The Swiss Federal Tribunal, as a copy, is neither so consistent with sound theory, nor so safe in practice, as its prototype in the United States. The two systems meet by very different devices the problems peculiar to federalism, and especially as concerns the interpretation of the fundamental pact, or articles, or constitution, on which the union rests. In the United States, this function is performed 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 the Federal Tribunal of Switzerland is a body of much more limited power and far less dignity. Even its jurisdiction is determined in part by the laws rather than by the constitution. In short, this tribunal appears as a mere instrumentality of the other organs of the government, and not, like the United States Supreme Court, a mediator between them, or even a superior above them. The statesmen of Switzerland felt that a method fit for the United States might be ill-fitted for their own country, where the latitude given to the executive is greater; and the Swiss habit of constantly recurring to popular votes makes it less necessary to restrain the legislature by a permanently enacted instrument. The Swiss constitution itself almost precludes the possibility of encroachment upon its articles by the legislative body. When the sovereign power can easily enforce its will, it may trust to its own action for maintaining its rights; when, as in the United States, the same power acts but rarely and with difficulty, the courts naturally become the guardian of the sovereign’s will expressed in the articles of the constitution. The right to declare laws void is not regarded throughout Europe generally as judicial in its character, and hence has not been intrusted to the courts; this may furnish a partial explanation of the incompetence of the Swiss court in that respect. The Federal Tribunal has been much improved since it was originally set up, and will doubtless, with the decay of unreasonable jealousy of the central government on the part of the Cantons, approach more and more closely the Supreme Court of the United States, of which it is an avowed copy, so far as Swiss political traditions and prejudices would permit in 1848 and 1874. It rests with the Federal Assembly to determine by statutes the particular questions which shall be submitted to the court; these have already been greatly extended, and the court will ultimately be given a still more independent and influential position. The essence of judicial power consists not in judging, but in laying down the law, or, according to the Roman expression, not in judicio, but in jure. The purity of justice, the liberty of the citizens, have gained by the change, and government has not lost in security. Judicial power should be removed as far as possible from all warping influence. It should be the great defender of established order against the legislative and executive departments of government. Its relation to the law-making and the law-executing powers is peculiarly delicate and important. There is need that some other power, not political, removed from the struggles of the present, having no ends of its own to answer in the future, should have the function to decide what is the meaning and application of a law; and whether there is any positive conflict between a new one and a received one, or between a new one and a constitution. This should be a power able to watch over the constitution, and prevent invasions of it. The highest court can exercise this guardianship better than any other board of control that can be devised. The power of the judiciary, under certain conditions, to pronounce upon the constitutionality of the laws is “a security to the justice of the state against its power.”[44] The supreme power of the court becomes the servant of the federative principle, which as a mediator between opposing forces is pre-eminently a principle of justice. The decision is now national, now in favor of the state, and thus, through interpretation, the constitution is developed, and the two forces have as free play in the judicial as in the more strictly political action.
We speak of three co-ordinate branches and of their working, each in a separate and defined province; and yet, as must of necessity be the case in human affairs, the lines of demarcation are not always clear, and unless confusion is to be endless, a power must exist somewhere to determine the limits of the separate provinces, and to decide controversies in regard to them. The power to do this has been confided under the system of the United States to the courts, in accordance with the principles of the common law, if not by the express provisions of the constitution. To the United States Supreme Court is confided the duty of deciding questions involving the limitations of the different branches of the government. It diminishes the danger of collision between the different political bodies among which power is distributed, because these bodies are not brought into direct contact, but act each in its own way directly on the people; the courts regulating conflicts of authority as they arise. The peace, the prosperity, and the very existence of the Union are invested in its hands; the executive appeals to it for assistance against the encroachments of the legislative power, and the legislature demands its protection from the designs of the executive; it defends the Union from disobedience of the States, and the States from the exaggerated claims of the Union, the public interests against the interests of private citizens, and the conservative spirit of order against the fleeting innovations of democracy. This form of government, with the immense power it gives to the courts, could not exist among a people whose reverence for law and submissiveness to its mandates were not very great, and would not be possible, moreover, if it did not rest on a popular basis.
CHAPTER VI.
THE CANTONS.
Prior to the year 1798, the condition of a Swiss Canton was that of a great feudal lord, with an aggregate of many separate seigniorial properties; acquired partly by conquest, partly by purchase. In the town Cantons, such as Bern, Basel, and Zurich, the town was the lord, and the country districts were attached to each as dependent properties. In the rural Cantons, such as Uri and Schwyz, it was an aggregate of democratic communities, which exercised lordship over other dependent communities in their neighborhood. The conquered districts, instead of being created into new Cantons, remained subject, in some cases to individual Cantons, in others to associations of Cantons for their members jointly. In the rustic communities the government was a pure democracy; in the cities it was tempered with a small mixture of aristocracy. Each Canton had a separate coinage, its batzen and rapps, kreutzers and schillings, sous and centimes, that would not pass beyond its frontier.[45] Each Canton had its own agents accredited to foreign powers. Each Canton kept a custom-house, and manned a tower at every bridge, at which each load of grass, butt of wine, sack of corn, and pound of cheese that passed the boundary was taxed. Every Canton was a distinct body, independent from any other, and exercising the sovereign power within itself; looking upon the rest as mere allies to whom it was bound only by such acts to which it had consented, and when any new thing not comprehended in this agreement happened to arise, each Canton retained the power of determining the matter for itself. The idea that the minority of Cantons was bound by the decision of the majority took root slowly, and internal affairs depended for settlement on remonstrance and mediation. They were kept together by the peculiarity of their topographical position, by their individual weakness, by their fear of powerful neighbors, by the few sources of contention among a people of such simple and homogeneous manners, and by their joint interest in their dependent possessions. The conditions of the country and of its society contributed to divide instead of to unite the different Cantons. Mountains and lakes separated them into almost distinct nationalities; they were peopled by different races, with differences of language, religion, customs, industries, material interest, and social development,—more than a hundred parcels of territory, each having its separate history, and in many cases a far greater difference between the inhabitants than between the people of Maine and Texas, of Massachusetts and California, for they were a polyglot people without a community of language, to which, as a cohesive force, nothing can compare, especially in a democratic state governed by opinion expressed through universal suffrage. Many were the difficulties and dangers through which the Cantons had to struggle to break up this system and overcome these causes of dissension. This was gradually accomplished by the principles of confederation, judiciously and temperately applied to the circumstances of the country.
The Swiss Cantons of to-day have very much the political organism of the United States. They 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 government. The Cantons are units of a federal state, possessed within certain limits of independent and supreme power. The Swiss constitution, after guaranteeing to the Cantons their sovereignty, their territory, their constitutions, etc. (as pointed out in the chapter on the constitution), again and again reverts to the rights, powers, and duties of the Canton with that remarkable detail which characterizes the text of that instrument in everything it touches. These cantonal provisions are, viz.:
1. The Cantons have the right to make conventions among themselves upon legislative, administrative, or judicial subjects; in all cases they shall bring such conventions to the attention of the federal officials, who are authorized to prevent their execution if they contain anything contrary to the Confederation or to the rights of the Cantons. Should such not be the case, the respective Cantons may demand the co-operation of the federal authorities in their execution.
2. By exception, the Cantons preserve the right to conclude treaties with foreign powers, respecting the administration of public property, and border and police intercourse; but such treaties shall contain nothing contrary to the Confederation or to the rights of the Canton.
3. Official intercourse between the Cantons and foreign governments or their representatives shall take place through the Federal Council. But the Cantons may deal directly with the subordinate officials and officers of a foreign state in regard to the subjects enumerated (in Section 2).
4. In the case of sudden danger of foreign attack, the authorities of the Canton threatened shall request the aid of other members of the Confederation, and shall immediately notify the federal government, without prejudice, however, to the action of the latter. The Cantons so summoned are bound to give aid. The expenses shall be borne by the Confederation.
5. In case of internal disturbance, or when danger threatens from another Canton, the authorities of the Canton threatened shall immediately notify the Federal Council, in order that it may take the necessary measures within the limits of its power, or may summon the Federal Assembly. In urgent cases the authorities of the Canton notifying the federal government of its action, may ask the aid of other Cantons, to which the latter are bound to respond. If the cantonal government is unable to call for aid, the federal authority, having the power, may, and if the safety of Switzerland is endangered shall, intervene without requisition. In case of federal intervention, the federal authorities shall take care that the provisions of the constitution guaranteeing the sovereignty of the Cantons be observed. The expenses shall be borne by the Canton asking the aid or occasioning federal intervention, except when the Federal Assembly otherwise decides on account of special circumstances.