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.