The Government of Switzerland

THE mechanism and spirit of the institutions of Switzerland have not been hitherto much studied either in England or America. Our race visits the little republic by thousands every year; we climb the mountains and sail the lakes, fee the waiters and quarrel with the landlords; but we bring home very little knowledge of what is really the fairest object in Switzerland: the government itself, with its deep, historical background ; the political system, with all its range of light and shade, of hope and danger. On the principle de minimis non curatur, or some other, even the publicists have passed it by with scanty notice. Students of other institutions have long deplored this neglect, which has left the smallest free commonwealth of Europe almost unknown in the oldest, and the oldest federal republic in the world unknown to the greatest ; which amounts almost to contempt for a very valuable stock of political experience. But some reparation for the past is now made. By a curious coincidence there have just appeared two works, strikingly alike in general scope and method, one English and one American, on the system of government in the Alpine republic, its history and principles, its virtues and vices.1

It would probably be wrong to ascribe this sudden bounty to remorse or repentance alone ; there are real reasons why Swiss institutions and affairs should have just now a peculiar interest, and even excite an unusual sympathy. One of these is the state of international relations in Europe. Everybody knows that the times are not favorable to small states which stand in the way of the arms, or the ambition, or the greed of great ones, and there is an uneasy feeling among the best observers that the day is not far remote when Switzerland will have to fight for her existence. She has snubbed Bismarck, and Bismarck never forgives an injury. Her territory offers a convenient route for the rival armies when the war of revanche begins ; and it has lately been argued with no little cogency in a foreign periodical that France, at least, will not hesitate to brush away the neutrality of the republic, in spite of all the guaranties, as the Allies did in 1814. Graver apprehensions are even heard that the Triple Alliance may need the territory of the republic to round off frontiers and adjust accounts in the next European settlement. These fears may be premature or exaggerated, but they exist, and they explain in part the new interest in the little state. Another explanation, which holds good at least for England, is found in the Irish problem and the colonial problem. These both involve schemes for changing the existing relation between members of a great empire ; and though one of them has not got beyond the stage of informal discussion, both alike invite and almost require the comparative study of the institutions of other countries. In the projects which have been submitted the federal system of government plays a large part. The United States naturally have the honor of furnishing the greatest amount of material in the arguments for and against this system ; but the Swiss Confederation yields an example which clearly fits the most acute of the two British problems, — the problem of uniting peoples of different race and religion under one common and harmonious government. Evidently, the Act of Union has failed to do this in the case of England and Ireland, as the old system failed before the Union. In Switzerland, however, it has been done, — not, indeed, without frictions, not without armed collisions, and not until after many trials and experiments ; but it has been done, and on the whole successfully. It is natural, therefore, for Mr. Dicey and Mr. Bryce to refer frequently to Switzerland for illustrations, not only of the federal system in itself, but also of the federal system as applied to a problem such as making the Roman Catholic Irish and the Protestant English live together in peace ; and every Englishman who honestly desires the best solution must be drawn to the same comparative method.

The authors of the two works on Switzerland have therefore rendered an opportune service. That works on the same subject and so much alike in many respects should appear at the same time is, as we have said, a noteworthy coincidence. But though they are very much alike, there is one general difference between them. The English authors aim to give a detailed picture of Swiss institutions. local as well as national, religious, educational, and military as well as political ; and to show not only their structure, but also their operation. The American professor adopts narrower and more precise limits. His book is more properly a treatise on the federal system of government as organized in Switzerland ; it is critical as well as descriptive ; and reversing the familiar rule that things should be explained by other things better known, he draws freely for illustrations upon the unexplored constitutions of Mexico and other republics of Central and South America. Both works, it may he added, give a brief sketch of the rise of the Swiss governments, but neither prints the text of the existing constitution.

Americans are, perhaps, interested mainly in the points of difference between Swiss federalism and their own, or, to be a little more precise, in the different devices by which the two systems meet the problems peculiar to federalism, as distinguished from what publicists call the " Unitarian ” governments. One of these concerns the interpretation of the fundamental pact, or articles, or constitution, on which the union rests. With us this function is performed, of course, in the last resort by the Supreme Court; and there is, perhaps, no other part of our system which has extorted more admiration from foreign critics than this exalted prerogative of the judiciary. But when we turn to the federal tribunal of Switzerland, we find a body of much more limited powers and far less dignity. The judges are elected by the legislature: their term of office is only six years ; their decisions are enforced by the executive ; and they have no power to pass upon the constitutionality of any act of federal legislation, or indeed upon the legality of any measure of the federal authorities. Even the extent of the court’s jurisdiction seems to be determined, in part at least, by the laws rather than by the constitution, and is thus subject to change at any time. In short, this tribunal is nearly a mere servant of other organs of the government, and not, like our own Supreme Court, a mediator between them, or even a superior above them.

If now the Swiss court loses by comparison with the American, it might seem that the Swiss legislature, the Federal Assembly, must gain. It practically creates the court, largely fixes its sphere of action, and its own acts are not subject to judicial revision. But this is not all. It elects in the same way the members of the federal executive ; and although it cannot exactly turn them out during their term of office, it enjoys such extensive power of supervision and control over their acts, and in fact exercises so large a part of what we should call the executive discretion, that it can, practically, have very little reason for desiring to turn them out. The pardoning power, for instance, belongs to it, and it can in a measure initiate foreign policies. If we stopped here, then, we might naturally call Switzerland a parliamentary republic, as the United Provinces were in the seventeenth and eighteenth centuries. We might even class the Federal Assembly with the sovereign Parliament of England.

Yet such a comparison would be grossly misleading. If the Swiss legislature stands above the executive and the judiciary, there is another power which stands, not only in the final theory, but even in the daily practice of the constitution, above the legislature. This power is, of course, the people themselves. It is well known that students of Austin have some real or affected difficulty in locating the seat of sovereignty in this country. Perhaps Mr. Dicey is right in suggesting that it lies with that body or that majority, formed by three fourths of the States, which has the power to amend the constitution. But, as Mr. Moses observes, no such doubt can arise in the case of Switzerland. For in Switzerland not only proposed changes in the constitution, but, on the demand of thirty thousand citizens or eight cantons, any act or resolution of a general nature passed by the Federal Assembly, must be submitted to the popular vote. This is the famous Swiss Referendum, and the first thing to be said of it is that it shows clearly where the seat of sovereignty is located. The chief disagreement of our authors (and it is a somewhat serious disagreement) is in regard to what may be called the status of the institution. Sir F. O. Adams describes it as having overcome nearly all opposition, and as having now taken its plaee in the settled polity of the state; but Professor Moses thinks it is still an experiment, about which the Swiss people are by no means unanimous. Either view must, from the nature of things, be largely conjectural. The facts given in the English work seem, however, to show an increasing frequency in the use of the federal Referendum. Thus in 1884. ten years after the extension of the system to ordinary laws, four acts were submitted and rejected, one of them being for the establishment of a secretaryship to the Swiss legation at Washington, at a salary of two thousand dollars.

Such trivial cases bring the institution into close analogy to our township or village system, where the people vote on a proposition to buy a fire-engine or to build a bridge. But in its larger significance it shows us the substitution of pure for representative democracy ; and this we regard as a distinct step backward. It used to be one of the commonplaces of political philosophy that republics were possible only in small states. It is a later commonplace that this idea prevailed only because the principle of representation was unknown, and a republic meant a state in which the people administered their own affairs directly, in general assemblies of the freemen. Switzerland still has these assemblies in the Landsgemeinden of some of her cantons, and we have them in our New England town-meetings, which Tocqueville found so instructive, and which Mr. Freeman traces back to the Germans of Tacitus. But the town-meetings, whatever may be said of the Landsgemeinden, are now purely local gatherings. In every larger sphere, the theory of our institutions assumes that, ordinarily, the people speak and act through their representatives, as was also the case in Switzerland until 1874 ; and unless that theory is false, unless the principle of representation is only a makeshift, it is not a healthy sign that the fashion seems to set just now toward the restoration of pure democracy on a large scale in the form of devices like the plébiscite, the referendum, and the " reference to the people.” A real appeal to the people exists in every representative government whenever there is a general election for the legislature. Our own institutions, state as well as national, also have special provision for the case of changes in the organic law. But as Burke observed, it is not wise to make the medicine of the constitution its daily food ; and a study of Swiss institutions, which, on account of the difference of scale, may not yield much instruction for us, may nevertheless in this particular case be of service by calling attention to certain unfortunate parallels which our own recent tendencies exhibit.

To the Referendum corresponds, in Switzerland, the Initiative. It works in precisely the opposite direction, but it is open to the same theoretical objection, namely : that it corrupts the representative principle by the intrusion — that is, the introduction at the wrong time and place — of pure, or at least direct democracy. Fifty thousand Swiss citizens can, at any time, set the machinery of constitutional revision in motion. On the petition of this number, the Federal Assembly is bound to submit the desirability of revision to the popular vote ; and should the majority be in the affirmative, the Assembly is dissolved, and a new one chosen, whose duty it is to prepare and submit articles of revision, or, as we should say, amendments. To become valid these must be approved by a majority of the people and a majority of the cantons. The system, though modeled upon one of the alternative methods by which amendments to our own federal constitution may be proposed, thus contains one significant modification of it: the people appear in their national character, and independent of state lines. The same holds true of the ratification of amendments. Of course the Federal Assembly may itself propose amendments, as may Congress, without any demand from the people. A sort of Initiative also exists under which the authorities of any canton can submit legislative propositions to the Federal Assembly, which is bound to consider them. But the Initiative seems not yet to have taken root so firmly as the Referendum. Sir F. O. Adams says the institution is still in its infancy, and he suggests, reasonably enough, that there “ is great difficulty in embodying this right in a form at once simple and efficacious.” It cannot be said that either he or Professor Moses gives as full an account of the operation of the Referendum and the Initiative — for foreigners the most interesting features of the Swiss system—as might be desirable. An author has, however, the right to choose his own subject; and it is doubtful, in spite of daily examples, whether criticism ought to attack Smith, who writes a history of Greek art, because he did not, like Brown, confine himself to a history of Greek sculpture.

The federal constitution of Switzerland guarantees, in the usual continental form, nearly every right precious to humanity in the nineteenth century. It guarantees the freedom of the press, freedom of religion, freedom of public meeting, the “ liberty and rights of the people,” the " constitutional rights of the citizens,” the territory of the cantons, their sovereignty, and their constitutions. But the value of such guaranties depends on the resources for enforcing them, and to find and use adequate resources is one of the knotty problems in every federal government. Now the federal executive in Switzerland rebukes, coerces, and punishes offending cantons in a way unknown to our institutions. The cantonal constitutions need the federal guaranty, which is accorded only on certain conditions ; and it seems that an amendment to any of these constitutions becomes valid only when ratified by the central authorities, no concrete case being necessary, as with us, to test it. In a word, the Swiss procedure for assuring the supremacy of the federal constitution is political, ours judicial. The former is in harmony with Continental methods, and of course suits the Swiss themselves, or they would not have it. But Americans may be pardoned for preferring to have such conflicts settled by the orderly procedure of the courts of law.

The Federal Government of Switzerland. An Essay on the Constitution. By BERNARD MOSES, Ph. D., Professor in the University of California. Oakland: Pacific Press Publishing Company. 1889.

  1. The Swiss Confederation. By Sir F. O. ADAMS and C. D. CUNNINGHAM. London: Macmillan & Co. 1889.