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 <<* 

 
 THE 
 
 FEDERAL GOVERNMENT 
 
 OF 
 
 SWITZERLAND 
 
 AN ESSAY ON THE CONSTITUTION 
 
 BY 
 
 BERNARD MOSES, Ph.D. 
 
 PROFESSOR OF HISTORY AND POLITICAL ECONOMY. 
 UNIVERSITY OF CALIFORNIA 
 
 OAKLAND, CALIFORNIA : 
 
 PACIFIC PREvSS PUBLISHING CO., 
 
 SAN FRANCISCO: iS POST STREET. NEW YORK: 43 BOND STREET, 
 LONDON: 48 PATERNOSTER ROW.
 
 COPYRIGHT, 1889, 
 
 BY BKR1STARD MOSES. 
 All Rights Reserved. 
 
 Pacific Press Publishing Company, Oakland, Cal.
 
 mi 
 
 CONTENTS. 
 
 <CHAl '- 
 
 I. INTRODUCTORY 
 
 II. ANTECEDENTS OF Swiss FEDERALISM - - 10 
 III. THE DISTRIBUTION OF POWER ... 55 
 
 IV. THE LEGISLATURE - .... 97 
 
 V. THE EXECUTIVE ...... I2 i 
 
 VI. THE JUDICIARY ....... 140 
 
 VII. FOREIGN RELATIONS - - - . . ^4 
 
 VIII. INTERNAL RELATIONS ..... 178 
 
 IX. THE ARMY AND THE FINANCES - - - igg 
 
 X. RIGHTS AND PRIVILEGES ..... 203 
 
 XI. THE COMMON PROSPERITY - - . 226
 
 CHAPTER I. 
 INTRODUCTORY. 
 
 THE territory of Switzerland is not wholly in- 
 cluded within any natural boundaries. The 
 canton of Schaffhausen lies north of the Rhine; 
 on the east Graubiinden is separated from Tyrol 
 and Italy only by an arbitrary line; on the south 
 Ticino extends beyond the Alps; and on the 
 west there is no natural boundary coinciding 
 with the political boundary. It is a land of 
 marked peculiarities, the most conspicuous of 
 which are its elevation, its broken surface, and 
 its abundant water. Its elevation ranges from 
 646 feet at Lake Maggiore, to 15,217 feet on 
 Monte Rosa. Within two degrees of latitude it 
 embraces the climate of thirty-four degrees. It 
 occupies a large part of the summit region of 
 Europe, although Mont Blanc, the highest point 
 of this region, stands without its border. Of the 
 total area of Switzerland, 15,964 square miles, 
 that portion of the surface which has an eleva- 
 
 (0
 
 2 GOVERNMENT OF SWITZERLAND. 
 
 tion less than 1,000 feet is about two per cent, 
 of the whole. Between 1,000 and 2,500 feet 
 there is an amount of the surface equal to 37 per 
 cent, of the whole; between 2,500 and 4,000 feet, 
 21 per cent; over 4,000 feet, 34 per cent.; while 
 six per cent, of the whole surface is covered with 
 snow-fields and glaciers. By another classifica- 
 tion, 11,443 square miles are set down as "pro- 
 ductive," and 4,521 square miles as " unproduc- 
 tive." The greater portion of the territory is 
 embraced within two mountain masses, the Jura 
 extending from Geneva to Schaffhausen, and 
 the Alps occupying the southern cantons. The 
 Jura is composed of a number of parallel ridges 
 with intervening valleys. The Alps, on the other 
 hand, are made up of one great ridge supported 
 by far-reaching buttresses. The valleys which 
 lie between these buttresses, particularly those 
 north of the main ridge, are specially the scene 
 of the characteristic life of the Swiss. But the 
 most remarkable feature of this mountain region 
 is its abundant water sources. Within a small 
 district about the St. Gothard, arise important 
 streams, which flow into four distinct seas. The 
 Rhine passes first into Lake Constance, and 
 thence into the North Sea. The Rhone rushes 
 into the Lake of Geneva, which sends it forth 
 purified to the Mediterranean. The Ticino, 
 gathering on the southern slope of the Alps,
 
 INTRODUCTORY 3 
 
 joins the Po and is carried on to the Adriatic ; 
 while the Inn falls into an eastern valley, and 
 then, in union with the Danube, is lost in the 
 Black Sea. From this point of view Switzerland 
 appears like a great reservoir, whose refreshing 
 waters are sent to the four quarters of Europe. 
 
 The population of the territory now under the 
 dominion of the Swiss Republic has undergone 
 fewer changes through migration or foreign inter- 
 ference than that of most lands of Western civ- 
 ilization. It may, therefore, be contrasted with 
 those societies which have grown up in America 
 from English or Spanish settlements. In the 
 one case, there has been growth from pre-historic 
 stock without serious disturbing influences. In 
 the other case, the societies have been formed 
 from elements whose later environment has had 
 little in common with their earlier surroundings, 
 and under conditions where the force of ancient 
 traditions has been weakened by long migration. 
 In the one case, the isolated communities have 
 been crowded together by the external pressure 
 of hostile states. In the other case, the individ- 
 ual settlements have been drawn together by the 
 desire to satisfy their economic wants under 
 more favorable conditions. In the one case, lib- 
 erty and equality have been fought for in the 
 face of absolutism and aristocratic tendencies. 
 In the other case, particularly in the British set-
 
 4 GOVERNMENT OF SWITZERLAND. 
 
 tlements, liberty and equality were, in a certain 
 sense, imposed upon the people by the circum- 
 stances of colonial life. Yet, however favorable 
 to liberty and equality may have been the con- 
 ditions of colonial life in some parts of America, 
 there existed in other parts a superior counter- 
 acting force in the despotic traditions of the 
 mother country. This was particularly true with 
 reference to the Spanish colonies which were 
 planted in the New World in the sixteenth 
 century. Of these, Mexico is a conspicuous 
 example. Although now in the list of federal 
 republics, yet it could not claim even nominal 
 independence and liberty till after three centuries 
 of uncompromising despotism. Most English 
 colonial dependencies have worked their way to 
 prominence through a struggling age of feeble- 
 ness, and in the effort have prepared themselves 
 to win and defend their liberty. But the Span- 
 ish dependencies have been from the outset 
 equipped with ample legal machinery, and been 
 controlled and supported by the sagacity and 
 power of the monarch, and in this state of com- 
 plete subordination have lost much of the self- 
 assertion and self-control which are requisite to 
 the character of a free people. 
 
 Switzerland and the British colonies in Amer- 
 ica were predetermined to federation by their 
 geographical positions. Switzerland, particu-
 
 INTRODUCTORY. 5 
 
 larly that portion of it in which was formed the 
 original union, is 'composed of valleys separated 
 from one another by mountains so far impassi- 
 ble as to limit to the inhabitants of each valley 
 the development of the community sentiment. 
 The local independence acquired by the several 
 isolated communities made them unwilling for 
 centuries to join any union closer than that in- 
 volved in an offensive and defensive alliance; 
 and when finally a strictly federal power was 
 created by the adoption of the constitution of 
 1848, it was done in opposition to the vote of the 
 cantons of Wallis, Thurgau, Appenzell-Interior, 
 Schwyz, Unterwalden, Uri, and Zug. The fed- 
 eral form was realized under the force of exter- 
 nal pressure and the need of a common internal 
 administration, but the consolidation of all the 
 cantons into a centralized State was quite out of 
 the question. 
 
 In that portion of America which became the 
 territory of the United States, " the long stretch 
 of coast facing Europe, furthered the establish- 
 ment of a series of settlements independent of 
 one another and only subordinated to a distant 
 power. The considerable independence which 
 the several colonies thus acquired exerted a 
 powerful influence to make the national govern- 
 ment a federal government; for they had so long 
 pursued a separate and individual existence that
 
 6 GOVERNMENT OF SWITZERLAND. 
 
 no closer union was immediately possible. The 
 two alternatives which the makers of the Consti- 
 tution had to face were federation and anarchy." 1 
 Of important existing republics, Switzerland 
 alone antedates the Protestant Revolution, and 
 is consequently the only one that has lived 
 through the period in which religious wars were 
 a part of the order of the day. The effect of 
 this revolution in Switzerland, as in Germany 
 and France, was to form a new ground of party 
 differences, and to divide the Confederation into 
 two hostile camps. The policy adopted was es- 
 sentially that of Germany, according to which 
 each State enforced uniformity of worship. 
 " The rights of conscience were ignored by Cath- 
 olics and Protestants alike." * The old pugnac- 
 ity of the Swiss came once more to the front, 
 and to them a religion that was worth having 
 appeared worth fighting for. The religious con- 
 troversies, which arose from the revival of inter- 
 est in the doctrine of peace and good-will towards 
 men, threatened the unity of the Confederation 
 and filled the land with the uproar of a civil war. 
 The Catholic cantons stood in continued antag- 
 onism to the growth of a central power, but ulti- 
 
 141 Data of Mexican and United States History," by the 
 present writer, in "Papers of the California Historical Society," 
 If P- 17- 
 
 'May "Democracy in Europe," 1,382.
 
 INTRODUCTORY. 7 
 
 mately the patriotic desire for a more complete 
 union prevailed, and a federal government was 
 established under which both Catholics and Prot- 
 estants live without serious friction. 
 
 The conglomerate character of the Swiss pop- 
 ulation, composed of representatives of the Ger- 
 man, French, and Italian peoples, has made it 
 difficult to bring all parts to co-operate towards 
 a common national end. The fact that these 
 representatives of different peoples have contin- 
 ued in separate groups, each within its own ter- 
 ritory, and speaking its own language, has made 
 the growth of a national sentiment slower than 
 it might have been had all been thrown together 
 into a common society and compelled in the 
 course of time to use a common language. At 
 present German is spoken in fourteen cantons 
 and parts of others; French wholly in three can- 
 tons and in parts of three others, while Italian is 
 confined to the canton of Ticino and a part of 
 Graubiinden. To state the relations between 
 these groups in another way, there are 1,352 
 German communes, 945 French, and 291 Italian. 
 Besides these there are 118 communes in 
 Graubianden where the Romansch language is 
 used. Only German, French, and Italian, how- 
 ever, are regarded as official languages, and in 
 these three all the federal laws are published, 
 and they may all be used in the transaction of
 
 8 GOVERNMENT OF SWITZERLAND. 
 
 federal business, whether in the assemblies, in 
 the council, or in the courts. Moreover, all 
 must be represented in the Federal Council. 
 The Romansch language, on the other hand, is 
 not an official language, and is seldom employed 
 in the affairs of the federal government Not 
 only as it regards their language, but in a gen- 
 eral way also as it regards their manners and 
 customs, have the several cantons maintained 
 their individuality. 
 
 While in Switzerland the representatives of 
 the German, French, and Italian peoples have 
 preserved their peculiar characteristics, to a cer- 
 tain extent, by remaining territorially separated, 
 in the United States there has been a mingling 
 of peoples on the same territory, and there is al- 
 ready manifest a tendency to mould those of 
 English, Scotch, Irish, German, and Scandina- 
 vian stock into a new national product. But in 
 the Southern States of the Union, the presence 
 of the negro introduces a problem, of which the 
 population of Switzerland gives no hint. 
 
 The recognition of members of different races 
 as high or low, as worthy or unworthy, which 
 prevails in Mexico and the United States, is al- 
 together wanting in Switzerland. If there ex- 
 ist class distinctions, they are such as may arise 
 in a homogeneous society under the conditions of 
 modern civilization, or they are a survival from
 
 INTRODUCTORY. 9 
 
 the feudal age. They are not such as proceed 
 from the co-existence in the population of mem- 
 bers of different races regarded as inferior and su- 
 perior. The illiteracy and general ignorance, 
 moreover, which characterize a considerable part 
 of the population both in Mexico and the 
 United States, are also wanting in Switzerland; 
 in fact, in no country of the world are the affairs 
 of education administered more zealously or with 
 greater efficiency. The problem of republican 
 government is, therefore, simpler in Switzerland 
 than in America, in spite of the proximity of 
 the Swiss to the monarchial rule of European 
 states.
 
 CHAPTER II. 
 ANTECEDENTS OF SWISS FEDERALISM. 
 
 AMONG the many small republics of Europe 
 which came into existence in the popular revolt 
 from feudalism, those of Switzerland are con- 
 spicuous for the thoroughness and persistence of 
 their republicanism. The lands whose union 
 was the beginning of the Swiss Confederation 
 held, before their alliance, a position in relation 
 to the empire not greatly unlike that which the 
 British colonies in America sustained towards 
 the government of England. They acknowl- 
 edged the supremacy of the empire, and it was 
 no part of their early purpose to renounce this 
 allegiance. The British colonies, also, in their 
 first movement towards union, did not propose 
 to sever their connection with the supreme gov- 
 ernment; they sought to control those affiairs 
 which, from their point of view, appeared to 
 concern merely themselves. The conflicts which 
 arose in the two cases had certain features in 
 (10)
 
 ANTECEDENTS OF SWISS FEDERALISM. 1 1 
 
 common. In each case it was a struggle between 
 the spirit of feudal domination on the one 
 side, and the spirit of democracy on the other. 
 The primitive cantons directed their opposition, 
 not against the supreme authority, but against 
 the feudal lords who had acquired immediate 
 suzerainty over them. So the British colonists, 
 while they stoutly maintained their loyalty to 
 the king and the English constitution, prepared 
 with great determination to resist the governors 
 who were sent among them. In the resistance 
 offered by the people to the governors we ob- 
 serve the beginnings of a democratic war on feu- 
 dalism. " The governors came over with high 
 ideas of their own importance, and with not a 
 little of the feudal spirit, which regarded the 
 possessors of power as the holders of so much 
 personal property that they might turn to their 
 own private uses; while the assemblies were im- 
 bued with the spirit of the great idea that gov- 
 ernment is an agency or trust, which was to be 
 exercised for the common good." ' In spite of 
 the professed loyalty of the cantons and the col- 
 onies, and their original determination to form 
 unions without changing their relations with the 
 supreme governments, they nevertheless, in both 
 cases, assumed positions and established institu- 
 
 ^rothingham, "The Rise of the Republic of the United 
 States," 127.
 
 12 GOVERNMENT OF SWITZERLAND. 
 
 tions which were absolutely irreconcilable with 
 the lingering feudalism that still found expo- 
 nents in the emperor and the king. l 
 
 But the general circumstances under which 
 liberty was developed in the two republics were 
 different. In Switzerland it grew up in a pop- 
 ulation which, on the same soil, had been sub- 
 jected to feudal rule. Among the British colo- 
 nists of America, it grew on a new soil, in a field 
 free from the embarrassing traditions of earlier 
 social forms ; in a field, moreover, whose popu- 
 lation was in large part composed of those, or 
 the descendants of those, who had fled from the 
 disagreeable religious and political restraints of 
 an older society. In the one case, liberty was 
 developed in the immediate presence of rejected 
 authority ; in the other case, its growth was en- 
 couraged by the leveling influences of frontier 
 life, and by a wide separation from the seat of 
 the supreme power. The two subsequent 
 phases of development in both cases were the 
 same. Having obtained independence, a loose 
 confederation was formed in each case, with a 
 single assembly as the sole organ of confederate 
 authority ; and, as a third phase of political 
 growth, the confederate congress was supplanted 
 by a federal organization. In the United 
 States, the transition was made in 1788; in 
 Switzerland, in 1848. 
 
 1 Frothingham, 161.
 
 ANTECEDENTS OF SWISS FEDERALISM. 13 
 
 The first important event in the history of the 
 Swiss republics was the union of Uri, Schwyz, 
 and Unterwalden, in 1291. The movement by 
 which this union was effected was not an iso- 
 lated undertaking, but was in some sense char- 
 acteristic of the age to which it belongs. Other 
 phases of it are seen in the organization of city 
 republics, and their attempts to acquire a recog- 
 nition of their liberties; and in the formation of 
 leagues of cities, like the Hanseatic League, 
 or the League of the Rhine. At the time of 
 their union, the lands which became the three 
 primitive cantons of Switzerland had released 
 themselves from all obligations to feudal supe- 
 riors, and attained a position with respect to the 
 empire essentially like that of the free cities of 
 Central Europe. Uri acquired this position in 
 the early part of the thirteenth century ; Schwyz 
 and Unterwalden, a little later; and since 1240, 
 the practical independence of all three has rested 
 on an unimpeachable legal foundation. Though 
 practically independent, they remained directly 
 subordinated to the empire, and neither their 
 individual striving nor their united action aimed 
 to libertate them from this position of subordina- 
 tion. The union was formed rather to main- 
 tain this relation and to check the encroach- 
 ments of the House of Hapsburg. 
 
 After the death of Frederick II., in 1250, the
 
 14 GOVERNMENT OF SWITZERLAND. 
 
 imperial power rapidly declined, and the de- 
 pendent princes and estates of the empire 
 sought on all sides to extend their dominion. 
 When Rudolf of Hapsburg, whose hereditary 
 lands embraced a part of the present territory 
 of Switzerland, was made emperor in 1273, it 
 was his weakness that chiefly recommended him 
 to the electors. It was hoped that he would 
 not be able to check the tendency to particular- 
 ism that had been gaining strength during the 
 previous quarter of a century. Rudolf occu- 
 pied the throne for eighteen years, and died on 
 the 1 5th of August, 1291. A few months be- 
 fore his death he purchased for his son, Duke 
 Albrecht, certain rights of feudal jurisdiction 
 over the city of Luzern and its outlying lands. 
 The knowledge of Albrecht's zeal in enlarging 
 the Hapsburg dominions made the free cities 
 and cantons solicitous for the preservation of 
 their liberties. Shortly after Rudolf's death, 
 therefore, the citizens of Zurich, then a free city, 
 resolved that the town "should not fall to any 
 lord, except with the common consent of the 
 community." A week later, +n the 1st of Au- 
 gust, Uri, Schwyz, and Unterwalden joined in 
 a perpetual union, and adopted articles of con- 
 federation. 1 
 
 1 Bluntschli "Geschichte des schweizerischen Bundes- 
 rechtes," I, 59, 60; II, I.
 
 ANTECEDENTS OF SWISS FEDERALISM. 1 5 
 
 The parties to this alliance sought by means 
 of it to be " better able to defend themselves 
 and their property, and more readily to pre- 
 serve them in their proper condition;" and to 
 the attainment of this end they promised to co- 
 operate with all their means and ability. To 
 oppose all encroachments of enemies, they 
 promised, moreover, to render aid, at their own 
 expense, to any member of the Confederation 
 according to its needs. Their oath involved a 
 refusal to accept a judge who had purchased his 
 office, or who did not belong to and reside in 
 the canton. In case of strife arising within the 
 Confederation, the more prudent men should 
 step forward to allay the discord in such a man- 
 ner as might seem to them most expedient ; 
 and if one party would not accept this media- 
 tion, the others acting together should enforce 
 submission ; and it should be the duty of all to 
 uphold those charged with the enforcement of 
 obedience. If a person should take the life of 
 another, he should be executed, " if not able to 
 show his innocence of the crime," l and if per- 
 chance he had fled, he should never return. It 
 was further provided that anyone who might 
 succor and defend such a criminal should be ban- 
 ished from the lands of the Confederation until 
 
 1 " Nisi suam de dicto maleficio valeat ostendere innocen- 
 ciam." Art. 6.
 
 16 GOVERNMENT OF SWITZERLAND. 
 
 he should be " deliberately recalled by the par- 
 ties to this compact." The incendiary should 
 be deprived of his civil and political rights, and 
 the property of anyone who might succor or 
 defend him should be confiscated for the satis- 
 faction of the injured party. If anyone should 
 deprive another of the allies of his property, or 
 injure him in any way whatsoever, the property 
 of the criminal should be confiscated and kept 
 for the satisfaction of the person injured, in ac- 
 cordance with justice. 
 
 The formation of this union was the first step 
 in the political development of Switzerland, and 
 the articles of union became the historical basis 
 of the republic. By it primitive political groups 
 were permanently united, illustrating the first 
 phase in the growth of a nation. By establish- 
 ing certain relations between the united cantons 
 and external powers, and by determining con- 
 ditions of internal administration, it indicated 
 the double field of sovereign activity which the 
 republic was later to enter. 
 
 The second step was the enlargement of the 
 union through the addition of five other confed- 
 erates, joined to the original cantons by special 
 treaties. In November, 1332, Luzern became 
 the fourth member of the Confederation. This 
 city was then under the suzerainty of Austria. 
 It recognized its subordination, yet at the same
 
 ANTECEDENTS OF SWISS FEDERALISM. I? 
 
 time, in forming an alliance with the cantons, it 
 acted in opposition to its legitimate superior. 
 The alliance was the first step towards the rejec- 
 tion of Austrian supremacy. In May, 1351, 
 Zurich united in a perpetual union with Luzern 
 and the three cantons. Its wealth and impor- 
 tant position as a free imperial city gave it great 
 influence among the allies, yet it held no legal 
 superiority. The next year Glarus and Zug 
 were added, and in March, 1353, by the alliance 
 of Bern, the union reached a point of its growth 
 in numbers at which it remained for one hun- 
 dred and twenty-eight years, till 1481. The 
 period which ended here was the heroic age of 
 Switzerland. At Morgarten (1315), Sempach 
 (1386), and Nafles (1387), the Swiss people 
 gave unmistakable evidence of a determination 
 in favor of liberty. 
 
 The third step was marked by the addition of 
 five other members. Bern had retained in the 
 Confederation her own policy; and her efforts 
 to range the other cities, Zurich and Luzern, on 
 her side, were so far successful that there ap- 
 peared a city party and a country party. This 
 divergence of policy was, however, in a measure 
 the outgrowth of different social and political 
 conditions. In the one case the people lived in 
 isolated dwellings, scattered along the valleys 
 and over the sides of mountains ; in the other 
 2
 
 
 1 8 GOVERNMENT OF SWITZERLAND. 
 
 case they were confined to the narrow limits of 
 crowded cities. The constitutions of the rural 
 cantons were strongly democratic ; those of the 
 cities were aristocratic. The most important 
 feature of the government in one case was an 
 assembly of all the freemen ; in the other case, a 
 council of distinguished citizens. When Frei- 
 burg and Solothurn sought admission, the two 
 parties found opportunity to express their an- 
 tagonistic views. The cities favored the appli- 
 cation, while the rural cantons opposed it. It 
 was clearly seen that the proposed enlargement 
 of the Confederation involved a still more com- 
 plete transfer of the balance of power to the cit- 
 ies; and this fact, which was for the rural cantons 
 a ground of opposition, was for the cities the 
 basis of their advocacy. In 1477 the three cities 
 formed a perpetual alliance with Freiburg and 
 Solothurn, and this act only added intensity to 
 the jealousy and indignation of the rural can- 
 tons. A breach between the parties appeared 
 imminent, but was averted by the agreement 
 effected at Stantz, in December, 1481. By 
 this agreement the members of the Confed- 
 eration engaged to use no violence towards one 
 another, nor to allow violence to be used by 
 their dependents, but to aid one another in 
 bringing their refractory subjects to obedience. 
 At this meeting also party strife was allayed,
 
 ANTECEDENTS OF SWISS FEDERALISM. 19 
 
 and Friburg and Stolohurn were admitted to 
 membership in the Confederation. Twenty 
 years later, in 1501, the cities of Basel and 
 Schaffhausen were added, and in 1513 the can- 
 ton of Appenzell. After the admission of Ap- 
 penzell, no further increase in the membership 
 of the Confederacy was made for nearly three 
 hundred years, till 1798. 
 
 In these early steps towards the formation of 
 a national government, the Confederation had to 
 determine two points: (i) Its ability to preserve 
 its independence against encroachments from 
 without; (2) its ability to maintain a lasting un- 
 ion of its several parts. The first point was 
 practically determined by " the eight old can- 
 tons." When, however, the number of confed- 
 erates had been increased to thirteen, and the 
 danger of being overwhelmed by hostile neigh- 
 bors had been set aside, the forces of internal 
 discord became manifest. To the social and 
 political differences which appeared in the con- 
 trast between the city and rural cantons, there 
 were added, as a consequence of the Reforma- 
 tion, the antagonisms of different religious 
 creeds, subjecting the Confederation to a strain 
 that threatened to destroy it. This was the 
 critical period in the development of the Swiss 
 Republic; for the preservation of liberty was de- 
 pendent on the preservation of union.
 
 20 GOVERNMENT OF SWITZERLAND. 
 
 Between the admission of Appenzell, in 1513, 
 and the establishment of the Helvetic Republic, 
 in 1798, the number of members in the Confed- 
 eration remained unchanged. It does not fol- 
 low from this fact, however, that the amount of 
 territory under Swiss dominion remained un- 
 changed. On the contrary, it was considerably 
 enlarged, and that chiefly in two ways: (i) 
 Through acquisitions by individual cantons ; (2) 
 through alliances, in which the Confederation, 
 or a canton, or several cantons together, re- 
 tained a superior position, while the other par- 
 ties to the compact held subordinate positions. 
 Before the end of the sixteenth century, a num- 
 ber of cities, rural communes, and small princi- 
 palities had fallen into this list. 
 
 These subordinate allies were not actual 
 members of the Confederation, but through 
 their connections with some or all of the can- 
 tons, they participated in the fate of the whole. 
 Although the early alliances out of which the 
 completed Confederation grew were formed 
 with no design of opposing the authority of 
 the empire, yet long before the independence 
 of the Confederation was formally acknowl- 
 edged by the European nations, through the 
 Treaty of Westphalia, it had attained to practi- 
 cal independence, and to the exercise of the 
 powers of a sovereign state. As an independ-
 
 ANTECEDENTS OF SWISS FEDERALISM. 21 
 
 ent state, Switzerland has held two positions 
 with respect to the international politics of Eu- 
 rope : that of an ally, and that of a neutral. As 
 an ally, the Swiss achieved more military glory 
 than political advantage. " The first time they 
 interfered on a large scale in foreign affairs, 
 they were disgracefully misused, and inflicted 
 upon themselves the greatest injuries. Their 
 military victories were at the same time political 
 defeats. Without any grievance of their own, 
 led away entirely by foreign suggestion and 
 foreign money, they undertook the war against 
 Charles the Bold. And while they broke the 
 power of the Burgundian duke without appre- 
 ciating how completely they were acting in the 
 interest of the French king, they destroyed an 
 important middle power not only between 
 France and Switzerland, but also between 
 France and Austria. Had the Duke of Bur- 
 gundy retained essentially his position, Switzer- 
 land as a consequence would have won in him 
 a natural ally in opposition to the great powers 
 of France and Austria, and much friction be- 
 tween these two powers would have been pre- 
 vented. But for the sake of temporary advan- 
 tages, the Swiss overlooked the lasting interests 
 of their independence and peace. After this 
 they fell more and more under the influence of 
 the French policy, and were more completely
 
 22 GOVERNMENT OF SWITZERLAND. 
 
 subjected than before to the fluctuations pro- 
 duced by the nearness of France to Austria." ' 
 
 The role which they played in the Italian 
 wars was scarcely more to their credit or ad- 
 vantage, although at one time the fate of the 
 duchy of Milan was practically in their hands, 
 and they were momentarily moved by the am- 
 bition to win for themselves a place among the 
 great powers of Europe. They were, however, 
 not organized for conquest, nor were they the 
 chief representatives of any one of the great 
 peoples of the Continent. They became con- 
 scious of these facts, and recognized that their 
 military renown had been gained chiefly in 
 struggles for their liberty and independence, and 
 that it was the maintenance of these which con- 
 stituted the proper end of their military activ- 
 ity. 
 
 As long as the Confederation was surrounded 
 by unfriendly neighbors, its unity was secured 
 by the- force of external pressure. The first 
 serious danger of dissolution overtook it when 
 it had made peace with all the world, and found 
 opportunity to develop internal antagonisms. 
 The early contrasts presented by town and 
 country aroused fora time the spirit of disunion, 
 but the attitude of neighboring powers furnished 
 a superior reason for united action. Yet when 
 
 li, I, 265.
 
 ANTECEDENTS OF SWISS FEDERALISM. 23 
 
 the Reformation hag^ thrown among the people 
 the fire-brand of ecclesiastical controversy, an 
 explosion appeared imminent Under the in- 
 fluence of an antagonism of creeds, the old or- 
 der of things was so far broken up that there 
 appeared one diet for the Catholic cantons and 
 another for the Prostestant cantons. Gradually, 
 however, the breach was healed, and a single 
 body continued to act for the whole Confeder- 
 ation. 
 
 The Diet of the thirteen cantons was the sole 
 organ of the Confederation. In the earlier 
 times it had no definitely fixed form nor fixed 
 times and place of meeting. Besides the as- 
 sembly of delegates from all the cantons, there 
 were assemblies of delegates from only such 
 cantons as were concerned in the business to 
 be brought forward, and after the Reforma- 
 tion, meetings of the Catholic and Protestant 
 cantons separately. The meetings of the Diet 
 were held "at the most diverse times of the 
 year, as the business to be transacted demanded, 
 and lasted usually only one or a few days, but 
 were easily and often repeated, so that in a 
 single year there often occurred a whole series 
 of different sessions." 1 Later, the place and 
 time of meeting were both prescribed, and at a 
 single session the business of the whole year was 
 
 1 Bluntschli, I, 392.
 
 24 GOVERNMENT OF SWITZERLAND. 
 
 considered. At first, any canton might sum- 
 mon the Diet, but later it was provided that the 
 regular call for a meeting should be made 
 through the Vorort, Zurich. Each canton, still, 
 in the sixteenth century, often sent only one 
 delegate ; after this, however, it became custom- 
 ary to send two, yet there was no legal deter- 
 mination of the number it might send. It was, 
 in fact, a matter of slight importance, inasmuch 
 as the voting was not by persons but by can- 
 tons, each canton having one vote, without re- 
 gard to the extent of its territory or the amount 
 of its population. The subordinate estates, 
 however, that were represented in the Diet, the 
 abbot of St. Gallen, the city of St. Gallen, and 
 the city of Bienne, were not permitted to send 
 more than one delegate. The powers of the 
 Diet were not those of a representative body, 
 but rather those of an assembly of ambassadors, 
 in which each member acted according to in- 
 structions given by his superior. But the as- 
 sembly was not limited to a prescribed circle of 
 activity; it was competent to discuss all mat- 
 ters of interest to the Confederation. It 
 was the medium through which all negotia- 
 tions between the Confederation and other 
 states were carried on. " It received the am- 
 bassadors of foreign powers, listened to their 
 addresses, and made reply ; it also sent ambas-
 
 ANTECEDENTS OF SWISS FEDERALISM. 2$ 
 
 sadors now and then to foreign countries. It 
 made war and peace in the name of the Con- 
 federation ; and in the case of war between neigh- 
 boring powers, it made the necessary provisions 
 for defending its territory and neutrality. It 
 negotiated alliances with foreign states, which 
 each canton, however, remained at liberty to ac- 
 cept or reject." ] Yet no canton was at liberty 
 to conclude alliances with foreign states without 
 the consent of the Diet. But the fact that am- 
 bassadors were received by the Diet did not pre- 
 vent them from being accredited to, and received 
 by, the individual cantons. The Confederation 
 had no resident ministers at foreign courts, but 
 sent ambassadors as the occasion seemed to de- 
 mand. This power was also exercised by the 
 several cantons, and it sometimes happened that 
 a number of cantons had ambassadors near the 
 same court at the same time; and in the case of 
 the renewal of the alliance with France, each of 
 the cantons had its representative near the 
 French court. 
 
 In order that the Confederation might be in a 
 position to exert upon its neighbors either a 
 moral or a physical influence, it was necessary 
 that internal harmony should prevail; and the 
 task of securing this state of things fell upon the 
 
 1 Blumer, " Handbuch des schweizerischen Bundesstaats- 
 rechtes," i, 14.
 
 26 GOVERNMENT OF SWITZERLAND. 
 
 Diet as the only organ of the united cantons. 
 Not having the powers of a sovereign over sub- 
 ordinate societies, the Diet was obliged to rely 
 chiefly on mediation ; and it regarded interfer- 
 ence by this means a duty, even when not ap- 
 pealed to by the parties in conflict. The chief 
 weakness of the Confederation with respect to 
 internal affairs lay in the fact that the principle 
 of majority rule was adopted only to a very lim- 
 ited extent. Each canton voted with perfect 
 freedom, and was not obliged usually to follow 
 the decision of the others. In the course of 
 time it came to be accepted that the minority 
 should accede to the will of the majority, in 
 cases where the articles of union or special agree- 
 ments of all concerned gave the majority the 
 right to form conclusions. The acceptance of 
 this principle was a consequence of a growing 
 sense of common interests and a common des- 
 tiny, coupled with the conviction that no one 
 canton should be allowed, through its stubborn- 
 ness, to jeopardize the well-being of the whole. 
 The early history of Switzerland shows no 
 more unity in military than in civil affairs. 
 " Each individual canton had a military organi- 
 zation of its own. And when a common war 
 was undertaken by the Confederation, each can- 
 ton sent its troops under its own standard and 
 under officers appointed by itself." ' The army 
 
 1 Bluntschli, I, 409.
 
 ANTECEDENTS OF SWISS FEDERALISM. 27 
 
 thus constituted had no single officer in supreme 
 command. The plans of campaigns and of bat- 
 tles were evolved and adopted by the chief offi- 
 cers in council. Sometimes the soldiers of the 
 cantons were attended in the field by several 
 members of the cantonal councils, who partici- 
 pated in the discussion of affairs, and formed, as 
 it were, a diet in the field. Sometimes, also, the 
 members of the councils, the officers, and the 
 whole army, met for deliberation in a great con- 
 federate assembly. These provisions for the 
 control of the army were necessarily found inef- 
 ficient. The exigencies of war demanded a cen- 
 tralization of authority, and for great emergencies 
 and for the overcoming of peculiar difficulties, a 
 single officer was given the supreme command, 
 either by the direct action of the Diet, or by the 
 action of the chief cantonal officers, or by the ac- 
 tion of a single canton authorized by the Diet. 
 In such cases the military leadership was likely 
 to fall to the canton that enjoyed political pre- 
 eminence. 
 
 The sixteenth century, with its ecclesiastical 
 antagonisms, threatened the Confederation with 
 dissolution ; but during the next century a strong 
 reactionary tendency was manifest, and European 
 states sought to realize the principles of abso- 
 lutism in their organizations. In so far as this 
 movement affected Switzerland, it emphasized
 
 28 GOVERNMENT OF SWITZERLAND. 
 
 the need of centralization. Its effect in Ger- 
 many was to make the States of the empire 
 imitate the absolutism of France. It thus weak- 
 ened their support of the central power. The 
 Thirty Years' War and the encroachments of 
 France on her neighbors made the Swiss feel 
 more than ever the need of a common agent of 
 defense. An importantstep towards the creation 
 of such an agent was the establishment of the 
 Defensional, first brought forward in 1629, but 
 not fully carried out till during the wars of 
 Louis XIV., in 1668. Under the provisions of 
 this agreement,adopted unanimously by the Diet, 
 each canton was required to hold itself in readi- 
 ness to furnish, whenever they should be called 
 for, a certain number of men and a certain 
 amount of munitions. The total number of men 
 provided for was forty thousand and two hun- 
 dred, in three divisions of thirteen thousand four 
 hundred each. Of each of the three divisions 
 Zurich was to provide fourteen hundred men, 
 Bern two thousand, Luzern twelve hundred, the 
 Abbot of St. Gallen one thousand, and the other 
 cantons different numbers, ranging from one 
 hundred to eight hundred. The second and 
 third divisions were of the same size, and to be 
 furnished in the same way. 
 
 In spite of this attempt to form an effective 
 union for defense, the indifference and mutual
 
 ANTECEDENTS OF SWISS FEDERALISM. 2Q 
 
 jealousy of the several cantons rendered the Con- 
 federation practically defenseless and made its 
 disruption by a foreign power an easy task. 
 Throughout the seventeenth and eighteenth 
 centuries, the aristocratic elements had increased 
 at the expense of the democratic, and against 
 this dominant aristocracy the French democracy 
 directed its propagandism. It prevailed here, 
 backed by the French army, as it had prevailed 
 in Holland and Italy. Overwhelmed by the 
 French forces, there was no alternative for the 
 cantons but to submit to the dictation of their 
 conquerors; and thus, in violation of their his- 
 tory and traditions, there was established the 
 Helvetic Republic, a centralized state modeled 
 after the republican government then existing in 
 France. 
 
 This was the fourth step towards the forma- 
 tion of a national administration for Switzerland. 
 It was a complete revolution in both the form 
 and the theory of the government. Whatever 
 had existed hitherto was the product of a growth 
 along historical lines, in which ancient traditional 
 rights had been preserved, and the sovereignty 
 of the several cantons had remained inviolate. 
 Under the constitution of 1798, established 
 through the interference of France, the histori- 
 cal ground was abandoned, and a basis was 
 sought in the doctrine of natural right. The
 
 30 GOVERNMENT OF SWITZERLAND. 
 
 cantons were deprived of their independence, and 
 there was set up a " representative democracy 
 resting on the abstract ideas of liberty, equality, 
 and popular sovereignty." 1 
 
 The characteristic features of the new consti- 
 tution were the following: " The sovereignty re- 
 sided simply and solely in the totality of the 
 citizens of the Helvetic Republic as an indisso- 
 luble state, in which the cantons formed merely 
 administrative districts. The people exercised 
 its sovereignty, however, only in adopting the 
 constitution and in appointing electors, in the pri- 
 mary assemblies, one for each one hundred 
 active citizens. The electors of each canton 
 assembled for the election of the deputies of the 
 twoHouses of the Legislature,the members of the 
 cantonal courts, and of the bureaux of adminis- 
 tration. The legislative power of the republic 
 was exercised by the Great Council, which at 
 first consisted of eight deputies from each can- 
 ton, but afterwards was to be constituted with 
 reference to the population, and by the Senate, 
 composed of those who had held the office of 
 director, and of four deputies from each canton, 
 who were required to be thirty years old, to be 
 married or widowers, and to have already held 
 some one or more of the higher offices. The 
 
 1 Blumer, I, 19; Bluntschli, II, 305-322, for the constitution 
 of 1798.
 
 ANTECEDENTS OF SWISS FEDERALISM. 3 1 
 
 Senate was empowered to accept or reject bills 
 passed by the Great Council. The two councils 
 elected the executive Directory of five members, 
 the manner of election being, that for each place 
 to be filled one of the councils, determined by 
 lot, formed a list of five candidates, from which 
 the other council named the Director. The Di- 
 rectory, supported by four ministers designated 
 by itself for the different departments of the ad- 
 ministration, was the proper ' government ' of 
 Switzerland. Its organs were the stadtholders 
 in the cantons, the under-stadtholders in the dis- 
 tricts, and the agents in the communes. The 
 affairs peculiar to the cantons found certain, 
 although inadequate, consideration in the bu- 
 reaux of administration, which were charged 
 with the immediate execution of the laws relat- 
 ing to finance and trade, art, labor, agriculture, 
 food, the maintenance of the cities, and country 
 roads. The administration of justice was carried 
 on through district and cantonal courts and one 
 supreme court. The last, consisting of one 
 member from each canton, tried cases involving 
 charges against the members of the legislature 
 and the executive, decided in the second instance 
 important criminal cases, and was empowered 
 to set aside the decisions of the lower courts in 
 civil cases on account of technical informalities, 
 want of competence, or violation of the constitu-
 
 32 GOVERNMENT OF SWITZERLAND. 
 
 tion. The division into cantons maintained for 
 the most part the boundaries of the former con- 
 federated cantons and the subordinate lands; 
 yet the extensive territory of the republic of 
 Bern was divided into four new cantons: Bern, 
 Oberland, Aargau, and Leman; while on the 
 other hand the three original cantons were united 
 with Zug, forming the new canton of Wald- 
 statten. Glarus, Gaster, Uznach, Rapperschwyl, 
 Upper Toggenberg, Sax, Gams, Werdenberg, 
 and Sorgans were united in the new canton of 
 Linth; and Appenzell, the city and land of St. 
 Gallen, the Rheinthal, and Lower Toggenberg 
 formed the new canton of Santis. The avowed 
 purpose of this transformation in interior and 
 eastern Switzerland was to weaken the old de- 
 mocracies, which appeared as the seat of the op- 
 position to the new order of things." l 
 
 The adoption of this constitution was a long 
 step away from the previously existing loose 
 confederation, towards a centralized state. It 
 was a longer step than the Swiss were prepared 
 to take alone. The form of government im- 
 posed upon them was in no sense an expression 
 of the degree of political progress which they 
 had made. The Helvetic Directory acted un- 
 der instructions from Paris, and its pretensions 
 to independence were a hollow sham. Switzer- 
 
 1 Bumerl I, 19, 20.
 
 ANTECEDENTS OF SWISS FEDERALISM. 33 
 
 land was forced into an alliance with the French 
 Republic, and was obliged to see her lands over- 
 run and her treasure carried off by the troops of 
 her ally. The constitution of 1798 was created 
 by the Directory of France, and had to be up- 
 held by its creator. Its existence was, there- 
 fore, terminated by the fall of the Directory. 
 It lasted long enough, however, to make on the 
 minds of a considerable part of the population 
 an impression favorable to a more centralized 
 government than had hitherto existed; and 
 when it ceased to be in force, in the beginning 
 of 1800, it left the Swiss divided into two par- 
 ties, the Centralists and the Federalists. The 
 Federalists adhered to ancient traditions and 
 sought to revive the old Confederation. The 
 Centralists, on the other hand, had come into 
 existence under the Helvetic Republic, and were 
 the advocates of centralization. The political 
 events of Switzerland during the following three 
 years were strongly colored by the conten- 
 tions of these two parties. 
 
 The crisis in France, through which the 
 Directory was supplanted by the Consulate, 
 showed a drift of power towards a single point 
 in the organism. But the strength of the Fed- 
 eralist party made it impossible for Switzerland, 
 of her own will, to follow the lead of France in 
 this direction ; and the First Consul, however ar- 
 3
 
 34 GOVERNMENT OF SWITZERLAND. 
 
 bitrary his dealings with the Swiss, manifested 
 no desire to divert them from the course of de- 
 velopment marked out by their historical tra- 
 ditions. On the contrary, he pointed out the 
 fact that what they needed was a federal consti- 
 tution, "equality of rights between the cantons, 
 a renunciation of all family privileges, and the 
 independent organization of each canton." To 
 frame for themselves a constitution was then the 
 task immediately at hand ; and in the meantime } 
 while the task remained unfinished, the powers 
 of the state rested in a provisional government, 
 consisting of a legislative council of fifty mem- 
 bers and an executive council of seven members. 
 During this period of transition several constitu- 
 tions were formed, but inasmuch as they were 
 formed under the dominance of those influences 
 which had determined the character of the con- 
 stitution of 1798, they for the most part empha- 
 sized the scheme of centralization embodied in 
 that instrument. They were all, however, either 
 still-born or had only a brief and hopeless exist- 
 ence. But these unsuccessful attempts indicate 
 that, during the years of agitation and confusion 
 produced by foreign interference, the national 
 idea had gained in strength and clearness. It 
 was no longer possible to go back to the old or- 
 ganization. Even the Federalists, who insisted 
 on organizing the state as a Union of more or
 
 ANTECEDENTS OF SWISS FEDERALISM. 35 
 
 less independent cantons, saw clearly the need 
 of greater centralization than had existed under 
 the old Confederation. 
 
 As long as French troops occupied the coun 
 try, the Centralists kept the upper hand. But 
 in 1802, after the treaty of Amiens, these troops 
 were withdrawn. This left both parties with 
 out foreign support, and also without foreign 
 restraint. Although the Swiss had had demo 
 cratic institutions for some centuries, yet, in ref 
 erence to questions of general concern, the mi- 
 nority had not learned to submit peaceably to 
 the majority. Party conflicts over these mat- 
 ters, therefore, meant civil war. Through for- 
 eign intervention, the Swiss had been placed in 
 a position from which they seemed to be unable 
 to extricate themselves, and it is not to be sup- 
 posed that in withdrawing his army Napoleon 
 intended to leave them to work out their own 
 salvation alone, rje had become indispensable 
 to them, and he wished the fact to be recog- 
 nized. The uproar and confusion produced by 
 the contending parties after his withdrawal, gave 
 him the desired opportunity to appear as a 
 mediator. He again sent an army into Switz- 
 erland, commanded a cessation of hostilities, 
 and called delegates of both parties to meet him 
 in Paris, for the purpose of discussing the fun- 
 damental principles of a new constitution. In
 
 36 GOVERNMENT OF SWITZERLAND. 
 
 the conference which followed he showed a re- 
 markably clear and just comprehension of the 
 real needs of the people for whom he proposed 
 to legislate. In spite of his identification with 
 the movement towards unity in France, he de- 
 cided with great definiteness of opinion in favor 
 of federation for Switzerland ; and it must be set 
 down as evidence of his political insight that he 
 indicated, as desirable for the Swiss, a position 
 amoflg the nations essentially the same as that 
 which they hold at the present time. 
 
 The result of this conference was the Act of 
 Mediation, a fundamental law which marks the 
 fifth phase of the governmental history of Switz- 
 erland. Its promulgation put an end to the 
 hopeless attempt to transform the loose alliance 
 into a centralized state, and established feder- 
 alism as the principle of subsequent political 
 growth. The number of cantons was increased 
 from thirteen to nineteen. . Those previously 
 existing retained their ancient limits, except 
 that Aargau and Vaud were composed in part 
 of territory taken from Bern. The constitu- 
 tions of the democratic cantons were restored, 
 modified only with respect to the age required 
 by voters, and with respect to the initiative in 
 legislation. The six new cantons were: (i) St. 
 Gallen, consisting of the city of St. Gallen, 
 the territory of the former abbey of St.
 
 ANTECEDENTS OF SWISS FEDERALISM. 37 
 
 Gallen, and the districts of Rheinthal, Sax, 
 Gams, Werdenberg, Sargans, Gaster, Uznach, 
 and Rapperschwyl ; (2) Granbiinden, compris- 
 ing most of the territory of the three Rhae- 
 itan unions; (3) Aargau, made up in part of 
 territory which formerly belonged to Bern, 
 and in part of territory acquired from Aus- 
 tria ; (4) Thurgau; (5) Ticino, embracing the 
 Italian possessions; (6) Vaud, comprising lands 
 formerly belonging to Bern and Freiburg. Of 
 these Granbunden retained its ancient con- 
 stitution, modified only in certain particulars to 
 adapt it to its new circumstances. The other 
 new cantons, Aargau, St. Gallen, Ticino, Thur- 
 gau, and Vaud, received constitutions providing 
 for a system of representation, but a system in 
 which the method of election was even more 
 complicated than in the city cantons. As to 
 the manner of election, the members of the 
 great council were divided into three classes. 
 The members of the first third were elected by 
 a direct election from certain districts, the only 
 qualification being that the candidates should 
 be thirty years of age. " For the other two- 
 thirds, lists of the candidates were formed from 
 other districts, and, indeed, according to two dif- 
 ferent principles, that of wealth and that of age. 
 For the second third a considerably higher prop- 
 erty qualification was demanded than in the
 
 38 GOVERNMENT OF SWITZERLAND. 
 
 other cantons; on the other hand, for this class 
 the age of twenty-five was adequate. The 
 members of the last third were required to be at 
 least fifty years of age, and at the same time to 
 possess a certain amount of property. From 
 the list of candidates thus formed from rich and 
 old men, the actual members of the great coun- 
 cil were drawn by lot." l Inasmuch as these 
 cantons had not hitherto enjoyed equal rights 
 of membership in the Confederation with those 
 that had been admitted before the Revolution, 
 Napoleon was able to deal with them freely 
 without interfering with any rights that had 
 been sanctioned by time. 
 
 The period of centralization under the con- 
 stitution of 1798, however brief and stormy, un- 
 doubtedly removed to a certain extent the an- 
 cient jealousy of the cantons of one another, 
 and made them less reluctant than formerly to 
 accord to a central power the control of common 
 affairs. The interference of Napoleon thus in- 
 itiated on the part of the cantons the habit of 
 looking to a superior to whom they all held a 
 common relation ; and in so far as this had any 
 bearingon their political development, it brought 
 them into a more favorable position for accept- 
 ing the plan of a federal organization. The can- 
 tons " mutually guaranteed to one another their 
 
 l Bluntschli, I, 469; Blumer, I, 36.
 
 ANTECEDENTS OF SWISS FEDERALISM. 39 
 
 constitutions, their territories, and their freedom 
 and independence, not only against foreign 
 powers but also against the encroachments of 
 other cantons and individual factions." Under 
 the Act of Mediation, moreover, there were es- 
 tablished certain fundamental provisions: (i) 
 There should be no more lands subordinated to 
 the cantons, those previously existing having 
 been made cantons in the Confederation; (2) all 
 privileges of place or of birth, whether of single 
 persons or of families, should be set aside; (3) 
 any Swiss should be allowed to settle freely in 
 any canton; (4) no internal duties should be 
 collected and no impediment should be put in 
 the way of the free circulation of food, live 
 stock, and merchandise; (5) the Diet should 
 establish a proper standard of coinage ; (6) no 
 canton should afford refuge and protection to 
 criminals fleeing from other cantons, and no ex- 
 ception under this provision should be made in 
 favor of political offenders ; (7) cantons should 
 not form alliances among themselves nor with 
 foreign powers ; (8) cantonal authorities should 
 be held responsible for their violations of laws 
 established by the Confederation, and the com- 
 plaints in such cases should be brought before a 
 tribunal composed of the presidents of the crim- 
 inal courts of the cantons not under accusation. 
 These specifications indicate that the cantons
 
 40 GOVERNMENT OF SWITZERLAND. 
 
 had lost somewhat of that complete independ- 
 ence which they had enjoyed before the Revo- 
 lution; and this loss by the parts implied a gain 
 by some organ or agent of the whole. The 
 central organization which came into existence 
 through this revolution still bore marks of can- 
 tonal jealousy, as seen in the fact that the seat 
 of the central authority was changed from year 
 to year, being temporarily established in suc- 
 cession at Freiburg, Bern, Solothurn, Basel, 
 Zurich, and Luzern, each of the cantons here 
 named taking in turn the position of Directorial 
 Canton. The chief magistrate of the Directo- 
 rial Canton became, for the time being, the head 
 of the Confederation, with the title of Landam- 
 man of Switzerland. He retained his position 
 in the canton, however, and at the same time 
 stood as the representative of the national or- 
 ganization. He kept the seal of the republic, 
 received foreign ambassadors, conducted diplo- 
 matic negotiations, laid before the Diet the nec- 
 essary communications on the affairs of the Un- 
 ion, and with the consent of the government of 
 the Directorial Canton disposed the troops in 
 the interests of internal order. Without his con- 
 sent no canton could raise more than five hun- 
 dred soldiers. In case of conflict between can- 
 tons, he could provide for a settlement of the 
 matter by appointing an arbiter, or by referring
 
 ANTECEDENTS OF SWISS FEDERALISM. 41 
 
 it to the next session of the Diet. He warned 
 the cantons of threatening danger. He super- 
 vised certain departments of public works, as 
 streets, roads, and improvement of river beds. 
 As the head of a state which still had many of 
 the features of a loose confederacy, many of the 
 functions of the Landamman were those of a 
 mediator. 
 
 In spite of the loss of certain functions, the 
 Diet under the Act of Mediation retained many 
 of the characteristic features of the Diet of the 
 thirteen cantons. Like that body, it was an as- 
 sembly of ambassadors, not of representatives. 
 As in that body, moreover, the members of this 
 acted on instructions from the cantons which 
 had sent them. Instead of each canton having 
 one vote, however, as formerly, those of over one 
 hundred thousand inhabitants, as Bern, Zurich, 
 Vaud, St. Gallen, Aargau, and Graubiinden, 
 now had two. Yet in spite of this provision, 
 Bluntschli says that "external equality of all 
 the cantons remained the fundamental princi- 
 ple." The Diet was empowered to declare war, 
 make peace, and conclude alliances, but decis- 
 ions in these matters to be valid required the 
 assent of three-fourths of the members. The 
 Diet had, moreover, the authority to make com- 
 mercial treaties, and military capitulations. It 
 exercised control over the cantonal contingents of
 
 42 GOVERNMENT OF SWITZERLAND. 
 
 the troops, appointed thegeneral of the army, and 
 took such measures as were necessary to the se- 
 curity and peace of the country. It decided in 
 cases of conflict between cantons, when the me- 
 diator could not solve the difficulty, but in these 
 cases the members pronounced judgment freely 
 without instructions. 
 
 There were also involved in the central govern- 
 ment a chancellor and a secretary, elected by the 
 Diet for a period of two years; but inasmuch as 
 they were eligible for re-election, they were us- 
 ually continued in office for a number of succes- 
 sive terms. They were paid by the Directorial 
 Canton, as was also the Landamman of Switz- 
 erland. 
 
 During the period in which this constitution 
 continued in force, Switzerland enjoyed unusual 
 peace and prosperity. It entered into a close 
 alliance with France, through which certain com- 
 mercial and military advantages were to accrue 
 to the two nations. By a later military capitu- 
 lation, France was permitted to enroll sixteen 
 thousand Swiss in her army, but by a treaty 
 formed in 1812 the number was limited to twelve 
 thousand. Although Napoleon acknowledged 
 the complete independence of Swit/.erland, yet 
 France under him exercised over it the powers 
 of a protectorate. Herein lay an unfortunate 
 circumstance for the republic. The new con-
 
 ANTECEDENTS OF SWISS FEDERALISM. 43 
 
 stitution satisfied fairly well the political wants 
 of the Swiss people, but it had come to be re- 
 garded not as an expression of an independent 
 European power, but as a contrivance of the 
 First Consul imposed upon the nation. In the 
 public mind of Europe it became identified with 
 the interests of the French Government, and by 
 this means it became exposed to the suspicion 
 and hatred of the Allies to such an extent that 
 the fall of Napoleon necessarily carried with it 
 the overthrow of this piece of his handiwork. 
 
 Soon after the defeat of Napoleon at Leipsic, 
 in 1813, the Allies invaded the territory of Switz- 
 erland, and in December the Swiss Diet met at 
 Zurich and formally set aside the Act of Media- 
 tion. At the same time it declared in favor of 
 retaining the new cantons in the Confederation; 
 in favor of providing a constitution which should 
 embrace all the cantons in a common union; and 
 in opposition to holding any cities or lands in a 
 subject relation. The reactionary party rejected 
 these propositions, and under the leadership of 
 Bern sought a revival of pre-revolutionary con- 
 ditions, and demanded that a diet of the thirteen 
 cantons should be convoked as the only legiti- 
 mate power in the 'Confederation. Zurich and 
 her followers held to the Confederation in its 
 largest and latest extent, while the reactionary 
 party withdrew and called a diet of the "eight
 
 44 GOVERNMENT OF SWITZERLAND. 
 
 old cantons." " This outward separation was, 
 however, soon abolished by the pointed declara- 
 tion of the foreign ambassadors, that the Allies 
 had determined irrevocably to preserve the in- 
 tegrity and independence of all the nineteen can- 
 tons, and would recognize no other diet than that 
 assembled at Zurich." 1 On the 6th of April, 
 1814, the Diet at Zurich embraced delegates 
 from all of the nineteen cantons. The actual 
 antagonisms, however, were not allayed, yet the 
 opposing parties were placed in such relations 
 to one another that it was possible for them to 
 work towards union. The questions at issue had 
 reference chiefly to the position that should be 
 accorded to the new cantons, and to the amount 
 of power that should be given to the central or- 
 ganization. The democratic cantons wished as 
 complete local sovereignty as possible, and their 
 opposition made it necessary to relinquish much 
 that had been won for centralization since 1798. 
 The disappearance of Napoleon from the po- 
 litical field left Switzerland in somewhat intimate 
 relations with the victorious Allies. They were 
 disposed, however, to leave the Confederation 
 free to work out the details of its internal organ- 
 ization, only requiring certain general conditions 
 to be fulfilled. In the first treaty of Paris, in 
 1814, it was stated that "Switzerland as an in- 
 
 1 Blumer, I, 46.
 
 ANTECEDENTS OF SWISS FEDERALISM. 45 
 
 dependent state will continue to govern itself." 
 In order to remove the conflicts between the can- 
 tons regarding their territorial limits, the Con- 
 gress of Vienna invited the Swiss to send 
 ambassadors to Vienna, to treat with the repre- 
 sentatives of the allied powers there assembled. 
 The Congress then laid before the Swiss ambas- 
 sadors certain propositions, on the acceptance of 
 which the Allies promised to extend to Switzer- 
 land a formal and legal recognition of her per- 
 petual neutrality. These propositions were: (i) 
 That the nineteen cantons, as they stood on the 
 1 3th of December, 1813, should continue as the 
 basis of the Confederation; (2) that Wallis, the 
 territory of Geneva, and the principality of Neuf- 
 chatel, should be embodied in Switzerland as 
 three new cantons; (3) that the bishopric of 
 Basel should be added to the cantons of Bern 
 and Basel, and the city of Bienne to the canton 
 of Bern ; (4) that the territorial claims of Schwyz, 
 Unterwalden, Uri, Glarus, Zug, and Appenzell 
 against Aargau, Vaud, Ticino, and St. Gallen 
 should be met by the payment by the latter can- 
 tons of five hundred thousand francs; (5) that a 
 yearly stipend should be fixed for the Abbot of 
 St. Gallen. These propositions were accepted, 
 and Switzerland received from Austria, Spain, 
 France, Great Britain, Portugal, Prussia, Russia, 
 and Sweden the desired documentary guarantee
 
 46 GOVERNMENT OF SWITZERLAND. 
 
 of her perpetual neutrality. As in the Treaty of 
 Westphalia, after the Thirty Years' War, the 
 powers of Europe recognized Switzerland's in- 
 dependence of the empire long after it had been 
 established as a fact, so here at the close of the 
 Napoleonic wars the powers represented in the 
 Congress of Vienna acknowledged the neutrality 
 of Switzerland, which, according to the Swiss 
 view, was a recognition of what had long existed 
 in fact, and of a principle that had long been 
 fundamental in Swiss politics. 
 
 After much wrangling and hesitating, a new 
 constitution for the Confederation was com- 
 pleted, and finally accepted t>y the twenty-two 
 cantons, August 7, 1815. As compared with the 
 Act of Mediation, it laid little stress on the cen- 
 tral authority. Under the preceding organiza- 
 tion the individual cantons recognized their 
 obligations to conform themselves to the princi- 
 ples of the federal law, and it was definitely 
 stated in the Act of Mediation that the cantons 
 should exercise all those powers which had not 
 been expressly delegated to the federal author- 
 ity. But in the constitution of 1815, limitations 
 on cantonal sovereignty were made less conspic- 
 uous. The cantons are described as united for 
 the " maintenance of their liberty, independence, 
 and security against the attacks of foreign pow- 
 ers and the preservation of internal peace and
 
 ANTECEDENTS OF SWISS FEDERALISM. 47 
 
 order." They mutually guaranteed their consti- 
 tutions and their territories. They provided for 
 a common military force of two men from each 
 one hundred of the population. They established- 
 the principle of arbitration for settling intercan- 
 tonal disputes, prohibited the existence of sub- 
 ject lands as they had previously existed, and 
 determined that the several cantons should form 
 no alliances detrimental to the Union or to any 
 canton. But alliances between cantons were not 
 definitely prohibited, as they had been by the 
 Act of Mediation, nor were the several cantons 
 prohibited from making certain military capitu- 
 lations and treaties on commercial affairs and on 
 police affairs with foreign powers, but it was re- 
 quired that such treaties having been made they 
 should be reported to the Diet. " The Act of 
 Mediation did not by any means organize Switz- 
 erland as a Bundesstaat, but there was in the 
 Landamman a standing central organ through 
 which a series of measures for the protection of 
 the common interests could be carried out. The 
 essential character of the new articles of union 
 lay in this, that they made the Confederation 
 once more purely a Staatenbund, placed the 
 sovereignty in the cantons, and made no men- 
 tion whatever of the central power, or at least 
 crowded it into the background." ' 
 
 1 Von Orelli, " Das Staatsrecht der schweizerischen Eidge- 
 nossenschaft, " 19.
 
 48 GOVERNMENT OF SWITZERLAND. 
 
 Under this constitution, " the enjoyment of po- 
 litical rights was never to become the exclusive 
 privilege of a class of the citizens of a canton." 
 Moreover, the inequality of cantonal repre- 
 sentation in the Diet, which had existed un- 
 der the Act of Mediation, was set aside, and the 
 ancient equality restored, in spite of the vigor- 
 ous opposition of the larger cantons. Each 
 canton had one vote; still, the superior moral 
 weight of the larger cantons made itself felt on 
 the course of events. The ambassadors of the 
 cantons in the Diet voted, as previously, ac- 
 cording to instructions; but,in contrast with the 
 previous condition of things, the principle of 
 majority rule was gradually gaining acceptance. 
 In certain cases, however, such as decisions rel- 
 ative to war and peace, and alliances with for- 
 eign states, the specified majority of three- 
 fourths required under the Act of Mediation was 
 here continued. The powers delegated to the 
 Diet extended to the formation of commercial 
 treaties with foreign states, the appointment of 
 ambassadors, the determination of the organiza- 
 tion of the troops, the control of the army, the 
 appointment of the generals, the officers of the 
 general staff, and the colonels of the confeder- 
 ate army, the supervision of the discipline and 
 equipment of the troops, and to all measures for 
 the external and internal security of the Confed- 
 eration.
 
 ANTECEDENTS OF SWISS FEDERALISM. 49 
 
 The office of Landamman of Switzerland fell 
 with the Act of Mediation. It became neces- 
 sary, therefore, to provide an organ for the ad- 
 ministration of general affairs between the ses- 
 sions of the Diet. It was proposed to make 
 Zurich the sole Vorort, and her burgermeister 
 the president of the Diet and of the Confedera- 
 tion; and to intrust him with the daily corre- 
 spondence and the current business of the gen- 
 eral administration. This proposition, however, 
 together with all the provisions of detail de- 
 pending upon it, failed of acceptance. Bern 
 opposed with special vigor the plan to make 
 Zurich the sole Vorort. It was finally deter- 
 mined to make three cities, Zurich, Bern, and 
 Luzern, in turn the seat of the general govern- 
 ment, each exercising for a period of two years 
 the powers of the Vorort before 1798. The 
 burgermeister of the Vorort stood at the head of 
 the confederate administration, but under cer- 
 tain circumstances the Diet might commission a 
 body of six representatives, one from each of 
 six groups of cantons, to take in charge the af- 
 fairs of the Confederation. These representa- 
 tives received instructions from the Diet, which 
 determined the period of their activity. In any 
 case their power ceased at the reassembling of 
 the Diet. The agreement of two-thirds of the 
 members was necessary to authoritative action. 
 4
 
 50 GOVERNMENT OF SWITZERLAND. 
 
 They were paid from the treasury of the Con- 
 federation. Besides these arrangements for a 
 central administration, it was also provided that 
 the general secretaryship, as it had existed un- 
 der the Act of Mediation, should be continued. 
 The constitution of 1815 was at best only a 
 compromise between interests more or less an- 
 tagonistic ; and the fact that the Swiss people 
 lived in peace and quiet under it for fifteen years 
 is not necessarily to be taken as evidence of its 
 adaptation to their political wants. The politi- 
 cal peace following the Revolution was rather 
 the result of a reaction from specially troubled 
 times, under the revived force of cantonal tradi- 
 tions. During this period political activity was 
 almost exclusively confined to the affairs of the 
 cantons, in several of which new constitutions 
 were framed and adopted. These new consti- 
 tutions involved important fundamental princi- 
 ples. They recognized popular sovereignty, 
 limiting its exercise to making elections and 
 adopting or rejecting proposed amendments of 
 the constitution. They transferred to the great 
 council the power of making laws, of levying 
 taxes, of instructing delegates to the Diet, and of 
 supervising the general administration and the 
 administration of justice. They removed the 
 previously existing legal inequality between the 
 cities and the rural districts, "yet in some cases
 
 ANTECEDENTS OF SWISS FEDERALISM. 5 I 
 
 favored the capital towns with respect to rep- 
 resentation. They established in most cases 
 the direct popular election of members of the 
 great council; provided for short terms of office; 
 separated the judicial from the executive power, 
 ordered freedom of the press and the right of 
 petition ; and in many of the cantons pledged the 
 authorities to improve the public instruction. 
 
 Down to 1830, except during some portion of 
 the Revolutionary period, the several cantons 
 had been regarded as independent political so- 
 cieties. The articles of union were of their own 
 creation, and became binding on any canton 
 only by its voluntary action. The doctrine of 
 State rights was accepted without question. 
 On the 2/th of December, 1830, the Diet de- 
 clared " that every canton in the Confederation, 
 by virtue of its sovereignty, was free to under- 
 take such changes in the cantonal constitution 
 as might appear to it desirable, in so far as 
 these changes were not in opposition to the ar- 
 ticles of union, and that the Diet would not in- 
 terfere in any manner in such constitutional 
 reforms as had already been made or even pro- 
 posed." The adoption by the Diet of a policy 
 of non-interference, left the cantons without any 
 sufficient guarantee for their constitutions. The 
 desire for such a guarantee, however, coupled 
 with the inefficiency of the Diet, led to the es-
 
 52 GOVERNMENT OF SWITZERLAND. 
 
 tablishment of new alliances for this purpose in 
 different groups of cantons. In the spring of 
 1832, the seven cantons of Luzern, Zurich, Bern, 
 Solothurn, St. Gallen, Aargau, and Thurgau, 
 agreed mutually to guarantee their constitu- 
 tions, and pledged themselves, in case strife 
 should arise among them, to exercise the office 
 of mediators and to secure to one another pro- 
 tection by force of arms. This was the first 
 Sonderbund within the Confederation, and a 
 prelude to the later unions and the so-called 
 War of the Sonderbund. Besides aiming to 
 furnish mutual security, it was also an attempt 
 on the part of the then dominant radical-liberal 
 party to form a more compact and effective or- 
 ganization in these cantons. This action of the 
 seven liberal cantons was followed not long af- 
 terwards by the formation of the League of 
 Sarnen, embracing Uri, Schwyz, Unterwalden, 
 Wallis, and the city of Basel 4 in which the con- 
 servative party was dominant. The members 
 of this union withdrew from the Diet, but the re- 
 maining cantons, acting through the existing 
 general organization, raised an army of twenty 
 thousand men, compelled them to dissolve their 
 separate alliance, re-enter the Diet, and recog- 
 nize the division of Basel into two half-cantons. 
 The formation of these separate unions empha- 
 sized the existing party differences, and made
 
 ANTECEDENTS OF SWISS FEDERALISM. 53 
 
 apparent the need of a more efficient central au- 
 thority. 
 
 The project to revise the articles of 1815 had 
 already been several years under discussion, 
 when the League of Sarnen was overthrown in 
 1833, and the results of these discussions showed 
 a marked bias in favor of increasing the power 
 of the central organization, and of establishing 
 a genuine federal government. The draft of a 
 federal constitution which was submitted to the 
 popular vote in the summer of 1833 had been 
 formed under the influence of the liberal party, 
 and consequently met with an opposition from 
 the side of the conservative or reactionary can- 
 tons, which made its adoption impossible. 
 Later, party differences were increased by involv- 
 ing religious differences, and in 1846 the Con- 
 federation went asunder, the Catholic cantons 
 becoming united in a separate union, which was 
 virtually a revival of the League of Sarnen. 
 An immediate object of this union was to de- 
 fend the cause of the Jesuits, whom the Liberals 
 wished expelled from the Confederation, as the 
 cause of the recent internal troubles. Both par- 
 ties soon went beyond the point where com- 
 promise was possible, and Switzerland became 
 divided into two hostile camps. The Catholic 
 cantons in the union, disregarding the articles of 
 confederation of 1815, had "engaged to defend
 
 54 GOVERNMENT OF SWITZERLAND. 
 
 each other by an armed force, and appointed a 
 council of war to concert all necessary measures 
 for joint action." But their defeat was a fore- 
 gone conclusion. Their army comprised about 
 50,000 men, while that of the Confederation was 
 twice as large. The Confederation, moreover, 
 had a superior moral support in that it repre- 
 sented the national idea. The triumph of the 
 national-liberal party, which came speedily and 
 without great effort, prepared the way for a new 
 constitution. 
 
 The business of revising the constitution was 
 taken up in earnest by a commission in Febru- 
 ary, 1848. This commission was composed of 
 the first of each canton's ambassadors at the 
 Diet, and all the cantons and half-cantons were 
 represented, except Neufchatel and Appenezll- 
 Interior. In May the work of the commission 
 was finished, and the draft of the constitution 
 was brought before the Diet, where it was care- 
 fully discussed and amended, and finally submit- 
 ted to the several cantons. Fifteen and a half 
 cantons voted to accept it. 1 These affirmative 
 
 1 These were: Zurich, Bern, Luzern, Glarus, Freiburg, Solo- 
 thurn, Basel, Schaffhausen, Appenzell-Exterior, St. Gallen, 
 Graubiinden, Aargau, Thurgau, Vaud, Neufchatel, and Geneva. 
 The fourteen and a half cantons which voted for the amend- 
 ments of 1874 were: Zurich, Bern, Glarus, Solothurn, Basel, 
 Schaffhausen, Appenzell-Exterior, St. Gallen, Graubtinden, 
 Aargau, Thurgau, Ticino, Vaud, Neufchatel, and Geneva.
 
 ANTECEDENTS OF SWISS FEDERALISM. 55 
 
 votes embraced not only a majority of all the 
 cantons, but also a large majority of the Swiss 
 citizens. On the I2th of September, the Diet an- 
 nounced that the constitution had been adopted, 
 and invited the several cantons to elect mem- 
 bers of the two legislative assemblies. All of 
 the cantons without exception acceded to the 
 will of the majority, and acted in accordance 
 with the invitation of the Diet. By these steps 
 a federal government was put in the place of 
 the previously existing unstable union of can- 
 tons; and the organization thus established has 
 been maintained till the present time without 
 fundamental modification. The changes of 1865 
 and 1874 were in the form of necessary exten- 
 sions of the constitutional law. In the great re- 
 form of 1848, Switzerland was specially favored 
 by the revolutionary movement of the time, 
 which engaged the attention of her neighbors, 
 and by the measurably successful example of a 
 federal republic in America.
 
 CHAPTER III. 
 THE DISTRIBUTION OF POWER. 
 
 LIKE the constitutions of the federal republics 
 of Mexico, Venezuela, and Argentine, and un- 
 like those of Colombia and the United States, 
 the Swiss constitution begins by invoking the 
 name of God. Then, in the preamble and sec- 
 ond article, the purposes of the law are set forth, 
 which are to strengthen the union of the cantons, 
 to maintain and increase the unity, power, and 
 honor of the Swiss nation, to insure the inde- 
 pendence of the country against dangers from 
 without, to preserve internal tranquillity and or- 
 der, to protect the liberty and rights of the 
 members, and to increase their common pros- 
 perity. This statement of aim may be com- 
 pared with that contained in the Constitution of 
 the United States, which is ordained " in order 
 to form a more perfect union, establish justice, 
 insure domestic tranquillity, provide for the com- 
 mon defense, promote the general welfare, and
 
 DISTRIBUTION OF POWER. 57 
 
 secure the blessings of liberty to ourselves and 
 our posterity." 1 
 
 Since the Swiss constitution is the fundamental 
 law of the state, its makers are recognized as 
 the legal sovereign in Switzerland. This sover- 
 eign, then, consists of a body embracing a ma- 
 jority of the voters so distributed as to make a 
 majority in at least twelve of the cantons ; for by 
 such a body both the constitution of 1848 and 
 the amendments of 1874 were adopted, and by a 
 like body the present constitution may at any 
 time be amended or revised. And the revision 
 shall be effected by the means provided for fed- 
 eral legislation. Whenever one house of the 
 federal legislature decrees the revision of the con- 
 stitution, and the other house does not consent, 
 or, indeed, whenever fifty thousand Swiss citizens 
 having the right to vote demand the revision, 
 a vote of the Swiss people shall be called to de- 
 termine whether the constitution shall be re- 
 vised or not. If in either of the cases thus sub- 
 mitted to popular vote, the majority of the 
 citizens voting shall decide affirmatively, the two 
 
 1 These clauses appear to have been transferred to the consti- 
 tution of the Argentine Republic, where they occur in the pre- 
 amble, in the following words: "Con el objeto deconstituir la 
 union nacional, afianzar la justicia, consolidar la paz interior, 
 proveer a, la defcnsa coniun, promover el bienestarjeneral, i asej^u- 
 rar los beneficios </e la liber (ad para nosotros, para nuestra pos- 
 teridad, i para todos los hombres del mundo que quieran habitar 
 el suelo argentine."
 
 58 GOVERNMENT OF SWITZERLAND. 
 
 houses of the legislature shall be constituted 
 anew to undertake the revision. The constitu- 
 tion having been revised in this manner by the 
 legislative bodies, a second vote of the people 
 is demanded for its acceptance. Accordingly, 
 Article 121 provides that "the revised federal 
 constitution becomes in force whenever it has 
 been accepted by the majority of the Swiss citi- 
 zens taking part in the voting, and by the ma- 
 jority of the cantons." The result of the popu- 
 lar vote in this matter is considered the vote of 
 the canton, and the decision of the half canton 
 is counted as a half vote. 
 
 While the Swiss constitution was adopted and 
 may be amended by the direct vote of the 
 people, the constitution of the United States 
 acquired validity through its adoption by con- 
 ventions of nine of the thirteen States. The 
 direct vote of the people was not required for its 
 adoption, nor is such a vote required for its 
 amendment. According to Article V, "the 
 Congress, whenever two-thirds of both Houses 
 shall deem it necessary, shall propose amend- 
 ments to this constitution, or, on the application 
 of the legislatures of two-thirds of the several 
 States, shall call a convention for proposing 
 amendments, which, in either case, shall be valid 
 to all intents and purposes as part of this Con- 
 stitution, when ratified by the legislatures of
 
 DISTRIBUTION OF POWER. 59 
 
 three-fourths of the several States, or by conven- 
 tions in three-fourths thereof, as the one or the 
 other mode of ratification may be proposed by 
 the Congress." The alternative method here 
 provided is wanting in the constitution of Mex- 
 ico, where, in order to effect a change, it is re- 
 required that the Congress of the Union, by a 
 vote of two-thirds of the members present, agree 
 to reforms or additions, and that these be ap- 
 proved by the majority of the legislatures of 
 the States. 1 In both of these instances, as in 
 the cases of Colombia, 2 Venezuela, 3 and the Ar- 
 
 1 Constitucion de los Estados Unidos Mejicanos, Art. 127. 
 
 2 Article 92 of the constitution of the Republic of Colombia 
 contains the following provisions relative to amendment: 
 
 "Esta constitucion podrd ser reformada total 6 parcialmente 
 con las formalidades siguientes: 
 
 "l. Quela reforma sea solicitada por lamayoria de las lejis- 
 laturas de los estados; 
 
 "2. Que la reforma sea discutida i aprobada en ambas cdm- 
 aras conforme a lo establecido para la espedicion de las leyes; i 
 
 "3. Que la reforma sea ratificada por el voto una-nime del 
 senado de plenipotenciarios, teniendo un voto cada estado. 
 
 "Tambien puede ser reformada por una convencion convocada 
 al efecto por el congreso, & solicitud de la totalidad de la's lejis- 
 laturas de los estados, i compuesta de igual numero de diputa- 
 dos por cada estado." 
 
 3 The amendment of the constitution of Venezuela is provided 
 for in the following terms of Article 122: 
 
 "Esta constitucion podrd, ser reformada total 6 parcialmente 
 por la lejislatura nacional, si lo solicitare la mayoria de las 
 lejislaturas de los estados; pero nunca se hara la reforma sino 
 sobre lospuntosa que se refieran las solicitudes delos estados."
 
 60 GOVERNMENT OF SWITZERLAND. 
 
 gentine Republic, 1 the will of the people ex- 
 presses itself through the fundamental law only 
 indirectly. In Switzerland, the voters are con- 
 stituent elements of the legal sovereign, while in 
 the other cases the legal sovereign is made up 
 of organizations of representatives or delegates 
 who have received their authority from the 
 voters. That body in a state is legally sover- 
 ei ,n in which is vested the power to make or 
 amend the fundamental law of the state; but 
 "that body is 'politically' sovereign or supreme 
 in a state the will of which is ultimately obeyed 
 by the citizens of the state. In this sense of 
 the word the electors of Great Britain may be 
 said to be, together with the Crown and the 
 Lords, or, perhaps, in strict accuracy, independ- 
 ently of the King and the Peers, the body in 
 which sovereign power is vested. For, as things 
 now stand, the will of the electorate and cer- 
 tainly of the electorate in combination with the 
 Lords and the Crown, is sure ultimately to prevail 
 on all subjects to be determined by the British 
 Government." * "But the legally sovereign 
 power is assuredly, as maintained by all the 
 
 1 In the Argentine Republic, according to Article 30, "La 
 constitucion puede reformarse en el todo 6 en cualquiera de sus 
 partes. La necesidad de reforma debe ser declarada por el 
 congreso con el voto de dos terceras partes, al menos, de sus 
 miembros, pero no se efectuard sino por una convencion convo- 
 cada al efecto." 
 
 * Dicey, "The Law of the Constitution," 66-67.
 
 DISTRIBUTION OF POWER. 6 1 
 
 best writers on the constitution, nothing but 
 Parliament." 1 If we adopt the line of distinc- 
 tion here drawn by Professor Dicey, the legal 
 sovereign in Switzerland appears to be identical 
 with that body which is politically sovereign, 
 while in the United States and the other federal 
 states mentioned, these two bodies are distinct. 
 Inasmuch as the sovereign of a federal state 
 requires much time for action, and can act only 
 at considerable intervals, it is necessary that 
 there should exist efficient agents, receiving 
 authority from the sovereign, for the performance 
 of specified parts of the business of government. 
 In such a state, the larger part of the powers of 
 the sovereign are distributed, subject always to 
 recall, by the sovereign itself to three govern- 
 mental departments, which hold in relation to 
 the sovereign the position of agents. The sov- 
 ereign is here conceived of as the holder of the 
 absolute power of a nation, which it delegates to 
 subordinates of its own creation or of its adop- 
 tion; and every nation possesses such a power. 
 "It may have any organization, from the purest 
 democracy to the most absolute monarchy; but 
 considered in its relations to the rest of mankind 
 and to its own individual members, it must ex- 
 ist, to the extent at least of enacting laws for 
 itself, as an integral, independent, sovereign 
 
 1 Dicey, 69.
 
 62 GOVERNMENT OF SWITZERLAND. 
 
 society among the other similar nations of the 
 earth. Its government, or, in other words, the 
 permanent agents which it has established to 
 make efficient its organic will, must be so far inde- 
 pendent that no other power may authoritatively 
 control its legislation, no other state may inter- 
 fere, and, according to any received and admitted 
 constitution of things, prescribe what the laws 
 shall be." ' In a nation with a federal form of 
 government, the three departments of the cen- 
 tral organization already mentioned are not the 
 only factors that may be viewed as agents of the 
 sovereign power. The various offices, organiza- 
 tions, or institutions for exercising power in the 
 subordinate political societies, may also be re- 
 garded as the sovereign's organs or agents; for 
 if not created by the sovereign, the sovereign 
 has accepted them, acts through them, and pre- 
 serves their existence. The distribution of power 
 on which much stress has been laid since Mon- 
 tesquieu's celebrated utterance, 2 has a larger 
 meaning than that which has usually been as- 
 cribed to it. It involves the idea of a nation 
 possessing, in itself an inherent, an absolute, 
 power of self-direction, giving over to specific 
 departments, or special classes, or subordinate 
 organizations, or allowing to remain in subor- 
 dinate bodies, such portions of this power as may 
 
 1 Pomeroy, " Constitutional Law," 30. 
 
 "De L' Esprit des Lois," L. II, ch. VI.
 
 DISTRIBUTION OF POWER. 63 
 
 be consistent with its free determination. It in- 
 volves not only such an allotment of power, but 
 also the relation of State to federal authority. In 
 a word, wherever in a nation political power exists 
 and is exercised, except in the case of the direct 
 action of the sovereign, it exists and is exercised 
 as a virtual emanation from the sovereign. 
 
 An important difference between a simple 
 democracy, like Uri or Appenzell, and a vast 
 and complex nation, like England, the United 
 States, or the German Empire, lies in the lack 
 of distribution of the sovereign power in the one 
 case and the extensive distribution necessitated 
 by the physical conditions of the other. 
 
 In the case of the great nation, however, as 
 the physical obstacles are overcome, there ap- 
 pears to be a tendency to return to the ideal of 
 primitive democracy, in other words, for the 
 political sovereign to crowd itself as near as 
 possible to the current business of government. 
 Viewed with respect to the distribution of power, 
 the present position of England's central gov- 
 ernment suggests that, after a long series of ex- 
 periments, the nation has returned almost to its 
 point of departure. The primitive government 
 of the existing English stock in England was 
 the government of an isolated community, in 
 which the whole power, as is the case to-day in 
 some of the democratic cantons of Switzerland,
 
 64 GOVERNMENT OF SWITZERLAND. 
 
 rested in the hands of the freemen, and was ex- 
 ercised immediately by the whole body itself, or 
 by its directly appointed agents. This was a 
 form of government adapted only to the limited 
 area of the primitive settlement. When these 
 primary groups became united, and the area of 
 the enlarged dominion became so great as to 
 prevent the whole body v of freemen from partici- 
 pating directly in the affairs of the state, the 
 first step was taken towards setting up the rule 
 of an aristocracy presided over by a king. Im- 
 mediately after the union of the petty kingdoms 
 of Anglo-Saxon England into the kingdom of 
 Ecgberht, the popular element of the nation did 
 not participate in the affairs of the central gov- 
 ernment. The circumstances of expanded do- 
 minion had relegated the activity of the great 
 mass of the people to local concerns. The con- 
 ditions were, therefore, favorable to the existence 
 of an aristocratic government; and that the aris- 
 tocracy which governed the English people be- 
 tween the tenth and thirteenth centuries was 
 something more than an aristocracy of wealth 
 or of birth, is sufficiently indicated by the name 
 of the assembly through which its power was 
 exercised. This was England's experiment 
 with a pure aristocracy; and the ease with which 
 it was maintained at tjiis time was due princi-
 
 DISTRIBUTION OF POWER. 65 
 
 pally to two causes: First, the ignorance of all 
 but the few; second, the absence of any tried 
 and approved means by which the great body 
 of the people could put forth their power while 
 scattered over all England. The discovery and 
 application of means by which the power of the 
 people could be exerted under these conditions 
 closed the period of aristocratic exclusiveness in 
 English politics. There followed a new experi- 
 ment in the distribution of power. 
 
 The admission of city and county representa- 
 tives to Parliament, in the thirteenth century, 
 was an invasion of the aristocratic monopoly 
 in government, and was a step towards the in- 
 troduction of the democratic element to co- 
 operation with the aristocracy. The immediate 
 departure from aristocracy was, however, very 
 slight, inasmuch as the counties in the begin- 
 ning could be represented only by members of 
 the nobility, and the representatives of the cities 
 were elected by exclusive corporations. But 
 even this slight concession was followed by a 
 reaction in the form of the disfranchising statute 
 of 1430. From this time onward the political 
 history of England shows movement along sev- 
 eral lines: First, to increase the functions of the 
 central government at the expense of the local 
 organizations; second, to increase, in the central 
 5
 
 66 GOVERNMENT OF SWITZERLAND. 
 
 government itself, the power of the lower house 
 at the expense of the Crown and the Lords; 
 third, to make the lower house the creature of a 
 larger and larger number of voters, and to bring 
 the voters into an ever enlarging knowledge of, 
 and a more immediate participation in, the cur- 
 rent affairs of the government. These changes 
 have resulted already in making the ministry 
 merely a committee of the lower house, and the 
 lower house a committee of the enfranchised 
 part of the population. 
 
 The connection between the English ministry 
 of to-day and the great national party which it 
 represents is scarcely less immediate than that 
 which existed between the original Saxon 
 settlers and their elected officers. The Crown 
 and Lords still exist, but an independent de- 
 cision on the part of either is no longer to be 
 thought of. Under the constitution, the Crown 
 is endowed with the power of an absolute veto, 
 but its exercise at present would be regarded as 
 a revolution, so completely has custom super- 
 seded the law of two centuries ago. And the 
 House of Lords has, under the same constitu- 
 tion, the power to reject any measure passed by 
 the Commons. But no sooner is there mani- 
 fest, on the part of the Lords, a disposition to 
 exercise this power, than the nation begins to
 
 DISTRIBUTION OF POWER. 67 
 
 bestir itself to coerce them to conform their 
 action to the will of the dominant party. The 
 forms of these" institutions still continue, but 
 their ancient power has drifted back to the free- 
 men, who exercise it in the most direct manner 
 consistent with their large numbers. The action 
 of the ministry must conform to the will of the 
 majority of the Commons, and the majority of 
 the Commons must be in accord with the ma- 
 jority of the electors. In this necessary har- 
 mony of the governmental executive and the 
 bulk of the electors, is the ground for the state- 
 ment that after several centuries of experiments 
 in the matter of the distribution of power, the 
 English people have returned to a position not 
 essentially different from that from which they 
 set out. 
 
 ' If we attempt to explain this drift of political 
 power in England, we shall find an important 
 cause of it in the difficulty perhaps in the im- 
 possibility of so distributing this power that 
 the several departments of the government shall 
 be held in a just and even balance. If this bal- 
 ance is disturbed by one department receiving 
 more power than is necessary to place it in 
 equilibrium with the other departments, this one 
 department is thus enabled to encroach on the 
 others, Shd, in the course of time, to dominate in 
 the government. The power to loosen or
 
 68 GOVERNMENT OF SWITZERLAND. 
 
 tighten the national purse-strings was the spe- 
 cially efficient possession of the Commons, and 
 constituted the principal advantage over the 
 other departments, which have finally succumbed 
 to its supremacy. 
 
 If the political drift which we have observed 
 in England has an efficient cause in an inevita- 
 bly unequal distribution of power, we must look 
 for a similar tendency, or a tendency to the su- 
 premacy of some one department, whenever an at- 
 tempt is made to distribute the power which is 
 vested in the sovereign of the nation. Assuming 
 the permanence of the fundamental principles 
 of human nature,and the continuanceof thedom- 
 inant social tendencies which are revealed in his- 
 tory, the course of England's political progress 
 appears as the type of the necessary evolution 
 of popular government. This gradual drift of 
 power towards some given point in the organ- 
 ism is illustrated by the history of federal gov- 
 ernments. Even the brief history of the United 
 States shows this tendency of power in the re- 
 lation of the States to the federal government. 
 It was supposed by the makers of the federal 
 Constitution that they had so distributed the 
 political power of the nation between the State 
 and federal governments that there would be 
 no encroachment of the one on the other. But, 
 by placing the power of final interpretation in
 
 DISTRIBUTION OF POWER. 69 
 
 one of the organs of the federal government, 
 as it was necessary to do in order that the Fed- 
 eration might be held together, 'conditions were 
 established favorable to the gravitation of power 
 toward the center; for the human quality of 
 the government made it more than probable 
 that, in cases of doubt, the interpretation would 
 be always in its own favor. For this and other 
 reasons, wherever in the history of the world we 
 find a federation having an internal organization 
 sufficiently strong to maintain its own existence, 
 we observe an inevitable drift of power from the 
 several States to the central government. This 
 is true of all the federations, from the Achaian 
 League to the United States, that have been 
 sufficiently permanent to win a place in history. 
 Each of these governments shows the failure of 
 an attempt to distribute the national power in 
 such a manner as to preserve the State and 
 federal governments in equilibrium. 
 
 The specific movement of power which has 
 been observed in the history of the English gov- 
 ernment, is manifest also within the central gov- 
 ernment of the United States. There is to be 
 noted, however, this difference: in England, the 
 absence of a written constitution, and the fact 
 that the national legislature has been the legal 
 sovereign, have permitted this body, without an
 
 70 GOVERNMENT OF SWITZERLAND. 
 
 appeal to any higher authority, to modify the 
 government, or to shift the preponderence of 
 power from one department or institution to an- 
 other; while in the United States, similar changes 
 have been brought about, and under the contin- 
 ued operation of existing forces, will hereafter 
 be brought about, through judicial stretching 
 and twisting of a written constitution, or through 
 amendments of the constitution itself. The 
 presence of a written constitution only renders 
 slower the movement toward the accumulation 
 of power at a single point, in the governmental 
 organization. 
 
 If we find in England alone the culmination 
 of the tendency to bring the affairs of gov- 
 ernment into the immediate control of the elect- 
 ors, it must be remembered that in England 
 alone there have been six hundred years of 
 popular rule. In other states with popular 
 rule, whether with restricted or universal suf- 
 frage, in which representatives of the people 
 have the right to initiate laws, and consequently 
 the power to shape the governmental policy, 
 there are present the conditions and internal 
 forces which conduce to the attainment of the 
 same end. There appears to be wanting only 
 time to enable all popular governments to reach 
 essentially the same position, politically, that 
 England has already reached, or that position
 
 DISTRIBUTION OF POWER. 71 
 
 in which the English will find themselves on the 
 attainment of universal suffrage. All-the dom- 
 inant forces of existing Aryan society, those de- 
 rived from the spread of popular education, from 
 the increasing intercourse between communities 
 and classes, and from the growing recognition 
 of political equality, contribute to the establish- 
 ment of this tendency. It finds confirmation, 
 moreover, in the history and organization of 
 popular governments everywhere. Our national 
 history shows that in the United States there 
 has been a marked drift of power towards the 
 central government, and in the central govern- 
 ment itself, a drift of power towards the lower 
 house. In short, every representative govern- 
 ment in which the representatives of the people 
 have the right to initiate laws, however the po- 
 litical power of the nation may have been dis- 
 tributed at first, tends to move in a certain 
 course, whose end, or culmination, is the nearest 
 practicable connection between the voters of the 
 dominant national party and the actual business 
 of government. When this point is reached, 
 and the whole burden of governing a great na- 
 tion rests, as in England, on a committee of the 
 representatives of the people, the political cycle 
 of that nation is run. And when it is found, as 
 it has been found in England, that the business 
 devolving upon the governing committee is so
 
 72 GOVERNMENT OF SWITZERLAND. 
 
 multifarious and complex as to render its proper 
 execution impossible, the time has arrived for 
 a redistribution of power. 
 
 After the passage of one more reform bill, 
 making the suffrage universal, this will be es- 
 sentially the position of England. In view of 
 the fact that the political power formerly pos- 
 sessed by the Crown and the Lords has been 
 transferred to the Commons, and that the Com- 
 mons have become the creatures of the whole 
 enfranchised part of the nation, and the electors 
 are thus brought as near as practicable to the 
 actual conduct of affairs, there remains no im- 
 portant step to be taken in this direction. 
 
 The tendency of centuries having found here 
 its culmination, there are abundant reasons for 
 supposing that the next important change in 
 English political life will be the result of a great 
 reconstructive effort, put forth to create new and 
 efficient organs of power in place of the Crown 
 and the Lords; or, more particularly, in place of 
 the Lords, whose functions, aside from their ac- 
 tivity in behalf of their own perpetuation, have 
 dwindled to merely those of opposition, yet an 
 opposition which may always be overcome in 
 the last resort. 
 
 At this point that is, at the culmination of 
 this tendency to bring the electors into the 
 closest possible proximity to governmental af-
 
 DISTRIBUTION OF POWER. 73 
 
 fairs it is asserted that there must be a redis- 
 tribution of power. The reasons for this asser- 
 tion may not be exhaustively given. It may, 
 however, be said in general that the attainment 
 of rational freedom is one of the chief ends of 
 the state, and that it is only through the means 
 of political institutions that this end may be 
 attained. If, therefore, the tendency which we 
 have considered is to break down and ignore 
 these institutions, it is clear that they must be 
 revived, or new ones created, before the state 
 can be in a position to secure its legitimate pur- 
 pose; and the revival or creation of political 
 institutions is simply another phrase for the dis- 
 tribution or redistribution of political power. It 
 may be stated, moreover, as a general principle 
 of social activity, that there is a tendency in 
 society to put forth its efforts for self-conserva- 
 tion and progress, in the line of least resistance; 
 and it follows from this that no institutions 
 which have lost all their functions but those of 
 obstruction, can permanently remain a part of 
 the social organism. They will ultimately either 
 be supplanted by others, or be once more en- 
 dowed with the power of positive action; and 
 to effect either of these results there will be 
 necessary a redistribution of that power which 
 has drifted into the hands of the people. If at 
 this point such redistribution does not take place,
 
 74 GOVERNMENT OF SWITZERLAND. 
 
 we have to suppose that all that activity which, 
 since the beginning of political life, has been 
 devoted to a fancied improvement of the form 
 of the government, will at once and forever cease, 
 a supposition entirely at variance with the known 
 laws of social activity. There is another and a 
 practical consideration which the supposition 
 having been reached will urge imperatively 
 the redistribution of power. I refer to the 
 actual inability of the ministers, where the 
 power of a great nation rests with them, as in 
 England, to carry to a proper and successful 
 issue all the varied and far-reaching undertak- 
 ings that devolve upon them. 
 
 England, therefore, seems about to be called 
 upon to face the great question of the redistri- 
 bution of her political power. By this state- 
 ment, it is not meant that the work must be un- 
 dertaken this year or the next, but that it is a 
 task of the future from which there appears no 
 escape. If, moreover, present tendencies are in- 
 dications of future conditions, it is a task which 
 will ultimately present itself to every nation 
 whose government rests for its primary founda- 
 tion on the will of the people. In a federal re- 
 public, like the United States, the tendency ob- 
 served in England may exist, but be checked 
 from time to time by constitutional amendment 
 or by decisions of the Supreme Court, thus
 
 DISTRIBUTION OF POWER. 75 
 
 avoiding an important redistribution at any one 
 time. In all governments there are forces which 
 conduce to the same end, although in some the 
 full manifestation may be prevented by the 
 operation of counteracting forces which redis- 
 tribute the power as fast as it is aggregated. 
 While, however, it may be readily admitted that 
 the history of our national life shows a tendency 
 to place more and more power in the central 
 government, it may, perhaps, be denied that 
 there is any evidence of power drifting away 
 from the President and the Senate, and tending 
 to concentrate itself in the House of Representa- 
 tives. A careful examination, however, will re- 
 veal certain considerations drawn from the 
 nature of the lower house, and from its relation 
 to other departments of the government, that 
 suggest its ultimate supremacy, and the gradual 
 crowding of the people nearer and nearer to the 
 actual exercise of power. To indicate two or 
 three of these we may mention: I. The rela- 
 tively greater and greater importance which the 
 finances are assuming in the affairs of legislation 
 and administration, coupled with the fact that 
 in these matters the lower house alone possesses 
 the right of the initiative. 2. The claim of the 
 lower house to be heard in the making of trea- 
 ties, which is fixed by the Constitution clearly 
 as a function of the President and the Senate.
 
 76 GOVERNMENT OF SWITZERLAND. 
 
 3. The more intimate relation which members 
 of this house hold to the great body of the peo- 
 ple, and the greater share of popular confidence 
 which for this reason they are likely to enjoy; 
 or, in other words, the increasing power and 
 prestige which, in the progress of democracy, 
 the members of the lower house are to acquire 
 more and more abundantly, as the bearers of 
 the most direct, and consequently the most 
 authoritative, message from the electors. 4. The 
 demand of the voters that the representatives 
 shall pledge themselves to vote as directed by 
 their constituents. 
 
 These are a few of a very long list of facts 
 which indicate not only the disposition of the 
 great body of electors to lay their hands directly 
 on the machinery of government, but also their 
 ability to advance toward their desired end. 
 Our political drift, then, is manifestly to bring 
 the people nearer the actual operations of legis- 
 lation and administration. The happy feature 
 of a federal government in this connection is, 
 that the remedy of too great an accumulation of 
 power at any one point is found in an amend- 
 ment of the constitution; and the authority to 
 amend is so distributed as to make it antagonis- 
 tic to the absorption of all power at any single 
 point of the political organism. The question 
 of redistribution of power in such a state is,
 
 DISTRIBUTION OF POWER. 77 
 
 therefore, a very simple affair, but with a gov- 
 ernment like that of England it is a question of 
 adopting a new form. It is, therefore, pertinent 
 to inquire into the constitutional possibilities of 
 the future; that is to say, viewing the future from 
 the standpoint of the existing forces of society, 
 what forms of government are likely to be ac- 
 cepted in the later stages of our social growth ? 
 It is, of course, to be understood that there are 
 certain general constitutional possibilities which 
 hold with respect to the social conditions of all 
 Western nations, and certain particular possibili- 
 ties which hold with respect only to certain par- 
 ticular nations. This topic is of primary impor- 
 tance, because it is highly desirable to know 
 what forms of government have a chance of ex- 
 isting in the future, in order that, in advancing 
 to the great question of the redistribution of 
 power, arguments may not be wasted to show 
 that a given form of government is the best 
 form, when a little thoughtful observation and 
 reflection would show that it lies clearly without 
 the field of constitutional possibilities. It may 
 not be easy to determine definitely the limits of 
 this field, yet there are doubtless some things in 
 governmental organization which Ihe race has 
 outgrown. If we can determine these by ex- 
 amining the history of governments in the light 
 of the inherent tendencies of society, we can
 
 78 GOVERNMENT OF SWITZERLAND. 
 
 indicate certain forms of political organization 
 which it is useless to advocate, and by this 
 means indicate approximately the constitutional 
 possibilities of the future. 
 
 There is probably no other form of govern- 
 ment which accords so generally with the pref- 
 erences of thoughtful men as aristocracy. It is 
 easy to persuade one's self that a government 
 of the best is the best form of government for 
 any nation. Yet it is not altogether clear that 
 this form of government, as generally under- 
 stood and advocated, is not antiquated, and, at 
 least as it appears in the political history of the 
 world, no longer among those forms which 
 should be the aim of our political striving. At 
 any rate, two questions arise respecting it: I. 
 Is its record such that its continued existence 
 is desirable ? 2. Are the conditions of modern 
 life favorable to its continuance? 
 
 If we were to pass in review the whole record 
 of aristocratic rule, the resulting conclusion would 
 be that wherever the power of government has 
 rested undisturbed in the hands of an aristocratic 
 class, this class has inclined more and more to 
 wield this power to its own material advantage, 
 while, at the same time, the spontaneous life of 
 the people has been suppressed, and the intelli- 
 gence of the nation crystallized into a stiff and 
 unproductive formalism. Compare aristocratic
 
 DISTRIBUTION OP POWER. 79 
 
 Sparta with the more democratic Athens, or 
 Venice with Florence. The creative intellect 
 has left no record of great activity under a 
 strictly aristocratic government. 
 
 Regarding the second question, as to the 
 prospects of any historical form of aristocracy 
 under the conditions of modern life, there, is 
 abundant evidence that it is not likely to fit in 
 well with the ideas and social organization of 
 the future. Aristocracy has entered into the 
 government of states either as the sole power, 
 or as a power co-ordinated with a prince, or 
 with a body representing the people, or with 
 both. Where it appears in the second form, 
 that is, as a power co-ordinated with another 
 power in the government, it is the product of 
 times whose fundamental idea as to the source 
 of political power and privilege was totally dif- 
 ferent from that at present generally entertained. 
 The mediaeval pretension of the Pope, that he 
 was the vicar of God on earth, charged with the 
 control of man's spiritual interests, was the prac- 
 tical foundation of that theory which regarded 
 the prince, or head of the state, as the source 
 of all the political power exercised in the gov- 
 ernment of the nation ; for if the Pope controlled 
 man's spiritual interests, it was clear to the 
 mediaeval mind that the temporal interests, 
 which were plainly inferior to the spiritual,
 
 8O GOVERNMENT OF SWITZERLAND. 
 
 should be subordinated, through the prince, to 
 the bearer of the high commission of spiritual 
 control. Thus, the divine right to direct the 
 worldly concerns of a nation, to appoint officers, 
 and to bestow privileges, descended upon the 
 prince through God's appointed agent. Under 
 this view, through the appointment of the prince, 
 arose those aristocracies which, in some coun- 
 tries, at present divide the power with the popu- 
 lar element. But the great revolution of the 
 last three hundred years has its central and es- 
 sential feature in the introduction and adoption 
 of the idea that whatever power is exercised in 
 the government is derived, not from the head 
 of the state, but from the bulk of the nation. 
 This view is accepted even by nations whose 
 affairs are administered under the fictions and 
 precedents derived from their earlier history. 
 The English furnish an instance of this. In 
 theory, the revolution may be considered to be 
 complete. No one in these days writes as Sir 
 Robert Filmer wrote in his " Patriarcha." If, 
 in official titles and forms of administration, we 
 are constantly pointed to a former phase of 
 political life, it is to be remembered that these 
 titles and forms are only survivals of an age 
 whose spirit has departed. With this revolu- 
 tion, then, disappears the head of the state as 
 the source of aristocratic power and privilege;
 
 DISTRIBUTION OF POWER. 8 1 
 
 at least, as the source of that form of aristocracy 
 which is represented in the English peerage, 
 and which, before 1866, was represented in the 
 nobility of Sweden. For it is not to be sup- 
 posed that a crown which exists only by a par- 
 liamentary title, and which has no power of 
 independent political action, will remain per- 
 manently the source of the power of an impor- 
 tant department of the government. 
 
 History, however, shows us another phase of 
 aristocracy, which does not proceed from the 
 appointment of a divinely sanctioned political 
 head. Such an aristocracy we find in those 
 states which have been governed by a select 
 few, without the co-operation of a body of pop- 
 ular representatives. These have been chiefly 
 small states, like the states of the Netherlands, 
 some of the Italian Republics, many of the 
 republics of antiquity, and a number of the 
 cantons of Switzerland. Among the special 
 conditions favorable to the existence of aristo- 
 cratic governments in these cases were: First, the 
 fact that only a small part of the population 
 were really free, the majority being in Greece, 
 slaves, and in the modern states feudal vassals; 
 second, the absence of the system of representa- 
 tion, which was unknown among the ancients; 
 third, the ignorance of the great body of the 
 people, and their consequent inability to com- 
 6
 
 82 GOVERNMENT OF SWITZERLAND. 
 
 bine for their own advantage. But, in the course 
 of modern progress, all these conditions have 
 been swept away. Slavery and vassalage are 
 gone, except as the latter appears in the alle- 
 giance of employees in great enterprises to their 
 employers; and in place of the ignorant popu- 
 lace of the ancient and mediaeval world, there 
 has appeared a lower stratum of society, suffi- 
 ciently educated to use the means of acquiring 
 information, and eager to proclaim and forcibly 
 urge their own rights, as interpreted by them- 
 selves. Aristocracy of this form having fallen 
 by the removal of its ancient supports, it has been 
 rendered practically impossible in the future, 
 by the introduction of political representation, 
 and by the spread of free public education, 
 which acts, in the first place, as a great leveling 
 force, and in the second place, promotes a suffi- 
 cient degree of intelligence to enable the masses 
 to perceive the advantage they may derive by 
 employing a system of political representation. 
 Aristocracy, then, in either of its historical forms, 
 may be set down as practically outside of the 
 constitutional possibilities of the time towards 
 which we are drifting. 
 
 These and other considerations lead to the 
 conclusion that in the future distribution of 
 power in England, in spite of the English love 
 of aristocracy, the aristocratic element, as such,
 
 DISTRIBUTION OF POWER. 83 
 
 will disappear from the government, as it has al- 
 ready disappeared from the governments of cer- 
 tain other nations. On this point the case of 
 Sweden is significant, because Sweden and Eng- 
 land have followed essentially the same course 
 of political development, the main difference 
 being that class distinctions have been more 
 sharply drawn in Sweden than in England. In 
 England the representatives of the counties and 
 of the cities were united in a single assembly 
 the House of Commons but in Sweden each 
 of these two classes of representatives consti- 
 tuted an assembly by itself. In England the 
 nobles and the clergy joined to form the upper 
 house ; but in Sweden these classes met sepa- 
 rately, and constituted the third and fourth 
 houses of the Swedish Parliament. In the 
 Swedish parliamentary reform of 1866, the aris- 
 tocratic element was set aside, and the national 
 legislature was made to consist of two elective 
 houses, the lower formed by a direct, the upper 
 by an indirect, election. 
 
 If there are reasons which point to the dis- 
 appearance of aristocracy from the governments 
 to which our descendants will pay allegiance, 
 particularly our English descendants, there are 
 still stronger reasons for regarding absolute mon- 
 archy, of the Bourbon type, entirely and forever 
 antiquated. The only form of monarchy which
 
 84 GOVERNMENT OF SWITZERLAND. 
 
 the dominant forces of modern political society 
 do not controvert, is that which, like the Napo- 
 leonic monarchy, has its constitutive in the suf- 
 frages of the nation. And in one view this form 
 of monarchy appears as the legitimate outcome, 
 or ultimate phase, of popular government. 
 However the power in a republic may be distrib- 
 uted, however numerous the checks and bal- 
 ances set up, the results of the governmental 
 activity will never exactly accord with the wishes 
 and expectations of the great body of the elect- 
 ors. It may be a very fortunate circumstance 
 in the long run that this is so ; nevertheless, the 
 fact remains, and comes back to the minds of 
 the voters with ever renewed force, that they are 
 living under a government nominally directed 
 by themselves, of whose results they have every 
 day reason to complain. They feel that some- 
 thing is wrong, and in view of this there arises 
 distrust of those in office. Somebody must 
 have betrayed a trust, or everything would be 
 right. Restricting the officers to specific in- 
 structions is found to be impracticable. From 
 the difficulties of the situation there is, to the 
 muddled mind of the voter, no surer means of 
 escape than to fix upon one man of supreme 
 ability and heavenly intentions, and to give him 
 all power, but make him responsible to the vot- 
 ers. Thus arises the imperial government which 
 appears to have yet a role to play in the world.
 
 DISTRIBUTION OF POWER. 85 
 
 If the experience and historical tendencies of 
 the Aryan race go for anything, our descendants 
 will confine their allegiance to variations of two 
 forms of government : the representative re- 
 public and a monarchy constituted by popular 
 suffrage. The former will almost necessarily 
 obtain in nations where skill in local self-govern- 
 ment has been acquired and maintained in prac- 
 tice. On the other hand, a nation wanting in 
 the traditions and practice of local self-govern- 
 ment will be liable to frequent changes from one 
 form to the other. In France.where certain offi- 
 cers of local government are appointed by the 
 central authority, it is a matter of little moment 
 to the great body of the people whether the cen- 
 tral government is republican .or imperial. The 
 people of New England, however, knowing that 
 a transition from republican to imperial rule 
 would involve the substitution of officers ap- 
 pointed by a central government for their own 
 elected local officers, would not hasten to make 
 the change. The force of the tradition of local 
 self-government in England, and the continuing 
 power of existing local organizations, make it 
 practically necessary for the English, in the work 
 of redistributing their political power, to leave 
 the Napoleonic form of monarchy entirely out 
 of consideration. They, therefore, appear to be 
 limited to some form of a representative repub-
 
 86 GOVERNMENT OF SWITZERLAND. 
 
 lie as the outcome of their reconstructive efforts; 
 and not unlikely the federal form will be found 
 best adapted to the somewhat heterogeneous 
 character of the present British Empire. 
 
 Under the impression which the recent "blood 
 and iron " policy of Prussia has made in the 
 world, it may perhaps be objected that, although 
 Germany has representative institutions, and 
 even universal suffrage, it does not show that 
 drift of power which we have observed partic- 
 ularly in England and in the United States. 
 The objection, however, arises from an imper- 
 fect understanding of the spirit of German his- 
 tory. As it regards the government, the history 
 of Germany is divided into two parts by the 
 Napoleonic wars. Between the middle of the 
 tenth century and the early part of the nine- 
 teenth, Germany was a great feudal empire. It 
 differed from the feudal kingdom of France 
 in the slowness of its development, and in the 
 weakness and final failure of the central power. 
 The feudal bond was not completely broken in 
 Germany until 1806, when Francis II. was com- 
 pelled to lay down the imperial crown. This 
 was the end of one phase of German history. 
 With respect to the imperial government, this 
 phase is marked by a gradual dissolution. The 
 Congress of Vienna, at the close of the Napole- 
 onic wars, opens the constructive period.
 
 DISTRIBUTION OF POWER. 87 
 
 The German States at this time were without 
 any legal bond of union. The work to be done 
 was to take these fragments, each endowed with 
 sovereign power, and mould them into a nation. 
 Since the Congress of Vienna the Germans have 
 been laboring in this undertaking, sometimes 
 with feeble and misguided efforts, sometimes 
 with the mightiest exhibitions of political skill 
 and military force that the world has ever seen. 
 The events of the last seventy years of German 
 history become intelligible only when viewed as 
 steps towards founding a national state. The 
 Germanic Confederation, formed at Vienna to 
 be under the presidency of Austria, was too 
 loose to furnish an efficient central government. 
 It failed, moreover, because it embraced two 
 great powers with incompatible aims. The 
 efforts of 1848-49 were a second attempt at 
 national unity. The failure of this attempt 
 made it clear that a new method must be tried. 
 It was idle to expect all the powers to unite at 
 once. Those of one mind were united in the 
 North German Confederation, which in 1870 
 had been extended so as to embrace all the 
 German States but Austria. The next year 
 the North German Confederation was trans- 
 formed into the German Empire. Through the 
 federal constitution of the empire, the way is 
 at last open to a strong national government.
 
 88 GOVERNMENT OF SWITZERLAND. 
 
 Some reasons for this statement are: First, the 
 fact that the constitution cannot be changed 
 without the consent of Prussia, taken in connec- 
 tion with the fact that it is for the interest of 
 Prussia to have only such changes made as will 
 strengthen the imperial government, as com- 
 pared with the State governments; second, the 
 manifest drift of power towards the center, dur- 
 ing the eighteen years of imperial rule; in a 
 word, the inevitable growth in a federation, 
 when the central government is made strong 
 enough to command the local governments. If, 
 now, the imperial government is to maintain 
 itself, and become in time more thoroughly cen- 
 tralized, it is clear that the Bundesrath, which 
 is composed of ambassadors from the several 
 States, must decline in importance as compared 
 with the Reichstag, which is constituted by uni- 
 versal suffrage. The more centralized the em- 
 pire becomes, the more immediate becomes the 
 emperor's dealing with the Reichstag; and, un- 
 der these circumstances, all the forces that have 
 operated in England to magnify the Commons 
 will operate here, in a greater or less degree, to 
 magnify the Reichstag. Wherefore, although 
 a position similar to that which England has 
 reached may be a long way off for the Germans, 
 it is, nevertheless, the necessary outcome for a 
 government which places in the hands of a
 
 DISTRIBUTION OF POWER. 89 
 
 popular assembly like the Reichstag matters of 
 such vital importance as the national revenues 
 and expenditures. We shall read, therefore, in 
 the history of the German Empire not a new 
 revelation, but a new illustration of the old doc- 
 trine of the distribution of political power. 
 
 In a federal government this question is more 
 complicated than elsewhere, for it involves not 
 only the relation of department to department, 
 but also the relation sustained by the central 
 to the local government. This relation in all 
 conspicuous federal states, except Canada, is 
 essentially that set forth in the tenth amend- 
 ment of the United States Constitution, namely, 
 that the powers not delegated to the general 
 government " by the Constitution, nor prohibited 
 by it to the States, are reserved to the States 
 respectively, or to the people." But in Canada 
 the opposite principle obtains. Article 91 of 
 the British North America Act affirms that 
 " it shall be lawful for the queen, by and with 
 the advice and consent of the Senate and House 
 of Commons, to make laws for the peace, order, 
 and good government of Canada in relation to 
 all matters not coming within the classes of sub- 
 jects by this act assigned exclusively to the 
 legislatures of the provinces." The classes of 
 subjects thus assigned are enumerated in Article 
 92, and are as follows :
 
 90 GOVERNMENT OF SWITZERLAND. 
 
 " I. The amendment from time to time, not- 
 withstanding anything in this act, of the con- 
 stitution of the province, except as regards the 
 office of lieutenant-governor. 
 
 " 2. Direct taxation within the province in 
 order to the raising of a revenue for provincial 
 purposes. 
 
 " 3. The borrowing of money on the sole 
 credit of the province. 
 
 "4. The establishment and tenure of pro- 
 vincial offices, and the appointment and payment 
 of provincial officers. 
 
 "5. The management and sale of the public 
 lands belonging to the province, and of the 
 timber and wood thereon. 
 
 " 6. The establishment, maintenance, and man- 
 agement of public and reformatory prisons in 
 and for the province. 
 
 " 7. The establishment, maintenance, and man- 
 agement of hospitals, asylums, charities, and 
 eleemosynary institutions in and for the prov- 
 ince, other than marine hospitals. 
 
 "8. Municipal institutions in the province. 
 
 "9. Shop, saloon, tavern, and auctioneer, and 
 other licenses, in order to the raising of a rev- 
 enue for provincial, local, or municipal purposes. 
 
 " 10. Local works and undertakings, other 
 than such as are of the following classes: 
 
 "a. Lines of steam or other ships, railways,
 
 DISTRIBUTION OF POWER. 9 1 
 
 canals, telegraphs, and other works and under- 
 takings connecting the province with any other 
 or others of the provinces, or extending beyond 
 the limits of the province. 
 
 " b. Lines of steamships between the province 
 and any British or foreign country. 
 
 " c. Such works as, although wholly situate 
 within the province, are before or after their 
 execution declared by the parliament of Canada 
 to be for the general advantage of Canada or 
 for the advantage of two or more of the prov- 
 inces. 
 
 "11. The incorporation of companies with 
 provincial objects. 
 
 "12. Solemnization of marriage in the prov- 
 ince. 
 
 " 13. Property and civil rights in the province. 
 
 " 14. The administration of justice in the 
 province, including the constitution, mainte- 
 nance, and organization of provincial courts, 
 both of civil and of criminal jurisdiction, and 
 including procedure in civil matters in those 
 courts. 
 
 "15. The imposition of punishment by fine, 
 penalty, or imprisonment for enforcing any law 
 of the province made in relation to any matter 
 coming within any of the classes of subjects 
 enumerated in this section. 
 
 " 1 6. Generally all matters of a merely local 
 or private nature in the province."
 
 92 GOVERNMENT OF SWITZERLAND. 
 
 Through this departure from the general prac- 
 tice of federations the Dominion has " avoided," 
 according to Sir J. A. Macdonald, "the great 
 source of weakness which has been the cause of 
 the disruption of the United States." The es- 
 sential point of this opinion still finds supporters. 
 " In arranging this part of the constitution," 
 says Dr. Bourinot, " its framers had before them 
 the experience of eighty years' working of the 
 federal system of the United States, and were 
 able to judge in what essential and fundamental 
 respects that system appeared to be defective. 
 The doctrine of State sovereignty had been 
 pressed to extreme lengths in the United States, 
 and had formed one of the most powerful argu- 
 ments of the advocates of secession. This doc- 
 trine had its origin in the fact that all powers, 
 not expressly conferred upon the general gov- 
 ernment, are reserved in the constitution to 
 the States. Now in the federal constitution of 
 Canada the very reverse principle obtains, with 
 the avowed object of strengthening the basis of 
 the confederation, and preventing conflict as far 
 as practicable between the provinces that com- 
 pose the Union." 1 
 
 It is to be observed that in forming the tenth 
 amendment of the United States Constitution, 
 the word expressly^ which appears in the second 
 
 'Bourinot, "Parliamentary Procedure and Practice," 81. ,.
 
 DISTRIBUTION OF POWER. 93 
 
 article of the Articles of Confederation, was 
 omitted, thus leaving the general government 
 greater freedom than it would otherwise have 
 had in exercising implied powers. In Mexico, 1 
 Colombia, 2 Venezuela, 3 and the Argentine Re- 
 public,* the field for the discretionary exercise of 
 implied powers is more strictly limited than in 
 the United States; for whatever power is exer- 
 cised by the federal organization in each of 
 these cases, must be expressly, or, as the consti- 
 tution of Colombia provides, "expressly, spe- 
 cially, and clearly" delegated to it. 5 In each 
 of these cases, moreover, the powers of the con- 
 gress are enumerated in a series of clauses after 
 the manner observed in the Constitution of the 
 United States; and in some instances the lan- 
 guage employed is evidently a direct translation 
 of the words of the model. 
 
 The scope of the German imperial govern- 
 ment is limited to the exercise of powers dele- 
 gated to it, and is sufficiently indicated by an 
 enumeration of the subjects that have been 
 turned over to its control. They may be set 
 down under the following heads : 
 
 1 Constitution of Mexico, Art. 117. 
 8 Constitution of Colombia, Art. 16. 
 
 3 Constitution of Venezuela, Art. 90. 
 
 4 Constitution of the Argentine Republic, Art. 104. 
 
 5 "Todos los asuntos de gobierno, cuyo ejercicio no deleguen 
 los estados espresa, especial i daramente al gobierno jeneral, son 
 de la esclusiva competencia de los mismos estados." Art. 16.
 
 94 GOVERNMENT OF SWITZERLAND. 
 
 1. The administration of the imperial finances, 
 especially the customs duties, the imperial taxes, 
 and the emission of funded and unfunded paper 
 money. 
 
 2. Foreign affairs, together with the protection 
 of German trade in foreign countries, and of 
 navigation on the high seas. 
 
 3. The imperial army and navy. 
 
 4. The civil law, criminal law, and judicial 
 procedure; the protection of copyright; pro- 
 visions for the authorization of public docu- 
 ments, and decisions regarding denial of justice. 
 
 5. Surveillance of foreigners and issuing and 
 examining passports. 
 
 6. The press and associations. 
 
 7. The surveillance of the medical and veter- 
 inary professions. 
 
 8. The principles governing the rights of 
 emigration, the poor laws, and laws referring to 
 residence and colonization. 
 
 9. Legislation relation to trade and industry, 
 including insurance and banking; weights, meas- 
 ures, and coinage, and patents for inventions. 
 
 10. Railway matters, and the construction of 
 means of communication by land and water for 
 the purposes of home defense and of general 
 commerce. Rafting and navigation on those 
 waters which are common to several States, and 
 the condition of such waters, as likewise river 
 and other water dues; also navigation signals.
 
 DISTRIBUTION OF POWER. 95 
 
 II. Postal and telegraphic affairs. 
 
 The competence of the empire with respect to 
 these matters was subject to certain limitations: 
 " i. Hamburg and Bremen, for the time being, 
 were excluded from the tariff legislation, as free 
 ports. 2. In Bavaria, Wurtemberg, and Baden, 
 the beer and brandy tax was reserved for the 
 special legislation of these States; and the same 
 was true of the beer tax in the province of Alsace- 
 Lorraine. 3. Bavaria and Wurtemberg man- 
 age independently their postal and telegraphic 
 affairs in accordance with certain principles 
 established by imperial legislation. 4. Both 
 States enjoy, with respect to military affairs, cer- 
 tain exceptional rights. 5. With reference to 
 Bavaria, the legislation relating to residence and 
 colonization has no application, as that relating 
 to railways has only a limited application." ' 
 
 The doctrine of the Swiss constitution on this 
 point is that the cantons are sovereign in so far 
 as their sovereignty is not limited by the federal 
 constitution, and, as such, they exercise all the 
 rights which are not delegated to the federal 
 power. 2 In the Act of Mediation and in the 
 drafts of 1832 and 1833, it was required that the 
 general government should exercise only such 
 powers as were expressly delegated, as was the 
 
 1 De Grais, "Handbuch der Verfassung und Verwaltung in 
 Preussen und dem deutschen Reiche." 11-13. 
 * Article 3.
 
 96 GOVERNMENT OF SWITZERLAND. 
 
 case unde/ the Articles of Confederation in 
 America. But in forming the constitution of 
 1848, the word " expresstment" was omitted, just 
 as the corresponding word had been omitted in 
 forming the present Constitution of the United 
 States, and with respect to this point the rule of 
 these two constitutions is the same. The power 
 of the general government of Switzerland, like 
 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 per- 
 formance of the duties devolving upon it." 1 
 
 turner, I, 178.
 
 CHAPTER IV. 
 
 THE LEGISLATURE. 
 
 OF the several governmental departments in a 
 federal state, the legislative is the most con- 
 spicuous, although co-ordinate with the executive 
 and judicial departments, and deriving its au- 
 thority from a source of power common to all. 
 In the federal state, "there are not only organ- 
 ized individual States but also a completely or- 
 ganized central and common state," l and the 
 legislature of the central and common state is 
 so constituted as to take account of the whole 
 body of the people who make up the nation, 
 and of the individual States within the larger or- 
 
 1 Bluntschli, "Geschichte des schw. Bundesrechtes." I, 
 562. The distinctive characteristics of a federal government, 
 as indicated by Arosemena, are: (i) "That the entities now 
 united may have had an individual life previously, which they 
 preserve while they delegate to a government general and com- 
 mon the functions which are necessary to constitute nationality; 
 (2) that the sectional government be maintained independent of 
 the national and common government, both in its formation 
 and in its development." "Estudios Constitucionales," 1,199. 
 
 7 (97)
 
 98 GOVERNMENT OF SWITZERLAND. 
 
 ganism. Although the citizens of the whole 
 nation are represented in the lower house, yet 
 they are represented not as one body, but as 
 several individual groups whose geographical 
 limits are the limits of the several States. When 
 it is provided that there shall be one representa- 
 tive for every fifty thousand inhabitants, and for 
 each fraction of this number not less than twenty 
 thousand, as in Colombia, or for each twenty-five 
 thousand and fraction of at least twelve thou- 
 sand, as in Venezuela, or for each twenty thou- 
 sand and fraction of at least ten thousand, as in 
 the Argentine Republic and Switzerland, or for 
 each forty thousand and each fraction of at least 
 twenty thousand, as in Mexico, or for each one 
 hundred thousand and fraction of at least fifty 
 thousand, as in the German Empire, the number 
 to be divided by the number required for each 
 representative is the number of the inhabitants 
 of each of the several States, and the fraction is 
 the remainder after such division. 1 Thus the 
 
 1 Under the Constitution of the United States "the number 
 of Representatives shall not exceed one for every thirty thou- 
 sand, but each State shall have at least one Representative." 
 Awaiting the first enumeration of the inhabitants, which was 
 required to be made "within three years after the first meeting 
 of the Congress, '' an apportionment of the Representatives to 
 be elected was made among the several States in such a manner 
 that New Hampshire was entitled to choose three, Massa- 
 chusetts eight, Rhode Island and Providence Plantations one, 
 Connecticut five, New York six, New Jersey four, Pennsylvania
 
 THE LEGISLATURE. 
 
 99 
 
 individuality of the States is not set aside even 
 in the organization of that legislative body 
 which stands as the direct representative of the 
 people. 
 
 The conditions of the suffrage under which 
 the members of the lower house are elected in 
 the several countries already considered, are (i) 
 determined in a general way by the federal con- 
 stitution, leaving details to be fixed by law, as 
 in Switzerland, Canada, and the German Em- 
 pire, or (2) left by that instrument to be deter- 
 mined by federal legislation, as in Mexico and 
 the Argentine Republic, of (3) left to the free 
 determination of the several States, as in Colom- 
 bia, Venezuela, and the United States. Under 
 the Swiss constitution, elections for members of 
 the lower house are direct, and are held in fed- 
 eral districts that are subdivisions of the cantons. 
 
 eight, Delaware one, Maryland six, Virginia ten, North Caro- 
 lina five, South Carolina five, and Georgia three (Art. I, Sec. 2). 
 The ratio of representation in the House of Representatives has, 
 however, been changed with each successive census, except the 
 second, as shown by the following tabular account: 
 
 uui i/oy tu i/y^i ittuuiumg iu ^unbuiuuuu. 
 
 1792 to 1803 based on 1st Census 1790. 
 
 JU,UV*J 
 
 33,000 
 
 1803 to 1812 
 
 2d 
 
 1800. 
 
 33,000 
 
 1812 to 1823 
 
 3d 
 
 1810. 
 
 35.000 
 
 1823 to 1832 
 
 4th 
 
 1820 
 
 40,000 
 
 1832 to 1843 
 
 5th 
 
 1830. 
 
 47,700 
 
 1843 to 1852 
 
 6th 
 
 1840. 
 
 70,680 
 
 1852 to 1863 
 
 7th 
 
 1850. 
 
 93,423 
 
 1863 to 1872 
 
 8th 
 
 1860. 
 
 127,381 
 
 1872 to 1882 
 
 9th 
 
 1870. 
 
 131,425 
 
 1882 to 
 
 loth 
 
 1880. 
 
 154,325
 
 IOO GOVERNMENT OF SWITZERLAND. 
 
 Every male Swiss twenty years of age who has 
 not been deprived of the right of active citizen- 
 ship by the canton in which he resides, has the 
 right to vote. Nevertheless, the federal legis- 
 lature may regulate in a uniform manner the 
 exercise of this right. Any layman having the 
 right to vote is eligible to membership in this 
 house. 
 
 In the British North America Act it was 
 provided that "until the Parliament of Canada 
 otherwise provides, all laws in force in the 
 several provinces at the union relative to the 
 following matters or any of them, namely, 
 the qualifications and disqualifications of per- 
 sons to be elected or to sit or vote as members 
 of the House of Assembly or Legislative As- 
 sembly in the several provinces, the voters 
 at elections of such members, the oaths to be 
 taken by voters, the returning officers, their 
 powers and duties, the proceedings at elections, 
 the periods during which elections may be 
 continued, the trial of controverted elections, 
 and proceedings incident thereto, the vacat- 
 ing of seats of members, and the execution of 
 new writs, in case of seats vacated otherwise 
 than by dissolution shall respectively apply to 
 elections of members to serve in the House of 
 Commons for the same several provinces." ' But 
 at present the elections to the House of Com- 
 
 1 Article 41.
 
 THE LEGISLATURE. 101 
 
 mons are carried on under the provisions of 
 the Dominion Elections Act, 1874, as amended 
 by the acts of 1878 and 1882, and of the Elect- 
 oral Franchise Acts of 1885 and I886, 1 the pro- 
 vincial regulations temporarily adopted by the 
 British North America Act being thus super- 
 seded by this subsequent legislation. Voters 
 under the existing law must be British sub- 
 jects by birth or naturalization, twenty-one years 
 of age, and have a certain property qualification. 
 
 According to the constitution of the German 
 Empire, " the members of the Reichstag shall be 
 elected by universal suffrage, and by direct secret 
 ballot," * and until further legislation the elec- 
 toral law for the Reichstag of the North German 
 Union, of May 31, 1869, was accepted as the 
 electoral law of the empire. By this law the 
 voter must be at least twenty-five years old, in 
 the full enjoyment of civil rights, and, at the time 
 of votiflg, not in the service of the army or 
 navy. 3 
 
 In Mexico, citizenship belongs to those who 
 are Mexicans either by birth or naturalization, 
 and who have completed their eighteenth year 
 
 1 Pope, "Dominion Elections Act, 1874," etc., Ottawa, 1887. 
 
 ' 2 Translations of this constitution and of this law are printed 
 in papers relating to Foreign Relations of the United States, 
 transmitted to Congress, with the Annual Message of the 
 President, 1877, pp. 210, 212. 
 
 'Article 20.
 
 162 GOVERNMENT OF SWITZERLAND. 
 
 of age, if married, or their twenty-first year, if 
 unmarried, and who have an honorable means of 
 obtaining a livelihood. Among the prerogatives 
 of citizenship enumerated by the constitution are 
 the privileges of voting at the popular elections 
 and of being voted for for all elective offices, and 
 of being appointed to any other employment or 
 commission, provided the qualifications estab- 
 lished by law for such office, employment, or 
 commission have been met. 1 By the vote of 
 Mexican citizens who have fulfilled these condi- 
 tions the Chamber of Deputies is constituted; 
 and, in accordance with Article 55, "the election 
 of deputies shall be indirect in the first degree, 
 by a closed ballot, under conditions prescribed 
 by the electoral law." The States are divided 
 into electoral districts of forty thousand inhab- 
 itants each, the fraction of at least twenty thou- 
 sand electing a deputy, like a complete district; 
 but in case the fraction is less than this number, 
 the electors are added to the district whose capi- 
 
 1 Art. 34. Son ciudadanos de la repiiblica todos los que, 
 teniendo la calidad de mejicanos, reunan ademas las siguientes: 
 
 1. Haber cumplido diez i ocho aiios siendo casados, 6 vein- 
 tiuno si nolo son; 
 
 2. Tener un modo honesto de rivir. 
 
 Art. 35. Son prerogativas del ciudadono: 
 
 1. Votar en las elecciones populares; 
 
 2. Poder ser votado para todos los cargos de eleccion popular, 
 i nombrado para cualquier otro empleo 6 comision, teniendo 
 las calidades qu. la lei establezca.
 
 THE LEGISLATURE. 103 
 
 tal is nearest. The municipalities of the dis- 
 tricts are divided into sections of five hundred 
 inhabitants, each one of which elects an elector. 
 The electors of the several sections form an 
 electoral college, which meets in the capital 01 
 the respective district. This electoral body then 
 elects one deputy, votes for a president of the 
 Republic, for the members of the supreme court 
 and four supernumeraries, and for an attorney- 
 general. The candidate for deputy who re- 
 ceives an absolute majority of the votes of the 
 college is elected; but if no one receive such a 
 majority on the first ballot, a second ballot is 
 taken on the two who have received the relative 
 majority. 
 
 While in Mexico the members of the lower 
 house are elected by an indirect vote, one mem- 
 ber from each of the electoral districts into 
 which the States are divided, in the Argentine 
 Republic they are "elected directly by the peo- 
 ple of the provinces and of the capital, which 
 for this purpose are considered as electoral dis- 
 tricts of a single state, and by a simple plurality 
 of votes." The representative, however, must be 
 twenty- five years old, have been four years a 
 citizen, and have been born in the province which 
 elects him, or have resided in it for two years 
 immediately preceding the election. The con- 
 stitutions of Colombia and Venezuela assert in
 
 104 GOVERNMENT OF SWITZERLAND. 
 
 almost the same words that "it belongs to the 
 States to determine the manner of making the 
 appointment of senators and representatives," 
 thus leaving the matter wholly in the hands of 
 the law-making power of the several States. 1 
 Under the Constitution of the United States, the 
 power of the individual State in this regard is 
 somewhat more restricted, inasmuch as the State 
 is debarred from imposing upon voters for con- 
 gressmen any conditions or qualifications dif- 
 ferent from those " requisite for electors of the 
 most numerous branch of the State legislature." 2 
 It is still further restricted by the fifteenth 
 amendment to the Constitution, which provides 
 that "the right of citizens of the United States 
 to vote shall not be denied or abridged by the 
 United States or by any State on account of 
 race, color, or previous condition of servitude." 
 But, aside from these restrictions, the power of 
 the State is complete. 
 
 In the constitution of the upper house, or 
 senate, of a federal state, not only are the States 
 as political societies recognized, .but generally 
 also the organism itself in each. It is a rule 
 
 'Article 40 of the Constitution of Colombia is as follows: 
 "Corresponde 1 los eslados determinar la manera de hacer el 
 nombramiento de sus senadores i representantes;" and Article 
 19 of the Constitution of Venezuela: "Los estados determinaran 
 la manera de hacer el nombramiento de senadores i diputados." 
 
 2 Constitution of the United States, Art. I, Sec. 2.
 
 THE LEGISLATURE. 10$ 
 
 moreover, but a rule with certain exceptions, 
 that the members of the upper house receive 
 their appointments from the governments of the 
 subordinate States, the manner of appointment 
 often being left to the will of the State. In 
 Switzerland, the manner of appointment, the 
 term of service, and the compensation are left to 
 the determination of the canton. If in the 
 purely democratic cantons the members of the 
 Council of States, or Senate, are elected by the 
 popular assemby of the canton, it may still be 
 regarded as an appointment by the government, 
 since the popular assembly holds essentially the 
 same position in the governmental organization 
 of the canton that the legislature performing the 
 same office holds in the governmental organi- 
 zation of a State in the American Union. In the 
 other cantons, the senators are elected by the 
 Great Council. The Argentine Republic follows 
 a rule in most respects like that observed in the 
 United States. "The Senate is composed of 
 two senators from each province, elected by their 
 legislatures by a plurality of votes; and two from 
 the capital, elected according to the form pre- 
 scribed for the election of the president of the 
 nation." 1 The Mexican constitution also pro- 
 vides not only for two senators from each of the 
 States, but at the same time for two from the 
 
 1 The Argentine Constitution, Art. 46.
 
 106 GOVERNMENT OF SWITZERLAND. 
 
 federal district; and with reference to their 
 election, it provides that " the election of sena- 
 tors shall be indirect in the first degree. The 
 legislature of each State shall declare elected the 
 person who shall have obtained the absolute 
 majority of all the votes cast," and the electoral 
 college which votes for the senators is the body 
 which votes for the deputies, the president of the 
 republic, and the members of the supreme court. 
 
 In Colombia and Venezuela, the constitution 
 simply leaves the manner of electing or appoint- 
 ing the senators to the determination of the 
 States. The members of the Federal Council 
 of the German Empire, if we may view this body 
 as the upper house of a federal state, are ap- 
 pointed by the governments of the subordinate 
 States; they, moreover, serve these governments 
 in the Federal Council, in the capacity of am- 
 bassadors rather than as representatives, and 
 vote according to instructions. But in Canada, 
 under the British North America Act, the sena- 
 tors are appointed by the governor-general in 
 the queen's name, and hold their positions for 
 life. The appointee must, however, be able to 
 comply with the following qualifications: 
 
 " I. He shall be of the full age of thirty years; 
 
 "2. He shall be either a natural-born subject 
 of the queen, or a subject of the queen natural- 
 ized by an act of the parliament of Great Britain,
 
 THE LEGISLATURE. 1 07 
 
 or of the parliament of the United Kingdom of 
 Great Brifain and Ireland, or of the legislature 
 of one of the provinces of Upper Canada, Lower 
 Canada, Canada, Nova Scotia, or New Bruns- 
 wick, before the union, or of the parliament of 
 Canada after the union; 
 
 " 3. He shall be legally or equitably seized as 
 of freehold for his own use and benefit of lands or 
 tenements held in free and common socage, or 
 seized or possessed for his own use and benefit of 
 lands or tenements held in franc-alleu or in ro- 
 ture.within the province for which he is appointed, 
 of the value of four thousand dollars, over and 
 above all rents, dues, debts, charges, mortgages, 
 and incumbances due or payable out of, or 
 charged on or affecting the same; 
 
 "4. His real and personal property shall be 
 together worth four thousand dollars over and 
 above his debts and liabilities; 
 
 "5. He shall be resident in the province 
 for which he is appointed; 
 
 "6. In the case of Quebec, he shall have his 
 real property qualification in the electoral divis- 
 ion for which he is appointed, or shall be resi- 
 dent in that division." ' 
 
 With these qualifications for senatorship in 
 Canada may be compared the requirements set 
 by the Constitution of the United States, in which 
 
 1 The British North America Act, 1867, Art. 23.
 
 108 GOVERNMENT OF SWITZERLAND. 
 
 it is provided that "no person shall be a sen- 
 ator who shall not have attained to the age of 
 thirty years, and been nine years a citizen of 
 the United States, and who shall not, when 
 elected, be an inhabitant of that State for which 
 he shall be chosen." 1 The constitutions of 
 Colombia and the empire make no provisions as 
 to the age of senators and members of the Fed- 
 eral Council. But in the other states under 
 consideration, where any voter may be a senator, 
 the age of thirty is a common requirement. Be- 
 sides the requirement of age, the other qualifica- 
 tions for the position of senator in Mexico are 
 the same as those specified for a member of the 
 lower house of the federal congress. In the 
 Argentine Republic, he must, moreover, have 
 been six years a citizen of the nation, be in re- 
 ceipt of an annual income of two thousand dol- 
 lars, and have been born in the province which 
 elects him, or have resided in it for two years 
 immediately preceding the election. In Vene- 
 zuela, however, the only requisite, aside from 
 that of age, is that he be a citizen of Venezuela 
 by birth. 
 
 In the senates of the federal republics, the 
 political equality of the States is recognized, 
 each State sending two senators, except Colom- 
 bia, where each State is represented in the 
 
 1 Constitution of the United States, Art. I, Sec. 3.
 
 THE LEGISLATURE. 109 
 
 senate by three members. In Switzerland each 
 half-canton elects one senator. Each of these 
 nations in its struggle for an independent exist- 
 ence has associated the notion of equality with 
 its ideal of liberty. But Canada and the Ger- 
 man Empire have never known such a struggle, 
 and have adhered to their monarchial prepos- 
 sessions in favor of inequality. In constituting 
 their upper houses, moreover, the political ine- 
 quality of the States has been maintained. In 
 Canada the number of senators is seventy-eight. 
 Of these, twenty-four are for Ontario, twenty- 
 four for Quebec, ten for Mpva Scotia, ten for 
 New Brunswick, three for Manitoba, and three 
 for British Columbia. "In case of the admission 
 of Newfoundland, the normal number of sena- 
 tors shall be seventy-six, and their maximum 
 number shall be eighty-two." 1 The Federal 
 Council of the German Empire comprises fifty- 
 eight members, of whom Prussia sends seven- 
 teen, Bavaria six, Saxony and Wiirtemberg four 
 each, Baden and Hesse three each, Mecklenburg- 
 Schwerin and Brunswick two each, and each of 
 the other States one. Although Prussia has 
 seventeen members to Bavaria's six, yet her 
 superiority here is not in proportion to her 
 superiority in population ; for while she has less 
 than three times as many members as Bavaria 
 x The British North America Act, 1867, Art. 147.
 
 1 10 GOVERNMENT OF SWITZERLAND. 
 
 in the Federal Council, she has more than five 
 times as many inhabitants. Prussia has, more- 
 over, less than five times as many members as 
 Saxony, but more than nine times as many in- 
 habitants. In a word, although the smaller 
 States have not the same number of members 
 in the Federal Council as the larger, yet they 
 have a larger membership in proportion to their 
 population. The terms for which the members 
 of the two houses are elected in the several fed- 
 erations vary from two to nine years, of course 
 not taking into account the life service of the 
 appointed Canadian senators. In the Argentine 
 Republic and the United States, the senators are 
 elected for a very much longer period than the 
 members of the lower house. In the former state, 
 the senatorial term is nine years, while the repre- 
 sentatives are elected for a term of four years, 
 which may be compared with the respective 
 terms of six and two years in the United States. 
 But in Mexico, Switzerland, and Venezuela, the 
 senators and representatives hold office for equal 
 terms: two years in Mexico and Venezuela, and 
 three years in Switzerland. Three years is also 
 the term of election for the Reichstag, but the 
 members of the Federal Council serve according 
 to the pleasure of the governments which they 
 represent. The Reichstag, however, like the 
 Canadian House of Commons, which is elected
 
 THE LEGISLATURE. Ill 
 
 for a period of five years, may be dissolved be- 
 fore the expiration of the term set by law for its 
 duration. 
 
 In democratic Switzerland, the constitution 
 places certain restrictions on the election of of- 
 ficers of the legislative assemblies, with the view 
 of distributing the honor and power attaching to 
 the positions. The National Council, or lower 
 house, elects from its members " for each regular 
 or extra session a president and a vice-president. 
 The member who has been president during one 
 regular session cannot, at the following regular 
 session, occupy this position or that of the vice- 
 president. Nor can the same person be vice- 
 president during two consecutive regular ses- 
 sions." 1 In the Swiss Senate, the president and 
 vice-president are elected under the same con- 
 ditions as the officers of the lower house, but 
 " neither the president nor the vice-president can 
 be elected from the senators of the canton from 
 which the president was chosen for the regular 
 session immediately preceding. Nor can vice- 
 presidents for two consecutive regular sessions 
 be chosen from the senators of the same canton." 2 
 In the elections of both houses the president 
 votes as the other members, and, moreover, de- 
 cides in case of a tic. But in the less democratic 
 United States, the House of Representatives 
 
 1 Federal Constitution of Switzerland, Art. 78. 
 2 Ibid., Art. 82.
 
 112 GOVERNMENT OF SWITZERLAND. 
 
 elects its speaker without any of those restric- 
 tions which are imposed in Switzerland ; so that 
 whatever power may be exercised through the 
 speaker may be wielded by one State for a long 
 series of years. But the Senate has no voice in 
 the choice of its speaker, inasmuch as the vice- 
 president of the United States is the president 
 of the Senate. He has no vote, however, except 
 in case of a tie. 
 
 In the organization of its legislative assemblies 
 Canada follows more or less closely the practice 
 of the English Parliament. " The speaker of the 
 Senate is appointed by a commission under the 
 great seal." 1 In the words of the British North 
 America Act, "the governor-general may from 
 time to time, by instrument under the great seal 
 of Canada, appoint a senator to be speaker of 
 the Senate, and may remove him and appoint 
 another in his stead." 2 The speaker of the Ca- 
 nadian House of Commons is elected by the 
 house with ceremonies similar to those which 
 accompany the election of a speaker of the Com- 
 mons of England. 3 
 
 With respect to the payment of the members 
 of federal legislatures, a varied practice prevails. 
 In the German Empire there is a constitutional 
 
 'Bourinot, " Parliamentary Procedure and Practice," 157. 
 2 Article 34. 
 
 3 Bourinot, "Parliamentary Procedure and Practice," 224- 
 230.
 
 THE LEGISLATURE. 113 
 
 provision which affirms that "the members of 
 the Reichstag shall not be allowed to draw any 
 salary or be compensated as such." 1 The mem- 
 bers of the Bundesrath, however, in this regard 
 are subject to such conditions as the individual 
 States may see fit to impose. But in Switzer- 
 land, the members of the lower house are paid 
 out of the federal treasury, while those of the 
 Senate, or Council of States, are paid by the 
 cantons. In the majority of cases, as in the 
 United States, Canada, and the South American 
 federations, both houses are paid from the funds 
 of the general government. The usage in 
 Canada is a wide departure from the practice of 
 England, where the members of neither house 
 receive pay. In the Dominion, " the members 
 of both houses receive a sessional indemnity, 
 besides a traveling allowance, and forfeit a cer- 
 tain sum for every day of absence from their 
 duties in the house." 2 
 
 As already indicated, the federal government 
 of Switzerland deals only with such subjects as 
 are placed under its control by the constitution, 
 and of these all are considered by the two houses 
 of the legislature, except those which have been 
 relegated to some other federal authority. A list 
 of the subjects which fall within the competence 
 
 1 Article 32. 
 
 2 Bourinot, " Parliamentary Procedure and Practice," 146. 
 
 8
 
 114 GOVERNMENT OF SWITZERLAND. 
 
 of the federal legislature is given in the eighty- 
 fifth article of the constitution. It embraces 
 the following: 
 
 1. Laws on the organization and mode of 
 electing the federal authorities; 
 
 2. Laws and resolutions on matters which the 
 constitution places in federal hands; 
 
 3. The salary and indemnity of the members 
 of the federal government; the creation of per- 
 manent offices, and the determination of the sal- 
 aries attaching to them; 
 
 4. The election of the Federal Council, the 
 Federal Tribunal, and the Chancellor, also the 
 commander-in-chief of the federal army. Fed- 
 eral legislation may confer upon the Federal 
 Assembly the right to make and confirm other 
 elections; 
 
 5. Alliances and treaties with foreign states 
 as well as the approval of the treaties of the 
 cantons among themselves or with foreign 
 states; yet the treaties of the cantons are not 
 brought before the Federal Assembly unless 
 complaints are raised by the Federal Council or 
 another canton; 
 
 6. Measures to provide againt danger from 
 without, as also to maintain the independence 
 and neutrality of Switzerland; making war 
 and peace; 
 
 7. The guarantee of the constitutions and the
 
 THE LEGISLATURE. 115 
 
 territory of the cantons ; intervention in conse- 
 quence of this guarantee ; measures for the inter- 
 nal security of Switzerland, for the maintenance 
 of tranquillity and order; amnesty and the right 
 of pardon; . 
 
 8. Measures to insure respect for the federal 
 constitution, to make effective the guarantee of 
 the cantonal constitutions, as well as those meas- 
 ures which have for their end the fulfillment of 
 federal duties; 
 
 9. The control of the federal army; 
 
 10. The determination of the annual budget. 
 The approval of the public expenditures, and 
 resolutions authorizing loans; 
 
 1 1. The supreme control of the administra- 
 tion and the federal courts ; 
 
 12. Charges against the decisions of the fed- 
 eral council concerning administrative contests 
 (Art. 113); 
 
 13. Questions of jurisdiction between federal 
 authorities; 
 
 14. The revision of the federal constitution. 
 
 This list is not to be taken as a strictly ex- 
 haustive indication of the powers of the Federal 
 Assembly. In this respect it may be likened 
 to the eighth section of the first article of the 
 Constitution of the United States. It appears, 
 however, from this enumeration that the Federal 
 Assembly exercises not only legislative power,
 
 Il6 GOVERNMENT OF SWITZERLAND. 
 
 but also supervisory (i i ), executive (8, 9, 10), 
 and judicial (12, 13) power; but the judicial 
 functions of the Federal Assembly at present 
 are less extensive than those enjoyed by this 
 body under the constitution of 1848. 
 
 According to the constitution, the two houses 
 of the legislature are required to assemble in 
 ordinary session once each year, on a day fixed 
 by law. Still it has become customary for them 
 to assemble regularly for longer meetings in 
 June and December, and besides to hold shorter 
 sessions whenever the business may require it. 1 
 The extra sessions are held at the call of the 
 Federal Council, or on the demand of a fourth 
 of the members of the lower house, or on that 
 of five cantons. 2 Ordinarily each house sits 
 separately, but for the purpose of electing the 
 officers mentioned in Art. 85, Sec. 4, and for 
 exercising the right of pardon, or deciding in 
 cases of disputed jurisdiction, the two houses 
 assemble in joint session, the president of the 
 lower house presiding, and decisions are deter- 
 mined by the majority of the members of the 
 two houses voting. The initiative belongs to 
 each house, to each individual member, and also 
 to the cantons. The meetings are generally 
 public. The members of both houses vote 
 without instructions, and enjoy the usual privi- 
 
 !Von Orelli, 32. 
 'Article 86.
 
 THE LEGISLATURE. II? 
 
 leges and immunities of members of representa- 
 tive bodies. The quorum in each house con- 
 sists of a majority of all the members, and 
 measures are adopted by an absolute majority 
 of those voting. In passing laws, decrees, and 
 resolutions, each house has a veto on the action 
 of the other; in other words, in order to reach 
 a positive decision the two bodies must be in 
 accord. But such agreement is not adequate in 
 all cases to the establishment of a law. When- 
 ever it is demanded by 30,000 active citizens, or 
 by eight cantons, the federal law passed by the 
 two houses must be submitted to the people to 
 be adopted or rejected by them. This is also 
 the case with federal resolutions which have a 
 general bearing, and which are not regarded as 
 urgent. 1 It is left to federal legislation to de- 
 termine what is necessary with respect to the 
 form and the times for the popular voting. 2 
 
 In June, 1874, a few days after the adoption 
 of the amended constitution, a federal law was 
 passed, making provision for carrying out the 
 principle of referendum, which had been estab- 
 lished by Art. 89. 
 
 According to this provision, laws and resolu- 
 tions, on which a popular vote might be de- 
 manded, were to be published immediately after 
 their passage, and copies were to be sent to the 
 
 1 Article 89. 
 'Article 90.
 
 Il8 GOVERNMENT OF SWITZERLAND. 
 
 governments of the several cantons. Through 
 the cantons they were then to be brought to the 
 attention of the communes. It was, moreover, 
 required that the demands for a popular vote 
 should be presented to the Federal Council in 
 writing within ninety days after the passage of 
 the law or resolution in question. Every effect- 
 ive demand had to be signed by the citizen 
 making it, signing by proxy being by law for- 
 bidden. If at the expiration of the ninety days 
 indicated, the demand was found to have been 
 made in the proper manner by 30,000 voters, 
 the Federal Council fixed a day for taking the 
 popular vote. The voting day was required to 
 be at least four weeks later than the day on 
 which the Federal Council took action deter- 
 mining it. The arrangements for taking the 
 vote were then made by the cantons. The re- 
 ports of the results of the voting, as made for 
 each commune, embraced the number of those 
 entitled to vote, the number of those who had 
 voted, the number accepting, and. the number 
 rejecting, the measure. These original certifi- 
 cates were sent to the Federal Council. If there 
 were neither 30,000 voters nor eight cantons 
 demanding the referendum, or if, in case the 
 popular vote was taken and the proposition of 
 the legislature was accepted, the law was then 
 published in the official list and its execution 
 ordered.
 
 THE LEGISLATURE. lip 
 
 During the first twelve years after the passage 
 of this law, between 1874 and 1886, the federal 
 legislature passed 113 laws and resolutions which 
 were capable of being submitted to the refer- 
 endum. Of these only 19 were subjected to the 
 popular vote, and of these last 13 were rejected 
 and 6 adopted. 
 
 The strong opposing views, which are held in 
 Switzerland regarding the expediency of the 
 referendum, indicate that this is one of the feat- 
 ures of the government which is open to fut- 
 ure discussion. On the one hand, it may be 
 claimed that the representative system is of su- 
 preme importance, and that the referendum is 
 inconsistent with it, and, if carried out, will lead 
 to its subversion. On the other hand, it is as- 
 serted that "the combination of representative 
 institutions, with the direct exercise of popular 
 sovereignty, is well calculated to promote the 
 welfare of a people occupying the peculiar po- 
 sition in which the Swiss are placed. The dis- 
 cipline of self-government in the commune, and 
 the training afforded by an effective system of 
 education, have qualified them for the practice 
 of direct democracy in the cantons and in the 
 Confederation. The chief drawback of the ref- 
 erendum consists in the possible diminution of 
 the feeling of responsibility in the members of 
 the representative assemblies. That disadvan-
 
 120 GOVERNMENT OF SWITZERLAND. 
 
 tage, however, is amply outweighed by the edu- 
 cative effect which the system exercises on the 
 great bulk of the citizens, by disposing them to 
 recognize the necessity for the careful discharge 
 of the duties involved in their rights, and by 
 inspiring them with constant solicitude for the 
 well-being of the state to which they belong." l 
 
 1 Westminster Review, Feb., 1888, p. 213.
 
 CHAPTER V. 
 THE EXECUTIVE; 
 
 THE development of a federal government from 
 a loose confederacy is attended by the growth of 
 the executive as a separate department of the 
 state. In the United States before 1787, and in 
 Switzerland before 1848, the legislative and the 
 executive powers were vested in the same body. 
 Under the organization of existing federal states 
 the executive exists as a separate department of 
 government, and in the federal republics as a 
 department separate but co-ordinate with the 
 judicial and legislative departments. Although 
 the existing federal governments are brought 
 together into a single class, they are, nevertheless, 
 marked by wide variations with respect to the 
 details of organization. These variations are as 
 conspicuous, perhaps, with reference to the 
 executive department as any other. In Canada 
 and the German Empire, the head of the execu- 
 tive department is constituted by the right of 
 inheritance; while in the United States, Mexico, 
 
 (12!)
 
 122 GOVERNMENT OF SWITZERLAND. 
 
 Colombia, Venezuela, the Argentine Republic, 
 and Switzerland, he holds his position by virtue 
 of either a direct or an indirect election. 
 
 "The executive government and authority of 
 and over Canada" is vested in the queen, and 
 is consequently subjected to the law of succession 
 prevailing in England. The direct agent of the 
 queen in exercising this government and au- 
 thority in the dominion is a governor-general, 
 appointed by letters-patent under the great 
 seal. "His jurisdiction and powers are defined 
 by the terms of his commission, and by the royal 
 instructions which accompany the same. He 
 holds office during the pleasure of the Crown, 
 but he may exercise his functions for at least six 
 years from the time he has entered on his duties. 
 In all his communications with the imperial gov- 
 ernment, of which he is an officer, he addresses 
 the secretary of state for the colonies, the con- 
 stitutional avenue through which he must ap- 
 proach the sovereign." ' On entering upon his 
 duties, he takes "the necessary oaths of alle- 
 giance and office before the chief justice, or any 
 other judge of the supreme court of the domin- 
 ion," and causes his commission to be formally 
 read. 2 He " is authorized, among other things, 
 to exercise all powers lawfully belonging to the 
 queen,with respect to the summoning,proroguing, 
 
 1 Bourinot, "Parliamentary Procedure and Practice," 49. 
 50.
 
 THE EXECUTIVE. 123 
 
 or dissolving parliament; to ad minister the oaths 
 of allegiance and office; to transmit to the im- 
 perial government copies of all laws assented to 
 by htm or reserved for the signification of the 
 royal assent; to administer the prerogative of 
 pardon; to appoint all ministers of state, judges, 
 and other public officers, and to remove or sus- 
 pend them for sufficient cause. He may also 
 appoint a deputy or deputies to exercise certain 
 of his powers and functions. He may not leave 
 the dominion upon any pretense whatsoever 
 without having first obtained permission to do 
 so through one of the principal secretaries of 
 state. In case of the death, incapacity, removal 
 or absence from Canada of the governor-general, 
 his powers are vested in a lieutenant-governor 
 or administrator appointed by the queen, under 
 the royal sign-manual; or, if no such appoint- 
 ment has been made, in the senior officer in 
 command of the imperial troops in the domin- 
 ion." ' 
 
 The president of the German federation is the 
 King of Prussia, who bears the title of German 
 Emperor. " He shall represent the empire 
 among nations, declare war, and conclude peace 
 in the name of the same, enter into alliances and 
 other conventions with foreign countries, accredit 
 ambassadors and receive them. For a declara- 
 
 1 Bourinot, 51 ; British North America Act, Articles 9-16.
 
 124 GOVERNMENT OF SWITZERLAND. 
 
 tion of war m the name of the empire the con- 
 sent of the Bundesrath shall be required, except 
 in case of an attack upon the territory of the 
 confederation or its coasts." Treaties with 
 foreign powers, made by the emperor and re- 
 lating to matters under the supervision of the 
 imperial legislature, require the ratification of 
 the Bundesrath and the approval of the Reichs- 
 tag to render them valid. 1 Such authority as 
 is here vested in the emperor for determining 
 foreign relations, belongs, in the government of 
 Canada, to the British Crown. But, like the 
 governor-general, the emperor has the power of 
 summoning, proroguing, or dissolving the diet 2 
 To him belongs " the right to prepare and pub- 
 lish the laws of the empire and the surveillance 
 of their execution." 5 He shall also "appoint 
 the officers of the empire, require them to take 
 the oath of allegiance, and dismiss them when 
 necessary." * Moreover, if any State of the 
 empire shall not fulfill its constitutional duties 
 to the empire, proceedings may be instituted 
 against it by execution, "and this execution shall 
 be ordered by the Bundesrath, and enforced by 
 the emperor." 5 
 
 1 Constitution of the German Empire, Art. II. 
 
 2 Ibid., Art. 12. 
 z lbid. t Art. 17. 
 4 Ibid., Art. 18. 
 * Ibid., Art. 19.
 
 THE EXECUTIVE. 125 
 
 Although the president in each of the Ameri- 
 can federal republics is elected, yet no two of 
 these states have the same method of election. 
 The method established by the Constitution of 
 the United States is set forth in the second 
 clause of Article 2, and in the Twelfth Amend- 
 ment: "Each State shall appoint, in such man- 
 ner as the legislature thereof may direct, a 
 number of electors equal to the whole number 
 of senators and representatives to which the 
 State may be entitled in the Congress. " The 
 manner of appointment was not determined by 
 the constitution, but left to the legislature of 
 each State. At first they were " chosen in four 
 different modes, namely, by joint ballot of the 
 State legislatures, by a concurrent vote of the 
 two branches of the State legislature, by the peo- 
 ple of the State voting by general ticket, and 
 by the people voting in districts." 1 The existing 
 practice is a combination of the last two modes. 
 "The electors shall meet in their respective 
 States, and vote by ballot for president and 
 vice-president, one of whom, at least, shall not 
 be an inhabitant of the same State with them- 
 selves ; they shall name in their ballots the per- 
 son voted for as president, and in distinct bal- 
 lots the person voted for as vice-president." 
 The ballots shall be counted by the president of 
 
 1 Lanman's " Directory of Congress," 427.
 
 126 GOVERNMENT OF SWITZERLAND. 
 
 the Senate in the presence of the Senate and 
 House of Representatives. " The person having 
 the greatest number of votes for president 
 shall be the president, if such number be a ma- 
 jority of the whole number of electors ap- 
 pointed ; and if no person have such majority, 
 then from the persons having the highest num- 
 bers, not exceeding three, on the list of those 
 voted for as president, the House of Represent- 
 atives shall choose immediately by ballot, the 
 president. But in choosing the president the 
 votes shall be taken by States, the representa- 
 tion from each State having one vote; a quorum 
 for this purpose shall consist of a member or 
 members from two-thirds of the States, and a 
 majority of all the States shall be necessary to 
 a choice. And if the House of Representatives 
 shall not choose a president whenever the right 
 of choice shall devolve upon them, before the 
 fourth day of March next following, then the 
 vice-president shall act as president, as in case 
 of the death or other constitutional disability of 
 the president. The person having the greatest 
 number of votes as vice-president shall be the 
 vice-president, if such number be a majority of 
 the whole number of electors appointed ; and if 
 no person have a majority, then, from the two 
 highest numbers on the list, the Senate shall 
 choose the vice-president; a quorum for the
 
 THE EXECUTIVE. 127 
 
 purpose shall consist of two-thirds of the whole 
 number of senators, and a majority of the 
 whole number shall be necessary to a choice." 
 
 "The Congress may determine the time of 
 choosing the electors, and the day on which 
 they shall give their votes, which day shall be 
 the same throughout the United States." 
 
 By the framers of this law it was intended 
 that the electors should freely choose and ap- 
 point the presidents, but the practice has de- 
 parted so widely from the original intention 
 that the electors are now only a definite num- 
 ber of votes determined for one or the other 
 candidate by the suffrages of the people. The 
 result of the existing method is unlike that of a 
 direct vote, inasmuch as by preserving the indi- 
 viduality of certain districts and groups of dis- 
 tricts, it becomes possible for a minority of the 
 actual voters to elect the president. 1 
 
 In Mexico, to use the language of the consti- 
 tution, "the election of president shall be indi- 
 rect in the first degree and by secret ballot, un- 
 der conditions fixed by the electoral law."* The 
 electoral law providing for the election of presi- 
 dent is that already detailed, as providing for 
 the election. of deputies, senators, and members 
 
 1 See Pomeroy, " Introduction to Municipal Law," 731 ; 
 also, Pomeroy, "Constitutional Law," 130-133; Dicey, "The 
 Law of the Constitution," 29-30. 
 
 * Article 76.
 
 128 GOVERNMENT OF SWITZERLAND. 
 
 of the Supreme Court, as well as for the presi- 
 dent of the Republic. 1 
 
 The constitution of the republic of Colombia 
 provides that " the election of the president of 
 the Union shall be made by the vote of the 
 States, each State having one vote, which shall 
 be that of the relative majority of its respective 
 electors, in accordance with its laws. The con- 
 gress shall declare elected president the citizen 
 who obtains the absolute majority of the votes 
 of the States. In case no one has such a major- 
 ity, the congress shall elect from those who have 
 received the larger numbers of votes." 2 The 
 congress, into whose hands the election falls 
 under certain conditions, is defined by the consti- 
 tution to be "the House of Representatives and 
 the Senate taken collectively." 3 In comparing 
 this method of election with that followed in 
 the United States, it will be observed that each 
 State has only one vote instead of having a 
 number equal to its congressional representa- 
 tion, and that, in case of failure on the part of 
 the college to elect, the power to choose a presi- 
 dent falls to the two houses in joint session 
 rather than to the lower house, as in the United 
 States. The framers of the Constitution of Co- 
 lombia, like the makers of the United States 
 
 x See pp. 102-103, ante. 
 
 2 Article 75. 
 'Article 48.
 
 THE EXECUTIVE. 129 
 
 Constitution, desired to emphasize the individu- 
 ality of the States, and in giving to each a single 
 vote, they made the probability of a president's 
 election by a minority of the voters much 
 greater than in the United States. If this evil 
 were avoided by making the vote of the peo- 
 ple for the president immediate, the power of 
 determining the election might remain perma- 
 nently in the hands of a few of the larger States. 
 The method of electing a president, which is 
 observed in Colombia, is followed in every es- 
 sential particular in the Republic of Venezuela. 
 The citizens of each State vote by a direct and 
 secret ballot, the relative majority in each State 
 determining the vote of the State, which counts 
 as one in the election. An absolute majority of 
 all the States is required ; and when no can- 
 didate has this number, the election is made 
 by the congress from those who have received 
 the highest numbers of votes. But in the Ar- 
 gentine Republic, the provisions of the constitu- 
 tion relating to the election of a president are 
 not greatly unlike those set forth in the Consti- 
 tution of the United States. A conspicuous 
 point of difference, however, is found in the fact 
 that the electoral college is relatively larger in 
 the former state than in the latter. According 
 to Article 81, " the capital and each of the prov- 
 inces shall appoint by a direct vote a college of 
 9
 
 130 GOVERNMENT OF SWITZERLAND. 
 
 electors, equal to twice the number of deputies 
 and senators which they send to congress, with 
 the same qualifications and under the same 
 forms, which are prescribed for the election of 
 deputies. 
 
 " The electors having met in the capital of 
 the nation, and in that of their respective prov- 
 inces, four months before the close of the presi- 
 dential term, shall proceed to elect the president 
 and vice-president of the nation by signed tick- 
 ets, indicating in one the person for whom they 
 vote for president, and in another the person 
 whom they choose for vice-president." The 
 course pursued in determining the result of such 
 an election is the same as that provided in the 
 twelfth amendment of the United States Con- 
 stitution, but, in case of failure on the part of 
 the electors to elect a president the choice shall 
 fall to the congress rather than, as in the United 
 States, to the House of Representatives. 
 
 The qualifications required by the Constitu- 
 tion of the United States for the office of presi- 
 dent, are that the candidate shall be " a natural- 
 born citizen," thirty-five years of age, and have 
 " been fourteen years a resident within the 
 United States." 1 Essentially the same quali- 
 fications are required in Mexico, where he must 
 be " a Mexican citizen by birth, in the exercise 
 1 Article 2.
 
 THE EXECUTIVE. 131 
 
 of his rights, thirty-five years of age, not an ec- 
 clesiastic, and reside in the country at the time 
 of his election." 1 The Constitution of Colombia 
 makes no mention of qualifications, and that of 
 Venezuela simply states that he must be a citi- 
 zen of Venezuela by birth, and thirty years of 
 age. 2 This lower minimum of age is also one of 
 the qualifications in the Argentine Republic, 
 where, besides, it is required that the candidate 
 shall have been born within the limits of the Ar- 
 gentine territory, or be the son of a citizen by 
 birth, belong to the Roman Catholic commun- 
 ion, and be in receipt of an annual income of 
 two thousand dollars. 3 
 
 The term of the presidential office in the sev- 
 eral federations varies from one to six years. 
 It is one year in Colombia, two years in Vene- 
 zuela, four years in the United States and Mex- 
 ico, and six years in the Argentine Republic. 
 In case of the removal of the president from of- 
 fice, or of his death, resignation, or inability to 
 discharge the powers and duties of the office, 
 these powers and duties shall devolve on the 
 vice-president in the United States and the Ar- 
 gentine Republic. In case of the removal, 
 death, resignation, or inability of both the pres- 
 
 1 Constitution of Mexico, Art. 77. 
 
 2 Constitution of Venezuela, Art. 62. 
 
 3 Argentine Constitution, Art. 76 and 47.
 
 132 GOVERNMENT OF SWITZERLAND. 
 
 ident and the vice-president, the congress shall 
 determine what officer shall then act as presi- 
 dent, until the disability be removed, or a presi- 
 dent shall be elected. 1 In the other members 
 of this group of states, the office of vice-presi- 
 dent is wanting. In case of the vacancy of the 
 presidential office in Mexico, the president of 
 the supreme court exercises the powers belong- 
 ing to the president. In like case in Colombia, 
 the title and powers of president are assumed 
 by one of three persons whom the congress, 
 by absolute majority, elects each year for this 
 purpose. 2 A merely temporary vacancy in 
 Venezuela is supplied by one of the ministers 
 elected by his colleagues ; but. when the vacancy 
 is caused by death, resignation, removal, or ter- 
 mination of the period of election, the president 
 of tKe supreme court shall take in charge the 
 executive office, and call an election, " at least 
 when the vacancy occurs within the last six 
 months of the constitutional period." 8 
 
 Under a democratic regime there is manifest 
 a reluctance to continue any person in the same 
 office for a number of terms. The ' laws and 
 practices of the federal states under considera- 
 
 1 Article 75 of the Argentine Constitution, and the sixth sec- 
 tion of Article 2 of the United States Constitution, which treat 
 of this topic, contain essentially the sarrie statement. 
 
 2 Article 65. 
 
 3 Article 67.
 
 THE EXECUTIVE. 133 
 
 tion illustrate this statement. In Colombia 
 and the Argentine Republic a person cannot be 
 re-elected president for the constitutional term 
 immediately following that during which he has 
 occupied that office. In Venezuela this prohi- 
 bition extends not only to the person who has 
 been president, but also to his relatives to the 
 fourth degree of consanguinity. The same pro- 
 vision as in the Argentine Republic and Colom- 
 bia existed also in the Mexican constitution, 
 until by a recent amendment of Article 78 the 
 president became eligible to a re-election for the 
 constitutional period immediately following; 
 but at the close of his second term he becomes 
 disqualified for the office until four years have 
 elapsed, counting from the date of his ceasing to 
 exercise the functions of the office. On the 
 point in question, the Constitution of the United 
 States is silent, but a" constitutional understand- 
 ing," l as Professor Dicey calls it, has come into 
 existence to the effect that no president shall be 
 re-elected more than once. 
 
 In contrast with the organization of this de- 
 partment in other federal states, the executive 
 authority in Switzerland is exercised by a fed- 
 eral council composed of seven members. 2 The 
 members of this council are elected for a period 
 
 1 "The Law of the Constitution," 29. 
 
 2 Swiss Federal Constitution, Art. 95.
 
 134 GOVERNMENT OF SWITZERLAND. 
 
 of three years by the two legislative assemblies 
 in joint session, and any Swiss citizen eligible 
 to the lower house may be elected. But only 
 one member may be selected from a single can- 
 ton. The Federal Council is renewed entirely 
 after each renewal of the lower house of the 
 legislature. Vacancies occurring during the term 
 of election are filled by the Federal Assembly, at 
 its next session, for the unexpired portion of 
 the term. 1 While in office the members of the 
 council are not permitted to follow any business 
 or profession, or to have any other employment 
 either in the service of the Federation or in a 
 canton. 2 The Federal Assembly, the body 
 which elects the members of the council, ap- 
 points one of them to be its presiding officer, 
 who is called " the president of the confedera- 
 tion." Another member is appointed by the 
 same body to be " the vice-president of the fed- 
 eral council." Both "the president of the con- 
 federation" and " the vice-president of the fed- 
 eral council" are appointed for one year. The 
 same member may not be vice-president two 
 years in succession; and the president having 
 served one term is not permitted to be either 
 president or vice-president for the year imme- 
 diately following. 8 The president and the 
 
 1 Swiss Federal Constitution, Art. 96. 
 
 2 Ibid., Art. 97. 
 //., Art. 98.
 
 THE EXECUTIVE. 135 
 
 other members of the Federal Council receive 
 an annual salary from the federal treasury. 1 
 The presence of four members of the council is 
 required for the transaction of business. 2 The 
 members of the Federal Council have a consulta- 
 tive voice in the legislative assemblies, and also 
 the right to make propositions on subjects there 
 under consideration. 3 
 
 On the Federal Council devolve most of the 
 important powers that usually belong to the 
 executive in a federal state. It directs the af- 
 fairs of the Federation in accordance with fed- 
 eral laws and resolutions. It sees to it that 
 these laws and resolutions and the federal con- 
 stitution are observed; makes effective the guar- 
 antee of the cantonal constitutions; presents to 
 the federal legislature projects of laws and reso- 
 lutions; gives its opinion on propositions which 
 are addressed to it by the legislative assemblies 
 or by the cantons; provides for the execution of 
 the federal laws and resolutions, the judgments 
 of the federal tribunal, and the agreements 
 reached by arbitration between the cantons. It 
 makes the appointments which are not attribu- 
 ted to the Federal Assembly, to the Federal Tri- 
 bunal, or to any other authority. It examines 
 
 1 Swiss Federal Constitution, Art. 99. 
 *Ibid. t Art. 100. 
 3 Ibid., Art. 101.
 
 136 GOVERNMENT OF SWITZERLAND. 
 
 and approves the treaties of the cantons be- 
 tween themselves or with a foreign power. It 
 watches over the interests of the Federation 
 in international affairs ; guards the security 
 of Switzerland against external dangers, and 
 maintains its independence and neutrality. It, 
 moreover, watches over the internal security 
 of the Federation, and the maintenance of tran- 
 quillity and order. In case of urgency, and 
 when the legislature is riot in sesson, the Fed- 
 eral Council is authorized to raise the neces- 
 sary troops, and to direct them, under the ob- 
 ligation to convoke the legislative assemblies 
 immediately, and provided the number of 
 troops raised does not exceed two thousand 
 men, and they do not remain more than three 
 weeks under arms. It is charged with the con- 
 cerns of the federal army, and with all other 
 branches of the administration, which pertain to 
 the Federation. It examines the laws and or- 
 dinances of the cantons, which must be submit- 
 ted for its approval; and exercises surveillance 
 over those branches of cantonal administration 
 which are placed under its control. It admin- 
 isters the finances of the Federation, proposes 
 the budget, and renders an account of receipts 
 and expenses. It superintends the action of all 
 the functionaries and employees of the federal 
 administration. It renders an account of its ac-
 
 THE EXECUTIVE. 137 
 
 tion to the Federal Assembly.at each regular ses- 
 sion, presents to it a report on the condition of 
 internal and external affairs, and recommends 
 legislative action on such measures as appear to 
 be useful for increasing the common prosperity. 
 It makes also special reports whenever the Fed- 
 eral Assembly or one of its sections demands it. 1 . 
 The affairs which thus fall to the Federal 
 Council are distributed by the council itself 
 among the several members. One has the af- 
 fairs of the interior, one justice and police, one 
 war, one the treasury, one commerce and agri- 
 culture, and one the post-office and a general 
 supervision over the railways. The president 
 of the council is nominally president of the 
 Federation, yet his legal powers are only those 
 of a member of a council where in "theory 
 each is responsible for all, and all are responsi- 
 ble for each." "In the hands, however, of a 
 man of great ability, the position assumes far 
 more importance than would appear likely from 
 a mere analysis of the functions which the con- 
 stitution calls upon him to perform; for it must 
 be borne in mind that, not only is he intrusted 
 with a certain control over the various depart- 
 ments of the executive, and not only does he 
 represent Switzerland in the eyes of foreign 
 nations, and has frequently in that capacity to 
 1 Swiss Federal Constitution, Art. 102.
 
 138 GOVERNMENT OF SWITZERLAND. 
 
 take the initiative in matters of general policy, 
 but his personal influence is felt within the Fed- 
 eral Assembly itself." l The division of the 
 Federal Council into departments is, however, 
 only for the sake of facilitating the examination 
 and dispatch of business; the decisions emanate 
 from the council as a unit. It has all the soli- 
 darity of the English Cabinet and a more secure 
 tenure of office. Its members may take part in 
 the debates of the two houses of the legisla- 
 ture, but are not obliged to retire on losing leg- 
 islative confidence. Although practically a com- 
 mittee of the legislature for executive purposes, 
 it is still endowed with a good degree of inde- 
 pendence. Mr. Freeman calls attention to the 
 fact that the Swiss houses " do formally, at the 
 beginning of each Parliament, what the English 
 House of Commons does silently; that is, they 
 determine whether the existing ministry shall 
 remain in office. There is indeed the difference 
 that a Federal Council or Councillor, when 
 once chosen, cannot be got rid of for three years, 
 except in case of actual crime. Still the rela- 
 tions between the Federal Council and the two 
 houses come nearer to the English model than 
 they do to the totally independent position of the 
 American President and Congress." 2 
 
 1 Westminster Review, Feb., 1888, p. 208. 
 * Fortnightly Review, II, 542.
 
 THE EXECUTIVE. 139 
 
 Finally, the Federal Council and its depart- 
 ments are authorized to call experts for special 
 objects. 1 
 
 1 Swiss Federal Constitution, Art. 104.
 
 CHAPTER VI. 
 THE JUDICIARY. 
 
 BEFORE a union of States is entitled to the po- 
 sition of a Bundesstaat, or federal state, it must 
 be clothed with authority to exert sovereign 
 power directly upon the individual citizens of 
 the several States; and a necessary means for 
 thus exercising this power is a court or a system 
 of courts existing as a part of the federal organ- 
 ism. In the United States, the Constitution 
 established merely one supreme court, but pro- 
 vided for the existence of "such inferior courts 
 as the Congress may from time to time ordain 
 and establish." 1 The organization of the Su- 
 preme Court, including the power to fix the 
 number of the judges, was left to Congress, but 
 the appointment of the judges was placed in 
 the hands of the President, acting with the ad- 
 vice and consent of the Senate. It was, more- 
 over, provided that "the judges, both of the 
 
 1 U. S. Constitution, Art. 3/Sec. i. 
 (140}
 
 THE JUDICIARY. 141 
 
 supreme and inferior courts, shall hold their 
 offices during good behavior." As at present 
 organized, the Supreme Court consists of one 
 chief justice and eight associate justices, any 
 six of whom shall constitute a quorum. 2 
 
 Of the supreme courts of the Spanish-Amer- 
 ican federations, that of the Argentine Repub- 
 lic, with respect to its organization, most nearly 
 resembles that of the United States. Here 
 "the judicial power of the nation," to use the 
 language of the Argentine constitution, "shall 
 be exercised by a supreme court of justice, 
 and by other inferior tribunals which the con- 
 gress may establish within the territory of the 
 nation." As in the United States, moreover, 
 "the judges of the supreme court and of the 
 inferior courts shall be appointed by the presi- 
 dent, with the consent of the senate, shall hold 
 their offices during good behavior, and shall re- 
 ceive for their services a. compensation which 
 the law shall determine, and which shall not be 
 diminished in any manner while they continue 
 in office."* In the Argentine Republic, how- 
 ever, there are limitations on the appointment 
 
 *U. S. Constitution, Art. 3, Sec. I. 
 
 "Revised Statutes of the United States (1878), Sec. 673'. 
 
 3 Constitution of the Argentine Republic, Arts. 86, 94, and 
 96 ; see also United States Constitution, Art. 3 ; Constitution 
 of Colombia, Art. 86.
 
 142 GOVERNMENT OF SWITZERLAND. 
 
 of judges which do not exist in the United 
 States. In the latter country any citizen may 
 be made a justice of the Supreme Court, but 
 in the former country no one shall become a 
 member of the Supreme Court of Justice who 
 is not an advocate of at least eight years of 
 practice, and has, moreover, the qualifications 
 required for a senator. 1 
 
 The professional conditions required in the 
 Argentine Republic are wanting in both Colom- 
 bia and Venezuela. In Colombia, no conditions 
 are prescribed, except that of the five justices of 
 the supreme court not more than one shall be 
 taken from a single State at the same time. 2 
 The article of the constitution which creates the 
 supreme court of Colombia, provides that the 
 judicial power shall be exercised also by the 
 senate and by the tribunals of the States, and by 
 those which are established in the territories. 
 In Venezuela, however, the qualifications re- 
 quired for the position of justice of the supreme 
 federal court are: (i) That the candidate shall 
 be a citizen of Venezuela by birth or have been 
 ten years naturalized ; (2) that he shall be thirty 
 years of age. The supreme court in each of 
 these states is composed of five justices, and the 
 number is fixed by the constitution, instead of 
 
 1 Argentine Constitution, Art. 97. 
 * Constitution of Colombia, Art. 70*
 
 THE JUDICIARY. 143 
 
 being left to the determination of the national 
 legislature, as in the United States and the 
 Argentine Republic. The method of appoint- 
 ment in these cases is also unlike that of the 
 other states. It is essentially the same in both. 
 The legislature of each State presents to the 
 congress a list of persons in number equal to 
 the number of the places to be filled, and the 
 congress declares elected those who have re- 
 ceived the highest number of votes. 1 In Vene- 
 zuela the votes are counted in five groups of 
 States, 2 while in Colombia all thevotes presented 
 are counted together. In case of a tie vote in 
 Colombia, the decision is made by lot, while in 
 Venezuela it is made by the congress. If for any 
 cause whatever the States shall not have pre- 
 sented the lists as required, the congress shall 
 elect to supply the lack until the propositions 
 are sent to it. 8 
 
 The framers of the Mexican constitution, in 
 
 1 Constitution of Colombia, Art. 76; Constitution of Vene- 
 zuela, Art. 86. 
 
 2 Constitution of Venezuela, Art. 86; these groups are: 
 
 1. Cumana, Nueva Esparta, Maturin, and Barcelona. 
 
 2. Guayana, Apure, Zamora, and Portuguesa. 
 
 3. Bolivar, Gusman Blanco, Guarico, and Carabobo. 
 
 4. Coj&les, Yaracui, Barquisimento, and Falcon. 
 
 5. Zulia, Trujillo, Guzman, and Tachira. 
 
 3 Constitution of Colombia, Art. 76; Constitution of Vene- 
 zuela, Art. 86.
 
 144 GOVERNMENT OF SWITZERLAND. 
 
 treating of the federal judiciary, appear to have 
 taken as their model the federal courts of the 
 United States in the form into which they have 
 been brought by the provision of the Constitu- 
 tion a'nd subsequent congressional legislation; 
 for, in Article 90, it is provided that "the exercise 
 of the judicial power of the Federation shall be 
 deposited in one supreme court of justice and 
 in district and circuit courts." The Mexican 
 congress has little power over the federal courts 
 in comparison with that exercised by the con- 
 gress in the United States. The creation of the 
 district and circuit courts is not left to the will 
 of congress, but is determined by the constitu- 
 tion*. The number of judges of the supreme 
 court is fixed at eleven by the constitution, and 
 not left to the determination of the federal leg- 
 islature. These judges are elected for a term of 
 six years, by an indirect election, in a manner 
 prescribed by a general electoral law, as already 
 indicated. 1 Besides the eleven "judges proprie- 
 tary," the organization of the supreme court 
 embraces four supernumerary judges, one attor- 
 ney-general, and one solicitor-general. To be 
 eligible to membership in the supreme court, the 
 candidate "must be instructed in the science of 
 the law, according to the judgment of the 
 
 1 See pp. 1 02 and 103, ante.
 
 THE JUDICIARY. 145 
 
 electors, more than thirty-five years of age, and 
 a Mexican citizen by birth, in the enjoyment of 
 his rights." 1 "The duties of a member of the 
 supreme court cannot be resigned except for 
 grave reason, approved by the congress, to whom 
 the resignation must be presented." 2 In case 
 the congress is not in session^ approval must 
 be rendered by the permanent deputation. 
 
 Under the British North America Act, the 
 Parliament of Canada was authorized to "pro- 
 vide for the constitution, maintenance, and or- 
 ganization of a general court of appeal for 
 Canada, and for the establishment of any 
 additional courts for the better administration 
 of the laws of Canada." 3 To carry out this 
 provision, a bill to create a supreme court for 
 the dominion was introduced into the Canadian 
 parliament in 1875. "It was the expressed in- 
 tention of ministers to have prohibited any 
 further appeals to her Majesty's privy council. 
 They were notified, however, that the bill could 
 not be sanctioned unless it preserved to the 
 Crown its rights to hear the appeals of all Brit- 
 ish subjects, who might desire to appeal in the 
 ultimate resort to the queen in council. Ac- 
 cordingly, a saving clause to that effect was in- 
 
 1 Constitution of Mexico, Art. 93. 
 
 2 Ibid., Art. 95. 
 
 3 British North America Act, Art. 101. 
 
 IO
 
 146 GOVERNMENT OF SWITZERLAND. 
 
 serted in the bill, and it received the royal 
 assent." J The court thus created comprises a 
 chief justice and five associate judges, who are 
 appointed by the governor-general, and who 
 hold office during good behavior. The Canadian 
 procedure in legislating suggests that of Great 
 Britain, but the decisions of the Canadian par- 
 liament are subject to a judicial control which 
 is wholly unknown in England, and which sug- 
 gests the practice of the United States. " In 
 Great Britain the legislature is the chief power 
 in the land. There being no written constitution, 
 no plain-speaking and inflexible statute of para- 
 mount law, under which the government of the 
 country is carried on, the constitutionality of its 
 acts cannot be questioned by the courts in the 
 same way as in those countries wherein there is 
 a written constitution. The acts of the legisla- 
 ture form the law, which the courts must execute 
 without questioning their validity or testing them 
 with the constitution. The British people speak 
 in each legislative enactment; and their last 
 utterance is the guide for their courts, who are 
 always subordinate to the legislature, and who 
 exist solely by their permission. These imperial 
 enactments extend at times to the Colonies; 
 and there Her Majesty's courts are precisely in 
 
 1 Todd, " Parliamentary Government in the British Colonies," 
 150.
 
 THE JUDICIARY. 147 
 
 the same position, so far as these enactments are 
 concerned. They have the same duties under 
 them as the British courts have to see that they 
 are carried out according to law." 
 
 "An imperial statute in 1867 gave Canada a 
 written and defined constitution. 1 Under this 
 constitution numerous bodies were endowed 
 with large legislative powers. All the laws 
 were to be executed by the courts, but executed 
 so as not to conflict with the imperial laws, 
 which must, first of all, be executed. Our courts, 
 therefore, while bound to execute all laws in 
 force, must be the judges as to what laws are in 
 force. A Canadian law which is repugnant to 
 any imperial enactment must be declared void 
 by the courts a higher than Canadian power 
 has said that it is no law at all. Again, the 
 dominion parliament may usurp provincial 
 rights, or a province assume to deal with domin- 
 ion matters; the courts still sitting under the 
 constitution, the imperial enactment, must re- 
 fuse to obey their behests. The courts in 
 Canada are still the queen's courts and bound to 
 execute such law as is in force, but equally 
 bound to declare that the act of any of our leg- 
 islatures, when transcending their limits, is un- 
 constitutional and void. The courts, so long as 
 
 'The British North America Act, 1867; see Bourinot, 699- 
 739-
 
 148 GOVERNMENT OF SWITZERLAND. 
 
 they are permitted to exist, are not the creatures 
 of the legislature; they are of course subordi- 
 nate to constitutional legislation, but they are 
 co-ordinate and in effect superior to that which 
 is not constitutional." l 
 
 The relation which the Canadian courts hold 
 to imperial legislation is, in many respects, the 
 same as that which the courts of the United 
 States hold to the federal constitution. The 
 position of the Canadian courts may, moreover, 
 be regarded as a result of imitation rather than 
 of inheritance and tradition. In creating the 
 supreme court, it was intended that it "should 
 serve as a court of appeal from the provincial 
 courts, and likewise possess original jurisdiction 
 as an exchequer court in revenue causes, and 
 other cases in which the Crown is interested." 
 It has also acquired jurisdiction "for the trial of 
 suits against the Crown in Canada by petition 
 of right." The governor in council may, more- 
 over, " refer any matters whatsoever to the court 
 for hearing or consideration; and the judges are 
 required to examine and report upon any pri- 
 vate bill, or petition for the same, that may be 
 referred to them by the Senate or House of 
 Commons of the dominion. It is also provided 
 that, when the legislature of any province in 
 Canada shall have passed an act agreeing to the 
 
 1 O'Sullivan, " Government in Canada," 194-196.
 
 THE JUDICIARY. 149 
 
 exercise by the supreme court of jurisdiction in 
 controversies between the dominion and any 
 such province, or between any two or more 
 provinces; or, in suits wherein the question of 
 the validity of a dominion or provincial statute 
 is material to the decision thereof, then the su- 
 preme court shall exercise jurisdiction in regard 
 to such matters." ] 
 
 The supreme court is the highest court of 
 appeal in Canada, "and entertains appeals 
 within and throughout the dominion from the last 
 court of resort in the provinces. By leave, 
 however, it may hear an appeal from any decree, 
 decretal, or order made by a court of equity, or 
 in an equity proceeding or any final judgment 
 of the superior courts, other than those of 
 Quebec, without intermediate appeal to such 
 last provincial court, providing the case origi- 
 nally commenced in such superior court. In 
 certain cases in election petitions an appeal in 
 the same way will lie to this court. In equity 
 cases, and in proceedings in the nature of equity, 
 an appeal will lie to this court, even from orders 
 made in the exercise of judicial discretion." 2 
 
 Besides the supreme court, there is another 
 dominion court called the Exchequer Court of 
 
 1 Todd, " Parliamentary Government in the British Colonies, " 
 380-381. 
 
 2 O'Sullivan, 208.
 
 150 GOVERNMENT OF SWITZERLAND. 
 
 Canada. It " looks after the revenue of the 
 country, enforces certain penalties on behalf of 
 the Crown, and has jurisdiction in all cases in 
 which demand shall be made or relief sought in 
 respect of any matter which might in England 
 be the subject of a suit or action in the court of 
 exchequer on its plea side against any officer 
 of the Crown. It also deals exclusively with 
 those cases which, in the English exchequer 
 court, were instituted on its revenue side against 
 the Crown." * The supreme court judges are 
 the judges of the exchequer court, and " cases 
 are heard before a single judge in the first in- 
 stance with or without a jury, and an appeal 
 lies to the supreme court." 2 
 
 In Canada the dominion legislature has not 
 only organized the federal courts but also deter- 
 mined the extent of their jurisdiction. But in 
 the United States only the organization of the 
 courts is left to the Congress; the extent of their 
 power is fixed by the terms of the Constitution, 
 and the Congress cannot increase or diminish it. 
 As provided in the second section of Article 3 
 of the Constitution of the United States, "the 
 judicial power shall extend to all cases, in law 
 and equity, arising under this Constitution, the 
 laws of the United States, and treaties made, or 
 
 'O'Sullivan, 214. 
 "O'Sullivan, 215.
 
 THE JUDICIARY. 151 
 
 which shall be made, under their authority; to 
 all cases affecting ambassadors, other public 
 ministers, and consuls; to all cases of admiralty 
 and maritime jurisdiction; to controversies to 
 which the United States shall be a party; to 
 controversies between two or more States, be- 
 tween a State and citizens of another State, 
 between citizens of different States, between cit- 
 izens of the same State claiming lands under 
 grants of different States, and between a State, 
 or the citizens thereof, and foreign states, citi- 
 zens, or subjects." In some of these cases the 
 Supreme Court has original, and in others only 
 appellate, jurisdiction. The line of distinction 
 between these two classes of cases is drawn 
 by the second paragraph of the section from 
 which the previous quotation is made: " In all 
 cases affecting ambassadors, other public minis- 
 ters, and consuls, and those in which a State 
 shall be a party, the Supreme Court shall have 
 original jurisdiction." This means that the Su- 
 preme Court shall have original jurisdiction 
 in the cases here mentioned and no other. 1 
 " In all the other cases before mentioned, the 
 Supreme Court shall have appellate jurisdiction, 
 both as to law and fact, with such exceptions 
 and under such regulations as the Congress 
 shall make." 
 
 1 Marbury v. Madison, I Cranch, 137; Curtis, "Jurisdiction 
 of the United States Courts," 8.
 
 152 GOVERNMENT OF SWITZERLAND. 
 
 A case " between a State and citizens of an- 
 other State" can at present arise only when the 
 suit is brought by the State, for by the eleventh 
 amendment to the Constitution it was provided 
 that "the judicial power of the United States 
 shall not be construed to extend to any suit, in 
 law or equity, commenced or prosecuted against 
 one of the United States by citizens of another 
 State, or by citizens or subjects of any foreign 
 state." A State, however, may be sued by an- 
 other State or by a foreign sovereign. 1 The 
 appellate jurisdiction of the Supreme Court is 
 exercised over the inferior courts of the United 
 States, and over the courts of the several States. 
 
 In determining the jurisdiction of the federal 
 courts of Mexico, the constitution follows in 
 general the provisions of the United States Con- 
 stitution. The federal tribunals take cogni- 
 zance of : (i) "All controversies which arise in 
 regard to the fulfillment and application of 
 the federal laws; (2) all cases pertaining to 
 maritime law; (3) those in which the Federation 
 may be a party; (4) those that may arise be- 
 tween two or more States; (5) those that may 
 arise between a State and one or more citizens 
 of another State; (6) civil or criminal cases that 
 may arise under treaties with foreign powers; 
 (7) cases concerning diplomatic agents and 
 
 Curtis, 1 8.
 
 THE JUDICIARY. 153 
 
 consuls." 1 The Mexican supreme court has 
 original jurisdiction in those cases which arise 
 between States, those in which the Union is a 
 party, and those concerning controversies as to 
 jurisdiction among the federal courts, between 
 the federal and State courts, and between the 
 courts of different States. In all the other 
 cases the supreme court has authority only as 
 a court of appeal. 2 The provisions regarding 
 the jurisdiction of the federal courts which are 
 embodied in the constitutions of Mexico and the 
 United States, are reproduced in all essential 
 particulars in the constitution of the Argentine 
 Republic. In all these cases the constitutional 
 law alone determines the jurisdiction of the fed- 
 eral courts, but in Colombia and Venezuela this 
 is left in part to congressional legislation. 
 
 In Switzerland, the articles of agreement be- 
 tween the three Forest districts, formed in 1291, 
 provided that in case of dissension among the 
 parties to the compact, the best and wisest of 
 them should step forward to allay the discord as 
 it should seem to them expedient. If any 
 should reject the action of this self-instituted 
 court, those opposed to the dissatisfied party 
 should unite to support this action. This pro- 
 vision was a recognition of the understanding 
 
 1 Mexican Federal Con^itution, Art. 97. 
 '*lbid. t Arts. 98-100.
 
 154 GOVERNMENT OF SWITZERLAND. 
 
 which exists in a small and rude community as 
 to the fitness of certain members to direct the 
 community action to the achievement of cer- 
 tain generally desired ends. It was also a rec- 
 ognition of the fact that power may reside in a 
 community despite the lack of a permanent 
 political organization. 
 
 The second phase in the judicial development 
 of the Confederation is seen in the organization 
 of a court of arbitration. This appears with 
 the admission of Zurich into the Union, and 
 was a form of tribunal common to the mediaeval 
 city leagues. The number of arbitrators was 
 usually fixed at two for each party, and they 
 met at some neutral point. There being two 
 arbitrators from each side, it was found neces- 
 sary to provide means to prevent a deadlock, 
 and the most conspicuous means employed was 
 that of appointing an impartial foreman. " The 
 question of the choice of the foreman is un- 
 questionably the main point in the whole system 
 of the courts of arbitration, for generally he 
 was the only real and impartial judge." l The 
 difficulties attending the organization of this 
 court prevented its attaining great stability or 
 fulfilling in a satisfactory manner the functions 
 of a general court of the Confederation. The 
 
 'Dubs," Das Oeffentliche Recht derschwcizcrischen Eidge- 
 nossenschaft," II, 76.
 
 THE JUDICIARY. 155 
 
 antagonisms of creeds was a prominent obstacle 
 to organized growth in any direction. "After 
 the Reformation several attempts were made by 
 the Diet to give the scheme of arbitration a 
 symmetrical development, but without any 
 practical result. The whole system broke down 
 completely with the old Confederation, but was 
 revived as an organization o the central gov- 
 ernment with the formation of the articles of 
 confederation, in i8i5. m The fifth article of 
 this instrument sets forth the system as re- 
 vived, and in doing so describes more or less 
 accurately an ideal of the institution towards 
 which the Confederation had been striving. In 
 accordance with the provisions of this article, 
 all claims and controversies between the cantons 
 on the subjects not otherwise provided for in 
 the articles of confederation, were turned over 
 to the confederate court. The form and pro- 
 cedure of the suit were as follows : Each of the 
 two cantons in conflict selected from the officers 
 of another canton two arbitrators, or one, if the 
 cantons were agreed in the matter. If the con- 
 troversy was between more than two cantons, 
 then each party selected the number of arbitra- 
 tors determined upon. The arbitrators having 
 met, attempted to set aside the conflict in a 
 friendly manner and by way of mediation. If 
 1 Dubs, II, 76.
 
 156 GOVERNMENT OF SWITZERLAND. 
 
 this could not be done, the arbitrators then 
 elected a foreman from the magistrates of some 
 neutral canton not already represented among 
 the arbitrators. If they could not agree in the 
 choice of a foreman, he was appointecf by the 
 Diet. In this action of the Diet, however, the 
 cantons in conflict had no voice. The foreman 
 and the arbitrators then attempted once more to 
 allay the strife by arbitration or compromise, 
 but if a settlement could not be reached by 
 these means, they pronounced a decision in ac- 
 cordance with the rights of the parties con- 
 cerned, at the same time awarding the costs. 
 If necessary, the Diet undertook the execution 
 of the decision thus rendered. 1 
 
 The court of arbitration did not, in any of 
 its forms, satisfy the demand for an impartial 
 and authoritative tribunal. It was, therefore, 
 set aside by the constitution of 1848, and a su- 
 preme federal court was organized, consisting of 
 eleven justices and eleven substitutes, one from 
 each canton. These were elected by the Fed- 
 eral Assembly for a term of three years. Pro- 
 vision was made for the annual election of the 
 president and the vice-president of the court, 
 and for the introduction of a jury in criminal 
 cases. It was left to the court itself to deter- 
 
 Bundesvertragz wischen den XXII Kantonen der Schweiz, 
 vom 7, August, 1815, Art. 5.
 
 THE JUDICIARY. 157 
 
 mine its place of meeting. Since the adoption 
 of the amended constitution of 1874, which left 
 to the legislature to determine the organization 
 of the Federal Tribunal, the number of its mem- 
 bers, the length of their term of office, and their 
 salaries, the organization of the supreme court 
 has been modified in several particulars. The 
 number of justices and substitutes has been re- 
 duced from eleven to nine, and it is provided 
 that the court shall never contain two or more 
 persons from the same family at any given 
 time. The official period has been extended 
 from three to six years, and the president and 
 vice-president are now elected for the terms of 
 two years each. The court elects two court re- 
 porters for terms of six years, one of whom 
 must belong to German, and the other to Ro- 
 mance, Switzerland, and of these one is required 
 to be a master of the Italian language; but for 
 the Italian cases, a government secretary be- 
 longing to Italian Switzerland is employed. 
 The determination of the place of meeting was 
 left to the Federal Assembly, which, after con- 
 sidering specially the claims of Bern, Lau- 
 sanne, and Luzern, finally selected Lausanne. 
 The salaries were fixed at ten thousand francs 
 a year for the justices, eleven thousand for the 
 president or chief justice, and from six to eight 
 thousand for the reporters. The president ex-
 
 158 GOVERNMENT OF SWITZERLAND. 
 
 ercises a certain disciplinary function: he may 
 cause persons disturbing the proceedings to be 
 removed from the court-room, and, if need be, 
 imprison them for twenty-four hours. He also 
 exercises supervision over the whole personnel 
 of the judiciary department. 
 
 As in the United States, there are no pro- 
 fessional conditions required, by the constitu- 
 tion, of candidates for the supreme court of 
 Switzerland. "Any Swiss citizen eligible to 
 the lower house of the legislature may be ap- 
 pointed to the Federal Tribunal." * Persons ig- 
 norant of the law, however, are hardly more 
 likely to be appointed to the supreme court in 
 Switzerland than in the United States. Yet 
 there are restrictions on appointment. These 
 exclude from the list of candidates members of 
 the Federal Council and the Federal Assembly, 
 and all officers holding appointments from these 
 bodies. The members of this tribunal, more- 
 over, are prohibited, during their terms of office, 
 from occupying any other position either in the 
 service of the Federal Government, or in a can- 
 ton, and they are not permitted to follow any 
 business or profession. 
 
 In determining the jurisdiction of the Swiss 
 federal court, Article 113 of the constitution 
 provides that it shall take cognizance of con- 
 1 Swiss Federal Constitution, Art. 108.
 
 THE JUDICIARY. 159 
 
 flicts of competence between the federal and 
 cantonal authorities; of contests between can- 
 tons involving constitutional law; of claims for 
 the violation of constitutional rights of the citi- 
 zens, as well as claims of individuals for viola- 
 tion of concordats or treaties. Administrative 
 controversies are determined by the federal leg- 
 islature. By this provision a wide field of ju- 
 dicial action is withheld from the sphere of the 
 court. But the action of the court in the cases 
 specified is taken under laws passed by the Fed- 
 eral Assembly, or decrees by this assembly hav- 
 ing a general bearing, or treaties ratified by the 
 same authority. Unlike the Supreme Court of 
 the United States, the Swiss federal court has 
 no power to pronounce an act of the federal leg- 
 islature unconstitutional and void. 
 
 Certain points left indefinite by the foregoing 
 constitutional provisions have been determined 
 by subsequent legislation. To note some of 
 these, whenever it is claimed that a case before 
 the federal court falls within the jurisdiction of 
 cantonal authority, or that it should be settled 
 by foreign authority, or by a court of arbitration, 
 the federal court itself decides as to its own 
 competence. On the other hand, questions of 
 jurisdiction between two federal authorities, for 
 example, between the Federal Council and the 
 Federal Tribunal, are decided by the Federal
 
 l6o GOVERNMENT OF SWITZERLAND. 
 
 Assembly. The Federal Tribunal is called upon 
 to settle boundary questions between two can- 
 tons, questions of the application of international 
 treaties, and questions of competence between 
 the authorities of different cantons. It decides 
 in cases of extradition, when the demand is made 
 under an existing treaty, in so far as the appli- 
 cation of the treaty is questioned. It takes 
 cognizance, moreover, under conditions estab- 
 lished by law, of complaints by private persons 
 and corporations relating, (i) to the violation of 
 those rights which are guaranteed by the federal 
 constitution, by federal legislation enacted to 
 carry out the constitution, or by the constitu- 
 tion of the respective canton ; (2) to the violation 
 of agreements among cantons, as well as of 
 treaties with foreign states. 1 
 
 The questions thus far indicated as falling 
 within the jurisdiction of the federal court are 
 constitutional questions. Besides these, the 
 same tribunal takes cognizance of certain civil 
 law cases. These are enumerated in Article 1 10 
 of the constitution: "i. Those between the 
 Federation and the cantons. 2. Those between 
 the Federation on the one side and corporations 
 or private persons on the other, when these cor- 
 porations or these private persons are plaintiffs, 
 and when the case is of the degree of importance 
 
 1 Dubs, II, 88.
 
 THE JUDICIARY. l6l 
 
 required by the federal legislature. 3. Those 
 between cantons. 4. Those between cantons on 
 the one side and corporations or private persons 
 on the other, when the case is of the degree of 
 importance required by federal legislation, and 
 when one of the parties demands it. This court, 
 moreover, decides cases relating to persons with- 
 out citizenship, also controversies which arise 
 between communes of different cantons touching 
 the right of citizenship." Other cases may be 
 considered by this court when the parties agree 
 to turn them over to it, and when the subject 
 involved is of the degree of importance required 
 by law. 1 In order that a civil case, in which the 
 matter in controversy can be estimated in money, 
 may be brought before the Federal Tribunal on 
 appeal or otherwise, it must involve at least three 
 thousand francs. 
 
 The Federal Trfbunal acts with the assistance 
 of a jury in certain penal cases which are speci- 
 fied in -the H2th article of the constitution as 
 follows: "i. In cases of high treason towards 
 the Federation, of revolt or of violence against 
 the federal authorities; (2) in cases of crimes 
 and misdemeanors under international law; (3) 
 in cases of political crimes and misdemeanors 
 which are the cause or the consequence of dis- 
 turbances occasioning federal military inter- 
 
 1 Swiss Federal Constitution, Art. ill. 
 11
 
 162 GOVERNMENT OF SWITZERLAND. 
 
 vention; (4) in cases where an officer appointed 
 by federal authority is turned over to the court 
 for a penal judgment." 
 
 The judgments of the Federal Tribunal, as 
 well as the decrees of courts of arbitration in 
 intercantonal conflicts, are executed by the 
 Federal Council. 1 To the Federal Assembly, 
 however, belongs the right of amnesty and par- 
 don, with reference to those crimes and misde- 
 meanors which fall within the jurisdiction of the 
 Federal Tribunal. 2 
 
 In commenting on the organization and 
 powers of this court, Professor Dicey points out 
 its weakness as compared with the Supreme 
 Court of the United States. " Nothing," he 
 says, " in the institutions of America has excited 
 more admiration among foreigners than the 
 position given under the Constitution to the fed- 
 eral judiciary. Nothing, on the other hand, is 
 less satisfactory than the position occupied in 
 Switzerland by the Federal Tribunal. That 
 body, it is true, recalls the Supreme Court of the 
 United States, but it has few of the claims to 
 authority possessed by the American court. Its 
 judges are not appointed for life; it is not em- 
 powered to adjudicate on the validity of laws 
 passed by the Federal Assembly; it is incom- 
 
 1 Swiss Federal Constitution, Art. 102, Sec. 5. 
 id., Art. 85, Sec. 7.
 
 THE JUDICIARY. 163 
 
 patent to deal with many matters which in Eng- 
 land, no less than in America, would fall within 
 the jurisdiction of the judges; its decisions are, 
 it would appear, enforced by the action of the 
 executive. The tendency, indeed, of opinion 
 throughout the Confederacy is to strengthen the 
 position of the Federal Tribunal. But even 
 were the authority of the court greatly extended, 
 it would never attain to anything like the power 
 possessed not only by the Supreme Court of 
 America, but even by the English bench. The 
 truth is, that the traditions of Swiss histpry are 
 unfavorable to the development of that regular 
 supremacy of the law of the land which is the 
 marked characteristic of the institutions founded 
 by the English people an both sides of the At- 
 lantic. The more closely the Swiss federal 
 constitution and the cantonal constitutions of 
 Switzerland are studied, the more apparent it 
 becomes that the tendency of the Swiss people 
 is still, as it has been for centuries, to allow to 
 the legislature the exercise of judicial functions." ' 
 1 The Nation, Oct. 8, 1885.
 
 CHAPTER VII. 
 FOREIGN RELATIONS. 
 
 THE twenty-two cantons embraced in the 
 Federation are named in the first article of the 
 constitution, thus making it impossible to in- 
 crease or diminish the territory of Switzerland 
 except by a constitutional amendment. In the 
 United States the power of annexing territory 
 is exercised by the government under the Con- 
 stitution. To quote from a decision of the Su- 
 preme Court rendered by Chief Justice Mar- 
 shall, " the Constitution confers absolutely on 
 the government of the Union the power of mak- 
 ing war and of making treaties ; consequently 
 that government possesses the power of acquir- 
 ing territory either by conquest or by treaty." 1 
 If the acquisition is made by conquest, it is pre- 
 sumed that the result will be secured by treaty; 
 and it is to be remembered that the treaty is 
 made, not by Congress, but by the President, 
 
 *I Pet. 542. 
 '
 
 FOREIGN RELATIONS. 165 
 
 and confirmed by the Senate. The vast power 
 which is here conferred upon the President and 
 the Senate of the United States, in Switzerland 
 is placed directly in the hands of the people. 
 The project of annexation requires there the same 
 direct popular vote which is demanded in case of 
 a proposition to amend the constitution ; and 
 for its acceptance it must have not only a ma- 
 jority of all the votes cast, but also the vote of 
 a majority of the cantons. 
 
 The Federation guarantees to the cantons their 
 territories, from which it follows that a canton 
 may not relinquish territory either to a foreign 
 state or to another canton. Such a change can 
 be made only by a change in the federal consti- 
 tution. In the United States, the transfer of 
 territory from one State to another, or the 'erec- 
 tion of a new State out of a part or of parts of 
 one or more States, may be effected by Congress 
 and the legislatures of the States concerned. 
 But the government of the United States 
 holds the power to cede to a foreign State a 
 part of the territory of the United States, 
 whether the part so ceded has hitherto been 
 immediately under the dominion of a State or 
 Territorial organization. The Swiss Federa- 
 tion, moreover, guarantees to the cantons their 
 constitutions. In this is involved a guarantee 
 of those powers of the cantons which do not
 
 1 66 GOVERNMENT OF SWITZERLAND. 
 
 conflict with the powers delegated to the federal 
 government, " the liberty and rights of the peo- 
 ple, the constitutional rights of the citizens, and 
 also the rights and prerogatives which the peo- 
 ple have conferred upon their officers." ' The 
 cantons are, in fact, required to seek this federal 
 guarantee, which is accorded under specified 
 conditions: "(i)That the cantonal constitu- 
 tions contain nothing contrary to the provisions 
 of the federal constitution ; (2) that they insure 
 the exercise of political rights under republican 
 forms representative or democratic; (3) that 
 they have been accepted by the people, and that 
 they may be revised whenever the absolute ma- 
 jority of the citizens demand it." 2 
 
 The carrying out of the first provision is es- 
 sential to the continued existence of a federal 
 state. A violation of it by a Swiss canton de- 
 prives that canton of recognition and protection 
 for its institutions by the Union. In the United 
 States, the power of the Supreme Court to de- 
 clare void any clause of a State constitution, 
 which is in conflict with the provisions of the 
 federal Constitution, prevents the encroachment 
 of the State on the province of the Fed- 
 eration. The second point, that the Swiss 
 Federation will guarantee only such cantonal 
 
 1 Swiss Federal Constitution, Art. 5. 
 */</., Art. 6.
 
 FOREIGN RELATIONS. 167 
 
 constitutions as are republican in form, may be 
 compared with the statement of the United 
 States Constitution, that "the United States 
 shall guarantee to every State in this Union a 
 republican form of government." l The practi- 
 cal result of introducing this second condition 
 was to require and bring about the organization 
 of Neufchatel as a republic, which had hitherto 
 existed as a principality under the king of Prus- 
 sia. The condition that the cantonal constitu- 
 tion must be adopted by the people is a recog- 
 nition of the democratic foundation of the state, 
 and at the same time it is a constitutional pro- 
 vision to secure practical adherence to this idea. 
 No such provision appears in the fundamental 
 law of the United States, it being presumed in- 
 stead that the adoption of a State constitution 
 by the people is one of the marks of a republi- 
 can form of government, which is guaranteed 
 to the State by the federal Constitution. The 
 final clause of the conditions, quoted from 
 Article 6 of the Swiss constitution, namely, 
 that the cantonal constitution must be capable 
 of revision whenever the absolute majority of 
 the citizens demand it, means, " that there must 
 not be constructed any artificial restrictions 
 which would make a revision legally impossible 
 in a case in which a decided popular majority 
 
 1 U. S. Constitution, Art. 4, Sec. 4.
 
 1 68 GOVERNMENT OF SWITZERLAND. 
 
 has declared in favor of it. The constitutions 
 which were formed in the period between 1830 
 and 1848 usually contained the provision that a 
 revision could be made only within designated 
 periods; it might very easily happen that when 
 the period approached there was no need of re- 
 vision, while, when the people wished a revision, 
 it could not be made without violating the con- 
 stitution." ' Such restrictions are, however, no 
 longer permitted. 
 
 Under the old confederation the several can- 
 tons exercised the right of forming alliances 
 among themselves. But under the Act of Medi- 
 ation all alliances of one canton with another 
 were prohibited. 2 This prohibition was con- 
 tinued by the articles of alliance of 1815, in so 
 far as such unions were "disadvantageous to the 
 general union or to the rights of other cantons." 
 In the revised draft of 1833, tn ' s modifying 
 clause was omitted, and a definite prohibition of 
 all special political alliances between the cantons 
 
 1 Blumer, I, 188. Frequently two votes are taken in the 
 canton, one to determine whether or not the constitution shall 
 be revised, the other to accept or reject the revised constitution. 
 The second vote is referred to in the statement of the condition 
 that the cantonal constitutions must be accepted by the people ; 
 the first vote, on the other hand, when it is affirmed that they 
 may be revised when the absolute majority of the citizens de- 
 mand it. Blumer, I. 189: 
 
 2 Article IO.
 
 FOREIGN RELATIONS. 1 69 
 
 introduced. This last provision has been re- 
 tained in the seventh article of the existing con- 
 stitution. Yet to the cantons has been left the 
 right to form articles of agreement on subjects 
 of legislation, administration, or justice. It is 
 required, however, that such agreements be sub- 
 jected to federal control, and to this end they 
 must be brought before the Federal Council. 1 
 If they are found to contain nothing contrary to 
 the federal laws or to the rights of other cantons 
 they are approved, -and in this case the cantons 
 may demand the co-operation of the Federation 
 in their execution. In the contrary case, if such 
 an agreement is not approved, or if another can- 
 ton raises an objection to it, it must be laid be- 
 fore the Federal Assembly for determination. 2 
 Questions arising between cantons regarding the 
 interpretation and application of these agree- 
 ments or compacts between them are brought 
 before the Federal Tribunal for decision. 3 
 
 Whenever independent communities or states 
 unite to form a federal union, thereby giving up 
 some part of their individual authority, an im- 
 portant motive to such a union is the desire for 
 a more efficient agent in the conduct of affairs 
 with foreign states. This motive was conspicu- 
 
 1 Swiss Federal Constitution, Art. 102, Sec. 7. 
 a Ibid., Art. 85, Sec. 5. 
 3 Ibid., Art. 113, Sec. 2.
 
 I/O GOVERNMENT OF SWITZERLAND. 
 
 ous in the union of the British colonies in 
 America at each stage of the development of a 
 central power, and not less clearly manifest in 
 the growth of Switzerland from a loose con- 
 federacy into a strictly federal state. In America 
 the affairs which called most urgently for a more 
 perfect union were the affairs of trade and 
 finance; but in Switzerland the most prominent 
 aim of the struggle for federalism was the main- 
 tenance of security, independence, and neutrality. 1 
 By the constitution of 1848, the achievement of 
 this end was thrown upon the federal govern- 
 ment. To the Federation belongs, moreover, 
 "the right to declare war and makepeace; also 
 to make alliances and treaties with foreign 
 states, particularly treaties relating to commerce 
 and customs duties."* Not all direct dealings, 
 however, between the individual cantons and 
 foreign powers have been prohibited. "Excep- 
 tionally, the cantons preserve the right to make 
 treaties with foreign states on subjects relating 
 to public economy, local relations, and police; 
 nevertheless, these treaties must contain nothing 
 contrary to the Federation or to the rights of 
 other cantons." 3 Questions of conflict under 
 this provision are referred to the Federal Council 
 
 1 Swiss Federal Constitution, Art. 85, Sec. 6. 
 *Ibid. t Art. 8. 
 3 Ibid., Art. 9.
 
 FOREIGN RELATIONS. 171 
 
 and there settled, unless the council finds ob- 
 jection to them or an objection is raised by an- 
 other canton, in which case they are brought 
 for settlement before the legislative assemblies. 
 These assemblies, moreover, exercise the rights 
 and powers regarding war, peace, and treaties, 
 which have, by the constitution, been conferred 
 upon the general government. 
 
 The question as to the extent of the power 
 which may be exercised by the Union in mak- 
 ing treaties under the provisions of Article 8, 
 has been extensively discussed and the conclu- 
 sion reached that the limitation of powers 
 drawn between the Union and the cantons with 
 respect to internal affairs does not define the 
 powers of the Union with respect to foreign re- 
 lations. In the treatment of foreign affairs the 
 power of the Union completely overshadows that 
 of the cantons. "The Union in treaties with 
 foreign states is empowered to deal not merely 
 with central matters, but also, in spite of the 
 provisions of Article 3, with subjects whose con- 
 trol belongs otherwise to the cantons; the Union 
 is, however, bound by the other provisions of its 
 constitution particularly those which set forth 
 general political principles, as also those which 
 specifically guarantee to the cantons certain 
 rights." l 
 
 1 Blumer, I, 204.
 
 172 GOVERNMENT OF SWITZERLAND. 
 
 Transactions between Switzerland and for- 
 eign states are carried on, on the part of Switz- 
 erland, by the Federal Council, whether the af- 
 fairs under consideration immediately concern 
 individual cantons or the Union. 1 When, how- 
 ever, these transactions relate to public economy, 
 local relations, and public affairs, a canton may 
 deal directly with the inferior authorities and 
 employees of a foreign state. 2 
 
 It devolves upon the Federal Council, more- 
 over, to grant or deny demands made by a for- 
 eign power for extradition under an existing 
 treaty; but whenever the application of the 
 treaty is contested, the decision rests with the 
 Federal Tribunal. Under this provision, the 
 Federal Council is subject to certain restrictions. 
 If this body manifests a disposition to comply 
 with the demands of a foreign state, the person 
 whose extradition is sought, or the canton within 
 whose territory he is, may contest the applica- 
 tion of the treaty under which the demand is 
 made, and require a decision of the Federal Tri- 
 bunal in the matter. 
 
 The foreign relations of the cantons were to 
 a certain extent influenced by the fact that for 
 a long time Switzerland was a recruiting ground 
 for foreign armies. The stern defenders of re- 
 
 1 Swiss Federal Constitution, Art. 102, Sec. 8 and 9; also 
 Art. 10. 
 
 *Ibid. t Art. IO.
 
 FOREIGN RELATIONS. 173 
 
 publican liberty at home served all causes 
 abroad. In some important wars they were 
 found on both sides of the conflict. In 1373 
 three thousand Swiss fought for the duke of 
 Milan against the Pope. They entered the 
 armies of France in large numbers. In 1494 
 they took part in the expedition of Charles 
 VIII. against Naples, in spite of the orders of 
 the Diet to the contrary. The repeated efforts 
 of the Diet to prevent the Swiss from serving as 
 mercenaries in foreign armies were fruitless. 
 Even solemn agreements among the cantons 
 themselves to abandon the practice were of lit- 
 tle avail. In 1503 all of the thirteen cantons 
 united and pledged themselves in a solemn oath 
 to abstain from mercenary engagements with 
 foreign powers; but two years later the Great 
 Council of Bern determined to x accept the 
 French subsidy, and sought and received from 
 the Bishop of Lausanne release from the obliga- 
 tions of this oath. In the wars between the 
 French, king and the Emperor Maximilian, in 
 1516, the Swiss fought on both sides. From 
 that time till the present century France con- 
 tinued, with certain brief periods of interruption, 
 to be an important employer of Swiss merce- 
 naries; but at the same time they were found 
 also in the service of many of the other powers. 
 At the time of the wars between France and
 
 1/4 GOVERNMENT OF SWITZERLAND. 
 
 Holland in the last decades of the seventeenth 
 century, there were from 25,000 to 30,000 
 Swiss soidiers in the French army. The whole 
 number in foreign service at this time was not 
 far from 50,000, and it was increased later to 
 about 60,000. The latest instances of this mer- 
 cenary service were the Swiss regiments in Na- 
 ples and the Papal States. 
 
 Although the mercenary service of the Swiss 
 brought them certain advantages, such as the 
 maintenance of the military spirit and an in- 
 crease of the material well-being of the partici- 
 pants, it was at the same time attended by se- 
 rious disadvantages. It tended to destroy the 
 simplicity and sincerity of their national customs 
 and character; it involved them in complicated 
 and dangerous relations with foreign powers; 
 and it made them in a great measure practically 
 dependent on those states whose subsidy they 
 received. Seeing more or less clearly these evil 
 consequences, the central authority as repre- 
 sented in the Diet undertook at various times 
 to abolish the practice, but always with unsatis- 
 factory results. The large measure of independ- 
 ence enjoyed by the several cantons under the 
 old confederation enabled them to disregard 
 with impunity the injunctions of the Diet, and 
 to continue to seek in foreign service their in- 
 dividual profit. The adoption of the federal
 
 FOREIGN RELATIONS. 1/5 
 
 constitution, however, deprived the several can- 
 tons of this power, and placed the general gov- 
 ernment in a position to correct the abuses 
 which had hitherto existed. By subsequent 
 federal legislation, in 1859, every Swiss citizen 
 was prohibited from entering, without the con- 
 sent of the Federal Council, those bodies of 
 foreign troops which were not regarded as na- 
 tional troops of the respective states. The 
 purpose of this law was to set aside the disad- 
 vantages and dangers which this foreign mili- 
 tary service had brought upon Switzerland. 
 These proceeded from the fact that there were 
 certain bodies of troops, who, " bearing the Swiss 
 name, or under Swiss command, or composed 
 for the most part of Swiss soldiers, were fight- 
 ing for foreign governments, and who were not 
 concerned about the cause which they served, 
 but only about the pay which they received." 1 
 The law of 1859 had in view specially the 
 abolition of such troops as these, but it did not 
 hinder individual Swiss citizens from enrolling 
 themselves in the national troops of a foreign 
 state. The prohibition was simply to the effect 
 that they could not enter the so-called " Swiss 
 regiments" in foreign service and " Swiss foreign 
 legions," without the permission of the Federal 
 Council. 
 
 1 Blumer, I, 225.
 
 176 GOVERNMENT OF SWITZERLAND. 
 
 The foreign relations of Switzerland under 
 the confederation were further complicated by 
 the reception of foreign pensions, titles, and 
 orders, by influential Swiss citizens. When these 
 persons obtained positions of power at home, the 
 fact that they were pensioners of a foreign state 
 or of foreign states had no little influence in 
 determining the position of the government 
 on questions of foreign politics. Conspicuous 
 statesmen werepleasedon public occasions to dis- 
 play the orders and decorations which they had 
 received from foreign princes, and in this they 
 did violence to the republican spirit of the 
 people. 
 
 " The cantonal constitutions, therefore, in the 
 third decade of this century, forbade, as a rule, 
 not only military capitulations, 1 but also the re- 
 ception of pensions and titles from foreign 
 states, as also the wearing of foreign orders while 
 in official position." 2 Later provisions of a sim- 
 ilar import were embodied in the federal consti- 
 tution. They were set down in Article 1 2, as 
 follows: "The members of the federal author- 
 ities, the civil and military functionaries of the 
 Union, and the federal representatives or com- 
 
 1 " Une capitulation mililaire 6tait un trait6 conclu avec un 
 gouvernement 6tranger et par lequel un ou plusieurs cantons 
 suisses s'engageaient & lui fournir, moyennant finance, un certain 
 nombre d'hommes arm6s." Droz, " Instruction Civique," 167. 
 
 * Blumer, I, 229.
 
 FOREIGN RELATIONS. I// 
 
 missioners may receive from a foreign gov- 
 ernment neither pensions or salaries, nor titles, 
 presents, or decorations. 
 
 " If they are already in possession of pensions, 
 titles, or decorations, they must renounce the 
 enjoyment of their pensions and the use of their 
 titles and decorations during their continuance 
 in office. 
 
 " Nevertheless the inferior employees may be 
 authorized by the Federal Council to receive 
 their pensions. 
 
 " In the federal army, neither decorations nor 
 titles accorded by a foreign government may be 
 borne. 
 
 " All officers, subordinate officers, and soldiers, 
 are prohibited from accepting distinctions of 
 this sort." 
 
 The prohibition here set forth may be com- 
 pared with that involved in those clauses of the 
 United States Constitution, which provide that 
 no title of nobility shall be granted either by 
 the United States or by any State, and that "no 
 person holding any office of profit or trust un- 
 der them shall, without the consent of the Con- 
 gress, accept of any present, emolument, office, or 
 title, of any kind whatever, from any king, 
 prince, or foreign state." 1 
 
 1 U. S. Constitution, Art. I, Sees. 9 and 10. 
 12
 
 CHAPTER VIII. 
 
 INTERNAL RELATIONS. 
 
 IN the second article of the federal constitu- 
 tion are enumerated the ends for which the 
 Union exists. The first of these is the mainte- 
 nance of the nation in a state of independence 
 of foreign powers. Nearly all laws relating to 
 foreign affairs have this as their direct or indi- 
 rect object The second end of the Union there 
 specified is the maintenance of peace and order 
 within. Although put in the second place in 
 the article enumerating the purposes of the 
 Union, this end is in some sense a condition of 
 the first; for without internal peace and har- 
 mony, the continued independence of the nation 
 would be impossible. The constitutional basis 
 of legislation for the preservation of internal 
 peace and order is set forth in the following pro- 
 visions of the fourteenth article: "The cantons 
 are bound whenever conflicts arise among them 
 to abstain from taking up arms, and from all in- 
 
 (178)
 
 INTERNAL RELATIONS. 179 
 
 dependent action in their own behalf, and to 
 subject themselves to the decisions which shall 
 be rendered on these conflicts in accordance 
 with federal prescriptions." 
 
 As already indicated, conflicts which arise un- 
 der the constitution or in connection with the 
 federal decrees and concordats are settled by the 
 Federal Council and the Federal Assembly. Civil 
 conflicts, on the other hand, are judged by the 
 Federal Tribunal. 1 Under Article 61, which 
 provides that " final civil judgments rendered in 
 one canton are executory in the whole of Switz- 
 erland," a question sometimes arises as to the 
 obligation of one canton to carry out the decree 
 of the cantonal court of another canton, and 
 this question has to be decided by the federal 
 authorities. An attempt on the part of a court 
 of one canton to execute its decrees in another 
 canton, in the face of the indifference or willful 
 neglect of the second body, is an act prohibited 
 by Article 14. The procedure in such a case is 
 through an application to the federal authorities 
 for a judgment requiring the second canton to 
 fulfill its obligation. 
 
 The provisions made by decrees and judicial 
 decisions for the settlement of intercantonal 
 conflicts are inadequate to preserve peace and 
 order, unless supported by other provisions for 
 
 Articles 110-113.
 
 ISO GOVERNMENT OF SWITZERLAND. 
 
 the exercise offeree to the same end. This fact 
 appears to have been perceived by the makers 
 of the Swiss constitution, and in Article 16 they 
 laid down the rule under which internal order 
 may be enforced. This article provides that 
 "in case of internal disorder, or when danger is 
 threatened by another canton, the government 
 of the canton menaced must inform the Federal 
 Council of the impending danger immediately, 
 in order that this body may be able to take the 
 necessary measures within the limits of its com- 
 petence, 1 or convoke the Federal Assembly. 
 Whenever there is urgency, the government of 
 the threatened canton is authorized, on immedi- 
 ately informing the Federal Council, to ask aid 
 of other cantons which are obliged to render it. 
 When the government of this canton is not in a 
 condition to ask aid, the competent federal au- 
 thority may intervene without requisition; it 
 must do so when the disorders endanger the se- 
 curity of Switzerland." 
 
 It is to be observed that by these provisions 
 disturbances of the peace within a canton are 
 subjected to the same remedial measures as 
 attacks of one canton on another. It is to be 
 observed, moreover, that these measures consist 
 in an appeal to the federal government, as the 
 rule, and in an appeal to other cantons as the 
 
 1 These are defined by Art. 102, Sees. 3, 10, and 1 1.
 
 INTERNAL RELATIONS. l8l 
 
 exception. The development of means of com- 
 munication by telegraph and railway has made 
 it as easy at the present time for a threatened 
 canton to appeal to the Federal Council as to a 
 neighboring canton, and therefore use is seldom 
 made of the permitted exception. It is now 
 almost exclusively the practice for a canton to 
 demand aid only of the federal government. If 
 this position of a Swiss canton is compared with 
 that of an American State, it will be found that 
 the State is the more independent of external 
 interference. It is not obliged to obey the sum- 
 mons of any other State for help; it has, in fact, 
 no right to render such aid. The federal gov- 
 ernment in the United States may not interfere 
 to preserve order in a State, except on the re- 
 quest of the legislature or the executive of this 
 State, while in Switzerland a canton must ren- 
 der aid when asked for it by another canton, 
 and the federal government may intervene in 
 the affairs of a canton under certain circum- 
 stances, even when the canton has not applied 
 for such intervention. "But the Swiss Union 
 will always, so long as it receives no notice, be 
 obliged to proceed on the presumption that no 
 danger exists or that the respective canton is 
 strong enough to manage its own affairs. A 
 disturbance which the power of the canton is
 
 1 82 GOVERNMENT OF SWITZERLAND. 
 
 quite competent to control offers no occasion for 
 the intervention of the federal authorities." l 
 
 In case of federal intervention in the affairs of 
 a canton the federal authorities are enjoined 
 from violating the rights of the cantons, which 
 have been established by the fifth article of the 
 federal constitution. The expenses of such an 
 intervention are borne, as a rule, by the canton 
 which demanded it or occasioned it; but the 
 Federal Assembly may provide that, on account 
 of special circumstances, the expenses shall be 
 paid out of the federal treasury. 2 
 
 In case of actual hostilities arising through the 
 antagonisms of cantons among themselves, or 
 through the unfriendly attitude of foreign pow- 
 ers, every canton is required to permit the free 
 passage of troops over its territory; and it is 
 further provided that these troops shall be under 
 federal command. 3 
 
 The internal relations of a federal union are 
 further illustrated by the laws which fix the 
 attitude of a State towards criminals taking ref- 
 uge within its territory from another State. An 
 independent state has the power to determine 
 whether the criminal shall be protected in his 
 place of refuge, or expelled beyond the borders, 
 
 1 Riittimann, "Dasnordamerikanische Bundesstaatsrecht verg- 
 lichen mil den politischen Einrichtungen der Schweiz." II, 81. 
 * Article 16, Sees. 3 and 4. 
 3 Article 17.
 
 INTERNAL RELATIONS. 183 
 
 or handed over to the authorities of the state in 
 which the crime was committed. If it becomes 
 bound to pursue the last-named course, it is by 
 a voluntary agreement entered into with another 
 state or with other states, and such an agree- 
 ment has only a moral force, there being no 
 power which may legitimately compel its ob- 
 servance. But the action of a member of a fed- 
 eral union in this regard is usually determined 
 by the federal constitution, or by federal legis- 
 lation had in pursuance of constitutional pro- 
 visions. In the American Union, the course 
 which a State must pursue is clearly marked 
 out by the federal Constitution: "A person 
 charged in any State with treason, felony, or 
 other crime, who shall flee from justice, and be 
 found in another State, shall, on demand of the 
 executive authority of the State from which he 
 fled, be delivered up, to be removed to the State 
 having jurisdiction of the crime." l 
 
 This provision extends to both statutory and 
 common-law crimes, but concerns only such per- 
 sons as have fled from justice, that is to say, 
 "the person accused must have been within the 
 jurisdiction of the State accusing him, and must 
 have fled therefrom. If, in fact, he was never 
 within it, he cannot have fled from its justice; 
 and therefore a person who in another State 
 
 1 Article IV, Sec. 2.
 
 1 84 GOVERNMENT OF SWITZERLAND. 
 
 may have conspired with others to commit an 
 offense in Missouri, is not demandable by Mis- 
 souri as a fugitive. But if he was within the 
 State at the time of committing the offense, he 
 is held to be a fugitive if he left without awaiting 
 the consequences of his conduct." ' The de- 
 mand must be based on a charge against the 
 accused made in some due form of law, and 
 when presented it becomes the duty of the exec- 
 utive on whom it is made to respond to it; but 
 if he shall refuse to do so the federal tribunals 
 have no power to compel obedience. "If the 
 State to which an offender has fled has herself 
 against him some unsatisfied demands of justice, 
 it is proper for her to proceed to enforce it before 
 honoring a requisition." 2 If, moreover, there are 
 other charges against the offender besides that 
 on which his extradition is had, he must be al- 
 lowed to return to the State which has surren- 
 dered him before he can be prosecuted on any 
 other charge. 
 
 While the Constitution of the United States 
 contains clear and specific provisions for the ex- 
 tradition of offenders, the federal constitution 
 of Switzerland defers the whole matter to fed- 
 eral legislation, setting forth, however, the single 
 limitation that "extradition may not be rendered 
 
 1 Cooley, "General Principles of Constitutional Law," 190. 
 * Cooley, 192.
 
 INTERNAL RELATIONS. 185 
 
 obligatory for political crimes and those of the 
 press." l In view of the marked differences in 
 the political character of the cantons, this limita- 
 tion appears reasonable, in fact necessary to pre- 
 vent a canton from sometimes being called upon 
 to do violence to its own convictions by deliver- 
 ing up a political offender whose acts appear 
 rather to merit praise than punishment. 
 
 This subject was taken up by federal legisla- 
 tion in the law of July 24, 1852. It was made 
 the duty of every canton to permit the arrest 
 and extradition of those persons who had been 
 condemned for certain crimes or who were ac- 
 cused of such crimes in due legal form. In the 
 United States the law fails to specify the crimes 
 for which extradition may be had, simply ad- 
 hering to the constitutional designation of 
 "treason, felony, or other crimes;" but in Switz- 
 erland the second article of the law of 1852 
 enumerates the crimes for which one canton may 
 demand from another the extradition of the 
 criminal. 2 As an exception to the general rule, 
 
 1 Article 55 of the Constitution of 1848, and Article 67 of that 
 of 1874. 
 
 2 They are: "Mord, Kindsmord, Todtschlag und Todtung 
 durch Fahrlassigkeit; Abtreibung und Aussetzung, Brandstift- 
 ung, Raub, Erpressung, Diebstahl, Unterschlagung, Pfandde- 
 fraudation, Betrug, betrtiglicher Bankerott, boswillige Eigen- 
 tbumsschadigung mit Ausnahme unbedeutender Falle ; schwere 
 Korperverletzung, Nothzucht, Blutschande, widernatttrliche
 
 1 86 GOVERNMENT OF SWITZERLAND. 
 
 extradition may be refused, of persons who have 
 acquired citizenship, or who have settled in a 
 canton, when this canton binds itself to try and 
 punish them according to its own laws, or allows 
 a sentence already pronounced to be executed. 
 This provision, which is wanting in both Ger- 
 many and the United States, establishes an in- 
 ternational relation rather than a relation befit- 
 ting members of a federal state. If a person is 
 accused of several crimes committed in different 
 cantons, he shall be handed over to all the can- 
 tons in order, first to that canton in which the 
 gravest crime was committed. If, moreover, one 
 crime is committed in several cantons, that can- 
 ton in which the principal action was had may 
 demand the extradition of all those who have 
 been guilty of participation in the offense in 
 other cantons. 
 
 It has been found expedient to bring the 
 members of a federal union into some clearly 
 defined legal relation to one another, not only 
 with respect to criminal affairs, but also with re- 
 spect to civil cases. In this regard the cantons 
 
 Wollust (Sodomie), Bigamie, Menschenraub, Entfilhrung, Un- 
 terdrtickung des Familienstandes, Anmassung eines fremden 
 Familienstandes, Bestechung, Missbrauch der Amtsgewalt, An- 
 massung der Amtsgewalt, Falschung, Meineid, falsches Zeugniss, 
 falsche Verzeigung in Bezug auf die hier bezeichneten Ver- 
 gehen, Miinzfiilschung oder andere dazu gehorende Vergehen.'' 
 Blumer, I, 255.
 
 INTERNAL RELATIONS. 187 
 
 of Switzerland hold a somewhat more intimate 
 relation to one another than the States of the 
 American Union. As already noticed, final civil 
 judgments rendered in one canton are executory 
 in any other canton. No such latitude as this 
 is given to a decision of a State court in the 
 United States. The Constitution provides, 
 however, that "full faith and credit shall be 
 given in each State to the public acts, records, 
 and judicial proceedings of every other State. 
 And the Congress may by general laws prescribe 
 the manner in which such acts, records, and pro- 
 ceedings shall be proved, and the effect thereof. " 
 In pursuance of the provisions of the last sen- 
 tence of this section, the Congress has provided 
 that " the acts of the legislature of any State or 
 Territory, or of any country subject to the juris- 
 diction of the United States, shall be authenti- 
 cated by having the seals of such Territory, 
 State, or country affixed thereto. The records 
 and judicial proceedings of the courts of any 
 State or Territory, or of any country, shall be 
 proved or admitted in any other court within 
 the United States, by the attestation of the clerk, 
 and the seal of the court annexed, if there be a 
 seal, together with a certificate of the judge, 
 chief justice, or presiding magistrate.that the said 
 attestation is in due form. And the said rec- 
 
 1 Article 4, Sec. I.
 
 1 88 GOVERNMENT OF SWITZERLAND. 
 
 ords and judicial proceedings, so authenticated, 
 shall have such faith and credit given to them 
 in every court within the United States as they 
 have by law or usage in the courts of the State 
 from which they are taken." 1 
 
 These provisions regarding the weight to be 
 given to the public acts and records of one 
 State in another State appear important in view 
 of the impossibility of enforcing a civil judgment 
 by a State court except in the State where it is 
 rendered. If it becomes necessary to enforce 
 such a judgment outside of these limits, the end 
 can be reached only by a new action in the second 
 State, demanded on the ground of the former 
 judgment and supported by the records and 
 proceedings of the former trial. In a similar 
 case in Switzerland, however, no new trial is re- 
 quired, the way being open to an immediate 
 execution of the judgment either in the canton 
 where it was rendered or in any other canton. 
 1 Revised Statutes of the United States (1878), 905.
 
 CHAPTER IX. 
 
 THE ARMY AND THE FINANCES. 
 
 IN establishing constitutional provisions with 
 respect to the army, the Swiss have been care- 
 ful to avoid the danger to liberty which a prom- 
 inent development of military affairs would 
 present. In the early history of the Confeder- 
 ation the several cantons were dissuaded from 
 maintaining permanent military forces by the 
 economical burdens which the support of such 
 forces would impose. The Helvetic Republic, 
 in alliance with France, was, however, obliged 
 to maintain a standing army. " The Act of 
 Mediation, which gave the Union no financial 
 means for paying regular troops, took care that 
 the cantons should not win too strong a position 
 in opposition to the federal power, and to this 
 end limited the number of paid troops which a 
 canton might maintain, to two hundred men." l 
 With the adoption of the articles of confera- 
 
 'fflumer, II, 315. 
 
 (189)
 
 1 90 GOVERNMENT OF SWITZERLAND. 
 
 tion, of 1815, there was a return towards the 
 ancient independence of the cantons, and the 
 limitation which had been imposed on the mili- 
 tary power of the cantons by the Act of Media- 
 tion, was removed. In the project for revising 
 the constitution, which was brought forward in 
 1832, it was proposed so to restrict the power 
 of the individual canton in this regard, that, 
 without the consent of the federal authorities, it 
 might not maintain more than three hundred 
 men as a standing force. Essentially the same 
 restriction appeared also in the constitution of 
 1848, where it was provided that no canton or 
 half-canton should, without the consent of the 
 federal authorities, maintain a standing force of 
 more than three hundred men, not including 
 the Landjiigerkorps. And this provision of 1848 
 was retained in the amended constitution of 
 iS/4. 1 But the practice of the cantons has 
 fallen so far within these legal limitations, that 
 at present no canton maintains any standing 
 troops whatsoever. The federal government, 
 however, maintains military schools, in which a 
 large number of persons are almost constantly 
 under instruction, but these do not constitute a 
 standing army, and therefore the conduct of 
 the federal authorities in this matter is not in 
 conflict with the prohibition of Article 13 of the 
 present constitution. 
 
 'Article 13.
 
 THE ARMY AND THE FINANCES. 19 1 
 
 Inasmuch as the existence of any government 
 presumes the capacity to exercise force, it is 
 clear that, in case of a constitutional provision 
 prohibiting the maintenance of a standing army, 
 there must be some legal means provided 
 through which, in case of need, an army may 
 be called into active existence. The federal 
 government of Switzerland has solved this 
 problem by "making every Swiss liable to mili- 
 tary service. It provides, moreover, for furnish- 
 ing, when required, support to those who have 
 suffered a permanent loss of health in this serv- 
 ice, or to the families of those who have lost 
 their lives. The law embracing these provisions 
 also ordains that soldiers entering the service of 
 the Federation shall receive, without charge, 
 their first equipment, clothing, and arms; and, 
 moreover, that they shall retain their arms un- 
 der conditions established by the federal leg- 
 islature. The same authority shall also fix the 
 conditions of the tax for exemption from mili- 
 tary service. 
 
 The military organization as existing at pres- 
 ent is the result of a long period of growth, and 
 many of its features may be traced through the 
 successive fundamental laws of Switzerland. 
 The basis of the existing organization, which 
 has been perfected through federal legislation,
 
 1 92 GOVERNMENT OF SWITZERLAND. 
 
 is found in the following articles of the consti- 
 tution of 1874 : 
 
 "Article 19. The federal army is composed : 
 (a) Of the regular troops of the cantons; (b} of 
 all citizens who, not belonging to these troops, 
 are nevertheless liable to military service. 
 
 "The control of the army as well as of the 
 munitions of war provided by law belongs to the 
 Federation. 
 
 " In case of danger, the Federation has also 
 the right of direct and exclusive control over 
 men not incorporated in the federal army and 
 all the other military resources of the cantons. 
 
 " The cantons control the military forces of 
 their territory, in so far as this right is not lim- 
 ited by federal laws or the constitution. 
 
 "Article 20. Laws relating to the organiza- 
 tion of the array emanate from the Federation. 
 The military laws in the cantons are executed 
 within the limits prescribed by federal legisla- 
 tion and under the surveillance of the Federa- 
 tion, by means of the cantonal authority. 
 
 " It belongs to the Federation to provide 
 arms and all military instruction. 
 
 " It belongs to the cantons to furnish and 
 maintain the clothing and equipment. The 
 cantons are, however, reimbursed for the ex- 
 pense, in accordance with rules established by 
 federal legislation.
 
 THE ARMY AND THE FINANCES. 193 
 
 "Article 21. In so far as it is not in opposi- 
 tion to military considerations the several corps 
 should be formed from soldiers from the same 
 canton. 
 
 " The composition of these corps, the care of 
 maintaining their effectiveness, the nomination 
 and promotion of their officers, belong to the 
 cantons, under the limitations of the general 
 prescriptions which are sent to them by the 
 Federation. 
 
 "Article 22. For an equitable indemnity, the 
 Federation may use or purchase all arsenals 
 and buildings with their belongings intended for 
 military purposes. 
 
 "The conditions of the indemnity shall be 
 regulated by federal legislation." 
 
 Since the adoption of these constitutional 
 provisions, the federal legislature has established 
 the details of the military organization. From 
 these provisions it is seen that the military sys- 
 tem as a whole has fallen under the authority of 
 the Union. The cantons have to do only with 
 the formation of the several corps, and even 
 here their activity is determined by regulations 
 proceeding from the Federation. Yet under 
 these regulations the functions of the cantons 
 are important. At the expense of the Federa- 
 tion, they care for the clothing and equipment 
 of the troops, and exercise control over their 
 13
 
 194 GOVERNMENT OF SWITZERLAND. 
 
 own troops, in so far as their power in this re- 
 gard is not limited by the federal constitution 
 and laws. The regular federal troops or Bundes- 
 auszug consists of those liable to military 
 duty between twenty and thirty two years of 
 age, of which, in January, 1887, there were 120,- 
 393. The Landwehr embraces those between 
 the ages of thirty-two and forty-five, numbering 
 about 82,000. By a law which went into force 
 in 1887 the Landsturm was organized, and 
 made to consist of retired officers under fifty- 
 five years of age, retired non-commissioned of- 
 ficers and privates under fifty, and all between 
 forty and fifty who are not in the Landwehr, as 
 well as all able-bodied young men between seven- 
 teen and twenty. It is supposed that the Land- 
 sturm will add about 300,000 men to the ef- 
 fective force of the republic. 
 
 In order that the Federation may make use 
 of this force and support the political organi- 
 zation, it must be provided with a revenue. 
 This, according to the constitution, is derived 
 from federal property, from customs duties, from 
 the post and the telegraph, from a monopoly in 
 making and selling powder, from half of the 
 gross product of the tax for military exemptions 
 collected by the cantons, and from the contri- 
 butions of the cantons, which are regulated by 
 federal legislation, with special reference to the
 
 THE ARMY AND THE FINANCES. 195 
 
 wealth and taxable property of the cantons. 
 The first item in the list of sources, namely, fed- 
 eral property, represents no real source of in- 
 come, inasmuch as any return which it may 
 yield is more than offset by the interest on the 
 federal debt of 36,670,616 francs. From the 
 customs duties is derived the main support. It 
 was estimated that of the 52,527,000 francs de- 
 manded for the budget for 1887, the customs 
 duties and postal-telegraph service would yield 
 44,435,200 francs. 
 
 In the government monopoly of the manu- 
 facture of gunpowder, 1 the Federation has shown 
 a determination to engage directly in the busi- 
 ness of production. The same determination is 
 shown also in the constitutional amendment of 
 October 25, 1885, and the legislation had under 
 the provisions of this amendment. By this 
 amendment the Federation is authorized to make 
 provision, by law, concerning the manufacture 
 and sale of distilled liquors. " The net revenues 
 derived from the taxation of the sale of dis- 
 tilled liquors accrue to the cantons in which the 
 liquors are sold. The net revenues of the Fed- 
 eration, derived from the inland manufacture 
 and from the corresponding duties upon the im- 
 portation of distilled liquors, are distributed 
 among 1 all the cantons in proportion to their 
 
 1 Swiss Federal Constitution, Art. 41.
 
 196 GOVERNMENT OF SWITZERLAND. 
 
 population. Of these revenues the cantons must 
 devote at least ten per cent to the suppression 
 of alcoholism." 
 
 Under the provisions of this constitutional 
 amendment, was passed the Spirit Monopoly 
 Bill of 1886. This bill, having passed the Fed- 
 eral Assembly, was submitted to a popular 
 vote on the petition of 48,255 citizens. The 
 popular vote confirmed the law, which provides, 
 in substance, as follows : 
 
 " The Federation has the exclusive right to 
 manufacture and import distilled liquors. Ap- 
 proximately a quarter of the necessary supply is 
 obtained by contracts with inland producers. 
 The distilled liquors are sold for cash by the 
 Federation in quantities of at least 150 litres. 
 The price is fixed from time to time by the 
 Federal Council. It shall not amount to less 
 than 1 20 francs nor more than 150 francs per 
 hectolitre of pure alcohol. 1 The sale of distilled 
 liquors in quantities of at least forty litres is a 
 business free to all; but trade in smaller quan- 
 tities is subject to a license on the part of the 
 cantonal authorities, and must pay to the can- 
 tons, according to the amount of the transactions, 
 a tax on sales, fixed by the cantons until the 
 
 1 " Denaturalized spirits, that is, alcohol so treated as to pre- 
 vent its use in the manufacture of beverages, are sold at cost price 
 for technical and household purposes."
 
 THE ARMY AND THE FINANCES. 197 
 
 passage of a federal law. The net profits of the 
 administration of the federal monopoly are 
 divided among the several cantons in propor- 
 tion to the population." ' In many other de- 
 partments of production the direct agency of the 
 Federation is manifest, but none of these under- 
 takings is important as a source of revenue. 
 From the monopoly of the manufacture and sale 
 of gunpowder there is realized about 500,000 
 francs annually. 
 
 The military tax is imposed upon every Swiss 
 citizen of the age of military liability, living 
 within or without the territory of the Feder- 
 ation, and who does not personally perform 
 military service. " Foreigners established in 
 Switzerland are likewise subject to this tax, un- 
 less they are exempt therefrom by virtue of in- 
 ternational treaties or belong to a state in which 
 the Swiss are neither liable to military service 
 nor to the payment of any equivalent tax in 
 money." The following classes of persons are 
 exempt : 
 
 " i. Paupers assisted by the public charity 
 fund; and those who by reason of mental or 
 physical infirmity are incapable of earning their 
 subsistence, or who have not a sufficient fortune 
 for the support of themselves and family. 
 
 1 See Political Science Quarterly, March, 1889, p. 59, article 
 by Gustav Cohn, on " Income and Property Taxes in Switzer- 
 land."
 
 198 GOVERNMENT OF SWITZERLAND. 
 
 " 2. Those rendered unfit through previous 
 service. 
 
 " 3. Swiss citizens in foreign countries, if they 
 are subject to a personal service, or to an ex- 
 emption tax for the same in place of domicils. 
 
 "4. The railway and steamboat employees 
 during the time when they are liable to the mili- 
 tary service organized for the working of the 
 railways and steamboats in time of war. 
 
 " 5. Policemen and the federal frontier guards. 
 
 "The military tax consists in a personal tax 
 of six francs and of an additional tax on property 
 and income, the amount exacted from any one 
 taxpayer not to exceed 3,000 francs per annum." 
 The additional tax is one franc and a half for 
 each one thousand francs of net fortune, and one 
 franc and a half for each one hundred francs of 
 net income. Net fortunes less than one thousand 
 francs are exempt, and from the net income 
 there is to . be deducted six hundred francs. 
 Net fortune is the personal and real property 
 after deducting debts of record, chattels neces- 
 sary for household, tools of trade, and agricult- 
 ural implements. Real estate and improvements 
 are assessed at three-fourths of the market value. 
 
 " In computing the property of a person for 
 this tax, half of the fortune of the parents, or, if 
 not living, then of the grandparents, is included 
 proportionally to number of children or grand-
 
 THE ARMY AND THE FINANCES. 199 
 
 children, unless the father of the taxpayer shall 
 himself perform military service or pay the ex- 
 emption tax. 
 
 "Net income embraces: i. The earnings of 
 an art, profession, trade, business, occupation, 
 or employment. The expenses incurred to ob- 
 tain these earnings are deducted, also necessary 
 household expenses, and five per cent of the 
 capital invested in a business. 2. The product 
 of annuities, pensions, and other simiUTr revenues. 
 
 "From the age of thirty-three to the com- 
 pletion of the military age only one-half of the 
 tax is exacted. 
 
 "The Federal Assembly has the right to in- 
 crease the tax to double the amount for those 
 years in which the greater part of the elite troops 
 (as distinguished from the Landwehr or reserve) 
 are called into active service. 
 
 " The military tax for Swiss citizens residing 
 abroad is calculated every year by special rolls 
 and the persons advised by the officials of the 
 canton of their birth. The tax for exemption is 
 paid in the canton where the taxpayer is domi- 
 ciled when the rolls are prepared. Parents are 
 responsible for the payment of the tax for their 
 minor sons and for those sons who, though of 
 age, remain a part of their household. 
 
 "The period for prescription is five years for 
 taxpayers present in the country and ten years
 
 20O GOVERNMENT OF SWITZERLAND. 
 
 for those absent from the country. The cantons 
 are charged with making out the annual rolls 
 and collecting the tax. By the end of January 
 following the year of the tax the cantons must 
 remit to the Federation the half of the net 
 product collected, a portion of which is assigned 
 by the Federal Assembly to the fund for military 
 pensions. 
 
 " The estimated receipts from this tax for the 
 share of the Federation is placed in the budget 
 for the year 1887 at 1,235,000 francs." 
 
 The military exemption law has not been ac- 
 cepted without opposition. Dr. Dubs has criti- 
 cised it very sharply. " The conception of this 
 law," he says, " is really unworthy of acceptance. 
 If the constitutional principle -of the general 
 liability to military service were in fact carried 
 out, such a law would naturally have no sense, 
 and would at most be a tax on mental and phys- 
 ical infirmity, that is to say, a tax which must 
 be characterized as almost shameful. The whole 
 law has thus its basis only in an improper 
 carrying out of the constitution. With a more 
 correct carrying out of the constitution there 
 would remain only taxation of those absent. 
 But those who are away from home in other 
 parts of Switzerland are now held there to mili- 
 tary service, and those outside of Switzerland 
 might at any time be required to return, in order
 
 THE ARMY AND THE FINANCES. 2OI 
 
 to perform their military service in person ,- but, 
 according to all other principles of our law of 
 taxation, we cannot properly speak of a right 
 to tax those in foreign countries. The law in 
 question is therefore in all points equally irra- 
 tional, and, in the construction of its details, 
 leads moreover to further absurdities of all kinds, 
 of which undoubtedly the taxation of the heir's 
 possible expectations forms the highest point." 
 
 Besides the taxes already mentioned, the Fed- 
 eration may collect a fee of thirty-five francs from 
 foreigners for granting them the right to acquire 
 cantonal and communal citizenship. The Fed- 
 eral Council may also "levy on railway companies 
 a tax of fifty francs for each kilometer in active 
 service, whenever the business of the company 
 shows a net profit after providing a suitable 
 sinking fund of four per cent. Should the prof- 
 its exceed four per cent., the tax may be in- 
 creased to a maximum of two hundred francs." 
 The Federation may, moreover, collect from 
 banks one per cent of the amount of their issue; 
 also certain fees for registering trade-marks and 
 commercial houses. 2 
 
 In case the income from these taxes shall 
 prove to be inadequate to federal needs, the 
 
 1 Dubs, II, 230. 
 
 1 " Reports from the Consuls of the United States," Wash- 
 ington, 1888, pp. 618-620.
 
 202 GOVERNMENT OF SWITZERLAND. 
 
 Federation may have recourse to contributions 
 in money by the cantons, which are provided for 
 by the last clause of Article 42. These contri- 
 butions were fixed, for twenty years, by the law 
 of October 7, 1874. In assigning the amounts 
 the several cantons shall pay, regard was had to 
 the wealth and population of the cantons. They 
 were divided into eight classes, which might be 
 required to. pay 10, 15, 20, 30, 40, 50, 70, and 90 
 centimes per head of the population. Hitherto 
 it has not been necessary for the Federation to 
 resort to these contributions.
 
 CHAPTER X. 
 
 RIGHTS AND PRIVILEGES. 
 
 A THIRD aim of the Swiss federal constitution is 
 defined in Article 2, as the protection of the 
 liberty and rights of the citizens. Under the 
 pre-revolutionary confederation, certain towns 
 and districts held a subject relation to the con- 
 federated cantons, but this condition of things 
 was set aside by the Revolution, and the Act of 
 Mediation provided that in Switzerland there 
 should be neither subject districts nor privileges 
 of place, birth, persons, or families. 1 In the re- 
 actionary movement after 1814, certain political 
 privileges were conceded to important cities and 
 even to distinguished families; and the articles 
 of alliance of 1815 showed a departure from the 
 principles of strict democratic equality which 
 had been embodied in the Act of Mediation. 
 According to the seventh section of these articles 
 
 1 "II n'y a plus en Suisse ni pays sujets, ni priviliges de lieux, 
 de naissance, de personnes, ou de families." Act of Mediation, 
 Art. 3. 
 
 (203)
 
 2O4 GOVERNMENT OF SWITZERLAND. 
 
 "the Confederation embraces the principle, that 
 as since the recognition of the twenty two can- 
 tons there are no longer subject lands in Switzer- 
 land, so also the enjoyment of political rights 
 can never be the exclusive privilege of a class of 
 the citizens of a canton." This is clearly a less 
 strong and definite statement than that of the 
 previous constitution which it supplants. 
 
 The movement of 1830 emphasized once more 
 the principle of political equality, and prepared 
 the way for the revolution of 1848. The federal 
 constitution adopted in this latter year declared : 
 "All Swiss are equal before the law. There are 
 in Switzerland neither subjects, nor privileges of 
 place, birth, persons, or families." (Article 4.) 
 This article passed without amendment into the 
 constitution of 1874. The statement of the 
 principle of equality which it contains is more 
 easily made than the application of it to actual 
 affairs. There are at least two different views 
 regarding its execution. "In its decisions the 
 Federal Council has always proceeded with the 
 view that equality before the law could not be 
 demanded in an absolute but only in a relative 
 sense, that is to say, under the presupposition of 
 entirely equal actual relations." In a decision 
 rendered Nov. 29, 1865, the Council affirmed that 
 " the fourth article of the federal constitution has 
 never been conceived in the sense of an absolute
 
 RIGHTS AND PRIVILEGES. 2O5 
 
 equality of all citizens, and, moreover, cannot 
 be so construed, because the difference of actual 
 and legal relations always produces inequalities. 
 . . . It is, therefore, only demanded that all 
 citizens similarly situated shall be treated alike 
 and not exceptionally." 1 
 
 In apposition to this view, Riittimann urges 
 that " there is no privilege, in excusing which it 
 may not be affirmed, that under similar actual 
 conditions everyone would participate in it. 
 The exception, that in unequal actual relations 
 legal equality cannot be demanded, would thus 
 completely abolish the rule." a He held, more- 
 over, that Article 4 referred to equality of legal 
 capacity; that men were by nature equal, were 
 equally capacitated by birth to acquire every 
 private right and to fill every public position. 3 
 
 Under the earliest constitutions the rights 
 
 and duties of individual citizens were conceived 
 
 
 
 with reference to other citizens of the same can- 
 ton. Later legislation, however, has aimed to 
 extend the limits within which equality should 
 prevail. Important in this regard is the forty- 
 eighth article of the constitution of 1848, repro- 
 dy/:ed as Article 60 of the present constitution 
 
 1 Riittimann, II, 139. 
 * Riittimann, II, 140. 
 3 Riittimann, II, 140.
 
 206 GOVERNMENT OF SWITZERLAND. 
 
 which obliges every canton to treat the citizens 
 of other cantons like its own citizens, in all leg- 
 islative and judicial matters. 1 This was an in- 
 dication of a tendency to set aside the ancient 
 particularism, and it opened the way to broader 
 sympathies and the growth of a national spirit. 
 The Swiss had before them in this matter 
 the good example of the United States, where 
 it had already been constitutionally provided 
 that " the citizens of each State shall be entitled 
 to all privileges and immunities of citizens in 
 the several States."* A similar doctrine was 
 more definitely set forth later in the imperial 
 constitution of Germany. According to Article 
 3, " there is one citizenship for all Germany, 
 and the citizens or subjects of each State of the 
 Federation shall be treated in every other State 
 thereof as natives, and shall have the right of 
 becoming permanent residents, of carrying on 
 business, of filling public offices, of acquiring 
 real estate and citizenship of the several States, 
 and may acquire all civil rights on the same con- 
 ditions as those born in the State, and shall 
 also have the same usage as regards civil prose- 
 cutions and the protection of the laws." 
 
 1 " Tous les Cantons sont obliges de trailer les citoyens des 
 autres Etats confede re's comme ceux de leur Etat en motiere de 
 legislation et pour tout ce qui concerne les voies juridiques." 
 Article 60. 
 
 1 U. S. Constitution, Art. 4, Sec. 2.
 
 RIGHTS AND PRIVILEGES. 2O/ 
 
 The liberal manner in which the several can- 
 tons at present treat a citizen of another canton is 
 in marked contrast with that of earlier centuries, 
 when the citizen of any canton was regarded and 
 treated as a foreigner in any other canton. Under 
 the Act of Mediation the citizen of any canton 
 might take up his residence in another canton, 
 and acquire there political rights ; but he could not 
 enjoy political rights in two cantons at the same 
 time. The constitution of 1815, however, left 
 each canton free to determine for itself the con- 
 ditions under which persons from without could 
 settle and gain citizenship. With the adoption of 
 the constitution of 1848, a general law govern- 
 ing this matter was established, which with cer- 
 tain modifications has been retained in the exist- 
 ing constitution. It provides that every Swiss 
 citizen has the right to settle anywhere within 
 the limits of Swiss territory, on condition of 
 producing a certificate of former residence. 
 But the right of settlement may be refused or 
 withdrawn from those who, in consequence of a 
 penal judgment, are no longer in the enjoyment 
 of their civil rights. It may, moreover, be with- 
 drawn from those who have been repeatedly 
 punished for grave offenses, as also from those 
 who have come to depend permanently on pub- 
 lic charity for their support. 
 
 Citizenship in Switzerland is primarily an
 
 208 GOVERNMENT OF SWITZERLAND. 
 
 affair of the commune, from which is developed 
 citizenship in the canton. Through this latter 
 we reach the broader conception of citizenship 
 in the Federation. This last follows as a legal 
 consequence of citizenship in a canton, for 
 "every citizen of a canton is a Swiss citizen." ' 
 The lines of distinction between these several 
 conceptions are, however, not clearly presented 
 even to the minds of the Swiss themselves. 
 The want of clearness is owing in part to the 
 presence of a double conception embracing the 
 view of passive citizenship, in which the sub- 
 ject is maintained in the enjoyment of certain 
 civil rights, and that of active citizenship, under 
 which the subject is endowed with certain polit- 
 ical privileges. To quote from a Swiss writer, 
 " the national citizenship proceeds from below ; 
 political active citizenship is derived from above, 
 proceeding from the Federation and from this 
 source descending to the canton and the com- 
 mune of residence." 5 The Swiss citizen, hav- 
 ing shown his right of suffrage, may take part, 
 in the place where he has acquired a residence, 
 in all votes and elections concerning federal af- 
 
 1 Article 43; "Der Besitz des schwiezerischen Biirgerrechtes 
 hiingt von demjenigen eines Kantonsburgerrechtes ab, wie 
 letzterer hinwieder in der Regel denjenigen eeies Gemeinds- 
 burgerrechtes vorausetzt. " Blumer, I, 330. 
 
 3 Dubs, "Das Oeffentliche Recht der schweizerischen Eidge- 
 nossenschaft," II, n,
 
 RIGHTS AND PRIVILEGES. 209 
 
 fairs; but he cannot exercise political rights in 
 more than one canton. Coming from any part 
 of the Federation and taking up his resi- 
 dence in any canton, he enjoys in -his place of 
 settlement all the rights of a citizen of the can- 
 ton, and with these also all the rights of a citi- 
 zen of the commune. He is, however, excluded 
 from participating in the common property of 
 the citizens and the corporations, as well as 
 from voting on purely municipal affairs, unless 
 it has been otherwise decided by cantonal leg- 
 islation. He obtains the right of voting on 
 cantonal and municipal affairs after a residence 
 of three months. This is a material limitation 
 of the period of residence previously required 
 for this purpose. Under the constitution of 
 1848, there might be required of Swiss citizens 
 settling in a canton a residence. of two years as 
 a condition of voting on cantonal affairs, and 
 they were entirely excluded from the right of 
 voting on the affairs of a commune. In order 
 that no limitations of this extended liberty may 
 be made through cantonal legislation without 
 the consent of the supreme authority, it is pro- 
 vided that cantonal laws concerning settlement 
 and the electoral rights which citizens acquiring 
 residence in a canton may enjoy in communal 
 affairs must be submitted for the sanction of 
 the Federal Council. 1 
 
 Article 43. 
 14
 
 210 GOVERNMENT OF SWITZERLAND. 
 
 With respect to civil rights, settlers in any 
 canton stand, as a rule, under the laws of their 
 place of residence. The application of this law 
 is under the direction of the federal authorities, 
 through which also measures are taken to pre- 
 vent the same property or income from being 
 taxed in two cantons at the same time. 1 
 
 By Article 48 it is decreed that a federal law 
 shall establish provisions respecting the care and 
 burial of poor inhabitants of one canton, who 
 have fallen sick or died in another canton. The 
 federal law called for in this article was passed 
 in June, 1875. It ordered that the authorities of 
 the place in which the sickness or the death oc- 
 curred should provide care for the sick and 
 burial for the dead without being allowed to de- 
 mand compensation from the home canton of 
 the victim." 
 
 It is noteworthy that Swiss citizenship once 
 held is much less easily lost or set aside than 
 that of most other nations. In this matter the 
 federal constitution determines the conduct of the 
 cantons. In order to prevent the increase of 
 the unsettled class, the constitution of 1848 in- 
 terdicted a canton from depriving a citizen of 
 his citizenship. This provision is strengthened 
 in Article 44 of the present constitution, wherb 
 
 1 Article 46. 
 
 * Von Orelli, p. 70.
 
 RIGHTS AND PRIVILEGES. 211 
 
 it is declared that no canton may banish one of 
 its citizens from its territory, or deprive him of 
 his citizenship. " Federal legislation shall de- 
 termine the conditions under which foreigners 
 may be naturalized, as also those under which a 
 Swiss may renounce his citizenship in order to 
 obtain naturalization in a foreign country." ' 
 The doctring of the laws that have been 
 enacted on this point as interpreted by the 
 Federal Council has been summed up as 
 follows: " Swiss citizenship is imprescriptible; 
 every Swiss retains his citizenship as long as he 
 himself does not renounce it, and as long as its 
 legally valid derivation can be shown. The 
 mere fact of the acquisition of citizenship in a 
 foreign state is not adequate to cause the loss of 
 citizenship of a canton which one enjoys; nor is 
 adequate to this end a long absence in a foreign 
 country, even when the person concerned has 
 neither fulfilled his military duty nor paid taxes; 
 nor, moreover, the entrance into foreign civil or 
 military service. Rather for the loss of can- 
 tonal citizenship there is required a formal and 
 express voluntary declaration. This declara- 
 tion is then valid for all minor children. But in 
 order to make a valid renunciation of citizenship 
 of a canton, proof of the acquisition of citizen- 
 
 1 Article 44.
 
 212 GOVERNMENT OF SWITZERLAND. 
 
 ship in another state or canton must be fur- 
 nished." 1 
 
 Conspicuous among the rights and privileges 
 that have been acquired by the Swiss is the 
 right of worshiping in any manner approved 
 by the conscience of the worshiper. The prog- 
 ress of enlightenment in Switzerland which this 
 privilege represents is fully appreciated only 
 when viewed in contrast with the ecclesiastical 
 narrowness and sectarian antagonisms of earlier 
 centuries. It is, moreover, one of the later 
 achievements in liberty. As late as the war 
 of the Sonderbund, religious intolerance ap- 
 peared to threaten the integrity of the Confed- 
 eration; and under the constitution of 1848 tol- 
 eration was extended to only two sects, the 
 Roman Catholic and the Reformed. Through 
 the constitution of 1874, however, a far more 
 liberal attitude was assumed. In Articles 49 to 
 52 inclusive are set forth the foundations of re- 
 ligious liberty in so far as this has been achieved 
 in Switzerland. 
 
 1 Blumer, I, 333. In 1885 "the Federal Council refused to 
 conclude a treaty of reciprocal naturalization with the United 
 States of America, because of the clause stipulating that the 
 Swiss who should obtain the rights of Americans, should lose 
 their primitive rights as Swiss. This is contrary to the Swiss 
 constitution, which declares that no Swiss citizen, unless he 
 fights against his country, can ever lose his original rights." 
 Annual Register 1885, p. 286.
 
 RIGHTS AND PRIVILEGES. 213 
 
 "Liberty of belief and conscience is inviolable. 
 No one can be forced to take part in a religious 
 association, to follow a religious teaching, to 
 perform a religious act, or to undergo penalties 
 of any kind whatsoever, on account of religious 
 opinion. The person who exercises paternal or 
 tutelary authority has the right to determine 
 the religious education of the children, in accord- 
 ance with the foregoing principles, until the age 
 of sixteen years. The exercise of civil or polit- 
 ical rights cannot be limited by any prescrip- 
 tions or conditions whatsoever of a religious or 
 ecclesiastical nature. No one on account of re- 
 ligious opinion is released from the performance 
 of civil duties. No one is required to pay taxes 
 which are specially devoted to the peculiar ex- 
 penses of the worship of a religious community 
 to which he does not belong. The final execu- 
 tion of this principle is reserved to federal legis- 
 lation. 
 
 " Freedom of worship is guaranteed within 
 limits compatible with public order and good 
 morals. The cantons and the Federation may 
 take such measures as are necessary to preserve 
 public order and peace among the members 
 of the different religious communities; as also 
 against the encroachments of the ecclesiastical 
 authorities upon the rights of the citizens or of 
 the state. Contests under public or private law
 
 214 GOVERNMENT OF SWITZERLAND. 
 
 arising from the creation of religious communi- 
 ties, or from the separation of religious communi- 
 ties already existing, may be taken for decision 
 before the competent federal authorities. Bish- 
 oprics may not be created on Swiss territory 
 without the consent of the Federation. 
 
 "The order of Jesuits and the societies affil- 
 iated with them cannot be admitted into any 
 part of Switzerland, and all activity in the 
 church and school is prohibited to their mem- 
 bers. This interdiction may also be extended, 
 by way of federal decree, to other religious or- 
 ders, whose activity is dangerous to the state, or 
 disturbs the peace among the sects. 
 
 "It is prohibited to found new convents or re- 
 ligious orders, and to re-establish those which 
 have been suppressed." 
 
 Under the old order of things, while the can- 
 tons controlled the legislation respecting mar- 
 riage, the liberty of individual citizens in this 
 regard was limited by property, residence, and 
 religious conditions. At present, however, "the 
 right of marriage stands under the protection 
 of the Federation. No obstacle to marriage 
 can be based upon religious motives, upon 
 the indigence of one party or the other, upon 
 their previous conduct, or upon any other motive 
 whatsoever recognizable by the police. A mar- 
 riage concluded in any canton or in a foreign
 
 RIGHTS AND PRIVILEGES. 21$ 
 
 country, in accordance with the laws there in 
 force, will be recognized as valid throughout the 
 Federation. A woman acquires by marriage 
 the residence rights of her husband. Children 
 born before marriage are rendered legitimate by 
 the subsequent marriage of their parents." ' 
 Certain fees or taxes that were previously im- 
 posed upon the contracting parties are, by the 
 present constitution, made illegal. Legislation 
 under these constitutional provisions was had De- 
 cember 24, 1874. Among other things, it estab- 
 lished the details of the conditions under which 
 marriages might be contracted, and also the 
 conditions under which marriages might be de- 
 clared void and divorces granted. 2 By making 
 marriage and divorce subjects of federal rather 
 than of State legislation, Switzerland has taken 
 a step in advance of the position at present oc- 
 cupied by the United States. 
 
 The views of the Swiss at different times with 
 respect to the liberty of the press show the 
 growth of a sentiment favorable to the enlarge- 
 ment of federal authority. In the projected 
 constitutional reform of 1833, it was proposed 
 that the press should stand entirely under can- 
 tonal legislation, and the Union should be able 
 neither to abolish nor to limit its freedom, nor to 
 
 1 Article 54. 
 
 2 JBlumer, I, 381-391.
 
 216 GOVERNMENT OF SWITZERLAND. 
 
 introduce a censorship of the press. "In the 
 commission of 1848 for the revision of the con- 
 stitution it was at once recognized that this pro- 
 vision was insufficient; it was seen to be needed, 
 on the one hand, that the freedom of the press 
 should be guaranteed by the Union; on the 
 other hand, that the Union should have the 
 right to take action in opposition to abuses di- 
 rected against itself." ! The outcome of the dis- 
 cussion was the formation of Article 45, of the 
 constitution of 1848, which is retained unchanged 
 in the existing constitution: "The freedom of 
 the press is guaranteed. With reference to the 
 abuse of this freedom, the cantonal legislation 
 shall embrace the necessary provisions, which, 
 however, require, the approval of the Federal 
 Council. The Federation has the right to es- 
 tablish penalties to repress the abuses of the lib- 
 erty of publication, which are directed against 
 itself or its authorities." 3 
 
 Under this law it is not permitted to establish 
 a preliminary censorship; to subject the press to 
 administrative discretion; to mak an exception, 
 to the disadvantage of the press, to the generally 
 accepted penal rules; to set up for the crimes of 
 the press another co*urt than that of the place of 
 publication or of the residence of the accused; 
 
 1 Blumer, I, 391. 
 * Article 55.
 
 RIGHTS AND PRIVILEGES. 217 
 
 or to suppress completely a newspaper or other 
 periodical. 1 It is, moreover, to be observed that 
 cantonal laws with reference to the press are not 
 operative until they have received the sanction 
 of the Federal Council, a provision which is not 
 universally approved among Swiss publicists. 
 It is held by some that it would be a better ar- 
 rangement for controlling the press, if the whole 
 matter were placed directly under the authorities 
 of the Union. 
 
 The freedom of the press is scarcely more im- 
 portant for the achievement and maintenance of 
 political liberty than the right to form associa- 
 tions. Of this latter topic it was at first pro- 
 posed to make no mention in the constitution 
 of 1848.' Through the influence of Zurich and 
 Luzern, however, it was finally determined to 
 guarantee this right under certain limitations. 
 To this end, therefore,was formulated Article 46, 
 of the constitution of 1848, which was retained 
 as Article 56, of the constitution of 1874. It 
 decrees that " the citizens have the right to form 
 associations, provided there is nothing illegal, or 
 dangerous to the state, in the end of these as- 
 sociations or in the means which they employ." 2 
 It decrees, moreover, that whatever measures 
 are necessary for the repression of abuses un- 
 
 1 Von Orelli, 72. 
 
 a Article 56.
 
 218 GOVERNMENT OF SWITZERLAND. 
 
 der this right shall be provided by cantonal 
 legislation. In commenting on this article, 
 Blumer emphasizes the fact that the constitution 
 does not guarantee an absolute right of forming 
 associations any more than absolute freedom 
 of the press. The evident design here was to 
 impose greater restrictions than were laid on 
 the press, in fact, to prohibit at once all associa- 
 ations " whose existence and activity appear in- 
 compatible with political order. " It is to be 
 observed, moreover, that the right of association 
 is guaranteed only to Swiss citizens, and not to 
 foreigners residing in Switzerland. In impos- 
 ing penalties the cantons exercise in respect to 
 associations more extensive powers than with 
 respect to the press; for the penal laws of the 
 cantons concerning associations do not require 
 federal sanction in order to become operative. 
 The principle of this act, however, does not per- 
 mit all cantons to exclude arbitrarily all asso- 
 ciations from their territories, and thus defeat 
 the intention of the law. In contrast to the 
 liberty of the press and of association, the right 
 of petition is guaranteed without limitation. 
 
 It has been properly regarded as one of the 
 privileges of a free citizen that he should not be 
 tried except before the court of his place of res- 
 idence. In keeping with this idea the federal 
 
 1 lilumer, I, 403.
 
 RIGHTS AND PRIVILEGES. 219 
 
 constitution has provided that " the solvent 
 debtor who has a fixed residence in Switzerland 
 must be tried on account of personal claims be- 
 fore the judge of his place of residence, and 
 therefore his property cannot be seized or se- 
 questered outside of the canton where he lives, 
 for the satisfaction of personal claims." Article 
 58 carries the judicial restrictions still further, 
 and provides that " no one shall be withdrawn 
 from his constitutional judge," or, as stated in 
 the French text, " from his natural judge." By 
 this it is proposed to regulate the judicial af- 
 fairs within the several cantons. In the cantonal 
 constitutions the competence of the judicial 
 officers is usually defined, and " for every in- 
 habitant of the canton the court is determined 
 under whose jurisdiction he stands in both civil 
 and criminal matters." J The constitutional 
 judge is, therefore, the one provided by the 
 terms of the judicial constitution, and an ex- 
 ceptional court is one created after the appear- 
 ance of the case to be judged. 1 ' It is, then, the 
 purpose of the federal constitution, in the first 
 place, to provide against the arbitrary removal 
 of cases from those courts where they " natu- 
 rally" qr " constitutionally" belong ; in the second 
 place, to increase the security of the accused by 
 
 1 Blumer, I, 445. 
 
 2 Von Orelli, 73.
 
 220 GOVERNMENT OF SWITZERLAND. 
 
 the constitutional prohibition of the introduc- 
 tion of exceptional courts. The first clause of 
 this article (58) is a reproduction of Article 53, 
 of the constitution of 1848, with a single verbal 
 change. The second clause, however, abolish- 
 ing ecclesiastical jurisdiction, appears first in 
 the constitution as amended in 1874.' 
 
 Prior to 1848 the penal legislation of Switzer- 
 land was in the hands of the cantons. The 
 federal constitution adopted in that year made 
 the first limitation on the power of the cantons 
 in this regard* It ordered that no death sentence 
 should be pronounced on account of political 
 crimes. In the constitutional revision of 1874, 
 it was proposed, in the first place, to make this 
 prohibition general, and, in the second place, to 
 forbid the confiscation of property on account 
 of political offenses. The second proposition 
 was rejected ; but the first, providing for the 
 complete abolition of capital punishment, was 
 adopted, and became the first clause of Article 
 65. This article decreed, moreover, (i) that 
 in time of war the provisions of the military 
 penal code should remain intact; (2) that cor- 
 poral punishment should be prohibited. This 
 was evidently a benevolent experiment in legis- 
 lation on the part of the Federation ; but at the 
 
 'The clause here referred to is: " La juridiction eccltSsias- 
 tique est abolie."
 
 RIGHTS AND PRIVILEGES. 221 
 
 same time it was an unwarrantable interference 
 in the affairs of the cantons. The death penalty 
 was abolished, but no adequate substitute was 
 provided, and subsequent events failed to justify 
 this extreme liberality. In 1879, therefore, this 
 article was again modified. It was made to 
 prohibit capital punishment for political offenses, 
 and corporal punishment under all circumstances; 
 but it left the several cantons free to reintroduce 
 the death penalty for other than political crimes, 
 and this several of them have already done. 
 
 One of the results of the early Swiss unions 
 was the establishment of free trade between the 
 districts or cities united. The Act of Mediation 
 guaranteed "la libre circulation des denre"es, 
 bestiaux et marchandises;" and the alliance of 
 1815 provided for like freedom with respect to 
 provisions, products of the soil, and the wares 
 of merchants, and also that these articles and 
 cattle might be freely exported or transported 
 from one canton to another, subject only to 
 proper police regulations. 1 In the constitution 
 of 1848 these provisions from 1815 were repro- 
 duced subject to certain reservations: 
 
 1. The royalty on the purchase and sale of 
 powder and salt. 
 
 2. Police regulations of the cantons with re- 
 
 1 Article II.
 
 222 GOVERNMENT OF SWITZERLAND. 
 
 sped, to the carrying on of trade and industry, 
 and the use of the roads. 
 
 3. Regulations against injurious forestalling. 
 
 4. Transitory sanitary-police regulations in 
 case of epidemic diseases. 
 
 5. Dues imposed or recognized by the Diet, 
 which the Union has not abolished. 
 
 6. The tax on the consumption of wine and 
 other alcoholic drinks, provided for by a sub- 
 sequent article of the constitution. 
 
 The regulations referred to under I and 2 
 were to affect alike the citizens of the differ- 
 ent cantons, and before they could be lawfully 
 carried out they had to be laid before the Fed- 
 eral Council and receive its approbation. 
 
 The provisions here set forth and interpreted 
 by the later action of the federal authorities were, 
 in all essential particulars, embodied in the con- 
 stitution of 1874; the freedom of trade and in- 
 dustry was guaranteed throughout the extent 
 of the Federation ; and the regulations involved 
 in the reservations were not permitted to inter- 
 fere with the principle of commercial and indus- 
 trial freedom. According to Article 33, of the 
 present constitution, however, it remained for 
 the cantons to make the exercise of the liberal 
 professions dependent on the proof of qualifi- 
 cation; but at the same time it devolved upon
 
 RIGHTS AND PRIVILEGES. 223 
 
 the Union to make these proofs of qualification 
 valid for the whole Federation. 
 
 "Besides the fundamental rights of Swiss citi- 
 zens established by the federal constitution, the 
 Federation guarantees also all political and in- 
 dividual rights which exist under the cantonal 
 constitutions. The latter and the rights of the 
 nation and individual citizens derived from 
 them, as also the authority of the officers, stand, 
 according to Article 5, 1 under the powerful pro- 
 tection of the Federation. According to the 
 seventh clause of Article 85, regulations which 
 have as their purpose to guarantee the cantonal 
 constitutions fall within the jurisdiction of the 
 Federal Assembly, and according to the third 
 clause of Article 102, it remains with the Federal 
 Council to supervise this guarantee. On the 
 first occasion which presented itself, the Federal 
 Council issued the following statement regarding 
 the position which the federal authorities have to 
 assume with respect to complaints made to 
 them : 
 
 "When complaints are made regarding the 
 violation of the constitution in a canton, and 
 these are brought before the federal authorities, 
 
 1 "La Confederation garantit anx cantons leur territoire, leur 
 souverainete dans les limites fix^es par Particle 3, leurs consti- 
 tutions, la liberte et les droits du peuple, les droits constitu- 
 tionnels des citoyens, ainsi que les droits et les attributions que 
 le peuple a conftr^s aux autorit^s." Art. 5.
 
 224 GOVERNMENT OF SWITZERLAND. 
 
 the latter become in duty bound to investigate 
 them and to form a decision as to their founda- 
 tion or want of foundation, and as to necessary 
 further regulations. For the Federation guar- 
 antees the constitutional rights of the citizen as 
 well as the rights of the authorities. The earlier 
 articles of union also guaranteed theconstitutions, 
 but this guarantee was otherwise explained, and 
 many complaints of unconstitutional proceedings 
 and circumstances were raised and disregarded. 
 It was desired that these should be no longer 
 endured, and there was demanded an effective 
 guarantee against violations of the constitutions. 
 Thus arose Article 5, of the federal constitution, 
 which guaranteed with an almost pedantic care 
 the rights of the nation and the constitutional 
 rights of the citizens. It would, in fact, be a re- 
 markable relapse into the old view and order of 
 things, a striking denial of the principle con- 
 tained in Article 5, if we were to assume that, in 
 case of a formally presented complaint, the fed- 
 eral authorities were free to interfere or not. 
 We hold rather that in such cases the federal 
 authorities are obliged to take up the complaints 
 and render a decision regarding them." l 
 
 The consideration of the specific rights and 
 privileges which exist under the cantonal consti- 
 tutions and are thus guaranteed by federal au- 
 
 1 Blumer, I, 469-470.
 
 RIGHTS AND PRIVILEGES. 225 
 
 thority belongs to the study of these constitu- 
 tions, in other words, to the study of local gov- 
 ernment in Switzerland.
 
 CHAPTER XI. 
 
 THE COMMON PROSPERITY. 
 
 IN the second article of the federal constitu- 
 tion, which enumerates the aims of the Federa- 
 tion, the fourth aim specified is the promotion 
 of the common prosperity. In pursuing this 
 comprehensive purpose, it has been found nec- 
 essary not merely to create institutions, but also 
 to set aside certain of those already in existence. 
 Conspicuous among the regulations that had to 
 be set aside in order to secure the end in view, 
 were the restrictions which had been placed by 
 the cantons on intercantonal trade. By the con- 
 stitution of 1848 the control of the tariff system 
 was transferred to the Union, which was em- 
 powered to make all necessary provisions for 
 collecting import, export, and transit duties. 
 Certain sums collected were to be distributed to 
 the several cantons as compensation for the 
 cantonal dues which by the adoption of this con- 
 stitution and subsequent legislation were re, 
 
 (226)
 
 THE COMMON PROSPERITY. 227 
 
 voked. All sums over and above what was re- 
 quired to compensate the cantons were turned 
 into the federal treasury. Although the can- 
 tons were deprived of the power to impose tar- 
 iffs or tolls, yet the Federation might grant 
 them the privilege to levy and collect tolls to 
 promote the construction of public works, which 
 were of general interest, and which without such 
 aid could not be carried out. The release from 
 internal duties and tolls was found, however, to 
 be the removal of so great an obstacle to Swiss 
 prosperity that the Federal Assembly subse- 
 quently hesitated to permit the cantons to im- 
 pose tolls for the support of public works, pre- 
 ferring instead to furnish pecuniary support 
 directly from the federal treasury. 
 
 The articles of the constitution of 1848, in- 
 volving the foregoing regulations, were brought 
 under discussion in 1871, with a view to their 
 revision, and the result of the discussion was a 
 series of articles, which, with a single unimpor- 
 tant change, were adopted in the constitution 
 of 1874. According to these articles, affairs 
 concerning the customs duties belong to the 
 Federation, which has the right to levy import 
 and export duties. In levying these duties the 
 following principles should be observed: 
 
 i. Import duties should be as light as possi- 
 ble (a) on articles which are demanded for in-
 
 228 GOVERNMENT OF SWITZERLAND. 
 
 ternal industry and agriculture; (#) on commod- 
 ities required to satisfy the necessary wants of 
 life; but articles of luxury should bear the high- 
 est tax. These principles should also be fol- 
 lowed, if there are no opposing considerations, in 
 forming commercial treaties with foreign powers. 
 
 2. Export duties should be made as light as 
 .possible. 
 
 3. The tariff legislation should embrace regu- 
 lations calculated to secure the commerce of 
 the frontier and the markets. The Federation 
 retains always the right, under extraordinary cir- 
 cumstances, to adopt temporary special meas- 
 ures at variance with the above regulations. 
 
 The revenue derived from the customs duties 
 belongs to the federal treasury. The sums pre- 
 viously paid to the cantons as compensation 
 for their ancient duties, tolls, and other dues, 
 are no longer paid. Exceptionally, however, 
 the cantons Uri, Graubiinden, Ticino, and Wal- 
 lis, on account of their international Alpine 
 roads, receive an annual subsidy, which has been 
 fixed at the following figures: For Uri, 80,000 
 francs; for Graubiinden, 200,000; for Ticino, 
 200,000; for Wallis, 50,000. Prior to the com- 
 pletion of the St. Gothard railway, the cantons 
 Uri and Ticino together received also an annual 
 subsidy of 40,000 francs for clearing the snow 
 from the St. Gothard route, 1 
 
 1 Articles 28, 29, 30,
 
 THE COMMON PROSPERITY. 229 
 
 In setting aside internal duties certain taxes 
 on consumption are allowed to stand, which, in- 
 asmuch as they were imposed chiefly on articles 
 produced outside of the canton levying them, 
 and were collected at the cantonal frontiers, ap- 
 pear as an exception under the law abolishing 
 intercantonal duties. They were, moreover, 
 treated as such an exception under Article 31, 
 which guaranteed the freedom of commerce and 
 industry throughout the Federation; and, in Ar- 
 ticle 32, the cantons were specifically authorized, 
 in accordance with the provisions of the pre- 
 ceding article, to collect import duties on wine 
 and other spirituous drinks, under the following 
 limitations: 
 
 r. In collecting these duties the transit shall 
 be in no manner impeded, and the commerce in 
 general shall be interfered with as little as pos- 
 sible and burdened with no other duties. 
 
 2. If objects imported for use are taken out 
 of the canton, the duties that have been collected 
 on them shall be returned without further bur- 
 den. 
 
 3. Articles of Swiss production shall be sub- 
 jected to duties lower than those imposed on 
 foreign products. 
 
 4. The import duties on wine and other spir- 
 ituous drinks of Swiss production, where such 
 exist, shall not be increased, and they shall not
 
 230 GOVERNMENT OF SWITZERLAND. 
 
 be introduced into cantons where they do not 
 exist. 
 
 5. The laws and ordinances of the cantons 
 regarding the collection of import duties, before 
 they are carried out, shall be submitted to the 
 federal authorities for approval, in order that the 
 violation of existing principles may be pre- 
 vented. 
 
 In Article 32 it was further provided that 
 with the expiration of the year 1890, all im- 
 port duties then being collected by the cantons, 
 as also similar duties collected by individual 
 communes, shall cease without compensation. 
 
 Among the obstacles to the common welfare 
 were the privileges enjoyed by certain persons 
 with respect to internal transportation. In 
 many cantons exclusive privileges of transpor- 
 tation had been granted to certain corporations 
 or communes. This was the case, for example, 
 in the canton of Uri. Vessels belonging to Lu- 
 zern might transport persons and wares to land- 
 ing-places in Uri, but might not take away 
 from these places either persons or goods, be- 
 cause Uri had given to a shipping company the 
 exclusive right to do this. These monopolies 
 produced serious commercial friction, which 
 suggested federal interference; and the matter 
 having been brought before the Diet, it was de- 
 termined that free competition in the transporta-
 
 THE COMMON PROSPERITY. 231 
 
 tion of persons and goods, both by land and 
 water, should be guaranteed to the citizens of all 
 cantons. The essential principle of this resolu- 
 tion was embodied in the thirteenth article of 
 the constitution of 1848. The federal legisla- 
 ture was given the right to make the necessary 
 regulations concerning the abolition of existing 
 privileges with respect to the transportation of 
 persons and wares of every sort, between can- 
 tons or within any given canton. 
 
 The first legislative application of this con- 
 stitutional provision was made in declaring the 
 shipping free between Luzern, Fliielen, Brunnen, 
 and Gerson. Before the revision of the consti- 
 tution in 1874, all privileges with respect to 
 transportation had been swept away, and thus 
 the reason for the existence of Article 30 had 
 disappeared. It was, therefore, not continued 
 in the revised constitution, an adequate prohi- 
 bition of privileges with respect to transporta- 
 tion being found in the constitutional provisions 
 which guarantee freedom of intercourse and 
 trade. 
 
 The federal government has not only broken 
 down the hindrances presented by commercial 
 privileges, and undertaken to guarantee freedom 
 of intercourse and trade, but it has also been 
 charged with the superintendence of the ways 
 of communication. Although the construction
 
 232 GOVERNMENT OF SWITZERLAND. 
 
 of roads and bridges is primarily an affair of 
 the cantons, yet, under the Act of Mediation, 
 the Landamman of Switzerland might, in case 
 of need, appoint inspectors commissioned to 
 examine the routes, roads, and rivers. If work 
 on these were urgently required, he might or- 
 der it done; and, in case of necessity, he might 
 cause to be executed directly, and at the ex- 
 pense of those to whom it belonged, such work 
 as had not been begun or completed within the 
 time prescribed. 1 The rights of the federal 
 government to supervise the condition of the 
 roads was, moreover, recognized in subsequent 
 proposals for constitutional reform; and by the 
 constitution of 1848 the Federation was author- 
 ized to exercise superintendence over the roads 
 which it was interested in maintaining. Ac- 
 cording to Articles 26 and 33 of this constitution, 
 certain sums were to be paid over to the can- 
 tons in compensation for customs duties and rev- 
 enues from the post, which had been relinquished 
 to the general government; but it was here pro- 
 vided that these sums might be retained by the 
 Union, if the roads and bridges belonging to 
 these cantons or corporations were not kept in 
 the proper condition. At first, no permanent 
 inspection was thought to be necessary, but 
 since 1870 a bureau has been called into exist- 
 1 Act of Mediation, Art. 23.
 
 THE COMMON PROSPERITY. 233 
 
 ence, at first under the postal department and 
 later under the department of the interior, 
 through which a permanent superintendence is 
 maintained. The provisions of 1848 have been 
 embodied in Article 37 of the present constitu- 
 tion, with only slight modifications. These 
 modifications refer to the sums withheld by the 
 Union, in case the roads and bridges are not 
 kept in a proper condition. 1 
 
 The Federation has, moreover, superseded the 
 cantons in the control of postal affairs. Before 
 1848 these affairs were managed either by the 
 several cantons directly or by other persons 
 or bodies in contract with the cantons. The 
 postal system was under direct cantonal man- 
 agement in Zurich, Bern, Luzern, Glarus, Frei- 
 burg, Solothurn, Basel-City, St. Gallen, Graubiin- 
 den, Aargau, Ticino, Vaud, Wallis, Neufchatel, 
 and Geneva. In Uri it was farmed to the can- 
 tons Zurich and Luzern; in Basel-Land to Basel- 
 City; in Schwyz to St Gallen; in Unterwalden 
 to Zurich and Luzern; in Zug and Thurgau to 
 Zurich; in Schaffhausen it was in the hands of 
 
 'The article of the present constitution in question is as fol- 
 lows: "La Confederation exerce la haute surveillance sur les 
 routes et les ponts dont le maintien 1'interesse. 
 
 " Les sommes dues aux Cantons dosignes a- 1'article 30, :\ raison 
 de leurs routes alpestres internationales, seront retenues par 
 I'autoritt; f<5d<5rale si ces routes ne sont pas convenablement en- 
 tretenues par eux." Art. 37.
 
 234 GOVERNMENT OF SWITZERLAND. 
 
 Prince Thun and Taxis. In the half-cantons of 
 Appenzell communication was maintained with- 
 out any regular postal arrangements. 
 
 Through the adoption of Article 33, of the 
 constitution of 1848, an important step was 
 taken towards unifying the postal service of 
 Switzerland. The functions of the postal de- 
 partments as they had existed in the cantons 
 were transferred to the Federation. At the 
 same time it was provided that the postal con- 
 nections, which were maintained at the time of 
 the transfer, should not be diminished without 
 the consent of the cantons concerned ; further- 
 more, that the rates of postage should be as low 
 as possible and the same for the whole territory 
 of the Federation; that the inviolability of 
 postal secrets should be guaranteed; and that 
 the Federation should offer compensation for 
 the postal revenues relinquished by the several 
 cantons. The conditions under which this com- 
 pensation was to be rendered were as follows: 
 I. The cantons should receive annually sums 
 equal to the average amounts of their net reve- 
 nues from their postal systems for three years, 
 1844, 1845, and 1846. When, however, the 
 net revenue collected by the Federation was less 
 than the prescribed compensation, the deficit 
 was borne by the several cantons in proportion 
 to the compensation prescribed for each. 2. If
 
 THE COMMON PROSPERITY. 235 
 
 a canton received from its postal system noth- 
 ing directly, or, by reason of the terms under 
 which it was farmed, much less than was actually 
 collected by the person to whom it was farmed, 
 such a condition of things should be taken ac- 
 count of in distributing the amounts of the com- 
 pensation. 3. In case the postal system had 
 been transferred to a private person or corpora- 
 tion, the Federation should undertake to com- 
 pensate such person or corporation for relin- 
 quishing it. 4. The Federation was empowered 
 and obliged to receive, at a fair compensation 
 made to the owners, all material belonging to the 
 postal system in so far as it was found to be 
 serviceable. 5. The federal authorities were, 
 moreover, empowered to rent or purchase the 
 buildings then used in the postal service of the 
 cantons. 
 
 On the first of January, 1849, tne postal af- 
 fairs of Switzerland passed under the authority 
 of the Federal government. The arrangements 
 at this time existing in the several cantons were 
 provisionally adopted, and the whole system 
 was placed under the authority of the Federal 
 Council. During the same year the Federal 
 Assembly passed laws embracing permanent 
 postal regulations, which have become uniformly 
 valid throughout the whole Federation. Under 
 these laws provision is made for the transporta-
 
 236 GOVERNMENT OF SWITZERLAND. 
 
 tion of letters, packages, and persons; for the or- 
 ganization of the postal administration; and for 
 the determination of the rates of postage. By 
 the law organizing the postal administration, the 
 Swiss territory was divided into eleven districts, 
 which took their names from the principal town 
 in each. These are the districts of Geneva, 
 Lausanne, Bern, Neufchatel, Basel, Aarau, Lu- 
 zern, Zurich, St. Gallen, Chur, and Bellinzona. 
 At the head of the administration stands the 
 Federal Council, which has the power to estab- 
 lish regulations and appoint officers. While to 
 this body belongs the supreme control, it has 
 delegated extensive powers to the Postal De- 
 partment, which exercises supervision over the 
 whole system, and has in turn delegated certain 
 of its powers to subordinate officers. There is, 
 then, a central directory, with general activity 
 and supervision, and in each of the territorial 
 subdivisions already named, a district directory. 
 All officers are appointed for a term of three 
 years, while the clerks hold for an indefinite 
 period; but both may be removed at any time 
 for cause. 
 
 In 1852 the Federal Assembly undertook to 
 fix the amounts of the postal indemnity to be 
 paid to the several cantons. The federal law on 
 this subject left to each canton the privilege of 
 seeking redress through the courts, in case of dis-
 
 THE COMMON PROSPERITY. 
 
 237 
 
 satisfaction with the amount fixed by the as- 
 sembly. Under this privilege, only Neufchatel 
 and Basel-Land were successful in attempts to 
 obtain an increase in the amounts prescribed, 
 which in the case of the latter was followed by 
 a corresponding reduction in the amount at first 
 apportioned to Basel-City. The whole amount 
 to be distributed was 1,486,560 francs and 94 
 centimes, of which the apportionment was as fol- 
 lows : 
 
 Zurich was to receive francs 
 
 Bern 
 
 Luzern , 
 
 Uri 
 
 Schwyz 
 
 Unterwalden ob dem Wald 
 
 Unterwalden nid dem Wald 
 
 Glarus 
 
 Zug 
 
 Freiburg 
 
 Solothurn 
 
 Basel-City 
 
 Basel- Land 
 
 Schaffhauseri 
 
 Appenzell, Exterior 
 
 Appenzell, Interior 
 
 St. Gallen 
 
 Graubiinden 
 
 Aargau 
 
 Thurgau 
 
 Ticino 
 
 Vaud 
 
 Wallis.. 
 
 Neufchatel ....,, 
 
 Geneva 
 
 Total . . . . francs 
 
 232,138.46 
 
 249,252.48 
 
 57,958.18 
 
 29,771.10 
 
 2,857.14 
 
 342.86 
 
 228.57 
 
 10,329.83 
 
 3,285.71 
 
 20,320.52 
 
 10,490.93 
 
 119,065.25 
 
 16,758.61 
 
 3,181.82 
 
 14,285.71 
 
 342.86 
 
 89,084.76 
 
 33,549-19 
 146,694.43 
 
 25.454-55 
 14,908.96 
 207,812.91 
 26,488.07 
 74-676.33 
 97.281.71 
 
 1,486,560.94 
 
 The rights of the Prince of Thun and Taxis 
 in the postal affairs of Schafihausen were pur-
 
 238 GOVERNMENT OF SWITZERLAND. 
 
 chased by the federal government for 150,000 
 francs. As compared with the total indemnity 
 to be paid, the net postal income of the Federa- 
 tion under this order of things has sometimes 
 shown a surplus, but oftener a deficit. In the 
 revision of the constitution in 1874, the cantons 
 agreed to forego their annual indemnity in view 
 of a release from certain military burdens. Ar- 
 ticle 36 of the revised constitution, therefore, 
 affirms that the postal and telegraphic systems 
 throughout Switzerland belong to the federal 
 government; that the revenue derived from them 
 belongs to the federal treasury; that the rates 
 should be as low as possible and the same for 
 the whole territory of the Federation; and that 
 the inviolability of postal and telegraphic se- 
 crets should be guaranteed. 
 
 For very good reasons the constitutional pro- 
 vision which was here established regarding the 
 telegraph had had no place in the constitution 
 of 1848. The law of December 23, 1851, how- 
 ever, placed it under the exclusive control of 
 the federal government. 1 Whatever concessions 
 were later made to private persons or corpora- 
 tions were issued by the Federal Council. These 
 
 1 In France a decree of December 27, 1851, declared: 
 "Aucune ligne I61dgraphique ne peut etre 6tablie ou employee 
 & la transmission des correspondances que par le gouvernement 
 911 avec son autorisatjon,"
 
 THE COMMON PROSPERITY. 239 
 
 were made to persons or corporations for re- 
 stricted use, chiefly to railway corporations, re- 
 stricting the use of the telegraph to the service 
 of operating railways. Since the passage, in 
 1852, of the general law regulating the construc- 
 tion and use of railways, a railway franchise 
 carries with it the right to establish a telegraph 
 line along the road to be used in conducting 
 the business of the road. Funds for the direct 
 construction of lines of telegraph by the federal 
 government were received in 1852, as a loan, 
 without interest, from private persons and can- 
 tons, for a period of five years. The lines at 
 first established between the more important 
 points were the beginnings of an elaborate sys- 
 tem under direct federal management. The 
 proposed plan to unite the postal and tele- 
 graphic systems under a single organization was 
 finally set aside as tending to produce complica- 
 tions and friction rather than simplicity and fa- 
 cility of operation. The ends in view were 
 found to be most surely served by giving to the 
 telegraph the conditions of independent devel- 
 opment, and bringing it into close co-operation 
 with the postal department. Under the organ- 
 ization effected in 1854, the supreme adminis- 
 trative authority, as in the postal system, is 
 vested in the Federal Council. Under the 
 postal and telegraphic department, there is a
 
 240 GOVERNMENT OF SWITZERLAND. 
 
 central directory of telegraphic administration, 
 and in each of six districts a subordinate di- 
 rectory. The officers are appointed either by 
 the Federal Council or by other officers holding 
 delegated authority from that body. 
 
 Before 1848 the several cantons held the 
 right to coin money. Through the exercise of 
 this right, through the lack of any central au- 
 thority in this matter, and through the use of 
 different foreign coins in different parts of Switz- 
 erland, the medium of exchange had become 
 apparently hopelessly deteriorated. By the pro- 
 visions of the constitution of this year, however, 
 all rights of coinage were vested exclusively 
 in the federal government. Power was, more- 
 over, conferred on the federal government to fix 
 regulations under which existing coins might be 
 circulated or r t e-coined. Legislation under these 
 provisions was had May 5, 1850. The franc, 
 composed of one hundred Rappen, or centimes, 
 was adopted; and the coins specified in the law, 
 multiples or fractions of this unit, were made 
 legal tender. In January, 1860, the federal leg- 
 islature determined further details of the system 
 here established; and, among others, the condi- 
 tions under which French gold coins might cir- 
 culate in SwitzerJand, what coins should con- 
 tinue to be struck as token money, and to what 
 amount these token" coins should be legal ten-
 
 THE COMMON PROSPERITY. 241 
 
 der. Finally, in 1874, provisions essentially 
 like those then in force were introduced into the 
 revised constitution. 1 
 
 The need of uniformity of weights and meas- 
 ures was recognized early in the movement to- 
 wards national unity. In 1848 it was constitu- 
 tionally provided that the union should intro- 
 duce, on the basis of the existing confederate 
 concordat, weights and measures which should 
 be uniform throughout the Federation. Later 
 the details of the system were determined by 
 federal legislation. The power here exercised 
 by the Federation was confirmed in that body 
 by the fortieth article of the constitution of 
 1874; but the execution of the laws relating to 
 these matters was left with the cantons, acting 
 under the supervision of the federal authorities. 2 
 
 All these provisions show a marked extension 
 of the functions of the central government, 
 which may be observed also in the recent legis- 
 
 1 " La Confederation exerce tous les droits compris dans la 
 regale des monnaies. 
 
 " Elle a seule le droit de battre monnaie. 
 
 " Elle fixe le systeme mone'taire et peut edicter, s'il y a lieu, 
 des prescriptions sur la tarification de monnaies e trang^res. " 
 
 Art. 38. 
 
 1 " La Confederation determine le systeme des poids et me- 
 sures. 
 
 " Les cantons executent, sous la surveillance de la Confede- 
 ration, les lois concernant cette matiere." Art. 40. 
 16
 
 242 GOVERNMENT OF SWITZERLAND. 
 
 lation regarding education. Surrounded by na- 
 tions whose governments rested on monarchical 
 traditions, and in which the instruction of youth 
 was more or less colored by monarchical doc- 
 trines, it was important that such provisions 
 should be made as would enable the youth of 
 the republic to receive their education under 
 influences favorable to the maintenance of the re- 
 publican spirit. Moreover, in view of the antag- 
 onisms that existed between the German, 
 French, and Italian cantons, and of the social 
 friction that appeared between the adherents of 
 the different creeds, it was important that the 
 federal government should be in a position to 
 strengthen and direct the forces which make 
 for unity. Important among these forces are 
 those which proceed from a wisely arranged 
 system of public instruction. Down to 1848 all 
 public schools had been in the hands of the can- 
 tons, but in the federal constitution adopted at 
 that time, it was provided that the federal gov- 
 ernment might establish a university and a poly- 
 technical school. 1 
 
 At the first session of the federal legislature 
 after the adoption of this constitution, a propo- 
 sition to establish a university and a polytech- 
 nical school was presented and considered. A 
 little later, in 1851, it was referred by the Fed- 
 
 'Constitution of 1848, Art. 22.
 
 THE COMMON PROSPERITY. 243 
 
 eral Council to a commission often experts from 
 the different parts of the republic, who reported 
 in favor of the project, but for various reasons, 
 legislative action was deferred. In February, 
 1854, however, the proposition referring to a 
 university having been rejected, a law was 
 passed establishing a federal poly technical 
 school. The rejection of the university project 
 did not indicate a determination to withdraw 
 federal attention from the higher grades of aca- 
 demical instruction; for in the revised constitu- 
 tion of 1874 extensive powers were conferred 
 upon the general government with respect to 
 education. Under this constitution, the Union 
 is empowered to establish, in addition to the al- 
 ready existing polytechnical school, a federal 
 university and other institutions for higher edu- 
 cation, or support such institutions. Under 
 this provision, the federal legislature was left 
 with the freedom of alternative action. It 
 might, on the one hand, found an independent 
 federal university and other institutions for 
 higher instruction, or support those existing in 
 the cantons; or, on the other hand, limit its ac- 
 tivity to maintaining the polytechnical school. 
 The cantons provide adequate primary in- 
 struction, which must be placed exclusively 
 under the direction of the civil authority. This 
 does not mean that the clergy, if not Jesuits,
 
 244 GOVERNMENT OF SWITZERLAND. 
 
 shall be excluded from the positions of teachers 
 and other school officers; if occupying these posi- 
 tions, they are required to stand on the same 
 footing as laymen, and so to impart their instruc- 
 tion as not to do violence to the principle of 
 freedom of conscience and belief. Although 
 the primary schools are immediately under can- 
 tonal control, the cantons are not permitted to 
 separate them into confessional schools; for it 
 is required that the public schools must be so 
 ordered and conducted that the adherents of 
 all confessions may attend them without suffer- 
 ing in any manner with respect to their liberty 
 of conscience or belief. Primary education is 
 compulsory, and, in the public schools, free. Fi- 
 nally, the power to secure the proper observance 
 of these provisions by the cantons is placed in 
 the hands of the federal authorities, which " shall 
 take the necessary measures against the cantons 
 that do not comply with these obligations." 1 
 
 " No penalties, however, were declared, and 
 no means prescribed to force the cantonal gov- 
 ernment to carry the law into effect. Certain 
 cantons not having fulfilled their duties in this 
 respect, the Federal Assembly, in 1882, instructed 
 the Federal Council to open an inquiry, and to 
 take the necessary measures to insure general 
 compliance with the constitutional law. In re- 
 
 1 Swiss Federal Constitution. Art. 27.
 
 THE COMMON PROSPERITY. 245 
 
 ply the Federal Council proposed the creation 
 of a Federal Department of Public Instruction, 
 having under its orders a certain number of in- 
 spectors, whose duty it would be to see that the 
 law was everywhere carried into effect Ag- 
 itation against this proposal at once began 
 throughout the country, and in a short time 
 a petition bearing upwards of 200,000 signatures, 
 was forwarded to the central government. Ac- 
 cording to the Swiss constitution, if 30,000 cit- 
 izens only demand a plebiscitum, any project 
 voted by the Assembly must be submitted to the 
 popular vote. In consequence, therefore, of so 
 imposing a number of signatures, the Federal 
 Council was obliged, much against its will, to 
 submit the proposal to the popular vote, when 
 it was rejected by 316,929 against 170,459 in its 
 favor. To understand the real significance of 
 this vote, it must be borne in mind that up to 
 the present the Swiss cantons have enjoyed an 
 almost absolute self-government, but that dur- 
 ing the last few years the Federal Council has 
 tried by every means to centralize power in its 
 own hands. The cantons considered the pro- 
 posed inspection to be a new attempt to deprive 
 them of their autonomy, and therefore rejected 
 it rather with a view to maintaining their rights 
 than because they considered the project bad." 1 
 1 "Annual Register for 1882," p. 268.
 
 246 GOVERNMENT OF SWITZERLAND. 
 
 In speaking of the relation of the schools to 
 .religion, Matthew Arnold says : " Whoever has 
 seen the divisions caused in a so-called logical 
 nation like the French by this principle of the 
 neutrality of the popular school in matter of re- 
 ligion might expect difficulty here. None what- 
 ever has arisen. The Swiss communities, ap- 
 plying the principle for themselves and not 
 leaving theorists and politicians to apply it 
 for them, have done in the matter what they 
 find suitable to their wants, and have in every 
 popular school religious instruction in the relig- 
 ion of the majority, a Catholic instruction in 
 Catholic cantons like Luzern, a Protestant in 
 Protestant cantons like Zurich. There is no 
 unfair dealing, no proselytizing, no complaint." 1 
 
 Among the rights exercised for the common 
 good by the federal government under* the con- 
 stitution of 1848, was the right, in the interest 
 of the Federation or a great part of the same, to 
 construct, or aid in the construction of, public 
 works at the expense of the Federation. To 
 this end, the Federation was authorized to exer- 
 cise the right of eminent domain. The deter- 
 mination of details in this matter was left to fed- 
 eral legislation; and it was also competent for 
 
 1 "Special Report on Certain Points connected with Elementary 
 Education in Germany, Switzerland, and France. " London, 
 1886, p. 8.
 
 THE COMMON PROSPERITY. 247 
 
 the Federal Assembly to prohibit the construc- 
 tion of public works which contravened the mili- 
 tary interests of the Federation. 1 The construc- 
 tion and control of railroads were clearly within 
 the scope of these provisions, and in December, 
 
 1849, this subject was brought to the attention 
 of the Federal Assembly. In the spring of 
 
 1850, the Federal Council proposed a law regard- 
 ing the exercise of the right of eminent domain, 
 which was adopted by the Federal Assembly. 
 This law had reference not merely to the con- 
 struction of railroads, but also to the construction 
 of any public works whatsoever, such as high- 
 ways and improvements in water-courses, which 
 the Federation might find it for its interest to 
 further. 
 
 Under the provisions of the constitution, the 
 federal legislature was free to make the con- 
 struction and maintenance of railroads an affair 
 of the state, or to leave their development to pri- 
 vate enterprise. The latter course was chosen, 
 as avoiding a degree of centralization which 
 might be dangerous to the well-being of the 
 Union. By a later federal law, concessions for 
 the construction and use of railroads by private 
 persons or corporations were to be sought im- 
 mediately from the ^cantonal, but ^needed to be 
 confirmed by the central, authority. Such con- 
 1848, Art. 21.
 
 248 GOVERNMENT OF SWITZERLAND. 
 
 firmation, however, could not be withheld except 
 in cases where the construction of the road 
 would violate the military interests of the Feder- 
 ation. The practical difficulties which arose 
 through the exercise of these extensive powers 
 by the cantons led the Federal Council to pro- 
 pose that the functions of the Union in railroad 
 affairs should be materially extended and those 
 of the cantons curtailed. 1 In keeping with this 
 proposition was passed the federal law of Decem- 
 ber 23, 1872. By this law, the right to grant 
 concessions to railroads, was vested solely in the 
 hands of the federal authorities, yet the co-oper- 
 ation of the cantons was to be sought in the pre- 
 liminary negotiations. " Through the railroad 
 law of 1872," says Dr. Blumer, "the whole sys- 
 tem of Swiss railroads was almost as completely 
 centralized as the affairs of the customs duties, 
 the post-office, and the mint." 2 The reason that 
 little or no opposition was offered to this impor- 
 tant movement toward greater centralization 
 has been found in the lack of cantonal traditions 
 regarding railroad affairs, and in the very evi- 
 dent need, in the limited territory of Switzer- 
 land, of unity of control. 
 
 The revised constitution of 1874 expressly 
 
 sanctioned the condition into which railroad 
 
 
 
 1 Blumer, II, 48. 
 Blumer, II, 48.
 
 THE COMMON PROSPERITY. 249 
 
 affairs had been brought by previous legislation; 
 for the constitutional provisions of 1848, regard- 
 ing public works, were retained in the twenty- 
 third article of the new constitution, and another 
 article was added, the twenty-sixth, declaring 
 that "legislation on the construction and man- 
 agement of railroads belongs to the Union." 
 Under these provisions has grown up the elab- 
 orate railroad law of Switzerland. 
 
 Under the provisions of Article 23, the federal 
 government has, moreover, contributed to the 
 execution of other public works. Conspicuous 
 among these are the works that have been con- 
 structed to confine the abundant waters of the 
 country within their proper limits; such, for ex- 
 ample, as the works on the upper Rhine and 
 Rhone. But in controlling the water and for- 
 ests of the mountains, the federal government 
 acts under a special constitutional provision. 
 This provision is contained in the twenty-fourth 
 article of the present constitution, which confers 
 upon the Union the right of supervision over the 
 police charged with the immediate control of the 
 forests and the works for the management of the 
 water in the mountainous regions. The federal 
 authorities contribute to the construction of 
 these works, also to replanting the regions where 
 the mountain streams have their sources. The 
 federal authorities, moreover, take the measures
 
 250 GOVERNMENT OF SWITZERLAND. 
 
 necessary to maintain these works, and to pre- 
 serve existing forests. Under these provisions, 
 it is possible for the federal authorities either to 
 take such positive and far-reaching action as 
 would confine the cantons to mere police activ- 
 ity, or to make certain fundamental determina- 
 tions and leave to the cantons a large and im- 
 portant sphere of operations. The latter course 
 has been chosen. 
 
 Besides the rights here exercised with refer- 
 ence to material interests, certain other rights 
 are conferred upon the Federation with reference 
 to that class of the population known as the 
 Heimatlosen, under which federal activity has 
 been specially favorable to the social progress of 
 the republic. Through various causes many 
 persons had fallen into this class and become 
 homeless; they had lost their rights of citizenship 
 and residence, and, as vagabonds, were driven 
 from canton to canton, and in their miserable 
 wanderings sought shelter in barns and forests. 
 By the existing constitution, it is ordered that 
 the federal legislature shall take measures to 
 give these persons a settled and recognized 
 place among the inhabitants of the country, 
 and to prevent new additions to this class. 1 In 
 favor of social order is also the constitutional 
 right which the federal authorities enjoy of ex.- 
 
 1 Article 68.
 
 THE COMMON PROSPERITY. 251 
 
 pelling from Swiss territory any foreigners whose 
 presence endangers the internal or external se- 
 curity of the Union. 1 Switzerland offers an 
 asylum to the members of all parties suffering 
 political persecution, as long as they show them- 
 selves worthy of such consideration by peaceful 
 conduct. The republic, however, grants them 
 no asylum, if, while on its territory, they con- 
 tinue their intrigues and attacks on the exist- 
 ence and security of other states. 2 Although 
 this hospitable policy has become customary, 
 yet there are no grounds on which hospitality 
 may be claimed by anyone under persecution. 
 
 The constitutional provision touching this 
 matter is only negative in its indications; it con- 
 fers the right to expel foreigners under certain 
 conditions, but not the right to quarter them on 
 any canton against the will of such canton. 
 
 However hospitable might be the designs of 
 the Swiss with regard to persecuted foreigners, 
 yet, as compared with the United States, their 
 rugged country presents few resources through 
 which refugees may find daily support or a bet- 
 terment of their fortunes. In fact, the meager 
 resources of Switzerland have made it annually 
 necessary for a certain part of the native popula- 
 tion to emigrate. Between the end of 1868 and 
 
 1 Article 70. 
 
 3 Blumer, II, 252.
 
 252 GOVERNMENT OF SWITZERLAND. 
 
 the end of 1877, 35,158 persons emigrated from 
 twenty cantons and half-cantons, exclusive of Uri, 
 Frieburg, Solothurn, Vaud, and Geneva. These 
 facts seemed to indicate that some general con- 
 trol of emigration and the agents through which 
 it was furthered, was desirable. The constitu- 
 tion of 1848 contained no provision regarding 
 this subject; it was, however, taken up by the 
 federal legislature, and later recognized in the 
 thirty-fourth article of the existing fundamental 
 law. 
 
 In determining what the federal government 
 may do towards increasing the common pros- 
 perity, the Swiss have not seen fit to leave the 
 Federal Assembly and the Federal Tribunal 
 any great discretionary power. Through the 
 constitution they have determined specifically 
 many things which under a general provision 
 might have been clearly interpreted to belong, 
 as the case might be, to either federal or can- 
 tonal authority. Of such articles of specific 
 authorization, many have already been consid- 
 ered. In this list may also be placed Article 69, 
 which empowers the Union to pass laws regard- 
 ing sanitary police regulations concerning cattle 
 pests and such epidemics as threaten the public 
 health; Article 34, which confers upon the Fed- 
 eration the right to legislate with respect to the 
 employment of children in factories, the hours of
 
 THE COMMON PROSPERITY. 253 
 
 work for adults, and the means of protecting la- 
 borers against such employments as endanger 
 their health or safety; and Article 35, which 
 gives the federal authorities the right to take the 
 necessary measures with respect to lotteries, and 
 in which at the same time it is directly declared 
 that the erection of gambling houses is prohib- 
 ited, that those in existence must be closed on 
 the 3ist of December, 1877, and that all conces- 
 sions granted or renewed after 1871 were null 
 and void. In the same class belongs, moreover, 
 Article 25, which authorizes the federal govern- 
 ment to establish regulations under which hunt- 
 ing and fishing may be carried on, with the view 
 of preserving the larger game, and also such 
 birds as are useful to agriculture and forestry. 
 
 The most important act, comprehensive of 
 many others, towards the attainment of the com- 
 mon prosperity of the several lands now united 
 under federal control was the transfer of sover- 
 eignty from the individual cantons to the Union . 
 The internal revolution which is marked by this 
 transfer of power, and whose constitutional re- 
 sults are set forth in the preceding pages, intro- 
 duces a new period in the history of Swiss in- 
 stitutions. The cantons as individual organisms 
 do not stand as isolated facts in the political 
 history of Europe. They are representatives of 
 a large class of political organizations which be-
 
 254 GOVERNMENT OF SWITZERLAND. 
 
 came conspicuous in the later centuries of the 
 middle ages. The fact that has given them 
 special significance is their union and the devel- 
 opment among them of social and political ties 
 which have established the essential conditions 
 of national life and growth. This revolution, 
 effected by the peaceful processes of constitu- 
 tional amendment and legislation, has placed 
 the events of Swiss history during the last fifty 
 years in line with the movements towards unity 
 which have been carried on in Italy and Ger- 
 many, and by binding the several cantons so 
 firmly under a central power as to remove the 
 liability of disintegration, has justified the em- 
 phasis here given to the establishment of federal 
 institutions as the most important achievement 
 in the political history of Switzerland.
 
 INDEX. 
 
 Aargau, 32, 36, 37, 41, 45, 52. Centralists, 33-35. 
 
 Act of Mediation, 34, 36, 39, 43, 46, Citizens, representation of, 98. 
 
 47, 48, 95, 168, 189, 190, 203, 221 Citizenship, 207-212; loss of, 210. 
 
 Alliances, early, 20; not permitted to Civil rights, 210. 
 
 cantons without consent of Diet, 25 ; Children, 215; employment, 52. 
 
 with France, 33, 42, 189; of cantons, Class distinctions in S., 8. 
 
 168, 171; for const, guarantees, 52. Coinage, 240. 
 
 Allies, 43 ; invade Swiss territory, 43; Congress of Vienna, Swiss ambassa- 
 
 determine integrity of S., 44; ac- dors at, 45; neutrality, 46, 86. 
 
 cord neutrality, ^5, 46. Conscience, rights of, 6, 213. 
 
 , , , , , , . ., , , . 
 
 Arbitration, court of, in S., 154, 156. Consts. guranteed, 38, 47, 166, 223. 
 
 Argentine Republic, 56; const, pre- Courts, 1798, 31; of the U. S., 140; 
 
 amble, 57; const, amended, 60; dis- jurisdiction of, 150-152; of the Ar- 
 
 tribution of power in, 93 ; ratio of gentine Republic, 141 ; Canadian, 
 
 rep., 98; suffrage, 99. relation to English and U. S., 146- 
 
 Aristocracy, in England, 64, 78; ori- 151 ; in S., 153-163. 
 
 gin of, 80; in Greece, Italy, Nether- Convents, 214. 
 
 lands, Switzerland, 81. Customs duties, 194, 195, 227, 228. 
 
 Articles of union, 1291, 15, 16. Defensional, 28. 
 
 Association, right ot, 217. Democracy, in confl'ct with feudalism, 
 
 Austria 17, 21, 22, 37, ^5. n; French, 29; return to 63. 
 
 Basel, 19, 40, 45; division of 5^ Diet, 23; meetings of, 23; summoning 
 
 Belief, freedom of, 21^. the, 24; powers of, 24; subordinate 
 
 Bern, joins the union, 1353, 17; ner States represented in, 24 ; only or- 
 
 policy, 17 ; quota, 28; divided, 32; gan of the Conf , 23, 26; under Act 
 
 territory taken from, 36; lands to of Mediation, 41; powers of, 41 ; at 
 
 Vaud., 37, 40, 41; seeks pre-revolu- Zurich sets aside the Act of Meili- 
 
 tionary conditions, 43, 45,49, 52, 157. ation, 43; of 19 cantons at Zurich, 
 
 Bishoprics, 214. 1814, 44; cantonal rep. in, 48. 
 
 British N. Am. Act, 89, 100, 147. Directorial canton, 40, 42- 
 
 Burgermeister of I'orort, 49. Directory, 1798, 31-33. 
 
 Cantons, primitive purposes of, n; Distribution of power, 56-96. 
 
 increased, 13-19, 36; sovereignty of, Divorce, 215. 
 
 29; new, 1798, 32; in military af- Duties, by cantons, 227, 229, 230. 
 
 fairs, 193; comp. with States, 181. Education, 242. 
 
 Cantonal consts. revised, 50; 178. Emigration, 251. 
 
 Capital punishment, 220. Empire, Swiss lands in relation to, 10. 
 
 Capitulations, military, 176. Equality, 3, 4; of States, 108, 203, 
 
 Catholic cantons, 6 ; defeated, 54. Executive, 121-139; '" Canada, 122; 
 
 Catholics and Protestants, union, 7. in Germany, 123; in Am., federal 
 
 Censorshipj 216. republics, 135; in U.S., 125; Mex- 
 
 Centralization demanded in military ico, 127; Col. 128; S, 133. 
 
 affairs, 27 ; need of, in S., 28, 35 ; of Exemptions from military tax, 198. 
 
 1798, effect of, 38; 69, 241. " Extradition, 172-186. 
 
 (255)
 
 256 
 
 INDEX. 
 
 Federal Assembly, elects Federal Tri- in Argentine Republic, 129; in Co- 
 
 bunal, 156; determines seat of Fed. lombia, 129; qualifications, 130; eleo 
 
 Trib., 157; decides questions of ju- tion in Mexico, 130; term 131:1. IM- 
 
 risdiction, 159, 169, 179; convoked, of vacancy, 132; conditions of re- 
 
 180. election, 133; in S., 134. 
 
 Federal Council, in Germany, 106; Press, freedom of, 215, 217. 
 
 membersof, io9;officersof, i34',salary Privileges in transportation, 230. 
 
 of, 135; powers of, 135; relation to Public works, 41, 246, 249. 
 
 legislature, 135 ; distribution of func- Railroads, 247-249; tax on, 201. 
 
 tions, 137; compared with English Referendum, 117-120. 
 
 Cabinet, 138; i6g;in foreign affairs, Relations, foreign, 164; internal, 178. 
 
 172; on foreign service, 175; 179; Representatives, 65, 81, 83, 104. 
 
 informed of internal conflicts, 180. Revenue, 19^. 
 
 Federal tribunal, after 1874, 157; sala- Rights, political, 48, 223, 203-205. 
 
 ries, 157; place of meeting deter- St. Gallen, 24, 28,32, 36, 37, 41, 45. 
 
 mined, 157, 169, 179. St. Gpthard, 2, 228. 
 
 Foreigners, 251. Salaries of legislators, 112, 113. 
 
 France, 21, 22; alliance with, 25; Sanitary regulations, 252. 
 
 crisis in, 33; enlists Swiss, 42, 45, 85. Sarnen, league of, 52. 
 
 Free trade between cantons, 221. Schaffhausen, i, 2, 19. 
 
 Freemen, assembly of, 18. Schwyz, 5, 13, 45, 52. 
 
 Freiburg, 18, 19, 37, 40. Secession, 43; of 1846, 53. 
 
 Glarus, 17, 32, 45. Secretary, 42; general, 50. 
 
 Graubttnden, i, 7, 37, 41, 228. Senate, 1798, 30; in federations, 105. 
 
 Gurantee of constitutions, 51 52, 165. Senators, io6 ; 108, 112. 
 
 Gunpowder, 195, 197. Settlement, right of, 207. 
 
 Helvetic Republic, 20, 29, 30, 33, 189. Shipping, 231. 
 
 Independence, 19, 20, 21. Solothurn, 18, 19, 40, 52. 
 
 Initiative, 1 16. Sonderbund, 52. 
 
 Instruction, primary, 243. Speaker, 111-112. 
 
 Intolerance, religious, 212. Spirit Monopoly Bill, 196. 
 
 Jesuits, 53, 214, 243. Sovereign, 57, 60, 61. 
 
 Judgments, civil, 179, 187. Sovereignty, 29, 30, 46,47, 253. 
 
 Judiciary, the, 140-163. Stantz, agreement at, 18. 
 
 Jurisdiction of federal courts, 150-153; Suffrage, conditions of, 99,208. 
 
 of Swiss Federal Tribunal, 158-162. Supreme Court, 74, 140, 141, 145, 149. 
 
 Landamman, 40, 42, 49, 232. Switzerland, critical period, 19; terri- 
 Liquors, revenue from, 195. tor^ i ; as ally, 21; as independent 
 
 Luzern, 14, 16, 17, 28, 40, 49, 52, 157. Stzro, 21; aristocracies in, 81. 
 
 Majority rule, 26. Tariff system, 226; tax, military, 197. 
 
 Marshall, Chief Justice, 164. Telegraph, 238-240. 
 
 Marriage, 214, 215. Territorial changes, 20, 164, 165. 
 
 Mercenany service,' 172-175. Territory guaranteed, 165. 
 
 Monopolies in transportation, 230. Thurgau, 5, 37, 52. 
 
 Napoleon, points out need of S., 34; Ticino, i, 2, 7, 37, 45, 228. 
 
 withdrawal of the army, 35; deals Titles, foreign, 176, 177. 
 
 with the new cantons, 37-42. Tolls for public works, 227. 
 
 Neufchatel, 45, 54, 167. Treaty power, 171. 
 
 Nobility, title of, 177. Troops, 26, 40, 42. 
 
 Pardon, 162. Unterwalden, 5, 13, 45, 52. 
 
 Parties, city and country, 17, 18. Uri, 5, 13, 45, 52, 63, 228, 230. 
 
 Pensions, foreign, 176. Vaud, 36, 37, 41, 45. 
 
 Post and telegraph, 194. Vorort, 24, 49. 
 
 Power, distribution of, 56-96; re-distri- Wallis, 5, 45, 52, 228. 
 
 bution in England, 74; source of, Weights and measures, 241. 
 
 80; drift of in Germany, 86; ex- Worship, right of, 212, 213. 
 
 pressly delegated, 93-96. Zug, 5> '7> 32, 45. 
 
 President, of legislative bodies, in; Zurich, 14, 17, 28, 40, 41, 43, 49, 52. 
 
 election by minority, 129; election
 
 
 
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