8. The powers and the duties of the Federal Council, within the limits of this constitution, are particularly the following: It directs federal affairs conformably to the laws and resolutions of the Confederation: it shall care that the constitution, federal laws and ordinances, and also the provisions of the federal concordats be observed: it shall take the necessary measures for their execution either on its own initiative or upon complaint, so far as the decision of such affairs has not been vested in the Federal Tribunal. It takes care that the guarantee of the cantonal constitutions is enforced. It proposes bills and resolutions to the Federal Assembly, and gives its opinions upon the propositions sent to it by the Federal Assembly or the Cantons. It executes the federal laws and decrees, the judgments of the Federal Tribunal, as well as the compromises or decisions in arbitration on questions of dispute among the Cantons. It makes such appointments as are not intrusted to the Federal Assembly, Federal Tribunal, or other authority. It examines the treaties made by the Cantons with one another, or with foreign countries, and approves them, if proper. It watches over the external interests of the Confederation, especially in all international relations, and shall, in general, have charge of foreign affairs. It protects the external safety, and the independence and neutrality of Switzerland. It protects the internal safety of the Confederation, and the maintenance of its peace and order. In cases of urgency, and when the Federal Assembly is not in session, the Federal Council shall have authority to raise the necessary troops and employ them, with the reservation that it shall immediately call the Federal Assembly together, if the number of men called out shall exceed two thousand, or if they remain in arms more than three weeks. It has charge of the federal army affairs and all other branches of administration which belong to the Confederation. It examines those laws and ordinances of the Cantons which must be submitted for its approval; it exercises supervision over those branches of cantonal administration that are placed under its control. It administers the finances of the Confederation, introduces the budget, and submits a statement of the accounts of federal income and expenditure. It supervises the conduct of all the officials and employés of the federal administration. It submits to the Federal Assembly at each regular session a report of its administration, and a statement of the condition of the Confederation, internal as well as external; and recommends to its attention such measures as in its judgment are desirable for the promotion of the common welfare. It also makes special reports when the Federal Assembly or either branch thereof requires it.
9. The business of the Federal Council is distributed by departments among its members. This distribution has the purpose only of facilitating the examination and despatch of business; every decision must emanate from the Federal Council as a body (a single authority).
10. The Federal Council and its departments are authorized to call in experts on special subjects.
In the exercise of several of its most important functions the action of the Federal Council is essentially judicial. This is conspicuously so in its right to examine the agreements made by Cantons among themselves or with foreign governments; and to judge of their conformity with the federal constitution. Under the name of “administrative law,” it passes in a judicial capacity upon the validity of numerous cantonal laws and ordinances, such as school affairs, freedom of trade and commerce, patent rights, rights of settlement, freedom from military service, rights of religious bodies, validity of cantonal elections, votes, etc. But there is no efficient instrumentality for the enforcement of the decrees of the Federal Council against the Cantons in these cases. If a Canton adopts a measure which the Council on appeal holds to be unconstitutional, and it declines to conform to the Council’s order, the latter has no direct way of enforcing it. The two methods of coercing a refractory Canton, so far tried, have been,—to send a special agent to negotiate with the cantonal authorities, and should his efforts fail, to quarter troops and the expense of their maintenance upon the offending Canton, until it yields; the other method is to keep back from the Canton subsidies which are to be provided for local purposes from the federal treasury. Both of these methods have been found efficacious. The Federal Council retains, however, under all circumstances, a very affectionate, if not reverential, tone in its communications to the Cantons, addressing them as “Faithful and dear confederates,” and closing, “We embrace this occasion, faithful and cherished confederates, to commend you with ourselves to divine protection.”
The Federal Council exercises wider discretionary authority, in the matter of arrest, of temporary imprisonment, of expulsion from the territory, and the like, than seems inferable from the terms of the constitution. A recent decree of the Federal Council forbade public exhibitions of magnetism and hypnotism. Wherever there is discretion there is room for arbitrariness, and in a republic, no less than under a monarchy, discretionary authority on the part of the government means insecurity for legal freedom on the part of the citizen. The Swiss constitution apparently is more democratic than that of the United States, from the fact that it does not vest the veto in any official; yet in the amount of authority which is allowed to the executive power over the citizen it is less democratic. Every legislative measure passes under the inspection of the Federal Council before action by the Federal Assembly; and the measures adopted by the Assembly are promulgated by the Council, signed both by the President of the Confederation and by the Chancellor, the ministerial officer of the Council; no doubt, in all cases, two signatures are safer than one.
The Federal Council, rather than to take the initiative, sometimes, by means of a suggestion from itself, is requested to present to the Assembly a measure; in this event a rejection of the measure would not be regarded by the Council in the light of a defeat. During the recesses of the Assembly the federal Councillors, at the head of committees designated by the Assembly or with expert commissions, meet in different parts of the country, to consider subjects that are to be brought before the Assembly. The bills are then prepared, which, with full and careful explanatory reports, are published in the official journal and carried by the newspapers to every corner of the Confederation. They are discussed by the people, and when the Assembly meets it is ready to take action with but little, if any, debate by the prompt enactment of these recommendations into law, the chief to whose department the subject-matter appertains being present, when it is taken up in the Assembly, to give any further information that may be desired.
All Swiss citizens eligible to the National Council are declared to be eligible to the Federal Council. But practically the qualification of a federal Councillor is prior membership of the National Council. Primarily the selection of federal Councillors is always made from among the members of the National Council; and by a strange custom invariably observed with only one exception since 1848, they are again triennially returned to the National Council from their respective districts while still serving as federal Councillors, and with the full knowledge that within a few days after the convening of the Federal Assembly they will be again chosen by that body for a new term in the Federal Council. This necessitates supplementary elections to fill the vacancies created in the Assembly. Again, at every recurring election of the National Council, one of the sitting members from each district wherein a federal Councillor resides, must make room for this temporary appearance of the federal Councillor in the National Council, as a condition precedent to his re-election. The sitting members cheerfully yield to this exigency, conscious that they are standing aside for a mere locum tenens, and in no wise imperilling the ultimate return to their seats, after a traditional custom has been accommodated. One district has of late years disregarded this custom, declining to go through the empty form of electing to the National Council the federal Councillor residing there, and whose re-election as federal Councillor is conceded. This one obdurate district may, by persisting in its course, be the means of the final overthrow of a practice, which at present involves a double election for six seats every three years at considerable expense and trouble: and apparently incapable of any intelligent explanation. Like many customs, it has simply taken root without any inquiry, and propagates itself without any opposition. A partial explanation may be discovered in the desire to preserve the identity of the federal Councillor with his Canton, and as a renewed declaration that he continues to enjoy the confidence of, and is in accord upon questions of public policy with, that local constituency which in all probability he served for many years in the National Council, before his promotion to the Federal Council. A federal officer holding his office directly from the Federal Assembly, and at the same time invested with the popular confidence of a local constituency equally with the other members of that assembly, presents a most remarkable assertion of local political autonomy in a purely national affair.
Originally these federal Councillors, when during their term elected to the National Council for the purpose of re-election to the Federal Council, took their seats in the former when it convened, and exercised all the functions of a member, yet concurrently holding their portfolios in the Federal Council for an unexpired term. This twofold service continued until their re-election for a new term took place, when they resigned their seats in the National Council, and resumed the single service of federal Councillors. It is related that one member of the Federal Council, some years since, only secured re-election by means of his own vote during his transition service as above described in the National Council. Of late years the exercise of these dual rights and privileges incident to this most singular condition of things, while not in violation of any law, has been regarded with disfavor, and the federal Councillors, during the few days of their membership triennially in the National Council, confine themselves to the privileges and rights that attach to a Councillor.
The geographical assignment of the members of the Federal Council is well established by an unwritten law, which is faithfully observed; a well-established usage in the election of the Federal Council assigns one member to each of the Cantons of Bern, Vaud, Zurich, and Aargau, and St. Gallen or Thurgau, then one each to the Catholic and Italian Swiss. The constitutional inhibition of the choice of more than one member from the same Canton may be regarded as a restriction that limits the choice without any adequate counter-benefit; it may exclude from the government statesmen of high merit, and thus diminish the resources of the state.
The members of the Federal Council can be and are continually re-elected, notwithstanding sharp antagonisms among themselves, and it may be between them and a majority in the Assembly. They also continue to discharge their administrative duties, whether the measures submitted by them are or are not sanctioned by the voters. The rejection of measures approved and proposed by them does not necessarily injure their position with the country. The Swiss distinguish between men and measures. They retain valued servants in their employment, even though they reject their advice. They retain in the service Councillors whose measures the voters nevertheless often refuse to sanction. Valuing the executive ability of these men, still they may constantly withhold assent from their suggestions.