THE
SWISS REPUBLIC.

BY
BOYD WINCHESTER,
LATE UNITED STATES MINISTER AT BERN.

PHILADELPHIA:
J. B. LIPPINCOTT COMPANY.
LONDON: 10 HENRIETTA STREET, COVENT GARDEN.
1891.

[Larger image]

Copyright, 1891, by J. B. Lippincott Company.

Printed by J. B. Lippincott Company, Philadelphia.

TO

HENRY WATTERSON

THIS VOLUME IS INSCRIBED, AS A GRATEFUL BUT IMPERFECT TOKEN OF AN INTIMACY OF MANY YEARS, HOPING HE WILL ACCEPT THE

Dedication,

WITH THE ASSURANCE THAT IT IS NOT MEANT SO MUCH TO COMPLIMENT HIM, AS MYSELF.

Louisville, Ky., 1890.

PREFACE.

This book is based upon notes of studies and observations during four years of diplomatic service in Switzerland, made, at the time, with eventual publication in view. There is no attempt to treat the subjects embraced, or rather touched upon, in any historical sequence, but, by brief hints and random suggestions, to seize the principal and interesting features of the country and its institutions, the people and their characteristics.

The comparative method correlated with cause or effect is used in the chapters on the government and administration, national and cantonal. Many familiar facts in Swiss history, and experiences had by the United States, are introduced to show their relation to and effect upon certain political ideas. In fact, all through the Swiss federal polity and that of the United States run not only parallels of illustration, but lines converging to and pointing out essential truths in popular government.

Dating from the “Eternal Covenant” of Uri, Schwyz, and Unterwalden, concluded in 1291, under all vicissitudes of government and constitution,—with radical varieties of character, occupation, religion, language, and descent,—love of liberty and a passionate devotion to the republic have characterized the people, with “life, liberty, and the pursuit of happiness,” the great objects of government, federal, cantonal, and communal. During this period of six hundred years the smallest free commonwealth and the oldest federal republic in the world presents a valuable stock of political experience.

It is very difficult for a stranger to discover all that is remarkable in any country, and perhaps as hard to treat of so many different subjects with such care as to omit nothing that is material. The utmost endeavor, at least, has been used to be exact, and an effort to give a more complete view of the modern state of the country than has yet appeared. There is no design in the “Introduction” to write even an historical outline; it is not necessary to the purpose of this work; but only to relate such general facts, as to its former state, as may serve to discover the causes which gave rise and birth to the present Confederation.

Where references to national and local laws or ordinances and leading historical events are necessary, partial repetition has been deemed preferable to directing the reader to previous citations.

As the Swiss, in different Cantons, speak different languages with several distinct idioms, there is necessarily a great diversity of nomenclature; the aim has been to follow that locally prevalent, and especially in the designation of the Cantons by their German, French, and Italian names.

The writer has had frequent recourse to the following authorities: “The Swiss Confederation,” by Sir Francis Adams and C. D. Cunningham, London; “The Federal Government of Switzerland,” by Bernard Moses, San Francisco (these two books are of recent date, supplementing each other well, and constitute the only systematic and valuable publication in English on the constitutional history and public law of Switzerland); Woolsey’s “Political Science,” Woodrow Wilson’s “The State,” Freeman’s “History of Federal Government,” May’s “Democracy in Europe,” “Encyclopædia Britannica,” Reclus’s “The Earth and its Inhabitants,” furnish briefer but valuable accounts. Elaborate works in German and French consulted are Bluntschli’s “Staats und Rechts Geschichte der Schweiz,” Dubs’s “Das öffentliche Recht der schweizerischen Eidgenossenchaft,” Droz’s “Instruction Civique,” and Magnenat’s “Abrégé de l’Histoire de la Suisse.”

CONTENTS.

THE SWISS REPUBLIC.

CHAPTER I.
INTRODUCTION.

The first inhabitants of Switzerland, according to tradition, were fugitives from Italy, who had been driven by the Gauls from the country where now flourish the cities of Genoa and Florence, and who, 600 B.C., found an asylum in the recesses and wilderness of the valleys above which the Rhine has its source. They were known as the Rhetians, from the name of their hero Rhetus; hence the country about the source of the Rhine, embracing the Grisons, is even now called by some, Rhetia. The Canton of Schwyz claims to have been peopled by the Cimbrians, who, leaving their original habitations in Sweden, Norway, and Friesland, conquered their way over the Rhine to the cities of the Gauls, in the country which is now France. The people of Gaul implored help from Rome; a strong army was sent against them, defeating and driving them into the Helvetian mountains. Another tradition says that they were a race of Gaulic Celts, whom some unknown accident had guided from the borders of the Rhine and Main to those of the Lake of Geneva, their collective name being Helvetians, after whom the country was named in Roman times. The first authentic mention we find of these people, as a nation, is by Julius Cæsar, who, in the first book of his “Commentaries,” related the war he waged with the Helvetians, who had made an irruption into Burgundy during his government in Gaul. He defeated them, and reduced the country to the obedience of the Romans, annexing it to that part of his government which was called Gallia Celtica. They lived in subjection to the Roman government till that empire fell. Among the new kingdoms and principalities that were raised out of the ruins was the kingdom of Burgundy, composed of a Vandal race from the Oder and the Vistula. Helvetia was overrun and made a part of this kingdom in the beginning of the fifth century (409 A.D.). Then followed irruptions of Alemanni, Ostrogoths, and Franks. The division of Switzerland into German- and French-speaking races is doubtless to be ascribed to these early settlements of different tribes from Germany and Gaul. In the sixth century (550 A.D.), the Franks having subjected the other two, all Helvetia was united to the crown of France. It was lost to the kings of France during the ninth century, under the weak reign of Charles the Fat. About the year 870 there sprang up again two new kingdoms of Burgundy, one called Cis-Jurana and the other Trans-Jurana; the first, at the end of fifty years, was merged in the latter. In this kingdom was comprehended the country of Helvetia, and continued part of it till about 1032, when Rudolph, the third and last king of Burgundy, dying without children, left all his kingdom to the Emperor Conrad II., whose successors enjoyed it for two centuries, when it was broken into several petty sovereignties.

Feudalism had been rapidly growing up, and, like other parts of Europe, Helvetia fell under the rule of military chiefs and of powerful bishops and abbots. A numerous and ancient nobility divided the possession with ecclesiastical lords; of the former, conspicuous were the Dukes of Zähringen and Counts of Kyburg, Rapperswyl, and Hapsburg; and of the latter, the Bishop of Coire, the Abbot of St. Gallen, and the Abbess of Seckingen. There is no country whose history better illustrates the ambiguous relation, half property and half dominion, in which territorial aristocracy under the feudal system stood with respect to their dependants. The power under these princes, to which the country was subjected, was so limited that it might properly be said to be under their protection rather than their dominion. In the thirteenth century the race of the Dukes of Zähringen became extinct, which made way for the Counts of Hapsburg to enlarge their authority, being raised afterwards to the Austrian Duchy, and invested with the imperial dignity in Germany. The Helvetic people placed themselves under the protection of Rudolph of Hapsburg, with permission to send governors or bailiffs among them. They were governed with mildness while he lived. He died, and his son Albert did not tread in his father’s footsteps. This was the beginning of the fourteenth century, the memorable period of Rütli and William Tell. A resolution was taken to form a general insurrection in each Canton, in order to surprise and demolish all the castles and drive the governors and adherents out of the country. “They judged that a sovereign unjust towards a vassal, ceased to be himself protected by justice, and that it was lawful to employ force against him.”[1]

The confederates pursued so well the measures agreed on that their object was easily accomplished, and with rare examples of moderation. A few years later, a further attempt was made to bring them under the yoke of the empire, when the brave peasants routed the imperial army, under Leopold, Duke of Austria, at Morgarten, on the 15th of November, 1315. This victory confirmed the independence of the three original Cantons. Soon afterwards followed the perpetual league of Brunnen, on December the 9th of the same year; there is at Brunnen this inscription: “Hier geschah der erste Bund, Anno 1315, die Grundfeste der Schweiz” (“Here was the first perpetual league, the foundation of Switzerland”).

According to the Swiss historian, Planta,[2] the Helvetic union, as founded by the three forest Cantons, called Waldstätten, composed of Schwyz, Uri, and Unterwalden, bears date from the most remote periods of their existence, and was framed long before they knew how to commit it to writing. In 1291 this league was reduced to writing; the first covenant is in Latin, and begins, “In nomine Domini, Amen,”[3] and this form was followed in the several later covenants at Rütli, 1307, and Brunnen, 1315. Each Canton obligated itself to assist and succor the others, with its utmost force, and at its own expense, against all persons or states that should assault or molest any of them; that neither of the Cantons should submit to receive any new sovereign without the knowledge and consent of the others; that none should enter into any alliance or engagement with any other prince or state without the said consent; and that if any difference should arise between any two of these confederated Cantons, the third should be the arbitrator, and obliged to assist that Canton which submitted to its arbitration against the other that should refuse it. The express purpose of this league was for self-defence against all who should attack or trouble them.

The constitution of each Canton was purely democratic; the supreme power was vested in the people at large; all males of fourteen years old in Uri, of fifteen in Schwyz and Unterwalden, having a voice. Though deputies were chosen to represent the people in the Council of Regency, and a Landammann, or chief magistrate,[4] was also appointed, yet the supreme power was exercised by a general assembly held in the open air. In 1332 Luzern joined the three Cantons, and thus arose the federation of the Four Forest Cantons, Vierwaldstätten. Zurich came in in 1351, Zug and Glarus in 1352, and Bern in 1353. These eight Cantons continued until 1481, or a hundred and twenty-eight years, without increasing their number, and are distinguished by the name of the Eight Old Cantons. For a long time these Cantons possessed many distinctive privileges. This league upheld its independence in 1386 against Duke Leopold III., of Austria, in the battle of Sempach, when the most heroic courage was shown. This resulted in the decree of Sempach, whereby the eight Cantons agreed to preserve peace among themselves; to uphold each other; and in war to unite their banners against the common enemy. The last remnant of ancient Helvetic territories in Aargau was wrested in 1417 from Frederic, Count of Tyrol. Though still comprehended within the nominal sovereignty of the empire, encroachments upon their territory or their political liberties were no longer dreaded. They were henceforth free from external control and from contributions imposed by the Germanic Diet. In 1444 followed the defeat of the Dauphin Louis of France at St. Jacob, and the defeat of the Burgundians at Morat and Nancy in 1477. In 1481 Solothurn and Freiburg were admitted. The Cantons then bound themselves under a treaty effected at Stantz, Canton of Unterwalden, in December of that year, to two additional articles:

1. That all the Cantons oblige themselves to succor one another in the support of the form of government then established in each of them.[5]

2. That a body of military laws therein referred to should be received throughout the whole nation, and the observation of them enjoined.

The Emperor Maximilian I. determined to force the Swiss to join the Suabian League; hence resulted the Suabian war, which was concluded after the Swiss had gained six victories, by the peace of Basel in 1499. In 1501 Basel and Schaffhausen acceded to the league. In 1512, by the Milanese war, the Swiss obtained from Milan the territory which at present forms the Canton of Ticino. In 1515, after losing the battle of Marignano,[6] an advantageous peace was concluded with France, which was followed by the first formal alliance with that kingdom in 1521; and the two countries enjoyed an almost uninterrupted amity for nearly three hundred years.

Such was the political state of Switzerland in the beginning of the sixteenth century; it was an independent federal republic, renowned in war and distinguished for its ancient political institutions. In the Thirty Years’ War the Confederates maintained a prudent neutrality, and the Peace Congress of Münster in 1648, through the mediation of France, solemnly acknowledged the complete renunciation of Switzerland’s nominal allegiance to the German empire. From this time until the outbreak of the French Revolution, in 1789, the history of Switzerland presents few events of general importance. Appenzell had been united to the league in 1573, making the number of Cantons thirteen. The thirteen Cantons took the name of Eidgenossen, a word signifying confederates, because they bound themselves together as comrades by oath. This endured without a further change of actual members until 1803. From the peace of Aarau, in 1712 (generally credited to 1718, since the Abbot of St. Gallen did not accede to it until six years after its agreement), down to 1798, the Cantons enjoyed the blessings of seventy-nine years of comparative quiet. The tranquillity enjoyed was favorable to the progress of commerce, agriculture, the arts, and sciences. The French Revolution, which disturbed the peace and unsettled the political institutions of every country in Europe, convulsed Switzerland with civil war and anarchy. In January, 1798, a French army entered Switzerland to assist the Pays de Vaud, which had declared its independence against the Bernese; Bern was taken and the Swiss Confederation converted into the “Helvetic Republic, one and indivisible.”

The Cantons of Schwyz, Uri, Unterwalden, Zug, Glarus, and Appenzell declared that they would not accept the laws which had been forced upon them, and leagued together to resist. These refractory Cantons were overpowered and coerced, but so gallantly did they maintain their ground that the French general declared, “that every Swiss soldier fought like a Cæsar.” It was then ordained by the French that an oath of allegiance to the new government should be taken in every Canton. Schwyz, Uri, Unterwalden, and Zug refused obedience to this ordinance. It was forced upon them and upheld by a costly army, which practised intolerable exactions and haughty and insolent domination. Geneva at this time was annexed to France. Lavater styled this epoch “the first year of Swiss slavery.” The atrocities of the French invasion of Switzerland excited great indignation in Europe. All that tyranny the most oppressive, rapine the most insatiate, cruelty the most sanguinary, and lust the most unbridled, could inflict did that devoted country experience. The effect on the friends of freedom may be judged of from the following indignant lines of Coleridge, once an ardent supporter of the Revolution, in his “Ode to Freedom,” written in 1798:

“Forgive me, Freedom! oh, forgive those dreams;

I hear thy voice, I hear thy loud lament,

From bleak Helvetia’s icy cavern sent;

I hear thy groans upon her blood-stain’d streams;

Heroes, that for your peaceful country perish’d,

And ye that, fleeing, spot your mountain snows

With bleeding wounds, forgive me that I cherish’d

One thought that ever bless’d your cruel foes;

To scatter rage and traitorous guilt,

Where peace her jealous home had built;

A patriot race to disinherit

Of all that made their stormy wilds so dear.”

When Switzerland became the battle-field of French and Austrian armies, by the treaty of Lunéville, between the Emperor of Austria and the French Republic, the independence of the Helvetic Republic, and the right of the people to adopt whatever form of government they pleased, were guaranteed; but the irreconcilable dissensions of the French and National Swiss parties prevented the adoption of any constitution generally acceptable to the people.

The withdrawal of the French troops in 1802 led at once to a revolution in almost every Canton. Again Napoleon, First Consul of the French Republic, in contravention of the treaty, interfered, and subdued the movement. Forty thousand French troops took military occupation of Switzerland. Deputies were ordered to assemble at Paris, and after long discussion with them, Napoleon, on the 2d of February, 1803, transmitted to Switzerland what is known as the Act of Mediation, under which he assumed the title of “Mediator of Switzerland.” In some cases, what had been subject lands were incorporated into the league, and to the thirteen old Cantons six new ones were added,—St. Gallen, the Grisons, Aargau, Thurgau, Ticino, and Vaud.

The downfall of the arbitrary “Mediator” was for the Swiss, as for the greater part of Europe, the signal of a happy deliverance. The apparent interest taken by Bonaparte in the welfare of Switzerland, and his anxious desire to suit its civil institutions to the local prejudices and habits of each small community, were wholly military and political. He looked upon Switzerland as a watch-tower between the three great divisions of Europe, of which the Act of Mediation secured possession to him, without the trouble of a garrison. Soon after his defeat at Leipsic in 1813, the Allies invaded Switzerland, and in December of that year the Swiss Diet met at Zurich and formally annulled the Act of Mediation. A general council was assembled, and new articles of confederation agreed upon, known as the Federal Pact, in September, 1814. This Confederacy was acknowledged by the Congress of Vienna, November 20, 1815; by which the eight powers, Austria, Russia, France, England, Prussia, Spain, Portugal, and Sweden, proclaimed the neutrality of Switzerland and the inviolability of its soil. It must in justice be said that at that epoch of sweeping annexations and unblushing bartering of countries, Switzerland was better treated than she had reason to expect,—Russia and England were her steadfast friends.

The nineteen Cantons were increased to twenty-two by the addition of Geneva, which had been annexed to France under the Directory in 1798, and Neuchâtel[7] (a Prussian possession), and the Valais. The greater Cantons demanded a return to the old status and their ante-revolutionary supremacy. The relapse would have been worse, had it not been for the Allied Powers, who would guarantee neutrality only on the condition that the new Cantons be maintained free.

In 1817 Switzerland, upon the invitation of the Emperor Alexander of Russia, joined the Holy Alliance. The restoration of peace to Europe, and the securities obtained for the neutrality and independence of Switzerland at the Congress of Vienna, gave great encouragement to the intellectual and material progress of the country, wealth increased, and industry prospered. Public works of great utility were undertaken, including noble roads over the passes of the St. Gothard, the St. Bernard, and the Splügen. In July, 1830, the peace of the country was suddenly disturbed by the French Revolution. Violent political agitation broke out in riots and insurrection. Political wrongs were rudely redressed; but life and property were respected. The general aim of this movement was to wrest from the aristocratic class and the capital towns the exclusive privileges which they had gradually recovered since the beginning of the century, and to increase the power of the people. The Cantons were forced to reorganize their constitutions on a more liberal and democratic basis. This movement naturally drifted into a plan for revising the federal constitution; but the effort to do this in 1832 was defeated by a popular vote.

The old religious jealousy of the Catholic and Protestant Cantons now revived with increased violence. These troubles were attributed by many to the influence of the Jesuits, and an active agitation was commenced for obtaining their expulsion. Under the claim that religion was in danger, delegates from seven Catholic Cantons assembled at Rothen, in the Canton of Luzern, and formed a separate League, called the Sonderbund, or separate confederation. In violation of the Federal Pact of 1815, these Cantons engaged to defend each other by an armed force, and appointed a council of war to take all necessary steps. The Federal Diet, in session at Bern in July, 1847, realized that prompt action must be taken to suppress a movement which was threatening the country with a civil war. Friendly negotiation having failed, the Diet declared the League to be dissolved, and at once hostilities broke out. A sharp, decisive contest of only eighteen days’ duration brought the strife to an end; the seceding Cantons were overwhelmed and forced back to their allegiance.

The strength of the Confederation being so decisively proved, it was regarded an opportune time to revive the effort for a thorough reformation of the federal system. This was accomplished the following year by the constitution of 1848.

Swiss history is largely the history of the drawing together of parts of three adjoining nations for common defence against a common foe, little by little winning their independence.

“A liberty that sprang to life in Greece; gilded next the early and the middle age of Italy; then reposed in the hallowed breast of the Alps, and descended at length on the coast of North America, and set the stars of glory there. At every stage of its course, at every reappearance, it was guarded by some new security; it was embodied in some new element of order; it was fertile in some larger good; it glowed with a more exceeding beauty.”[8]

The name “Swiss” and “Switzerland,” German “Schweiz,” French “La Suisse,” supposed to be derived from the Canton of Schwyz, though long in familiar use, did not form the official style of the Confederation until 1803. Schwyz, according to Gatschet, signifies “clearing the ground by fire;” and, again, it is derived from “Sweiter” and “Swen,” two brothers who are said to have founded it; and these family names, common in Sweden, are now heard in the valleys of Schwyz.

Switzerland is triangular in shape, and occupies an almost imperceptible space upon an ordinary map of the world. Voltaire used to say he “shook his wig and powdered the republic.” It is bounded on the north and east by Germany, on the south by Italy, and on the west by France; and is situated between latitude 45° 50′ and 47° 50′ north, and longitude 6° and 10° 25′ east. Its greatest length from east to west measures two hundred and sixteen miles; its greatest breadth north and south is one hundred and fifty-six miles. Nearly its entire boundary is formed by rivers, lakes, and mountains. The Rhine constitutes almost two sides of its boundary, from the point where the various streams from the glaciers of the Grisons have met to form a river into the Lake of Constance, and from its exit thence to where the Jura Mountains turn its course to the Northern Ocean. The Jura separates it from France; and with merely an outlet for the Rhone, the Alps take up the line, dividing its rugged regions from the plains of Northern Italy. On the eastern side is an entangled mass of mountains; on the western side is a succession of parallel ridges, separated from each other by longitudinal valleys. The elevation varies from six hundred and forty-six feet, at Lake Maggiore, to fifteen thousand two hundred and seventeen feet on Monte Rosa. Only two per cent. has an altitude less than one thousand feet, and six per cent. of the whole surface is covered with snow-fields and glaciers. Two-thirds of its surface consist of lofty mountain chains and valleys; the remainder a plain thirteen hundred feet above the level of the sea. That portion which lies to the east of the Rhine rises from a platform no less than three thousand two hundred feet in height, even in the valleys. All of Switzerland, with Savoy, and indeed the Tyrol and other adjoining countries, lie on a huge mountain. They all have their valleys, it is true, but their valleys are more elevated than even the hills of the lower regions. Two of the mightiest European rivers, the Rhine and Rhone, have their sources in Switzerland. Their head-waters are separated only by the tangled mass between the Pizzo Rotondo and the Oberalp Pass,—the Rhine running towards the east and the Rhone towards the west. The St. Gothard may be regarded as the central point of the country, and from its sides these two rivers take their rise in a great transversal valley of the Central Alps. On the east, the Rhine, springing from the glaciers, flows through the Grisons to the north and loses itself in the Lake of Constance, issues from it at Stein, and flows to the westward as far as Basel, where it commences its perpendicular course towards the German Ocean. On the west, the Rhone, rising in the blue and glittering glacier of the same name, descends through the long channel of the Valais, expands into the Lake of Geneva, and takes its rapid course to the Mediterranean. Both of these rivers purify their waters in a large lake; and in their passage through the same Jurassic range of mountains they both form cataracts and waterfalls, though separated by that time by an interval of one hundred and eighty miles. Nine-tenths of the central table-lands of Switzerland belong to the Rhine system, and only one-tenth to the Rhone. In addition to these, two great rivers on the north of the St. Gothard, the Reuss and the Aar, descend in parallel ravines through rugged mountains, feeding the Lakes of Luzern, Thun, and Brienz; while on the south its snows nourish the impetuous torrents of the Ticino, which swells out into Lake Maggiore, and loses itself in the waves of the Po.

Within two degrees of latitude, Switzerland contains the climate of thirty-four degrees. The variety in the vertical configuration of the country naturally affects its climate, and nearly every valley and every mountain-side has a climate of its own. Besides “mathematical climate,” which is expressed by latitude, and depends on the elevation of the surface of the earth to the sun, modern science gives “physical climate.” It describes isothermal lines, which do not exactly coincide with the circles of latitude, but diverge to north or south, according as the temperature is modified by other factors, such as the height of the land above the sea, the modifying action of mountain chains, currents of wind and water, and the neighborhood of lakes and sea. The climate of Switzerland is specially modified by the influences which spring from the capricious consequences of the nearness of mountains, which are a bulwark against the periodical agitations of the atmosphere; they form a great barrier to the northward against the icy blasts sweeping down from the snow-fields of Russia and Siberia; and to the south, to the hot Libyan winds blowing across the Mediterranean. For regular isotherms, it would be idle to seek in such a broken region. The lakes, which are fed by the glacier waters, have a cooling effect on the temperature of the summer heat; the temperature of the water of Lake Brienz does not exceed from 48° to 53° Fahrenheit in the warmest days. It is a great benefit to the circulation of air which comes in contact with surfaces so relatively cold, nor do these bodies of air carry away with them any large amount of moisture, because the low temperature of the water does not favor any great evaporation. Within a short distance one may see at the same time all the seasons of the year, stand between spring and summer,—collecting snow with one hand and plucking flowers from the soil with the other. In Valais the fig and grape ripen at the foot of ice-clad mountains; while near their summits the lichen grows at the limit of the snow-line. There is a corresponding variety as regards the duration of the seasons. In Italian Switzerland, winter lasts only three months; at Glarus, four; in the Engadine, six; on the St. Gothard, eight; on the Great St. Bernard, nine; and on the Théodule Pass, always. Upon first beholding the peaks of the Alps, shrouded in their everlasting mantles of snow, one would little dream that in the valleys beneath ran musical streams of summer water, with emerald meadows spreading their velvet cloaks, dappled with clustering rose-bush, and the sun-loving flowers of the gardens of the tropics.

In ancient times writers exhausted their eloquence in painting the horrors of the climate of the Alps. Livy wrote, “and the snows almost mingling with the sky, the shapeless huts situated on the cliffs, the cattle and beasts of burden withered by the cold, the men unshorn and wildly dressed, all things, animate and inanimate, stiffened with frost, and other objects more terrible to be seen than described, renew their alarm.”[9]

To-day, within its habitable regions, the climate is distinguished for being generally temperate, healthful, and invigorating. It enjoys, from its geographical smallness, immunity from the penalty a vast continent pays in colossal visitations and vicissitudes of meteorological conditions.

The Föhn is a remarkable local wind in Switzerland; it is a strong southwest or south wind, very hot and dry, formerly supposed to originate in the Sahara, and flowing in towards the area of low atmospheric pressure; or to be a tropical counter-current of the trade winds. Meteorologists now hold that it is engendered by local causes. Commencing its descent in the northern valleys with a high temperature, it necessarily increases its temperature and dryness as it passes into the higher pressure of lower levels; it sweeps through certain valleys, especially in Glarus and Uri, where old laws enact that when it blows, every fire in the place, for whatever purpose used, is to be extinguished, for its violence is often extreme. It is much dreaded, yet acts beneficially by a rapid polar-like awakening of nature; it is it which melts most of the snow in the spring, and “without the Föhn,” says the peasant of the Grisons, “neither God nor the golden sun would prevail over the snow.” The Bise is the opposite of the Föhn, a cold, biting north wind, whose tooth has been sharpened by its passage over the ice-fields, bringing all the chills of Siberia, and searching one through and through, eating into the very marrow. This wind is confined within a narrow area of the country, pouring from the northeast over the Boden-See, and along the Jura to the Lake of Geneva below Lausanne; its effect is blighting on the pastures, which it sometimes visits at untimely seasons, killing even cattle exposed to it in May.

The German, Burgundian, and Italian nations which joined together to form the modern Swiss nation, cast away their original nationality, and made for themselves a new one, forming a nation as real and true as if it had strictly answered to some linguistic or ethnological division. These northern and southern nations of Europe have been singularly intermingled in Switzerland, and in this respect furnish an interesting study, as a striking exception to the general idea suggested by the word “nation” as a considerable continuous part of the earth’s surface, where speakers of a single tongue are united under a single government. The long persistent division of the Swiss people into German, French, and Italian stands in marked contrast with the thorough unity of the nation. They have never been blended into one people, so far as speaking a common language is concerned. German, French, Italian, Romansch, and Ladin are spoken within the limits of the Confederacy. And even the dialects of the German differ so much as to make communication almost impossible, at times, between the different villages and towns.

The census of December 1, 1888, showed the total population of Switzerland to be 2,933,612. The German-speaking element increased from 2,030,792, in 1880, to 2,092,479, which, taking into account the normal growth of the population, was no relative increase; the proportion in both cases being about seventy-one per cent. of the whole. The French, on the other hand, increased from 608,007 to 637,710, which was a relative increase of from 21.4 to 21.07 per cent., while the Italian declined actually as well as relatively, the numbers being 161,923 in 1889, and 156,482 in 1888, or 5.7 and 5.3 per cent. respectively. The decline of the Italians in Uri and Schwyz may be explained by the return home of a large number of Italian workmen engaged on the St. Gothard Railway. It is difficult to explain the large decrease of Germans in the Cantons of Bern and Neuchâtel, while the French have increased. In general, the French increase in Switzerland seems to be at the expense of the Germans, while the German element recovers its place at the expense of the Italian.

The region extending from the Lake of Geneva to the Lake of Constance, and from the foot of the Alps to the foot of the Jura, forms only one-fourth of Switzerland, so far as area is concerned; but nearly its whole population, wealth, and industry are concentrated there. The population is settled in the plains, the hill regions, and the valleys; there are chalets nearly eight thousand feet high on the Fleck and Indre Alps, but only one town, viz., Chaux-de-Fonds, in the Jura of Neuchâtel, has been built at an elevation of more than three thousand two hundred feet; but there are villages in Alpine valleys with an elevation of four thousand to five thousand feet, and the hamlet of Juf, in the dreary valley of the Avers, has an elevation of six thousand seven hundred feet, and is the highest village in Europe permanently inhabited.

In point of religion the Swiss are as sharply divided as they are in tongue and customs. It is to the increasing efforts of the clergy, during the many centuries that elapsed between the fall of the Roman empire and the revival of knowledge, that the judicious historian of Switzerland ascribes the early civilization and humane disposition of the Helvetic tribes; and invariably the first traces of order and industry appeared in the immediate neighborhood of the religious establishments. The traveller will behold with interest the crosses which frequently mark the brow of a precipice, and the little chapels hollowed out of the rock where the road is narrowed, and will consider them so many pledges of security; and he will rest assured that so long as the pious mountaineer continues to adore the “Good Shepherd” he will never cease to befriend the traveller or to discharge the duties of hospitality. That a church, or rather that churches, existed in Switzerland in the fourth century is proved by the signatures, coming down from that date, of certain bishops and elders of Geneva, Coire, and the Valais; and one century later it is known that other places besides these had been in a measure Christianized. The Fraternity of St. Bernard was founded in the latter part of the tenth century by Bernard de Menthon, an Augustinian canon of Aosta, in Piedmont, for the double purpose of extending bodily succor and administering spiritual consolation to travellers crossing the Pass of St. Bernard, where winter reigns during nine months of the year. The idea of establishing a religious community in the midst of savage rocks, and at the highest point trodden by the foot of man, was worthy of Christian self-denial and a benevolent philanthropy. The experiment succeeded in a degree commensurate with its noble intention: centuries have gone by, civilization has undergone a thousand changes, empires have been formed and overturned, and one-half of the world has been rescued from barbarism, while this piously-founded edifice still remains in its simple and respectable usefulness where it was first erected, the refuge of the traveller and a shelter for the poor. The building, the entertainment, the brotherhood, are marked by a severe, monastic self-denial which appears to have received a character of stern simplicity from the unvarying nakedness of all that greets the eye in that region of frost and sterility. In storms, monks, helpers, and dogs all go out to search for helpless travellers; and during the severe winter of 1830 both packs of dogs had to be taken out, and nearly all perished; the names of Barry and Bruno are kept with those of departed archbishops and monks. These St. Bernard dogs are adapted, by their instincts, intelligence, and benevolence, to the charitable work in which they are engaged. The moment they scent a traveller buried in the snow they announce the fact by setting up a loud bark, but they do not wait for the arrival of their human companions, but begin at once to dig into the snow with all their strength. The pure breed is said to be extinct, but the cross variety still retains many of the good points of the genuine breed.[10]

Einsiedeln is a very ancient and celebrated monastery in the Canton of Schwyz; it is more generally known as the Monastery of “Our Lady of the Hermits,” and is one of the most famous pilgrim resorts in the world. It was here that Meinrad, an anchorite of the house of Hohenzollern, is supposed to have retired in the ninth century, and built a cell for the worship of the Black Virgin, presented to him by the Abbess Hildegard of Zurich. He was murdered, and respect for his memory induced a religious community to establish themselves there. On the occasion of the consecration of the chapel erected by them, the Bishop, it is related, was anticipated by angels, who performed the rite to heavenly music at midnight. Leo VIII. declared this consecration to be a full and perfect one, and forbade the repetition of the rite; and Pope Benedict VIII. placed Count Meinrad in the catalogue of saints one hundred and fifty years after his death. The inscription over the church-door at Einsiedeln is “Hic est plena remissio peccatorum a culpa et a pœna” (“Here is plenary remission of sins from their guilt and from their punishment”). There is a copious fountain before the church, and another tradition has it that the Saviour visited the shrine and drank from it. This fountain has fourteen jets, carved to imitate the heads of strange beasts and birds, and the pilgrims must drink of every one to make sure that they should not miss the right one, which is said to have refreshed our Lord.

It has been disputed to whom the priority in the race of reform in Switzerland belongs, Zwingli or Luther. Zwingli himself declares that in 1516, before he had heard of Luther, he began to preach the gospel at Zurich, and to warn the people against relying upon human authority. The name of Zwingli is always associated by the Swiss with the rise of Protestantism as that of Calvin is with its triumphant progress.[11] This Reformation, introduced by Zwingli and extended by Calvin, occasioned the fiercest dissensions. Early in the sixteenth century both Geneva and Zurich became cities of refuge for French, Italian, and English who were forced to flee from their native lands on account of their faith. The first edition of the English Bible was printed in Zurich in 1535. The Reformers separated themselves into Lutherans, Calvinists, and Anabaptists. It was held to be the duty of each Canton to force its own faith upon the whole body of the people; church-going was enforced by fines and corporal punishment; staying away from church on Sunday mornings, in some localities, was followed by a loss of citizenship. The latter part of the sixteenth and the whole of the seventeenth century are crowded with controversies and bloodshed; that violence and those animosities which are found so terribly to prevail where religious zeal has been abused for the purposes of intolerance. Nowhere were the doctrines of the Protestant Reformation more ardently embraced; nowhere was the strange moral phenomenon, which is to be traced in so many quarters of Europe, more conspicuous than among the Cantons of Switzerland, the early, exact, permanent, geographical division, which was realized between the Protestant and Popish communities; a division which frequently an insignificant stream or street has been sufficient to maintain for ages. Religious parties, like glaciers, became at once frozen up in set attitudes and forms, which no subsequent events have been able to alter. In three instances controversies on the subject of religion kindled violent and bloody contests. The most memorable was the war between Bern and Zurich, on the one part, and five little Catholic Cantons on the other, in 1712. At the close of the period of the Reformation, seven of the Cantons, Luzern, Schwyz, Uri, Unterwalden, Zug, Freiburg, and Solothurn adhered to their ancient Catholic faith; the Cantons of Bern, Basel, Zurich, St. Gallen, and Schaffhausen adopted the reformed religion; Appenzell and Glarus recognized both forms of worship. In Geneva, over which the Duke of Savoy ruled, the effects of the Reformation were peculiarly important. Calvinism, as it existed at Geneva, was not merely a system of religious opinion, but an attempt to make the will of God, as revealed in the Bible, an authoritative guide for social and personal as well as for moral direction. Moral sins were treated after the example of the Mosaic law, as crimes to be punished by the magistrates; “elsewhere,” said Knox, speaking of Geneva, “the word of God is taught as purely, but never anywhere have I seen God obeyed as faithfully.”[12]

Reprobating and lamenting that the great reformer depended upon the use of the sword for the extirpation of heresy, let us remember that Calvin was not only the “founder of a sect, but foremost among the most efficient of modern republican legislators; and that his genius infused enduring elements into the institutions of Geneva, and made it for the modern world the impregnable fortress of popular liberty, the fertile seed-plot of democracy.” That “theological city,” called by some the Jerusalem of Switzerland, seems to be pervaded by an endemic influence inciting to religious discussion and agitation; the eager, irrepressible spirit of John Calvin walks abroad from his unknown sepulchre as the genius loci. The Reformation contributed in Switzerland to the enlightenment of the people and to the maintenance of a spirit of freedom; but in a political point of view it was the cause of the gravest evils, which continued long after the original convulsions. To differences of race and language it added divisions of religious faith and the conflict of hostile churches. For some time there was an alliance of clerical aggressiveness and ambition, with the employment of religion as a political influence. The radical government of Zurich was violently overthrown on the 6th of September, 1839, in consequence of the nomination of Dr. Strauss to a chair of theology; thousands of peasants, led by their pastors and singing hymns, armed with scythes and clubs, entered Zurich, and the government was forced to dissolve itself. As late as the war of the Sonderbund, in 1847, religious intolerance appeared to threaten the integrity of the Confederation; and by an article in the Constitution of 1848, and re-enacted in that of 1874, the Jesuits and all affiliated societies were interdicted throughout the Confederation. Hostility to the Jesuits was not regarded as hostility to the Catholic religion. The order of Jesuits, as then existing in Switzerland, could not be considered purely religious, but partly political, partly sectarian and controversial, its direct aim being to aggrandize the Church at the expense of the state, and the Catholic religion at the expense of the Protestant. From the first of these two tendencies, it was repugnant to a large portion even of the Catholic world. The whole history of the Jesuits in Switzerland betokened an organized and systematic teaching of religion, not exclusively for religious ends, but largely as a means for procuring political and social ascendency; even to the extent of reducing it to rule, craft, and professional duty. It was against this tendency, not against any matters essential to the Catholic religion, that even the Catholic world protested. The growth of the Old Catholics, after the Vatican Council of 1870, caused many disturbances in Western Switzerland, specially in the Bernese Jura. Inaugurated in the Catholic universities of Germany, it was transplanted for a complete and more vigorous growth into the soil of Geneva, and there taking on a logical, consistent, and organized form, it seemed fitted for the wide propagation and success that marked the great Reformation of the sixteenth century, to which, in its early stages, it showed curious points of undesigned coincidence.

The Swiss serve God and serve Liberty; two facts which go far to solve all the phenomena of their remarkable history. They hold with Plutarch that “a city might more easily be founded without territory than a state without belief in God.” It may be, as Professor Tyndall contends, that there is “morality in the oxygen of the mountains.” Man feels himself reduced to nonentity under the stupendous architecture of these elevated regions which carries his thoughts up to the Creator. A cultivated and pious mind may find itself stayed and soothed and carried upward, at some evening hour, by those great symbols of a duration without an end to a throne above the sky; and this impression may be deepened until the outward glory reproduces itself in the inward, and causes it to cry out:

“Great Hierarch! Tell thou the silent sky,

And tell the stars, and tell yon rising sun,

Earth, with her thousand voices, praises God.”

The lives of the Swiss are in continual struggle with the elements, the visible power of the Deity; their sober habits, simple, natural, imaginative, all predispose them to believe; and the Gospel easily obtained dominion over their faith and feelings.

The sublime works of nature are equally calculated to arouse sentiments of patriotism; they are capable of a companionship with man, full of expression of inexplicable affinities and delicacies of intercourse. No race of men can dwell in Switzerland, amidst its mountains, its precipices, its rocks, glaciers, avalanches, and torrents, without being strong, brave, and resolute. Just as we recognize an elevated region by its growth of peculiar timber, whether stunted or lofty, alike in their power of resisting the tempest, and by its hardy plants characterized by their intense tenacity of life, just so a mountainous country is indicated by a courageous, athletic, close-knit population of liberty-loving, patriotic men.

“Montani semper liberi,” everywhere mountainous regions have been favorable to a free and manly spirit in the people; in every zone the mountain races are a free, a pastoral, an unchanging people, rather confirming Emerson’s hasty generalization as to snow and civil freedom. In the East the warlike hill-tribes have been less subject to despotic rule than the milder races dwelling on the plains. The varied grandeur of the mountains no less than the awful power of the ocean counts for something in the perpetuation of distinctive characteristics. But the spirit of freedom is thought to take a different color from the sea and from the mountain; in the mountain it is stubborn and resolute; by the sea it is excitable and fickle. The hill-tribes of Judea kept their covenant, the tribes of Jordan fell away; those Medes who never changed their laws descended from the Caspian Alps, those Greeks who sought new things from day to day were dwellers by the Ægean Sea. Among the vines and olives in Italian gardens men are soft, poetic, phosphorescent, no less full of fire than they are fond of change; among the pines and larches of the Swiss glaciers men are hardy, patient, dumb, as slow to fume and flash as they are hard to bend and break. The poet Wordsworth represents that it was the peculiar fortune of Switzerland to enjoy the influence of mountain and sea at once,—

“Two voices are there: one is of the sea,

One of the mountains; each a mighty voice:

In both, from age to age, thou didst rejoice,

They were thy chosen music, Liberty.”

There are few principles of action which are more immediately beneficial to society, and which have received more assiduous cultivation, than love of country. The Swiss regards his country with the tenderness of filial affection, and, like the undiscerning lover, fondly gazes without discrimination upon its beauties and its deformities.[13] Enamored of their rocks, ice, and snow, they look on milder climates and more fruitful plains without one envious emotion. Deeper down even than the deep-seated differences of race, language, and creed lies the feeling that comes from the common possession of a political freedom that is greater than that possessed by surrounding peoples: this is the enduring bond of the Confederation. Switzerland has demonstrated that democracies are not necessarily short-lived. The short-lived glory of Athens and its subjection under the rough foot of the astute Macedonian was not the result of too much freedom, but because the Greek states had too little unity. In Switzerland republican institutions can claim to have been fairly tried and thoroughly succeeded. Dating from the perpetual Alliance of 1291, the Confederation now counts six centuries; living through many forms of government, feudal, clerical, imperial, radical, the League of Cantons never ceased to be a union of republics, and is the only federal government which has come down from mediæval times to our own day. We see that the Swiss have lasted well, “for utility is their bond and not respects.” While in some European countries very anomalous forms of government have assumed the republican name, it is gratifying to observe that there is at least one European state in which republicanism is a fact and a living force properly understood and properly practised, uniting with as large a measure of individual liberty all the advantages of careful and judicious legislation, economy in the administration, and justice in the execution of the laws to as high a degree as can be found in any country. Every man is free; every child educated; the sovereign power resides in hands that defend it in danger and adorn it in peace; a common faith that love of country, “all for each and each for all,” is better than a love of self pervades the entire population. Amid powerful monarchies there is a state without king or nobles, with a well-developed system of democratic institutions, admirably suited to the genius of the people and administered with the economy, the wisdom, and the consistency of a well-regulated family. There the problem of a free commonwealth was first solved, and popular government first made possible. There are presented some of the most striking examples of democracy in its simplest form, and of carefully-contrived and durable republican institutions, to be found in the annals of political history. There is a government based on the simple but sound philosophy expounded in the homely observations of the honest old boatman of Geneva, Jean Desclaux, “If one man rule, he will rule for his own benefit and that of his parasites; if a minority rule, we have many masters instead of one, all of whom must be fed and served; and if the majority rule, and rule wrongfully, why the minimum of harm is done.”

CHAPTER II.
THE CONSTITUTION.

“On the main-land only two little spots at the two extremities of the old Teutonic world came out of the mediæval crucible with their self-government substantially intact. At the mouth of the Rhine, the little Dutch communities were prepared to lead the attack in the terrible battle for freedom with which the drama of modern history was ushered in. In the impregnable mountain fastnesses of upper Germany, the Swiss Cantons had bid defiance alike to Austrian tyrant and to Burgundian invader, and had preserved in its purest form the rustic democracy of their Aryan forefathers. By a curious coincidence, both these free peoples in their efforts towards national unity were led to frame federal unions, and one of these political achievements is from the stand-point of universal history of very great significance.”[14] Writers, as a rule, properly consider a federal government, owing to its nice balances in regard to a division of power between the union and the members, and in regard to the conflicting interests of the parts, as a peculiarly delicate and almost unadjustable framework.

“The federative system,” says Guizot, “is one which evidently requires the greatest maturity of reason, of morality, of civilization in the society to which it is applied.” The two poles of a federal government are independent action of the members in certain things, and a central power or government which in certain things is equally independent. The aim is to gain the advantages of the concentrated power of great states, while retaining the advantages of local interest found in small states. On the one hand, each of the members of the union must be wholly independent in those matters which concern each member only. On the other hand, all must be subject to a common power in those matters which concern the whole body of members collectively. Switzerland represents the happy outcome of the first attempt at such a federal union made by men of Teutonic descent. Complete independence in local affairs combined with adequate representation in the Federal Council has effected such an intense cohesion of interests throughout the nation as no centralized government, however cunningly devised, would ever have secured. The constitutional history of the confederation is a study in federalism. First a mere defensive alliance or league;[15] then a Staatenbund, or permanent alliance of several small states, to which the term confederacy nearly corresponds; then a Bundesstaat, or an organized state with central legislative, executive, and judicial departments, which answers substantially to the term federation as usually employed, and as realized in the Constitution of 1848, and perfected in that of 1874. The distinction which German publicists have introduced into political science between a Staatenbund and a Bundesstaat, constituting the two chief forms of union between states, is a very valuable one,—the former word denoting a league or confederation of states; the latter, a state formed by means of a league or confederation. In order to know to which of the two classes a given state belongs, we need to inquire only whether the political body in question has the essential qualities of a state or not. Confederation and federation; both are composite political bodies, and in so far different from mere alliances which form no new state. Staatenbund, or confederation, is rather a conglomeration of states than a real state; it retains the character of a contractual combination of states. Bundesstaat, or federation, implies the advance from the incomplete and transitional form to the formation of a collective state or union; it is a more highly developed Staatenbund, the difference is only one of degree in purpose, form, and powers to carry out the national will. A confederation, by joining several states in a political association, presents at least externally the appearance of one state of an international personality; but yet is not organized into one central state distinct from the particular states. The management of the collective state is left either to some particular state as President (Vorort), or to an assembly of delegates and representatives of all the several states. The former was the case with the Greek leagues under the hegemony of Sparta and Athens; the latter with the American Union under the ancient articles of 1778, and the German confederation of 1815. In a federation there are not merely completely organized particular states, each remaining sovereign and independent within the range of such powers as it does not hand over to the federal authority; but there is an independently organized common or central state, that within the range of the powers handed over to it forms a single commonwealth under a government with its own executive, legislative, and judicial branches. The Achæan league was already in some measure such a federal state. This form of state first appears in modern times in the Constitution of the United States adopted in 1787, and subsequently imitated by Switzerland. The Swiss Confederation previous to 1848 joined the members of the league only on such terms and for such purposes as were agreed on, and their common affairs were administered by a federal Diet. Still each Canton remained perfectly independent in all its internal concerns; even keeping the right of separate dealings with foreign governments. There was nothing which could be strictly called a federal government, whose one will makes the constitution, and demands obedience from the minority, even of particular Cantons. The foundation of the Swiss Constitution is the old Swiss league, which lasted from 1291 to 1798. But there had been simply alliances between different Cantons, and no real federal constitution existed. The establishment of the Helvetic Republic, one and indivisible, was the first attempt at a constitution. The representative democracy of the United States found a soil ready prepared for it in Switzerland, to which it was transplanted by French intervention. The constitution unitaire was imposed on Switzerland most tyrannically, but it was not in itself a bad one. Under what may be called the French readjustment of Switzerland, constitutions rose and fell and succeeded each other in rapid rotation from 1798 to 1803. First appears a project of the Constitution of March, 1798; by this a single centralized state was substituted for the thirteen old Cantons. It served with modifications as the groundwork of another sketched in April of the same year. This latter was prevented by the outbreak of war between France and Austria in 1799 from taking root. Another Constitution of May, 1801, approved by Bonaparte, then First Consul, was acceptable to few in its political and territorial arrangements. The Cantons became mere divisions, like counties or departments. One of its earliest provisions abolishes the ancient democracies of the Forest Cantons. The traditions of independence in these older Cantons, and the elements of internal opposition, were too strong to admit of submission. The inhabitants of these sequestered regions, communicating little with the rest of the world, ardently attached to their liberties, inheriting all the dauntless intrepidity of their forefathers, clearly perceived that, in the wreck of all their ancient institutions, the independence of their country could not long be maintained. They saw that the insidious promises of the French envoys had terminated only in ruinous exaction and tyrannical rule. Animated by these feelings, “We have lived,” said they, “for several centuries under a republic based on liberty and equality; possessing no other goods in the world but our religion and our independence; no other riches but our herds; our first duty is to defend them.” This attempt to form the whole of Switzerland into a united representative system could not be permanent, and was soon dissolved. Other constitutions followed in October, 1801, February, 1802, and July, 1802. Then February 2, 1803, came, under the so-called Act of Mediation, a moderately centralized federal government granted by Napoleon. Old family and civic privileges were annulled; all Swiss were made equal in the eye of the law, and vassalage was altogether abolished, and free right of settlement in any part of Switzerland assured to all. All alliances of one Canton with another, or with a foreign state, were interdicted. This was stipulated in consequence of an improper alliance in 1442 by Zurich with the House of Austria. It was ordained that each Canton should send one deputy to the general Diet; that they should have definite instructions and powers of attorney, and should not vote against their instructions. The functions of the Diet were declared to be: 1. To proclaim war or peace, and conclude foreign alliances, which required the consent of three-fourths of the Diet. 2. To fix regulations for foreign commerce, capitulations in foreign service, and the recruiting of soldiers. 3. To levy the contingent, appoint commanders of the armed forces, and the foreign ambassadors. 4. To adopt measures of external utility and settle disputes between one Canton and another. The act concluded in these terms: “The present act, the result of long conference with enlightened persons, appears to us the best that could be devised for the constitution and happiness of the Swiss. As soon as it is carried into execution the French troops shall withdraw. We recognize Helvetia as organized by this act as an independent power, and guarantee the Federal constitution, and that of each Canton in particular, against the enemies of the tranquillity of the state.” This act for the remainder of Napoleon’s reign settled the condition of the Helvetic Confederacy; and although it was peaceful and prosperous, the Act of Mediation was felt to be the work of a foreigner and master, and it fell with the extinction of his power. Here French readjustments came to an end, and after the Congress of Vienna, March, 1815, guaranteed the neutrality of Switzerland, there followed in November of the same year the Federal Pact. This was a looser confederation, and in many respects a return to the state of things previous to the French Revolution, and restored to the Cantons a large portion of their former sovereignty. There continued to be a Tagsatzung, or Diet for general affairs, consisting of “ambassadors from the sovereign estates,” meaning the Cantons, each Canton still having only one voice, and three-fourths of the votes being necessary for war or peace and treaties with foreign powers; but in other matters of business an absolute majority decides. It fixes the rate of troops and taxes for federal purposes; gives every Canton the right to demand defence against internal and external force; provides for the settlement of disputes between the Cantons; puts an end to all dependent territory and exclusive possession of rights by a class of citizens; and continues the old plan of having a Vorort. Military capitulations and conventions concerning affairs of police or public economy may be made by single Cantons, provided they oppose no federal principles, nor existing league, nor cantonal rights. Ambassadors from the league may be sent to foreign powers when their appointment is thought necessary. In extraordinary cases the Vorort may be invested with especial powers, and a committee can be appointed, composed of the officer of the Vorort, who is intrusted with the management of the federal affairs in conjunction with other representatives of the Confederation. This representative committee is chosen by six circles of Cantons each in turn. The Diet gives the requisite instructions to these federal representatives, and fixes the duration of their duties, which cease, of course, when there is a new Diet. When this assembly is not in session, the Vorort has the charge of federal affairs within the limits existing before 1798. Cloisters and chapters are allowed to continue, but are subject to taxation like private property; and the Helvetic national debt is acknowledged. The Federal Pact became unpopular not merely from its own intrinsic defects and ambiguities, but also from the time and circumstances of its origin. It was a reactionary instrument, bringing back the yoke of the patrician families and the extreme Ultramontane party. The central authority of the Confederation was wreak. It had no powers, either legislative, executive, or administrative, binding upon the several Cantons; no provision for the repression of wars between rival Cantons, nor for the proper restraint of separate alliances with foreign powers which endangered the peace, if not the independence, of the federal state; no federal army, no public treasury, no national mint, no common judiciary, nor any other common marks of sovereignty. The Diet assembled for little more than deliberation, all matters of importance being referred to the determination of the Cantons. National affairs were discussed in general Diets, as in fact they had been from the beginning, but they were Diets which lacked the very essentials of republican government, majority rule, and power of execution. They depended more upon moral authority than legal powers, persuading where they could not command obedience. The difficulties of a union so obviously imperfect and narrow were greatly increased by the Reformation, which alienated the Catholic and Protestant Cantons, causing political and religious struggles that culminated in civil war. There is then a constitutional rest until the next great revolutionary storm, which swept over so many countries of Europe in 1848, when a new constitution, modelled in many respects after that of the United States, was adopted, and superseded the Federal Pact. It changed the federal union of states into a federal republic; a transition from a Staatenbund to a Bundesstaat. The stage of confederation was passed over and the higher state of federation reached; an organized nation, and at the same time the peoples of the particular Cantons also possessing organic unity; a Swiss nation, and yet a Bernese and Genevese people. The Constitution of 1848 was the first which was entirely the work of the Swiss without any foreign influence. For the revolution of 1848, which paralyzed Austria, Rome, and Germany, enabled the Swiss to reassume in full the reins of self-government. Two legislative chambers were for the first time created, and invested with the power of enacting laws and issuing orders which are binding directly on individual citizens. This most important and far-reaching principle, that the Federal head should operate directly on individuals and not on states, involved momentous consequences, forcing the construction of a “Composite State.” The joint action of the two chambers, constituting the Bundesversammlung, or Federal Assembly, became a substantive part of the government of every Canton; and, within the limits of its attributions, made laws which are obeyed by every citizen, and executing them through its own officers, and enforcing them by its own tribunal; powers essential for an effective federal government. The old Diets never ventured on any undertaking of public utility, amelioration, or reform, during more than three hundred years. The Confederation was loose and incomplete even for its essential objects, mutual defence and foreign relations. The principal objects of this new constitution were:

1. The strengthening of the national government, reconciling the supremacy of the Confederation with the autonomy of the Cantons.

2. The overthrow of oligarchies.

3. The protection of the state from the dominion of Rome.

The first two were attained by the direct provisions of the Constitution; the third was afterwards promoted by the expulsion of the Jesuits and their affiliated societies from Swiss territory. A great benefit was conferred upon the Confederation by the unification of such matters as coinage, weight, measures, and posts; and the surrender by the Cantons to the Confederation of the exclusive right to levy duties at the frontiers of the country. For twenty-four years Switzerland enjoyed under this Constitution uninterrupted peace and prosperity; the European wars between 1855 and 1871 did not disturb her neutrality, though military operations offered great temptation to march across her territory. In 1872 a project of amendment was submitted conferring upon the general government many additional powers. By a small popular and a large cantonal majority it was defeated. The agitation for amendment continued, and in 1874 a more moderate revision of the Constitution of 1848 was again presented. This remodelling in 1874 did little more than work out in a complete and logical form the principles laid down in 1848; the most marked difference being a further enlargement of the Federal authority; forming a well compacted union, a Federal state, each portion of which has its sphere of sovereignty. This revised Constitution received the sanction of the Federal Assembly, January 31, 1874, was submitted to the popular vote on Sunday, April 19, following, resulting in a vote of 340,199 in favor of, and 198,013 against, acceptance. The vote by Cantons was fourteen and a half Cantons for, and seven and a half Cantons against, acceptance (the votes of the half-Cantons being counted each as a half vote). The Cantons voting against the adoption of the Constitution were Uri, Schwyz, Unterwalden (the original three), Luzern, Zug, Freiburg, Valais, and Appenzell (Inner). A decree of the Federal Assembly, May 28, 1874, after setting forth that the revised Federal Constitution had received both a majority of all the votes cast and the approval of a majority of all the Cantons, says, “That it is, therefore, hereby solemnly declared in effect, bearing date of May 29, 1874.” The Federal Council, on May 30, 1874, ordered the above decree, together with the Constitution, to be enrolled in the official collection of statutes of the Confederation, and the decree to be transmitted to the governments of the Cantons, to be published by them through posting up in public places. The Federal system thus established has many features which are strikingly like, as well as many which are almost as strikingly unlike, those in the system of the United States. The preamble, and Articles I. and II. of the Constitution, point out the aim and lay down the fundamental idea of the Confederation.

IN THE NAME OF ALMIGHTY GOD.

The Swiss Confederation, desiring to confirm the alliance of the confederates, to maintain and to promote the unity, strength, and honor of the Swiss nation, has adopted the Federal Constitution, following:

Article I.—The peoples of the twenty-two sovereign Cantons of Switzerland, united by this present alliance [then follow the names of the Cantons], form in their entirety the Swiss Confederation.

Article II.—The purpose of the Confederation is to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and rights of the confederates, and to foster their common welfare.

The Constitution is divided into three chapters, embracing, respectively, seventy, forty-seven, and four articles, numbered consecutively throughout the whole. The chapters have subdivisions, with descriptive titles to the general heads.

The first chapter is titled General Provisions, and covers a wide field.

A literal transcript of the most important provisions of this chapter will be given.

CHAPTER I.

The Cantons are sovereign 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. All Swiss are equal before the law, with neither political dependence, nor privilege of place, birth, persons, or families. The Confederation guarantees to the Cantons their territory, their sovereignty (within the limits fixed), their Constitutions, the liberty and rights of the people, the constitutional rights of citizens, and the rights and powers which the people have conferred on those in authority. The Cantons are bound to ask of the Confederation the guarantee of their Constitutions: this is accorded, provided,—

(a) That the Constitutions contain nothing contrary to the provisions of the Federal Constitution.

(b) That they assure the exercise of political rights according to republican forms, representative or democratic.

(c) That they have been ratified by the people, and may be amended whenever the majority of all the citizens demand it.

All separate alliances and all treaties of a political character between the Cantons are forbidden. The Confederation has the sole right of declaring war, of making peace, and of concluding alliances and treaties with foreign powers, particularly treaties relating to tariffs and commerce. No military capitulations shall be made.[16] Members of the Federal Government, civil and military officials of the Confederation, and Federal Representatives or Commissioners shall not accept from foreign Governments any pension, salary, title, present, or decoration. The Confederation has no right to maintain a standing army: every Swiss is subject to military service. The Confederation may construct at its own expense, or may aid by subsidies, public works which concern Switzerland or a considerable part of the country: the Confederation has the right of general supervision over the water and forest police measures in the upper mountain regions. It is authorized to adopt regulations as to the right of fishing and hunting, especially for the preservation of the large game in the mountains, and for the protection of birds which are useful to agriculture or forestry. Legislation pertaining to the construction and operation of railways is an affair of the Confederation. It has the right to establish, in addition to the existing Polytechnic school, a Federal University and other higher institutions of learning, or assist in their support. The customs are in the province of the Confederation; it may levy export and import duties; but the collection of the Federal customs shall be regulated according to the following principles:

1. Import duties.

(a) Materials necessary to the manufactures and agriculture of the country shall be taxed as low as possible.

(b) Likewise all articles which may be classed as necessaries of life.

(c) Luxuries shall be subjected to the highest duties.

2. Export duties shall also be as low as possible.

3. The customs legislation shall include suitable provisions for the continuance of commercial and market intercourse across the frontier.

The freedom of trade and of industry is guaranteed throughout the whole of the Confederation: excepted from this rule are the salt and gunpowder monopolies, the Federal customs, measures of sanitary police against epidemics and cattle diseases, import duties on wines and other spirituous liquors, and other taxes on consumption expressly permitted by the Confederation, under certain restrictions: but all the import duties levied by the Cantons as well as the similar duties levied by the Communes to cease, without indemnity, at the end of the year 1890. The Confederation has power to enact uniform provisions as to the labor of children in factories, and as to the duration of labor fixed for adults therein, and as to the protection of workmen against the operation of unhealthy and dangerous manufactures. The business of emigration agents and of private insurance companies shall be subject to the supervision and legislation of the Confederation. The opening of gambling-houses is forbidden (those in existence allowed until December 31, 1877, to close); necessary measures may also be taken concerning lotteries. The post and telegraphs (now includes the telephone) in all Switzerland are controlled by the Confederation, and the proceeds belong to the Federal Treasury; the tariff charges shall be regulated according to uniform principles in as equitable a manner as possible, and inviolable secrecy of letters and telegrams is guaranteed. To the Confederation belongs the exercise of all rights included in the coinage monopoly: it alone shall coin money, establish the monetary system, and enact provisions, if necessary, for the rate of exchange of foreign coins, and to make by law general provisions as to the issue and redemption of banknotes: it shall not, however, establish any monopoly for the issue of banknotes, nor make them a legal tender. The Confederation fixes the standard of weights and measures. The manufacture and the sale of gunpowder throughout Switzerland pertains exclusively to the Confederation (the manufacture and sale of spirituous liquors was made a Federal monopoly December 22, 1885). Every citizen of a Canton is also a Swiss citizen, and as such he may participate in the place where he is domiciled in all Federal elections and popular votes, after having duly proven his qualification as a voter.[17] A Federal law shall establish the distinction between settlement and temporary residence, and shall at the same time make the regulations to which Swiss temporary residents shall be subjected as to their political rights and their civil rights. A Federal law shall make provision as to the cost of the care and burial of indigent persons of one Canton who may become sick or die in another Canton. Freedom of conscience and belief shall be inviolable; no one shall be compelled to take part in any religious society or in any religious instruction, or to undertake any religious act, nor shall he be punished in any way whatever for his religious views. The person who exercises the parents’ or guardians’ authority has the right, conformably to the principles above stated, to regulate the religious education of children up to the close of their sixteenth year. The exercise of civil or political rights shall not be abridged by any provisions or conditions whatever of an ecclesiastical or religious kind. Religious views shall not absolve from the performance of civil duties. No person is bound to pay taxes of which the proceeds are specifically appropriated to the expenses of any religious society to which he does not belong. The free exercise of religious worship is guaranteed within the limits of morality and public order; the Cantons and the Confederation may take suitable measures for the preservation of public order and of peace between the members of different religious bodies, as well as against any interference in the rights of citizens or of the state by church authorities. Contests in public and private law which arise out of the formation or the division of religious bodies may be brought by appeal before the competent Federal authorities. No bishopric shall be created upon Swiss territory without the consent of the Confederation; neither the order of the Jesuits nor the societies affiliated with them shall be suffered in any part of Switzerland, and all participation of their members either in church or school is prohibited; this prohibition may be extended also by Federal ordinance to other religious orders whose action is dangerous to the state, or disturbs the peace between sects. The establishment of new convents or religious orders or the restoration of those which have been suppressed is forbidden. The civil status and the keeping of records thereof is subject to the civil authority (taking it away from the clergy, who were formerly the custodians). The disposition of burial-places shall belong to the civil authorities; they shall take care that every deceased person may be decently interred (to prevent denial of burial by the church). The right of marriage is placed within the protection of the Confederation; this right shall not be limited for confessional or economic considerations, nor on account of previous conduct or other police reasons; no tax upon admission or similar tax shall be levied upon either party to a marriage. Freedom of the press is guaranteed; the Confederation may enact penalties against the abuse of the freedom of the press when directed against it or its authorities. The right of petition is guaranteed. No person shall be deprived of his constitutional judge, and there shall consequently be no extraordinary tribunal established.[18] Ecclesiastical jurisdiction is abolished. Suits for personal claims against a solvent debtor having a domicile in Switzerland must be brought before the judge of his domicile; in consequence his property outside the Canton in which he is domiciled may not be attached in suits for personal claims; with reference to foreigners, however, the provisions of the respective international treaties shall apply. Imprisonment for debt is abolished. The exit duty on property is abolished as respects foreign countries, provided reciprocity be observed. The Confederation shall have power to legislate:

1. On civil capacity.

2. On all legal questions relating to commerce and to transactions affecting chattels (law of commercial obligations, including commercial law and law of exchange).

3. On literary and artistic copyright.[19]

4. On the legal collection of debts and on bankruptcy.

Capital punishment abolished;[20] corporal punishment is forbidden. The Confederation by law provides for the extradition of accused persons from one Canton to another; nevertheless, extradition shall not be made obligatory for political offences and offences of the press. Measures shall be taken by Federal law for the incorporation of persons without a country.[21] The Confederation has power to expel from its territory foreigners who endanger the internal or external safety of Switzerland.

The second chapter embraces the Federal Authorities:

CHAPTER II.

1. The Federal Assembly or Legislative Department.

2. The Federal Council or Executive Department.

3. The Federal Tribunal or Judicial Department.[22]

4. The Federal Chancellery.

It is provided that the duties of Secretary to the Federal Assembly and Federal Council shall be performed by a Federal Chancellery under the direction of a Chancellor of the Confederation. The Chancellor shall be chosen for the term of three years by the Federal Assembly at the same time as the Federal Council. The Chancellery shall be under the special supervision of the Federal Council.

5. Miscellaneous provisions.

These are three in number:

1. All that relates to the location of the Federal authorities is a subject to be determined by the Confederation.

2. The three principal languages spoken in Switzerland—German, French, and Italian—shall be considered national languages of the Confederation.[23]

3. The officials of the Confederation shall be responsible for their conduct in office. Federal law shall define this responsibility and the means of enforcing it.

The third chapter directs the method by which the Constitution can be amended.

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]

CHAPTER III.
THE FEDERAL ASSEMBLY.

Bundesversammlung; Assemblée fédérale.

“A legislative, and an executive, and a judicial power comprehend the whole of what is meant by government.”[30] We find in Switzerland this general division of powers, with many interesting and instructive peculiarities, which give the Swiss federalism an individual character.

The need for two chambers in a federal state has become an axiom of political science. Where there is a twofold sovereignty, that of the whole nation, and that of the states or Cantons, which are joined together to form it, each sovereignty must be represented in the legislature. With the two chambers, one representing the people as a whole, the other the integral parts as constituent members of the whole, each element is a check upon the other by the coexistence of equal authority. By the Constitution of 1874, “With reservation of the rights of the people and of the Cantons the supreme authority of the Swiss Confederation is exercised by the Federal Assembly, which consists of two sections or councils, to wit:

“1. The National Council (Nationalrath; Conseil National).

2. The Council of States (Ständerath; Conseil des États).”

Relating to the National Council, the Constitution has eight articles, viz.:

1. The National Council is composed of representatives of the Swiss people, chosen in the ratio of one member for each twenty thousand persons of the total population. Fractions of upward of ten thousand persons are reckoned as twenty thousand. Every Canton, and in the divided Cantons every half-Canton, chooses at least one representative.

2. The elections for the National Council are direct. They are held in federal electoral districts, which in no case shall be formed out of parts of different Cantons.

3. Every male Swiss who has completed twenty years of age, and who in addition is not excluded from the rights of active citizenship by the legislation of the Canton in which he is domiciled, has the right to take part in elections and popular votes. Nevertheless, the Confederation by law may establish uniform regulations for the exercise of such right.

4. Every lay Swiss citizen who has the right to vote is eligible as member of the National Council.

5. The National Council is elected for three years, and entirely renewed at each general election.

6. Members of the Council of States, or of the Federal Council, or officials appointed by the latter, shall not at the same time be members of the National Council.

7. The National Council chooses from among its members, for each regular or extraordinary session, a President and a Vice-President. A member who has held the office of President during the regular session is not eligible either for President or Vice-President of the next regular session. The same member may not be Vice-President for two consecutive regular sessions. The President shall have the casting vote in case of a tie; in elections, he votes in the same manner as any other member.

8. The members of the National Council receive a compensation from the federal treasury.

The qualification of the elector, as above described, is that of being in the enjoyment of the “active right of citizenship,”—i.e., not excluded from the rights of a voter by the legislation of his Canton. This also applies to those who have been deprived of their civic rights by virtue of the penal law, and in consequence of a judicial sentence; and in some Cantons embraces insolvents and paupers. The limitation of eligibility to “lay” Swiss citizens does not necessarily exclude ecclesiastics, as illustrated in a recent case of a Bernese clergyman, who, being chosen a member of the National Council, simply laid aside temporarily, by resignation, his clerical robes; should he fail any time of re-election he may return to the pulpit. Naturalized citizens are not eligible until five years after they have become citizens. The provision forbidding a member to hold the office of President for two consecutive ordinary sessions makes it possible, during the life of a National Council, for one-fourth of the Cantons (even counting the half-Cantons) to be honored with this officer; and certainly gives but little opportunity for the building up of a one-man power, just this side of absolute. The power of the presiding officer of the National Council is too insignificant to justify any parallel with that of the Speaker of the United States House of Representatives. A federal law regulates in a uniform manner, and by ballot, the election for members of the National Council; the execution of the law is entirely under the direction of the Canton, and in immaterial details there is a great diversity. There are registers in each Commune, in which every citizen having a vote must be inscribed. These registers are open two weeks before the day of the election, and close three days previous to it. In some Cantons, a card from the Commune where the voter is registered is left at his house; in others, he must present himself at the proper office and obtain his card. The election takes place on the last Sunday in October triennially. The polls generally are in the churches, and no one is permitted to enter except upon the presentation of the requisite proof as to his right to vote. Candidates must be elected by an absolute majority of the votes cast. Should there be a failure of election, a second ballot under the same conditions is had the following Sunday. If a third ballot becomes necessary, the election is again repeated the next Sunday, when the scrutin de liste is restricted to a number not exceeding three times the number of members to be chosen; and these must be taken in order from those receiving the largest vote in the previous tours de scrutin. In this final trial the candidate or candidates, as the case may be, having a plurality are elected. The members are elected on a general ticket,—that is, “at large” for the district, not for the Canton. These districts are called arrondissements, and the method of voting is known as scrutin d’arrondissement.

The National Council at present consists of one hundred and forty-five members, apportioned among forty-nine electoral districts. The number returned from these districts varies from one to five members each. The Cantons of Uri and Zug, and the half-Cantons of Obwald, Nidwald, and Inner-Rhoden compose only one district each. Bern has six districts and twenty-seven members; Zurich, four districts and sixteen members. Every elector is entitled to vote for as many members as his district is entitled to, but not cumulatively. A federal census for the apportionment of representation is taken every ten years. Members receive a compensation of twenty francs per day (about $3⁸⁶⁄₁₀₀) when the National Council is in session,[31] and a travelling allowance of twenty centimes per kilometre (a fraction under .03 per mile). A member loses his per diem if he does not answer the roll-call at the opening of the day’s session, unless he should appear later and give to the secretary a sufficient excuse for his dilatoriness. If subsequently, during that day’s session, there is a vote by roll-call (appel nominal), or if there is a count of the House to ascertain the presence of a quorum, the compensation of the members whose absence is disclosed is forfeited for that day. This law is not a “dead letter,” but is strictly enforced, and with a frugal-minded people tends to keep the members in their seats.

The Council of States (Ständerath; Conseil des États).

The space devoted to the Council of States in the Constitution is one-half of that given to the National Council, and is comprised within four articles:

1. The Council of States consists of forty-four representatives of the Cantons. Each Canton elects two representatives, and in the divided Cantons, each half-Canton elects one.

2. No member of the National Council or of the Federal Council may be at the same time a member of the Council of States.

3. The Council of States elects from among its members a President and Vice-President for each regular and extraordinary session. From among the representatives of that Canton from which a President has been elected for a regular session, neither the President nor Vice-President can be taken for the next following regular session. Representatives of the same Canton cannot occupy the position of Vice-President during two consecutive regular sessions. When the votes are equally divided, the President has a casting vote; in elections, he votes in the same manner as the other members.

4. Members of the Council of States receive compensation from their respective Cantons.

The constitution of the two Houses is manifestly borrowed from the model of the United States; but it is apparent that the Council of States does not so closely correspond with the Senate of the United States as the National Council does to the House of Representatives. It has no such clearly-defined character as the Senate in distinctively representing the federal feature of the union between the Cantons. For the mode in which its members shall be elected, the qualifications which they shall possess, the length of time which they shall serve, the salary which they shall receive, and the relations they shall bear to those whom they represent, in fact, every element of their character as representatives is left to the Canton, and a great variety of provisions prevail.[32] The small Cantons in which the people assemble annually (Landsgemeinde) have their members elected by this assembly, by the raising up of hands for such or such a candidate. In other Cantons, including Zurich, Thurgau, and Basel-rural, the whole Canton forms but one district for the nomination of the members; the votes are deposited in the ballot-box of the Commune, and are collected and counted by a cantonal board. In the Cantons having the representative system, such as Geneva, Freiburg, Ticino, and Bern, they are chosen by the cantonal legislative body. The terms of the members vary from one to three years; twelve Cantons elect for one year, twelve for three years, with Valais holding to the mean of two years. Their compensation, paid by the Canton, is the same as that received by the members of the National Council, with the exception of Geneva, where it is double the amount, or forty francs. When serving on committees during recess, the members of the Council of States are paid by the Confederation. The Vice-Chancellor serves as Secretary of the Council of States.

The Council of States has no special executive powers apart from the National Council like the United States Senate; which in some respect give that body a further strength and dignity of its own. The Swiss Senate rests solely on its general position as one necessary element of the federal system. The two branches of the Assembly are co-ordinate, standing in all respects on an equal footing. The work of each session, so far as known at its opening, is divided between the two Houses by a conference of their Presidents. The right of initiative belongs to each House, and to each member of the Assembly. There may be a shade of superior consequence and dignity attaching to the National Council. It is designated first in order by the Constitution, it has a fixed term of service, and when the two Houses are in joint session, the President of the National Council takes the chair. In the National Council are to be found the more ambitious and active men in political life, for the members of the Federal Council are sure to be chosen from this body. The members of both Houses equally enjoy the usual privileges and immunities of members of representative bodies. The two Houses act separately in all strictly legislative matters; coming together for deliberation in common only for the exercise of certain electoral and judicial functions.

The powers of the Federal Assembly are thus set forth in the Constitution

1. The National Council and the Council of States have jurisdiction over all subjects which the present constitution places within the competence of the Confederation, and which are not assigned to other federal authorities.

2. The subjects which fall within the competence of the two Councils are particularly the following:

Laws pertaining to the organization and election of federal authorities.

Laws and ordinances on subjects intrusted by the Federal Constitution to the Confederation.

The salary and compensation of members of the federal governing bodies, and of the Federal Chancellery; the establishment of federal offices, and determination of their salaries.

The election of the Federal Council, of the Federal Tribunal, of the Federal Chancellor, and of the General of the Federal Army.[33]

Alliances and treaties with foreign countries, and the approval of treaties made by the Cantons between themselves or with foreign powers; such cantonal treaties shall, however, not be submitted to the Federal Assembly, unless objection be raised to them by the Federal Council or by another Canton.

Measures for external safety; for the maintenance of the independence and neutrality of Switzerland; the declaration of war and the conclusion of peace.

The guarantee of the constitutions and the territory of the Cantons; intervention in consequence of such guarantee; measures for the internal safety of Switzerland, for the maintenance of peace and order; amnesty and pardon.[34]

Measures for securing observance of the Federal constitution; for carrying out the guarantee of the Cantonal constitutions, and for the fulfilment of federal obligations.

The power of controlling the federal army.

The determination of the yearly budget, the audit of public accounts, and federal ordinances authorizing loans.

General supervision of the federal administration and of federal courts; appeals from the decisions of the Federal Council upon administrative conflicts of jurisdiction between federal authorities.

Revision of the Federal constitution.

3. Both Councils shall assemble once each year in regular session, on a day to be fixed by the standing orders.[35] They may be convened in extra session by the Federal Council, or on demand of one-fourth of the members of the National Council, or of five Cantons.

4. In either Council a quorum is a majority of the total number of its members.

5. In the National Council and in the Council of States, a majority of those voting shall decide the question.

6. For federal laws, decrees, and resolutions, the consent of both Councils is necessary. Federal laws shall be submitted for acceptance or rejection by the people upon the demand of thirty thousand qualified voters, or of eight Cantons. The same principle applies to federal resolutions, which have a general application, and which are not of an urgent nature.

7. The Confederation shall by law establish the forms and times of popular voting.

8. Members of either Council vote without instructions.

9. The Councils deliberate separately. But in the case of the elections (specified in Section 2), of pardons, or of deciding a conflict of jurisdiction, the two Councils meet in joint session, under the direction of the President of the National Council. Votes shall be decided by simple majority of the members of both Councils, present and voting.

10. Measures may originate in either Council, and may be introduced by any member of each Council.

11. The sittings of both Councils shall, as a rule, be public.

The law-making department in any sovereign state is the repository of most power; consequently the constitution of Switzerland, like that of the United States, after enumerating the powers which shall be exercised by authority of the general government, confers them in terms upon the most immediate representative of the sovereignty. In Switzerland this is the Federal Assembly; in the United States it is Congress. The scope of powers conferred upon the Swiss Federal Assembly enables it to exercise not only legislative, but supervisory, executive, and judicial functions. The separation of its powers from those of the Federal Council and the Federal Tribunal—the executive and judicial departments—is neither clearly set forth nor in practice is it strictly observed. Cases have occurred, the jurisdiction over which being involved in so much doubt, the interested parties, from abundance of caution, submitted their memorials simultaneously to two of these federal departments. The Swiss Federal Assembly exercises a power more comprehensive and greater than that given probably to any legislative body; at least in a republic, where there is a professed organic distribution of the three great heads. It elects the Federal Executive, Federal Judiciary, and the Commander of the Army. It is the final arbiter on all questions as to the respective jurisdiction of the Executive and the Federal Court. It would appear that there is no decision of the Executive which cannot be revised by it. It is the chief power in the land. No veto can intervene nor any judicial power question the constitutionality of its statutes. Its acts form the law which the court must execute. The Swiss people, as it were, speak in each legislative enactment; and the only check or revision to which it is amenable rests with the people themselves by means of the Referendum. The authority of the Swiss Assembly, it is true, exceeds that of the Congress of the United States, and yet it may be regarded as a weaker body. For while in each case there lies in the background a legislative sovereign, capable of controlling the action of the ordinary legislature, the sovereign power is far more easily brought into play in Switzerland than in the United States. Again, every ordinary law passed by the Swiss Assembly may be annulled by a popular vote. The freedom from instruction secured to the members of the Federal Assembly was first declared in the Swiss Constitution of 1848. The whole history of the representative principle proves the soundness of the doctrine, that the vesting an entire discretion in the representative is an essential part of the definition. It is not to the power of instructing the representative that constituents are to look for an assurance that his efforts will be faithfully applied to the public service; but it is to the power of reducing him from the elevation to which their suffrages have raised him. The object to be obtained is not to compel the representative to decide agreeably to the opinions of his constituents, for that would be compelling him often to decide against his better judgment; but it is to force him to decide with a single view to the public good. It is by leaving him unshackled with positive instructions, while he is subject to the ultimate tribunal of the opinion of his constituents, that the end in view is to be accomplished of bringing into action, in the proceedings of the legislature, the greatest practicable quantity of intelligence under the guidance of the purest disposition to promote the welfare of the community. The view which Burke takes of the relation between a representative and his constituents is in the main so correct, and is so luminously expressed, that no one can read it without pleasure and instruction. The passage occurs in his celebrated speech at Bristol on the conclusion of the poll. “Certainly, gentlemen,” he says, “it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs; and above all, ever and in all cases to prefer their interest to his own. But his unbiased opinion, his matured judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.”

Neither the Constitution of the United States, nor that of Switzerland, vests anywhere any power of dissolution of the legislative body. The Swiss Assembly is chosen for a definite time; when that time is up it dissolves by the operation of the law; before that time is up no power can lawfully dissolve it.

Either the National Council or Council of States can recommend to the Federal Council that it shall prepare and present for its consideration certain bills; or a member can suggest one to his own House, and, if agreeable, the matter will be referred to the Federal Council with instruction to draft the necessary bill; or the Federal Council itself presents bills upon its own initiative. The Assembly recommends to the Federal Council by motions, called postulats, such alterations or reform in bills submitted by it as seem to them to be proper. If the Federal Council does not assent to a particular postulat coming from one of the Houses, it makes a report to that effect to the House, and if the latter insists upon its view, then a formal proposition is drawn up, and if carried in both Houses, the Federal Council is bound to execute its provisions. It must be understood that every bill must pass through the hands of the Federal Council, and by it laid before the Assembly. When a bill is presented by the Federal Council, the House, which has first to take it up, appoints a committee to examine and report upon it. These committees or commissions are appointed as the occasion arises,—there being no standing committees,—by the President of the House and the scrutateurs; constituting together what is called a bureau. These scrutateurs, four in the National Council and two in the Council of States, are elected every session from the members of their respective Houses; and it is also their duty to determine and to announce the result, whenever a vote is had, either by ballot, division, or viva voce; they occupy an elevated position to the right of the President. On the submission of a committee’s report, the bill is discussed, and ultimately either passed with or without amendments, or rejected. If passed, it goes to the other House, where a similar process is undergone. When passed by both Houses it becomes law, and is published as such by the Federal Council in the Feuille fédérale Suisse; subject, however, to the Referendum, if duly demanded. The Federal Council, in publishing a law, decree, or resolution not subject to the Referendum, fixes the date when it shall go into force, if this is not done in the text of the bill. Generally, this date is the day of publication. For all measures liable to the Referendum, what is termed délai d’opposition is named, being a period of three months, during which the appeal to the popular vote can be demanded. In case of no appeal being taken, the law goes into force after the expiration of the three months.

The daily sittings of the Assembly open at eight o’clock in the morning during the June session, and nine o’clock during the December session; the adjournments are usually from one to two o’clock P.M. The sessions never extend beyond three weeks. It requires from the federal treasury a small sum to defray the entire annual cost of the Assembly. In the legislative appropriation bill for 1889 the following sums were provided for the compensation of the two Houses of the Assembly: Ständerath, salaries and mileage of committees, 10,000 francs; salary and mileage of translator, 3000 francs; service, 2500 francs; total, 15,500 francs; Nationalrath, salaries and mileage of members and members of committees, 200,000 francs; translator, 3000 francs; service, 3000 francs; total, 206,000 francs. So the entire outlay of the country for its legislative department for the year was 221,500 francs, or about $44,000; one thousand dollars less than is annually paid to nine members of Congress.

One in visiting the chambers of the Assembly is much impressed with the smooth and quiet despatch of business. The members are not seated with any reference to their political affiliations. There are no “filibustering,” no vexatious points of order, no drastic rules of “clôture,” to delay or ruffle the decorum of its proceedings. Interruptions are few, and angry personal bickerings never occur. There are no official stenographers, or verbatim reports made of the proceedings; press reporters represent only the local papers and furnish a very meagre synopsis of the daily business. The small gallery set apart for the public is rarely occupied. “Leave to print” or a written speech memorized and passionately declaimed are unknown; there are none of these extraneous and soliciting conditions to invite “buncombe” speeches or flights of oratory for the press and the gallery. The debates are more in the nature of an informal consultation of business-men about common interests; they talk and vote, and there is an end of it. This easy colloquial disposition of affairs by no means implies any slipshod indifference, or superficial method of legislation. There is no legislative body where important questions are treated in a more fundamental and critical manner. The members of the National Council stand up to speak, while those of the Council of States speak from their seats. The tri-lingual characteristic of the country is carried into the Assembly; and within a brief visit to either House, different members may be heard to speak successively in German, French, and Italian. If the presiding officer of either House is a German and cannot speak French, his remarks are immediately repeated by a French official interpreter who stands at his side; and with a President who is French and cannot speak German the process is reversed. The members from the Italian Cantons, as a rule, understand French or German sufficiently not to require special translation into their tongue. All bills, reports, resolutions, and laws are published in the three languages. The Swiss have been as successful in reconciling the difficulties of diverse dialects in the federal legislature as in the harmonious union of Cantons. It was a serious obstacle in the way of the union, when the legislature of the kingdom of the Netherlands, founded in 1814, had three different languages spoken in its Halls,—Dutch, Flemish, and French. This was considered to foreshadow the disruption in 1830, as it intensified every prejudice and difficulty. The personnel of the Assembly is grave and sedate, dignified and serious. A large majority of the members are past middle age,—men of education, culture, and experience in public life. Many of them have held office first in their Communes and then in their Cantons. It is curious that, in a country where it is hard to find the court-house or a lawyer’s sign, one-fourth of the members of the Assembly report themselves as advokats; next in number come merchants, then farmers, physicians, bankers, and professors. One-third are given as incumbents of various other cantonal and communal offices. It is very common for a person to fill at the same time a federal, cantonal, and communal office, where the duties do not conflict and belong to the same general class. This is regarded as both simplifying and cheapening the public service. The very dress of the members, in its severe sombreness and uniformity, bespeaks the stable and serious bent of their minds. Scarcely the change of a cravat would be required for the entire body to appear at a funeral de rigueur. The oath administered to the members of the Assembly is calculated to emphasize the high and sacred trust assumed. It runs thus: “I swear, by God the Almighty! to maintain the constitution and the laws of the Confederation, faithfully and truly to guard the unity, power, and honor of the Swiss nation, to defend the independence of the Fatherland, the freedom and rights of the people, and its citizens in the whole, to fulfil conscientiously all duties conferred upon me, as truly, as God blesses me.” In taking this oath the member stands with his right hand uplifted, the thumb and first two fingers extended, indicating the Trinity.

The members of the Assembly practically enjoy a life-tenure; once chosen a member, one is likely to be re-elected so long as he is willing to serve. Re-election, alike in the whole Confederation and in the single Canton, is the rule; rejection of a sitting member, a rare exception. Death and voluntary retirement accounted for nineteen out of twenty-one new members at the last general election. There are members who have served continuously since the organization of the Assembly in 1848. Referring to this sure tenure of officials generally, the President of the Confederation, in a public address, said, “Facts and not persons are what interest us. If you were to take ten Swiss, every one of them would know whether the country was well governed or not; but I venture to say that nine of them would not be able to tell the name of the President, and the tenth, who might think he knew it, would be mistaken.” To some extent this remarkable retention of members of the Assembly may be ascribed to the fact that the people feel that they are masters of the situation through the power of rejecting all measures which are put to the popular vote. The position of a member is haloed with dignity, and is not a place sought from material motives, a perquisite more than an honor. The absence of this fiscal view of the office of the legislator brings in its train an equal absence of the “rotation” notion. The Assembly is not made up on the theory of mutation or by agencies more malign. Some are fond of declaring against the caprice and ingratitude of the people, says Mr. Freeman in his “Growth of the English Constitution,” and of telling us that under a democratic government neither men nor measures can remain for an hour unchanged. The spirit which made democratic Athens, year by year, bestow her highest offices on the patrician Pericles and the reactionary Phocion, still lives in the democracies of Switzerland, in the Landsgemeinde of Uri, and the Federal Assembly at Bern. The ministers of kings, whether despotic or constitutional, may vainly envy the sure tenure of office which falls to the lot of those who are chosen to rule by the voice of the people. Grote, who wrote his “History of Greece” in Switzerland, stated that his interest in the Swiss Cantons arose from the analogy they presented to the ancient Greek states; and specially as confirming the tendency of popular governments to adhere to their leaders with the utmost tenacity of attachment.

Corruption at the polls, civic jobbery, the declension of legislative character, the greed for official pelf,—these evils are not restricted to any people or country. An imperfect answer as to the cause and remedy is difficult; a complete answer is impossible. Some of these evils are connected with political problems that are vexing our epoch in every state and country where constitutional government and a liberal suffrage prevail. Switzerland, with a government so adequate for a simple people and small country, appears to have firmly resisted the impact of these political ills. Service in the federal legislature is accepted from a sense of patriotic duty; neither emolument nor self-aggrandizement being an element of its membership worthy of consideration. The election of deputies to the Swiss Assembly is an event which creates no violent commotion or even general interest in the great body of the people. A large majority of the candidates are unopposed; there is no opportunity for bribery to sap the public morale, or any field for the unscrupulous plying of the disgraceful artifices and incidents which too often mark a hotly-contested election in the United States. An election, general or local, is not an occasion of bustle or clamor, turbulence or revelry; there are no processions, no party badges, no music, no “pole-raising,” probably not a speech, and no candidate present when the exercise of this important privilege is going on. It is an affair of deliberation and decision, of sobriety and wisdom. The electors themselves feel that they are called upon to exercise a serious and elevating duty; the solemn and deliberate act of choosing men to govern the destinies of a civilized and enlightened people. It may be that the Swiss elections, being held on Sunday, and the polls often in the churches, in part contribute to inspire the elector with respect for himself, for the character which he has to sustain, and for the institution in which he thus bears an honorable part. It is feared that the suggestion of such a remedial agency in the United States would be regarded by our churchmen as ægrescit medendo. The excitement attending the popular elections in the United States as now conducted is in the main of a vicious and degrading character. Instead of infusing into the hearts of the people a spirit of patriotism, leading them to value the blessings of the government under which they live, it infuses little but rancor and malignity; giving an opportunity for the indulgence of vicious passions which are born but do not die with the emergency; evolving the gross, vulgar morality which, provided you do no injury to a man’s person or possessions, sees nothing in your conduct towards him to condemn; which is near-sighted to the turpitude of slander and misrepresentation directed against him, and blind to the iniquity of needlessly invading a man’s private life; a morality which is incapable of comprehending that one source of happiness ought to be as sacred from wanton encroachment and disturbance as another; and that visible property is not the only thing which can be purloined or invaded. These evils are being submitted to, without any strenuous effort to remove them, as if they were not a mere excrescence, but formed an integral or essential part of the system, which they deform and debase.

There can scarcely be said to be any party alignments in the Swiss Assembly. It is comparatively free from the “offensive partisanship,” “pernicious activity,” and system of party organization and activity which flourish in the United States with exuberant and, in some respects, ominous vigor. While nominally three political divisions exist in the Swiss Assembly, the Right, Centre, and Left, the accepted general classification reduces them to two, Radicals and Conservatives. The main line of separation is the same perplexing issue running through all political history, the rivalry between the state and nation, one seeking to minimize, the other to magnify the sphere of the central government. The Radicals are those who seek to give the broadest interpretation to the constitution, so as to enlarge the field of federal authority. The Conservatives are jealous of every encroachment upon the traditional prerogative of the Cantons, and desire to restrict and confine the limits of federal action. The Radicals are the most numerous, commanding an absolute majority in both the National Council and the Council of States. Within these two broad divisions there are many different shades that separate on questions of a social, religious, and economic character. Then these grand and subdivisions have an entirely different significance, as applied to federal or cantonal questions; a Radical as to the one, may be a Conservative as to the other. The Radical and Conservative of the Canton of Vaud is by no means the same as the Radical and Conservative of the Cantons of Zurich and Aargau; the Radical of Geneva is very different from the Radical of St. Gallen. The two parties are not distinguished from each other by any systematic respect or disrespect for cantonal independence. So the purely political question between privilege on one side and the sovereignty of the people on the other is one of subordinate moment; the former does not find expression in any party formula. It is an error to estimate the character and tendencies of the Swiss parties by the names which they bear, Radical and Conservative, in the light of the footing these names have obtained in every language in Europe, and the strong feelings of esteem or hatred associated with them. As such they are nowise fully correct designations of the political divisions, prominently opposed in Switzerland, and of the points at issue between them. It is not true that the Swiss Radical desires over-centralization to the extent of unitary government; but, with the Conservative, holds to the great theory of local self-government as founded upon these propositions; that government is most wise, which is in the hands of those best informed about the particular questions on which they legislate; most economical and honest when in the hands of those most interested in preserving frugality and virtue; most strong when it only exercises authority which is beneficial in its action to the governed. There is a feeling common to the population of every Canton and Commune, which puts all idea of any party advocating one concentrated system out of the question. Madison says, “An extinction of parties necessarily implies, either a universal alarm for the public safety, or an absolute extinction of liberty.” Political parties perform functions of the greatest possible importance; through their organizations is fulfilled that obligation which is incumbent upon every citizen of a republic, to give an earnest, careful, and habitual attention to the conduct of government. Parties are the exponents and representatives of the great issues that constantly arise in every free community. By the discussions that arise between them public opinion is formed, the people educated in their political rights, a due sense of citizenship generated and fostered; they are a great centripetal force in every system of home-rule government.

The strong attachment to party, with its resultant full crop of political dissension, in the United States has at the same time awakened a zeal for turning the powers of government to profitable public account, and a sensibility to the exposure of wrong or abuse, which manifest themselves in a thousand beneficial ways. “It is one of the advantages of free government,” declares Sir James Mackintosh, “that they excite sometimes to an inconvenient degree, but upon the whole, with the utmost benefit, all the generous feelings, all the efforts for a public cause, of which human nature is capable.” Switzerland, in the legislative branch of her federal system, gathers together a body of men remarkable for that generous and patriotic impulse which moves noble minds to sacrifice private interests to the public good, and that public spirit that is the sense of duty applied to public affairs; none of the cowardly and unpatriotic sentiment expressed in the speech of Cato, “when vice prevails and impious men bear sway, the post of honor is a private station.” With a Swiss, the post of honor is always the post of duty, and the call of duty is loudest from the public service, and secures the ready response of the best citizens. Nowhere does popular government rest upon a firmer foundation of public spirit and the willing and active interest of the people.

CHAPTER IV.
THE FEDERAL COUNCIL.

Bundesrath; Conseil fédéral.

The three main forms of executive embrace the hereditary and irresponsible king, with or without a responsible ministry; the single responsible president; and the executive council. The most typical examples of these are: the constitutional monarchy of England; the Presidency of the United States; and the Federal Council of Switzerland. Or, there may be said to exist four chief ways in which parliamentary government is worked.

First, that of England, where the executive is the primary and the legislature the ultimate source of power; the English ministers have the right of initiative, but they cannot remain in office without a majority in the House of Commons.

Second, the German plan, where the ministers are solely dependent upon the Crown, but cannot spend money without parliamentary sanction.

Third, there is the constitution of the United States, under which the functions of both branches are clearly defined; the Cabinet being excluded from Congress, and Congress having no control over it, further than the confirmation of its members by the Senate.

Fourth, the Swiss system, wherein the executive is as great a departure from the precedent of the United States, and has produced something at least as widely different from the President of the United States, as he differs from an European king. The Swiss constitution provides no executive head, in the sense of that of the President of the United States; there is practically no such functionary. The Swiss executive has, in fact, none of the functions that are given to the President of the United States, as an independent power in the State, making him as truly the representative of the sovereign people as Congress itself. Andrew Jackson, indeed, habitually prided himself on the privilege of representing the masses; and the use of the veto by the President is in most cases highly popular, for through it the President is expected to counterbalance the power of the legislature.

Not until 1833, was there any project of reform in Switzerland looking to a special federal executive, apart from all the cantonal governments. Previously, the federal executive authority was not vested in any special magistrate or council, but exercised by the council of one or the other of the three directing Cantons, as explained in the “Introduction.” This had of course the inconvenience, among many others, of causing the employment of federal authority to be more or less guided by the politics actually prevalent in each of the three directing Cantons. Up to 1848, the legislative and executive power were vested in the same body. Switzerland, in its federal character, having never known a personal head of any kind, when the old weak Diet was changed into a real federal government, it naturally limited the executive power far more than it is limited in the United States; and the powers left to the executive were no less naturally intrusted, not to a President, but to a council. Unwilling to trust the executive power to any single man, it was placed in the hands of a council of seven. It may be called an impersonal executive. There is nothing about it to invite the homage of those whose chief object it is to find something to abase themselves before; its walks cannot be recorded in a court circular; it holds no drawing-rooms or levées; it pays no one the honor of a visit, and no one has the honor of being invited to visit it in return. A legislature chosen for a fixed term, which cannot be dissolved before the end of that term, chooses an Executive Council, for the term of its own existence. To such a body no scrap or rag of royal purple can hang; and it completely refutes the notion that the executive power of a republic is simply a shadow of kingship, a mere transfer from a life and hereditary tenure to an elected and limited term. The organization, powers, and duties of the Federal Council are defined by the constitution in the following provisions:

1. The supreme direction and executive authority of the Confederation shall be a Federal Council, consisting of seven members.

2. The members of the Federal Council are chosen by the Federal Assembly for the term of three years, from among all Swiss citizens eligible to the National Council. But not more than one member shall be chosen from the same Canton. After every general election for the National Council, the Federal Council shall also be integrally renewed. Vacancies which occur in the course of the three years are filled, for the rest of the term, at the ensuing session of the Federal Assembly.

3. The members of the Federal Council shall not during their term of office hold any other office, either in the service of the Confederation or of a Canton, or follow any other pursuit, or exercise a profession.

4. The Federal Council is presided over by the President of the Confederation. There is also a Vice-President. The President of the Confederation and the Vice-President shall be chosen, for the term of one year, by the Federal Assembly from among the members of the Council. The retiring President is not eligible either as President or Vice-President for the year ensuing. The same member may not hold the office of Vice-President for two consecutive years.

5. The President of the Confederation, and the other members of the Federal Council, shall receive an annual salary from the federal treasury.

6. A quorum of the Federal Council consists of four members.

7. The members of the Federal Council have the right to take part in the discussions, but not to vote in either House of the Federal Assembly; and also the right to make motions on any matter under consideration.

8. The powers and the duties of the Federal Council, within the limits of this constitution, are particularly the following: It directs federal affairs conformably to the laws and resolutions of the Confederation: it shall care that the constitution, federal laws and ordinances, and also the provisions of the federal concordats be observed: it shall take the necessary measures for their execution either on its own initiative or upon complaint, so far as the decision of such affairs has not been vested in the Federal Tribunal. It takes care that the guarantee of the cantonal constitutions is enforced. It proposes bills and resolutions to the Federal Assembly, and gives its opinions upon the propositions sent to it by the Federal Assembly or the Cantons. It executes the federal laws and decrees, the judgments of the Federal Tribunal, as well as the compromises or decisions in arbitration on questions of dispute among the Cantons. It makes such appointments as are not intrusted to the Federal Assembly, Federal Tribunal, or other authority. It examines the treaties made by the Cantons with one another, or with foreign countries, and approves them, if proper. It watches over the external interests of the Confederation, especially in all international relations, and shall, in general, have charge of foreign affairs. It protects the external safety, and the independence and neutrality of Switzerland. It protects the internal safety of the Confederation, and the maintenance of its peace and order. In cases of urgency, and when the Federal Assembly is not in session, the Federal Council shall have authority to raise the necessary troops and employ them, with the reservation that it shall immediately call the Federal Assembly together, if the number of men called out shall exceed two thousand, or if they remain in arms more than three weeks. It has charge of the federal army affairs and all other branches of administration which belong to the Confederation. It examines those laws and ordinances of the Cantons which must be submitted for its approval; it exercises supervision over those branches of cantonal administration that are placed under its control. It administers the finances of the Confederation, introduces the budget, and submits a statement of the accounts of federal income and expenditure. It supervises the conduct of all the officials and employés of the federal administration. It submits to the Federal Assembly at each regular session a report of its administration, and a statement of the condition of the Confederation, internal as well as external; and recommends to its attention such measures as in its judgment are desirable for the promotion of the common welfare. It also makes special reports when the Federal Assembly or either branch thereof requires it.

9. The business of the Federal Council is distributed by departments among its members. This distribution has the purpose only of facilitating the examination and despatch of business; every decision must emanate from the Federal Council as a body (a single authority).

10. The Federal Council and its departments are authorized to call in experts on special subjects.

In the exercise of several of its most important functions the action of the Federal Council is essentially judicial. This is conspicuously so in its right to examine the agreements made by Cantons among themselves or with foreign governments; and to judge of their conformity with the federal constitution. Under the name of “administrative law,” it passes in a judicial capacity upon the validity of numerous cantonal laws and ordinances, such as school affairs, freedom of trade and commerce, patent rights, rights of settlement, freedom from military service, rights of religious bodies, validity of cantonal elections, votes, etc. But there is no efficient instrumentality for the enforcement of the decrees of the Federal Council against the Cantons in these cases. If a Canton adopts a measure which the Council on appeal holds to be unconstitutional, and it declines to conform to the Council’s order, the latter has no direct way of enforcing it. The two methods of coercing a refractory Canton, so far tried, have been,—to send a special agent to negotiate with the cantonal authorities, and should his efforts fail, to quarter troops and the expense of their maintenance upon the offending Canton, until it yields; the other method is to keep back from the Canton subsidies which are to be provided for local purposes from the federal treasury. Both of these methods have been found efficacious. The Federal Council retains, however, under all circumstances, a very affectionate, if not reverential, tone in its communications to the Cantons, addressing them as “Faithful and dear confederates,” and closing, “We embrace this occasion, faithful and cherished confederates, to commend you with ourselves to divine protection.”

The Federal Council exercises wider discretionary authority, in the matter of arrest, of temporary imprisonment, of expulsion from the territory, and the like, than seems inferable from the terms of the constitution. A recent decree of the Federal Council forbade public exhibitions of magnetism and hypnotism. Wherever there is discretion there is room for arbitrariness, and in a republic, no less than under a monarchy, discretionary authority on the part of the government means insecurity for legal freedom on the part of the citizen. The Swiss constitution apparently is more democratic than that of the United States, from the fact that it does not vest the veto in any official; yet in the amount of authority which is allowed to the executive power over the citizen it is less democratic. Every legislative measure passes under the inspection of the Federal Council before action by the Federal Assembly; and the measures adopted by the Assembly are promulgated by the Council, signed both by the President of the Confederation and by the Chancellor, the ministerial officer of the Council; no doubt, in all cases, two signatures are safer than one.

The Federal Council, rather than to take the initiative, sometimes, by means of a suggestion from itself, is requested to present to the Assembly a measure; in this event a rejection of the measure would not be regarded by the Council in the light of a defeat. During the recesses of the Assembly the federal Councillors, at the head of committees designated by the Assembly or with expert commissions, meet in different parts of the country, to consider subjects that are to be brought before the Assembly. The bills are then prepared, which, with full and careful explanatory reports, are published in the official journal and carried by the newspapers to every corner of the Confederation. They are discussed by the people, and when the Assembly meets it is ready to take action with but little, if any, debate by the prompt enactment of these recommendations into law, the chief to whose department the subject-matter appertains being present, when it is taken up in the Assembly, to give any further information that may be desired.

All Swiss citizens eligible to the National Council are declared to be eligible to the Federal Council. But practically the qualification of a federal Councillor is prior membership of the National Council. Primarily the selection of federal Councillors is always made from among the members of the National Council; and by a strange custom invariably observed with only one exception since 1848, they are again triennially returned to the National Council from their respective districts while still serving as federal Councillors, and with the full knowledge that within a few days after the convening of the Federal Assembly they will be again chosen by that body for a new term in the Federal Council. This necessitates supplementary elections to fill the vacancies created in the Assembly. Again, at every recurring election of the National Council, one of the sitting members from each district wherein a federal Councillor resides, must make room for this temporary appearance of the federal Councillor in the National Council, as a condition precedent to his re-election. The sitting members cheerfully yield to this exigency, conscious that they are standing aside for a mere locum tenens, and in no wise imperilling the ultimate return to their seats, after a traditional custom has been accommodated. One district has of late years disregarded this custom, declining to go through the empty form of electing to the National Council the federal Councillor residing there, and whose re-election as federal Councillor is conceded. This one obdurate district may, by persisting in its course, be the means of the final overthrow of a practice, which at present involves a double election for six seats every three years at considerable expense and trouble: and apparently incapable of any intelligent explanation. Like many customs, it has simply taken root without any inquiry, and propagates itself without any opposition. A partial explanation may be discovered in the desire to preserve the identity of the federal Councillor with his Canton, and as a renewed declaration that he continues to enjoy the confidence of, and is in accord upon questions of public policy with, that local constituency which in all probability he served for many years in the National Council, before his promotion to the Federal Council. A federal officer holding his office directly from the Federal Assembly, and at the same time invested with the popular confidence of a local constituency equally with the other members of that assembly, presents a most remarkable assertion of local political autonomy in a purely national affair.

Originally these federal Councillors, when during their term elected to the National Council for the purpose of re-election to the Federal Council, took their seats in the former when it convened, and exercised all the functions of a member, yet concurrently holding their portfolios in the Federal Council for an unexpired term. This twofold service continued until their re-election for a new term took place, when they resigned their seats in the National Council, and resumed the single service of federal Councillors. It is related that one member of the Federal Council, some years since, only secured re-election by means of his own vote during his transition service as above described in the National Council. Of late years the exercise of these dual rights and privileges incident to this most singular condition of things, while not in violation of any law, has been regarded with disfavor, and the federal Councillors, during the few days of their membership triennially in the National Council, confine themselves to the privileges and rights that attach to a Councillor.

The geographical assignment of the members of the Federal Council is well established by an unwritten law, which is faithfully observed; a well-established usage in the election of the Federal Council assigns one member to each of the Cantons of Bern, Vaud, Zurich, and Aargau, and St. Gallen or Thurgau, then one each to the Catholic and Italian Swiss. The constitutional inhibition of the choice of more than one member from the same Canton may be regarded as a restriction that limits the choice without any adequate counter-benefit; it may exclude from the government statesmen of high merit, and thus diminish the resources of the state.

The members of the Federal Council can be and are continually re-elected, notwithstanding sharp antagonisms among themselves, and it may be between them and a majority in the Assembly. They also continue to discharge their administrative duties, whether the measures submitted by them are or are not sanctioned by the voters. The rejection of measures approved and proposed by them does not necessarily injure their position with the country. The Swiss distinguish between men and measures. They retain valued servants in their employment, even though they reject their advice. They retain in the service Councillors whose measures the voters nevertheless often refuse to sanction. Valuing the executive ability of these men, still they may constantly withhold assent from their suggestions.

The Council substantially in its present form came into existence with the Constitution of 1848; the first election of its members taking place in November of that year. The election, therefore, which occurred on the 13th of December, 1887, was the fourteenth triennial renewal of the Council, and covered a period of thirty-nine years. During this period the complete roster of the members embraces only twenty-seven names; even this small ratio of change resulted in seven cases from death, and eleven from voluntary retirement; leaving only two who failed to be re-elected on the avowed ground of political divergence. This most remarkable conservatism on the part of the Assembly, in retaining the members of the Council by repeated re-elections, has survived important issues of public policy, including several revisions of the constitution, upon which there was a wide diversity of opinion in the Council; some of whom actively participated in the discussions, antagonizing the views of a majority of the Assembly; the Assembly to which they owed their election and upon which they relied for their retention in office. Their periodical re-election, though seemingly pro forma, carries with it a salutary sense of accountableness. This sure tenure of service in the Federal Council makes those chosen look upon it as the business of their lives. Without this permanence attached to the position, such men as now fill it could not be induced to do so. They are men trained to vigorous personal and intellectual exertion, who often surrender pursuits yielding a much more profitable return. Precariousness of tenure in responsible positions discourages one from engaging in those measures of long-sighted policy or those plans of necessarily slow accomplishment, in which he might be so shortly interrupted, and his labors rendered abortive and unavailing. Political science, the science of wise government, is perhaps that department of intellectual exertion which requires the greatest powers of mind and the intensest application. Its facts are multifarious and complicated, often anomalous and contradictory, and demanding the guidance of clear perceptions. Its principles are many of them abstruse, and to be developed by long and close processes of reasoning; and the application of these principles requires the sagacity of quick observation and long experience. It is a business which requires as long and arduous preparation as any profession which can be named; and as entire devotion to it, with freedom from all other serious or momentous occupation, when its duties are once undertaken, as the calling of a lawyer, a physician, a merchant, or an engineer. One chief reason why there are so many needless, blundering, crude, mischievous, and unintelligible actions in public life, is that men have not dedicated themselves to its requirements as a separate study or profession; but have considered it to be a business which might be played with in their hours of leisure from more serious pursuits.

A member of the Federal Council cannot, during his term, “occupy any other office in the service of the Confederation or a Canton, or follow any other pursuit, or practise any profession.” He devotes his entire time and attention to his department, and not a mere casual, intermitting, and brief attention; or merely giving the refuse of his time and abilities in passing judgment on what others have devised and executed. He is obliged to attend to the routine, the detail, and all the technical niceties of its daily administration.

The salaries paid to these distinguished officials are not relatively higher than the wages of the people at large; and are very insignificant when compared with the compensation accorded for like services in other countries. Each of the seven members receives an annual salary of 12,000 francs or $2316; the President of the Council is given 1500 francs additional, making his salary $2605. This increase of salary to the President is made under the head of “expenses of representation,” understood to mean entertainments and kindred purposes devolving upon this official. The entire annual appropriation made for the maintenance of the executive department will not exceed $17,000.[36]

The business of the Federal Council is distributed among seven departments, as follows:

1. Foreign Affairs.

2. Interior.

3. Justice and Police.

4. Military.

5. Finance and Customs.

6. Industry and Agriculture.

7. Posts and Railways.

Each one of these departments is presided over by one of the Councillors. When the Council is integrally renewed by the Assembly there is no designation or assignment of any department; the members are simply chosen as federal Councillors, and make the apportionment among themselves; and an agreeable understanding has always been reached. According to the constitution this departmental division is only “to facilitate the examination and despatch of business; all decisions must emanate from the Council as a whole.” Regular Council meetings are generally held twice a week. A decision is not valid unless at least four members are present, and no decision can be reversed except by four out of the seven, in a session attended by more than four. The Councillor presides over his department, conducting it much as an ordinary Secretary would under a cabinet system. In theory, each is responsible for all, and all are responsible for each. There is no question of rank, each department is of equal dignity.

The Bundespräsident, or President of the Confederation, is merely the chairman for a year of the Federal Council. He is only the chief of the executive; he is not himself the whole of it, and therefore can hardly be called the executive chief of the nation. His commission as President simply enhances his dignity, and does not confer upon him any additional power or responsibility. The other members are his colleagues, not his mere agents or advisers; he is only primus inter pares. He has no appointive power or patronage, no veto, no right of even nomination to any position. Not a single Swiss official at home or abroad is disturbed by the annual change in the executive head. Few republics have invested a single magistrate with such large powers as the President of the United States; few commonwealths have given a nominal chief magistrate so small a degree of power as belongs to the Swiss President. He is not a chief magistrate. He is chief of a board, which board, in its collective capacity, acts as chief magistrate. The central authority in Switzerland, since the birth of the republic, has always been vested in a committee; and a committee it is to-day. The small addition to the salary, giving audience for letters of credence and recall from diplomatic representatives, precedence on state and ceremonial occasions, and the right to be addressed as “Son Excellence,” about exhaust the special privileges, power, and dignity of the President of the Confederation. He is just as accessible to the public as any of his colleagues. He has no guards, no lords in waiting, no liveried ushers, no gewgaws and trappings. You may go to his official quarters with as little ceremony as you may call on a private citizen. The stranger may knock at the door and the chief magistrate of the Confederation bids him to come in. The new President enters upon the discharge of his duties on the 1st of January, following his election.[37] There is no formal or public installation, no demonstration, civic or military. The newly-elected President repairs to his modest chambers in the federal palace at noon, where alone he receives all who desire to call and pay their respects. This opportunity is availed of very little beyond the members of the diplomatic corps, who are expected to tender their congratulations personally and on behalf of the governments they represent. The writer was told by a colleague, who had been recently transferred to Bern from a post with an elaborate court, that on the announcement of the death of the Swiss President he donned his full diplomatic uniform to go and tender his official and personal condolence to the bereaved family. With considerable difficulty he found the executive mansion in apartments on the third floor of a building of a modest street. There being no portier, he rang the bell at the street entrance and ascended the stairs. Reaching the floor of the apartments he was met at the door by a woman who was wiping her mouth with the corner of her apron, evidently having been disturbed in a meal. She invited the diplomat in, and receiving the card, to his surprise, instead of leaving the room to deliver it, she invited him to be seated and opened the conversation. He soon discovered that she was the widow of the deceased President, and a woman of good education, force, and character. All the organs of the Swiss government have an unassuming and civic appearance, retaining in a degree the wisdom, moderation, and simplicity of their ancient manners; those who are invested with high trusts are ever ready and willing to retire to complete equality with their fellow-citizens, from the eminence of civil or military station to which their talents and the call of their country have raised them. There is nothing of pomp and majesty; the soil is too natural for the artificial forms of court diplomacy. The manly consciousness of freedom which creates and finds expression in the constitution elevates the middle classes who form its chief support; while the direct or indirect contact with public affairs develops the intelligence and strengthens the character of the citizen.

In its organization and practical workings, the Swiss executive is claimed by some to be modelled after a better pattern than that of the United States, in so far as escaping the great quadrennial contests, and the passions, ambitions, and disappointments born of them constituting, as more than once illustrated in the past, the greatest national peril.

Previous to 1888, the President of the Confederation ex officio became chief of what was called “The Political Department,” including the conduct of foreign affairs. A reorganization was found to be advisable, and, being formulated by the Federal Council and approved by the Federal Assembly, came into force on the 1st of January, 1888. Under this rearrangement of portfolios “Foreign Affairs” is placed on a new and separate footing and no longer falls to the President of the current year. This new department retains what belonged to the “Political Department,” with the exception of the former presidential functions. It is charged also with the management of commerce in general, with work preparatory to the negotiation of commercial treaties, and co-operation in drawing up the customs tariff; also with matters relating to industrial property, copyright, and emigration; and covering all the more important relations of Switzerland with foreign countries. It is the uniform practice for the Vice-President to succeed the President. In this way every member of the Federal Council in turn becomes President and Vice-President once during each septennial period.

Belonging to different political parties, the Councillors frequently antagonize one another on the floor of the Assembly, but this is not found to interfere with their harmonious working as an administrative body. The right of the members of the Federal Council to participate in the debates and make motions in the Federal Assembly, gives that body, what the Congress of the United States has not, the advantage of a direct ministerial explanation. Yet that ministerial explanation cannot be, as it may be in England, mixed up with fears of votes of censure on one side or of a penal dissolution on the other. Irremovable by the existing Assembly,[38] with the question of their re-election dependent on an Assembly which is not yet in existence, they have less need than either American or English statesmen to adapt their policy to meet any momentary cry. Is it not a most excellent political system? Is not this relation between the legislature and the executive, both in theory and practice, happily devised? It brings a quick and close communication between these two great branches, and tends to promote a good understanding between them. Elected by the Assembly, coming into office along with it, there is every chance of the Council acting in harmony with it; and their power of taking a share in the debates at once enables the Assembly to be better informed on public affairs. There is much in the Swiss experiment to refute the belief that there can be no executive power proper, unless it derives its authority from an independent source, and is made directly by the people, so it may claim to be equally representative of the people, and to have received still greater proof of the public confidence. The choice of the executive by the legislative body may be susceptible to the objection that it fails to furnish the limit and restraint that each of these powers should exercise on the other; and that it is entitled to be regarded as only a Cabinet d’Affaires,—a purely administrative committee. The history of the Swiss system has developed no unusual dissensions between these powers, and none are likely to occur. With the legislature governed as a rule by motives of public utility, there is little room for want of harmony with the executive, the simple function of which is to carry into effect the measures which the legislature has decreed.

The present Federal Council of Switzerland is composed of men of high order of ability, instructed by education and disciplined by experience. They are men of crystalline integrity, trained familiarity with the duties of their post, and profoundly patriotic in motive. Among all the changes and complications of late years, no government in Europe in its executive action has displayed a higher degree of practical wisdom than the Federal Council of Switzerland. It acts with sterling good sense and moderation, the result in a great measure of that slow and cautious temperament which has ever marked the Swiss character; traits which perhaps may be traced back to the privations and distress through which, during a long course of years, they struggled to the attainment of a dear-bought independence. It presides over the national interests in an equitable and impartial spirit, dealing wisely and temperately with the people without encroachment or oppression, and, if we may judge from the insignificance of their emoluments, without desire of advantage. The Councillors move in the surest way, both to the attainment and preservation of power, through the medium of those qualities which secure the esteem and gain the confidence of the people. The people, on the other hand, behold with content and satisfaction the absence of all selfish or ignoble purpose in the labors of the Councillors; and sacrifice all factious opposition and interference to the public benefit which they know to be identified with the vigor, stability, and welfare of the government. It is not too much to say that in the Federal Council of Switzerland an honest attempt is made to follow the wise admonition of Cicero in his “Offices:” “Those who design to be partakers in the government should be sure to remember the two precepts of Plato; first, to make the safety and interest of their citizens the great aim and design of all their thoughts and endeavor without ever considering their own general advantage; and, secondly, to take care of the whole collective body of the republic so as not to serve the interests of any one party to the prejudice or neglect of all the rest; for the government of a state is much like the office of a guardian or trustee, which should always be managed for the good of the pupil, and not of the persons to whom he is intrusted.”

There has been some movement to change the mode of appointment to the executive power of the Confederation. Like other human things, it is not absolutely ideal in its working. The relations between the executive and judicial departments are not what they should be, though much better than they were at the beginning of the constitution. Yet, on the whole, the working of the Swiss executive during the forty-two years of its trial has been such that it need not shrink from a comparison with the working of either of the two better known systems. The fact of the Council being not directly chosen by the people is claimed by some to be inconsistent with the “democratic theory.” Surely it is not wise to exchange at the bidding of a certain abstract doctrine a system which has worked well for so long, for one which is not certain to work better, and which might work a great deal worse. By many constitutional students the actual form of the Swiss executive is looked on as the happiest of the political experiments of the present half century. It seems to have escaped both some of the evils which are incident to kings and some of the evils which are incident to presidents. It seems more wisely planned, in all events for the country in which it has arisen, than those forms to which we are better accustomed.

CHAPTER V.
THE FEDERAL TRIBUNAL.

Bundesgericht; Tribunal fédéral.

The Swiss Federal Tribunal, in its present form, dating from 1874, was originally set up in 1848. It is, however, the product of an historical development extending over nearly six hundred years, and the history of this period only will explain the exact meaning of the carefully-balanced and guarded phrases which describe its jurisdiction. Previous to 1848 there existed two methods for peaceably settling disputes among members of the Confederation,—friendly remonstrance and arbitration.

1. Friendly Remonstrance.—This was the plan adopted in the two earliest treaties of alliance, those of 1291 and 1315. In both cases there were only three parties to the treaty,—Uri, Schwyz, and Unterwalden,—and the object was to settle disputes between neighbors, and in a friendly and informal way. The “Witan,” or wise men, met together to heal the quarrel according to the rules of equity and right. If either party refused to accept their decision, the other confederates were to enforce obedience.

2. Arbitration.—This first appeared in 1351, when Zurich joined the League. It became more common as the number of the confederates increased, and was the method employed when friendly remonstrance failed, and when war was not declared. The arrangement as to the place of meeting, the number and the method of choosing the arbitrators, and other details, varied according to the stipulations contained in the various treaties by which each Canton had been admitted into the Confederation. The number of arbitrators was usually fixed at two for each party, and, in case of disagreement, they selected an impartial foreman or umpire; “the question of the choice of the foreman,” says a contemporary historian, “was unquestionably the main point in the whole system of the Courts of Arbitration, for, generally, he was the only real and impartial judge.” This method was substantially the only one employed from 1351 to 1798. During the existence of the Helvetic Republic, there was established a Central Judiciary along with a Central Executive and Legislature. It consisted of a member and an assistant, nominated by each Canton, one-fourth being renewed annually. It had original jurisdiction over the members of the executive and of the legislature, and in criminal cases involving the penalty of death or of imprisonment and banishment. It acted as a Court of Appeals in civil matters, when the decisions of the inferior courts were invalid by reason of want of jurisdiction, whether through informality or violation of the constitution. This court practically subsisted under Napoleon’s Act of Mediation, set up in 1803. With the partial restoration of things in 1815 to the status quo ante 1798, came naturally the restoration of the arbitration system, with reference to which the most elaborate regulations were laid down in the Federal Pact. This codification legally subsisted till 1848. A revision was attempted in 1832, when, after the Paris Revolution of 1830, more liberal ideas began to assert themselves in Switzerland, but it failed through the opposition of the Conservatives. The Reformers, however, were successful in 1848, and by the constitution adopted that year, a Federal Court was created, with jurisdiction in civil and criminal cases, and also a limited jurisdiction in cases where rights guaranteed by the constitution were alleged to have been infringed; provided that the Federal Legislature referred such cases to it. The court consisted of eleven judges and eleven substitutes, elected by the Federal Assembly for a term of three years. The president and vice-president of the court were appointed by the same body annually. Another attempt at revision was made in 1872, by which the functions of the court as an interpreter and upholder of rights guaranteed by the federal and cantonal constitutions would be very much extended, but it was rejected. There was an appeal on questions of public law to the Federal Council, from which there was a further appeal to the Federal Assembly. If the two chambers agreed, the decision was final; if they disagreed, the decision of the Federal Council prevailed. This system was found unsatisfactory, as a large part of the time of the chambers was occupied in the discussion of mixed questions of law and politics. When the Constitution of 1874 was adopted, this and many other defects were in a measure remedied.

The fourth or last division of Chapter II. of the Swiss constitution, “Federal Authorities,” is devoted to the Federal Tribunal, and declares:

1. There shall be a Federal Tribunal for the administration of justice so far as it belongs to the Confederation. There shall be, moreover, a jury for criminal cases.

2. The members of the Federal Tribunal and their alternates shall be chosen by the Federal Assembly, which shall take care that all three national languages are represented therein. The organization of the Federal Tribunal and of its sections, the number of its members and alternates, and their terms of office and salary shall be determined by law.

3. Any Swiss citizen who is eligible to the National Council may be chosen to the Federal Tribunal. The members of the Federal Assembly or Federal Council, or officials appointed by those authorities, shall not at the same time belong to the Federal Tribunal. The members of the Federal Tribunal shall not during their term of office hold any other office, either in the service of the Confederation or any Canton, nor engage in any other pursuit, nor practise a profession.

4. The Federal Tribunal shall organize its own chancery, and appoint the officials.

5. The judicial authority of the Federal Tribunal shall extend to civil cases:

(a) Between the Confederation and the Cantons.

(b) Between the Confederation on the one part and corporations or private persons on the other part; when such corporations or private persons are the plaintiffs, and when the amount involved is of a degree of importance to be fixed by federal legislation.

(c) Between Cantons.

(d) Between Cantons on the one part and corporations or private persons on the other part upon the demand of either party, and where the amount involved is of a degree of importance to be fixed by federal legislation. It further has jurisdiction in suits concerning the status of persons not subjects of any government (Heimathlosen), and conflicts between Communes of different Cantons respecting the right of local citizenship (droit de cité).

(e) The Federal Tribunal shall, moreover, decide other cases upon the demand of both parties to the suit, and when the amount involved is of a degree of importance to be fixed by federal legislation.

(f) The Federal Tribunal, with the aid of juries to pass upon questions of fact, shall also have jurisdiction in criminal cases:

(1) Involving high treason against the Confederation or rebellion or violence against the federal authorities.

(2) Involving crimes and misdemeanors against international law.

(3) Involving political crimes and misdemeanors which are the cause of the result of such disturbances as call for armed federal intervention.

(4) Involving charges against officials appointed by a federal authority upon the application of the latter.

(g) The Federal Tribunal further has jurisdiction:

(1) Over conflicts of jurisdiction between federal authorities on the one part and cantonal authorities on the other part.

(2) Disputes between the Cantons involving questions of public law.

(3) Complaints concerning violations of the constitutional rights of citizens, and complaints of private citizens on account of the violation of concordats or treaties. Conflicts of administration are reserved and are to be settled in a manner prescribed by federal legislation. In all the forementioned cases the Federal Tribunal shall apply the laws passed by the Federal Assembly, and those resolutions which have a general import. It shall in like manner conform to all treaties which have been ratified by the Federal Assembly.

(h) Besides the cases mentioned, the Confederation may by law place other matters within the jurisdiction of the Federal Tribunal; in particular, it may give to that court powers for securing uniformity in the application of all federal laws passed in accordance with provisions of the constitution.

In 1874, within one month after the new constitution came into force, the Federal Assembly passed a very elaborate law relating to the Federal Tribunal. The jurisdiction of the court was extended to:

1. Cases of expropriation for the construction of railways and other works of public utility.

2. Questions between the Confederation and railway companies, and the winding up of the latter.

3. Cases which by the constitution or the legislation of a Canton are intrusted to its competency, when such cantonal provisions have been approved by the Federal Assembly.

As a Court of Appeals under the same federal law it sits:

4. In cases where federal laws have to be applied by Cantonal Tribunals, and the amount of the matter in dispute is 3000 francs at least, or cannot be estimated; where either party appeals from the judgment of the highest Cantonal Court (by agreement the parties can make the appeal directly from the lower Cantonal Court, without going to the Cantonal Court of Appeal). It also decides in cases of extradition, when the demand is made under an existing treaty, in so far as the application of the treaty is questioned; it settles boundary questions between two Cantons, and questions of competence between the authorities of different Cantons. In questions of jurisdiction between the Federal Court and cantonal authority, or as to whether it should be settled by a court of arbitration, the Tribunal itself decides as to its own competence. In cases where questions between Cantons or between a Canton and the Confederation come before the court, they come on reference from the Federal Council. If the Council decides negatively as to whether a matter ought to come before the court, the Assembly has the final determination on the point.

This general organizing act of 1874 fixes the number of members of the court and the alternates; their terms of office, salaries, and other details. The number of judges is reduced from eleven to nine, and the court shall never contain, at any given time, two or more persons from the same family; the term is extended from three to six years. The president and the vice-president are to be elected by the Federal Assembly from among the judges, for the term of two years. The salaries are fixed at 10,000 francs a year for the judges; 11,000 francs for the president (or chief justice), and from 6000 to 8000 francs for each of the secretaries. There must be two secretaries at least, one from German-, the other from French-speaking Switzerland; both must speak German and French, and one also Italian. They are chosen by the court by ballot, and for a term of six years. The assistant judges or alternates receive twenty-five francs a day when serving, and a fixed travelling allowance. These assistant judges only sit in the place of the judges who are prevented for some reason from sitting in person. The judges and the secretaries when away from the seat of the court on official business are paid fifteen francs a day additional, and a travelling allowance. The vacations of the court must not exceed four weeks in the year; but either the president or vice-president must always remain at the permanent seat of the court. Temporary leave of absence may be granted to the members of the court and to the secretaries. The judges (but not the assistant judges) are required to reside where the court is fixed. In cases of elections and in civil and constitutional causes, seven judges form a quorum, and the number present must always be uneven (apparently because the president has no casting vote). A judge, ordinary or assistant, cannot sit when his relatives of blood, or by marriage in an ascending or descending line, or collaterals up to and including cousin-german or brother-in-law, are in any way interested in the case. A judge is similarly disqualified from sitting, when the affairs of his wards are under consideration, or in a case in which he has taken any part personally as federal or cantonal official, or judge, or arbitrator, or counsel; or in affairs relating to an incorporated company of which he is a member; or when his Commune or Canton of birth is a party; or when a suit is brought against the executive or legislature of his Canton of birth. A judge of either kind, ordinary or alternate, may be objected to by a party to a suit, if the said judge is an enemy of or dependent on one of the parties; or since the institution of the suit, as a member of the court, has expressed his opinion on it; but the Federal Court as a whole must be accepted by the parties. If by reason of such objections there are not enough members to form a quorum, the chairman selects by lot from among the presidents of the Supreme Cantonal Courts a sufficient number of “extraordinary assistant judges,” pro hac vice. The act designates three thousand francs as the minimum amount for “degree of importance” to give jurisdiction in cases where a money value must be fixed by federal legislation.

All members and officials of the court must be bound by oath to fulfil the duties of their respective offices; the oath to be administered to the judges in the presence of the Federal Assembly. This oath may be taken by a “Handgelübde,” or raising of the hand, in the case of persons objecting on conscientious grounds to take an oath. The court is to sit and give judgment in public; this does not apply to the juries or to preliminary inquiries. The president settles the order of business and maintains order in court; being empowered to imprison disobedient persons for twenty-four hours; and in extreme cases to fine up to a hundred francs and to imprison up to twenty days. Every year the court must submit an account of the business transacted by it to the Federal Assembly, which has a right to criticise any act of the court, but can alter only by a federal law any of its decisions of which it may disapprove. The officials of the court have the right of transacting in any Canton, without asking leave of the cantonal authorities, all business which falls within their jurisdiction. Each judge is permitted to deliver opinions in his own dialect. Another federal law regulates with great detail the costs of the court, which are defrayed out of the federal treasury, and likewise the fees which are to be paid by parties to the suits. In the exercise of the criminal jurisdiction the court goes on a circuit. For this purpose the Confederation is divided into five assize districts. One of these districts embraces French Switzerland; a second, Bern and surrounding Cantons; a third, Zurich and the Cantons bordering upon it; a fourth, central and part of east Switzerland; and the fifth, Italian Switzerland. The court annually divides itself for criminal business into three sections; a Chamber of Accusation and a Criminal Chamber, each composed of three judges and three alternates, and a Court of Criminal Appeal (Tribunal de Cassation), with five judges and five alternates. Sentences are only valid when the court consists of five members. The Criminal Chamber decides at what places in the several districts assizes shall be held. The localities selected furnish at their own cost places of meeting. The cantonal police and court officials serve as officers of the court. The court elects every six years, to hold for the whole term of the court, two “Judges of Inquest” (Untersuchungsrichter), who are charged with the preparation of cases. The federal assizes are composed of the Criminal Chamber and a jury of twelve, elected in the Cantons by the people, and drawn by lot from the list of the district in which the assizes are to be held. There is one juror for every one thousand inhabitants in the first four districts as above given; and one for every five hundred in the fifth district. With certain exceptions, every citizen having the right to vote in federal matters is eligible as a juror. The exemptions are: those of the full age of sixty, those whose names were placed on the previous list of jurors, and those who are incapacitated by sickness or infirmity. The names of all the jurors of the district are placed in an urn, and fifty-four are drawn by lot. The Procureur-général or states-attorney, appointed by the Federal Council for the case, has the right to challenge twenty and the accused also twenty; the remaining fourteen are summoned, and two of this number are selected by lot to act as substitutes in case of need. In order to acquit or condemn a prisoner there must be a majority of at least ten out of the twelve; otherwise, a new trial must take place with another jury. These federal assizes are of rare occurrence, the last one being at Neuchâtel in 1879, when an anarchist was condemned for a crime against international law (instigation to the assassination of sovereigns).

The power of the court in the matter of claims for violation of rights of citizens has been exercised with much latitude. The most usual and proper cases arising under it are: infringements of the federal guarantee to the citizen of equality before the law, of freedom of settlement, of security against double taxation, of liberty of the press, etc. But the court has gone much beyond these; its jurisdiction has been extended to the hearing of complaints against cantonal authorities, for ordinary alleged failures of justice, such as could hardly have been contemplated by the constitution. It has even taken jurisdiction of cases where the appellant asserts a denial of his claim by a cantonal judge, grounded upon merely obstructive motives or an arbitrary application of the law.

The Constitution of 1874 had as one of its chief objects the strengthening of the federal judiciary; and by statutes, enacted in pursuance of the constitutional authority given to the Federal Assembly to place other matters within the competence of the court, there have been transferred generally to it the appeals heretofore made from the Federal Council to the Federal Assembly. There is no purpose to entirely exclude the legislative branch from judicial action; for the constitution, in dealing with the Federal Tribunal, expressly provides that “administrative” cases are reserved to the Assembly; and the act of 1874 defined the jurisdiction of the Federal Council and Federal Assembly, under this reservation, to embrace disputes respecting public primary schools of the Cantons, liberty of commerce and trade, rights of established Swiss, religious disputes relating to matters of public law, questions as to the calling out of the cantonal militia, consumption taxes and import duties, exemption from military service, and the validity of cantonal elections and votes. In all these cases an appeal lies from the Federal Council to the Federal Assembly. Thus a wide field of judicial action is withheld from the sphere of the court, and upon questions which do not appear to possess any “administrative” character; producing a division of functions which is very anomalous. There has always existed in Switzerland a very strong current of opinion, that the court should be occupied exclusively with questions of public law, and should possess no jurisdiction in matters of private law. The Federal Tribunal has no officers of its own to execute its judgments; but its judgments, as well as the decrees of courts of arbitration in intercantonal conflicts, are executed by the Federal Assembly; and the Federal Assembly in turn is obliged to resort to cantonal machinery for the purpose of doing this; so that, in fact, these judgments finally are executed by the cantonal authorities.

The Federal Tribunal had no permanent seat from 1848 to 1874, and met in different places. In 1874, by action of the Federal Assembly, Lausanne was chosen for its permanent location; the Canton of Vaud, in consideration of this honor, erected and presented to the Confederation a palais de justice, the most elegant and commodious public building in Switzerland.

No professional qualification is required for eligibility to the Federal Tribunal; any Swiss citizen eligible for the lower branch of the Federal Assembly may be elected to the Tribunal. There is no qualification for any federal office in Switzerland higher than that for a member of the Nationalrath, or lower House of the Federal Assembly. Any vote-possessing Swiss, twenty years of age (except a naturalized citizen, who must wait for five years after his naturalization), may be President of the Confederation or president of the Federal Tribunal,—i.e., chief justice of the Confederation. It naturally occurs that there should be some better guarantee for the depth of knowledge and solidity of judgment necessary for the intelligent consideration and discreet determination of the responsible duties attached to these high positions, and which can be the result of nothing but the thought and experience of more mature years. Certainly in high judicial life there should be a tact, a ripeness, and a nicety of judgment, an intuitive apprehension of the relations of things, and a wisdom, which age indeed does not always bring, but which age alone can bestow.

The courts in Switzerland have no place in the political government of the country. The Federal Tribunal does not simply owe its existence to the Federal Assembly, but is constitutionally forbidden to pass upon the validity of the acts of its creator. It is not empowered to judge of violations of the constitution, or to keep the legislature within the limits of a delegated authority, by annulling whatever acts exceed it. According to the Swiss theory, the legislative department wields supreme power; is the sole judge of its own powers; and if, therefore, its enactments conflict with the constitution, they are nevertheless valid, and must operate pro tanto as modifications or amendments of it. The legislature is deemed to have the right of taking its own view of the constitution. Its utterance is the guide for the court, which is always subordinate to it, and bound to enforce every law passed by it.[39] How different from the authoritative position of the courts in the United States, where there is no department of the government in which sound political views are more valuable than in the judiciary. No lawyer can be found with the requisite strength of mind and character to make a good judge on the Supreme Bench who is not a man of clear, well-defined, and vigorous political opinions. The interpretation of the more difficult legal problems calls for the application of those fundamental principles of government upon which the great parties are founded. In the history of the United States, parties have been broadly characterized by their attitude towards the constitution. Their greatest victories have been won in the decisions of the Supreme Court, as each in turn has been represented there, and has impressed its views upon the decisions of the judicature. Marshall, Taney, Chase, are the names which stand as the high-water marks of the juridic-political history. De Tocqueville, referring to the Supreme Court, says, “That the peaceful and legal introduction of the judge into the domain of politics is perhaps the most standing characteristic of a free people.” The Supreme Court of the United States is universally regarded as the most perfect instance of a court exercising the office of guardian and interpreter of the constitution. It must not be forgotten that, as such, it came into existence only under the second constitution; previous to 1787, it was a mere committee of appeals, the judges appointed directly by Congress, and dependent on it, or on its indirect action. To-day it is the pivot on which the constitutional arrangements of the country turn. It determines the limits to the authority, both of the government and of the legislature; its decision is without appeal; completely filling the idea held by some writers, that federalism implies the predominance of the judiciary in the constitution. It is a tribunal which can set aside a law of Congress, and enjoin the executive from proceeding, when it is satisfied that either law or proceeding is contrary to the constitution. It spurns the warning of Lord Bacon to his ideal judge, in consulting with the king and the state, “to remember that Solomon’s throne was supported with lions on both sides; let them (the judges) be lions, but lions under the throne, circumspect, that they do not check or oppose any point of sovereignty.” Such power no other tribunal in any country of the world possesses. No other country has a court whose power is absolute to thwart, even the present will of the nation, by declaring it out of harmony with a fundamental law adopted a century ago. Caleb Cushing thus addressed the Supreme Court: “You are the incarnate mind of the political body of the nation. In the complex institutions of our country, you are the pivot upon which the rights and liberties of all government and people alike turn; or, rather, you are the central light of constitutional wisdom around which they perpetually revolve.” The question of the court being identical with or independent of the legislature of the supreme or federal government, and the separation of the legislative and the judicial functions of government, is strongly set forth in No. 78 of the “Federalist,” written by Alexander Hamilton:

“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the constitution ought to be preferred to the statute. Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Jefferson apprehended encroachments by the Supreme Court, and declared that it had the power “to lay all things at its feet.” This alarm proved to be unfounded, and Mr. Jefferson himself, when the court in his judgment passed beyond the undoubted limits of its authority, did not hesitate to disregard the opinion of Chief-Justice Marshall, that it was the duty of his secretary to deliver a judicial commission which had been signed by his predecessor.[40]

To many the Supreme Court in its inception seemed the weakest of the three departments; and it is doubtful if either Madison or Hamilton, both of whom expected the court to exercise the power of declaring laws unconstitutional, appreciated the mighty force passing into the hands of the hitherto subordinate power. The judiciary act of 1789 provided for a review in the Supreme Court of cases where the validity of a State statute or of any exercise of State authority should be drawn in question on the ground of repugnancy to the constitution, treaties, or laws of the United States, and the decision should be in favor of the validity.[41] Though in the line of natural development, and previous to the convention of 1787, asserted in New Jersey, Virginia, Massachusetts, New York, and North Carolina, the exercise of the full measure of this power in constitutional law presents an interesting study in the history of the national and State governments. A resolution was introduced in Congress in 1824 (Letcher, of Kentucky), so to amend the judiciary act as to require more than a majority of the judges to declare a State law void; and in 1830 an attempt was made to repeal that section of the act, but it failed by a vote of one hundred and thirty-seven to fifty-one. The doctrine of a co-ordinate judiciary met with violent opposition in some of the States, notably in Ohio in 1805, and in Kentucky in 1824 (“old court and new court” struggle), and in the State of Pennsylvania as late as 1843. This power to disregard the acts of the legislature and declare them null and void because contrary to the supreme law of the constitution has been a source of endless wonder to foreign students of the American system. In speaking of it, Sir Henry Maine says, “There is no exact precedent for it, either in the ancient or in the modern world.”[42] It is a new and original idea in political science, introduced and applied exclusively in the courts of the United States. The elevation of the judiciary to equal rank with the executive and the legislature was the outgrowth of a natural process of political evolution through a written constitution and a federal system of government. Kent, in referring to the case of Marbury vs. Madison, writes: “The power and duty of a judiciary to disregard an unconstitutional act of Congress or of any State legislature were declared in an argument approaching to the precision and certainty of a mathematical demonstration.”[43] The power was never seriously questioned in the federal courts after that clear and conclusive opinion, and it was gradually established in all the States.