and of the Federal Chancellery; the establishment of federal offices,
and determination of their salaries.
The election of the Federal Council, of the Federal Tribunal, of the
Federal Chancellor, and of the General of the Federal Army.[33]
Alliances and treaties with foreign countries, and the approval of
treaties made by the Cantons between themselves or with foreign powers;
such cantonal treaties shall, however, not be submitted to the Federal
Assembly, unless objection be raised to them by the Federal Council or
by another Canton.
Measures for external safety; for the maintenance of the independence
and neutrality of Switzerland; the declaration of war and the
conclusion of peace.
The guarantee of the constitutions and the territory of the Cantons;
intervention in consequence of such guarantee; measures for the
internal safety of Switzerland, for the maintenance of peace and order;
amnesty and pardon.[34]
Measures for securing observance of the Federal constitution; for
carrying out the guarantee of the Cantonal constitutions, and for the
fulfilment of federal obligations.
The power of controlling the federal army.
The determination of the yearly budget, the audit of public accounts,
and federal ordinances authorizing loans.
General supervision of the federal administration and of federal
courts; appeals from the decisions of the Federal Council upon
administrative conflicts of jurisdiction between federal authorities.
Revision of the Federal constitution.
3. Both Councils shall assemble once each year in regular session, on
a day to be fixed by the standing orders.[35] They may be convened in
extra session by the Federal Council, or on demand of one-fourth of the
members of the National Council, or of five Cantons.
4. In either Council a quorum is a majority of the total number of its
members.
5. In the National Council and in the Council of States, a majority of
those voting shall decide the question.
6. For federal laws, decrees, and resolutions, the consent of both
Councils is necessary. Federal laws shall be submitted for acceptance
or rejection by the people upon the demand of thirty thousand qualified
voters, or of eight Cantons. The same principle applies to federal
resolutions, which have a general application, and which are not of an
urgent nature.
7. The Confederation shall by law establish the forms and times of
popular voting.
8. Members of either Council vote without instructions.
9. The Councils deliberate separately. But in the case of the elections
(specified in Section 2), of pardons, or of deciding a conflict of
jurisdiction, the two Councils meet in joint session, under the
direction of the President of the National Council. Votes shall be
decided by simple majority of the members of both Councils, present and
voting.
10. Measures may originate in either Council, and may be introduced by
any member of each Council.
11. The sittings of both Councils shall, as a rule, be public.
The law-making department in any sovereign state is the repository
of most power; consequently the constitution of Switzerland, like
that of the United States, after enumerating the powers which shall
be exercised by authority of the general government, confers them in
terms upon the most immediate representative of the sovereignty. In
Switzerland this is the Federal Assembly; in the United States it
is Congress. The scope of powers conferred upon the Swiss Federal
Assembly enables it to exercise not only legislative, but supervisory,
executive, and judicial functions. The separation of its powers from
those of the Federal Council and the Federal Tribunal--the executive
and judicial departments--is neither clearly set forth nor in practice
is it strictly observed. Cases have occurred, the jurisdiction over
which being involved in so much doubt, the interested parties, from
abundance of caution, submitted their memorials simultaneously to two
of these federal departments. The Swiss Federal Assembly exercises a
power more comprehensive and greater than that given probably to any
legislative body; at least in a republic, where there is a professed
organic distribution of the three great heads. It elects the Federal
Executive, Federal Judiciary, and the Commander of the Army. It is
the final arbiter on all questions as to the respective jurisdiction
of the Executive and the Federal Court. It would appear that there
is no decision of the Executive which cannot be revised by it. It is
the chief power in the land. No veto can intervene nor any judicial
power question the constitutionality of its statutes. Its acts form
the law which the court must execute. The Swiss people, as it were,
speak in each legislative enactment; and the only check or revision
to which it is amenable rests with the people themselves by means of
the _Referendum_. The authority of the Swiss Assembly, it is true,
exceeds that of the Congress of the United States, and yet it may be
regarded as a weaker body. For while in each case there lies in the
background a legislative sovereign, capable of controlling the action
of the ordinary legislature, the sovereign power is far more easily
brought into play in Switzerland than in the United States. Again,
every ordinary law passed by the Swiss Assembly may be annulled by a
popular vote. The freedom from instruction secured to the members of
the Federal Assembly was first declared in the Swiss Constitution of
1848. The whole history of the representative principle proves the
soundness of the doctrine, that the vesting an entire discretion in
the representative is an essential part of the definition. It is not
to the power of instructing the representative that constituents are
to look for an assurance that his efforts will be faithfully applied
to the public service; but it is to the power of reducing him from
the elevation to which their suffrages have raised him. The object to
be obtained is not to compel the representative to decide agreeably
to the opinions of his constituents, for that would be compelling him
often to decide against his better judgment; but it is to force him
to decide with a single view to the public good. It is by leaving him
unshackled with positive instructions, while he is subject to the
ultimate tribunal of the opinion of his constituents, that the end in
view is to be accomplished of bringing into action, in the proceedings
of the legislature, the greatest practicable quantity of intelligence
under the guidance of the purest disposition to promote the welfare of
the community. The view which Burke takes of the relation between a
representative and his constituents is in the main so correct, and is
so luminously expressed, that no one can read it without pleasure and
instruction. The passage occurs in his celebrated speech at Bristol
on the conclusion of the poll. “Certainly, gentlemen,” he says, “it
ought to be the happiness and glory of a representative to live in the
strictest union, the closest correspondence, and the most unreserved
communication with his constituents. Their wishes ought to have great
weight with him; their opinion high respect; their business unremitted
attention. It is his duty to sacrifice his repose, his pleasures,
his satisfactions to theirs; and above all, ever and in all cases to
prefer their interest to his own. But his unbiased opinion, his matured
judgment, his enlightened conscience, he ought not to sacrifice to you,
to any man, or to any set of men living. These he does not derive from
your pleasure; no, nor from the law and the constitution. They are a
trust from Providence, for the abuse of which he is deeply answerable.
Your representative owes you, not his industry only, but his judgment;
and he betrays instead of serving you if he sacrifices it to your
opinion.”
Neither the Constitution of the United States, nor that of Switzerland,
vests anywhere any power of dissolution of the legislative body. The
Swiss Assembly is chosen for a definite time; when that time is up it
dissolves by the operation of the law; before that time is up no power
can lawfully dissolve it.
Either the National Council or Council of States can recommend to the
Federal Council that it shall prepare and present for its consideration
certain bills; or a member can suggest one to his own House, and, if
agreeable, the matter will be referred to the Federal Council with
instruction to draft the necessary bill; or the Federal Council itself
presents bills upon its own initiative. The Assembly recommends to
the Federal Council by motions, called _postulats_, such alterations
or reform in bills submitted by it as seem to them to be proper. If
the Federal Council does not assent to a particular _postulat_ coming
from one of the Houses, it makes a report to that effect to the House,
and if the latter insists upon its view, then a formal proposition is
drawn up, and if carried in both Houses, the Federal Council is bound
to execute its provisions. It must be understood that every bill must
pass through the hands of the Federal Council, and by it laid before
the Assembly. When a bill is presented by the Federal Council, the
House, which has first to take it up, appoints a committee to examine
and report upon it. These committees or commissions are appointed as
the occasion arises,--there being no standing committees,--by the
President of the House and the _scrutateurs_; constituting together
what is called a _bureau_. These _scrutateurs_, four in the National
Council and two in the Council of States, are elected every session
from the members of their respective Houses; and it is also their duty
to determine and to announce the result, whenever a vote is had, either
by ballot, division, or _viva voce_; they occupy an elevated position
to the right of the President. On the submission of a committee’s
report, the bill is discussed, and ultimately either passed with or
without amendments, or rejected. If passed, it goes to the other House,
where a similar process is undergone. When passed by both Houses it
becomes law, and is published as such by the Federal Council in the
_Feuille fédérale Suisse_; subject, however, to the _Referendum_, if
duly demanded. The Federal Council, in publishing a law, decree, or
resolution not subject to the _Referendum_, fixes the date when it
shall go into force, if this is not done in the text of the bill.
Generally, this date is the day of publication. For all measures liable
to the _Referendum_, what is termed _délai d’opposition_ is named,
being a period of three months, during which the appeal to the popular
vote can be demanded. In case of no appeal being taken, the law goes
into force after the expiration of the three months.
The daily sittings of the Assembly open at eight o’clock in the
morning during the June session, and nine o’clock during the December
session; the adjournments are usually from one to two o’clock P.M. The
sessions never extend beyond three weeks. It requires from the federal
treasury a small sum to defray the entire annual cost of the Assembly.
In the legislative appropriation bill for 1889 the following sums
were provided for the compensation of the two Houses of the Assembly:
_Ständerath_, salaries and mileage of committees, 10,000 francs;
salary and mileage of translator, 3000 francs; service, 2500 francs;
total, 15,500 francs; _Nationalrath_, salaries and mileage of members
and members of committees, 200,000 francs; translator, 3000 francs;
service, 3000 francs; total, 206,000 francs. So the entire outlay of
the country for its legislative department for the year was 221,500
francs, or about $44,000; one thousand dollars less than is annually
paid to nine members of Congress.
One in visiting the chambers of the Assembly is much impressed with
the smooth and quiet despatch of business. The members are not
seated with any reference to their political affiliations. There are
no “filibustering,” no vexatious points of order, no drastic rules
of “clôture,” to delay or ruffle the decorum of its proceedings.
Interruptions are few, and angry personal bickerings never occur.
There are no official stenographers, or _verbatim_ reports made of
the proceedings; press reporters represent only the local papers
and furnish a very meagre synopsis of the daily business. The small
gallery set apart for the public is rarely occupied. “Leave to
print” or a written speech memorized and passionately declaimed are
unknown; there are none of these extraneous and soliciting conditions
to invite “buncombe” speeches or flights of oratory for the press
and the gallery. The debates are more in the nature of an informal
consultation of business-men about common interests; they talk and
vote, and there is an end of it. This easy colloquial disposition of
affairs by no means implies any slipshod indifference, or superficial
method of legislation. There is no legislative body where important
questions are treated in a more fundamental and critical manner.
The members of the National Council stand up to speak, while those
of the Council of States speak from their seats. The tri-lingual
characteristic of the country is carried into the Assembly; and within
a brief visit to either House, different members may be heard to speak
successively in German, French, and Italian. If the presiding officer
of either House is a German and cannot speak French, his remarks are
immediately repeated by a French official interpreter who stands at
his side; and with a President who is French and cannot speak German
the process is reversed. The members from the Italian Cantons, as a
rule, understand French or German sufficiently not to require special
translation into their tongue. All bills, reports, resolutions, and
laws are published in the three languages. The Swiss have been as
successful in reconciling the difficulties of diverse dialects in the
federal legislature as in the harmonious union of Cantons. It was a
serious obstacle in the way of the union, when the legislature of
the kingdom of the Netherlands, founded in 1814, had three different
languages spoken in its Halls,--Dutch, Flemish, and French. This was
considered to foreshadow the disruption in 1830, as it intensified
every prejudice and difficulty. The _personnel_ of the Assembly is
grave and sedate, dignified and serious. A large majority of the
members are past middle age,--men of education, culture, and experience
in public life. Many of them have held office first in their Communes
and then in their Cantons. It is curious that, in a country where it
is hard to find the court-house or a lawyer’s sign, one-fourth of the
members of the Assembly report themselves as _advokats_; next in number
come merchants, then farmers, physicians, bankers, and professors.
One-third are given as incumbents of various other cantonal and
communal offices. It is very common for a person to fill at the same
time a federal, cantonal, and communal office, where the duties do
not conflict and belong to the same general class. This is regarded
as both simplifying and cheapening the public service. The very dress
of the members, in its severe sombreness and uniformity, bespeaks
the stable and serious bent of their minds. Scarcely the change of a
cravat would be required for the entire body to appear at a funeral
_de rigueur_. The oath administered to the members of the Assembly is
calculated to emphasize the high and sacred trust assumed. It runs
thus: “I swear, by God the Almighty! to maintain the constitution and
the laws of the Confederation, faithfully and truly to guard the unity,
power, and honor of the Swiss nation, to defend the independence of the
Fatherland, the freedom and rights of the people, and its citizens in
the whole, to fulfil conscientiously all duties conferred upon me, as
truly, as God blesses me.” In taking this oath the member stands with
his right hand uplifted, the thumb and first two fingers extended,
indicating the Trinity.
The members of the Assembly practically enjoy a life-tenure; once
chosen a member, one is likely to be re-elected so long as he is
willing to serve. Re-election, alike in the whole Confederation and
in the single Canton, is the rule; rejection of a sitting member, a
rare exception. Death and voluntary retirement accounted for nineteen
out of twenty-one new members at the last general election. There are
members who have served continuously since the organization of the
Assembly in 1848. Referring to this sure tenure of officials generally,
the President of the Confederation, in a public address, said, “Facts
and not persons are what interest us. If you were to take ten Swiss,
every one of them would know whether the country was well governed or
not; but I venture to say that nine of them would not be able to tell
the name of the President, and the tenth, who might think he knew it,
would be mistaken.” To some extent this remarkable retention of members
of the Assembly may be ascribed to the fact that the people feel that
they are masters of the situation through the power of rejecting all
measures which are put to the popular vote. The position of a member is
haloed with dignity, and is not a place sought from material motives,
a perquisite more than an honor. The absence of this fiscal view of
the office of the legislator brings in its train an equal absence
of the “rotation” notion. The Assembly is not made up on the theory
of mutation or by agencies more malign. Some are fond of declaring
against the caprice and ingratitude of the people, says Mr. Freeman
in his “Growth of the English Constitution,” and of telling us that
under a democratic government neither men nor measures can remain for
an hour unchanged. The spirit which made democratic Athens, year by
year, bestow her highest offices on the patrician Pericles and the
reactionary Phocion, still lives in the democracies of Switzerland,
in the _Landsgemeinde_ of Uri, and the Federal Assembly at Bern. The
ministers of kings, whether despotic or constitutional, may vainly
envy the sure tenure of office which falls to the lot of those who
are chosen to rule by the voice of the people. Grote, who wrote his
“History of Greece” in Switzerland, stated that his interest in the
Swiss Cantons arose from the analogy they presented to the ancient
Greek states; and specially as confirming the tendency of popular
governments to adhere to their leaders with the utmost tenacity of
attachment.
Corruption at the polls, civic jobbery, the declension of legislative
character, the greed for official pelf,--these evils are not restricted
to any people or country. An imperfect answer as to the cause and
remedy is difficult; a complete answer is impossible. Some of these
evils are connected with political problems that are vexing our epoch
in every state and country where constitutional government and a
liberal suffrage prevail. Switzerland, with a government so adequate
for a simple people and small country, appears to have firmly resisted
the impact of these political ills. Service in the federal legislature
is accepted from a sense of patriotic duty; neither emolument nor
self-aggrandizement being an element of its membership worthy of
consideration. The election of deputies to the Swiss Assembly is an
event which creates no violent commotion or even general interest
in the great body of the people. A large majority of the candidates
are unopposed; there is no opportunity for bribery to sap the public
_morale_, or any field for the unscrupulous plying of the disgraceful
artifices and incidents which too often mark a hotly-contested election
in the United States. An election, general or local, is not an occasion
of bustle or clamor, turbulence or revelry; there are no processions,
no party badges, no music, no “pole-raising,” probably not a speech,
and no candidate present when the exercise of this important privilege
is going on. It is an affair of deliberation and decision, of sobriety
and wisdom. The electors themselves feel that they are called upon to
exercise a serious and elevating duty; the solemn and deliberate act
of choosing men to govern the destinies of a civilized and enlightened
people. It may be that the Swiss elections, being held on Sunday, and
the polls often in the churches, in part contribute to inspire the
elector with respect for himself, for the character which he has to
sustain, and for the institution in which he thus bears an honorable
part. It is feared that the suggestion of such a remedial agency in the
United States would be regarded by our churchmen as _ægrescit medendo_.
The excitement attending the popular elections in the United States
as now conducted is in the main of a vicious and degrading character.
Instead of infusing into the hearts of the people a spirit of
patriotism, leading them to value the blessings of the government under
which they live, it infuses little but rancor and malignity; giving
an opportunity for the indulgence of vicious passions which are born
but do not die with the emergency; evolving the gross, vulgar morality
which, provided you do no injury to a man’s person or possessions, sees
nothing in your conduct towards him to condemn; which is near-sighted
to the turpitude of slander and misrepresentation directed against
him, and blind to the iniquity of needlessly invading a man’s private
life; a morality which is incapable of comprehending that one source
of happiness ought to be as sacred from wanton encroachment and
disturbance as another; and that visible property is not the only thing
which can be purloined or invaded. These evils are being submitted to,
without any strenuous effort to remove them, as if they were not a mere
excrescence, but formed an integral or essential part of the system,
which they deform and debase.
There can scarcely be said to be any party alignments in the Swiss
Assembly. It is comparatively free from the “offensive partisanship,”
“pernicious activity,” and system of party organization and activity
which flourish in the United States with exuberant and, in some
respects, ominous vigor. While nominally three political divisions
exist in the Swiss Assembly, the Right, Centre, and Left, the accepted
general classification reduces them to two, Radicals and Conservatives.
The main line of separation is the same perplexing issue running
through all political history, the rivalry between the state and
nation, one seeking to minimize, the other to magnify the sphere of
the central government. The Radicals are those who seek to give the
broadest interpretation to the constitution, so as to enlarge the
field of federal authority. The Conservatives are jealous of every
encroachment upon the traditional prerogative of the Cantons, and
desire to restrict and confine the limits of federal action. The
Radicals are the most numerous, commanding an absolute majority in
both the National Council and the Council of States. Within these
two broad divisions there are many different shades that separate on
questions of a social, religious, and economic character. Then these
grand and subdivisions have an entirely different significance, as
applied to federal or cantonal questions; a Radical as to the one, may
be a Conservative as to the other. The Radical and Conservative of the
Canton of Vaud is by no means the same as the Radical and Conservative
of the Cantons of Zurich and Aargau; the Radical of Geneva is very
different from the Radical of St. Gallen. The two parties are not
distinguished from each other by any systematic respect or disrespect
for cantonal independence. So the purely political question between
privilege on one side and the sovereignty of the people on the other
is one of subordinate moment; the former does not find expression
in any party formula. It is an error to estimate the character and
tendencies of the Swiss parties by the names which they bear,
Radical and Conservative, in the light of the footing these names
have obtained in every language in Europe, and the strong feelings of
esteem or hatred associated with them. As such they are nowise fully
correct designations of the political divisions, prominently opposed
in Switzerland, and of the points at issue between them. It is not
true that the Swiss Radical desires over-centralization to the extent
of unitary government; but, with the Conservative, holds to the great
theory of local self-government as founded upon these propositions;
that government is most wise, which is in the hands of those best
informed about the particular questions on which they legislate; most
economical and honest when in the hands of those most interested in
preserving frugality and virtue; most strong when it only exercises
authority which is beneficial in its action to the governed. There is
a feeling common to the population of every Canton and Commune, which
puts all idea of any party advocating one concentrated system out of
the question. Madison says, “An extinction of parties necessarily
implies, either a universal alarm for the public safety, or an absolute
extinction of liberty.” Political parties perform functions of the
greatest possible importance; through their organizations is fulfilled
that obligation which is incumbent upon every citizen of a republic,
to give an earnest, careful, and habitual attention to the conduct
of government. Parties are the exponents and representatives of the
great issues that constantly arise in every free community. By the
discussions that arise between them public opinion is formed, the
people educated in their political rights, a due sense of citizenship
generated and fostered; they are a great centripetal force in every
system of home-rule government.
The strong attachment to party, with its resultant full crop of
political dissension, in the United States has at the same time
awakened a zeal for turning the powers of government to profitable
public account, and a sensibility to the exposure of wrong or abuse,
which manifest themselves in a thousand beneficial ways. “It is one
of the advantages of free government,” declares Sir James Mackintosh,
“that they excite sometimes to an inconvenient degree, but upon
the whole, with the utmost benefit, all the generous feelings, all
the efforts for a public cause, of which human nature is capable.”
Switzerland, in the legislative branch of her federal system, gathers
together a body of men remarkable for that generous and patriotic
impulse which moves noble minds to sacrifice private interests to the
public good, and that public spirit that is the sense of duty applied
to public affairs; none of the cowardly and unpatriotic sentiment
expressed in the speech of Cato, “when vice prevails and impious men
bear sway, the post of honor is a private station.” With a Swiss, the
post of honor is always the post of duty, and the call of duty is
loudest from the public service, and secures the ready response of
the best citizens. Nowhere does popular government rest upon a firmer
foundation of public spirit and the willing and active interest of the
people.
CHAPTER IV.
THE FEDERAL COUNCIL.
Bundesrath; Conseil fédéral.
The three main forms of executive embrace the hereditary and
irresponsible king, with or without a responsible ministry; the
single responsible president; and the executive council. The most
typical examples of these are: the constitutional monarchy of England;
the Presidency of the United States; and the Federal Council of
Switzerland. Or, there may be said to exist four chief ways in which
parliamentary government is worked.
_First_, that of England, where the executive is the primary and the
legislature the ultimate source of power; the English ministers have
the right of initiative, but they cannot remain in office without a
majority in the House of Commons.
_Second_, the German plan, where the ministers are solely dependent
upon the Crown, but cannot spend money without parliamentary sanction.
_Third_, there is the constitution of the United States, under which
the functions of both branches are clearly defined; the Cabinet being
excluded from Congress, and Congress having no control over it, further
than the confirmation of its members by the Senate.
_Fourth_, the Swiss system, wherein the executive is as great a
departure from the precedent of the United States, and has produced
something at least as widely different from the President of the United
States, as he differs from an European king. The Swiss constitution
provides no executive head, in the sense of that of the President
of the United States; there is practically no such functionary. The
Swiss executive has, in fact, none of the functions that are given to
the President of the United States, as an independent power in the
State, making him as truly the representative of the sovereign people
as Congress itself. Andrew Jackson, indeed, habitually prided himself
on the privilege of representing the masses; and the use of the veto
by the President is in most cases highly popular, for through it the
President is expected to counterbalance the power of the legislature.
Not until 1833, was there any project of reform in Switzerland
looking to a special federal executive, apart from all the cantonal
governments. Previously, the federal executive authority was not vested
in any special magistrate or council, but exercised by the council
of one or the other of the three directing Cantons, as explained in
the “Introduction.” This had of course the inconvenience, among many
others, of causing the employment of federal authority to be more or
less guided by the politics actually prevalent in each of the three
directing Cantons. Up to 1848, the legislative and executive power
were vested in the same body. Switzerland, in its federal character,
having never known a personal head of any kind, when the old weak Diet
was changed into a real federal government, it naturally limited the
executive power far more than it is limited in the United States; and
the powers left to the executive were no less naturally intrusted, not
to a President, but to a council. Unwilling to trust the executive
power to any single man, it was placed in the hands of a council of
seven. It may be called an impersonal executive. There is nothing about
it to invite the homage of those whose chief object it is to find
something to abase themselves before; its walks cannot be recorded in a
court circular; it holds no drawing-rooms or levées; it pays no one the
honor of a visit, and no one has the honor of being invited to visit
it in return. A legislature chosen for a fixed term, which cannot be
dissolved before the end of that term, chooses an Executive Council,
for the term of its own existence. To such a body no scrap or rag of
royal purple can hang; and it completely refutes the notion that the
executive power of a republic is simply a shadow of kingship, a mere
transfer from a life and hereditary tenure to an elected and limited
term. The organization, powers, and duties of the Federal Council are
defined by the constitution in the following provisions:
1. The supreme direction and executive authority of the Confederation
shall be a Federal Council, consisting of seven members.
2. The members of the Federal Council are chosen by the Federal
Assembly for the term of three years, from among all Swiss citizens
eligible to the National Council. But not more than one member shall
be chosen from the same Canton. After every general election for the
National Council, the Federal Council shall also be integrally renewed.
Vacancies which occur in the course of the three years are filled, for
the rest of the term, at the ensuing session of the Federal Assembly.
3. The members of the Federal Council shall not during their term
of office hold any other office, either in the service of the
Confederation or of a Canton, or follow any other pursuit, or exercise
a profession.
4. The Federal Council is presided over by the President of the
Confederation. There is also a Vice-President. The President of the
Confederation and the Vice-President shall be chosen, for the term
of one year, by the Federal Assembly from among the members of the
Council. The retiring President is not eligible either as President or
Vice-President for the year ensuing. The same member may not hold the
office of Vice-President for two consecutive years.
5. The President of the Confederation, and the other members of the
Federal Council, shall receive an annual salary from the federal
treasury.
6. A quorum of the Federal Council consists of four members.
7. The members of the Federal Council have the right to take part
in the discussions, but not to vote in either House of the Federal
Assembly; and also the right to make motions on any matter under
consideration.
8. The powers and the duties of the Federal Council, within the
limits of this constitution, are particularly the following: It
directs federal affairs conformably to the laws and resolutions of
the Confederation: it shall care that the constitution, federal laws
and ordinances, and also the provisions of the federal concordats be
observed: it shall take the necessary measures for their execution
either on its own initiative or upon complaint, so far as the decision
of such affairs has not been vested in the Federal Tribunal. It takes
care that the guarantee of the cantonal constitutions is enforced. It
proposes bills and resolutions to the Federal Assembly, and gives its
opinions upon the propositions sent to it by the Federal Assembly or
the Cantons. It executes the federal laws and decrees, the judgments
of the Federal Tribunal, as well as the compromises or decisions in
arbitration on questions of dispute among the Cantons. It makes such
appointments as are not intrusted to the Federal Assembly, Federal
Tribunal, or other authority. It examines the treaties made by the
Cantons with one another, or with foreign countries, and approves them,
if proper. It watches over the external interests of the Confederation,
especially in all international relations, and shall, in general, have
charge of foreign affairs. It protects the external safety, and the
independence and neutrality of Switzerland. It protects the internal
safety of the Confederation, and the maintenance of its peace and
order. In cases of urgency, and when the Federal Assembly is not
in session, the Federal Council shall have authority to raise the
necessary troops and employ them, with the reservation that it shall
immediately call the Federal Assembly together, if the number of men
called out shall exceed two thousand, or if they remain in arms more
than three weeks. It has charge of the federal army affairs and all
other branches of administration which belong to the Confederation.
It examines those laws and ordinances of the Cantons which must be
submitted for its approval; it exercises supervision over those
branches of cantonal administration that are placed under its control.
It administers the finances of the Confederation, introduces the
budget, and submits a statement of the accounts of federal income
and expenditure. It supervises the conduct of all the officials and
employés of the federal administration. It submits to the Federal
Assembly at each regular session a report of its administration, and
a statement of the condition of the Confederation, internal as well
as external; and recommends to its attention such measures as in its
judgment are desirable for the promotion of the common welfare. It
also makes special reports when the Federal Assembly or either branch
thereof requires it.
9. The business of the Federal Council is distributed by departments
among its members. This distribution has the purpose only of
facilitating the examination and despatch of business; every decision
must emanate from the Federal Council as a body (a single authority).
10. The Federal Council and its departments are authorized to call in
experts on special subjects.
In the exercise of several of its most important functions the
action of the Federal Council is essentially judicial. This is
conspicuously so in its right to examine the agreements made by
Cantons among themselves or with foreign governments; and to judge
of their conformity with the federal constitution. Under the name
of “administrative law,” it passes in a judicial capacity upon the
validity of numerous cantonal laws and ordinances, such as school
affairs, freedom of trade and commerce, patent rights, rights of
settlement, freedom from military service, rights of religious bodies,
validity of cantonal elections, votes, etc. But there is no efficient
instrumentality for the enforcement of the decrees of the Federal
Council against the Cantons in these cases. If a Canton adopts a
measure which the Council on appeal holds to be unconstitutional, and
it declines to conform to the Council’s order, the latter has no direct
way of enforcing it. The two methods of coercing a refractory Canton,
so far tried, have been,--to send a special agent to negotiate with the
cantonal authorities, and should his efforts fail, to quarter troops
and the expense of their maintenance upon the offending Canton, until
it yields; the other method is to keep back from the Canton subsidies
which are to be provided for local purposes from the federal treasury.
Both of these methods have been found efficacious. The Federal Council
retains, however, under all circumstances, a very affectionate, if not
reverential, tone in its communications to the Cantons, addressing them
as “Faithful and dear confederates,” and closing, “We embrace this
occasion, faithful and cherished confederates, to commend you with
ourselves to divine protection.”
The Federal Council exercises wider discretionary authority, in the
matter of arrest, of temporary imprisonment, of expulsion from the
territory, and the like, than seems inferable from the terms of the
constitution. A recent decree of the Federal Council forbade public
exhibitions of magnetism and hypnotism. Wherever there is discretion
there is room for arbitrariness, and in a republic, no less than under
a monarchy, discretionary authority on the part of the government means
insecurity for legal freedom on the part of the citizen. The Swiss
constitution apparently is more democratic than that of the United
States, from the fact that it does not vest the veto in any official;
yet in the amount of authority which is allowed to the executive power
over the citizen it is less democratic. Every legislative measure
passes under the inspection of the Federal Council before action
by the Federal Assembly; and the measures adopted by the Assembly
are promulgated by the Council, signed both by the President of the
Confederation and by the Chancellor, the ministerial officer of the
Council; no doubt, in all cases, two signatures are safer than one.
The Federal Council, rather than to take the initiative, sometimes,
by means of a suggestion from itself, is requested to present to the
Assembly a measure; in this event a rejection of the measure would
not be regarded by the Council in the light of a defeat. During the
recesses of the Assembly the federal Councillors, at the head of
committees designated by the Assembly or with expert commissions,
meet in different parts of the country, to consider subjects that
are to be brought before the Assembly. The bills are then prepared,
which, with full and careful explanatory reports, are published in the
official journal and carried by the newspapers to every corner of the
Confederation. They are discussed by the people, and when the Assembly
meets it is ready to take action with but little, if any, debate by the
prompt enactment of these recommendations into law, the chief to whose
department the subject-matter appertains being present, when it is
taken up in the Assembly, to give any further information that may be
desired.
All Swiss citizens eligible to the National Council are declared to be
eligible to the Federal Council. But practically the qualification of
a federal Councillor is _prior_ membership of the National Council.
Primarily the selection of federal Councillors is always made from
among the members of the National Council; and by a strange custom
invariably observed with only one exception since 1848, they are again
triennially returned to the National Council from their respective
districts while still serving as federal Councillors, and with the full
knowledge that within a few days after the convening of the Federal
Assembly they will be again chosen by that body for a new term in the
Federal Council. This necessitates supplementary elections to fill the
vacancies created in the Assembly. Again, at every recurring election
of the National Council, one of the sitting members from each district
wherein a federal Councillor resides, must make room for this temporary
appearance of the federal Councillor in the National Council, as a
condition precedent to his re-election. The sitting members cheerfully
yield to this exigency, conscious that they are standing aside for a
mere _locum tenens_, and in no wise imperilling the ultimate return
to their seats, after a traditional custom has been accommodated. One
district has of late years disregarded this custom, declining to go
through the empty form of electing to the National Council the federal
Councillor residing there, and whose re-election as federal Councillor
is conceded. This one obdurate district may, by persisting in its
course, be the means of the final overthrow of a practice, which at
present involves a double election for six seats every three years
at considerable expense and trouble: and apparently incapable of any
intelligent explanation. Like many customs, it has simply taken root
without any inquiry, and propagates itself without any opposition. A
partial explanation may be discovered in the desire to preserve the
identity of the federal Councillor with his Canton, and as a renewed
declaration that he continues to enjoy the confidence of, and is in
accord upon questions of public policy with, that local constituency
which in all probability he served for many years in the National
Council, before his promotion to the Federal Council. A federal officer
holding his office directly from the Federal Assembly, and at the same
time invested with the popular confidence of a local constituency
equally with the other members of that assembly, presents a most
remarkable assertion of local political autonomy in a purely national
affair.
Originally these federal Councillors, when during their term elected
to the National Council for the purpose of re-election to the Federal
Council, took their seats in the former when it convened, and exercised
all the functions of a member, yet concurrently holding their
portfolios in the Federal Council for an unexpired term. This twofold
service continued until their re-election for a new term took place,
when they resigned their seats in the National Council, and resumed the
single service of federal Councillors. It is related that one member
of the Federal Council, some years since, only secured re-election by
means of his own vote during his transition service as above described
in the National Council. Of late years the exercise of these dual
rights and privileges incident to this most singular condition of
things, while not in violation of any law, has been regarded with
disfavor, and the federal Councillors, during the few days of their
membership triennially in the National Council, confine themselves to
the privileges and rights that attach to a Councillor.
The geographical assignment of the members of the Federal Council is
well established by an unwritten law, which is faithfully observed; a
well-established usage in the election of the Federal Council assigns
one member to each of the Cantons of Bern, Vaud, Zurich, and Aargau,
and St. Gallen or Thurgau, then one each to the Catholic and Italian
Swiss. The constitutional inhibition of the choice of more than one
member from the same Canton may be regarded as a restriction that
limits the choice without any adequate counter-benefit; it may exclude
from the government statesmen of high merit, and thus diminish the
resources of the state.
The members of the Federal Council can be and are continually
re-elected, notwithstanding sharp antagonisms among themselves,
and it may be between them and a majority in the Assembly. They
also continue to discharge their administrative duties, whether
the measures submitted by them are or are not sanctioned by the
voters. The rejection of measures approved and proposed by them does
not necessarily injure their position with the country. The Swiss
distinguish between men and measures. They retain valued servants in
their employment, even though they reject their advice. They retain in
the service Councillors whose measures the voters nevertheless often
refuse to sanction. Valuing the executive ability of these men, still
they may constantly withhold assent from their suggestions.
The Council substantially in its present form came into existence
with the Constitution of 1848; the first election of its members
taking place in November of that year. The election, therefore,
which occurred on the 13th of December, 1887, was the fourteenth
triennial renewal of the Council, and covered a period of thirty-nine
years. During this period the complete roster of the members embraces
only twenty-seven names; even this small ratio of change resulted
in seven cases from death, and eleven from voluntary retirement;
leaving only two who failed to be re-elected on the avowed ground
of political divergence. This most remarkable conservatism on the
part of the Assembly, in retaining the members of the Council by
repeated re-elections, has survived important issues of public
policy, including several revisions of the constitution, upon which
there was a wide diversity of opinion in the Council; some of whom
actively participated in the discussions, antagonizing the views of
a majority of the Assembly; the Assembly to which they owed their
election and upon which they relied for their retention in office.
Their periodical re-election, though seemingly _pro forma_, carries
with it a salutary sense of accountableness. This sure tenure of
service in the Federal Council makes those chosen look upon it as
the business of their lives. Without this permanence attached to the
position, such men as now fill it could not be induced to do so.
They are men trained to vigorous personal and intellectual exertion,
who often surrender pursuits yielding a much more profitable return.
Precariousness of tenure in responsible positions discourages one
from engaging in those measures of long-sighted policy or those plans
of necessarily slow accomplishment, in which he might be so shortly
interrupted, and his labors rendered abortive and unavailing. Political
science, the science of wise government, is perhaps that department of
intellectual exertion which requires the greatest powers of mind and
the intensest application. Its facts are multifarious and complicated,
often anomalous and contradictory, and demanding the guidance of clear
perceptions. Its principles are many of them abstruse, and to be
developed by long and close processes of reasoning; and the application
of these principles requires the sagacity of quick observation and
long experience. It is a business which requires as long and arduous
preparation as any profession which can be named; and as entire
devotion to it, with freedom from all other serious or momentous
occupation, when its duties are once undertaken, as the calling of
a lawyer, a physician, a merchant, or an engineer. One chief reason
why there are so many needless, blundering, crude, mischievous, and
unintelligible actions in public life, is that men have not dedicated
themselves to its requirements as a separate study or profession; but
have considered it to be a business which might be played with in their
hours of leisure from more serious pursuits.
A member of the Federal Council cannot, during his term, “occupy any
other office in the service of the Confederation or a Canton, or
follow any other pursuit, or practise any profession.” He devotes his
entire time and attention to his department, and not a mere casual,
intermitting, and brief attention; or merely giving the refuse of his
time and abilities in passing judgment on what others have devised and
executed. He is obliged to attend to the routine, the detail, and all
the technical niceties of its daily administration.
The salaries paid to these distinguished officials are not relatively
higher than the wages of the people at large; and are very
insignificant when compared with the compensation accorded for like
services in other countries. Each of the seven members receives an
annual salary of 12,000 francs or $2316; the President of the Council
is given 1500 francs additional, making his salary $2605. This increase
of salary to the President is made under the head of “expenses of
representation,” understood to mean entertainments and kindred purposes
devolving upon this official. The entire annual appropriation made for
the maintenance of the executive department will not exceed $17,000.[36]
The business of the Federal Council is distributed among seven
departments, as follows:
1. Foreign Affairs.
2. Interior.
3. Justice and Police.
4. Military.
5. Finance and Customs.
6. Industry and Agriculture.
7. Posts and Railways.
Each one of these departments is presided over by one of the
Councillors. When the Council is integrally renewed by the Assembly
there is no designation or assignment of any department; the members
are simply chosen as federal Councillors, and make the apportionment
among themselves; and an agreeable understanding has always been
reached. According to the constitution this departmental division is
only “to facilitate the examination and despatch of business; all
decisions must emanate from the Council as a whole.” Regular Council
meetings are generally held twice a week. A decision is not valid
unless at least four members are present, and no decision can be
reversed except by four out of the seven, in a session attended by more
than four. The Councillor presides over his department, conducting it
much as an ordinary Secretary would under a cabinet system. In theory,
each is responsible for all, and all are responsible for each. There is
no question of rank, each department is of equal dignity.
The _Bundespräsident_, or President of the Confederation, is merely
the chairman for a year of the Federal Council. He is only the chief
of the executive; he is not himself the whole of it, and therefore can
hardly be called the executive chief of the nation. His commission
as President simply enhances his dignity, and does not confer upon
him any additional power or responsibility. The other members are
his colleagues, not his mere agents or advisers; he is only _primus
inter pares_. He has no appointive power or patronage, no veto, no
right of even nomination to any position. Not a single Swiss official
at home or abroad is disturbed by the annual change in the executive
head. Few republics have invested a single magistrate with such large
powers as the President of the United States; few commonwealths have
given a nominal chief magistrate so small a degree of power as belongs
to the Swiss President. He is not a chief magistrate. He is chief
of a board, which board, in its collective capacity, acts as chief
magistrate. The central authority in Switzerland, since the birth of
the republic, has always been vested in a committee; and a committee
it is to-day. The small addition to the salary, giving audience for
letters of credence and recall from diplomatic representatives,
precedence on state and ceremonial occasions, and the right to be
addressed as “_Son Excellence_,” about exhaust the special privileges,
power, and dignity of the President of the Confederation. He is just as
accessible to the public as any of his colleagues. He has no guards,
no lords in waiting, no liveried ushers, no gewgaws and trappings.
You may go to his official quarters with as little ceremony as you
may call on a private citizen. The stranger may knock at the door
and the chief magistrate of the Confederation bids him to come in.
The new President enters upon the discharge of his duties on the 1st
of January, following his election.[37] There is no formal or public
installation, no demonstration, civic or military. The newly-elected
President repairs to his modest chambers in the federal palace at noon,
where alone he receives all who desire to call and pay their respects.
This opportunity is availed of very little beyond the members of the
diplomatic corps, who are expected to tender their congratulations
personally and on behalf of the governments they represent. The writer
was told by a colleague, who had been recently transferred to Bern
from a post with an elaborate court, that on the announcement of the
death of the Swiss President he donned his full diplomatic uniform to
go and tender his official and personal condolence to the bereaved
family. With considerable difficulty he found the executive mansion
in apartments on the third floor of a building of a modest street.
There being no _portier_, he rang the bell at the street entrance
and ascended the stairs. Reaching the floor of the apartments he was
met at the door by a woman who was wiping her mouth with the corner
of her apron, evidently having been disturbed in a meal. She invited
the diplomat in, and receiving the card, to his surprise, instead
of leaving the room to deliver it, she invited him to be seated and
opened the conversation. He soon discovered that she was the widow
of the deceased President, and a woman of good education, force, and
character. All the organs of the Swiss government have an unassuming
and civic appearance, retaining in a degree the wisdom, moderation, and
simplicity of their ancient manners; those who are invested with high
trusts are ever ready and willing to retire to complete equality with
their fellow-citizens, from the eminence of civil or military station
to which their talents and the call of their country have raised them.
There is nothing of pomp and majesty; the soil is too natural for the
artificial forms of court diplomacy. The manly consciousness of freedom
which creates and finds expression in the constitution elevates the
middle classes who form its chief support; while the direct or indirect
contact with public affairs develops the intelligence and strengthens
the character of the citizen.
In its organization and practical workings, the Swiss executive is
claimed by some to be modelled after a better pattern than that
of the United States, in so far as escaping the great quadrennial
contests, and the passions, ambitions, and disappointments born of them
constituting, as more than once illustrated in the past, the greatest
national peril.
Previous to 1888, the President of the Confederation _ex officio_
became chief of what was called “The Political Department,” including
the conduct of foreign affairs. A reorganization was found to be
advisable, and, being formulated by the Federal Council and approved
by the Federal Assembly, came into force on the 1st of January, 1888.
Under this rearrangement of portfolios “Foreign Affairs” is placed on
a new and separate footing and no longer falls to the President of
the current year. This new department retains what belonged to the
“Political Department,” with the exception of the former presidential
functions. It is charged also with the management of commerce in
general, with work preparatory to the negotiation of commercial
treaties, and co-operation in drawing up the customs tariff; also with
matters relating to industrial property, copyright, and emigration; and
covering all the more important relations of Switzerland with foreign
countries. It is the uniform practice for the Vice-President to succeed
the President. In this way every member of the Federal Council in turn
becomes President and Vice-President once during each septennial period.
Belonging to different political parties, the Councillors frequently
antagonize one another on the floor of the Assembly, but this is not
found to interfere with their harmonious working as an administrative
body. The right of the members of the Federal Council to participate in
the debates and make motions in the Federal Assembly, gives that body,
what the Congress of the United States has not, the advantage of a
direct ministerial explanation. Yet that ministerial explanation cannot
be, as it may be in England, mixed up with fears of votes of censure
on one side or of a penal dissolution on the other. Irremovable by the
existing Assembly,[38] with the question of their re-election dependent
on an Assembly which is not yet in existence, they have less need than
either American or English statesmen to adapt their policy to meet any
momentary cry. Is it not a most excellent political system? Is not this
relation between the legislature and the executive, both in theory and
practice, happily devised? It brings a quick and close communication
between these two great branches, and tends to promote a good
understanding between them. Elected by the Assembly, coming into office
along with it, there is every chance of the Council acting in harmony
with it; and their power of taking a share in the debates at once
enables the Assembly to be better informed on public affairs. There
is much in the Swiss experiment to refute the belief that there can
be no executive power proper, unless it derives its authority from an
independent source, and is made directly by the people, so it may claim
to be equally representative of the people, and to have received still
greater proof of the public confidence. The choice of the executive by
the legislative body may be susceptible to the objection that it fails
to furnish the limit and restraint that each of these powers should
exercise on the other; and that it is entitled to be regarded as only a
_Cabinet d’Affaires_,--a purely administrative committee. The history
of the Swiss system has developed no unusual dissensions between these
powers, and none are likely to occur. With the legislature governed as
a rule by motives of public utility, there is little room for want of
harmony with the executive, the simple function of which is to carry
into effect the measures which the legislature has decreed.
The present Federal Council of Switzerland is composed of men of
high order of ability, instructed by education and disciplined by
experience. They are men of crystalline integrity, trained familiarity
with the duties of their post, and profoundly patriotic in motive.
Among all the changes and complications of late years, no government
in Europe in its executive action has displayed a higher degree of
practical wisdom than the Federal Council of Switzerland. It acts with
sterling good sense and moderation, the result in a great measure of
that slow and cautious temperament which has ever marked the Swiss
character; traits which perhaps may be traced back to the privations
and distress through which, during a long course of years, they
struggled to the attainment of a dear-bought independence. It presides
over the national interests in an equitable and impartial spirit,
dealing wisely and temperately with the people without encroachment
or oppression, and, if we may judge from the insignificance of their
emoluments, without desire of advantage. The Councillors move in the
surest way, both to the attainment and preservation of power, through
the medium of those qualities which secure the esteem and gain the
confidence of the people. The people, on the other hand, behold
with content and satisfaction the absence of all selfish or ignoble
purpose in the labors of the Councillors; and sacrifice all factious
opposition and interference to the public benefit which they know to be
identified with the vigor, stability, and welfare of the government. It
is not too much to say that in the Federal Council of Switzerland an
honest attempt is made to follow the wise admonition of Cicero in his
“Offices:” “Those who design to be partakers in the government should
be sure to remember the two precepts of Plato; first, to make the
safety and interest of their citizens the great aim and design of all
their thoughts and endeavor without ever considering their own general
advantage; and, secondly, to take care of the whole collective body of
the republic so as not to serve the interests of any one party to the
prejudice or neglect of all the rest; for the government of a state is
much like the office of a guardian or trustee, which should always be
managed for the good of the pupil, and not of the persons to whom he is
intrusted.”
There has been some movement to change the mode of appointment to
the executive power of the Confederation. Like other human things,
it is not absolutely ideal in its working. The relations between the
executive and judicial departments are not what they should be, though
much better than they were at the beginning of the constitution. Yet,
on the whole, the working of the Swiss executive during the forty-two
years of its trial has been such that it need not shrink from a
comparison with the working of either of the two better known systems.
The fact of the Council being not directly chosen by the people is
claimed by some to be inconsistent with the “democratic theory.”
Surely it is not wise to exchange at the bidding of a certain abstract
doctrine a system which has worked well for so long, for one which is
not certain to work better, and which might work a great deal worse.
By many constitutional students the actual form of the Swiss executive
is looked on as the happiest of the political experiments of the
present half century. It seems to have escaped both some of the evils
which are incident to kings and some of the evils which are incident
to presidents. It seems more wisely planned, in all events for the
country in which it has arisen, than those forms to which we are better
accustomed.
CHAPTER V.
THE FEDERAL TRIBUNAL.
Bundesgericht; Tribunal fédéral.
The Swiss Federal Tribunal, in its present form, dating from 1874,
was originally set up in 1848. It is, however, the product of an
historical development extending over nearly six hundred years, and
the history of this period only will explain the exact meaning of the
carefully-balanced and guarded phrases which describe its jurisdiction.
Previous to 1848 there existed two methods for peaceably settling
disputes among members of the Confederation,--_friendly remonstrance_
and _arbitration_.
1. _Friendly Remonstrance._--This was the plan adopted in the two
earliest treaties of alliance, those of 1291 and 1315. In both cases
there were only three parties to the treaty,--Uri, Schwyz, and
Unterwalden,--and the object was to settle disputes between neighbors,
and in a friendly and informal way. The “Witan,” or wise men, met
together to heal the quarrel according to the rules of equity and
right. If either party refused to accept their decision, the other
confederates were to enforce obedience.
2. _Arbitration._--This first appeared in 1351, when Zurich joined
the League. It became more common as the number of the confederates
increased, and was the method employed when friendly remonstrance
failed, and when war was not declared. The arrangement as to the place
of meeting, the number and the method of choosing the arbitrators,
and other details, varied according to the stipulations contained in
the various treaties by which each Canton had been admitted into the
Confederation. The number of arbitrators was usually fixed at two for
each party, and, in case of disagreement, they selected an impartial
foreman or umpire; “the question of the choice of the foreman,” says
a contemporary historian, “was unquestionably the main point in the
whole system of the Courts of Arbitration, for, generally, he was
the only real and impartial judge.” This method was substantially
the only one employed from 1351 to 1798. During the existence of
the Helvetic Republic, there was established a Central Judiciary
along with a Central Executive and Legislature. It consisted of a
member and an assistant, nominated by each Canton, one-fourth being
renewed annually. It had original jurisdiction over the members of
the executive and of the legislature, and in criminal cases involving
the penalty of death or of imprisonment and banishment. It acted as a
Court of Appeals in civil matters, when the decisions of the inferior
courts were invalid by reason of want of jurisdiction, whether through
informality or violation of the constitution. This court practically
subsisted under Napoleon’s Act of Mediation, set up in 1803. With
the partial restoration of things in 1815 to the _status quo ante_
1798, came naturally the restoration of the arbitration system, with
reference to which the most elaborate regulations were laid down in
the Federal Pact. This codification legally subsisted till 1848. A
revision was attempted in 1832, when, after the Paris Revolution of
1830, more liberal ideas began to assert themselves in Switzerland, but
it failed through the opposition of the Conservatives. The Reformers,
however, were successful in 1848, and by the constitution adopted that
year, a Federal Court was created, with jurisdiction in civil and
criminal cases, and also a limited jurisdiction in cases where rights
guaranteed by the constitution were alleged to have been infringed;
_provided_ that the Federal Legislature referred such cases to it.
The court consisted of eleven judges and eleven substitutes, elected
by the Federal Assembly for a term of three years. The president and
vice-president of the court were appointed by the same body annually.
Another attempt at revision was made in 1872, by which the functions of
the court as an interpreter and upholder of rights guaranteed by the
federal and cantonal constitutions would be very much extended, but it
was rejected. There was an appeal on questions of public law to the
Federal Council, from which there was a further appeal to the Federal
Assembly. If the two chambers agreed, the decision was final; if they
disagreed, the decision of the Federal Council prevailed. This system
was found unsatisfactory, as a large part of the time of the chambers
was occupied in the discussion of mixed questions of law and politics.
When the Constitution of 1874 was adopted, this and many other defects
were in a measure remedied.
The fourth or last division of Chapter II. of the Swiss constitution,
“Federal Authorities,” is devoted to the Federal Tribunal, and declares:
1. There shall be a Federal Tribunal for the administration of justice
so far as it belongs to the Confederation. There shall be, moreover, a
jury for criminal cases.
2. The members of the Federal Tribunal and their alternates shall be
chosen by the Federal Assembly, which shall take care that all three
national languages are represented therein. The organization of the
Federal Tribunal and of its sections, the number of its members and
alternates, and their terms of office and salary shall be determined by
law.
3. Any Swiss citizen who is eligible to the National Council may be
chosen to the Federal Tribunal. The members of the Federal Assembly or
Federal Council, or officials appointed by those authorities, shall not
at the same time belong to the Federal Tribunal. The members of the
Federal Tribunal shall not during their term of office hold any other
office, either in the service of the Confederation or any Canton, nor
engage in any other pursuit, nor practise a profession.
4. The Federal Tribunal shall organize its own chancery, and appoint
the officials.
5. The judicial authority of the Federal Tribunal shall extend to civil
cases:
(_a_) Between the Confederation and the Cantons.
(_b_) Between the Confederation on the one part and corporations or
private persons on the other part; when such corporations or private
persons are the plaintiffs, and when the amount involved is of a degree
of importance to be fixed by federal legislation.
(_c_) Between Cantons.
(_d_) Between Cantons on the one part and corporations or private
persons on the other part upon the demand of either party, and where
the amount involved is of a degree of importance to be fixed by federal
legislation. It further has jurisdiction in suits concerning the status
of persons not subjects of any government (Heimathlosen), and conflicts
between Communes of different Cantons respecting the right of local
citizenship (_droit de cité_).
(_e_) The Federal Tribunal shall, moreover, decide other cases upon the
demand of both parties to the suit, and when the amount involved is of
a degree of importance to be fixed by federal legislation.
(_f_) The Federal Tribunal, with the aid of juries to pass upon
questions of fact, shall also have jurisdiction in criminal cases:
(1) Involving high treason against the Confederation or rebellion or
violence against the federal authorities.
(2) Involving crimes and misdemeanors against international law.
(3) Involving political crimes and misdemeanors which are the cause of
the result of such disturbances as call for armed federal intervention.
(4) Involving charges against officials appointed by a federal
authority upon the application of the latter.
(_g_) The Federal Tribunal further has jurisdiction:
(1) Over conflicts of jurisdiction between federal authorities on the
one part and cantonal authorities on the other part.
(2) Disputes between the Cantons involving questions of public law.
(3) Complaints concerning violations of the constitutional rights
of citizens, and complaints of private citizens on account of the
violation of concordats or treaties. Conflicts of administration are
reserved and are to be settled in a manner prescribed by federal
legislation. In all the forementioned cases the Federal Tribunal shall
apply the laws passed by the Federal Assembly, and those resolutions
which have a general import. It shall in like manner conform to all
treaties which have been ratified by the Federal Assembly.
(_h_) Besides the cases mentioned, the Confederation may by law place
other matters within the jurisdiction of the Federal Tribunal; in
particular, it may give to that court powers for securing uniformity
in the application of all federal laws passed in accordance with
provisions of the constitution.
In 1874, within one month after the new constitution came into force,
the Federal Assembly passed a very elaborate law relating to the
Federal Tribunal. The jurisdiction of the court was extended to:
1. Cases of expropriation for the construction of railways and other
works of public utility.
2. Questions between the Confederation and railway companies, and the
winding up of the latter.
3. Cases which by the constitution or the legislation of a Canton are
intrusted to its competency, when such cantonal provisions have been
approved by the Federal Assembly.
As a Court of Appeals under the same federal law it sits:
4. In cases where federal laws have to be applied by Cantonal
Tribunals, and the amount of the matter in dispute is 3000 francs
at least, or cannot be estimated; where either party appeals from
the judgment of the highest Cantonal Court (by agreement the parties
can make the appeal directly from the lower Cantonal Court, without
going to the Cantonal Court of Appeal). It also decides in cases of
extradition, when the demand is made under an existing treaty, in so
far as the application of the treaty is questioned; it settles boundary
questions between two Cantons, and questions of competence between the
authorities of different Cantons. In questions of jurisdiction between
the Federal Court and cantonal authority, or as to whether it should be
settled by a court of arbitration, the Tribunal itself decides as to
its own competence. In cases where questions between Cantons or between
a Canton and the Confederation come before the court, they come on
reference from the Federal Council. If the Council decides negatively
as to whether a matter ought to come before the court, the Assembly has
the final determination on the point.
This general organizing act of 1874 fixes the number of members of the
court and the alternates; their terms of office, salaries, and other
details. The number of judges is reduced from eleven to nine, and the
court shall never contain, at any given time, two or more persons
from the same family; the term is extended from three to six years.
The president and the vice-president are to be elected by the Federal
Assembly from among the judges, for the term of two years. The salaries
are fixed at 10,000 francs a year for the judges; 11,000 francs for
the president (or chief justice), and from 6000 to 8000 francs for
each of the secretaries. There must be two secretaries at least, one
from German-, the other from French-speaking Switzerland; both must
speak German and French, and one also Italian. They are chosen by the
court by ballot, and for a term of six years. The assistant judges or
alternates receive twenty-five francs a day when serving, and a fixed
travelling allowance. These assistant judges only sit in the place of
the judges who are prevented for some reason from sitting in person.
The judges and the secretaries when away from the seat of the court
on official business are paid fifteen francs a day additional, and a
travelling allowance. The vacations of the court must not exceed four
weeks in the year; but either the president or vice-president must
always remain at the permanent seat of the court. Temporary leave
of absence may be granted to the members of the court and to the
secretaries. The judges (but not the assistant judges) are required to
reside where the court is fixed. In cases of elections and in civil
and constitutional causes, seven judges form a quorum, and the number
present must always be uneven (apparently because the president has
no casting vote). A judge, ordinary or assistant, cannot sit when his
relatives of blood, or by marriage in an ascending or descending line,
or collaterals up to and including cousin-german or brother-in-law, are
in any way interested in the case. A judge is similarly disqualified
from sitting, when the affairs of his wards are under consideration,
or in a case in which he has taken any part personally as federal or
cantonal official, or judge, or arbitrator, or counsel; or in affairs
relating to an incorporated company of which he is a member; or when
his Commune or Canton of birth is a party; or when a suit is brought
against the executive or legislature of his Canton of birth. A judge
of either kind, ordinary or alternate, may be objected to by a party
to a suit, if the said judge is an enemy of or dependent on one of
the parties; or since the institution of the suit, as a member of the
court, has expressed his opinion on it; but the Federal Court as a
whole must be accepted by the parties. If by reason of such objections
there are not enough members to form a quorum, the chairman selects
by lot from among the presidents of the Supreme Cantonal Courts a
sufficient number of “extraordinary assistant judges,” _pro hac vice_.
The act designates three thousand francs as the minimum amount for
“degree of importance” to give jurisdiction in cases where a money
value must be fixed by federal legislation.
All members and officials of the court must be bound by oath to fulfil
the duties of their respective offices; the oath to be administered
to the judges in the presence of the Federal Assembly. This oath may
be taken by a “_Handgelübde_,” or raising of the hand, in the case of
persons objecting on conscientious grounds to take an oath. The court
is to sit and give judgment in public; this does not apply to the
juries or to preliminary inquiries. The president settles the order
of business and maintains order in court; being empowered to imprison
disobedient persons for twenty-four hours; and in extreme cases to
fine up to a hundred francs and to imprison up to twenty days. Every
year the court must submit an account of the business transacted by
it to the Federal Assembly, which has a right to criticise any act of
the court, but can alter only by a federal law any of its decisions
of which it may disapprove. The officials of the court have the right
of transacting in any Canton, without asking leave of the cantonal
authorities, all business which falls within their jurisdiction. Each
judge is permitted to deliver opinions in his own dialect. Another
federal law regulates with great detail the costs of the court,
which are defrayed out of the federal treasury, and likewise the
fees which are to be paid by parties to the suits. In the exercise
of the criminal jurisdiction the court goes on a circuit. For this
purpose the Confederation is divided into five assize districts. One
of these districts embraces French Switzerland; a second, Bern and
surrounding Cantons; a third, Zurich and the Cantons bordering upon
it; a fourth, central and part of east Switzerland; and the fifth,
Italian Switzerland. The court annually divides itself for criminal
business into three sections; a Chamber of Accusation and a Criminal
Chamber, each composed of three judges and three alternates, and a
Court of Criminal Appeal (_Tribunal de Cassation_), with five judges
and five alternates. Sentences are only valid when the court consists
of five members. The Criminal Chamber decides at what places in the
several districts assizes shall be held. The localities selected
furnish at their own cost places of meeting. The cantonal police and
court officials serve as officers of the court. The court elects every
six years, to hold for the whole term of the court, two “Judges of
Inquest” (_Untersuchungsrichter_), who are charged with the preparation
of cases. The federal assizes are composed of the Criminal Chamber and
a jury of twelve, elected in the Cantons by the people, and drawn by
lot from the list of the district in which the assizes are to be held.
There is one juror for every one thousand inhabitants in the first four
districts as above given; and one for every five hundred in the fifth
district. With certain exceptions, every citizen having the right to
vote in federal matters is eligible as a juror. The exemptions are:
those of the full age of sixty, those whose names were placed on the
previous list of jurors, and those who are incapacitated by sickness
or infirmity. The names of all the jurors of the district are placed
in an urn, and fifty-four are drawn by lot. The _Procureur-général_ or
states-attorney, appointed by the Federal Council for the case, has the
right to challenge twenty and the accused also twenty; the remaining
fourteen are summoned, and two of this number are selected by lot to
act as substitutes in case of need. In order to acquit or condemn a
prisoner there must be a majority of at least ten out of the twelve;
otherwise, a new trial must take place with another jury. These federal
assizes are of rare occurrence, the last one being at Neuchâtel in
1879, when an anarchist was condemned for a crime against international
law (instigation to the assassination of sovereigns).
The power of the court in the matter of claims for violation of rights
of citizens has been exercised with much latitude. The most usual
and proper cases arising under it are: infringements of the federal
guarantee to the citizen of equality before the law, of freedom of
settlement, of security against double taxation, of liberty of the
press, etc. But the court has gone much beyond these; its jurisdiction
has been extended to the hearing of complaints against cantonal
authorities, for ordinary alleged failures of justice, such as could
hardly have been contemplated by the constitution. It has even taken
jurisdiction of cases where the appellant asserts a denial of his claim
by a cantonal judge, grounded upon merely obstructive motives or an
arbitrary application of the law.
The Constitution of 1874 had as one of its chief objects the
strengthening of the federal judiciary; and by statutes, enacted in
pursuance of the constitutional authority given to the Federal Assembly
to place other matters within the competence of the court, there have
been transferred generally to it the appeals heretofore made from
the Federal Council to the Federal Assembly. There is no purpose to
entirely exclude the legislative branch from judicial action; for the
constitution, in dealing with the Federal Tribunal, expressly provides
that “administrative” cases are reserved to the Assembly; and the act
of 1874 defined the jurisdiction of the Federal Council and Federal
Assembly, under this reservation, to embrace disputes respecting
public primary schools of the Cantons, liberty of commerce and trade,
rights of established Swiss, religious disputes relating to matters of
public law, questions as to the calling out of the cantonal militia,
consumption taxes and import duties, exemption from military service,
and the validity of cantonal elections and votes. In all these cases
an appeal lies from the Federal Council to the Federal Assembly. Thus a
wide field of judicial action is withheld from the sphere of the court,
and upon questions which do not appear to possess any “administrative”
character; producing a division of functions which is very anomalous.
There has always existed in Switzerland a very strong current of
opinion, that the court should be occupied exclusively with questions
of public law, and should possess no jurisdiction in matters of private
law. The Federal Tribunal has no officers of its own to execute its
judgments; but its judgments, as well as the decrees of courts of
arbitration in intercantonal conflicts, are executed by the Federal
Assembly; and the Federal Assembly in turn is obliged to resort to
cantonal machinery for the purpose of doing this; so that, in fact,
these judgments finally are executed by the cantonal authorities.
The Federal Tribunal had no permanent seat from 1848 to 1874, and
met in different places. In 1874, by action of the Federal Assembly,
Lausanne was chosen for its permanent location; the Canton of Vaud, in
consideration of this honor, erected and presented to the Confederation
a _palais de justice_, the most elegant and commodious public building
in Switzerland.
No professional qualification is required for eligibility to the
Federal Tribunal; any Swiss citizen eligible for the lower branch
of the Federal Assembly may be elected to the Tribunal. There is
no qualification for any federal office in Switzerland higher than
that for a member of the _Nationalrath_, or lower House of the
Federal Assembly. Any vote-possessing Swiss, twenty years of age
(except a naturalized citizen, who must wait for five years after his
naturalization), may be President of the Confederation or president
of the Federal Tribunal,--_i.e._, chief justice of the Confederation.
It naturally occurs that there should be some better guarantee for
the depth of knowledge and solidity of judgment necessary for the
intelligent consideration and discreet determination of the responsible
duties attached to these high positions, and which can be the result of
nothing but the thought and experience of more mature years. Certainly
in high judicial life there should be a tact, a ripeness, and a nicety
of judgment, an intuitive apprehension of the relations of things, and
a wisdom, which age indeed does not always bring, but which age alone
can bestow.
The courts in Switzerland have no place in the political government of
the country. The Federal Tribunal does not simply owe its existence to
the Federal Assembly, but is constitutionally forbidden to pass upon
the validity of the acts of its creator. It is not empowered to judge
of violations of the constitution, or to keep the legislature within
the limits of a delegated authority, by annulling whatever acts exceed
it. According to the Swiss theory, the legislative department wields
supreme power; is the sole judge of its own powers; and if, therefore,
its enactments conflict with the constitution, they are nevertheless
valid, and must operate _pro tanto_ as modifications or amendments of
it. The legislature is deemed to have the right of taking its own view
of the constitution. Its utterance is the guide for the court, which
is always subordinate to it, and bound to enforce every law passed by
it.[39] How different from the authoritative position of the courts in
the United States, where there is no department of the government in
which sound political views are more valuable than in the judiciary. No
lawyer can be found with the requisite strength of mind and character
to make a good judge on the Supreme Bench who is not a man of clear,
well-defined, and vigorous political opinions. The interpretation of
the more difficult legal problems calls for the application of those
fundamental principles of government upon which the great parties
are founded. In the history of the United States, parties have been
broadly characterized by their attitude towards the constitution. Their
greatest victories have been won in the decisions of the Supreme Court,
as each in turn has been represented there, and has impressed its views
upon the decisions of the judicature. Marshall, Taney, Chase, are the
names which stand as the high-water marks of the juridic-political
history. De Tocqueville, referring to the Supreme Court, says, “That
the peaceful and legal introduction of the judge into the domain of
politics is perhaps the most standing characteristic of a free people.”
The Supreme Court of the United States is universally regarded as the
most perfect instance of a court exercising the office of guardian
and interpreter of the constitution. It must not be forgotten that,
as such, it came into existence only under the second constitution;
previous to 1787, it was a mere committee of appeals, the judges
appointed directly by Congress, and dependent on it, or on its
indirect action. To-day it is the pivot on which the constitutional
arrangements of the country turn. It determines the limits to the
authority, both of the government and of the legislature; its decision
is without appeal; completely filling the idea held by some writers,
that federalism implies the predominance of the judiciary in the
constitution. It is a tribunal which can set aside a law of Congress,
and enjoin the executive from proceeding, when it is satisfied that
either law or proceeding is contrary to the constitution. It spurns
the warning of Lord Bacon to his ideal judge, in consulting with the
king and the state, “to remember that Solomon’s throne was supported
with lions on both sides; let them (the judges) be lions, but lions
under the throne, circumspect, that they do not check or oppose any
point of sovereignty.” Such power no other tribunal in any country
of the world possesses. No other country has a court whose power is
absolute to thwart, even the present will of the nation, by declaring
it out of harmony with a fundamental law adopted a century ago. Caleb
Cushing thus addressed the Supreme Court: “You are the incarnate mind
of the political body of the nation. In the complex institutions of
our country, you are the pivot upon which the rights and liberties of
all government and people alike turn; or, rather, you are the central
light of constitutional wisdom around which they perpetually revolve.”
The question of the court being identical with or independent of the
legislature of the supreme or federal government, and the separation of
the legislative and the judicial functions of government, is strongly
set forth in No. 78 of the “Federalist,” written by Alexander Hamilton:
“Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the constitution, has
arisen from an imagination that the doctrine would imply a superiority
of the judiciary to the legislative power. It is urged that the
authority which can declare the acts of another void, must necessarily
be superior to the one whose acts may be declared void. There is no
position which depends on clearer principles, than that every act of
a delegated authority, contrary to the tenor of the commission under
which it is exercised, is void. No legislative act, therefore, contrary
to the constitution, can be valid. If it be said that the legislative
body are themselves the constitutional judges of their own powers,
and that the construction they put upon them is conclusive upon the
other departments, it may be answered, that this cannot be the natural
presumption, where it is not to be collected from any particular
provisions in the constitution. The interpretation of the laws is the
proper and peculiar province of the courts. A constitution is, in fact,
and must be, regarded by the judges as a fundamental law. It must
therefore belong to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of course,
to be preferred; in other words, the constitution ought to be preferred
to the statute. Nor does the conclusion by any means suppose a
superiority of the judicial to the legislative power. It only supposes
that the power of the people is superior to both; and that where the
will of the legislature declared in its statutes, stands in opposition
to that of the people declared in the constitution, the judges ought
to be governed by the latter, rather than the former. They ought to
regulate their decisions by the fundamental laws, rather than by those
which are not fundamental.”
Jefferson apprehended encroachments by the Supreme Court, and declared
that it had the power “to lay all things at its feet.” This alarm
proved to be unfounded, and Mr. Jefferson himself, when the court in
his judgment passed beyond the undoubted limits of its authority, did
not hesitate to disregard the opinion of Chief-Justice Marshall, that
it was the duty of his secretary to deliver a judicial commission which
had been signed by his predecessor.[40]
To many the Supreme Court in its inception seemed the weakest of the
three departments; and it is doubtful if either Madison or Hamilton,
both of whom expected the court to exercise the power of declaring
laws unconstitutional, appreciated the mighty force passing into the
hands of the hitherto subordinate power. The judiciary act of 1789
provided for a review in the Supreme Court of cases where the validity
of a State statute or of any exercise of State authority should be
drawn in question on the ground of repugnancy to the constitution,
treaties, or laws of the United States, and the decision should be in
favor of the validity.[41] Though in the line of natural development,
and previous to the convention of 1787, asserted in New Jersey,
Virginia, Massachusetts, New York, and North Carolina, the exercise
of the full measure of this power in constitutional law presents an
interesting study in the history of the national and State governments.
A resolution was introduced in Congress in 1824 (Letcher, of Kentucky),
so to amend the judiciary act as to require more than a majority of
the judges to declare a State law void; and in 1830 an attempt was
made to repeal that section of the act, but it failed by a vote of one
hundred and thirty-seven to fifty-one. The doctrine of a co-ordinate
judiciary met with violent opposition in some of the States, notably
in Ohio in 1805, and in Kentucky in 1824 (“old court and new court”
struggle), and in the State of Pennsylvania as late as 1843. This power
to disregard the acts of the legislature and declare them null and void
because contrary to the supreme law of the constitution has been a
source of endless wonder to foreign students of the American system. In
speaking of it, Sir Henry Maine says, “There is no exact precedent for
it, either in the ancient or in the modern world.”[42] It is a new and
original idea in political science, introduced and applied exclusively
in the courts of the United States. The elevation of the judiciary to
equal rank with the executive and the legislature was the outgrowth of
a natural process of political evolution through a written constitution
and a federal system of government. Kent, in referring to the case
of Marbury vs. Madison, writes: “The power and duty of a judiciary
to disregard an unconstitutional act of Congress or of any State
legislature were declared in an argument approaching to the precision
and certainty of a mathematical demonstration.”[43] The power was
never seriously questioned in the federal courts after that clear and
conclusive opinion, and it was gradually established in all the States.
The Swiss Federal Tribunal, as a copy, is neither so consistent with
sound theory, nor so safe in practice, as its prototype in the United
States. The two systems meet by very different devices the problems
peculiar to federalism, and especially as concerns the interpretation
of the fundamental pact, or articles, or constitution, on which the
union rests. In the United States, this function is performed in the
last resort by the Supreme Court, and there is perhaps no other part
of our system which has extorted more admiration from foreign critics
than this exalted prerogative of the judiciary. But the Federal
Tribunal of Switzerland is a body of much more limited power and far
less dignity. Even its jurisdiction is determined in part by the laws
rather than by the constitution. In short, this tribunal appears as a
mere instrumentality of the other organs of the government, and not,
like the United States Supreme Court, a mediator between them, or even
a superior above them. The statesmen of Switzerland felt that a method
fit for the United States might be ill-fitted for their own country,
where the latitude given to the executive is greater; and the Swiss
habit of constantly recurring to popular votes makes it less necessary
to restrain the legislature by a permanently enacted instrument.
The Swiss constitution itself almost precludes the possibility of
encroachment upon its articles by the legislative body. When the
sovereign power can easily enforce its will, it may trust to its own
action for maintaining its rights; when, as in the United States, the
same power acts but rarely and with difficulty, the courts naturally
become the guardian of the sovereign’s will expressed in the articles
of the constitution. The right to declare laws void is not regarded
throughout Europe generally as judicial in its character, and hence
has not been intrusted to the courts; this may furnish a partial
explanation of the incompetence of the Swiss court in that respect.
The Federal Tribunal has been much improved since it was originally
set up, and will doubtless, with the decay of unreasonable jealousy of
the central government on the part of the Cantons, approach more and
more closely the Supreme Court of the United States, of which it is
an avowed copy, so far as Swiss political traditions and prejudices
would permit in 1848 and 1874. It rests with the Federal Assembly to
determine by statutes the particular questions which shall be submitted
to the court; these have already been greatly extended, and the court
will ultimately be given a still more independent and influential
position. The essence of judicial power consists not in judging, but
in laying down the law, or, according to the Roman expression, not _in
judicio_, but _in jure_. The purity of justice, the liberty of the
citizens, have gained by the change, and government has not lost in
security. Judicial power should be removed as far as possible from all
warping influence. It should be the great defender of established order
against the legislative and executive departments of government. Its
relation to the law-making and the law-executing powers is peculiarly
delicate and important. There is need that some other power, not
political, removed from the struggles of the present, having no ends
of its own to answer in the future, should have the function to decide
what is the meaning and application of a law; and whether there is any
positive conflict between a new one and a received one, or between a
new one and a constitution. This should be a power able to watch over
the constitution, and prevent invasions of it. The highest court can
exercise this guardianship better than any other board of control that
can be devised. The power of the judiciary, under certain conditions,
to pronounce upon the constitutionality of the laws is “a security to
the justice of the state against its power.”[44] The supreme power of
the court becomes the servant of the federative principle, which as
a mediator between opposing forces is pre-eminently a principle of
justice. The decision is now national, now in favor of the state, and
thus, through interpretation, the constitution is developed, and the
two forces have as free play in the judicial as in the more strictly
political action.
We speak of three co-ordinate branches and of their working, each in
a separate and defined province; and yet, as must of necessity be
the case in human affairs, the lines of demarcation are not always
clear, and unless confusion is to be endless, a power must exist
somewhere to determine the limits of the separate provinces, and to
decide controversies in regard to them. The power to do this has been
confided under the system of the United States to the courts, in
accordance with the principles of the common law, if not by the express
provisions of the constitution. To the United States Supreme Court is
confided the duty of deciding questions involving the limitations of
the different branches of the government. It diminishes the danger of
collision between the different political bodies among which power
is distributed, because these bodies are not brought into direct
contact, but act each in its own way directly on the people; the
courts regulating conflicts of authority as they arise. The peace,
the prosperity, and the very existence of the Union are invested in
its hands; the executive appeals to it for assistance against the
encroachments of the legislative power, and the legislature demands
its protection from the designs of the executive; it defends the Union
from disobedience of the States, and the States from the exaggerated
claims of the Union, the public interests against the interests of
private citizens, and the conservative spirit of order against the
fleeting innovations of democracy. This form of government, with the
immense power it gives to the courts, could not exist among a people
whose reverence for law and submissiveness to its mandates were not
very great, and would not be possible, moreover, if it did not rest on
a popular basis.
CHAPTER VI.
THE CANTONS.
Prior to the year 1798, the condition of a Swiss Canton was that of
a great feudal lord, with an aggregate of many separate seigniorial
properties; acquired partly by conquest, partly by purchase. In the
town Cantons, such as Bern, Basel, and Zurich, the town was the
lord, and the country districts were attached to each as dependent
properties. In the rural Cantons, such as Uri and Schwyz, it was an
aggregate of democratic communities, which exercised lordship over
other dependent communities in their neighborhood. The conquered
districts, instead of being created into new Cantons, remained subject,
in some cases to individual Cantons, in others to associations of
Cantons for their members jointly. In the rustic communities the
government was a pure democracy; in the cities it was tempered with a
small mixture of aristocracy. Each Canton had a separate coinage, its
batzen and rapps, kreutzers and schillings, sous and centimes, that
would not pass beyond its frontier.[45] Each Canton had its own agents
accredited to foreign powers. Each Canton kept a custom-house, and
manned a tower at every bridge, at which each load of grass, butt of
wine, sack of corn, and pound of cheese that passed the boundary was
taxed. Every Canton was a distinct body, independent from any other,
and exercising the sovereign power within itself; looking upon the rest
as mere allies to whom it was bound only by such acts to which it had
consented, and when any new thing not comprehended in this agreement
happened to arise, each Canton retained the power of determining the
matter for itself. The idea that the minority of Cantons was bound by
the decision of the majority took root slowly, and internal affairs
depended for settlement on remonstrance and mediation. They were kept
together by the peculiarity of their topographical position, by their
individual weakness, by their fear of powerful neighbors, by the few
sources of contention among a people of such simple and homogeneous
manners, and by their joint interest in their dependent possessions.
The conditions of the country and of its society contributed to
divide instead of to unite the different Cantons. Mountains and lakes
separated them into almost distinct nationalities; they were peopled
by different races, with differences of language, religion, customs,
industries, material interest, and social development,--more than a
hundred parcels of territory, each having its separate history, and
in many cases a far greater difference between the inhabitants than
between the people of Maine and Texas, of Massachusetts and California,
for they were a polyglot people without a community of language,
to which, as a cohesive force, nothing can compare, especially in
a democratic state governed by opinion expressed through universal
suffrage. Many were the difficulties and dangers through which
the Cantons had to struggle to break up this system and overcome
these causes of dissension. This was gradually accomplished by the
principles of confederation, judiciously and temperately applied to the
circumstances of the country.
The Swiss Cantons of to-day have very much the political organism of
the United States. They are sovereign in 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.
The Cantons are units of a federal state, possessed within certain
limits of independent and supreme power. The Swiss constitution,
after guaranteeing to the Cantons their sovereignty, their territory,
their constitutions, etc. (as pointed out in the chapter on the
constitution), again and again reverts to the rights, powers, and
duties of the Canton with that remarkable detail which characterizes
the text of that instrument in everything it touches. These cantonal
provisions are, viz.:
1. The Cantons have the right to make conventions among themselves upon
legislative, administrative, or judicial subjects; in all cases they
shall bring such conventions to the attention of the federal officials,
who are authorized to prevent their execution if they contain anything
contrary to the Confederation or to the rights of the Cantons.
Should such not be the case, the respective Cantons may demand the
co-operation of the federal authorities in their execution.
2. By exception, the Cantons preserve the right to conclude treaties
with foreign powers, respecting the administration of public property,
and border and police intercourse; but such treaties shall contain
nothing contrary to the Confederation or to the rights of the Canton.
3. Official intercourse between the Cantons and foreign governments or
their representatives shall take place through the Federal Council.
But the Cantons may deal directly with the subordinate officials and
officers of a foreign state in regard to the subjects enumerated (in
Section 2).
4. In the case of sudden danger of foreign attack, the authorities of
the Canton threatened shall request the aid of other members of the
Confederation, and shall immediately notify the federal government,
without prejudice, however, to the action of the latter. The Cantons
so summoned are bound to give aid. The expenses shall be borne by the
Confederation.
5. In case of internal disturbance, or when danger threatens from
another Canton, the authorities of the Canton threatened shall
immediately notify the Federal Council, in order that it may take
the necessary measures within the limits of its power, or may summon
the Federal Assembly. In urgent cases the authorities of the Canton
notifying the federal government of its action, may ask the aid of
other Cantons, to which the latter are bound to respond. If the
cantonal government is unable to call for aid, the federal authority,
having the power, may, and if the safety of Switzerland is endangered
shall, intervene without requisition. In case of federal intervention,
the federal authorities shall take care that the provisions of the
constitution guaranteeing the sovereignty of the Cantons be observed.
The expenses shall be borne by the Canton asking the aid or occasioning
federal intervention, except when the Federal Assembly otherwise
decides on account of special circumstances.
6. In the cases mentioned (Sections 4 and 5), every Canton is bound to
afford undisturbed passage for the troops. The troops shall immediately
be placed under federal command.
7. The Cantons may require proofs of competency from those who desire
to practise the liberal professions; federal legislation may provide
for certificates of competency valid for the whole Confederation.
8. Cantons, under the supervision of the Confederation, shall enforce
the federal laws relating to weights and measures.
9. Every citizen of a Canton is a Swiss citizen. As such (after
furnishing evidence of his right to vote) he can take part at his
place of residence in all federal elections and votes. No one shall
exercise political rights in more than one Canton. Every Swiss citizen
shall enjoy where he is domiciled all the rights of the citizens of
the Canton, as also all the rights of the citizens of the Commune. He
shall, however, have no share in the common property of the citizens or
of the corporation; nor shall he exercise the right to vote in matters
pertaining purely to such affairs unless the Canton by legislation has
otherwise provided. In cantonal and communal affairs he gains the right
to vote after a residence of three months. The cantonal laws relating
to the right of Swiss citizens to settle outside the Cantons in which
they were born, and to vote on communal questions, are subject to the
approval of the Federal Council.
10. No Canton shall expel from its territory one of its own citizens,
nor deprive him of his rights, whether acquired by birth or settlement
(_origine ou cité_).
11. Every Swiss citizen shall have the right to settle at any place
within Swiss territory, if he possesses a certificate of origin or
some similar paper. In exceptional cases the right of settlement may
be refused to, or withdrawn from, those who, in consequence of a penal
conviction, are not entitled to civil rights. The right of settlement
may, moreover, be withdrawn from those who, in consequence of serious
misdemeanors, have been repeatedly punished; and also from those who
become a permanent charge upon public charity, and to whom their
Commune or Canton of origin refuses adequate assistance after having
been officially asked to grant it. In Cantons where the system of local
relief obtains, the permission to settle, if it relates to natives of
the Canton, may be made dependent on the condition that the parties
are able to work, and have not hitherto been a permanent charge upon
public charity in their previous place of residence. Every expulsion
on account of poverty must be approved by the cantonal government,
and previous notice given to the government of the Canton of origin.
A Canton in which a Swiss establishes his domicile shall not require
security nor impose any special obligations for such establishment.
Nor shall the Commune in which he settles require from him other
contributions than those which it requires from its own citizens. A
federal law shall fix the maximum fee to be paid the registration
office for a permit to settle.
12. Persons settled in Switzerland shall, as a rule, be subjected to
the jurisdiction and legislation of their domicile in all that pertains
to their personal status and property rights. Federal law shall
determine the application of this principle, and shall also make the
necessary regulations to prevent double taxation of a citizen.
13. A marriage contracted in any Canton or in a foreign country,
according to the laws there prevailing, shall be recognized as valid
throughout the Confederation.
14. The Cantons by law shall provide against all abuse of the freedom
of the press, but such legislation shall be subject to the approval of
the Federal Council.
15. Citizens shall have the right to form associations, so far as they
are not, either in their purpose or methods, illegal or dangerous to
the state. The Canton by law shall take the measures necessary for the
suppression of abuses.
16. All the Cantons are bound to treat the citizens of the other
confederated states like their own citizens, both in their legislation
and in judicial procedure.
17. Civil judgments, definitely pronounced in any Canton, may be
executed anywhere in Switzerland.
18. The exit duty on property leaving one Canton for another
(_Abzugsrechte_; _la traite foraine_) is hereby abolished, as well as
rights of first purchase (_Zugrechte_; _droit de retrait_) by citizens
of one Canton against those of another Canton.[46]
19. The administration of justice remains with the Cantons, save as
affected by the powers of the Federal Tribunal.
20. The Cantons may, by correspondence, exercise the right of
initiative as to measures in either council of the Federal Assembly.
The duty of the federal government to intervene for the enforcement
of its guarantee of the “constitutional rights of citizens” in the
Cantons has been declared by the Federal Council in these words:
“When complaints are made regarding the violation of the constitution
in a Canton, and these are brought before the federal authorities,
the latter become in duty bound to investigate them and to form a
decision as to their foundation or want of foundation, and as to
necessary further regulations. For the Confederation guarantees
the constitutional rights of the citizen as well as the rights of
the authorities. The earlier articles of union also guaranteed the
constitutions, but this guarantee was otherwise explained, and many
complaints of unconstitutional proceedings and circumstances were
raised and disregarded. It was desired that these should be no longer
endured, and there was demanded an effective guarantee against
violations of the constitution. Thus arose Article 5 of the federal
constitution, which guaranteed with almost pedantic care the rights of
the nation and the constitutional rights of the citizen. It would, in
fact, be a remarkable relapse into the old view and order of things, a
striking denial of the principles contained in Article 5, if we were to
assume that, in case of a formally presented complaint, the federal
authorities were free to interfere or not. We hold rather that in such
cases the federal authorities are obliged to take up the complaints and
render a decision regarding them.”
If a cantonal law violates the federal constitution or a federal
law, the Federal Tribunal will declare it invalid; but in some cases
recourse must be had to the Federal Council. The protection guaranteed
by the constitution applies to disturbances of the peace within a
Canton, to attacks of one Canton on another, or to a foreign attack.
The appeal, as a rule, is to the Federal Council, exceptionally to
other Cantons; with the existing facilities for communication with the
Federal Council, aid is now demanded exclusively from that body. This
feature in the relation of the general government to the Canton, and
Canton to Canton, is very different from that of the United States
to the State, and State to State. The State is more independent than
the Canton of this external interference. It is not obliged to obey
the summons of any other State for help; it has, in fact, no right
to render any such aid. The government in the United States may not
intervene even to preserve order in a State except on the request of
the legislature or the executive of the State.
A special federal law enumerates the crimes for which one Canton may
demand from another the extradition of criminals. It embraces both
statutory and common-law crimes, and only stops at the limitation
fixed by the constitution, which declares that extradition may not be
rendered obligatory for political offences and those of the press. But
extradition may be refused, in any case, of persons who have acquired
citizenship, or who have settled in a Canton, when this Canton binds
itself to try and punish the accused according to its own law; or
allows a sentence already pronounced in another Canton to be executed
by its own officials.
The Cantons, not being limited by the terms of the federal
constitution, are left sovereign in matters of civil law (except as
regards the civil capacity of persons), the law of land, land rights,
descent and distribution, criminal law, cantonal and local police,
organization of the Communes, public works in general, organization
of schools (within limits of the constitution), the conclusion of
conventions with each other (called concordats), respecting matters
of administration, police, etc. The changes introduced by the
present constitution have had the effect to supplant many of the
cantonal laws, often very dissimilar and conflicting, by federal laws
applicable to the whole Confederation; establishing a uniformity
upon many important relations between the citizens and the state.
Revisions of the fundamental laws of the Cantons have been frequent;
most of the cantonal constitutions are of a recent date. From 1830
to 1874 there have been twenty-seven total or partial revisions of
the cantonal constitutions. In a large measure these were required
to harmonize them with the federal constitution, first of 1848 and
then of 1874. An amendment to a cantonal constitution becomes valid
only when ratified by the federal authorities; no concrete case being
necessary to test it,--the Swiss procedure to assure the supremacy
of the federal constitution being political, not judicial. Cantonal
constitutions present an infinite variety in their organisms and
operations; but it will be sufficient to give the general features
of one of the two distinctive types, the representative system; the
other, the _Landsgemeinde_ or open Assembly, composed of all the people
possessing votes, is reserved for a separate chapter. In the Cantons
of the representative system the legislative department consists of
but a single house, called the Greater or Grand Council (_Grosser
Rath_), and in a few of the Cantons known as the _Kantonsrath_ or
_Landrath_. The members are elected by direct popular vote, and, with
few exceptions, by the secret ballot; from electoral districts and by
_scrutin de liste_. The average representation is about one to every
one thousand inhabitants. In a few Cantons, representation is not
based upon the population, but is determined by the number of active
citizens; and in the Canton of Luzern, the number of representatives
is fixed by the constitution without any regard to the population, or
provision for future reapportionment. Every vote-possessing citizen
is ordinarily eligible for the Greater Council; the last vestiges
of property-qualification having disappeared. The Canton of Geneva
limits eligibility to those who have attained their twenty-sixth year.
In some Cantons functionaries salaried by the state are excluded.
There is a curious diversity presented in the federal and cantonal
age-qualification. A citizen of the Grisons attains political majority
for cantonal electoral purpose at the age of seventeen, or three years
before he can participate in federal elections. In the Canton of Geneva
the citizen only attains his political majority for cantonal purpose
at the age of twenty-one, or one year after he is a voter at federal
elections; and a Genevese can be a member of the Federal Assembly or
the federal supreme court or even President of the Confederation six
years before he is eligible to his cantonal legislature.
The terms in the Greater Council vary from one year to five. In many
of the Cantons the members receive no pay; the highest amount paid
is in the Canton of Geneva, and it is only six francs for each day
that there is a sitting. The Greater Council, besides drafting the
laws and decrees, and interpreting, suspending, and repealing them,
is ordinarily invested with legislative power over the organization
of administrations; the supervision of the execution of the laws;
the right of pardon; the ratification of cantonal agreements; the
establishment of cantonal taxes and the mode of their collection;
naturalization; ratification of loans contracted by the Canton; the
acquisition and alienation of cantonal property; public buildings;
the fixing of salaries and emoluments; the surveillance of the
executive and judicial powers, and the settlement of conflicts of
jurisdiction between these powers; the fixing of the annual budget;
the appointment of the members of the Lesser or State Council, as
well as the members of the Supreme Tribunal. In Geneva, Basel-rural,
Zurich, and Thurgau, the members of the Lesser Council are elected
directly by the people. This Lesser Council, which constitutes the
executive power, is variously called, in the different Cantons,
_Conseil d’État_, _Staatsrath_, _Standeskommission_, _Kleinerrath_.
Originally it was quite a large body; but recent revisions of the
cantonal constitutions have made a reduction in the number, and it now
consists of from five to seven members, who distribute among themselves
the different departments on the same system as that described of
the Federal Council. The terms vary from two years to four. In some
Cantons the members must be divided as far as practicable among the
several electoral districts. In all the Cantons this executive power
is collegiate,--that is, not vested in a single individual, but in a
commission. Nowhere does the chief magistrate hold the independent
position of an American State governor, but, like the President of
the Confederation, is mere chairman of the council. The salary paid
the members of the executive council is from three to five thousand
francs a year. This Council proposes laws and decrees to the Greater
Council, and watches over the maintenance of public tranquillity and
security, as well as over the execution of the laws, decrees, and
regulations of the Greater Council. It administers the funds of the
state; appoints those executive and administrative functionaries who
are immediately subordinate to it, and watches over them; it has also
the higher surveillance of the communal administrations, the poor,
the schools, and the churches. The qualification for a member of the
executive or Lesser Council is the same as that of the Greater Council;
and in both instances it is uniformly limited to active citizens and
laymen, and they are re-eligible without limit. The executive council
in the larger Cantons is represented, in districts established for the
purpose, by _Prefects_, or _Regierungsstatthalter_, or _Statthalter_,
who, associated with two Councillors, compose a commission for many
purposes. Although agents of the executive council, they are not always
appointed by it, but sometimes by the Greater Council, and often
directly by the people. The constitutions of most of the Cantons say
that the legislative, executive, and judicial functions shall be kept
distinct; yet in practice the line of demarcation is often ignored.
The legislative bodies are given an important share both in the
administration and interpretation of the laws. As in the federal, so
in the cantonal constitutions, there is not to be found that delicate
adjustment of the political forces, forming so conspicuous a feature
in the national as well as in the State system of the United States;
that great ingenuity and skill in the contrivances which prevent the
different representative bodies from being mere fac-similes of each
other, and at the same time preserve their equality in point of power.
A cantonal constitution usually opens with the declaration that the
“sovereignty resides in the people as a whole” (“_auf der Gresammtheit
des Volks beruhe_”); and then follows the further declaration that
the people, by virtue of that sovereignty, “give it [the Canton] the
following constitution;” also that this sovereignty is to be “directly
exerted by the active citizens and only indirectly by the magistrates
and officials;” that “the people exercise the legislative power in
co-operation with the cantonal council” (referring to the right of
_Initiative_ and _Referendum_); and that in this “it is the duty of
every citizen to participate.”
All the cantonal constitutions contain, in a more or less explicit and
elaborate manner, provisions of this nature, viz.:
All citizens are equal in the eye of the law and enjoy the same civil
rights; free expression of opinion by word or in writing; the right
of association and of assembly is guaranteed, subject to no other
restrictions than those of the common law; in libel suits, alleged
defamatory publications must not only be proven to be true, but must
appear to have been made from “honest motives and a righteous purpose;”
house and home right inviolable; house-searching by an official vested
with this power must be in advance carefully explained by the official,
as to the reason for and the extent of the proposed search; innocent
persons sentenced are entitled to restitution and just satisfaction
from the state; father and son, father-in-law and son-in-law, two
brothers, or two brothers-in-law cannot serve at the same time as
members of the executive or judicial department; all citizens subject
to taxation must contribute to the burdens of the state and the
community in accordance with their respective means; small estates
of persons disabled for work, as well as a sum absolutely necessary
for support, shall be exempt from taxation; tax exemptions in favor
of private persons or industrial companies forbidden; no new taxes
on the consumption of any of the necessaries of life to be levied;
cantonal and district officers to receive fixed salaries, all fees
going into the state treasury; organization and management of charity
left to the community;[47] the state to make suitable contributions
to lighten the burdens of poor communities, and especially to extend
its influence and aid in the education of the children of the poor,
improving the hospital service, and reforming the character and
ameliorating the condition of the neglected and dissolute; to render
assistance and facilities for the development of trades-unions based on
the principle of self-help; to pass laws essential for the protection
of the laboring classes; judicial sentences not to be set aside or
modified by any legislative or administrative authority, except in so
far as the pardoning power is vested in the cantonal council. There
are also numerous provisions relating to church affairs and education,
on parallel lines with those of the federal constitution, with the
addition that the former includes the organization and management of
the church communities which are exclusively under cantonal authority.