then called for the help of the forces of the Austrian monarch. At first, the supporters of the revolution prevailed, and with the support of the French government, the Helvetic Republic was proclaimed, on April 12, 1798, the Constitution of the republic was approved. Unlike the former Swiss Confederation (federal state), it became "unified and indivisible" in the French manner, the cantons were turned into administrative-territorial districts as part of a unitary state (22 cantons according to the Constitution, then their number was reduced to 19) ^{[14, p. 90, 91]}.

The formation of the new state was accompanied by a number of reforms, including military ones. First, on September 4, 1798, a Helvetic Legion of 1,500 soldiers was established in the republic to maintain internal order, then on December 13 of the same year, a law was issued on the organization of militia troops. Military service became mandatory for all male citizens. The army was to consist of an elite corps (on active service) and a reserve. The territory of Switzerland was divided into military departments, with inspector generals at the head of the troops. Each department was to form 8 battalions of the elite corps (1,000 soldiers in a battalion) ^{[10, p. 5, 6],[14, p. 113]}. With the beginning of an acute conflict on the territory of the country in February 1799 , a mobilization of 20 thousand people was announced . To maintain discipline in the created troops, it was decided to carry out a military judicial reform, and on July 27, 1799, a law was issued on the creation of new courts in each battalion of Helvetic troops ^{[5, p. 146-160]}. A year later, when hostilities had already ceased, a new reorganization was carried out in the military judicial system, reflected in the law of November 24, 1800 ^{[6, p. 130-148]}

The military judicial reforms of the Helvetic Republic are mentioned in the general works of Swiss scientists devoted to the history of military justice of the country: in the dissertation of E. Kraft, articles by R. Barras, D. Kanapa and M. Silacci ^[1],[8],[12]. The researchers noted a sharp change in the military judicial system, expressed in the transition from the former cantonal organization of justice to the placement of courts directly in military units and the introduction of a three-tier organization: disciplinary, military and audit councils. According to the scientists of the XX century E. Kraft and R. Barras, such an organization of military justice was borrowed from France ^{[1, p. 11],[12, p. 40]}. In particular, Kraft noted that the new military legislation, taken from another country, did not correspond to the mores of the Swiss and "did not penetrate into the life of the Swiss nation" ^{[12, p. 40]}. However, the researchers' works did not contain any detailed characteristics of the reforms themselves and their distinctive features, nor a serious analysis of the French influence on the ongoing transformations. Considering that in Russian historiography there are no special studies devoted to the military justice of Switzerland at the end of the XVIII – beginning of the XIX century, and in Swiss historiography there are significant gaps in its study, an appeal to this topic may be of some scientific interest. The relevance of this topic is also due to the need to study the general problems of the impact of the Great French Revolution on the development of legal systems in Europe and the formation of modern judicial law.

This article is devoted to the history of two reforms of military justice in Switzerland – 1799 and 1800. This is a small chronologically, but very important milestone in the transition to a new military-judicial organization associated with foreign interference in the affairs of the country. Hence, the purpose of the study is to present the main changes in the military justice of Switzerland and the degree of influence on them of the French institutions of the late XVIII century. The object of study here is the military-judicial law of the Helvetic Republic, reflected in the laws of July 27, 1799 and November 24, 1800. The subject of the study is the process of reforming military justice in Switzerland at the reception of the norms of French law. For the analysis, authentic legislative acts of the Helvetic and French republics of the late XVIII century, resolutions of the Helvetic government published in the official Swiss press of that time were involved. When working on the materials of the topic, the comparative historical research method, contextual analysis of legal documents and structural and functional analysis of judicial and legal institutions of the two countries were applied.

Before the Helvetic Revolution, the military judicial organization of Switzerland was focused on the observance of the so-called Heimatprinzip ("home principle"). According to it, the accused serviceman was subject to the jurisdiction only of the canton from which he came. Thus, military persons had to be tried by the ordinary court in their canton. Following the "domestic principle", however, gave rise to considerable difficulties in the administration of justice. It is known that during the investigation of treason in the Battle of Marignano in 1515, the accused Bachmann, led to torture, named 24 people as accomplices. But since they belonged to different cantons, the local authorities did not pursue them ^{[12, p. 38]}. In practice, there was a deviation from this principle, when a military man could be tried by a "people's court" (Kriegsgemeinden) during a campaign. Such a "people's court" could also impose death sentences. An example is one case in 1444, when 72 people were sentenced to death by raising their hands. ^{[1, p. 9]}

There were no special bodies of military justice before the publication of the special Act on Federal Defense (D?fensional f?d?ral) of March 18, 1668. The law fixed Heimatprinzip as the main one in the organization of military justice. For the trial of the military, a tribunal was formed of officers to whom the canton delegated its authority. However, murder cases ("les crimes de sang") still had to be dealt with by the judicial authorities of the canton, if they did not delegate their powers. In the real situation, it was also assumed that during the military campaign, the unit commanders administered the court, but it was believed that they acted as representatives of their territories, and not on the basis of their own powers ^{[1, p. 10],[12, p. 39, 40]}.

The Federal Defense Act of 1668 remained in effect until the creation of the Helvetic Republic. It was replaced by the Law of July 27, 1799 "on the organization of disciplinary, military and audit councils" (also called in the literature "Law on Military Criminal Procedure" – Loi sur la proc?dure p?nale militaire) ^[5]. It was approved by the Senate and signed by the President of the Executive Directory of the Republic F.-S. Lagarp. Frederic-Cesar de Lagarpe (de La Harpe, 1754-1838) was one of the leaders of the Patriot party, which advocated revolution in Switzerland and supported the French occupation. Russian Russian Grand Dukes Alexander and Konstantin Pavlovich were taught by this man of Republican views in the 1780s - early 1790s and served as a colonel in the Russian service. As the leader of Helvetia, he took part in a number of transformations, including military reforms.

The Law signed by Lagarp on July 27, 1799 (of 87 articles) broke with the traditional "domestic principle" of military justice. From now on, military courts were created in each battalion of the Helvetic troops and had no connection with the place of origin of the servicemen. The justice system was built according to a three-tier scheme and included disciplinary, military and audit councils.

Even before the publication of the general Law of 1799, the Executive Directory tried to create disciplinary councils in one of the cantons – Leman. On the third of October 1798, by her decree, she approved the draft proposed by the temporary Inspector General of the troops of Leman Bergier on the establishment of such courts. In each district of the canton, a temporary disciplinary council of five military ranks was created to consider cases of minor offenses and the imposition of correctional punishments (independently – no more than 8 days in prison or 15 days of arrest). More dangerous acts should have been considered by the military council ^{[7, p. 457, 458]}. The temporary cantonal establishment, obviously, could serve as a certain experience for the transition to permanent institutions. According to the Law of 1799, disciplinary councils were established in the battalions of troops already in isolation from the territorial basis. The Disciplinary Council (Conseil de discipline, Kriegszuchtrat) was to include seven members: the commander of the unit, who acted as chairman; two captains, a lieutenant, a sous-lieutenant, a sergeant and a corporal. The six judges of the council were selected according to the seniority of the term of service in the military rank and had to be replaced every three months by those following them in the list according to the length of service. The secretary of the council was appointed by the chairman from among the sergeants-furriers (without the right to vote). The Disciplinary Council was to meet with the Chairman and only on his initiative. The council was responsible for cases of misconduct (faute) of military personnel, depending on the punishment imposed: when a misdemeanor could be punished by imprisonment from 8 days to a month or punished by demotion of a non-commissioned officer or corporal. If the accused was threatened with a more severe punishment, the military council had to investigate the case. During the consideration of the case in the disciplinary council, the chairman himself presented the judges with materials on the guilt of the serviceman, the latter could also be heard at a meeting of the council. The decision on the case was made by a majority of four votes ^{[5, p. 146, 147]}.

The Military Council (Conseil de guerre, Kriegsrat) was created in a broader composition: 4 captains, 4 lieutenants, 4 sub-lieutenants, 4 sergeants, 4 corporals, a total of 20 judges. The appointment of judges was made in turn, depending on the length of stay in the military rank: for captains and lieutenants from a shorter period to a longer one, in the other three ranks – vice versa. The senior captain from among the officers of the battalion became the chairman (president) of the council, the rapporteur on the case was appointed by the council, and the secretary was appointed by this rapporteur. The Chairman of the council also had to appoint one captain, who was called upon to play the role of commissioner of the executive branch at the court and would monitor compliance with the forms of the process, the execution and application of the law. The members of the council could not be close relatives or be related to the accused person. The competence of the military council was defined quite broadly, and this was the difference from the disciplinary one: the former could, in principle, judge "all military offenses" (tous les d?lits militaires). The Law of July 27, 1799 defined the circle of persons under the jurisdiction of the Military Council: these are all military personnel, as well as persons seconded to the army or accompanying it (including workers, officers' servants and women in the wagon train); as well as instigators, spies and residents of an enemy country occupied by the troops of the Helvetic Republic (art. 23, 24). Any person accused of committing a war crime and subject to the Council's trial was to be arrested immediately. The highest officer, the local commander, who learned about the offense through a complaint or general rumor, was obliged to instruct the reporting captain to begin investigative actions and interrogate witnesses and the accused, record evidence in the case. If there were several accused, they were subject to interrogation separately. All the testimony had to be recorded in the protocol. The accused himself could choose a defender among any categories of local citizens, if he found it difficult to choose, the disciplinary council had to offer him his own. At the same time, the defender of the accused could be admitted to the materials of the preliminary investigation. After the report of the speaker, the commanding officer convened a disciplinary council, which in turn decided to convene a military council ^{[5, p. 148-153]}.

The military council met in a public place in the center of the square lined up soldiers of the battalion. The Chairman of the council was sitting at the table, the Commissioner of the executive branch was on his right, and the speaker was on his left. At the end of the table – the court secretary and the defendant's lawyer, judges were placed around the table in a semicircle. After the beginning of the meeting, the chairman must assign a copy of the law to the bureau in front of him, which was considered as a mandatory formal procedure. The accused was then brought to the court session, without shackles or ropes, accompanied by a lawyer. The first speaker was supposed to speak, who reported to the presence the materials of the protocol and other evidence related to the case. Then the chairman interrogated the accused, the other members of the council were also allowed to ask him questions. At the end of the interrogation, the Commissioner of the executive branch took the floor, who read out the relevant text of the law and made his conclusions about its violation. After the public prosecutor's speech, the floor was given to the defender or the accused himself, at the end of their speeches, the defender was removed, and the defendant was escorted back to prison. In the absence of the accused and his defender, the judges proceeded to vote on the guilt of the defendant. At the same time, neither the Commissioner of the executive power, nor the speaker, nor the secretary of the council had a decisive vote. The votes of the judges were cast from the junior to the senior, the latter from the chairman of the council, they had to be taken into account in a certain proportion. If 9 judges voted in favor of the accused, he was subject to release; a verdict of guilty was adopted by a majority of 12 votes "against". After that, the judges had to discuss the measure of punishment, which was also approved by a majority of 12 votes. In the absence of such a result, the punishment measure most favorable for the accused was taken. The verdict of the court, signed by the chairman, was subject to public announcement before the formation of the battalion troops. But at the same time, the verdict and the court materials had to be submitted to the audit council for review ^{[5, p. 155-157]}.

The Revision Council (Conseil de r?vision, Revisionsrat) was composed of 10 judges: two people from each military rank – captains, lieutenants, sous-lieutenants, sergeants and corporals. Similarly to the military council, their appointment was to be made in turn, depending on the length of stay in one rank (in inversion compared to the military council: for captains and lieutenants from a longer term to a shorter one, in the other three ranks – vice versa). The battalion commander became the chairman of the Audit council. He chose a speaker from among the captains, a speaker - a secretary. The quartermaster was called upon to play the role of the commissioner of the executive branch. The accused was allowed to choose a defender, or he could be offered by the disciplinary council. At the same time, the defender could be the same one who participated in the meeting of the military council ^{[5, p. 153, 154]}. The functions of the body were fixed in the following provision (art. 51): "it is in the power of the audit council to confirm or cancel the verdict of the military council, commute the punishment or even return the process to the same judges for a more detailed investigation" ^{[5, p. 154]}. The Audit Council was supposed to assess the verdict passed by the military council before its execution. The members of the council could meet for this in a closed room, but the meeting had to be public. The number of spectators should not exceed three times the number of judges. The defense counsel of the defendant and the commissioner of the executive power (on the part of the prosecution) could speak at the council, but the proceedings were conducted in the absence of the defendant himself. After hearing the arguments for and against the verdict, the audience left, the judges began to discuss the decision, which was made by a majority of votes. The decision made through the captain-speaker was transmitted to the military council and was subject to public announcement before the formation of the battalion. Depending on the decision of the audit council, the defendant was either subject to release or was subjected to the punishment contained in the sentence ^{[5, p. 157, 158]}.

It seemed that the Law of July 27, 1799, which laid the foundations for a new military-judicial organization of Switzerland, would have a lasting effect. However, it lasted only a year, which can be attributed to military and political changes in the Helvetic Republic. The republic's militia could not properly resist the onslaught of counter-revolutionary forces, but on September 25-26, 1799, French General A. Massena defeated the Russian troops of General A. M. Rimsky-Korsakov and the Austrian units of General F. von Gotze allied to them in the second battle of Zurich. This forced the Austrians and the troops of Field Marshal A.V. Suvorov, who arrived from Italy, to retreat from Switzerland. The victory of the French saved the Helvetic Republic from defeat and the Austrian occupation, but put it in strong dependence on France. General Bonaparte, who came to power in France at the end of 1799, refused to support the "patriots" party, led by F.S. Lagarpe, and relied on their political opponents - the more moderate "Republicans" party. In January 1800, Lagarp was dismissed, the Executive Directory was abolished, and a temporary Executive Commission was formed instead, which lasted until August. Then the Legislative and Executive Councils were already established as permanent authorities of the republic ^{[6, p. 3-5],[14, p. 125, 127]}.

In the conditions of the cessation of hostilities and the restoration of the armed forces of Helvetia, the new authorities tried to reform the military judicial system again. They stated that the Law of July 27, 1799 was ineffective (it "did not achieve its goal, and experience confirmed its unsatisfactoriness"). Therefore, on November 24, 1800, a new "Law on Military Tribunals of the Troops of the Helvetic Republic" (Loi sur les Tribunaux militaires des troupes de la R?publique Helv?tique) was adopted (signed on December 17 by President of the Executive Council Schmid) ^[6]. It contained 91 articles in its composition. The adopted law preserved the rejection of the use of the "home principle" and the general composition of military courts, which consisted of three links – disciplinary, military and audit councils. However, whereas previously disciplinary councils were created only for each battalion, now they had to be formed both in battalions and in other parts of the Helvetic troops, in each detachment of a company removed at a distance of more than five leagues from headquarters (excluding smaller units). The law specified the creation of military and audit councils in each infantry battalion, but also in artillery and cavalry units. The composition of military vessels was reduced. The disciplinary council at the headquarters included five people (a commander, two captains, a lieutenant and a su-lieutenant), with separate detachments - three people (a squad commander, a lieutenant and a su–lieutenant). The members of the councils were now to be updated every six months. The Military Council, instead of 20 former members, now consisted of 9 people (the chairman, elected by the battalion commander from among the captains, as well as two persons from each rank - captains, lieutenants, sub-lieutenants and sergeants). The members of the council were to be appointed in turn, depending on the length of their stay in the rank (captains – from more to less; lieutenants and sub-lieutenants – vice versa; sergeants were appointed at will by the disciplinary council). At the same time, the term of office for officers was set: "if possible", at least 6 months. The Audit Council instead of 11 members included 7 people (the commander - chairman of the council, two captains, two lieutenants and two sous-lieutenants). They were also appointed in turn, depending on the length of their stay in the rank (captains: from lesser to greater, lieutenants and sub-lieutenants – on the contrary), with a fixed term of office, "as far as possible", at least 6 months. ^{[6, p. 132, 133, 136–138]}. These data allow us to note that the reform was aimed at increasing the proportion of officers and weakening democratic principles in the formation of military justice bodies.

The Law of 1800 also clarified the competence of military courts. The Disciplinary Council had to deal with cases of offenses (d?lits), the punishment for which did not exceed three months in prison, half of which could be on bread and water, or it provided for the demotion of a non-commissioned officer or corporal or full retirement (as can be seen, disciplinary punishments were tightened). The circle of persons subject to the jurisdiction of the disciplinary council was also expanded: now it corresponded to the circle of persons under the jurisdiction of the military council (including non-military, assigned to the troops or escorts; instigators, spies and residents of an occupied enemy country). As before, all military offenses that were not within the competence of the disciplinary council were under the jurisdiction of the Military Council ^{[6, p. 134-137]}. Additionally, the powers of the audit council were clarified: "the audit council has the right to approve the sentence passed by the military council, commute the sentence and even return the process to the same judges when they did not judge in accordance with the laws, or when the procedure was not fully executed and a more detailed investigation was needed" (art. 40) ^{[6, p. 139]}. The new provision on the return of the case for reconsideration in case of non-compliance with the law or incomplete execution of the procedure emphasized the nature of the audit council as a body of cassation of court decisions. The procedural rules in the Law of 1800 have not undergone significant changes, but the reduction in the composition required changing the rules governing the voting of judges when making a decision. In the military council, when four votes were cast in favor of the accused, he was declared innocent and released; with six votes "against", a guilty verdict was passed ^{[6, p. 143]}.

Unlike the previous one, the Law of November 24, 1800 remained in effect for 18 years ^{[1, p. 12]}.

There is no doubt that when creating a new military-judicial law, the Swiss authorities were guided by the experience of neighboring France. The Act of March 31, 1799 even allowed the temporary use of French disciplinary laws in all military tribunals of the Helvetic Republic ^{[4, p. 456]}. The above-mentioned Laws of July 27, 1799 and November 24, 1800 were also based on French law. Moreover, one can see the direct borrowing of whole fragments of the French text in Helvetic acts. Where it was a question of military councils, the Swiss legislator took as a basis the text of the French Law of the 13th Brumaire V of the Republic (November 3, 1796), which introduced permanent military councils ^[2]. The text of the Law of 18 Vendemi?re VI of the Republic (October 9, 1797) on the introduction of permanent audit councils in France was perceived differently: it was used in Swiss acts only to a small extent ^[3]. So the Helvetic revision councils were distinguished by originality, embodying only the general principle of cassation of court decisions, which was also characteristic of French courts.

Even reproducing the entire foreign text, the Swiss legislator could make some amendments or additions at the same time. For example, when listing non-military persons who were with the army or accompanied the troops and were subject to military councils, Swiss laws added another 12th to the 11 items of the list, where women who accompanied the army were mentioned (art. 24 in the Law of 1799 and art. 17 in the Law of 1800) ^{[5, p. 149, 150],[6, p. 135, 136]}. This addition was absent in the French Law of 1796 (art. X) ^[2]. Significant differences can also be seen in the composition of military courts. So, in the French permanent military council there are 7 members, in the Swiss military council, as mentioned above, first 20, then 9 members. The French Permanent Audit Council has 5 members, the Swiss Audit Council – first 11, then 7 members. French laws created permanent compositions for their councils, Swiss, as explained above, recognized their rotation. Thus, despite the considerable compilability of Swiss legislative acts, they also contained elements of their own rulemaking.

In the general composition of the military-judicial system of Switzerland, the reception of the norms of French law looks rather paradoxical. The fact is that at the time of the reforms of 1799 and 1800 in France there was no three-tier system of military courts. At that time, there were only two main types of military judicial bodies in the French Republic - permanent military councils and permanent audit councils. Disciplinary councils existed in France earlier, they were established by the Law of September 15, 1790, then confirmed by the provisions of the Jacobin Decree of the 3rd Pluviosis of the II Republic (January 22, 1794) and the Thermidorian Law of the 2nd additional day of the III Republic (September 18, 1795). But the Law of the 13th Brumaire of the V Republic (November 3, 1796), establishing permanent military councils, simultaneously abolished disciplinary councils (art. XLII) ^{[2],[9, p. 90, 92],[11, p. 90],[13, p. 62, 86]}. So by the time the Soviets were created in Switzerland, this institution had already ceased to be used in France. When comparing disciplinary councils in France and Switzerland, certain differences are revealed. Thus, the French Disciplinary council, by decree of January 22, 1794, was established in a larger military unit than a battalion – in each infantry demi-brigade, each cavalry or artillery regiment. It was to consist of 9 members, including a senior officer, captain, lieutenant, sous-lieutenant, sergeant, corporal and three soldiers or gunners for infantry and artillery, or a senior officer, captain, lieutenant, sous-lieutenant, quartermaster (mar?chal-des-logis), brigadier and three cavalrymen for mounted troops. As you can see, the composition of the disciplinary council in France was a little wider and included even soldiers, which was not the case in Switzerland. However, the very principle of the participation of persons of different military ranks from senior to junior in the disciplinary council was also assimilated in the Helvetic troops. The frequency of updating such a composition: in France – every month, in Switzerland – first every three, then every six months. As for the competence of disciplinary councils, it also differed somewhat in both countries. The Disciplinary Council in France served both to impose disciplinary punishment, and to extend or reduce the punishment imposed in a disciplinary manner by a senior superior against a subordinate, and to consider complaints from subordinates about the actions of their superiors. In Switzerland, such a council was only a sentencing body for minor offenses. The introduction of a three-tier system of military courts and the establishment of disciplinary councils in the Helvetic Republic simultaneously limited the competence of military councils. Whereas in France, the military councils under the Law of 1796 dealt with cases of all military offenses (d?lits militaries), in Switzerland, under the Law of 1800, jurisdiction was divided between military and disciplinary councils. This trait was an important feature of Helvetic military justice in relation to its contemporary French.

In general, the reforms in Switzerland in 1799 and 1800 created a new system of military justice, which was connected only with military organization and no longer depended on the cantonal affiliation of military personnel. The reform of 1799 differed from the reorganization of 1800 by the great radicalism and democracy of the institutions created, which corresponded to the political aspirations of various ruling groups that succeeded each other in the Helvetic Republic leadership. In 1799, the reform was carried out by more radical politicians, "patriots" led by F.-S. Lagarp, in 1800 by more moderate "Republicans". However, both those and others were guided by the experience of building military justice in revolutionary France. As a comparative study of Swiss and French legislative acts showed, the reception of French military judicial law in Helvetia did not mean a complete copy of foreign norms. The main difference of the Swiss military-judicial organization was the preservation of the institution of disciplinary councils, which has already ceased to exist in the French Republic.

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