The Swiss Republic

by Boyd Winchester

16. All the Cantons are bound to treat the citizens of the other confederated states like their own citizens, both in their legislation and in judicial procedure.

17. Civil judgments, definitely pronounced in any Canton, may be executed anywhere in Switzerland.

18. The exit duty on property leaving one Canton for another (Abzugsrechte; la traite foraine) is hereby abolished, as well as rights of first purchase (Zugrechte; droit de retrait) by citizens of one Canton against those of another Canton.[46]

19. The administration of justice remains with the Cantons, save as affected by the powers of the Federal Tribunal.

20. The Cantons may, by correspondence, exercise the right of initiative as to measures in either council of the Federal Assembly.

The duty of the federal government to intervene for the enforcement of its guarantee of the “constitutional rights of citizens” in the Cantons has been declared by the Federal Council in these words: “When complaints are made regarding the violation of the constitution in a Canton, and these are brought before the federal authorities, the latter become in duty bound to investigate them and to form a decision as to their foundation or want of foundation, and as to necessary further regulations. For the Confederation guarantees the constitutional rights of the citizen as well as the rights of the authorities. The earlier articles of union also guaranteed the constitutions, but this guarantee was otherwise explained, and many complaints of unconstitutional proceedings and circumstances were raised and disregarded. It was desired that these should be no longer endured, and there was demanded an effective guarantee against violations of the constitution. Thus arose Article 5 of the federal constitution, which guaranteed with almost pedantic care the rights of the nation and the constitutional rights of the citizen. It would, in fact, be a remarkable relapse into the old view and order of things, a striking denial of the principles contained in Article 5, if we were to assume that, in case of a formally presented complaint, the federal authorities were free to interfere or not. We hold rather that in such cases the federal authorities are obliged to take up the complaints and render a decision regarding them.”

If a cantonal law violates the federal constitution or a federal law, the Federal Tribunal will declare it invalid; but in some cases recourse must be had to the Federal Council. The protection guaranteed by the constitution applies to disturbances of the peace within a Canton, to attacks of one Canton on another, or to a foreign attack. The appeal, as a rule, is to the Federal Council, exceptionally to other Cantons; with the existing facilities for communication with the Federal Council, aid is now demanded exclusively from that body. This feature in the relation of the general government to the Canton, and Canton to Canton, is very different from that of the United States to the State, and State to State. The State is more independent than the Canton of this external interference. It is not obliged to obey the summons of any other State for help; it has, in fact, no right to render any such aid. The government in the United States may not intervene even to preserve order in a State except on the request of the legislature or the executive of the State.

A special federal law enumerates the crimes for which one Canton may demand from another the extradition of criminals. It embraces both statutory and common-law crimes, and only stops at the limitation fixed by the constitution, which declares that extradition may not be rendered obligatory for political offences and those of the press. But extradition may be refused, in any case, of persons who have acquired citizenship, or who have settled in a Canton, when this Canton binds itself to try and punish the accused according to its own law; or allows a sentence already pronounced in another Canton to be executed by its own officials.

The Cantons, not being limited by the terms of the federal constitution, are left sovereign in matters of civil law (except as regards the civil capacity of persons), the law of land, land rights, descent and distribution, criminal law, cantonal and local police, organization of the Communes, public works in general, organization of schools (within limits of the constitution), the conclusion of conventions with each other (called concordats), respecting matters of administration, police, etc. The changes introduced by the present constitution have had the effect to supplant many of the cantonal laws, often very dissimilar and conflicting, by federal laws applicable to the whole Confederation; establishing a uniformity upon many important relations between the citizens and the state. Revisions of the fundamental laws of the Cantons have been frequent; most of the cantonal constitutions are of a recent date. From 1830 to 1874 there have been twenty-seven total or partial revisions of the cantonal constitutions. In a large measure these were required to harmonize them with the federal constitution, first of 1848 and then of 1874. An amendment to a cantonal constitution becomes valid only when ratified by the federal authorities; no concrete case being necessary to test it,—the Swiss procedure to assure the supremacy of the federal constitution being political, not judicial. Cantonal constitutions present an infinite variety in their organisms and operations; but it will be sufficient to give the general features of one of the two distinctive types, the representative system; the other, the Landsgemeinde or open Assembly, composed of all the people possessing votes, is reserved for a separate chapter. In the Cantons of the representative system the legislative department consists of but a single house, called the Greater or Grand Council (Grosser Rath), and in a few of the Cantons known as the Kantonsrath or Landrath. The members are elected by direct popular vote, and, with few exceptions, by the secret ballot; from electoral districts and by scrutin de liste. The average representation is about one to every one thousand inhabitants. In a few Cantons, representation is not based upon the population, but is determined by the number of active citizens; and in the Canton of Luzern, the number of representatives is fixed by the constitution without any regard to the population, or provision for future reapportionment. Every vote-possessing citizen is ordinarily eligible for the Greater Council; the last vestiges of property-qualification having disappeared. The Canton of Geneva limits eligibility to those who have attained their twenty-sixth year. In some Cantons functionaries salaried by the state are excluded. There is a curious diversity presented in the federal and cantonal age-qualification. A citizen of the Grisons attains political majority for cantonal electoral purpose at the age of seventeen, or three years before he can participate in federal elections. In the Canton of Geneva the citizen only attains his political majority for cantonal purpose at the age of twenty-one, or one year after he is a voter at federal elections; and a Genevese can be a member of the Federal Assembly or the federal supreme court or even President of the Confederation six years before he is eligible to his cantonal legislature.

The terms in the Greater Council vary from one year to five. In many of the Cantons the members receive no pay; the highest amount paid is in the Canton of Geneva, and it is only six francs for each day that there is a sitting. The Greater Council, besides drafting the laws and decrees, and interpreting, suspending, and repealing them, is ordinarily invested with legislative power over the organization of administrations; the supervision of the execution of the laws; the right of pardon; the ratification of cantonal agreements; the establishment of cantonal taxes and the mode of their collection; naturalization; ratification of loans contracted by the Canton; the acquisition and alienation of cantonal property; public buildings; the fixing of salaries and emoluments; the surveillance of the executive and judicial powers, and the settlement of conflicts of jurisdiction between these powers; the fixing of the annual budget; the appointment of the members of the Lesser or State Council, as well as the members of the Supreme Tribunal. In Geneva, Basel-rural, Zurich, and Thurgau, the members of the Lesser Council are elected directly by the people. This Lesser Council, which constitutes the executive power, is variously called, in the different Cantons, Conseil d’État, Staatsrath, Standeskommission, Kleinerrath. Originally it was quite a large body; but recent revisions of the cantonal constitutions have made a reduction in the number, and it now consists of from five to seven members, who distribute among themselves the different departments on the same system as that described of the Federal Council. The terms vary from two years to four. In some Cantons the members must be divided as far as practicable among the several electoral districts. In all the Cantons this executive power is collegiate,—that is, not vested in a single individual, but in a commission. Nowhere does the chief magistrate hold the independent position of an American State governor, but, like the President of the Confederation, is mere chairman of the council. The salary paid the members of the executive council is from three to five thousand francs a year. This Council proposes laws and decrees to the Greater Council, and watches over the maintenance of public tranquillity and security, as well as over the execution of the laws, decrees, and regulations of the Greater Council. It administers the funds of the state; appoints those executive and administrative functionaries who are immediately subordinate to it, and watches over them; it has also the higher surveillance of the communal administrations, the poor, the schools, and the churches. The qualification for a member of the executive or Lesser Council is the same as that of the Greater Council; and in both instances it is uniformly limited to active citizens and laymen, and they are re-eligible without limit. The executive council in the larger Cantons is represented, in districts established for the purpose, by Prefects, or Regierungsstatthalter, or Statthalter, who, associated with two Councillors, compose a commission for many purposes. Although agents of the executive council, they are not always appointed by it, but sometimes by the Greater Council, and often directly by the people. The constitutions of most of the Cantons say that the legislative, executive, and judicial functions shall be kept distinct; yet in practice the line of demarcation is often ignored. The legislative bodies are given an important share both in the administration and interpretation of the laws. As in the federal, so in the cantonal constitutions, there is not to be found that delicate adjustment of the political forces, forming so conspicuous a feature in the national as well as in the State system of the United States; that great ingenuity and skill in the contrivances which prevent the different representative bodies from being mere fac-similes of each other, and at the same time preserve their equality in point of power.