Among the governments of contemporary Europe that of the federal republic of Switzerland is unique; and the constitutional experiments which have been, and are being, undertaken by the Swiss people give the nation an importance for the student of politics altogether out of proportion to its size and population. Nowhere in our day have been put to the test in more thoroughgoing fashion the principles of federalism, of a plural executive, of proportional representation, of the initiative and the referendum, and, it may be said, of radical democracy in general. The results attained within a sphere so restricted, and under conditions of race, religion, and historical tradition so unusual, may or may not be accepted as evidence of the universal practicability of these principles. At the least, they are of acknowledged interest.
447. The Confederation in the Eighteenth Century.—In the form in which it exists to-day the Swiss Confederation is a product of the middle and later nineteenth century. The origins of it, however, are to be traced to a very much remoter period. Beginning with the alliance of the three forest cantons of Uri, Schwyz, and Unterwalden in 1291,[579]the Confederation was built up through the gradual creation ofnew cantons, the splitting of old ones, the reorganization of dependent territories, and the development of a federal governmental system, superimposed upon the constitutional arrangements of the affiliated states. In 1789, when the French Directory, at the instigation of Napoleon, took it upon itself to revolutionize Switzerland, the Confederation consisted of thirteen cantons.[580]With it were associated certainZugewandte Orte, or allied districts, some of which eventually were erected into cantons, together with a number ofGemeine Vogteien, or subject territories. The Confederation comprised simply aStaatenbund, or league of essentially autonomous states. Its only organ of common action was a diet, in which each canton had a right to one vote. Save in matters of a purely advisory nature, the powers of this diet were meager indeed. Of the cantons, some were moderately democratic; others were highly aristocratic. The political institutions of all were, in large measure, such as had survived from the Middle Ages.
448. The Helvetic Republic.—The result of the French intervention of 1798 was that, almost instantly, the loosely organized Swiss confederation was converted into a centralized republic, tributary to France, and under a constitution which was substantially a reproduction of the French instrument of 1795. Under the terms of this constitution the territories of the Confederation were split up into twenty-three administrative districts, corresponding in but rare instances to the earlier cantons,[581]a uniform Swiss citizenship was established, a common suffrage was introduced, freedom of speech and of the press was guaranteed, and unity was provided for in the coinage, the postal service, and the penal law. A government of ample powers was set up, with its seat at Lucerne, its organs comprising a Grand Council of deputies elected indirectly in the cantons in proportion to population, a Senate of four delegates from each canton (together with retiring members of the Directory), and an Executive Directory of five members, withwhom were associated, for administrative purposes, four appointed heads of departments. The French intervention was ruthless and the governmental order thrust upon the Swiss had no root in national tradition or interest. The episode served, however, to break the shackles of mediævalism and thus to contribute to the eventual establishment of a modernized nationality. July 2, 1802, following a series of grave civil disturbances, the constitution of 1798 was superseded by a new but similar instrument, which was imposed by force despite an adverse popular vote.[582]
449. The Act of Mediation, 1803.—Under the circumstances reaction was inevitable, and the triumph of the "federalists" came more speedily than might have been expected. In deference to preponderating sentiment in the territories, Napoleon, February 19, 1803, promulgated the memorable Act of Mediation, whereby he authorized the re-establishment of a political system that was essentially federal.[583]Once again there was set up a loose confederation, under a constitution which, however, provided for a central government that was distinctly more substantial than that which had prevailed prior to 1798. The right, for example, to make war and to conclude treaties, withdrawn entirely from the individual cantons, was conferred specifically upon the federal Diet. To the thirteen original cantons were added six new ones—Aargau, Thurgau, Vaud, Ticino, and the Grisons (St. Gall and Graubünden)—the first four formed from districts which under the old régime had occupied the status of subordinate territory, the last two having been formerly "allied states." In the Diet six cantons (Bern, Zürich, Vaud, Aargau, St. Gall, and Graubünden) which had a population in excess of 100,000 were given each two votes. All others retained a right to but one. The executive authority of the Confederation was vested by turns in the six cantons of Bern, Freiburg, Lucerne, Zürich, Basel and Solothurn, the "directorial" canton being known as theVorort, and its chief magistrate as theLandammann, of the Confederation. The principle of centralization was in large part abandoned; but the equality of civil rights which the French had introduced was not allowed by Napoleon to be molested. It may be observed further that by the accession of the newly created cantons, containing large bodies of people who spoke French, Italian, and Romansch, the leagueceased to be so predominantly German as theretofore it had been.[584]
450. The Pact of 1815 and the Revival of Particularism.—The Act of Mediation, on the whole not unacceptable to the majority of the Swiss people, save in that it had been imposed by a foreign power, continued in operation until 1813. During the decade Switzerland was essentially tributary to France. With the fall of Napoleon the situation was altered, and December 29, 1813, fourteen of the cantons, through their representatives assembled at Zürich, declared the instrument to be no longer in effect. Led by Bern, eight of the older cantons determined upon a return to the system in operation prior to 1798, involving the reduction of the six most recently created cantons to their former inferior status. Inspired by the Tsar Alexander I., however, the majority of the Allies refused to approve this programme, and, after the Congress of Vienna had arranged for the admission to the confederacy of the three allied districts of Valais, Geneva, and Neuchâtel, there was worked out, by the Swiss themselves, a constitution known as the "Federal Pact," which was formally approved by the twenty-two cantons at Zürich, August 7, 1815.[585]
By this instrument the ties which bound the federation together were still further relaxed. The cantons regained almost the measure of independence which they had possessed prior to the French intervention. The Diet was maintained, on the basis now of one vote for each canton, regardless of size or population.[586]It possessed some powers,—for example, that of declaring war or peace, with the consent of three-fourths of the cantons,—but there were virtually no means by which the body could enforce the decrees which it enacted. The executive authority of the Confederation was vested in the governments of the three cantons of Zürich, Lucerne, and Bern, which, it was stipulated, should serve in rotation, each during a period of two years. Practically all of the guarantees of common citizenship, religious toleration, and individual liberty which the French had introduced were rescinded, and during the decade following 1815 the trend in most of the more important cantons was not only particularistic but also distinctlyreactionary. The smaller and poorer ones retained largely their democratic institutions, especially their Landesgemeinden, or primary assemblies, but it was only after 1830, and in some measure under the stimulus of the revolutionary movements of that year, that the majority of the cantonal governments underwent that regeneration in respect to the suffrage and the status of the individual which lay behind the transforming movements of 1848.[587]
451. Attempted Constitutional Revision: the Sonderbund.—The period between 1830 and 1848 was marked by not fewer than thirty revisions of cantonal constitutions, all in the direction of broader democracy.[588]The purposes of the liberal leaders of the day, however, extended beyond the democratization of the individual cantons. The thing at which they aimed ultimately was the establishment, through the strengthening of the Confederation, of a more effective nationality. On motion of the canton of Thurgau, a committee was authorized in 1832 to draft a revision of the Pact. The instrument which resulted preserved the federal character of the nation, but provided for a permanent federal executive, a federal court of justice, and the centralization of the customs, postal service, coinage, and military instruction. By a narrow majority this project, in 1833, was defeated. It was too radical to be acceptable to the conservatives, and not sufficiently so to please the advanced liberals.
The obstacles to be overcome—native conservatism, intercantonal jealousy, and ecclesiastical heterogeneity—were tremendous. More than once the Confederation seemed on the point of disruption. In September, 1843, the seven Catholic cantons[589]entered into an alliance, known as the Sonderbund, for the purpose of defending their peculiar interests, and especially of circumventing any reorganization of the confederacy which should involve the lessening of Catholic privilege; and, in December, 1845, this affiliation was converted into an armed league. In July, 1847, the Diet, in session at Bern, decreed the dissolution of the Sonderbund; but the recalcitrant cantons refused to abandon the course upon which they had entered, and it was only after an eighteen-day armed conflict that the obstructive league was suppressed.[590]
452.The Constitution of 1848 and the Revision of 1874.—The war was worth while, because the crisis which it precipitated afforded the liberals an opportunity to bring about the adoption of a wholly new constitution. For a time the outlook was darkened by the possibility of foreign intervention, but by the outbreak of the revolution of 1848 at Paris that danger was effectually removed. The upshot was that, through the agency of a committee of fourteen, constituted, in fact, February 17, 1848—one week prior to the overthrow of Louis Philippe—the nationalists proceeded to incorporate freely the reforms they desired in a constitutionalprojet, and this instrument the Diet forthwith revised slightly and placed before the people for acceptance. By a vote of 15-1/2 cantons (with a population of 1,900,000) to 6-1/2 (with a population of 290,000), the new constitution was approved.
The adoption of the constitution of 1848, ensuring a modified revival of the governmental régime of 1798-1803, comprised a distinct victory for the Radical, or Centralist, party. During the two decades which followed this party maintained complete control of the federal government, and in 1872 it brought forward the draft of a new constitution whose centralizing tendencies were still more pronounced. By popular vote this proffered constitution was rejected. Another draft, however, was prepared and, April 19, 1874, by a vote of 14-1/2 cantons against 7-1/2, it was adopted. The popular vote was 340,149 to 198,013. Amended subsequently upon a large number of occasions,[591]the instrument of 1874 is the fundamental law of the Swiss Confederation to-day, although it is essential to observe that it represents only a revision of the constitution of 1848. As a recent writer has said, "the one region on the continent to which the storms of 1848 brought immediate advantage was Switzerland, for to them it owes its transformation into a well-organized federal state."[592]
453. Dominance of the Federal Principle.—In its preamble the Swiss constitution proclaims its object to be "to confirm the alliance of the Confederation and to maintain and to promote the unity, strength, and honor of the Swiss nation;" and in its second article it affirms that it is the purpose of the Confederation "to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the confederates, and to foster their common welfare."[593]The use of the term "nation" (which, curiously, nowhere occurs in the constitution of the United States) might seem to imply a considerably larger measure of centralization than in fact exists. For although the effect of the constitution of 1848 was to convert a loosely organized league into a firmly constructed state—to transform, as the Germans would say, aStaatenbundinto aBundesstaat—the measure of consolidation attained fell, and still falls, somewhat short of that which has been realized in the United States, and even in Germany. There are in the Confederation twenty-two cantons, of which three (Unterwalden, Basel, and Appenzell) have split into half-cantons; so that there are really twenty-five political units, each with its own government, its own laws, and its own political conditions. In territorial extent these cantons vary all the way from 2,773 to 14 square miles, and in population, from642,744 to 13,796;[594]and the primary fact of the Swiss governmental system is the remarkable measure of political independence which these divisions, small as well as large, possess.
454. The Sovereignty of the Cantons.—In the United States there was throughout a prolonged period a fundamental difference of opinion relative to the sovereignty of the individual states composing the Union. The Constitution contains no explicit affirmation upon the subject, and views maintained by nationalists and state right's advocates alike have always been determined of necessity by interpretation of history and of public law. In Switzerland, on the contrary, there is, upon the main issue, no room for doubt. "The cantons are sovereign," asserts the constitution, "so far as their sovereignty is not limited by the federal constitution; and, as such, they exercise all the rights which are not delegated to the federal government."[595]As in the United States, the federal government is restricted to the exercise of powers that are delegated, while the federated states are free to exercise any that are not delegated exclusively to the nation, nor prohibited to the states. In the Swiss constitution, however, the delimitation of powers, especially those of a legislative character, is so much more minute than in the American instrument that comparatively little room is left for difference of opinion as to what is and what is not "delegated."[596]
455. Federal Control of the Cantons.—After the analogy of the United States, where the nation guarantees to each of the states a republican form of government, the Swiss Confederation guarantees to the cantons their territory, their sovereignty (within the limits fixed by the fundamental law), their constitutions, the liberty and rights of their people, and the privileges and powers which the people have conferred upon those in authority. The cantons are empowered, and indeed required, to call upon the Confederation for the guaranty of their constitutions, and it is stipulated that such guaranty shall be accorded in all instances where it can be shown that the constitution inquestion contains nothing contrary to the provisions of the federal constitution, that it assures the exercise of political rights according to republican forms, that it has been ratified by the people, and that it may be amended at any time by a majority of the citizens.[597]A cantonal constitution which has not been accorded the assent of the two houses of the federal assembly is inoperative; and the same thing is true of even the minutest amendment. The control of the federal government over the constitutional systems of the states is thus more immediate, if not more effective, than in the United States, where, after a state has been once admitted to the Union, the federal power can reach its constitutional arrangements only through the agency of the courts. Finally, in the event of insurrection the government of the Confederation possesses a right to intervene in the affairs of a canton, with or without a request for such intervention by the constituted cantonal authorities. This right was exercised very effectively upon the occasion of the Ticino disorders of 1889-1890.
Like the American states, but unlike the German, the Swiss cantons enjoy a complete equality of status and of rights. They are forbidden to enter into alliances or treaties of a political nature among themselves, though they are permitted to conclude intercantonal conventions upon legislative, administrative, and judicial subjects, provided such conventions, upon inspection by the federal officials, are found to be devoid of stipulations contrary to the federal constitution or inimical to the rights of any canton. In the event of disputes between cantons, the questions at issue are required to be submitted to the federal government for decision, and the individual canton must refrain absolutely from the use of violence, and even from military preparation.
456. Powers Vested Exclusively in the Confederation.—Within the text of the constitution the division of powers between the federal and the cantonal governments is minute, though far from systematic. The clearest conception of the existing arrangements may perhaps be had by observing that provision is made for three principal categories of powers: (1) those that the Confederation has an exclusive right to exercise, some being merely permissive, others obligatory; (2) those which the Confederation is required, or allowed, to exercise in concurrence with the cantons; and (3) those which are not permitted to be exercised at all.
Of powers committed absolutely to the Confederation, the most important are those of declaring war, making peace, and concluding alliances and treaties with foreign powers, especially treaties relating totariffs and commerce.[598]The Confederation is forbidden to maintain a standing army, and no canton, without federal permission, may maintain a force numbering more than three hundred men. None the less, by law of 1907, every male Swiss citizen between the ages of twenty and forty-eight is liable to military service, and the constitution vests not only the sole right of declaring war but also the organization and control of the national forces in the Confederation.[599]The neutralized status with which, by international agreement, Switzerland has been vested renders a war in which the nation should be involved, other, at any rate, than a civil contest, extremely improbable.[600]Within the domain of international relations, the cantons retain the right to conclude treaties with foreign powers respecting border and police relations and the administration of public property. All remaining phases of diplomatic intercourse are confided exclusively to the Confederation. Other functions vested in the federal authorities alone include the control of the postal service and of telegraphs; the coining of money and the maintenance of a monetary system; the issue of bank notes and of other forms of paper money; the fixing of standards of weights and measures; the maintenance of a monopoly of the manufacture and sale of gunpowder; and the enactment of supplementary legislation relating to domicile and citizenship.
457. Concurrent Powers and Powers Denied the Confederation.—Among powers which are intrusted to the Confederation, to be exercised in more or less close conjunction with the cantonal governments, are: (1) the making of provision for public education, the cantons maintaining a system of compulsory primary instruction, the Confederation subsidizing educational establishments of higher rank;[601](2) the regulation of child labor, industrial conditions, emigration, and insurance; (3) the maintenance of highways; (4) the regulation of the press; and (5) the preservation of public order and of peace between members of different religious organizations.
Several explicit prohibitions rest upon the authorities of both Confederation and cantons. No treaties may be concluded whereby it is agreed to furnish troops to other countries. No canton may expel from its own territory one of its citizens, or deprive him of his rights. No person may be compelled to become a member of a religious society, to receive religious instruction, to perform any religious act, or to incurpenalty of any sort by reason of his religious opinions.[602]No death penalty may be pronounced for a political offense. The prohibitions, in short, which the constitution imposes upon federal and cantonal authorities comprise essentially a bill of rights, comparable with any to be found in a contemporary European constitution.
458. General Aspects.—The fundamental thing to be observed is that under the Swiss constitution, as under the German, the legislative powers of the federal government are comprehensive, while the executive authority, and especially the executive machinery, is meager. The Confederation has power to legislate upon many subjects—military service, the construction and operation of railroads, education, labor, taxation, monopolies, insurance, commerce, coinage, banking, citizenship, civil rights, bankruptcy, criminal law, and numerous other things. In respect to taxation the federal government possesses less power than does that of Germany, and distinctly less than does that of the United States, for this power is confined to the single field of customs legislation;[603]but in virtually every other direction the legislative competence of the Swiss central authorities is more extended. It is worth observing, furthermore, that the centralizing tendency since 1874 has found expression in a number of constitutional amendments whose effect has been materially to enlarge the domain covered by federal legislation. Among these may be mentioned the amendment of July 11, 1897, granting the Confederation power to enact laws concerning the traffic in food products, that of November 13, 1898, extending the federal legislative power over the domain of civil and criminal law, that of July 5, 1908, conferring upon the Confederation power to enact uniform regulations respecting the arts and trades (thus bringing substantially the entire domain of industrial legislation within the province of the Confederation), and that of October 25, 1908, placing the utilization of water-power under the supervision of the central authorities.
Withinthe domain of administrative functions, the principle is rather that of committing to the federal agencies a minimum of authority. Beyond the management of foreign relations, the administration of the customs, the postal, and the telegraph services, and of the alcohol and powder monopolies, and the control of the arsenals and of the army when in the field, the federal government exercises directly but inconsiderable executive authority. It is only in relation to the cantonal governments that its powers of an administrative nature are large; and even there they are only supervisory. In a number of highly important matters the constitution leaves to the canton the right to make and enforce law, at the same time committing to the Confederation the right to inspect, and even to enforce, the execution of such measures. Thus it is stipulated that the cantons shall provide for primary instruction which shall be compulsory, non-sectarian, and free; and that "the Confederation shall take the necessary measures against such cantons as do not fulfill these duties."[604]Not only, therefore, does the federal government enforce federal law, through its own officials or through those of the canton; it supervises the enactment and enforcement of measures which the constitution enjoins upon the cantons.[605]
459. Variation of Cantonal Institutions.—In its fundamental features the federal government of Switzerland represents largely an adaptation of the political principles and organs most commonly prevailing within the individual cantons; from which it follows that an understanding of the mechanism of the federation is conditioned upon an acquaintance with that of the canton.[606]Anything, however, in the nature of a description which will apply to the governmental systems of all of the twenty-five cantons and half-cantons is impossible. Variation among them, in both structure and procedure, is at least as common and as wide as among the governments of the American commonwealths. Each canton has its own constitution, and the Confederation is bound to guarantee the maintenance of this instrument regardless of the provisions which it may contain, provided only, as has been pointed out, thatthere is in it nothing that is contrary to the federal constitution, that it establishes a republican system of government, and that it has been ratified by the people and may be amended upon demand of a majority. The constitutions of the cantons are amended easily and frequently; but while it may be affirmed that, in consequence of their flexibility, they tend toward more rather than toward less uniformity, the diversity that survives among them still proclaims strikingly their separatist origin and character.
The point at which the governments of the cantons differ most widely is in respect to arrangements for the exercise of the functions of legislation. Taking the nature of the legislative process as a basis of division, there may be said to be two classes of cantonal governments. One comprises those in which the ultimate public powers are vested in a Landesgemeinde, or primary assembly of citizens; the other, those in which such powers have been committed to a body of elected representatives. The second class, as will appear, falls again into two groups, i.e., those in which the employment of the referendum is obligatory and those in which it is merely optional.
460. The Landesgemeinde.—Prior to the French intervention of 1798 there were in the Confederation no fewer than eleven cantons whose government was of the Landesgemeinde type. To-day there are but six cantons and half-cantons—those, namely, of Uri, Glarus, the two Unterwaldens, and the two Appenzells. Under varying circumstances, but principally by reason of the increasingly unwieldy character of the Landesgemeinde as population has grown, the rest have gone over to the representative system. All of those in which the institution survives are small in area and are situated in the more sparsely populated mountain districts where conditions of living are primitive and where there is little occasion for governmental elaborateness.[607]
Nominally, the Landesgemeinde is an assembly composed of all male citizens of the canton who have attained their majority. Actually, it is a gathering of those who are able, or disposed, to be present. The assembly meets regularly once a year, in April or May, at a centrally located place within the canton, and usually in an open meadow. When necessity arises, there may be convened a special session. With themen come ordinarily the women and children, and the occasion partakes of the character of a picturesque, even if solemn and ceremonious, holiday. Under the presidency of the Landammann, or chief executive of the canton, the assembly passes with despatch upon whatsoever proposals may be laid before it by the Landrath, or Greater Council. In the larger assemblies there is no privilege of debate. Measures are simply adopted or rejected. In the smaller gatherings, however, it is still possible to preserve some restricted privilege of discussion. Unless a secret ballot is specifically demanded, voting is by show of hands. Theoretically, any citizen possesses the right to initiate propositions. In practice, however, virtually all measures emanate from the Greater Council, and if the private citizen wishes to bring forward a proposal he will be expected to do so by suggesting it to the Council rather than by introducing it personally in the assembly. The competence of the Landesgemeinde varies somewhat from canton to canton, but in all cases it is very comprehensive. The assembly authorizes the revision of the constitution, enacts all laws, levies direct taxes, grants public privileges, establishes offices, and elects all executive and judicial officials of the canton. Directly or indirectly, it discharges, indeed, all of the fundamental functions of government. It is the sovereign organ of a democracy as thoroughgoing as any the world has ever known.[608]
461. The Greater Council.—In every canton, whether or not of the Landesgemeinde type, there is a popularly elected representative body, the Greater Council, which performs a larger or smaller service in the process of legislation. This body is variously known as the Grosser Rath, the Landrath, and the Kantonsrath. In the cantons that maintain the Landesgemeinde the functions of the Greater Council are subsidiary. It chooses minor officials, audits accounts, and passes unimportant ordinances; but its principal business is the preparation of measures for the consideration of the Landesgemeinde. In the cantons, however, in which the Landesgemeinde does not exist, the Greater Council is a more important institution, for there it comprises the only law-making body which is ever brought together at one time or place. Where there exists the obligatory referendum, i.e., where all legislative measures are submitted to a direct popular vote, the decisions of the Council are but provisional. But where the referendum is optional the Council acquires in many matters the substance of final authority.
Members of the Council are elected regularly in districts by direct popular vote. The size of constituencies varies from 188 people in Obwalden and 250 in Inner Appenzell to 1,500 in St. Gall and Zürich and2,500 in Bern. The electors include all males who have completed their twentieth year and who are in possession of full civil rights. The term of members varies from one to six years, but is generally three or four. There are, as a rule, two meetings annually, in some cantons a larger number. Beginning with the canton of Ticino in 1891, there has been introduced into the governmental systems of several cantons and of the two cities of Bern and Basel the principle of proportional representation. The details vary, but the general principle is that each political party shall be entitled to seats in the Greater Council in the closest practicable proportion that the party vote bears to the entire vote cast within the canton. Those cantons where this principle is in operation are laid out in districts, each of which is entitled to two or more representatives, and the individual elector, while forbidden to cast more than one vote for a given candidate, casts a number of votes corresponding to the number of seats to be filled.[609]
462. The Referendum: Origins and Operation.—The most interesting if not the most characteristic, of Swiss political institutions is the referendum. The origins of the referendum in Switzerland may be traced to a period at least as early as the sixteenth century. The principle was applied first of all in the complicated governments of two territories—the Grisons and the Valais—which have since become cantons but which at the time mentioned were districts merely affiliated with the Confederation. In the later sixteenth century there were traces of the same principle in Bern and in Zürich. And, in truth, the political arrangements of the early Confederation involved the employment of a device which at least closely resembled the referendum. Delegates sent by the cantons to the Diet were commissioned onlyad audiendum et referendum; that is to say, they were authorized, not to agree finally to proposals, but simply to hear them and to refer them to the cantonal governments for ultimate decision.
In its present form, however, the Swiss referendum originated in the canton of St. Gall in 1830. It is distinctively a nineteenth century creation and is to be regarded as a product of the political philosophy ofRousseau, the fundamental tenet of which was that laws ought to be enacted, not through representatives, but by the people directly.[610]The principle of the referendum may be applied in two essentially distinct directions, i.e., to constitutions and constitutional amendments and to ordinary laws. The referendum as applied to constitutional instruments exists to-day in every one of the Swiss cantons.[611]It is in no sense, however, peculiar to Switzerland. The same principle obtains in several English-speaking countries, as well as upon occasion elsewhere. The referendum as applied to ordinary laws, on the other hand, is distinctively Swiss. In our own day it is being brought into use in certain of the American commonwealths and elsewhere, but it is Swiss in origin and spirit. Inaugurated in part to supply the need created by a defective system of representation and in part in deference to advanced democratic theory, the referendum for ordinary laws exists to-day in every canton of Switzerland save only that of Freiburg. In some cantons the referendum is obligatory, in others it is "facultative," or optional. Where the referendum is obligatory every legislative measure must be referred to popular vote; where it is optional, a measure is referred only upon demand of a specified number or proportion of voters. A petition calling for a referendum must be presented to the executive council of the canton, as a rule, within thirty days after the enactment of the measure upon which it is proposed that a vote be taken. The number of signers required to make the petition effective varies from 500 in Zug to 6,000 in St. Gall. Likewise, the proportion of voters which is competent to reject a measure is variable. In some cantons a majority of all enfranchised citizens is required; in others, a simple majority of those actually voting upon the proposition in hand. In the event of popular rejection of a measure which the cantonal legislature has passed, the executive council gives the proper notice to the legislature, which thereupon pronounces the measure void.[612]
463.The Initiative.—The complement of the referendum is the initiative. Through the exercise of the one the people may prevent the taking effect of a law or a constitutional amendment to which they object. Through the exercise of the other they may not merely bring desired measures to the attention of the legislature; they may secure the enactment of such measures despite the indifference or opposition of the legislative body. In current political discussion, and in their actual operation, the two are likely to be closely associated. They are, however, quite distinct, as is illustrated by the fact that the earliest adoptions of the initiative in Switzerland occurred in cantons (Vaud in 1845 and Aargau in 1852) in which as yet the referendum did not exist. Among the Swiss cantons the right of popular legislative initiative is now all but universal. It has been established in all of the cantons save Freiburg, Lucerne, and Valais. As a rule, measures may be proposed by the same proportion of voters as is competent to overthrow a measure referred from the legislature; and any measure proposed by the requisite number of voters must be taken under consideration by the legislature within a specified period. If the legislature desires to prepare a counter-project to be submitted to the voters along with the popularly initiated proposition, it may do so. But the original proposal must, in any case, go before the people, accompanied by the legislature's opinion upon it; and their verdict is decisive.[613]
464. The Council of State.—Executive authority within the canton is vested regularly in an administrative council, variously designated as a Regierungsrath, a Standeskommission, or a Conseil d'État. The Council of State (employing this phrase to designate each body of the kind, however named) consists of from five to thirteen members, serving for from one to five years. In more than half of the cantons the members are chosen by popular vote; in the rest, they are elected by the Greater Council, or legislature. By the Council of State (in a few instances by the legislature) is chosen a chairman, or president, known in the German cantons as the Landammann.[614]The office of Landammann is oneof dignity and honor, at least locally, but it is not one of large authority. The Landammann is the chief spokesman of the canton, but legally his status is scarcely superior to that of his fellow councillors. The functions of the Council embrace the execution of the laws, the preservation of order, the drawing up of fiscal statements, the drafting of proposed legislation, the rendering of decisions in cases on appeal, and, in general, the safeguarding of the interests of the canton. For purposes of convenience the functions of the Council are divided among departments, to each of which one of the councillors is assigned. All acts, however, are performed in the name of the Council as a whole. In those cantons which have full-fledged legislative chambers councillors may attend sessions and speak, though as a rule they may not vote.
465. Local Administration.—For purposes of administration all cantons, save a few of the smaller ones, are divided into districts (187 in the aggregate), at the head of each of which is placed a prefect or Bezirksammann. This official, whether chosen by the Council of State, by the Greater Council, or even by the people of the district, is in every sense a representative of the cantonal government. Sometimes he is assisted by a Bezirksrath, or district council; frequently he is not. In Schwyz there is a Bezirksgemeinde, or popular assembly, in each of the six districts, but this is wholly exceptional.
Each canton is built up of communes, or Gemeinden, and these communes, 3,164 in number, comprise the most deeply rooted political units of the country. Legally, each is composed of all male Swiss citizens over twenty years of age resident within the communal bounds during a period of at least three months. The meeting of these persons is known as the Gemeindeversammlung, or the assemblée générale. By it are chosen an executive council (the Gemeinderath or conseil municipal) and a mayor (Gemeindepräsident). A principle adhered to by the cantonal governments generally is that in the work of local administration the largest possible use shall be made of the mayors of towns, the headmen of villages, and other minor local dignitaries.[615]
466. Justice.—Each canton has a judicial system which is essentially complete within itself. Judges are elected by the people. The hierarchy of civil tribunals—the Vermittler, or justice of the peace, the Bezirksgericht, or district court, and the Kantonsgericht—is paralleled by a hierarchy of courts for the trial of criminal cases, a special committee or chamber of the Kantonsgericht serving as the criminal court of last resort. Only in few and wholly exceptional instances may appeal be carried from a cantonal to a federal tribunal.
467. The Federal Council: the President.—At the framing of the Swiss constitution, as at that of the American, there arose the question of a single or a plural executive. In the United States the disadvantages assumed to be inherent in an executive which should consist of a number of persons who were neither individually responsible nor likely to be altogether harmonious determined a decision in favor of a single president. In Switzerland, on the other hand, the cantonal tradition of a collegiate executive, combined with an exaggerated fear of the concentration of power, determined resort to the other alternative. There is a president of the Swiss Confederation. But, as will appear, his status is altogether different from that of the President of the United States, and likewise from that of the President of France. The Swiss executive consists rather of a Bundesrath, or Federal Council, in which the President is little more than chairman.
"The supreme directive and executive authority of the Confederation," says the constitution, "shall be exercised by a Federal Council, composed of seven members."[616]The members of the Federal Council are elected by the Federal Assembly, i.e., the National Council and the Council of the States in joint session, from among all citizens eligible to the National Council, or popular legislative body, with the condition simply that not more than one member may be chosen from the same canton. Nominally, the term of members is three years; practically, it is variable, for whenever the National Council is dissolved prior to the expiration of its triennial period the new Assembly proceeds forthwith to choose a new Federal Council. Two officials, designated respectively as President of the Confederation and Vice-President of the Federal Council, are elected annually by the Assembly from among the seven members of the Council. A retiring president may not be elected president or vice-president for the succeeding year; nor may any member occupy the vice-presidency during two consecutive years. By custom the vice-presidentregularly succeeds to the presidency. The function of the President, as such, is simply that of presiding over the deliberations of the Council. He has no more power than any one of his six colleagues. Like each of them, he assumes personal direction of some one of the principal executive departments.[617]The only peculiarity of his status is that he performs the ceremonial duties connected with the titular headship of the state and draws a salary of 13,500 francs instead of the 12,000 drawn by each of the other councillors. He is in no sense a "chief executive."
468. The Executive Departments.—The business of the Council is divided among the seven departments of Foreign Affairs, Interior, Justice and Police, Military Affairs, Imposts and Finance, Posts and Railways, and Commerce, Industry, and Agriculture. Each department is presided over by a member of the Council, and to each is assigned from time to time, by the President, such subjects for consideration as properly fall within its domain. It is stipulated by the constitution, however, that this distribution shall be made for the purpose only of facilitating the examination and despatch of business. All decisions are required to emanate from the Council as a body.[618]Ordinarily a councillor remains at the head of a department through a considerable number of years,[619]and it may be added that, by reason of an increase in the aggregate volume of governmental business, the departmental head enjoys to-day a larger measure of independence than formerly. A quorum of the Council consists of four members, and no member may absent himself from a session without excuse. Except in elections, voting isviva voce, and an abstract of proceedings is published regularly in the official gazette of the Republic.
469. Actual Character of the Council.—The Federal Council, although at certain points resembling a cabinet, is not a cabinet, and no such thing as cabinet government, or a parliamentary system, can be said to exist in Switzerland. The Council does, it is true, prepare measures and lay them before the Assembly. Its members even appear on the floor of the two chambers and defend these measures. But the councillors are not, and may not be, members of the Assembly; they do not, of necessity, represent a common political party, faith, or programme, they are not necessarily agreed among themselves upon the merits or demeritsof a particular legislative proposal; and if overruled by a majority of the Assembly they do not so much as think of retiring from office, for each member has been elected by a separate ballot for a fixed term.[620]In other words, the Council is essentially what Swiss writers have themselves denominated it, i.e., an executive committee of the Federal Assembly. It possesses a large measure of solidarity, but only for the purposes of routine business. Quite superior to it in every way—so much so that even its most ordinary administrative measures may be set aside—is the Assembly, as against which the Council possesses not a shred of constitutional prerogative. In the Assembly is vested ultimate authority, and in the event of a clash of policies what the Assembly orders the Council performs. Between the executive and the legislative branches of the government the relation is quite as close as it is in a parliamentary system, but the relation is of a totally different sort.[621]
470. The Council's Functions.—The functions of the Council are at the same time executive, legislative, and judicial. On the executive side it is the duty of the body to "execute the laws and resolutions of the Confederation and the judgments of the Federal Court"; to watch over the external interests of the Confederation and to conduct foreign relations; to safeguard the welfare, external and internal, of the state; to make such appointments as are not intrusted to any other agency; to administer the finances of the Confederation, introduce the budget, and submit accounts of receipts and expenses; to supervise the conduct of all officers and employees of the Confederation; to enforce the observance of the federal constitution and the guaranty of the cantonal constitutions; and to manage the federal military establishment. In respect to legislation it is made the duty of the Council to introduce bills or resolutions into the Federal Assembly and to give its opinion upon the proposals submitted to it by the chambers or by the cantons; also to submit to the Assembly at each regular session an account of its own administration, together with a report upon the internal conditions and the foreign relations of the state.[622]The Council possesses no veto upon the Assembly's measures. The judicial functions of the Council are such as arise from the fact that there are in Switzerland noadministrative courts, so that the varied kinds of administrative cases which have been withheld from the jurisdiction of the Federal Tribunal are in practice dealt with directly by the Federal Council, with appeal, as a rule, to the Assembly.[623]
With specific reservation of the sovereign rights of the people and of the cantons, the constitution vests the exercise of the supreme authority of the Confederation in the Bundesversammlung, or Federal Assembly. Unlike the cantonal legislatures, the Federal Assembly consists of two houses—a Nationalrath, or National Council, and a Ständerath, or Council of the States.[624]The one comprises essentially a house of representatives; the other, a senate. The adoption, in the constitution of 1848, of the hitherto untried bicameral principle came about as a compromise between conflicting demands of the same sort that were voiced in the Philadelphia convention of 1787—the demand, that is, of the smaller federated units for an equality of political power and that of the larger ones for a proportioning of such power to population.
471. The National Council: Composition and Organization.—The National Council is composed of deputies chosen at a general election, for a term of three years, by direct manhood suffrage. The constitution stipulates that there shall be one representative for every 20,000 inhabitants, or major fraction thereof, and a reapportionment is made consequent upon each decennial census. The electoral districts are so laid out that no one comprises portions of different cantons; but they are of varying sizes and are entitled to unequal numbers of representatives, according to their population. Within the district all representatives, if there are more than one, are chosen on a general ticket, and the individual elector has a right to vote for a number of candidates equal to the number of seats to be filled. The quota of representatives falling to the various cantons under this arrangement varies from one in Uri and in Zug to twenty-two in Zürich and twenty-nine in Bern. Every canton and each of the six half-cantons is entitled to at least one deputy. The total number in 1911 was 189. The electorateconsists of all male Swiss who have attained their twentieth year and who are in possession of the franchise within their respective cantons. The establishment of electoral districts, as well as the regulation of the conduct of federal elections, has been accomplished, under provision of the constitution, by federal statute. Voting is in all cases by secret ballot, and elections take place always on the same day (the last Sunday in October) throughout the entire country. An absolute majority of the votes cast is necessary for election, save that, following two unsuccessful attempts to procure such a majority within a district, at the third trial a simple plurality is sufficient. Except that no member of the clergy may be chosen, every citizen in possession of the federal franchise is eligible to a seat in the National Council.[625]Members receive a small salary, which is proportioned to days of actual attendance and paid out of the federal treasury.
At each regular or extraordinary session the National Council chooses from among its members a president, a vice-president, and four tellers, under the provision, however, that a member who during a regular session has held the office of president is ineligible either as president or vice-president at the ensuing regular session, and that the same member may not be vice-president during two consecutive regular sessions. In all elections within the National Council the president participates as any other member; in legislative matters he possesses a vote only in the event of a tie. The president, vice-president, and tellers together comprise the "bureau" of the Council, by which most of the committees are nominated, votes are counted, and routine business is transacted.[626]
472. The Council of the States: Composition and Status.—Superficially, the Swiss Council of the States resembles the American Senate, and it is commonly understood that the framers of the constitution of 1848 created the institution not merely by reason of an inevitable tendency to perpetuate in some measure the purely federal features of the old Diet, but also in consequence of a deliberate purpose to set up a legislative body which should fulfill essentially those complementary and restraining functions which in the United States were assigned to the upper chamber. In point of fact, however, the Swiss Council has little in common with its American counterpart. It consists of forty-four members, two chosen within each canton; and to this extent it indeed resembles the Senate. The manner of election and the qualifications of members, however, as well as tenure of office and the arrangements made for remuneration, are not regulated, as aresimilar matters in the United States, by the constitution, or by federal authority, but, on the contrary, are left entirely to be determined by the individual cantons. The consequence is a total lack of uniformity in these highly important matters. In some cantons members are elected by popular vote; in others, by the legislative assembly. In some they are chosen for one year; in others, for two; in still others, for three. The consequence is that the Council is commonly lacking in compactness and morale. More serious still is the fact that the functions of the upper chamber are in all respects identical with those of the lower. The American Senate has power and character of its own, quite apart from that of the House of Representatives; the Swiss Council has nothing of the kind. Its organization, even, is an almost exact replica of that of the lower chamber.[627]In the earlier days of the present constitutional system the Council enjoyed high prestige and influence; but by reason of the conditions that have been described the body in time fell into decline. Able and ambitious statesmen have preferred usually to be identified with the lower house. The upper chamber possesses large powers—powers nominally co-ordinate with those of the lower one—and it has acted not infrequently with sufficient independence to defeat measures advocated by the National Council. But, without being the feeble upper chamber that is commonly associated with a parliamentary system of government, it is yet essentially lacking in the initiative and independence of a true senate.[628]
473. Powers of the National Assembly.—In the constitution it is stipulated that the National Council and the Council of the States shall have the right to consider all subjects placed within the competence of the Confederation and not assigned to any other federal authority.[629]The range of this competence is enormous. There are, in the first place, certain functions which the two houses perform while sitting jointly under the direction of the president of the National Council. These are electoral and judicial in character and comprise (1) the election of the Federal Council, or executive committee of the Confederation, the federal judges, the chancellor,[630]and the generals ofthe federal army; (2) the granting of pardons; and (3) the adjustment of jurisdictional conflicts between different branches of the federal governmental system.
Much more extensive are the powers which the houses, sitting separately, exercise concurrently. The constitution requires that the councils be assembled at least once annually. In practice, they meet in June and December of each year, regular sessions extending as a rule through four or five weeks. At the request of either one-fourth of the members of the National Council or of five cantons an extraordinary session must be held, and there is a probability of one such session each year, ordinarily in March. The powers assigned the chambers to be exercised in their concurrent capacities may be classified variously. The more important are: (1) the enactment of laws and ordinances upon the organization and election of federal authorities and upon all subjects which by the constitution are placed within the federal competence; (2) the conduct of foreign relations, particularly the concluding of treaties and alliances with foreign powers, the supervision of conventions entered into by the cantons (in the event that the Federal Council, or any canton, protests against such cantonal arrangements), the declaring of war and the concluding of peace, and the taking of measures for the safety, independence, and neutrality of the Confederation; (3) the control of the federal army; (4) the adoption of the annual budget, the authorizing of federal loans, and the auditing of public accounts; (5) the taking of measures for the enforcement of the provisions of the federal constitution, for the carrying out of the guaranty of the cantonal constitutions, for the fulfillment of federal obligations, and for the supervision of the federal administration and of the federal courts; and (6) the revision of the federal constitution.[631]It will be perceived that the powers exercised by the chambers are principally legislative, but also in no small degree executive and judicial; that, as has already been emphasized, the two councils comprise the real directive agency of the Confederation.
474. The Assembly's Procedure.—Federal laws, decrees, and resolutions are passed only by agreement of the two councils. Any measure may originate in either house and may be introduced by any member. There are committees upon various subjects, but bills are referred to them only by special vote. Committee members are chosen by the chamber directly or by the chamber's "bureau," as the chamber itself may determine. In each house a majority constitutes a quorum for the transaction of business, and measures are passed by asimple majority. Sittings, as a rule, are public. It is expressly forbidden that members shall receive from their constituents, or from the cantonal governments, instructions respecting the manner in which they shall vote.[632]
From the domain of cantonal legislative procedure there has been carried over into federal law-making the fundamental principle of the referendum. The federal referendum exists to-day in two forms, i.e., the optional and the obligatory. The one appeared for the first time in the revised constitution of 1874 and is applicable exclusively to projects of ordinary legislation. The other was established by the constitution of 1848 and is applicable solely to proposed amendments of that instrument.
475. The Optional Referendum: Laws and Resolutions.—After a law which has been enacted by the Federal Assembly has been published it enters regularly upon a probationary period of ninety days during which, under stipulated conditions, it may be referred directly to the people for ratification or rejection. The only exceptions are afforded by those measures which, by declaration of the councils, are of a private rather than a general character, and those which are "urgent." Such acts take effect at once. But all others are suspended until there shall have been adequate opportunity for the carrying through of a referendum. At any time within the ninety-day period a referendum may be demanded, either by the people directly or by the cantonal governments. Petitions signed by as many as 30,000 voters, or adopted by the legislatures of as many as eight cantons, render it obligatory upon the Federal Council to arrange for the submission of a measure to a referendum within four weeks after the announcement of the demand has been made. The method of the referendum is carefully prescribed by federal legislation. Every citizen in possession of unimpaired civil rights is entitled to vote, and the voting takes place under the supervision of the authorities of the commune and of the canton. If in a majority of the cantons a preponderance of votes is cast in favor of the measure in hand, the Federal Council proclaims the fact and the measure goes at once into operation. An adverse majority, on the other hand, renders the measure null. In the event that no referendum is demanded, the measure, of course, goes automatically into effect at the expiration ofthe ninety-day period. Since its introduction into the federal constitution the principle of the legislative referendum has been brought to bear upon a not inconsiderable number of legislative projects. The proportion, indeed, of laws falling within the range of the system which have been subjected to the popular vote, while varying widely from time to time, has been not far from ten per cent; and of the measures actually voted upon several of importance have been rejected. In all instances the demand has arisen directly from citizen petitioners, not from the cantonal governments.[633]
476. The Obligatory Referendum: Constitutional Amendments.—In its application to laws and resolutions the referendum is optional; in application to constitutional amendments it is obligatory. Revision of the Swiss constitution may be accomplished at any time, in whole or in part, and in a variety of modes. In the event that the legislative councils are able to agree upon a scheme of revision they vote the adoption of the proposed amendment precisely as if it were an ordinary statute, and it is thereupon submitted to the people for acceptance or rejection. If, however, the two houses disagree upon the question of a total revision, or if as many as 50,000 voters make demand for a total revision, there must be put to the people the preliminary question as to whether there shall be a revision at all. If the will of the majority is affirmative, new legislative councils must be elected, and to them falls the obligation of executing the popular mandate.
When the question is one of but partial revision the procedure is somewhat different. Partial revision may be instituted either by the councils or by petition of 50,000 voters. When a popular petition is presented there are four possible courses of action: (1) if the project is presented in general terms and the councils are in agreement upon it, they reduce the proposal to specific form and submit it to the people;(2) if the councils are not in agreement upon the project they put to the people the preliminary question of whether an amendment of the general type proposed is desirable, and if the vote is affirmative they proceed with the revision; (3) if the petition is presented in a form that is specific and final and the councils are in agreement upon it, the project is submitted forthwith to the people; and (4) if the councils are not in agreement upon a specific project so advanced, they may prepare a project of their own, or recommend the rejection of the proposed amendment, and they may submit their counter-project or their recommendation at the same time that the initiative petition is presented to the people.[634]In no case may an amendment be put into effect until it has received the assent of a majority of those voting thereon in a majority of the cantons. Of seventeen constitutional amendments submitted by the Federal Assembly between 1874 and 1908 twelve were ratified and five were rejected.
477. The Popular Initiative.—The right of popular initiative in the revision of the constitution was established by an amendment of July 5, 1891, through the united efforts of all the anti-Radical parties and groups. The purpose underlying the amendment was to break the monopoly long enjoyed by the Radicals by placing within the hands of any fifty thousand citizens the power to compel the federal government to take under consideration proposed modifications of the constitution, to prepare projects relating to them, and to submit these projects to the ultimate decision of the people. When the system was established many persons seriously feared that the way had been thrown open for frequent, needless, and revolutionary change, by which the stability of the state would be impaired. Such apprehension, however, has been proved groundless. During a score of years only nine popularly-initiated amendments have been voted upon, and only three have been incorporated in the fundamental law. One of the three, adopted in 1893, prohibited the Jewish method of slaughtering animals, and was purely a product of the antisemitic movement. The other two were adopted in 1908. One authorized for the first time legislation by the federal authorities upon subjects relating to the trades and professions; the other prohibited the manufacture and sale of absinthe. A number of other more or less sweeping amendments, it is true, have been proposed, but all alike have failed of adoption. Thus, in 1894, perished a socialistic scheme whereby the state was to obligate itself to provide employment for every able-bodied man, and in the same year, a project to pay over to the cantons a bonus of two francs per capita from the rapidly increasing returns ofthe customs duties.[635]Similarly, in 1900, failed two interesting projected reforms relating to the federal electoral system. One of these provided for the introduction, in the various cantons, of the principle of proportional representation in the election of members of the National Council. The other provided for the election of the members of the Federal Council, not, as at present, by the General Assembly, but by direct popular vote, the whole mass of electors voting, not by cantons, but as one national constituency. In June, 1900, both of these electoral proposals were rejected by the legislative chambers, and in the ensuing November the people ratified the rejection. In 1903, there was defeated in the same way a proposal to base representation in the National Council, not upon the total population of the country, but upon the Swiss population alone. In 1909-10 the proportional representation project was revived, but with a negative result.[636]
Among reforms that have been much discussed in recent years has been the extension of the initiative and of the obligatory referendum to all federal legislation. Both apply as yet only to constitutional amendments. In 1906 the Federal Council went so far as to submit to the legislative councils a proposal intended to meet the first of these ends. The purport of the proposal was that fifty thousand voters, oreight cantons, should have the right at any time to demand the passage, modification, or repeal of any sort of federal law or federal decree. In December, 1906, the project was debated in the National Council; after which it was referred to the Federal Council for further consideration. The proposal is still pending, but its eventual adoption is probable.[637]
478. Centralism vs. Federalism.—Until the middle of the nineteenth century the most fundamental of political questions in modern Switzerland was that of centralization, and the most enduring of political cleavages among the people was that which marked off the "centralists" from the "federalists." There was a time when the annihilation of the cantons and the establishment of a thoroughly consolidated state was not only openly advocated but confidently predicted. With the establishment, however, of the reasonable compromise embodied in the constitution of 1848 the issue of centralization dropped pretty much into the background. There continued to be, and still are, "centralizers;" but the term has come long since to denote merely men who, with due regard for the susceptibilities of the cantons, direct their influence habitually to the strengthening of the central agencies of government.
The constitution of 1848 was the work of a combination of centralist elements which acquired the general designation of Radicals. Opposed to the Radicals were the federalist Moderates. Between 1848 and 1874 controlling influence was maintained steadily by the Radicals, although during the decade 1850-1860 there was a fusion of parties in consequence of which there existed through many years an extremely intricate political situation. Gradually there emerged a three-fold party grouping, which has survived uninterruptedly from the era of the constitutional revision of 1874 until our own day. The three parties, as aligned now through more than a generation in the National Council, are: (1) the Right, or Clericals; (2) the Left, or Radicals; and (3) the Centre, or Liberals. To these, in very recent times, must be added a small but growing group of the Extreme Left, comprising ultra-democrats and socialists.