*443. The Rise of Socialism.*--In not a few respects the master fact of

Italian politics to-day is the remarkable growth of the Socialist

party. The origins of the socialist movement in Italy may be traced to

the Congress of Rimini in 1872, but during a considerable period

Italian socialism was scarcely distinguishable from Bakuninian

anarchism, and it was not before 1890 that the line between the two

was drawn with precision. In 1891 was founded the collectivist journal

_Critica Sociale_, and in the same year was held the first Italian

congress which was distinctively socialist. In 1892 came the final

break with the anarchists, and since this date socialism in Italy (p. 400)

has differed in no essential particulars from its counterpart in

other countries. Between 1891 and 1893 the new party was allied with

the Right, but Crispi's relentless policy of repression in 1894 had

the effect of driving gradually the radical groups, Republicans,

Radicals, and Socialists, into co-operation, and it is to this period

that the origins of the present coalition of the groups of the Extreme

Left are to be traced. During the years 1895-1900 the Socialists

assumed definitely the position of the advanced wing of a great

parliamentary party, with a very definite programme of political and

social reform. This "minimum programme," as it was gradually given

shape, came to comprise as its most essential features the

establishment of universal suffrage for adults of both sexes, the

payment of deputies and members of local councils, the enactment of a

more humane penal code, the replacing of the standing army by a

national militia, improved factory legislation, compulsory insurance

against sickness, the reform of laws regulating the relations of

landlords and tenants, the nationalization of railways and mines, the

extension of compulsory education, the abolition of duties on food,

and the enactment of a progressive income tax and succession duty. The

widespread dissatisfaction of Italians with the older parties, the

practical character of the socialist programme, and the comparatively

able leadership of the socialist forces have combined to give

socialism an enormous growth within the past fifteen years. In 1895

the party polled 60,000 votes and returned to the Chamber of Deputies

12 members. In 1897 it polled 108,000 votes and returned 16 members.

Thereafter the quota of seats carried at successive elections rose as

follows: 1900, 33; 1904, 26; 1906, 42; and 1909, 43.

*444. The Catholics and Politics: the Non Expedit.*--Aside from the

growth of socialism, the most important development in recent Italian

politics has been the changed attitude of the Holy See with respect to

the participation of Catholics in political affairs. The term

"Catholic" in Italy has a variety of significations. From one point of

view it denotes the great mass of the people--97.1 per cent in

1910--who are not Protestants, Greeks, Jews, or adherents of any faith

other than the Roman. In another sense it denotes that very much

smaller portion of the people who regularly and faithfully observe

Catholic precepts of worship. Finally, it denotes also the still

smaller body of men who yield the Pope implicit obedience in all

matters, civil as well as ecclesiastical, and who, with papal

sanction, are beginning to constitute an organized force in politics.

After it had become manifest that the Holy See might not hope for

assistance from the Catholic powers in the recovery of its temporal

possessions and of its accustomed independence, there was worked (p. 401)

out gradually at the Vatican a policy under which pressure was to be

brought to bear upon the Italian state from within. This policy

comprised abstention from participation in national political life on

the part of as many citizens as could be induced to admit the right of

the papal government to control their civic conduct. In protest

against the alleged usurpations of secular power Pope Pius IX.

promulgated, in 1883, the memorable decree _Non Expedit_, by which it

was declared "inexpedient" that Catholics should vote at parliamentary

elections. Leo XIII. maintained a similar attitude; and in 1895 he

went a step further by expressly forbidding what hitherto had been

pronounced simply inexpedient.

At no time, before or after Pope Leo's decree of prohibition, was the

policy of abstention widely enforced, and very many Catholics, both in

and out of Italy, warmly opposed it. The stricture was applied only to

parliamentary, not to municipal, elections; yet in the two the

percentages of the enfranchised citizens who appeared at the polls

continued to be not very unequal, and there is every reason to believe

that the meagerness of these percentages has been attributable at all

times to the habitual indifference of the Italian electorate rather

than to the restraining effects of the papal veto. None the less, in

the strongly Catholic province of Bergamo and in some other quarters,

the papal regulations, by common admission, have cut deeply into what

otherwise would have been the normal parliamentary vote.

*445. Relaxation of the Papal Ban.*--In the elections of 1904 many

Catholics who hitherto had abstained from voting joined with the

Government's supporters at the polls in an effort to check the growing

influence of the more radical political groups, justifying their

conduct by the conviction that the combatting of socialism is a

fundamental Catholic obligation. Pope Leo XIII. was ready to admit the

force of the argument, and in June of the following year there was

issued an encyclical which made it the duty of Catholics everywhere,

Italy included, to share in the maintenance of social order, and

permitted, and even enjoined, that they take part in political

contests in defense of social order whenever and wherever it was

obviously menaced. At the same time, such participation must be, not

indiscriminate, but disciplined. It must be carried on under the

direction of the ecclesiastical hierarchy, and with the express

approval of the Vatican. Theoretically, and as a general rule, the

_Non Expedit_ remains. But where the rigid application of the law

would open the way for the triumph of the enemies of society and of

religion (as, from the papal point of view, socialists inevitably are)

the rule, upon request of the bishop and sanction by the Holy See, is

to be waived. A corollary of this new policy is that, under (p. 402)

certain circumstances, Catholics not merely vote but may stand for

parliamentary seats. By the encyclical it is prescribed that such

candidacies shall be permitted only where absolutely necessary to

prevent the election of an avowed adversary of the Church, only where

there is a real chance of success, and only with the approbation of

the proper hierarchical authorities; and even then the candidate shall

seek office not _as_ a Catholic, but _although_ a Catholic.[576]

[Footnote 576: The idea is expressed in the phrase

_cattolici deputati, si, deputati cattolici, no_.]

The partial lifting of the _Non Expedit_ has had two obvious effects.

In the first place, it has stimulated considerably the political

activities of the Catholics. In the elections of 1906 and 1909 the

number of Catholic voters and of Catholic candidates was larger than

ever before, and in the Chamber of Deputies the group of clerical

members gives promise of attaining some real importance. A second result

has been, on the other hand, a quickening of the anti-clerical spirit,

with a perceptible strengthening of the radical-republican-socialist

_bloc_. By providing the Left with a solidifying issue it may yet

prove that the papacy has rendered unwittingly a service to the very

elements against whom it has authorized its adherents to wage

relentless war.[577]

[Footnote 577: Eufrasio, Il Non Expedit, in _Nuova

Antologia_, Sept. 1, 1904.]

*446. The Election of 1909.*--In respect to the parliamentary strength

of the several party groups the elections of the past decade have

produced occasional changes of consequence, but the situation to-day

is not widely different from what it was at the opening of the

century. In the Chamber elected in 1900 the Extreme Left obtained, in

all, 107 seats. In 1904 the total fell to 77. In 1906, however, the

Radicals secured 44, the Socialists 42, and the Republicans 23--an

aggregate of 109; and following the elections of March 7 and 14, 1909,

the quotas were, respectively, 37, 43, and 23, aggregating 103. The

falling-off in 1904 is to be explained principally by the activity of

the Catholics in the elections of that year, and the recovery in 1906

by the fact that, sobered by their reverses, the Socialists had

abandoned in the meantime the extremer phases of their revolutionary

propaganda. The elections of 1909 were precipitated by Giolitti's

dissolution of the Chamber, February 6, in consequence largely of the

dissatisfaction of the nation with the ministry's conciliatory

attitude toward Austria-Hungary following the annexation by that power

of the territories of Bosnia and Herzegovina. Despite the excitement

by which it was preceded, however, the campaign was a listless one.

The foreign situation as an issue was soon forgotten, and no

preponderating national question rose to assume its place. The (p. 403)

Left made the most of the opportunity to increase its parliamentary

strength, and the Catholics were more than ever active. The two

forces, however, in a measure offset each other, and the mass of the

nation, unreached by either, returned the customary overwhelming

Governmental majority. When various electoral contests had been

decided the quota of seats retained by each of the party groups in the

Chamber was found to be as follows: Radicals, 37; Socialists, 43;

Republicans, 23; Catholics, 16; Constitutional Opposition (separated

from the Government upon no vital matter of principle), 42; and

Ministerialists, or supporters of the Government, 346. These

supporters of the Government include men of varied political opinions,

but collectively they correspond approximately to the elements which

in other countries are apt to be designated Liberals, Progressives, or

Moderates.[578]

[Footnote 578: The political parties of Italy are

described briefly in Lowell, Governments and

Parties, II., Chap. 4, and at more length in King

and Okey, Italy To-day, Chaps. 1-3. Special works

of importance upon the subject include M.

Minghetti, I partiti politici e la ingerenza loro

nella giustizia e nell' amministrazione (2d ed.,

Bologna, 1881); P. Penciolelli, Le gouvernement

parlementaire et la lutte des partis en Italie

(Paris, 1911); and S. Sighele, Il nazionalismo e i

partiti politici (Milan, 1911). Of value are R.

Bonfadini, I partiti parlamentari, in _Nuova

Antologia_, Feb. 15, 1894, and A. Torresin,

Statistica delle elezioni generali politiche, in

_La Riforma Sociale_, Aug. 15, 1900. A useful

biography is W. J. Stillman, Francesco Crispi

(London, 1899), and an invaluable repository of

information is M. Prichard-Agnetti (trans.), The

Memoirs of Francesco Crispi, 2 vols. (New York,

1912). On the parties of the Extreme Left the

following may profitably be consulted: F. S. Nitti,

Il partito radicale (Turin and Rome, 1907); P.

Villari, Scritti sulla questione sociale in Italia

(Florence, 1902); R. Bonghi, Gli ultimi fatti

parlamentari, in _Nuova Antologia_, Jan. 1, 1895;

G. Alessio, Partiti e programmi, ibid., Oct. 16,

1900; G. Louis-Jaray, Le socialisme municipal en

Italie, in _Annales des Sciences Politiques_, May,

1904; R. Meynadier, Les partis d'extrême gauche et

la monarchie en Italie, in _Questions Diplomatiques

et Coloniales_, April 1, 1908; F. Magri, Riformisti

e rivoluzionari nel partito socialista italiano, in

_Rassegna Nazionale_, Nov. 16, 1906, and April 1,

1907; R. Soldi, Le varie correnti nel partito

socialista italiano, in _Giornale degli

Economisti_, June, 1903. On recent Italian

elections see G. Gidel, Les élections générales

italiennes de novembre 1904, in _Annales des

Sciences Politiques_, Jan., 1905; P.

Quentin-Bauchart, Les élections italiennes de mars

1909, ibid., July, 1909.]

PART V.--SWITZERLAND (p. 405)

CHAPTER XXII

THE CONSTITUTIONAL SYSTEM--THE CANTONS

I. THE CONFEDERATION AND ITS CONSTITUTION

Among the governments of contemporary Europe that of the federal

republic of Switzerland is unique; and the constitutional experiments

which have been, and are being, undertaken by the Swiss people give

the nation an importance for the student of politics altogether out of

proportion to its size and population. Nowhere in our day have been

put to the test in more thoroughgoing fashion the principles of

federalism, of a plural executive, of proportional representation, of

the initiative and the referendum, and, it may be said, of radical

democracy in general. The results attained within a sphere so

restricted, and under conditions of race, religion, and historical

tradition so unusual, may or may not be accepted as evidence of the

universal practicability of these principles. At the least, they are

of acknowledged interest.

*447. The Confederation in the Eighteenth Century.*--In the form in

which it exists to-day the Swiss Confederation is a product of the

middle and later nineteenth century. The origins of it, however, are

to be traced to a very much remoter period. Beginning with the

alliance of the three forest cantons of Uri, Schwyz, and Unterwalden

in 1291,[579] the Confederation was built up through the gradual creation

of new cantons, the splitting of old ones, the reorganization of (p. 406)

dependent territories, and the development of a federal governmental

system, superimposed upon the constitutional arrangements of the

affiliated states. In 1789, when the French Directory, at the

instigation of Napoleon, took it upon itself to revolutionize

Switzerland, the Confederation consisted of thirteen cantons.[580]

With it were associated certain _Zugewandte Orte_, or allied

districts, some of which eventually were erected into cantons,

together with a number of _Gemeine Vogteien_, or subject territories.

The Confederation comprised simply a _Staatenbund_, or league of

essentially autonomous states. Its only organ of common action was a

diet, in which each canton had a right to one vote. Save in matters of

a purely advisory nature, the powers of this diet were meager indeed.

Of the cantons, some were moderately democratic; others were highly

aristocratic. The political institutions of all were, in large

measure, such as had survived from the Middle Ages.

[Footnote 579: For an English version of the

Perpetual League of 1291 see Vincent, Government in

Switzerland, 285-288. The best account in English

of the origins of the Confederation is contained in

W. D. McCrackan, The Rise of the Swiss Republic (2d

ed., New York, 1901). Important are A. Rilliet, Les

origines de la confédération suisse (Geneva, 1868);

P. Vauchier, Les commencements de la confédération

suisse (Lausanne, 1891); W. Oechsli, Die Anfange

der schweizerischen Eidgenossenschaft (Zürich,

1891). Of the last-mentioned excellent work there

is a French translation, under the title Les

origines de la confédération suisse (Bern, 1891).

The origins of the Swiss Confederation were

described in a scientific manner for the first time

in the works of J. E. Kopp: Urkunden zur Geschichte

der eidgenössischen Bünde (Leipzig and Berlin,

1835), and Geschichte der eidgenössischen Bünde

(Leipzig and Berlin, 1845-1852). The texts of all

of the Swiss alliances to 1513 are printed in J.

von Ah, Die Bundesbriefe der alten Eidgenossen

(Einsiedeln, 1891).]

[Footnote 580: Lucerne joined the alliance in 1332;

Zürich in 1351; Glarus and Zug in 1352; Bern in

1353; Freiburg and Solothurn in 1481; Basel and

Schaffhausen in 1501; and Appenzell in 1513. "Swiss

history is largely the history of the drawing

together of bits of each of the Imperial kingdoms

(Germany, Italy, and Burgundy) for common defense

against a common foe--the Hapsburgs; and, when this

family have secured to themselves the permanent

possession of the Empire, the Swiss league little

by little wins its independence of the Empire,

practically in 1499, formally in 1648. Originally a

member of the Empire, the Confederation becomes

first an ally, then merely a friend." Encyclopedia

Britannica, 11th ed., XXVI., 246.]

*448. The Helvetic Republic.*--The result of the French intervention of

1798 was that, almost instantly, the loosely organized Swiss

confederation was converted into a centralized republic, tributary to

France, and under a constitution which was substantially a

reproduction of the French instrument of 1795. Under the terms of this

constitution the territories of the Confederation were split up into

twenty-three administrative districts, corresponding in but rare

instances to the earlier cantons,[581] a uniform Swiss citizenship was

established, a common suffrage was introduced, freedom of speech and

of the press was guaranteed, and unity was provided for in the

coinage, the postal service, and the penal law. A government of ample

powers was set up, with its seat at Lucerne, its organs comprising a

Grand Council of deputies elected indirectly in the cantons in

proportion to population, a Senate of four delegates from each canton

(together with retiring members of the Directory), and an Executive

Directory of five members, with whom were associated, for (p. 407)

administrative purposes, four appointed heads of departments. The

French intervention was ruthless and the governmental order thrust

upon the Swiss had no root in national tradition or interest. The

episode served, however, to break the shackles of mediævalism and thus

to contribute to the eventual establishment of a modernized

nationality. July 2, 1802, following a series of grave civil

disturbances, the constitution of 1798 was superseded by a new but

similar instrument, which was imposed by force despite an adverse

popular vote.[582]

[Footnote 581: To these districts, however, the

name canton was applied; and, indeed, this was the

first occasion upon which the name was employed

officially in Switzerland.]

[Footnote 582: McCrackan, Rise of the Swiss

Republic, 295-312; A. von Tillier, Geschichte der

helvetischen Republik, 3 vols. (Bern, 1843); Muret,

L'Invasion de la Suisse en 1798 (Lausanne,

1881-1884); L. Marsauche, La confédération

helvétique (Neuchâtel, 1890).]

*449. The Act of Mediation, 1803.*--Under the circumstances reaction was

inevitable, and the triumph of the "federalists" came more speedily

than might have been expected. In deference to preponderating

sentiment in the territories, Napoleon, February 19, 1803, promulgated

the memorable Act of Mediation, whereby he authorized the

re-establishment of a political system that was essentially

federal.[583] Once again there was set up a loose confederation, under

a constitution which, however, provided for a central government that

was distinctly more substantial than that which had prevailed prior to

1798. The right, for example, to make war and to conclude treaties,

withdrawn entirely from the individual cantons, was conferred

specifically upon the federal Diet. To the thirteen original cantons

were added six new ones--Aargau, Thurgau, Vaud, Ticino, and the

Grisons (St. Gall and Graubünden)--the first four formed from

districts which under the old régime had occupied the status of

subordinate territory, the last two having been formerly "allied

states." In the Diet six cantons (Bern, Zürich, Vaud, Aargau, St.

Gall, and Graubünden) which had a population in excess of 100,000 were

given each two votes. All others retained a right to but one. The

executive authority of the Confederation was vested by turns in the

six cantons of Bern, Freiburg, Lucerne, Zürich, Basel and Solothurn,

the "directorial" canton being known as the _Vorort_, and its chief

magistrate as the _Landammann_, of the Confederation. The principle of

centralization was in large part abandoned; but the equality of civil

rights which the French had introduced was not allowed by Napoleon to

be molested. It may be observed further that by the accession of the

newly created cantons, containing large bodies of people who spoke

French, Italian, and Romansch, the league ceased to be so (p. 408)

predominantly German as theretofore it had been.[584]

[Footnote 583: It is in this instrument that the

Confederation was for the first time designated

officially as "Switzerland."]

[Footnote 584: Cambridge Modern History, IX., Chap.

4 (bibliography, pp. 805-807). The best general

work on the period 1798-1813 is W. Oechsli,

Geschichte der Schweiz im XIX. Jahrhundert

(Leipzig, 1903), I.]

*450. The Pact of 1815 and the Revival of Particularism.*--The Act of

Mediation, on the whole not unacceptable to the majority of the Swiss

people, save in that it had been imposed by a foreign power, continued

in operation until 1813. During the decade Switzerland was essentially

tributary to France. With the fall of Napoleon the situation was

altered, and December 29, 1813, fourteen of the cantons, through their

representatives assembled at Zürich, declared the instrument to be no

longer in effect. Led by Bern, eight of the older cantons determined

upon a return to the system in operation prior to 1798, involving the

reduction of the six most recently created cantons to their former

inferior status. Inspired by the Tsar Alexander I., however, the

majority of the Allies refused to approve this programme, and, after

the Congress of Vienna had arranged for the admission to the

confederacy of the three allied districts of Valais, Geneva, and

Neuchâtel, there was worked out, by the Swiss themselves, a

constitution known as the "Federal Pact," which was formally approved

by the twenty-two cantons at Zürich, August 7, 1815.[585]

[Footnote 585: This statement needs to be qualified

by the observation that the half-canton Nidwalden

approved the constitution August 30, and only when

compelled by force to do so.]

By this instrument the ties which bound the federation together were

still further relaxed. The cantons regained almost the measure of

independence which they had possessed prior to the French

intervention. The Diet was maintained, on the basis now of one vote

for each canton, regardless of size or population.[586] It possessed

some powers,--for example, that of declaring war or peace, with the

consent of three-fourths of the cantons,--but there were virtually no

means by which the body could enforce the decrees which it enacted.

The executive authority of the Confederation was vested in the

governments of the three cantons of Zürich, Lucerne, and Bern, which,

it was stipulated, should serve in rotation, each during a period of

two years. Practically all of the guarantees of common citizenship,

religious toleration, and individual liberty which the French had

introduced were rescinded, and during the decade following 1815 the

trend in most of the more important cantons was not only particularistic

but also distinctly reactionary. The smaller and poorer ones (p. 409)

retained largely their democratic institutions, especially their

Landesgemeinden, or primary assemblies, but it was only after 1830,

and in some measure under the stimulus of the revolutionary movements

of that year, that the majority of the cantonal governments underwent

that regeneration in respect to the suffrage and the status of the

individual which lay behind the transforming movements of 1848.[587]

[Footnote 586: Three of the cantons--Unterwalden,

Basel, and Appenzell--were divided into

half-cantons, each with a government of its own;

but each possessed only half a vote in the Diet.]

[Footnote 587: B. Van Muyden, La suisse sous le

pacte de 1815, 2 vols. (Lausanne and Paris,

1890-1892); A. von Tillier, Geschichte der

Eidgenossenschaft während der sogen.

Restaurationsepoche, 1814-1830, 3 vols. (Bern and

Zürich, 1848-1850); ibid., Geschichte der

Eidgenossenschaft während der Zeit des

sogeheissenen Fortschritts, 1830-1846, 3 vols.

(Bern, 1854-1855).]

*451. Attempted Constitutional Revision: the Sonderbund.*--The period

between 1830 and 1848 was marked by not fewer than thirty revisions of

cantonal constitutions, all in the direction of broader

democracy.[588] The purposes of the liberal leaders of the day,

however, extended beyond the democratization of the individual

cantons. The thing at which they aimed ultimately was the

establishment, through the strengthening of the Confederation, of a

more effective nationality. On motion of the canton of Thurgau, a

committee was authorized in 1832 to draft a revision of the Pact. The

instrument which resulted preserved the federal character of the

nation, but provided for a permanent federal executive, a federal

court of justice, and the centralization of the customs, postal

service, coinage, and military instruction. By a narrow majority this

project, in 1833, was defeated. It was too radical to be acceptable to

the conservatives, and not sufficiently so to please the advanced

liberals.

[Footnote 588: McCracken, Rise of the Swiss

Republic, 325-330.]

The obstacles to be overcome--native conservatism, intercantonal

jealousy, and ecclesiastical heterogeneity--were tremendous. More than

once the Confederation seemed on the point of disruption. In

September, 1843, the seven Catholic cantons[589] entered into an

alliance, known as the Sonderbund, for the purpose of defending their

peculiar interests, and especially of circumventing any reorganization

of the confederacy which should involve the lessening of Catholic

privilege; and, in December, 1845, this affiliation was converted into

an armed league. In July, 1847, the Diet, in session at Bern, decreed

the dissolution of the Sonderbund; but the recalcitrant cantons

refused to abandon the course upon which they had entered, and it was

only after an eighteen-day armed conflict that the obstructive league

was suppressed.[590]

[Footnote 589: Lucerne, Uri, Schwyz, Unterwalden,

Zug, Freiburg, and the Valais.]

[Footnote 590: A. Stern, Zur Geschichte des

Sonderbundes, in _Historische Zeitschrift_, 1879;

W. B. Duffield, The War of the Sonderbund, in

_English Historical Review_, Oct., 1895; and P.

Matter, Le Sonderbund, in _Annales de l'École Libre

des Sciences Politiques_, Jan. 15, 1896.]

*452. The Constitution of 1848 and the Revision of 1874.*--The war (p. 410)

was worth while, because the crisis which it precipitated afforded

the liberals an opportunity to bring about the adoption of a wholly

new constitution. For a time the outlook was darkened by the

possibility of foreign intervention, but by the outbreak of the

revolution of 1848 at Paris that danger was effectually removed. The

upshot was that, through the agency of a committee of fourteen,

constituted, in fact, February 17, 1848--one week prior to the

overthrow of Louis Philippe--the nationalists proceeded to incorporate

freely the reforms they desired in a constitutional _projet_, and this

instrument the Diet forthwith revised slightly and placed before the

people for acceptance. By a vote of 15-1/2 cantons (with a population

of 1,900,000) to 6-1/2 (with a population of 290,000), the new

constitution was approved.

The adoption of the constitution of 1848, ensuring a modified revival

of the governmental régime of 1798-1803, comprised a distinct victory

for the Radical, or Centralist, party. During the two decades which

followed this party maintained complete control of the federal

government, and in 1872 it brought forward the draft of a new

constitution whose centralizing tendencies were still more pronounced.

By popular vote this proffered constitution was rejected. Another

draft, however, was prepared and, April 19, 1874, by a vote of 14-1/2

cantons against 7-1/2, it was adopted. The popular vote was 340,149 to

198,013. Amended subsequently upon a large number of occasions,[591]

the instrument of 1874 is the fundamental law of the Swiss

Confederation to-day, although it is essential to observe that it

represents only a revision of the constitution of 1848. As a recent

writer has said, "the one region on the continent to which the storms

of 1848 brought immediate advantage was Switzerland, for to them it

owes its transformation into a well-organized federal state."[592]

[Footnote 591: For the methods of constitutional

amendment see p. 431.]

[Footnote 592: W. Oechsli, in Cambridge Modern

History, XI., 234. A brief survey of the

constitutional history of Switzerland from 1848 to

1874 is contained in Chap. 8 of the volume

mentioned (bibliography, pp. 914-918). Two

excellent works are C. Hilty, Les constitutions

fédérales de la confédération suisse; exposé

historique (Neuchâtel, 1891), and T. Curti,

Geschichte der Schweiz im XIX. Jahrhundert

(Neuchâtel, 1902). A fairly satisfactory book is L.

Hug and R. Stead, Switzerland (New York, 1889). The

text of the constitution may be found in S. Kaiser

and J. Strickler, Geschichte und Texte der

Bundesverfassungen der schweizerischen

Eidgenossenschaft von der helvetischen

Staatsumwälzung bis zur Gegenwart (Bern, 1901), and

in Lowell, Governments and Parties, II., 405-431.

English versions are printed in Dodd, Modern

Constitutions, II., 257-290; McCrackan, Rise of the

Swiss Republic, 373-403; Vincent, Government in

Switzerland, 289-332; and Old South Leaflets,

General Series, No. 18. The texts of all federal

constitutions after 1798 are included in the work

of Kaiser and Strickler. A good collection of

recent documents is P. Wolf, Die schweizerische

Bundesgesetzgebung (2d ed., Basel, 1905-1908). The

principal treatises on the Swiss constitutional

system are J. J. Blumer, Handbuch des

schweizerischen Bundesstaatsrechtes (2d ed.,

Schaffhausen, 1877-1887); J. Schollenberger,

Bundesverfassung der schweizerischen

Eidgenossenschaft (Berlin, 1905); ibid., Das

Bundesstaatsrecht der Schweiz Geschichte und System

(Berlin, 1902); and W. Burckhardt, Kommentar der

Schweiz; Bundesverfassung vom 29 Mai 1874 (Bern,

1905). Two excellent briefer treatises are N. Droz,

Instruction civique (Lausanne, 1884) and A. von

Orelli, Das Staatsrecht der schweizerischen

Eidgenossenschaft (Freiburg, 1885), in

Marquardsen's Handbuch. The best treatise in

English upon the Swiss governmental system is J. M.

Vincent, Government in Switzerland (New York,

1900). Older works include B. Moses, The Federal

Government of Switzerland (Oakland, 1889); F. Adams

and C. Cunningham, The Swiss Confederation (London,

1889); and B. Winchester, The Swiss Republic

(Philadelphia, 1891). Mention should be made of A.

B. Hart, Introduction to the Study of Federal

Government (Boston, 1891); also of an exposition of

Swiss federalism in Dicey, Law of the Constitution,

7th ed., 517-529.]

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

*453. Dominance of the Federal Principle.*--In its preamble the Swiss

constitution proclaims its object to be "to confirm the alliance of

the Confederation and to maintain and to promote the unity, strength,

and honor of the Swiss nation;" and in its second article it affirms

that it is the purpose of the Confederation "to secure the

independence of the country against foreign nations, to maintain peace

and order within, to protect the liberty and the rights of the

confederates, and to foster their common welfare."[593] The use of the

term "nation" (which, curiously, nowhere occurs in the constitution of

the United States) might seem to imply a considerably larger measure

of centralization than in fact exists. For although the effect of the

constitution of 1848 was to convert a loosely organized league into a

firmly constructed state--to transform, as the Germans would say, a

_Staatenbund_ into a _Bundesstaat_--the measure of consolidation

attained fell, and still falls, somewhat short of that which has been

realized in the United States, and even in Germany. There are in the

Confederation twenty-two cantons, of which three (Unterwalden, Basel,

and Appenzell) have split into half-cantons; so that there are really

twenty-five political units, each with its own government, its own

laws, and its own political conditions. In territorial extent these

cantons vary all the way from 2,773 to 14 square miles, and in

population, from 642,744 to 13,796;[594] and the primary fact of (p. 412)

the Swiss governmental system is the remarkable measure of political

independence which these divisions, small as well as large, possess.

[Footnote 593: Dodd, Modern Constitutions, II.,

257.]

[Footnote 594: The total area of the Confederation

is approximately 16,000 square miles; the total

population, according to the census of December 1,

1910, is 3,741,971.]

*454. The Sovereignty of the Cantons.*--In the United States there was

throughout a prolonged period a fundamental difference of opinion

relative to the sovereignty of the individual states composing the

Union. The Constitution contains no explicit affirmation upon the

subject, and views maintained by nationalists and state right's

advocates alike have always been determined of necessity by

interpretation of history and of public law. In Switzerland, on the

contrary, there is, upon the main issue, no room for doubt. "The

cantons are sovereign," asserts the constitution, "so far as their

sovereignty is not limited by the federal constitution; and, as such,

they exercise all the rights which are not delegated to the federal

government."[595] As in the United States, the federal government is

restricted to the exercise of powers that are delegated, while the

federated states are free to exercise any that are not delegated

exclusively to the nation, nor prohibited to the states. In the Swiss

constitution, however, the delimitation of powers, especially those of

a legislative character, is so much more minute than in the American

instrument that comparatively little room is left for difference of

opinion as to what is and what is not "delegated."[596]

[Footnote 595: Art. 3. Dodd, Modern Constitutions,

II., 257.]

[Footnote 596: In the form in which it now exists

the Swiss constitution is one of the most

comprehensive instruments of the kind in existence.

Aside from various temporary provisions, it

contains, in all, 123 articles, some of

considerable length. As is true of the German

constitution, there is in it much that ordinarily

has no place in the fundamental law of a nation. A

curious illustration is afforded by an amendment of

1893 to the effect that "the killing of animals

without benumbing before the drawing of blood is

forbidden; this provision applies to every method

of slaughter and to every species of animals." Art.

25. Dodd, Modern Constitutions, II., 263. The

adoption of this amendment was an expression of

antisemitic prejudice.]

*455. Federal Control of the Cantons.*--After the analogy of the United

States, where the nation guarantees to each of the states a republican

form of government, the Swiss Confederation guarantees to the cantons

their territory, their sovereignty (within the limits fixed by the

fundamental law), their constitutions, the liberty and rights of their

people, and the privileges and powers which the people have conferred

upon those in authority. The cantons are empowered, and indeed

required, to call upon the Confederation for the guaranty of their

constitutions, and it is stipulated that such guaranty shall be

accorded in all instances where it can be shown that the constitution

in question contains nothing contrary to the provisions of the (p. 413)

federal constitution, that it assures the exercise of political rights

according to republican forms, that it has been ratified by the

people, and that it may be amended at any time by a majority of the

citizens.[597] A cantonal constitution which has not been accorded the

assent of the two houses of the federal assembly is inoperative; and

the same thing is true of even the minutest amendment. The control of

the federal government over the constitutional systems of the states

is thus more immediate, if not more effective, than in the United

States, where, after a state has been once admitted to the Union, the

federal power can reach its constitutional arrangements only through

the agency of the courts. Finally, in the event of insurrection the

government of the Confederation possesses a right to intervene in the

affairs of a canton, with or without a request for such intervention

by the constituted cantonal authorities. This right was exercised very

effectively upon the occasion of the Ticino disorders of 1889-1890.

[Footnote 597: Arts. 5 and 6. Dodd, Modern

Constitutions, II., 258.]

Like the American states, but unlike the German, the Swiss cantons

enjoy a complete equality of status and of rights. They are forbidden

to enter into alliances or treaties of a political nature among

themselves, though they are permitted to conclude intercantonal

conventions upon legislative, administrative, and judicial subjects,

provided such conventions, upon inspection by the federal officials,

are found to be devoid of stipulations contrary to the federal

constitution or inimical to the rights of any canton. In the event of

disputes between cantons, the questions at issue are required to be

submitted to the federal government for decision, and the individual

canton must refrain absolutely from the use of violence, and even from

military preparation.

*456. Powers Vested Exclusively in the Confederation.*--Within the text

of the constitution the division of powers between the federal and the

cantonal governments is minute, though far from systematic. The

clearest conception of the existing arrangements may perhaps be had by

observing that provision is made for three principal categories of

powers: (1) those that the Confederation has an exclusive right to

exercise, some being merely permissive, others obligatory; (2) those

which the Confederation is required, or allowed, to exercise in

concurrence with the cantons; and (3) those which are not permitted to

be exercised at all.

Of powers committed absolutely to the Confederation, the most

important are those of declaring war, making peace, and concluding

alliances and treaties with foreign powers, especially treaties

relating to tariffs and commerce.[598] The Confederation is (p. 414)

forbidden to maintain a standing army, and no canton, without federal

permission, may maintain a force numbering more than three hundred

men. None the less, by law of 1907, every male Swiss citizen between

the ages of twenty and forty-eight is liable to military service, and

the constitution vests not only the sole right of declaring war but

also the organization and control of the national forces in the

Confederation.[599] The neutralized status with which, by international

agreement, Switzerland has been vested renders a war in which the

nation should be involved, other, at any rate, than a civil contest,

extremely improbable.[600] Within the domain of international

relations, the cantons retain the right to conclude treaties with

foreign powers respecting border and police relations and the

administration of public property. All remaining phases of diplomatic

intercourse are confided exclusively to the Confederation. Other

functions vested in the federal authorities alone include the control

of the postal service and of telegraphs; the coining of money and the

maintenance of a monetary system; the issue of bank notes and of other

forms of paper money; the fixing of standards of weights and measures;

the maintenance of a monopoly of the manufacture and sale of

gunpowder; and the enactment of supplementary legislation relating to

domicile and citizenship.

[Footnote 598: Art. 8. Dodd, Modern Constitutions,

II., 258.]

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

[Footnote 600: McCrackan, Rise of the Swiss

Republic, 354-363; Payen, La neutralisation de la

Suisse, in _Annales de l'École Libre des Sciences

Politiques_, Oct. 15, 1892.]

*457. Concurrent Powers and Powers Denied the Confederation.*--Among

powers which are intrusted to the Confederation, to be exercised in

more or less close conjunction with the cantonal governments, are: (1)

the making of provision for public education, the cantons maintaining

a system of compulsory primary instruction, the Confederation

subsidizing educational establishments of higher rank;[601] (2) the

regulation of child labor, industrial conditions, emigration, and

insurance; (3) the maintenance of highways; (4) the regulation of the

press; and (5) the preservation of public order and of peace between

members of different religious organizations.

[Footnote 601: Art. 27. Dodd, Modern Constitutions,

II., 263.]

Several explicit prohibitions rest upon the authorities of both

Confederation and cantons. No treaties may be concluded whereby it is

agreed to furnish troops to other countries. No canton may expel from

its own territory one of its citizens, or deprive him of his rights.

No person may be compelled to become a member of a religious society,

to receive religious instruction, to perform any religious act, or to incur

penalty of any sort by reason of his religious opinions.[602] No (p. 415)

death penalty may be pronounced for a political offense. The

prohibitions, in short, which the constitution imposes upon federal

and cantonal authorities comprise essentially a bill of rights,

comparable with any to be found in a contemporary European

constitution.

[Footnote 602: Art. 49. Dodd, Modern Constitutions,

II., 271-272.]

*458. General Aspects.*--The fundamental thing to be observed is that

under the Swiss constitution, as under the German, the legislative

powers of the federal government are comprehensive, while the

executive authority, and especially the executive machinery, is

meager. The Confederation has power to legislate upon many

subjects--military service, the construction and operation of

railroads, education, labor, taxation, monopolies, insurance,

commerce, coinage, banking, citizenship, civil rights, bankruptcy,

criminal law, and numerous other things. In respect to taxation the

federal government possesses less power than does that of Germany, and

distinctly less than does that of the United States, for this power is

confined to the single field of customs legislation;[603] but in

virtually every other direction the legislative competence of the

Swiss central authorities is more extended. It is worth observing,

furthermore, that the centralizing tendency since 1874 has found

expression in a number of constitutional amendments whose effect has

been materially to enlarge the domain covered by federal legislation.

Among these may be mentioned the amendment of July 11, 1897, granting

the Confederation power to enact laws concerning the traffic in food

products, that of November 13, 1898, extending the federal legislative

power over the domain of civil and criminal law, that of July 5, 1908,

conferring upon the Confederation power to enact uniform regulations

respecting the arts and trades (thus bringing substantially the entire

domain of industrial legislation within the province of the

Confederation), and that of October 25, 1908, placing the utilization

of water-power under the supervision of the central authorities.

[Footnote 603: "The customs system shall be within

the control of the Confederation. The Confederation

may levy export and import duties." Art. 28. Dodd,

Modern Constitutions, II., 263. The constitution

stipulates further that imports of materials

essential for the manufactures and agriculture of

the country, and of necessaries of life in general,

shall be taxed as low as possible; also that export

taxes shall be kept at a minimum. Art. 42

prescribes that the expenditures of the

Confederation shall be met from the income from

federal property, the proceeds of the postal and

telegraph services, the proceeds of the powder

monopoly, half of the gross receipts from the tax

on military exemptions levied by the cantons, the

proceeds of the federal customs, and, finally, in

case of necessity, contributions levied upon the

cantons in proportion to their wealth and taxable

resources. Dodd, II., 269.]

Within the domain of administrative functions, the principle is (p. 416)

rather that of committing to the federal agencies a minimum of

authority. Beyond the management of foreign relations, the

administration of the customs, the postal, and the telegraph services,

and of the alcohol and powder monopolies, and the control of the

arsenals and of the army when in the field, the federal government

exercises directly but inconsiderable executive authority. It is only

in relation to the cantonal governments that its powers of an

administrative nature are large; and even there they are only

supervisory. In a number of highly important matters the constitution

leaves to the canton the right to make and enforce law, at the same

time committing to the Confederation the right to inspect, and even to

enforce, the execution of such measures. Thus it is stipulated that

the cantons shall provide for primary instruction which shall be

compulsory, non-sectarian, and free; and that "the Confederation shall

take the necessary measures against such cantons as do not fulfill

these duties."[604] Not only, therefore, does the federal government

enforce federal law, through its own officials or through those of the

canton; it supervises the enactment and enforcement of measures which

the constitution enjoins upon the cantons.[605]

[Footnote 604: Art. 27. Dodd, Modern Constitutions,

II., 263.]

[Footnote 605: A. Souriac, L'évolution de la

juridiction fédérale en Suisse (Paris, 1909).]

III. CANTONAL LEGISLATION: THE REFERENDUM AND THE INITIATIVE

*459. Variation of Cantonal Institutions.*--In its fundamental features

the federal government of Switzerland represents largely an adaptation

of the political principles and organs most commonly prevailing within

the individual cantons; from which it follows that an understanding of

the mechanism of the federation is conditioned upon an acquaintance

with that of the canton.[606] Anything, however, in the nature of a

description which will apply to the governmental systems of all of the

twenty-five cantons and half-cantons is impossible. Variation among

them, in both structure and procedure, is at least as common and as

wide as among the governments of the American commonwealths. Each

canton has its own constitution, and the Confederation is bound to

guarantee the maintenance of this instrument regardless of the

provisions which it may contain, provided only, as has been pointed

out, that there is in it nothing that is contrary to the federal (p. 417)

constitution, that it establishes a republican system of government,

and that it has been ratified by the people and may be amended upon

demand of a majority. The constitutions of the cantons are amended

easily and frequently; but while it may be affirmed that, in

consequence of their flexibility, they tend toward more rather than

toward less uniformity, the diversity that survives among them still

proclaims strikingly their separatist origin and character.

[Footnote 606: On the governments of the cantons

the principal general works are J. Schollenberger,

Grundriss der Staats-und Verwaltungsrechts der

schweizerischen Kantone, 3 vols. (Zürich,

1898-1900), and J. Dubs, Das öffentliche Recht der

schweizerischen Eidgenossenschaft (Zürich,

1877-1878), I. Brief accounts will be found in

Vincent, the Government of Switzerland, Chaps.

1-12.]

The point at which the governments of the cantons differ most widely

is in respect to arrangements for the exercise of the functions of

legislation. Taking the nature of the legislative process as a basis

of division, there may be said to be two classes of cantonal

governments. One comprises those in which the ultimate public powers

are vested in a Landesgemeinde, or primary assembly of citizens; the

other, those in which such powers have been committed to a body of

elected representatives. The second class, as will appear, falls again

into two groups, i.e., those in which the employment of the

referendum is obligatory and those in which it is merely optional.

*460. The Landesgemeinde.*--Prior to the French intervention of 1798

there were in the Confederation no fewer than eleven cantons whose

government was of the Landesgemeinde type. To-day there are but six

cantons and half-cantons--those, namely, of Uri, Glarus, the two

Unterwaldens, and the two Appenzells. Under varying circumstances, but

principally by reason of the increasingly unwieldy character of the

Landesgemeinde as population has grown, the rest have gone over to the

representative system. All of those in which the institution survives

are small in area and are situated in the more sparsely populated

mountain districts where conditions of living are primitive and where

there is little occasion for governmental elaborateness.[607]

[Footnote 607: The area of Zug is 92 square miles;

of Glarus, 267; of the Unterwaldens, 295; of the

Appenzells, 162. The longest dimension of any one

of these cantons is but thirty miles, and the

distance to be traversed by the citizen who wishes

to attend the Landesgemeinde of his canton rarely

exceeds ten miles. It was once the fashion to

represent the Swiss Landesgemeinde as a direct

survival of the primitive Germanic popular

assembly. For the classic statement of this view

see Freeman, Growth of the English Constitution,

Chap. 1. There is, however, every reason to believe

that between the two institutions there is no

historical connection.]

Nominally, the Landesgemeinde is an assembly composed of all male

citizens of the canton who have attained their majority. Actually, it

is a gathering of those who are able, or disposed, to be present. The

assembly meets regularly once a year, in April or May, at a centrally

located place within the canton, and usually in an open meadow. When

necessity arises, there may be convened a special session. With the

men come ordinarily the women and children, and the occasion (p. 418)

partakes of the character of a picturesque, even if solemn and

ceremonious, holiday. Under the presidency of the Landammann, or chief

executive of the canton, the assembly passes with despatch upon

whatsoever proposals may be laid before it by the Landrath, or Greater

Council. In the larger assemblies there is no privilege of debate.

Measures are simply adopted or rejected. In the smaller gatherings,

however, it is still possible to preserve some restricted privilege of

discussion. Unless a secret ballot is specifically demanded, voting is

by show of hands. Theoretically, any citizen possesses the right to

initiate propositions. In practice, however, virtually all measures

emanate from the Greater Council, and if the private citizen wishes to

bring forward a proposal he will be expected to do so by suggesting it

to the Council rather than by introducing it personally in the

assembly. The competence of the Landesgemeinde varies somewhat from

canton to canton, but in all cases it is very comprehensive. The

assembly authorizes the revision of the constitution, enacts all laws,

levies direct taxes, grants public privileges, establishes offices,

and elects all executive and judicial officials of the canton.

Directly or indirectly, it discharges, indeed, all of the fundamental

functions of government. It is the sovereign organ of a democracy as

thoroughgoing as any the world has ever known.[608]

[Footnote 608: H. D. Lloyd, A Sovereign People (New

York, 1907), Chap. 4.]

*461. The Greater Council.*--In every canton, whether or not of the

Landesgemeinde type, there is a popularly elected representative body,

the Greater Council, which performs a larger or smaller service in the

process of legislation. This body is variously known as the Grosser

Rath, the Landrath, and the Kantonsrath. In the cantons that maintain

the Landesgemeinde the functions of the Greater Council are

subsidiary. It chooses minor officials, audits accounts, and passes

unimportant ordinances; but its principal business is the preparation

of measures for the consideration of the Landesgemeinde. In the

cantons, however, in which the Landesgemeinde does not exist, the

Greater Council is a more important institution, for there it

comprises the only law-making body which is ever brought together at

one time or place. Where there exists the obligatory referendum, i.e.,

where all legislative measures are submitted to a direct popular

vote, the decisions of the Council are but provisional. But where the

referendum is optional the Council acquires in many matters the

substance of final authority.

Members of the Council are elected regularly in districts by direct

popular vote. The size of constituencies varies from 188 people in

Obwalden and 250 in Inner Appenzell to 1,500 in St. Gall and Zürich

and 2,500 in Bern. The electors include all males who have (p. 419)

completed their twentieth year and who are in possession of full civil

rights. The term of members varies from one to six years, but is

generally three or four. There are, as a rule, two meetings annually,

in some cantons a larger number. Beginning with the canton of Ticino

in 1891, there has been introduced into the governmental systems of

several cantons and of the two cities of Bern and Basel the principle

of proportional representation. The details vary, but the general

principle is that each political party shall be entitled to seats in

the Greater Council in the closest practicable proportion that the

party vote bears to the entire vote cast within the canton. Those

cantons where this principle is in operation are laid out in

districts, each of which is entitled to two or more representatives,

and the individual elector, while forbidden to cast more than one vote

for a given candidate, casts a number of votes corresponding to the

number of seats to be filled.[609]

[Footnote 609: For an excellent account of the

introduction of proportional representation in the

canton of Ticino see J. Galland, La démocratie

tessinoise et la représentation proportionnelle

(Grenoble, 1909). The canton in which the principle

has been adopted most recently is St. Gall. In

1893, 1901, and 1906 it was there rejected by the

people, but at the referendum of February, 1912, it

was approved, and in the following November the

cantonal legislature formally adopted it. For a

brief exposition of the workings of the system see

Vincent, Government in Switzerland, Chap. 4. An

important study of the subject is E. Klöti, Die

Proportionalwahl in der Schweiz; Geschichte,

Darstellung und Kritik (Bern, 1901). On the

proposed introduction of proportional

representation in the federal government see p.

433.]

*462. The Referendum: Origins and Operation.*--The most interesting if

not the most characteristic, of Swiss political institutions is the

referendum. The origins of the referendum in Switzerland may be traced

to a period at least as early as the sixteenth century. The principle

was applied first of all in the complicated governments of two

territories--the Grisons and the Valais--which have since become

cantons but which at the time mentioned were districts merely

affiliated with the Confederation. In the later sixteenth century

there were traces of the same principle in Bern and in Zürich. And, in

truth, the political arrangements of the early Confederation involved

the employment of a device which at least closely resembled the

referendum. Delegates sent by the cantons to the Diet were

commissioned only _ad audiendum et referendum_; that is to say, they

were authorized, not to agree finally to proposals, but simply to hear

them and to refer them to the cantonal governments for ultimate

decision.

In its present form, however, the Swiss referendum originated in the

canton of St. Gall in 1830. It is distinctively a nineteenth century

creation and is to be regarded as a product of the political

philosophy of Rousseau, the fundamental tenet of which was that (p. 420)

laws ought to be enacted, not through representatives, but by the

people directly.[610] The principle of the referendum may be applied

in two essentially distinct directions, i.e., to constitutions and

constitutional amendments and to ordinary laws. The referendum as

applied to constitutional instruments exists to-day in every one of

the Swiss cantons.[611] It is in no sense, however, peculiar to

Switzerland. The same principle obtains in several English-speaking

countries, as well as upon occasion elsewhere. The referendum as

applied to ordinary laws, on the other hand, is distinctively Swiss.

In our own day it is being brought into use in certain of the American

commonwealths and elsewhere, but it is Swiss in origin and spirit.

Inaugurated in part to supply the need created by a defective system

of representation and in part in deference to advanced democratic

theory, the referendum for ordinary laws exists to-day in every canton

of Switzerland save only that of Freiburg. In some cantons the

referendum is obligatory, in others it is "facultative," or optional.

Where the referendum is obligatory every legislative measure must be

referred to popular vote; where it is optional, a measure is referred

only upon demand of a specified number or proportion of voters. A

petition calling for a referendum must be presented to the executive

council of the canton, as a rule, within thirty days after the

enactment of the measure upon which it is proposed that a vote be

taken. The number of signers required to make the petition effective

varies from 500 in Zug to 6,000 in St. Gall. Likewise, the proportion

of voters which is competent to reject a measure is variable. In some

cantons a majority of all enfranchised citizens is required; in

others, a simple majority of those actually voting upon the

proposition in hand. In the event of popular rejection of a measure

which the cantonal legislature has passed, the executive council gives

the proper notice to the legislature, which thereupon pronounces the

measure void.[612]

[Footnote 610: Lowell, Governments and Parties,

II., 243.]

[Footnote 611: It will be observed, of course, that

in the cantons which maintain a Landesgemeinde

there is no occasion for the employment of the

referendum upon either constitutional or

legislative questions. The people there act

directly and necessarily upon every important

proposition.]

[Footnote 612: Important treatises on the Swiss

referendum are T. Curti, Geschichte der

schweizerischen Volksgesetzgebung (Zürich, 1885);

ibid., Die Volksabstimmung in der schweizerischen

Gesetzgebung (Zürich, 1886). A French version of

the former work, by J. Ronjat, has appeared under

the title Le référendum: histoire de la législation

populaire en Suisse (Paris, 1905). Of large value

is Curti, Die Resultate des schweizerischen

Referendums (2d ed., Bern, 1911). An older account

is J. A. Herzog, Das Referendum in der Schweiz

(Berlin, 1885). An excellent book is S. Duploige,

Le référendum en Suisse (Brussels, 1892), of which

there is an English translation, by C. P.

Trevelyan, under the title The Referendum in

Switzerland (London, 1898). Of value also are

Stüssi, Referendum und Initiative in den

Schweizerkantonen (Zürich, 1894), and J. Signorel,

Étude de législation comparée sur le référendum

législatif (Paris, 1896). Mention may be made of J.

Delpech, Quelques observations à propos du

référendum et des Landesgemeinde suisse, in _Revue

du Droit Public_, April-June, 1906.]

*463. The Initiative.*--The complement of the referendum is the (p. 421)

initiative. Through the exercise of the one the people may prevent the

taking effect of a law or a constitutional amendment to which they

object. Through the exercise of the other they may not merely bring

desired measures to the attention of the legislature; they may secure

the enactment of such measures despite the indifference or opposition

of the legislative body. In current political discussion, and in their

actual operation, the two are likely to be closely associated. They

are, however, quite distinct, as is illustrated by the fact that the

earliest adoptions of the initiative in Switzerland occurred in

cantons (Vaud in 1845 and Aargau in 1852) in which as yet the

referendum did not exist. Among the Swiss cantons the right of popular

legislative initiative is now all but universal. It has been

established in all of the cantons save Freiburg, Lucerne, and Valais.

As a rule, measures may be proposed by the same proportion of voters

as is competent to overthrow a measure referred from the legislature;

and any measure proposed by the requisite number of voters must be

taken under consideration by the legislature within a specified

period. If the legislature desires to prepare a counter-project to be

submitted to the voters along with the popularly initiated

proposition, it may do so. But the original proposal must, in any

case, go before the people, accompanied by the legislature's opinion

upon it; and their verdict is decisive.[613]

[Footnote 613: A. Keller, Das Volksinitiativrecht

nach den schweizerischen Kantonsverfassungen

(Zürich, 1889).]

IV. THE CANTONAL EXECUTIVE AND JUDICIARY

*464. The Council of State.*--Executive authority within the canton is

vested regularly in an administrative council, variously designated as

a Regierungsrath, a Standeskommission, or a Conseil d'État. The

Council of State (employing this phrase to designate each body of the

kind, however named) consists of from five to thirteen members,

serving for from one to five years. In more than half of the cantons

the members are chosen by popular vote; in the rest, they are elected

by the Greater Council, or legislature. By the Council of State (in a

few instances by the legislature) is chosen a chairman, or president,

known in the German cantons as the Landammann.[614] The office of

Landammann is one of dignity and honor, at least locally, but it (p. 422)

is not one of large authority. The Landammann is the chief spokesman

of the canton, but legally his status is scarcely superior to that of

his fellow councillors. The functions of the Council embrace the

execution of the laws, the preservation of order, the drawing up of

fiscal statements, the drafting of proposed legislation, the rendering

of decisions in cases on appeal, and, in general, the safeguarding of

the interests of the canton. For purposes of convenience the functions

of the Council are divided among departments, to each of which one of

the councillors is assigned. All acts, however, are performed in the

name of the Council as a whole. In those cantons which have

full-fledged legislative chambers councillors may attend sessions and

speak, though as a rule they may not vote.

[Footnote 614: In the Landesgemeinde cantons the

Landammann is elected by the primary assembly.]

*465. Local Administration.*--For purposes of administration all

cantons, save a few of the smaller ones, are divided into districts

(187 in the aggregate), at the head of each of which is placed a

prefect or Bezirksammann. This official, whether chosen by the Council

of State, by the Greater Council, or even by the people of the

district, is in every sense a representative of the cantonal

government. Sometimes he is assisted by a Bezirksrath, or district

council; frequently he is not. In Schwyz there is a Bezirksgemeinde,

or popular assembly, in each of the six districts, but this is wholly

exceptional.

Each canton is built up of communes, or Gemeinden, and these communes,

3,164 in number, comprise the most deeply rooted political units of

the country. Legally, each is composed of all male Swiss citizens over

twenty years of age resident within the communal bounds during a

period of at least three months. The meeting of these persons is known

as the Gemeindeversammlung, or the assemblée générale. By it are

chosen an executive council (the Gemeinderath or conseil municipal)

and a mayor (Gemeindepräsident). A principle adhered to by the

cantonal governments generally is that in the work of local

administration the largest possible use shall be made of the mayors of

towns, the headmen of villages, and other minor local dignitaries.[615]

[Footnote 615: Vincent, Government in Switzerland,

Chap. 10; Adams and Cunningham, The Swiss

Confederation, Chap. 8; Lloyd, A Sovereign People,

Chap. 3.]

*466. Justice.*--Each canton has a judicial system which is essentially

complete within itself. Judges are elected by the people. The

hierarchy of civil tribunals--the Vermittler, or justice of the peace,

the Bezirksgericht, or district court, and the Kantonsgericht--is

paralleled by a hierarchy of courts for the trial of criminal cases, a

special committee or chamber of the Kantonsgericht serving as the

criminal court of last resort. Only in few and wholly exceptional

instances may appeal be carried from a cantonal to a federal tribunal.

CHAPTER XXIII (p. 423)

THE FEDERAL GOVERNMENT

I. THE EXECUTIVE

*467. The Federal Council: the President.*--At the framing of the Swiss

constitution, as at that of the American, there arose the question of

a single or a plural executive. In the United States the disadvantages

assumed to be inherent in an executive which should consist of a

number of persons who were neither individually responsible nor likely

to be altogether harmonious determined a decision in favor of a single

president. In Switzerland, on the other hand, the cantonal tradition

of a collegiate executive, combined with an exaggerated fear of the

concentration of power, determined resort to the other alternative.

There is a president of the Swiss Confederation. But, as will appear,

his status is altogether different from that of the President of the

United States, and likewise from that of the President of France. The

Swiss executive consists rather of a Bundesrath, or Federal Council,

in which the President is little more than chairman.

"The supreme directive and executive authority of the Confederation,"

says the constitution, "shall be exercised by a Federal Council,

composed of seven members."[616] The members of the Federal Council

are elected by the Federal Assembly, i.e., the National Council and

the Council of the States in joint session, from among all citizens

eligible to the National Council, or popular legislative body, with

the condition simply that not more than one member may be chosen from

the same canton. Nominally, the term of members is three years;

practically, it is variable, for whenever the National Council is

dissolved prior to the expiration of its triennial period the new

Assembly proceeds forthwith to choose a new Federal Council. Two

officials, designated respectively as President of the Confederation

and Vice-President of the Federal Council, are elected annually by the

Assembly from among the seven members of the Council. A retiring

president may not be elected president or vice-president for the

succeeding year; nor may any member occupy the vice-presidency during

two consecutive years. By custom the vice-president regularly (p. 424)

succeeds to the presidency. The function of the President, as such, is

simply that of presiding over the deliberations of the Council. He has

no more power than any one of his six colleagues. Like each of them,

he assumes personal direction of some one of the principal executive

departments.[617] The only peculiarity of his status is that he

performs the ceremonial duties connected with the titular headship of

the state and draws a salary of 13,500 francs instead of the 12,000

drawn by each of the other councillors. He is in no sense a "chief

executive."

[Footnote 616: Art. 95. Dodd, Modern Constitutions,

II., 281.]

[Footnote 617: No longer, as prior to 1888,

necessarily that of foreign affairs.]

*468. The Executive Departments.*--The business of the Council is

divided among the seven departments of Foreign Affairs, Interior,

Justice and Police, Military Affairs, Imposts and Finance, Posts and

Railways, and Commerce, Industry, and Agriculture. Each department is

presided over by a member of the Council, and to each is assigned from

time to time, by the President, such subjects for consideration as

properly fall within its domain. It is stipulated by the constitution,

however, that this distribution shall be made for the purpose only of

facilitating the examination and despatch of business. All decisions

are required to emanate from the Council as a body.[618] Ordinarily a

councillor remains at the head of a department through a considerable

number of years,[619] and it may be added that, by reason of an

increase in the aggregate volume of governmental business, the

departmental head enjoys to-day a larger measure of independence than

formerly. A quorum of the Council consists of four members, and no

member may absent himself from a session without excuse. Except in

elections, voting is _viva voce_, and an abstract of proceedings is

published regularly in the official gazette of the Republic.

[Footnote 618: Art. 103. Dodd, Modern

Constitutions, II., 284. For a synopsis of the law

of July 8, 1887, whereby an apportionment of

functions was made among the various departments

see Dupriez, Les Ministres, II., 239-246.]

[Footnote 619: Members of the Council are

re-elected, almost as a matter of course, as long

as they are willing to serve. Between 1848 and 1893

the average period of service exceeded ten years.

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

*469. Actual Character of the Council.*--The Federal Council, although

at certain points resembling a cabinet, is not a cabinet, and no such

thing as cabinet government, or a parliamentary system, can be said to

exist in Switzerland. The Council does, it is true, prepare measures

and lay them before the Assembly. Its members even appear on the floor

of the two chambers and defend these measures. But the councillors are

not, and may not be, members of the Assembly; they do not, of

necessity, represent a common political party, faith, or programme,

they are not necessarily agreed among themselves upon the merits or

demerits of a particular legislative proposal; and if overruled by (p. 425)

a majority of the Assembly they do not so much as think of retiring

from office, for each member has been elected by a separate ballot for

a fixed term.[620] In other words, the Council is essentially what

Swiss writers have themselves denominated it, i.e., an executive

committee of the Federal Assembly. It possesses a large measure of

solidarity, but only for the purposes of routine business. Quite

superior to it in every way--so much so that even its most ordinary

administrative measures may be set aside--is the Assembly, as against

which the Council possesses not a shred of constitutional prerogative.

In the Assembly is vested ultimate authority, and in the event of a

clash of policies what the Assembly orders the Council performs.

Between the executive and the legislative branches of the government

the relation is quite as close as it is in a parliamentary system, but

the relation is of a totally different sort.[621]

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

Welti, a member of the Council since 1867, by

reason of the fact that the people rejected his

project for the governmental purchase of railway

shares occasioned general consternation.]

[Footnote 621: For interesting observations upon

the advantages and disadvantages of the Swiss

system see Lowell, Governments and Parties, II.,

204-208. See also Vincent, Government in

Switzerland, Chap. 16; Dupriez, Les Ministres, II.,

188-203.]

*470. The Council's Functions.*--The functions of the Council are at the

same time executive, legislative, and judicial. On the executive side

it is the duty of the body to "execute the laws and resolutions of the

Confederation and the judgments of the Federal Court"; to watch over

the external interests of the Confederation and to conduct foreign

relations; to safeguard the welfare, external and internal, of the

state; to make such appointments as are not intrusted to any other

agency; to administer the finances of the Confederation, introduce the

budget, and submit accounts of receipts and expenses; to supervise the

conduct of all officers and employees of the Confederation; to enforce

the observance of the federal constitution and the guaranty of the

cantonal constitutions; and to manage the federal military

establishment. In respect to legislation it is made the duty of the

Council to introduce bills or resolutions into the Federal Assembly

and to give its opinion upon the proposals submitted to it by the

chambers or by the cantons; also to submit to the Assembly at each

regular session an account of its own administration, together with a

report upon the internal conditions and the foreign relations of the

state.[622] The Council possesses no veto upon the Assembly's

measures. The judicial functions of the Council are such as arise from

the fact that there are in Switzerland no administrative courts, (p. 426)

so that the varied kinds of administrative cases which have been

withheld from the jurisdiction of the Federal Tribunal are in practice

dealt with directly by the Federal Council, with appeal, as a rule, to

the Assembly.[623]

[Footnote 622: Art. 102. Dodd, Modern

Constitutions, II., 282-284; Dupriez, Les

Ministres, II., 218-225.]

[Footnote 623: Art. 113. Dodd, Modern

Constitutions, II., 286. The nature and functions

of the Swiss executive are treated briefly in

Vincent, Government in Switzerland, Chap. 17, and

Adams and Cunningham, The Swiss Confederation,

Chap. 4. An excellent account is that in Dupriez,

Les Ministres, II., 182-246. Of value are Blumer

and Morel, Handbuch des schweizerischen

Bundesstaatsrechts, III., 34-92, and Dubs, Le droit

public de la confédération suisse, II., 77-105.]

II. LEGISLATION: THE FEDERAL ASSEMBLY

With specific reservation of the sovereign rights of the people and of

the cantons, the constitution vests the exercise of the supreme

authority of the Confederation in the Bundesversammlung, or Federal

Assembly. Unlike the cantonal legislatures, the Federal Assembly

consists of two houses--a Nationalrath, or National Council, and a

Ständerath, or Council of the States.[624] The one comprises

essentially a house of representatives; the other, a senate. The

adoption, in the constitution of 1848, of the hitherto untried

bicameral principle came about as a compromise between conflicting

demands of the same sort that were voiced in the Philadelphia

convention of 1787--the demand, that is, of the smaller federated

units for an equality of political power and that of the larger ones

for a proportioning of such power to population.

[Footnote 624: In French, the Conseil National and

the Conseil des États.]

*471. The National Council: Composition and Organization.*--The National

Council is composed of deputies chosen at a general election, for a

term of three years, by direct manhood suffrage. The constitution

stipulates that there shall be one representative for every 20,000

inhabitants, or major fraction thereof, and a reapportionment is made

consequent upon each decennial census. The electoral districts are so

laid out that no one comprises portions of different cantons; but they

are of varying sizes and are entitled to unequal numbers of

representatives, according to their population. Within the district

all representatives, if there are more than one, are chosen on a

general ticket, and the individual elector has a right to vote for a

number of candidates equal to the number of seats to be filled. The

quota of representatives falling to the various cantons under this

arrangement varies from one in Uri and in Zug to twenty-two in Zürich

and twenty-nine in Bern. Every canton and each of the six half-cantons

is entitled to at least one deputy. The total number in 1911 was 189.

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

twentieth year and who are in possession of the franchise within

their respective cantons. The establishment of electoral districts, as

well as the regulation of the conduct of federal elections, has been

accomplished, under provision of the constitution, by federal statute.

Voting is in all cases by secret ballot, and elections take place

always on the same day (the last Sunday in October) throughout the

entire country. An absolute majority of the votes cast is necessary

for election, save that, following two unsuccessful attempts to

procure such a majority within a district, at the third trial a simple

plurality is sufficient. Except that no member of the clergy may be

chosen, every citizen in possession of the federal franchise is

eligible to a seat in the National Council.[625] Members receive a

small salary, which is proportioned to days of actual attendance and

paid out of the federal treasury.

[Footnote 625: This denial of clerical eligibility

was inspired by fear of Catholic influences.]

At each regular or extraordinary session the National Council chooses

from among its members a president, a vice-president, and four

tellers, under the provision, however, that a member who during a

regular session has held the office of president is ineligible either

as president or vice-president at the ensuing regular session, and

that the same member may not be vice-president during two consecutive

regular sessions. In all elections within the National Council the

president participates as any other member; in legislative matters he

possesses a vote only in the event of a tie. The president,

vice-president, and tellers together comprise the "bureau" of the

Council, by which most of the committees are nominated, votes are

counted, and routine business is transacted.[626]

[Footnote 626: Arts. 72-79. Dodd, Modern

Constitutions, II., 277-278.]

*472. The Council of the States: Composition and

Status.*--Superficially, the Swiss Council of the States resembles the

American Senate, and it is commonly understood that the framers of the

constitution of 1848 created the institution not merely by reason of

an inevitable tendency to perpetuate in some measure the purely

federal features of the old Diet, but also in consequence of a

deliberate purpose to set up a legislative body which should fulfill

essentially those complementary and restraining functions which in the

United States were assigned to the upper chamber. In point of fact,

however, the Swiss Council has little in common with its American

counterpart. It consists of forty-four members, two chosen within each

canton; and to this extent it indeed resembles the Senate. The manner

of election and the qualifications of members, however, as well as

tenure of office and the arrangements made for remuneration, are not

regulated, as are similar matters in the United States, by the (p. 428)

constitution, or by federal authority, but, on the contrary, are left

entirely to be determined by the individual cantons. The consequence

is a total lack of uniformity in these highly important matters. In

some cantons members are elected by popular vote; in others, by the

legislative assembly. In some they are chosen for one year; in others,

for two; in still others, for three. The consequence is that the

Council is commonly lacking in compactness and morale. More serious

still is the fact that the functions of the upper chamber are in all

respects identical with those of the lower. The American Senate has

power and character of its own, quite apart from that of the House of

Representatives; the Swiss Council has nothing of the kind. Its

organization, even, is an almost exact replica of that of the lower

chamber.[627] In the earlier days of the present constitutional system

the Council enjoyed high prestige and influence; but by reason of the

conditions that have been described the body in time fell into

decline. Able and ambitious statesmen have preferred usually to be

identified with the lower house. The upper chamber possesses large

powers--powers nominally co-ordinate with those of the lower one--and

it has acted not infrequently with sufficient independence to defeat

measures advocated by the National Council. But, without being the

feeble upper chamber that is commonly associated with a parliamentary

system of government, it is yet essentially lacking in the initiative

and independence of a true senate.[628]

[Footnote 627: "Neither the president nor the

vice-president may be chosen at any session from

the canton from which the president for the

preceding session was chosen; and the

vice-presidency may not be held during two

successive regular sessions by representatives of

the same canton." Art. 82.]

[Footnote 628: Arts. 80-83. Dodd, Modern

Constitutions, II., 278.]

*473. Powers of the National Assembly.*--In the constitution it is

stipulated that the National Council and the Council of the States

shall have the right to consider all subjects placed within the

competence of the Confederation and not assigned to any other federal

authority.[629] The range of this competence is enormous. There are,

in the first place, certain functions which the two houses perform

while sitting jointly under the direction of the president of the

National Council. These are electoral and judicial in character and

comprise (1) the election of the Federal Council, or executive

committee of the Confederation, the federal judges, the chancellor,[630]

and the generals of the federal army; (2) the granting of pardons; (p. 429)

and (3) the adjustment of jurisdictional conflicts between different

branches of the federal governmental system.

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

[Footnote 630: The principal duty of the chancellor

is the keeping of the minutes of the National

Council. A vice-chancellor, appointed by the

Federal Council, performs a similar function in the

Council of States, under responsibility to the

chancellor.]

Much more extensive are the powers which the houses, sitting

separately, exercise concurrently. The constitution requires that the

councils be assembled at least once annually. In practice, they meet

in June and December of each year, regular sessions extending as a

rule through four or five weeks. At the request of either one-fourth

of the members of the National Council or of five cantons an

extraordinary session must be held, and there is a probability of one

such session each year, ordinarily in March. The powers assigned the

chambers to be exercised in their concurrent capacities may be

classified variously. The more important are: (1) the enactment of

laws and ordinances upon the organization and election of federal

authorities and upon all subjects which by the constitution are placed

within the federal competence; (2) the conduct of foreign relations,

particularly the concluding of treaties and alliances with foreign

powers, the supervision of conventions entered into by the cantons (in

the event that the Federal Council, or any canton, protests against

such cantonal arrangements), the declaring of war and the concluding

of peace, and the taking of measures for the safety, independence, and

neutrality of the Confederation; (3) the control of the federal army;

(4) the adoption of the annual budget, the authorizing of federal

loans, and the auditing of public accounts; (5) the taking of measures

for the enforcement of the provisions of the federal constitution, for

the carrying out of the guaranty of the cantonal constitutions, for

the fulfillment of federal obligations, and for the supervision of the

federal administration and of the federal courts; and (6) the revision

of the federal constitution.[631] It will be perceived that the powers

exercised by the chambers are principally legislative, but also in no

small degree executive and judicial; that, as has already been

emphasized, the two councils comprise the real directive agency of the

Confederation.

[Footnote 631: Art. 85, §§ 1-14. Dodd, Modern

Constitutions, II., 278-279.]

*474. The Assembly's Procedure.*--Federal laws, decrees, and resolutions

are passed only by agreement of the two councils. Any measure may

originate in either house and may be introduced by any member. There

are committees upon various subjects, but bills are referred to them

only by special vote. Committee members are chosen by the chamber directly

or by the chamber's "bureau," as the chamber itself may determine. In

each house a majority constitutes a quorum for the transaction of

business, and measures are passed by a simple majority. Sittings, (p. 430)

as a rule, are public. It is expressly forbidden that members shall

receive from their constituents, or from the cantonal governments,

instructions respecting the manner in which they shall vote.[632]

[Footnote 632: For a brief account of the procedure

of the chambers see Vincent, Government in

Switzerland, 181-187.]

III. LEGISLATION: THE REFERENDUM AND THE INITIATIVE

From the domain of cantonal legislative procedure there has been

carried over into federal law-making the fundamental principle of the

referendum. The federal referendum exists to-day in two forms, i.e.,

the optional and the obligatory. The one appeared for the first time

in the revised constitution of 1874 and is applicable exclusively to

projects of ordinary legislation. The other was established by the

constitution of 1848 and is applicable solely to proposed amendments

of that instrument.

*475. The Optional Referendum: Laws and Resolutions.*--After a law which

has been enacted by the Federal Assembly has been published it enters

regularly upon a probationary period of ninety days during which,

under stipulated conditions, it may be referred directly to the people

for ratification or rejection. The only exceptions are afforded by

those measures which, by declaration of the councils, are of a private

rather than a general character, and those which are "urgent." Such

acts take effect at once. But all others are suspended until there

shall have been adequate opportunity for the carrying through of a

referendum. At any time within the ninety-day period a referendum may

be demanded, either by the people directly or by the cantonal

governments. Petitions signed by as many as 30,000 voters, or adopted

by the legislatures of as many as eight cantons, render it obligatory

upon the Federal Council to arrange for the submission of a measure to

a referendum within four weeks after the announcement of the demand

has been made. The method of the referendum is carefully prescribed by

federal legislation. Every citizen in possession of unimpaired civil

rights is entitled to vote, and the voting takes place under the

supervision of the authorities of the commune and of the canton. If in

a majority of the cantons a preponderance of votes is cast in favor of

the measure in hand, the Federal Council proclaims the fact and the

measure goes at once into operation. An adverse majority, on the other

hand, renders the measure null. In the event that no referendum is

demanded, the measure, of course, goes automatically into effect at

the expiration of the ninety-day period. Since its introduction (p. 431)

into the federal constitution the principle of the legislative

referendum has been brought to bear upon a not inconsiderable number

of legislative projects. The proportion, indeed, of laws falling

within the range of the system which have been subjected to the

popular vote, while varying widely from time to time, has been not far

from ten per cent; and of the measures actually voted upon several of

importance have been rejected. In all instances the demand has arisen

directly from citizen petitioners, not from the cantonal

governments.[633]

[Footnote 633: On the operation of the optional

referendum see Lowell, Governments and Parties,

II., 252-261. "From 1874 till 1908 the Federal

Assembly passed 261 bills and resolutions which

could constitutionally be subjected to the

referendum. Thirty of these 261 were actually voted

on by the people, who ratified eleven and rejected

nineteen of them. The effect of the federal

optional legislative referendum was, then, to hold

up a little more than seven per cent of the

statutory output of the Federal Assembly." W. E.

Rappard, in _American Political Science Review_,

Aug., 1912, 357. On the most recent exercise of the

federal referendum (the adoption, February 4, 1912,

of a national Accident and Sickness Insurance bill)

see M. Turmann, Le référendum suisse du 4

février--la loi fédérale sur l'assurance-maladie et

l'assurance accident, in _Le Correspondant_, Feb.

10, 1912. This particular referendum was called for

by 75,000 voters. The measure submitted was

approved by a vote of 287,566 to 241,416, on a poll

of 63.04 per cent of the registered electorate.]

*476. The Obligatory Referendum: Constitutional Amendments.*--In its

application to laws and resolutions the referendum is optional; in

application to constitutional amendments it is obligatory. Revision of

the Swiss constitution may be accomplished at any time, in whole or in

part, and in a variety of modes. In the event that the legislative

councils are able to agree upon a scheme of revision they vote the

adoption of the proposed amendment precisely as if it were an ordinary

statute, and it is thereupon submitted to the people for acceptance or

rejection. If, however, the two houses disagree upon the question of a

total revision, or if as many as 50,000 voters make demand for a total

revision, there must be put to the people the preliminary question as

to whether there shall be a revision at all. If the will of the

majority is affirmative, new legislative councils must be elected, and

to them falls the obligation of executing the popular mandate.

When the question is one of but partial revision the procedure is

somewhat different. Partial revision may be instituted either by the

councils or by petition of 50,000 voters. When a popular petition is

presented there are four possible courses of action: (1) if the

project is presented in general terms and the councils are in

agreement upon it, they reduce the proposal to specific form and

submit it to the people; (2) if the councils are not in agreement (p. 432)

upon the project they put to the people the preliminary question of

whether an amendment of the general type proposed is desirable, and if

the vote is affirmative they proceed with the revision; (3) if the

petition is presented in a form that is specific and final and the

councils are in agreement upon it, the project is submitted forthwith

to the people; and (4) if the councils are not in agreement upon a

specific project so advanced, they may prepare a project of their own,

or recommend the rejection of the proposed amendment, and they may

submit their counter-project or their recommendation at the same time

that the initiative petition is presented to the people.[634] In no

case may an amendment be put into effect until it has received the

assent of a majority of those voting thereon in a majority of the

cantons. Of seventeen constitutional amendments submitted by the

Federal Assembly between 1874 and 1908 twelve were ratified and five

were rejected.

[Footnote 634: Arts. 118-123. Dodd, Modern

Constitutions, II., 287-289.]

*477. The Popular Initiative.*--The right of popular initiative in the

revision of the constitution was established by an amendment of July

5, 1891, through the united efforts of all the anti-Radical parties

and groups. The purpose underlying the amendment was to break the

monopoly long enjoyed by the Radicals by placing within the hands of

any fifty thousand citizens the power to compel the federal government

to take under consideration proposed modifications of the

constitution, to prepare projects relating to them, and to submit

these projects to the ultimate decision of the people. When the system

was established many persons seriously feared that the way had been

thrown open for frequent, needless, and revolutionary change, by which

the stability of the state would be impaired. Such apprehension,

however, has been proved groundless. During a score of years only nine

popularly-initiated amendments have been voted upon, and only three

have been incorporated in the fundamental law. One of the three,

adopted in 1893, prohibited the Jewish method of slaughtering animals,

and was purely a product of the antisemitic movement. The other two

were adopted in 1908. One authorized for the first time legislation by

the federal authorities upon subjects relating to the trades and

professions; the other prohibited the manufacture and sale of

absinthe. A number of other more or less sweeping amendments, it is

true, have been proposed, but all alike have failed of adoption. Thus,

in 1894, perished a socialistic scheme whereby the state was to

obligate itself to provide employment for every able-bodied man, and

in the same year, a project to pay over to the cantons a bonus of two

francs per capita from the rapidly increasing returns of the (p. 433)

customs duties.[635] Similarly, in 1900, failed two interesting

projected reforms relating to the federal electoral system. One of

these provided for the introduction, in the various cantons, of the

principle of proportional representation in the election of members of

the National Council. The other provided for the election of the

members of the Federal Council, not, as at present, by the General

Assembly, but by direct popular vote, the whole mass of electors

voting, not by cantons, but as one national constituency. In June,

1900, both of these electoral proposals were rejected by the

legislative chambers, and in the ensuing November the people ratified

the rejection. In 1903, there was defeated in the same way a proposal

to base representation in the National Council, not upon the total

population of the country, but upon the Swiss population alone. In

1909-10 the proportional representation project was revived, but with

a negative result.[636]

[Footnote 635: C. Borgeaud, Le plébiscite du 4

novembre 1894, in _Revue du Droit Public_,

Nov.-Dec., 1894. The adverse votes were decisive,

i.e., 308,289 to 75,880 and 347,401 to 145,362

respectively.]

[Footnote 636: The introduction of proportional

representation in Switzerland is advocated

especially by the Socialists and the Clericals, to

whom principally would accrue the benefits of the

system. The Liberals are favorable to the

principle, though they prefer to postpone the

issue. The Radicals are solidly opposed. At the

referendum of 1900 the project was rejected by

11-1/2 to 10-1/2 cantons, and by a popular majority

of 75,000; at that of October 23, 1910, it was

approved by 12 to 10 cantons, but was rejected

popularly by a majority of less than 25,000

(265,194 negative, 240,305 affirmative). Rather

curiously, the defeat arose largely from the

defection of the Catholic canton of Freiburg, which

in 1900 was favorable by a vote of 13,000 to 3,800.

The canton's vote in 1910 was for rejection, by

11,200 to 3,900. By those best acquainted with the

situation this astonishing reversal is explained by

the influence which is exercised in the canton

to-day by M. Python, a dictator who opposes any

innovation whereby his own controlling position

would be menaced. Not unnaturally, the friends of

the project (and in 1910 all parties save the

Radicals gave it their support) regard the outcome

in 1910 as a certain forecast of eventual victory.

In nine of the cantonal governments, beginning with

that of Ticino in 1891, the principle has been

already put in operation. In truth, the defeat of

1910 was followed promptly by a triumph in the

important canton of St. Gall, where the

proportional system was adopted for the first time,

February 5, 1911, for elections of the cantonal

council. See E. Secretan, Suisse, in _Revue

Politique et Parlementaire_, Feb., 1911; G. Daneo,

La rappresentanza proporzionale nella Svizzera, in

_Nuova Antologia_, Sept. 16, 1910.]

Among reforms that have been much discussed in recent years has been

the extension of the initiative and of the obligatory referendum to

all federal legislation. Both apply as yet only to constitutional

amendments. In 1906 the Federal Council went so far as to submit to

the legislative councils a proposal intended to meet the first of

these ends. The purport of the proposal was that fifty thousand

voters, or eight cantons, should have the right at any time to (p. 434)

demand the passage, modification, or repeal of any sort of federal

law or federal decree. In December, 1906, the project was debated in

the National Council; after which it was referred to the Federal

Council for further consideration. The proposal is still pending, but

its eventual adoption is probable.[637]

[Footnote 637: Dodd, Modern Constitutions, II.,

280-281. For references on the initiative and the

referendum see p. 420. A very satisfactory

appraisal of the operation of these principles in

Switzerland may be found in Lloyd, A Sovereign

People, chaps. 14-15. See also W. E. Rappard, The

Initiative and the Referendum in Switzerland, in

_American Political Science Review_, Aug., 1912.]

IV. POLITICAL PARTIES

*478. Centralism vs. Federalism.*--Until the middle of the nineteenth

century the most fundamental of political questions in modern

Switzerland was that of centralization, and the most enduring of

political cleavages among the people was that which marked off the

"centralists" from the "federalists." There was a time when the

annihilation of the cantons and the establishment of a thoroughly

consolidated state was not only openly advocated but confidently

predicted. With the establishment, however, of the reasonable

compromise embodied in the constitution of 1848 the issue of

centralization dropped pretty much into the background. There

continued to be, and still are, "centralizers;" but the term has come

long since to denote merely men who, with due regard for the

susceptibilities of the cantons, direct their influence habitually to

the strengthening of the central agencies of government.

The constitution of 1848 was the work of a combination of centralist

elements which acquired the general designation of Radicals. Opposed

to the Radicals were the federalist Moderates. Between 1848 and 1874

controlling influence was maintained steadily by the Radicals,

although during the decade 1850-1860 there was a fusion of parties in

consequence of which there existed through many years an extremely

intricate political situation. Gradually there emerged a three-fold

party grouping, which has survived uninterruptedly from the era of the

constitutional revision of 1874 until our own day. The three parties,

as aligned now through more than a generation in the National Council,

are: (1) the Right, or Clericals; (2) the Left, or Radicals; and (3)

the Centre, or Liberals. To these, in very recent times, must be added

a small but growing group of the Extreme Left, comprising

ultra-democrats and socialists.

*479. The Parties of To-day.*--The basis of segregation of the Right is

primarily religious. The party is thoroughly clerical, and it has for

its fundamental object the defense of the Catholic church and the (p. 435)

interests of the Catholic population. In the Catholic cantons it

occupies the field almost alone, and everywhere it is the most compact

and zealous of the parties, although even it is not without a certain

amount of division of opinion and of policy. The Left, or Radical

party, has always represented a combination of widely varied shades of

radicalism and democracy. Its greatest strength lies in the

predominantly Protestant cantons, and it is distinctly anti-clerical.

Large portions of the party have ceased long since to be really

radical, although on one side there is an imperceptible shading off

into the ranks of the advanced democrats and socialists. Through many

years the party has been lacking notoriously in cohesion. Between the

Conservative Right and the Radical Left stands the Centre, or the

Liberal group, lacking most notably of all in unity, but preserving

the traditional Swiss principles of personal freedom in defiance of

the tendency of the state in the direction of paternalism. The

Liberals are not strong numerically, but they comprise men of wealth

and influence (largely conservative Protestants), and in the shaping

of economic policies, in which they are interested principally, they

sometimes exercise a powerful influence. During the years immediately

following the constitutional revision of 1874 no one of these three

parties possessed in the Federal Assembly a clear majority, with the

consequence that the Centre was able to maintain a balance between the

other two. Gradually, however, the Radicals regained their former

ascendancy, and in subsequent years their preponderance, in especially

the lower chamber, has tended steadily to be increased.

*480. Party Stability and Strength.*--Concerning the political parties

of Switzerland two or three things are worthy of special observation.

The first is the remarkable stability which these parties, despite

their obvious lack of cohesion, exhibit from the point of view both of

party identity and of party strength. Except the Socialists, who have

ceased to vote and act with the Radicals, there has sprung into

existence not one new political party since 1874. Numerous and varied

as have been the political issues of these four decades, no one of

them has given rise to a new party grouping. And, save for the gradual

augmentation of Radical strength to which allusion has been made,

there has been in this period no noteworthy change in the relative

strength of the party groups. Sudden fluctuations, such as in other

countries are common, are in Switzerland quite unknown. The reasons

are varied and not wholly clear, but among them seem to be the brevity

of national legislative sessions, the lack of federal patronage

whereby party zeal may be whetted, the indirect method of electing the

Federal Council, and the essentially non-partisan character of the (p. 436)

referendum.[638] Party strength in the National Council following the

election of 1878 was: Clericals, 35; Liberals, 31; Radicals, 69. After

the election of 1881 it was: Clericals, 36; Liberals, 26; and

Radicals, 83. In these proportions the six triennial elections between

1884 and 1902 produced no important change, although in 1890 the

Socialists broke somewhat into the balance by winning six seats. After

the census of 1900 the number of members of the Council was raised

from 147 to 167, and the results of the election of 1902 were as

follows: Clericals, 35; Liberals, 25; Radicals, 97; Socialists, 9; and

Independents, 1. In 1905 the Radicals, who hitherto had co-operated

with the Socialists in many constituencies, broke with them upon the

question of military policy, with the result that the Socialist

contingent in the Council was cut to two. In 1908 and 1911 the

Socialists made, however, some recovery; so that, on the whole, the

party situation in the Council remains to-day very nearly what it was

ten years ago. By popular suffrage the Radicals are continued

uninterruptedly in control, although the people do not hesitate again

and again to reject measures framed by Radical administrators and

law-makers and submitted to the vote of the nation.

[Footnote 638: Upon this subject, especially the

effects of the referendum upon political parties,

see Lowell, Governments and Parties, II., 314-332.]

*481. The Inactivity of Parties.*--A second important fact respecting

the parties of Switzerland is their all but total lack of organization

and machinery. Parties are little more than groups of people who hold

similar views upon public questions. Of office-seekers there are few,

and of professional politicians fewer still. Elections are not

infrequently uncontested, and only at rare intervals do they serve to

awaken any considerable public enthusiasm. There are no campaign

managers and funds, no platforms, no national committees, no elaborate

systems of caucuses or conventions. Candidates for seats in the

National Council are nominated by political gatherings in the several

districts, but the proceedings are frequently of an all but purely

non-partisan character. Political congresses are held occasionally,

and a few political associations exist, but their activities are

limited and comparatively unimportant. So far as there is party vigor

at all, it is expended principally upon local issues and contests

within the cantons.

Finally, it must be observed that the Swiss government is not a

government by party at all. The Federal Council regularly includes

members of more than one party, and there is no attempt to preserve in

the body a homogeneous partisan character. Even in the legislative

councils considerations of party are but incidental. Upon by no means

all public issues are party lines drawn, and where they are drawn (p. 437)

there is seldom that compactness and discipline of party to which

legislative assemblies in other nations are accustomed. An evidence of

the secondary importance of party demarcation is afforded by the fact

that, instead of being arranged in groups according to party

affiliations, the members of the National Council are so placed, as a

rule, that all of the deputies of a canton occupy contiguous seats.

The Federal Council, being elected by the Federal Assembly, is

practically certain to reflect the preponderating political complexion

of that body. But, in the entire absence of the parliamentary system,

there is no essential reason why politically the executive and

legislative organs should be in accord.[639]

[Footnote 639: On Swiss political parties see

Lowell, Governments and Parties, II., Chap. 13;

Adams and Cunningham, The Swiss Confederation,

Chap. 7.]

V. THE JUDICIARY

*482. The Federal Court: Civil Jurisdiction.*--In respect to

organization, the Swiss federal judiciary is very simple; in respect

to functions, it is extremely complex. It comprises but a single

tribunal, the Bundesgericht, or Federal Court. The court, created

originally in 1848, consists to-day of sixteen judges and nine

alternates, all chosen by the Federal Assembly for a term of six

years. Any citizen eligible to the National Council may be elected to

the Federal Court, but it is incumbent upon the Assembly to take care

that all of the three officially recognized languages--German, French,

and Italian--are represented. The president and vice-president of the

court are designated by the Assembly, for a two years' term, but the

court is authorized to organize its own secretariat and to appoint the

officials thereof. Judges are forbidden to sit in either house of the

federal legislature, to occupy any other office, or to engage in any

alien pursuit or profession. Their yearly salary is 12,000 francs. The

seat of the Court is Lausanne, in the French province of Vaud.

The jurisdiction of the Federal Court extends not only to ordinary

civil and criminal cases but also to cases arising under public law.

The competence of the tribunal in civil cases is very considerable. It

extends to all suits between the Confederation and the cantons;

between the Confederation and corporations or individuals, when such

corporations or individuals appear as plaintiffs, and when the amount

involved exceeds 3,000 francs; between cantons; and between cantons

and corporations or individuals, upon request of the parties, and when

the amount involved exceeds 3,000 francs. The constitution authorizes

the Confederation to enlarge, by legislation, the competence of (p. 438)

the Court,[640] and from time to time a variety of specific fields of

civil jurisdiction have been opened to it, such as those of

transportation and bankruptcy. In addition to original jurisdiction in

all matters that have been named, the Court is required by the

constitution to exercise appellate jurisdiction in cases carried on

appeal, by mutual consent of the parties, from the cantonal courts.

For the adjudication of civil cases the Court divides itself into two

chambers of seven members each, presided over respectively by the

president and vice-president.

[Footnote 640: Art. 114. Dodd, Modern

Constitutions, II., 287.]

*483. Criminal and Public Law Jurisdiction.*--The tribunal's criminal

jurisdiction is less extensive. It covers, in the main, cases of high

treason against the Confederation, crimes and misdemeanors against the

law of nations, political crimes and misdemeanors of such seriousness

as to occasion armed federal intervention, and charges against

officers appointed by a federal authority, when such authority makes

application to the Federal Court. In cases falling within any one of

these categories the Court is required to employ a jury to decide

questions of fact. With the consent of the Federal Assembly, criminal

cases of other kinds may be referred to the Federal Court by the

cantonal governments. For the trial of criminal cases the Court is

divided each year into four chambers, each of three members, save the

fourth and highest, the Kassationshof, or Court of Appeals, which has

five. The Confederation is divided into three Assizenbezirke, or

assize districts, and from time to time one of the criminal chambers

sits in each.

Within the domain of public law the Court is given cognizance of

conflicts of jurisdiction between federal and cantonal authorities,

conflicts between cantons when arising out of questions of public law,

complaints of violation of the constitutional rights of citizens, and

complaints of individuals by reason of the violation of concordates or

treaties. In actual operation, the range of powers which would appear

thus to be conferred is much restricted by a clause which declares

that "conflicts of administrative jurisdiction are reserved, and are

to be settled in a manner prescribed by federal legislation."[641]

Legislation in pursuance of this clause has withdrawn from the

jurisdiction of the Court a long list of possible subjects of

litigation. Like European courts generally, the Swiss Federal Court

possesses no power to determine the constitutionality of law, federal

or cantonal. On the contrary, it is obligated to apply all law, by

whatever proper authority enacted.[642]

[Footnote 641: Art. 112. Ibid., II., 286.]

[Footnote 642: On the Swiss federal judiciary see

Vincent, Government in Switzerland, Chap. 15; Adams

and Cunningham, The Swiss Confederation, Chap. 5.]

*484. The Civil Code.*--In 1898 the nation, through the means of (p. 439)

a referendum, adopted the principle of the unification of all cantonal

legal systems, civil and criminal, in a set of federal codes. Through

more than a decade the task has been in progress, drafts being

prepared by experts and submitted from time to time for criticism to

special commissions and to public opinion. Early in 1908 the Assembly

adopted an elaborate Civil Code which in this way had been worked out,

and January 1, 1912, this monumental body of law was put in operation.

By it many long established practices within the individual cantons

were abolished or modified; but the humane and progressive character

of the Code won for it such a measure of public approval that there

was not even demand that the instrument be submitted to a referendum.

PART VI--AUSTRIA-HUNGARY (p. 441)

CHAPTER XXIV

AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH

*485. The Dual Monarchy.*--The dual monarchy Austria-Hungary, comprising

a sixteenth of the area, and containing an eighth of the population,

of all Europe, is an anomaly among nations. It consists, strictly, of

two sovereign states, each of which has a governmental system all but

complete within itself. One of these is known officially as "The

Kingdoms and Lands represented in the Reichsrath," but more familiarly

as Cisleithania, or the Empire of Austria. The other, officially

designated as "The Lands of St. Stephen's Crown," is commonly called

Transleithania, or the Kingdom of Hungary. By certain historical and

political ties the two are bound together under the official name of

the Österreichisch-ungarische Monarchie, or Austro-Hungarian

Monarchy.[643] In the one the common sovereign is Emperor; in the

other, Apostolic King.

[Footnote 643: This designation was first employed

in a diploma of the Emperor Francis Joseph I.,

November 14, 1868 (see p. 459).]

"If," says a modern writer, "France has been a laboratory for

political experiments, Austria-Hungary is a museum of political

curiosities, but it contains nothing so extraordinary as the relation

between Austria and Hungary themselves."[644] In its present form this

relation rests upon the memorable Ausgleich, or Compromise, of 1867.

The historical phases of it, however, may be traced to a period as

remote as the first half of the sixteenth century, when, in 1526,

after the Hungarians had suffered overwhelming defeat by the Turks at

the Battle of Mohács, a Hapsburg prince, the later Emperor Ferdinand

I., assumed, upon election by the Hungarian diet, the throne of the

demoralized eastern kingdom.[645] Until the eighteenth century the

union of the two monarchies was always precarious, much of the time

practically non-existent. Set in the midst of a whirlpool of races and

political powers, the ancient Hungarian state, recovered from its days

of disaster, struggled unremittingly to preserve its identity, and

even to regain its independence, as against the overshadowing (p. 442)

Imperial authority of which Austria was the seat. The effort was

fairly successful and as late as the Napoleonic period Hungary, while

bound to her western neighbor by a personal union through the crown,

maintained not only her essential autonomy but even the constitutional

style of government which had been hers since at least the early

portion of the thirteenth century. A rapid sketch of the earlier

political development of the two states seems a necessary introduction

to an examination of the institutions, joint and separate, which

to-day enter into the texture of their governmental organization.

[Footnote 644: Lowell, Governments and Parties,

II., 177.]

[Footnote 645: See p. 448.]

I. AUSTRIAN POLITICAL DEVELOPMENT TO 1815

*486. Origins.*--The original Austria was a mark, or border county,

lying along the south bank of the Danube, east of the river Enns, and

founded by Charlemagne as a bulwark of the Frankish kingdom against

the Slavs. During the ninth century the territory was overrun

successively by the Moravians and the Magyars, or Hungarians, and all

traces of Frankish occupation were swept away. At the middle of the

tenth century, however, following Otto the Great's signal triumph over

the Hungarians on the Lech in 955, the mark was reconstituted; and

from that point the development of modern Austria is to be traced

continuously. The name Österreich, i.e., "eastern empire" or

"dominion," appears in a charter as early as 996.

The first notable period of Austrian history was that covered by the

rule of the house of Babenberg. The government of the mark was

intrusted by the Emperor Otto II. to Leopold of Babenberg in 976, and

from that date to the extinction of the family in 1246 the energies of

the Babenbergs were absorbed principally in the enlargement of the

boundaries of their dominion and in the consolidation of its

administration. In 1156 the mark was raised by King Frederick I. to

the dignity of a duchy, and such were the privileges conferred upon it

that the duke's only obligation consisted in the attending of any

Imperial diet which should be held in Bavaria and the sending of a

contingent to the Imperial army for such campaigns as should be

undertaken in countries adjoining the duchy.

*487. The Establishment of Hapsburg Dominion, 1276.*--In 1251--five

years after the death of the last Babenberg--the estates of the duchy

elected as duke Ottakar, son of Wenceslaus I., king of Bohemia. In

1276, however, Duke Ottakar was compelled to yield his three dominions

of Austria, Styria, and Carinthia to Rudolph of Hapsburg, who, in 1273,

upon the breaking of the Interregnum, had become German king and

emperor; and at this point began in Austria the rule of the (p. 443)

illustrious Hapsburg dynasty of which the present Emperor Francis

Joseph is a representative. Under the adroit management of Rudolph the

center of gravity of Hapsburg power was shifted permanently from the

Rhine to the Danube, and throughout the remainder of the Middle Ages

the history of Austria is a story largely of the varying fortunes of

the Hapsburg interests. In 1453 the duchy was raised to the rank of an

archduchy, and later in the century the Emperor Maximilian I.

entertained plans for the establishment of an Austrian electorate, or

even an Austrian kingdom. These plans were not carried into execution,

but the Austrian lands were constituted one of the Imperial circles

which were created in 1512, and in 1518 representatives of the various

Austrian Landtage, or diets, were gathered for the first time in

national assembly at Innsbrück.

*488. Austro-Hungarian Consolidation.*--In 1519 Maximilian I. was

succeeded in the archduchy of Austria, as well as in the Imperial

office, by his grandson Charles of Spain, known thenceforth as the

Emperor Charles V. To his brother Ferdinand, however. Charles resigned

the whole of his Austrian possessions, and to Austrian affairs he gave

throughout his reign but scant attention. Ferdinand, in turn, devoted

himself principally to warfare with the Turks and to an attempt to

secure the sovereignty of Hungary. His efforts met with a measure of

success and there resulted that affiliation of Austria and Hungary

which, though varying greatly from period to period in strength and in

effect, has been maintained to the present day. During a century

succeeding Ferdinand's accession to the Imperial throne in 1556, the

affairs of Austria were inextricably intertwined with those of the

Empire, and it was only with the virtual disintegration of the Empire

in consequence of the Thirty Years' War that the Hapsburg sovereigns

fell back upon the policy of devoting themselves more immediately to

the interests of their Austrian dominion.

The fruits of this policy were manifest during the long reign of

Leopold I., who ruled in Austria from 1655 to 1705 and was likewise

emperor during the last forty-eight years of this period. At the close

of a prolonged series of Turkish wars, the Peace of Karlowitz, January

26, 1699, added definitely to the Austrian dominion Slavonia,

Transylvania, and all Hungary save the banat of Temesvár, and thus

completed the edifice of the Austrian monarchy.[646] The period was

likewise one of internal consolidation. The Diet continued to be (p. 444)

summoned from time to time, but the powers of the crown were augmented

enormously, and it is to these years that scholars have traced the

origins of that thoroughgoing bureaucratic régime which, assuming more

definite form under Maria Theresa, continued unimpaired until the

revolution of 1848. It was in the same period that the Austrian

standing army was established.

[Footnote 646: At the diet of Pressburg, in

1687-1688, the Hungarian crown had been declared

hereditary in the house of Hapsburg, and the

Austrian heir, Joseph, had been crowned hereditary

king. In 1697 Transylvania was united to the

Hungarian monarchy. The banat of Temesvár was

acquired by the Hapsburgs in 1718. The term "banat"

denotes a border district, or march.]