2. In 1885, Article xxxii. of the Constitution was modified so that drinking-places and the retail trade in spirituous liquors should be excepted from the guarantee of freedom of trade and of industry; but the Cantons might by legislation subject the keeping of drinking-places and the retail trade in spirituous liquors to such restrictions as are required for the public welfare. And Article xxxii. bis was added authorizing the Confederation by legislation to regulate the manufacture and sale of alcohol. In this legislation those products which are intended for exportation, or which have been subjected to a process excluding them from use as a beverage, shall be subjected to no tax. Distillation of wine, fruit, and the products of gentian roots, juniper berries, and similar products are not subject to Federal legislation as to manufacture or tax. After the cessation of the import duties on spirituous liquors, as provided for, the trade in liquors not distilled shall not be subjected by the Cantons to any special taxes, or to other limitations than those necessary for protection against adulterated or noxious beverages. Nevertheless the powers of the Cantons defined in the Constitution are retained over the keeping of drinking-places, and the sale at retail of quantities less than two litres. The net proceeds resulting from taxation on the sale of alcohol shall belong to the Cantons in which the tax is levied. The net proceeds to the Confederation from the internal manufacture of alcohol, and the corresponding addition to the duty on imported alcohol, shall be divided among all the Cantons in proportion to population. Out of the receipts therefrom the Cantons must expend not less than one-tenth in combating drunkenness in its causes and effects. The Confederation shall provide by law that for such Cantons or Communes as may suffer financial loss through the effect of this amendment, such loss shall not come upon them immediately in its full extent, but gradually up to the year of 1895.[26]
3. In 1887, Article lxiv. of the Constitution was so amended as to give the Confederation the power to make laws, “On the protection of new patterns and forms, and of inventions which are represented in models and are capable of industrial application.”
All amendments to the Swiss Constitution are incorporated in their logical place in the text immediately upon their adoption.
Much legislation called for by the mandatory provisions of the Constitution, and suggested by the discretionary powers vested in the Confederation, has passed into Federal statutory enactments. A few may be mentioned. An elaborate law as to military service, tax for exemption therefrom, and pensions; statutes regulating labor in factories, containing a wide range of provisions for the health and safety of employés; the practice of the professions of medicine and dentistry; the construction and management of railroads; the protection of literary and artistic property and patents; hunting and fishing; the control of forests, dikes, and water-courses in the mountainous regions; the election of members of the Federal Assembly and organization of the Federal Tribunal; the method of taking the Referendum; rights of citizenship and expatriation; banking and bankruptcy; emigration and immigration. There are very comprehensive laws also as to “civil capacity and obligations” and “marriage and divorce.” The Federal law on “civil capacity and obligation” comprises more than nine hundred articles, and deals with every imaginable kind of contract except that relating to the acquisition and transfer of the ownership of land; this forming part of the independent legislation of the several Cantons. The law of “marriage and divorce” includes registration of births and deaths, and presents a law which is a carefully-prepared, scientific whole. The legal age of marriage; degrees of consanguineous or other relationship; consent of parents; rules for notice of intention; provision for verifying the facts alleged; certification both of the fact and means of the dissolution of a previous marriage, whether by death or divorce; strict requirements for publication of the banns; restrictions as to locality within which the marriage must occur; civil marriage made obligatory; and details of the conditions under which marriages may be declared void and divorces granted; these constitute some of the main features of the law.
The Constitution, with the evolution through Federal laws made necessary by it, contains much detail, showing the mind of the German race therein. It is not confined to an enunciation of general principles, but determines specifically and at length, with some confusion of repetition and at times distressing prolixity, many things which, under a general provision, might have been clearly interpreted to belong, as the case might be, to either the Federal or Cantonal authority. It contains a large number of articles which have no reference to the distribution or exercise of sovereign power, but which embody general maxims of policy or special provisions as to matters of detail, to which the Swiss attach great importance, and which therefore they do not wish to be easily alterable. It goes far beyond that of the United States in inscribing among constitutional articles either principles or petty rules which are supposed to have a claim of legal sanctity. It gives to the Federal authorities power and supervision over a variety of special interests; a system that may work well in a small country, but not in one so large as the United States, with such diversified and local aspects. For these reasons the text of the Swiss Constitution is not so brief,[27] nor its language so terse, as that of the United States, which a famous English statesman has called, “The most wonderful work ever struck off at a given time by the brain and purpose of man.” The Swiss Constitution leaves little room for contention in the construction of its phraseology, meaning the same thing to-day, to-morrow, and forever. Its written provisions, stipulations, and guarantees leave little room for the exercise of “doubtful powers.” With such a mass of detail, the Confederation is not competent to act directly; the execution of much is left to the Cantons acting under the supervision of the Federal authorities, which only interfere where the former neglect or refuse to fulfil their obligation.
The repeated and remarkable stipulations of the Constitution, reaching almost every conceivable exercise of religious action and freedom, present one of its most marked characteristics and radical departures from that of the United States. The latter contains only two allusions to the subject. The first in Article VI.: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” The second in the first amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Previous to the Swiss Constitution of 1874 there was no mention of individual religious liberty. That of 1848 guaranteed the free exercise of divine worship to the recognized confessions, the Roman Catholic and the Reformed (i.e., the Church Reformed by Zwingli and Calvin), but forbade the order of Jesuits. It is manifest that the framers of the Constitution of 1874 were resolved to effectually suppress the further exercise of the ecclesiastical narrowness and sectarian antagonism which, as late as the Sonderbund War of 1847, disturbed the peace and threatened the stability of the Confederation. The extreme rigor with which these provisions of the Constitution are enforced, and the latitude of action given under them to Cantonal authority, do appear at times to be strained to an extent deaf to both humanity and common sense. In 1888, “Captain Stirling,” of the Salvation Army, a subject of Great Britain, was sentenced in the Canton of Vaud to one hundred days’ imprisonment in Chillon Castle for attempting to proselyte some children. The appeal made in her behalf to the Federal Council was refused, and she was compelled to complete the term of her sentence. Surely no danger was threatened that might not have been averted by her removal to the frontier, or the offence atoned for by a slight fine. The case presented an appeal to that unknown quantity, the Swiss sense of the ridiculous. The sanctity of the law is all very well; but when the law is one against persons who sing hymns to children in the street, and its terrors are those of Bonnivard’s prison, the plot of the drama seems hardly equal to the majesty of the scene. To put a young lady, for so trivial an offence, under triple bolts and bars for months is a piling up of the agony which indicates a singular weakness of dramatic resource. Perhaps the military style of the movements in these days of alarming concentrations on Continental frontiers may have invested the “colonels” and “captains” in the Salvationist train, even of the gentler sex, with undue importance and alarm. It is difficult to reconcile Federal and Cantonal action in Switzerland in this and other instances with the spirit of the inviolability of freedom of faith and conscience guaranteed by the Constitution. Religious liberty encounters no little restriction and abridgment in several of the Cantons. Each Canton has still its own established Church, supported and ruled by the civil magistrate. In recent times free churches have been founded in Geneva, Neuchâtel, and Vaud, and are showing a high degree of spiritual vitality and liberality. It would be better if it could work out an entire dissolution of the connection between Church and State throughout the Confederation, and religion be allowed to take its natural course.
The Constitution of Switzerland is a conscious and sagacious reproduction of the Constitution of the United States, with noteworthy variations called for by the different conditions of the two commonwealths. The Government of the United States is one of limited and enumerated powers; “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The restrictions under the Swiss Constitution apply mostly to the Cantons. In Switzerland, as in the United States, there is no single determinate sovereign body or assembly, or any real sovereign other than the people themselves. In the Swiss Confederation the popular will does everything; the legislative power being directly exercised by the body of the people by way of Referendums. In the Republic of France the tendency is to centralize the direction of public affairs almost entirely in the Chamber of Deputies. In the United States it is claimed, with some color of truth, that the initiative and legislation are being gradually taken away from Congress by a very occult, but authoritative, government of committees.
The separation of persons and functions is most complete in the United States; the Constitution enforcing a distribution of powers, and directly or indirectly the powers of every authority existing under it are defined, limited, and carefully regulated. In the Swiss Constitution these respective powers are not at all clearly distinguished; in fact, they seem to have been purposely left indeterminate. There are none of the elaborate checks and interlocking vetoes found in the United States. It is true the Swiss have the three organs,—a Federal Legislature, a Federal Executive, and a Federal Court; but they fail in the strict separation of each of these departments from and its independence of the other. Said John Adams, “Here is a complication and refinement of balances, which for anything I recollect, is an invention of our own and peculiar to us.”
There is also an entire absence from the Swiss Constitution of any provisions touching those personal rights and ancient muniments of liberty designated as the “Bill of Rights;” such as are contained in the first ten amendments of the Constitution of the United States; those fundamental principles that guarantee to the individual a sphere of liberty upon which the government may not encroach; a branch of constitutional law which it has been the peculiar province of American political science to develop. This omission from the Swiss Constitution may have been for the same reason that it occurred in the original Constitution of the United States; that these rights were sufficiently implied and understood in any system of free government. These cardinal rights are claimed by the Swiss to be expressly provided for in the Cantonal constitutions. Again, it is held that all these inherent and indefeasible rights are amply secured by the article of the Federal Constitution requiring the organic law of the Cantons to “insure the exercise of political rights after republican forms.”
Hamilton met the objection to the Constitution of the United States containing no “Bill of Rights,” in the “Federalist” (No. 84), by saying, “Bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservation of rights not surrendered to the prince. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here in strictness the people surrender nothing; and as they retain everything they have no need of particular reservations.” But Jefferson expressed the prevalent opinion when he wrote, “The executive in our governments is not the sole, it is scarcely the principal, object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years.” These restraints upon legislative power have proven most fortunate ones in the United States; for the provision, “No person shall be deprived of life, liberty, or property without due process of law,” together with those provisions which forbid the taking of private property for public use without just compensation, and the enactment of laws impairing the obligation of contracts, lies at the foundation of all constitutional protection of private rights in the citizen. Thus a body of constitutional law has been formed which is not yet completely crystallized, but is being daily shaped by the decisions of the courts. In annexing the “Bill of Rights,” the founders of the government may not have had a correct idea as to what would be the full effect of its provisions, but the object they had in view was perfectly clear. They believed that wherever power was placed, it was liable to be abused. They intended to restrain the impulse of popular majorities, and more especially to prevent the legislature from becoming despotic and tyrannous. But the number of rights which can be effectually protected by the Constitution is very limited; and the legislature must always retain sufficient power to disturb seriously all social relations, if it is determined to make use for this purpose of the means at its command. The utmost that a constitution can be expected to do is to protect directly a small number of vested rights, and to discourage and check indirectly the growth of a demand for radical measures.