Part 5 — CHAPTER XXII

THE CONSTITUTIONAL SYSTEM—THE CANTONS

I. The Confederation and Its Constitution

Among the governments of contemporary Europe that of the federal republic of Switzerland is unique; and the constitutional experiments which have been, and are being, undertaken by the Swiss people give the nation an importance for the student of politics altogether out of proportion to its size and population. Nowhere in our day have been put to the test in more thoroughgoing fashion the principles of federalism, of a plural executive, of proportional representation, of the initiative and the referendum, and, it may be said, of radical democracy in general. The results attained within a sphere so restricted, and under conditions of race, religion, and historical tradition so unusual, may or may not be accepted as evidence of the universal practicability of these principles. At the least, they are of acknowledged interest.

452. The Constitution of 1848 and the Revision of 1874.—The war was worth while, because the crisis which it precipitated afforded the liberals an opportunity to bring about the adoption of a wholly new constitution. For a time the outlook was darkened by the possibility of foreign intervention, but by the outbreak of the revolution of 1848 at Paris that danger was effectually removed. The upshot was that, through the agency of a committee of fourteen, constituted, in fact, February 17, 1848—one week prior to the overthrow of Louis Philippe—the nationalists proceeded to incorporate freely the reforms they desired in a constitutional projet, and this instrument the Diet forthwith revised slightly and placed before the people for acceptance. By a vote of 15-1/2 cantons (with a population of 1,900,000) to 6-1/2 (with a population of 290,000), the new constitution was approved.

II. The Nation and the States

Like the American states, but unlike the German, the Swiss cantons enjoy a complete equality of status and of rights. They are forbidden to enter into alliances or treaties of a political nature among themselves, though they are permitted to conclude intercantonal conventions upon legislative, administrative, and judicial subjects, provided such conventions, upon inspection by the federal officials, are found to be devoid of stipulations contrary to the federal constitution or inimical to the rights of any canton. In the event of disputes between cantons, the questions at issue are required to be submitted to the federal government for decision, and the individual canton must refrain absolutely from the use of violence, and even from military preparation.

456. Powers Vested Exclusively in the Confederation.—Within the text of the constitution the division of powers between the federal and the cantonal governments is minute, though far from systematic. The clearest conception of the existing arrangements may perhaps be had by observing that provision is made for three principal categories of powers: (1) those that the Confederation has an exclusive right to exercise, some being merely permissive, others obligatory; (2) those which the Confederation is required, or allowed, to exercise in concurrence with the cantons; and (3) those which are not permitted to be exercised at all.

III. Cantonal Legislation: the Referendum and the Initiative

The point at which the governments of the cantons differ most widely is in respect to arrangements for the exercise of the functions of legislation. Taking the nature of the legislative process as a basis of division, there may be said to be two classes of cantonal governments. One comprises those in which the ultimate public powers are vested in a Landesgemeinde, or primary assembly of citizens; the other, those in which such powers have been committed to a body of elected representatives. The second class, as will appear, falls again into two groups, i.e., those in which the employment of the referendum is obligatory and those in which it is merely optional.

461. The Greater Council.—In every canton, whether or not of the Landesgemeinde type, there is a popularly elected representative body, the Greater Council, which performs a larger or smaller service in the process of legislation. This body is variously known as the Grosser Rath, the Landrath, and the Kantonsrath. In the cantons that maintain the Landesgemeinde the functions of the Greater Council are subsidiary. It chooses minor officials, audits accounts, and passes unimportant ordinances; but its principal business is the preparation of measures for the consideration of the Landesgemeinde. In the cantons, however, in which the Landesgemeinde does not exist, the Greater Council is a more important institution, for there it comprises the only law-making body which is ever brought together at one time or place. Where there exists the obligatory referendum, i.e., where all legislative measures are submitted to a direct popular vote, the decisions of the Council are but provisional. But where the referendum is optional the Council acquires in many matters the substance of final authority.

462. The Referendum: Origins and Operation.—The most interesting if not the most characteristic, of Swiss political institutions is the referendum. The origins of the referendum in Switzerland may be traced to a period at least as early as the sixteenth century. The principle was applied first of all in the complicated governments of two territories—the Grisons and the Valais—which have since become cantons but which at the time mentioned were districts merely affiliated with the Confederation. In the later sixteenth century there were traces of the same principle in Bern and in Zürich. And, in truth, the political arrangements of the early Confederation involved the employment of a device which at least closely resembled the referendum. Delegates sent by the cantons to the Diet were commissioned only ad audiendum et referendum; that is to say, they were authorized, not to agree finally to proposals, but simply to hear them and to refer them to the cantonal governments for ultimate decision.

IV. The Cantonal Executive and Judiciary

465. Local Administration.—For purposes of administration all cantons, save a few of the smaller ones, are divided into districts (187 in the aggregate), at the head of each of which is placed a prefect or Bezirksammann. This official, whether chosen by the Council of State, by the Greater Council, or even by the people of the district, is in every sense a representative of the cantonal government. Sometimes he is assisted by a Bezirksrath, or district council; frequently he is not. In Schwyz there is a Bezirksgemeinde, or popular assembly, in each of the six districts, but this is wholly exceptional.

466. Justice.—Each canton has a judicial system which is essentially complete within itself. Judges are elected by the people. The hierarchy of civil tribunals—the Vermittler, or justice of the peace, the Bezirksgericht, or district court, and the Kantonsgericht—is paralleled by a hierarchy of courts for the trial of criminal cases, a special committee or chamber of the Kantonsgericht serving as the criminal court of last resort. Only in few and wholly exceptional instances may appeal be carried from a cantonal to a federal tribunal.