IV. THE CANTONAL EXECUTIVE AND JUDICIARY

*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'etat. 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 one of dignity and honor, at least locally, but it (p. 422) 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 a.s.signed. 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.

[Footnote 614: In the Landesgemeinde cantons the Landammann is elected by the primary a.s.sembly.]

*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 a.s.sisted by a Bezirksrath, or district council; frequently he is not. In Schwyz there is a Bezirksgemeinde, or popular a.s.sembly, 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 a.s.semblee generale. By it are chosen an executive council (the Gemeinderath or conseil munic.i.p.al) and a mayor (Gemeindeprasident). 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]

[Footnote 615: Vincent, Government in Switzerland, Chap. 10; Adams and Cunningham, The Swiss Confederation, Chap. 8; Lloyd, A Sovereign People, Chap. 3.]

*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.

CHAPTER XXIII (p. 423)

THE FEDERAL GOVERNMENT

I. THE EXECUTIVE

*467. The Federal Council: the President.*--At the framing of the Swiss const.i.tution, as at that of the American, there arose the question of a single or a plural executive. In the United States the disadvantages a.s.sumed 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 const.i.tution, "shall be exercised by a Federal Council, composed of seven members."[616] The members of the Federal Council are elected by the Federal a.s.sembly, 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 a.s.sembly 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 a.s.sembly 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-president regularly (p. 424) 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 a.s.sumes personal direction of some one of the princ.i.p.al executive departments.[617] The only peculiarity of his status is that he performs the ceremonial duties connected with the t.i.tular 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."

[Footnote 616: Art. 95. Dodd, Modern Const.i.tutions, II., 281.]

[Footnote 617: No longer, as prior to 1888, necessarily that of foreign affairs.]

*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 a.s.signed from time to time, by the President, such subjects for consideration as properly fall within its domain. It is stipulated by the const.i.tution, 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 is _viva voce_, and an abstract of proceedings is published regularly in the official gazette of the Republic.

[Footnote 618: Art. 103. Dodd, Modern Const.i.tutions, II., 284. For a synopsis of the law of July 8, 1887, whereby an apportionment of functions was made among the various departments see Dupriez, Les Ministres, II., 239-246.]

[Footnote 619: Members of the Council are re-elected, almost as a matter of course, as long as they are willing to serve. Between 1848 and 1893 the average period of service exceeded ten years.

Lowell, Governments and Parties, II., 203.]

*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 a.s.sembly. 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 a.s.sembly; they do not, of necessity, represent a common political party, faith, or programme, they are not necessarily agreed among themselves upon the merits or demerits of a particular legislative proposal; and if overruled by (p. 425) a majority of the a.s.sembly 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 a.s.sembly. 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 a.s.sembly, as against which the Council possesses not a shred of const.i.tutional prerogative.

In the a.s.sembly is vested ultimate authority, and in the event of a clash of policies what the a.s.sembly 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]

[Footnote 620: The resignation, in 1891, of M.

Welti, a member of the Council since 1867, by reason of the fact that the people rejected his project for the governmental purchase of railway shares occasioned general consternation.]

[Footnote 621: For interesting observations upon the advantages and disadvantages of the Swiss system see Lowell, Governments and Parties, II., 204-208. See also Vincent, Government in Switzerland, Chap. 16; Dupriez, Les Ministres, II., 188-203.]

*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 const.i.tution and the guaranty of the cantonal const.i.tutions; 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 a.s.sembly and to give its opinion upon the proposals submitted to it by the chambers or by the cantons; also to submit to the a.s.sembly 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 a.s.sembly's measures. The judicial functions of the Council are such as arise from the fact that there are in Switzerland no administrative courts, (p. 426) 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 a.s.sembly.[623]

[Footnote 622: Art. 102. Dodd, Modern Const.i.tutions, II., 282-284; Dupriez, Les Ministres, II., 218-225.]

[Footnote 623: Art. 113. Dodd, Modern Const.i.tutions, II., 286. The nature and functions of the Swiss executive are treated briefly in Vincent, Government in Switzerland, Chap. 17, and Adams and Cunningham, The Swiss Confederation, Chap. 4. An excellent account is that in Dupriez, Les Ministres, II., 182-246. Of value are Blumer and Morel, Handbuch des schweizerischen Bundesstaatsrechts, III., 34-92, and Dubs, Le droit public de la confederation suisse, II., 77-105.]

II. LEGISLATION: THE FEDERAL a.s.sEMBLY

With specific reservation of the sovereign rights of the people and of the cantons, the const.i.tution vests the exercise of the supreme authority of the Confederation in the Bundesversammlung, or Federal a.s.sembly. Unlike the cantonal legislatures, the Federal a.s.sembly consists of two houses--a Nationalrath, or National Council, and a Standerath, or Council of the States.[624] The one comprises essentially a house of representatives; the other, a senate. The adoption, in the const.i.tution 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.

[Footnote 624: In French, the Conseil National and the Conseil des etats.]

*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 const.i.tution 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 ent.i.tled 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 Zurich and twenty-nine in Bern. Every canton and each of the six half-cantons is ent.i.tled to at least one deputy. The total number in 1911 was 189.

The electorate consists of all male Swiss who have attained their (p. 427) 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 const.i.tution, 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.

[Footnote 625: This denial of clerical eligibility was inspired by fear of Catholic influences.]

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 partic.i.p.ates 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]

[Footnote 626: Arts. 72-79. Dodd, Modern Const.i.tutions, II., 277-278.]

*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 const.i.tution of 1848 created the inst.i.tution 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 a.s.signed 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 are similar matters in the United States, by the (p. 428) const.i.tution, 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 a.s.sembly. 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 const.i.tutional 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 a.s.sociated with a parliamentary system of government, it is yet essentially lacking in the initiative and independence of a true senate.[628]

[Footnote 627: "Neither the president nor the vice-president may be chosen at any session from the canton from which the president for the preceding session was chosen; and the vice-presidency may not be held during two successive regular sessions by representatives of the same canton." Art. 82.]

[Footnote 628: Arts. 80-83. Dodd, Modern Const.i.tutions, II., 278.]

*473. Powers of the National a.s.sembly.*--In the const.i.tution 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 a.s.signed 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 of the federal army; (2) the granting of pardons; (p. 429) and (3) the adjustment of jurisdictional conflicts between different branches of the federal governmental system.

[Footnote 629: Art. 84. Ibid., II., 278.]

[Footnote 630: The princ.i.p.al duty of the chancellor is the keeping of the minutes of the National Council. A vice-chancellor, appointed by the Federal Council, performs a similar function in the Council of States, under responsibility to the chancellor.]

Much more extensive are the powers which the houses, sitting separately, exercise concurrently. The const.i.tution requires that the councils be a.s.sembled 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 a.s.signed the chambers to be exercised in their concurrent capacities may be cla.s.sified 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 const.i.tution 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 const.i.tution, for the carrying out of the guaranty of the cantonal const.i.tutions, 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 const.i.tution.[631] It will be perceived that the powers exercised by the chambers are princ.i.p.ally 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.

[Footnote 631: Art. 85, ---- 1-14. Dodd, Modern Const.i.tutions, II., 278-279.]

*474. The a.s.sembly's Procedure.*--Federal laws, decrees, and resolutions are pa.s.sed 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 const.i.tutes a quorum for the transaction of business, and measures are pa.s.sed by a simple majority. Sittings, (p. 430) as a rule, are public. It is expressly forbidden that members shall receive from their const.i.tuents, or from the cantonal governments, instructions respecting the manner in which they shall vote.[632]

[Footnote 632: For a brief account of the procedure of the chambers see Vincent, Government in Switzerland, 181-187.]

III. LEGISLATION: THE REFERENDUM AND THE INITIATIVE

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 const.i.tution of 1874 and is applicable exclusively to projects of ordinary legislation. The other was established by the const.i.tution of 1848 and is applicable solely to proposed amendments of that instrument.