II. THE NATION AND THE STATES (p. 411)

*453. Dominance of the Federal Principle.*--In its preamble the Swiss const.i.tution 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 const.i.tution of the United States) might seem to imply a considerably larger measure of centralization than in fact exists. For although the effect of the const.i.tution of 1848 was to convert a loosely organized league into a firmly constructed state--to transform, as the Germans would say, a _Staatenbund_ into a _Bundesstaat_--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, from 642,744 to 13,796;[594] and the primary fact of (p. 412) the Swiss governmental system is the remarkable measure of political independence which these divisions, small as well as large, possess.

[Footnote 593: Dodd, Modern Const.i.tutions, II., 257.]

[Footnote 594: The total area of the Confederation is approximately 16,000 square miles; the total population, according to the census of December 1, 1910, is 3,741,971.]

*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 Const.i.tution 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," a.s.serts the const.i.tution, "so far as their sovereignty is not limited by the federal const.i.tution; 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 const.i.tution, 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]

[Footnote 595: Art. 3. Dodd, Modern Const.i.tutions, II., 257.]

[Footnote 596: In the form in which it now exists the Swiss const.i.tution is one of the most comprehensive instruments of the kind in existence.

Aside from various temporary provisions, it contains, in all, 123 articles, some of considerable length. As is true of the German const.i.tution, there is in it much that ordinarily has no place in the fundamental law of a nation. A curious ill.u.s.tration is afforded by an amendment of 1893 to the effect that "the killing of animals without benumbing before the drawing of blood is forbidden; this provision applies to every method of slaughter and to every species of animals." Art.

25. Dodd, Modern Const.i.tutions, II., 263. The adoption of this amendment was an expression of antisemitic prejudice.]

*455. Federal Control of the Cantons.*--After the a.n.a.logy 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 const.i.tutions, 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 const.i.tutions, and it is stipulated that such guaranty shall be accorded in all instances where it can be shown that the const.i.tution in question contains nothing contrary to the provisions of the (p. 413) federal const.i.tution, that it a.s.sures 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 const.i.tution which has not been accorded the a.s.sent of the two houses of the federal a.s.sembly is inoperative; and the same thing is true of even the minutest amendment. The control of the federal government over the const.i.tutional 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 const.i.tutional 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 const.i.tuted cantonal authorities. This right was exercised very effectively upon the occasion of the Ticino disorders of 1889-1890.

[Footnote 597: Arts. 5 and 6. Dodd, Modern Const.i.tutions, II., 258.]

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 const.i.tution 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 const.i.tution 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 princ.i.p.al 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 to tariffs and commerce.[598] The Confederation is (p. 414) 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 const.i.tution 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.

[Footnote 598: Art. 8. Dodd, Modern Const.i.tutions, II., 258.]

[Footnote 599: Arts. 15-23. Ibid., II., 260-262.]

[Footnote 600: McCrackan, Rise of the Swiss Republic, 354-363; Payen, La neutralisation de la Suisse, in _Annales de l'ecole Libre des Sciences Politiques_, Oct. 15, 1892.]

*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.

[Footnote 601: Art. 27. Dodd, Modern Const.i.tutions, II., 263.]

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 incur penalty of any sort by reason of his religious opinions.[602] No (p. 415) death penalty may be p.r.o.nounced for a political offense. The prohibitions, in short, which the const.i.tution imposes upon federal and cantonal authorities comprise essentially a bill of rights, comparable with any to be found in a contemporary European const.i.tution.

[Footnote 602: Art. 49. Dodd, Modern Const.i.tutions, II., 271-272.]

*458. General Aspects.*--The fundamental thing to be observed is that under the Swiss const.i.tution, 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 const.i.tutional 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.

[Footnote 603: "The customs system shall be within the control of the Confederation. The Confederation may levy export and import duties." Art. 28. Dodd, Modern Const.i.tutions, II., 263. The const.i.tution stipulates further that imports of materials essential for the manufactures and agriculture of the country, and of necessaries of life in general, shall be taxed as low as possible; also that export taxes shall be kept at a minimum. Art. 42 prescribes that the expenditures of the Confederation shall be met from the income from federal property, the proceeds of the postal and telegraph services, the proceeds of the powder monopoly, half of the gross receipts from the tax on military exemptions levied by the cantons, the proceeds of the federal customs, and, finally, in case of necessity, contributions levied upon the cantons in proportion to their wealth and taxable resources. Dodd, II., 269.]

Within the domain of administrative functions, the principle is (p. 416) 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 a.r.s.enals 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 const.i.tution 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 const.i.tution enjoins upon the cantons.[605]

[Footnote 604: Art. 27. Dodd, Modern Const.i.tutions, II., 263.]

[Footnote 605: A. Souriac, L'evolution de la juridiction federale en Suisse (Paris, 1909).]

III. CANTONAL LEGISLATION: THE REFERENDUM AND THE INITIATIVE

*459. Variation of Cantonal Inst.i.tutions.*--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 const.i.tution, 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, that there is in it nothing that is contrary to the federal (p. 417) const.i.tution, 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 const.i.tutions 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.

[Footnote 606: On the governments of the cantons the princ.i.p.al general works are J. Schollenberger, Grundriss der Staats-und Verwaltungsrechts der schweizerischen Kantone, 3 vols. (Zurich, 1898-1900), and J. Dubs, Das offentliche Recht der schweizerischen Eidgenossenschaft (Zurich, 1877-1878), I. Brief accounts will be found in Vincent, the Government of Switzerland, Chaps.

1-12.]

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 cla.s.ses of cantonal governments. One comprises those in which the ultimate public powers are vested in a Landesgemeinde, or primary a.s.sembly of citizens; the other, those in which such powers have been committed to a body of elected representatives. The second cla.s.s, 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 circ.u.mstances, but princ.i.p.ally 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 inst.i.tution survives are small in area and are situated in the more spa.r.s.ely populated mountain districts where conditions of living are primitive and where there is little occasion for governmental elaborateness.[607]

[Footnote 607: The area of Zug is 92 square miles; of Glarus, 267; of the Unterwaldens, 295; of the Appenzells, 162. The longest dimension of any one of these cantons is but thirty miles, and the distance to be traversed by the citizen who wishes to attend the Landesgemeinde of his canton rarely exceeds ten miles. It was once the fashion to represent the Swiss Landesgemeinde as a direct survival of the primitive Germanic popular a.s.sembly. For the cla.s.sic statement of this view see Freeman, Growth of the English Const.i.tution, Chap. 1. There is, however, every reason to believe that between the two inst.i.tutions there is no historical connection.]

Nominally, the Landesgemeinde is an a.s.sembly 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 a.s.sembly 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 the men come ordinarily the women and children, and the occasion (p. 418) 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 a.s.sembly pa.s.ses with despatch upon whatsoever proposals may be laid before it by the Landrath, or Greater Council. In the larger a.s.semblies 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 a.s.sembly. The competence of the Landesgemeinde varies somewhat from canton to canton, but in all cases it is very comprehensive. The a.s.sembly authorizes the revision of the const.i.tution, 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]

[Footnote 608: H. D. Lloyd, A Sovereign People (New York, 1907), Chap. 4.]

*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 pa.s.ses unimportant ordinances; but its princ.i.p.al 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 inst.i.tution, 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 const.i.tuencies varies from 188 people in Obwalden and 250 in Inner Appenzell to 1,500 in St. Gall and Zurich and 2,500 in Bern. The electors include all males who have (p. 419) 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 ent.i.tled 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 ent.i.tled 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]

[Footnote 609: For an excellent account of the introduction of proportional representation in the canton of Ticino see J. Galland, La democratie tessinoise et la representation proportionnelle (Gren.o.ble, 1909). The canton in which the principle has been adopted most recently is St. Gall. In 1893, 1901, and 1906 it was there rejected by the people, but at the referendum of February, 1912, it was approved, and in the following November the cantonal legislature formally adopted it. For a brief exposition of the workings of the system see Vincent, Government in Switzerland, Chap. 4. An important study of the subject is E. Kloti, Die Proportionalwahl in der Schweiz; Geschichte, Darstellung und Kritik (Bern, 1901). On the proposed introduction of proportional representation in the federal government see p.

433.]

*462. The Referendum: Origins and Operation.*--The most interesting if not the most characteristic, of Swiss political inst.i.tutions 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 Zurich. 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 only _ad 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 of Rousseau, the fundamental tenet of which was that (p. 420) 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 const.i.tutions and const.i.tutional amendments and to ordinary laws. The referendum as applied to const.i.tutional 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 pet.i.tion 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 pet.i.tion 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 pa.s.sed, the executive council gives the proper notice to the legislature, which thereupon p.r.o.nounces the measure void.[612]

[Footnote 610: Lowell, Governments and Parties, II., 243.]

[Footnote 611: It will be observed, of course, that in the cantons which maintain a Landesgemeinde there is no occasion for the employment of the referendum upon either const.i.tutional or legislative questions. The people there act directly and necessarily upon every important proposition.]

[Footnote 612: Important treatises on the Swiss referendum are T. Curti, Geschichte der schweizerischen Volksgesetzgebung (Zurich, 1885); ibid., Die Volksabstimmung in der schweizerischen Gesetzgebung (Zurich, 1886). A French version of the former work, by J. Ronjat, has appeared under the t.i.tle Le referendum: histoire de la legislation populaire en Suisse (Paris, 1905). Of large value is Curti, Die Resultate des schweizerischen Referendums (2d ed., Bern, 1911). An older account is J. A. Herzog, Das Referendum in der Schweiz (Berlin, 1885). An excellent book is S. Duploige, Le referendum en Suisse (Brussels, 1892), of which there is an English translation, by C. P.

Trevelyan, under the t.i.tle The Referendum in Switzerland (London, 1898). Of value also are Stussi, Referendum und Initiative in den Schweizerkantonen (Zurich, 1894), and J. Signorel, etude de legislation comparee sur le referendum legislatif (Paris, 1896). Mention may be made of J.

Delpech, Quelques observations a propos du referendum et des Landesgemeinde suisse, in _Revue du Droit Public_, April-June, 1906.]

*463. The Initiative.*--The complement of the referendum is the (p. 421) initiative. Through the exercise of the one the people may prevent the taking effect of a law or a const.i.tutional 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 a.s.sociated. They are, however, quite distinct, as is ill.u.s.trated 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]

[Footnote 613: A. Keller, Das Volksinitiativrecht nach den schweizerischen Kantonsverfa.s.sungen (Zurich, 1889).]