Botschaft des Bundesrathes an die hohe Bundesversammlung, betreffend die Organisation der Bundesrechtspflege (of 23 May 1874), Bundesblatt 1874 I 1059 ff: (excerpt: p. 1064 f.)
Background
By law, the Federal Supreme Court, as sole supreme court of the Confederation, has its seat in Lausanne and another location in Lucerne. It is noteworthy, first of all, that the seat of the Federal Supreme Court is not in the federal capital of Bern, but rather in Lausanne in French-speaking Western Switzerland, and that the Federal Supreme Court has a second location in Lucerne, in German-speaking Central Switzerland.
The first Federal Constitution of 1848 created a federal court that was not at all times in session. This court convened annually for a regular general meeting in the federal capital of Bern, and on an ad hoc basis at various further locations as necessary by order of the President of the Court. In connection with the creation of legislative powers for the Confederation, increasing the workload of the Federal Supreme Court, the latter was made permanently in session under the Federal Constitution of 1874. This raised the question of where its official seat would be. In many countries, but by no means all, it goes without saying that the seat of the Supreme Court is located in the nation’s capital. Not so in Switzerland. This was due on the one hand to considerations of judicial independence from politics, which became important with the Constitution of 1874 (see Part I A.1), and also out of federalist considerations (see Part I A.4) causing the legislature to place its seat outside the federal capital in another part of the country where a different language is spoken.
While reference was made to the 1787 Constitution of the United States of America of when the Swiss federal nation was formed, the origins of Swiss federalism go back much further. Reflecting Switzerland’s diversity in terms of languages, religious denominations and geography as well as urban/rural differences, Swiss federalism emphasizes a structure that is as decentralized and locally rooted as possible rather than integrating individual states within a federal system as in American-style federalism (https://hls-dhs-dss.ch/de/articles/046249/2009-11-05). This is also expressed in the decentralized distribution of federal institutions, including particularly the federal courts, throughout different parts of the country. In 1874, seven cities applied to be the location of the official seat of the Federal Supreme Court. The Federal Assembly decided in favour of the city of Lausanne in French-speaking Switzerland by a slight margin over Lucerne, in Central Switzerland. It was then Lucerne’s turn when the Supreme Social Security Court of the Swiss Confederation was established in 1917 (see Part I B. 1.2). The judicial reform enacted at the turn of the millennium then represented the final step with the selection of locations for the seats of the newly created federal courts of first instance. The Federal Criminal Court is located in Bellinzona in Italian-speaking Switzerland, while the Federal Administrative Court and the Federal Patent Court are located in German-speaking Eastern Switzerland, in St. Gallen. Throughout the years the federal legislature endeavoured to ensure a well balanced inclusion of all parts of the country and all linguistic regions at the expense of ensuring optimal public accessibility of the courts for people from other parts of the country. The location of the seat of a court has no impact on its rulings. The decentralized distribution of the federal judicial authorities in itself is an expression of federalist Swiss legal culture.
The report of 1874 addresses the considerations that led to the Federal Supreme Court having a permanent seat and being located in Lausanne, away from the federal capital of Bern. It forms part of the explanatory memorandum to the Federal Council’s petition to the Federal Assembly respecting the act implementing the organization and powers of the Federal Supreme Court.
Summary
The Federal Council held the firm view that the official seat of the permanent Federal Supreme Court – the location where federal judges are also supposed to have their residence – should not be in the federal capital of Bern. The decentralization of state organs and authorities, it is argued, is an essential feature of the federal nation, and concentration in one location can only be justified if necessity is demonstrated. While this was considered necessary regarding the legislative and executive powers, for the judicial power it is not. Rather, the independence of the judiciary itself indicates that geographic distancing from the political sphere is appropriate. While the Federal Council refrained from proposing a specific location, it pointed out that all parts of the country should benefit from the new federal political institutions.