Chapter III

1. The Federal Constitution may at any time be amended.

2. Each revision shall take place by the ordinary method of
Federal legislation.

3. If one branch of the Federal Assembly passes a resolution
for amendment of the Federal Constitution and the other does
not approve; or upon the demand of fifty thousand qualified
voters, in either case, the question whether the Constitution
ought to be amended must be submitted to a vote of the Swiss
people, voting yes or no. If a majority of the citizens voting
pronounce in the affirmative, there shall be a new election
of both branches of the Federal Assembly for the purpose of
preparing amendments.

4. The amended Constitution shall go into effect whenever
it shall receive a majority of all the votes cast, and the
approval of a majority of the Cantons. In determining the
majority of the Cantons, the vote of a half-Canton shall be
counted as half a vote. The result of the popular vote in each
Canton shall be taken as determining the vote of the Canton.[24]

The Constitution closes with five articles, styled _Temporary Provisions_:

1. The proceeds of the posts and customs shall be divided
upon the existing basis until such time as the Confederation
shall take upon itself the military expenses up to this time
borne by the Cantons. The loss which may be occasioned to the
finances of any Canton by the sum of the charges which result
from certain articles of the Constitution shall fall upon such
Canton only gradually.

2. The provisions of the Federal laws and of the Cantonal
concordats, constitutions or Cantonal laws which are contrary
to this Constitution cease to have effect by the adoption of
the Constitution, or when the Federal laws passed in pursuance
thereof, shall be published.

3. The new provisions in regard to the powers of the Federal
Tribunal shall not take effect until the passage of the Federal
laws relating to it.

4. The Cantons shall be allowed a period of five years within
which to introduce the system of free instruction in primary
public education.

5. Those persons who practise a liberal profession, and who
before the publication of the Federal law provided for by the
Constitution have obtained a certificate of competence from a
Canton or a joint authority representing several Cantons, may
pursue that profession throughout the Confederation.

There have been three amendments to the Constitution from the date of its adoption in 1874 to 1889 inclusive:

1. In 1879, Article lxv. of the Constitution abolishing capital
punishment was repealed, and in lieu thereof the following
substituted: “No death penalty shall be pronounced for a
political crime.”[25]

2. In 1885, Article xxxii. of the Constitution was modified
so that drinking-places and the retail trade in spirituous
liquors should be excepted from the guarantee of freedom of
trade and of industry; but the Cantons might by legislation
subject the keeping of drinking-places and the retail trade
in spirituous liquors to such restrictions as are required
for the public welfare. And Article xxxii. _bis_ was added
authorizing the Confederation by legislation to regulate the
manufacture and sale of alcohol. In this legislation those
products which are intended for exportation, or which have
been subjected to a process excluding them from use as a
beverage, shall be subjected to no tax. Distillation of wine,
fruit, and the products of gentian roots, juniper berries, and
similar products are not subject to Federal legislation as to
manufacture or tax. After the cessation of the import duties
on spirituous liquors, as provided for, the trade in liquors
not distilled shall not be subjected by the Cantons to any
special taxes, or to other limitations than those necessary
for protection against adulterated or noxious beverages.
Nevertheless the powers of the Cantons defined in the
Constitution are retained over the keeping of drinking-places,
and the sale at retail of quantities less than two _litres_.
The net proceeds resulting from taxation on the sale of alcohol
shall belong to the Cantons in which the tax is levied. The net
proceeds to the Confederation from the internal manufacture of
alcohol, and the corresponding addition to the duty on imported
alcohol, shall be divided among all the Cantons in proportion
to population. Out of the receipts therefrom the Cantons must
expend not less than one-tenth in combating drunkenness in its
causes and effects. The Confederation shall provide by law
that for such Cantons or Communes as may suffer financial loss
through the effect of this amendment, such loss shall not come
upon them immediately in its full extent, but gradually up to
the year of 1895.[26]

3. In 1887, Article lxiv. of the Constitution was so amended
as to give the Confederation the power to make laws, “On
the protection of new patterns and forms, and of inventions
which are represented in models and are capable of industrial
application.”

All amendments to the Swiss Constitution are incorporated in their logical place in the text immediately upon their adoption.

Much legislation called for by the mandatory provisions of the Constitution, and suggested by the discretionary powers vested in the Confederation, has passed into Federal statutory enactments. A few may be mentioned. An elaborate law as to military service, tax for exemption therefrom, and pensions; statutes regulating labor in factories, containing a wide range of provisions for the health and safety of employés; the practice of the professions of medicine and dentistry; the construction and management of railroads; the protection of literary and artistic property and patents; hunting and fishing; the control of forests, dikes, and water-courses in the mountainous regions; the election of members of the Federal Assembly and organization of the Federal Tribunal; the method of taking the _Referendum_; rights of citizenship and expatriation; banking and bankruptcy; emigration and immigration. There are very comprehensive laws also as to “civil capacity and obligations” and “marriage and divorce.” The Federal law on “civil capacity and obligation” comprises more than nine hundred articles, and deals with every imaginable kind of contract except that relating to the acquisition and transfer of the ownership of land; this forming part of the independent legislation of the several Cantons. The law of “marriage and divorce” includes registration of births and deaths, and presents a law which is a carefully-prepared, scientific whole. The legal age of marriage; degrees of consanguineous or other relationship; consent of parents; rules for notice of intention; provision for verifying the facts alleged; certification both of the fact and means of the dissolution of a previous marriage, whether by death or divorce; strict requirements for publication of the banns; restrictions as to locality within which the marriage must occur; civil marriage made obligatory; and details of the conditions under which marriages may be declared void and divorces granted; these constitute some of the main features of the law.

The Constitution, with the evolution through Federal laws made necessary by it, contains much detail, showing the mind of the German race therein. It is not confined to an enunciation of general principles, but determines specifically and at length, with some confusion of repetition and at times distressing prolixity, many things which, under a general provision, might have been clearly interpreted to belong, as the case might be, to either the Federal or Cantonal authority. It contains a large number of articles which have no reference to the distribution or exercise of sovereign power, but which embody general maxims of policy or special provisions as to matters of detail, to which the Swiss attach great importance, and which therefore they do not wish to be easily alterable. It goes far beyond that of the United States in inscribing among constitutional articles either principles or petty rules which are supposed to have a claim of legal sanctity. It gives to the Federal authorities power and supervision over a variety of special interests; a system that may work well in a small country, but not in one so large as the United States, with such diversified and local aspects. For these reasons the text of the Swiss Constitution is not so brief,[27] nor its language so terse, as that of the United States, which a famous English statesman has called, “The most wonderful work ever struck off at a given time by the brain and purpose of man.” The Swiss Constitution leaves little room for contention in the construction of its phraseology, meaning the same thing to-day, to-morrow, and forever. Its written provisions, stipulations, and guarantees leave little room for the exercise of “doubtful powers.” With such a mass of detail, the Confederation is not competent to act directly; the execution of much is left to the Cantons acting under the supervision of the Federal authorities, which only interfere where the former neglect or refuse to fulfil their obligation.

The repeated and remarkable stipulations of the Constitution, reaching almost every conceivable exercise of religious action and freedom, present one of its most marked characteristics and radical departures from that of the United States. The latter contains only two allusions to the subject. The first in Article VI.: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” The second in the first amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Previous to the Swiss Constitution of 1874 there was no mention of individual religious liberty. That of 1848 guaranteed the free exercise of divine worship to the recognized confessions, the Roman Catholic and the Reformed (_i.e._, the Church Reformed by Zwingli and Calvin), but forbade the order of Jesuits. It is manifest that the framers of the Constitution of 1874 were resolved to effectually suppress the further exercise of the ecclesiastical narrowness and sectarian antagonism which, as late as the Sonderbund War of 1847, disturbed the peace and threatened the stability of the Confederation. The extreme rigor with which these provisions of the Constitution are enforced, and the latitude of action given under them to Cantonal authority, do appear at times to be strained to an extent deaf to both humanity and common sense. In 1888, “Captain Stirling,” of the Salvation Army, a subject of Great Britain, was sentenced in the Canton of Vaud to one hundred days’ imprisonment in Chillon Castle for attempting to proselyte some children. The appeal made in her behalf to the Federal Council was refused, and she was compelled to complete the term of her sentence. Surely no danger was threatened that might not have been averted by her removal to the frontier, or the offence atoned for by a slight fine. The case presented an appeal to that unknown quantity, the Swiss sense of the ridiculous. The sanctity of the law is all very well; but when the law is one against persons who sing hymns to children in the street, and its terrors are those of Bonnivard’s prison, the plot of the drama seems hardly equal to the majesty of the scene. To put a young lady, for so trivial an offence, under triple bolts and bars for months is a piling up of the agony which indicates a singular weakness of dramatic resource. Perhaps the military style of the movements in these days of alarming concentrations on Continental frontiers may have invested the “colonels” and “captains” in the Salvationist train, even of the gentler sex, with undue importance and alarm. It is difficult to reconcile Federal and Cantonal action in Switzerland in this and other instances with the spirit of the inviolability of freedom of faith and conscience guaranteed by the Constitution. Religious liberty encounters no little restriction and abridgment in several of the Cantons. Each Canton has still its own established Church, supported and ruled by the civil magistrate. In recent times free churches have been founded in Geneva, Neuchâtel, and Vaud, and are showing a high degree of spiritual vitality and liberality. It would be better if it could work out an entire dissolution of the connection between Church and State throughout the Confederation, and religion be allowed to take its natural course.

The Constitution of Switzerland is a conscious and sagacious reproduction of the Constitution of the United States, with noteworthy variations called for by the different conditions of the two commonwealths. The Government of the United States is one of limited and enumerated powers; “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The restrictions under the Swiss Constitution apply mostly to the Cantons. In Switzerland, as in the United States, there is no single determinate sovereign body or assembly, or any real sovereign other than the people themselves. In the Swiss Confederation the popular will does everything; the legislative power being directly exercised by the body of the people by way of _Referendums_. In the Republic of France the tendency is to centralize the direction of public affairs almost entirely in the Chamber of Deputies. In the United States it is claimed, with some color of truth, that the initiative and legislation are being gradually taken away from Congress by a very occult, but authoritative, government of committees.

The separation of persons and functions is most complete in the United States; the Constitution enforcing a distribution of powers, and directly or indirectly the powers of every authority existing under it are defined, limited, and carefully regulated. In the Swiss Constitution these respective powers are not at all clearly distinguished; in fact, they seem to have been purposely left indeterminate. There are none of the elaborate checks and interlocking vetoes found in the United States. It is true the Swiss have the three organs,--a Federal Legislature, a Federal Executive, and a Federal Court; but they fail in the strict separation of each of these departments from and its independence of the other. Said John Adams, “Here is a complication and refinement of balances, which for anything I recollect, is an invention of our own and peculiar to us.”

There is also an entire absence from the Swiss Constitution of any provisions touching those personal rights and ancient muniments of liberty designated as the “Bill of Rights;” such as are contained in the first ten amendments of the Constitution of the United States; those fundamental principles that guarantee to the individual a sphere of liberty upon which the government may not encroach; a branch of constitutional law which it has been the peculiar province of American political science to develop. This omission from the Swiss Constitution may have been for the same reason that it occurred in the original Constitution of the United States; that these rights were sufficiently implied and understood in any system of free government. These cardinal rights are claimed by the Swiss to be expressly provided for in the Cantonal constitutions. Again, it is held that all these inherent and indefeasible rights are amply secured by the article of the Federal Constitution requiring the organic law of the Cantons to “insure the exercise of political rights after republican forms.”

Hamilton met the objection to the Constitution of the United States containing no “Bill of Rights,” in the “Federalist” (No. 84), by saying, “Bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservation of rights not surrendered to the prince. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here in strictness the people surrender nothing; and as they retain everything they have no need of particular reservations.” But Jefferson expressed the prevalent opinion when he wrote, “The executive in our governments is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years.” These restraints upon legislative power have proven most fortunate ones in the United States; for the provision, “No person shall be deprived of life, liberty, or property without due process of law,” together with those provisions which forbid the taking of private property for public use without just compensation, and the enactment of laws impairing the obligation of contracts, lies at the foundation of all constitutional protection of private rights in the citizen. Thus a body of constitutional law has been formed which is not yet completely crystallized, but is being daily shaped by the decisions of the courts. In annexing the “Bill of Rights,” the founders of the government may not have had a correct idea as to what would be the full effect of its provisions, but the object they had in view was perfectly clear. They believed that wherever power was placed, it was liable to be abused. They intended to restrain the impulse of popular majorities, and more especially to prevent the legislature from becoming despotic and tyrannous. But the number of rights which can be effectually protected by the Constitution is very limited; and the legislature must always retain sufficient power to disturb seriously all social relations, if it is determined to make use for this purpose of the means at its command. The utmost that a constitution can be expected to do is to protect directly a small number of vested rights, and to discourage and check indirectly the growth of a demand for radical measures.

The power of the general government in Switzerland, as that of the United States, extends not merely to those affairs which are turned over to it by the exact words of the Constitution itself, but also to the relations whose control by the central government appears as a necessity for its performance of the duties devolving upon it. In a comparison of the Swiss Federal polity with that of the United States, it must be borne in mind that the infinite variety in the local and otherwise peculiar circumstances of different nations, produces wide discrepancies between governments bearing a common appellation. There exists, indeed, but little community of opinion or uniformity of practice beyond the circumscribed limits of those maxims in politics which are deducible by direct inference from moral truths. The great mass of those rules and principles which have a more immediate influence on practice, and give to government its tone and peculiar organization, are of a description purely local; deriving their force from local interests, and therefore, however just, are only applicable in their full extent to the particular case. Hence it is that constitutions, nominally and externally the same, have little or no interior resemblance, and in many instances only so far correspond as to justify us in referring them to one common standard. The United States and Switzerland have republican states joined in a republican union, with a division of powers between states and union approximately the same; and they present the most completely developed types of that federalism “which desires union and does not desire unity;” the same problem upon which all civilized peoples have been working ever since civilization began,--how to insure peaceful concerted action throughout the whole, without infringing upon local and individual freedom in the parts; to reconcile the welfare and security of the whole with the local claims and diversified institutions of the component parts. The Swiss Constitution blends these ends harmoniously in a government not too centralized to act in the interest of the localities; but a little too closely wedded to routine to adapt itself to changing conditions. The federative principle implies the existence of opposing tendencies, active within a superior agency, which is capable of regulating their mutual aggression, and of securing their harmony. Over the two historical forces, _Nationalism_ and _Localism_, the federative principle asserts its supremacy, and gives them simultaneous, correlated, and adequate expression. Under confederation, both _Nationalism_ and _Localism_ by different processes increase each its original determinative strength; and the danger arises that either alone might force a union of but partial means and incapable of the highest end. The federative principle by its own creative energy chooses the time and method of its complete self-assertion, and brings its factors to the work of “forming the more perfect union.” Thus _Nationalism_ and _Localism_, though their methods are in constant warfare, their aim is one,--the good of the individual, who in his dual relation is an epitome of the controlling principle. A complete harmony of the two elements of the federative principle can never be realized; but the tendency is ever towards harmony, thus placing before our hopes an ideal state. In constructing his ideal republic, Plato rejects discordant powers and forces which would bring false harmony, and leaves but two essential elements: “These two harmonies I ask you to leave,--the strain of necessity and the strain of freedom, the strain of courage and the strain of temperance.” In a republic, national will and local self-rule--the one federative principle--constitute true harmony.[28]

The question of government is a question of the application of means to an end; that end being, in general terms, the happiness and prosperity of the people. Government considered as comprehending those laws and principles which regulate the conduct of the individual in his relative capacity to the state, being continually present to his mind, must invariably influence his habits of thinking and acting. The genius of the organic law, the Constitution, is transfused into the national mind, and in the character of the citizens we recognize the congenial spirit of the laws.

The history of the Swiss Constitution is the history of a confederation of free Cantons, uniting city and rural communities in a common league; providing at once for separate autonomies, and for confederate union and government; insuring mutual protection and a national policy. It represents a wise and politic union; a union constituting an honorable European state in the full enjoyment of its ancient franchises; a union of strength and national life and enduring liberty. Times and circumstances taught their own lesson; civil and religious establishments were imperfectly produced, roughly moulded, and slowly improved, but they were adequate to dispense the blessings of a free government to a brave and artless people, in a state of great comparative independence and honor, security and happiness.

A constitution is valuable in proportion as it is suited to the circumstances, desires, and aspirations of the people, and as it contains within itself the elements of stability and security against disorder and revolution. Measured by this standard, the Swiss Constitution is an excellent adaptation to the conditions of a most varied and composite nationality. With a strong paternal tendency, the Constitution takes cognizance of the citizen at his birth by registration, and guarding him through life with legislative scrutiny, vigilant and minute, it insures him a “decent burial.” Yet this searching, far-reaching, central authority is administered in a beneficent and patriotic spirit, with a jealous regard for all the highest natural rights of man.

Federalism tends to conservatism; it is almost certain to impress on the minds of citizens the idea that any provision included in the organic law is immutable and, so to speak, sacred. History shows that those states have been most stable and prosperous which, in casting off an old allegiance or in ordering their political constitutions afresh, made no more changes than were absolutely needful, and did not violently snap the tie between the old and the new state of things; that the best form of government will commonly be that which the events of its history have given it,--a government which has arisen out of the events and necessities of the country. Switzerland and the United States are examples of commonwealths whose success has been largely owing to the comparatively small amount of change which accompanied their acquisition of independence. Each has that form of government which the events of its history have made natural for it. In each the existing political system is founded on the practical needs of the time and place. Referring to the preamble of the _Declaration of Rights_, wherein the prayer is made, “That it may be declared and enacted that all and singular the rights and liberties asserted and declared, are the true ancient and indubitable rights and liberties of the people of this kingdom,” Burke says, “By adhering in this manner to our forefathers, we are guided, not by the superstition of antiquarians, but the spirit of philosophic analogy. In this choice of inheritance we have given to our frame of policy the image of a relation in blood, binding up the constitution of our country with our dearest domestic ties, adopting our fundamental laws into the bosom of our family affections; keeping inseparable, and cherishing with the warmth of all their combined and mutually reflected charities, our state, our hearths, our sepulchres, and our altars.” Switzerland and the United States in their organic law and its application, while presenting many and essential differences, constitute the only two genuine and thorough republics in existence; and each system better suits the position of the nation which has adopted it. Switzerland, though beyond all others a regenerate nation, was still an old nation; above all things a system was needed which should preserve everything and jeopardize nothing. She seized on a rare and happy moment, when all the despots of Europe had enough to do at home, to reform her constitution without foreign intermeddling; and she formed a system which exactly suits the position of a small, free, conservative power, ready as ever to defend its own, but neither capable nor desirous of aggrandizement at the expense of others. The Swiss have a way of keeping their current history to themselves; or the outside world has a way of not asking for it, which is much the same thing. They are unique among civilized people for the extreme modesty of their claim upon the attention of mankind. This might imply the highest qualities or the lowest; but no one who knows anything of the little republic will doubt to which of them it is to be assigned. She lives, moves, and works without fuss or friction; and is constantly solving in her own way some of the hardest problems of politics. She has found out how to maintain perfect peace between diverse races and conflicting creeds; to adjust and harmonize discordant views and principles; and preserve to the several elements of the confederacy a due proportion of constitutional authority. This difficult task has been accomplished, not indeed without frictions, not without armed collisions, and not until after many trials and experiments; but it has been done, and on the whole successfully.

Nothing is so easy as to find fault in every form of government, and nothing so hard as to show a perfect one reduced to practice. Most of the plans of government seem to have been formed like houses built at several times; for as the old parts of them always deface the new and render them irregular, so upon the establishment of any new frame something of the old is still preserved and enters into the frame of the new, which is not of a piece with it, and consequently spoils its symmetry. No one can look closely into the Constitution of Switzerland and fail to discover that, in its provisions, the principles of a democratic confederation find the elements of sound and vigorous health.

Enlightened freedom, governed and secured by law, upholds the fabric of the Constitution; salubrious streams issuing from education and patriotism, consecrated by religion, mingle with each other, and unite in diffusing fertility through every channel of the state. The everlasting league still lives on, to shame the novel and momentary devices of the kingdoms and commonwealths which rise and fall around it.[29]