A cantonal constitution usually opens with the declaration that the “sovereignty resides in the people as a whole” (“auf der Gresammtheit des Volks beruhe”); and then follows the further declaration that the people, by virtue of that sovereignty, “give it [the Canton] the following constitution;” also that this sovereignty is to be “directly exerted by the active citizens and only indirectly by the magistrates and officials;” that “the people exercise the legislative power in co-operation with the cantonal council” (referring to the right of Initiative and Referendum); and that in this “it is the duty of every citizen to participate.”
All the cantonal constitutions contain, in a more or less explicit and elaborate manner, provisions of this nature, viz.:
All citizens are equal in the eye of the law and enjoy the same civil rights; free expression of opinion by word or in writing; the right of association and of assembly is guaranteed, subject to no other restrictions than those of the common law; in libel suits, alleged defamatory publications must not only be proven to be true, but must appear to have been made from “honest motives and a righteous purpose;” house and home right inviolable; house-searching by an official vested with this power must be in advance carefully explained by the official, as to the reason for and the extent of the proposed search; innocent persons sentenced are entitled to restitution and just satisfaction from the state; father and son, father-in-law and son-in-law, two brothers, or two brothers-in-law cannot serve at the same time as members of the executive or judicial department; all citizens subject to taxation must contribute to the burdens of the state and the community in accordance with their respective means; small estates of persons disabled for work, as well as a sum absolutely necessary for support, shall be exempt from taxation; tax exemptions in favor of private persons or industrial companies forbidden; no new taxes on the consumption of any of the necessaries of life to be levied; cantonal and district officers to receive fixed salaries, all fees going into the state treasury; organization and management of charity left to the community;[47] the state to make suitable contributions to lighten the burdens of poor communities, and especially to extend its influence and aid in the education of the children of the poor, improving the hospital service, and reforming the character and ameliorating the condition of the neglected and dissolute; to render assistance and facilities for the development of trades-unions based on the principle of self-help; to pass laws essential for the protection of the laboring classes; judicial sentences not to be set aside or modified by any legislative or administrative authority, except in so far as the pardoning power is vested in the cantonal council. There are also numerous provisions relating to church affairs and education, on parallel lines with those of the federal constitution, with the addition that the former includes the organization and management of the church communities which are exclusively under cantonal authority.
The Cantons are left quite free to organize their courts as they please; justice, in general terms, being administered by the Canton with recourse in specified cases to the Federal Tribunal. The cantonal judicial organization presents two well-defined courts: the district courts (Bezirksgerichte or Amtsgerichte), which are courts of first instance; and a supreme or appellate court (Obergericht or Appellationsgericht), which is the court of final instance. Some of the Cantons have justices of the peace; these are elected by the Communes for a term of six years, and have jurisdiction up to fifty francs. Either party to a suit, or the justice, may demand that two jurors elected by the casting of lots be summoned to assist in the trial. For the hearing of criminal cases, there is a trial in a few Cantons by a jury under the presidency of a section of the supreme-court justices, but in the others a special criminal court acts without a jury. In three of the large Cantons, Geneva, Zurich, and St. Gallen, there are special Cassation courts put above the Obergericht. Zurich and Geneva have also special commercial courts (Handelsgerichte). In many of the Cantons the supreme court exercises certain semi-executive functions, taking the place of a ministry of justice, in overseeing the action of the lower courts, and of all judicial officers, such as the states-attorneys. The courts make annual reports to the legislative council, containing a full review of the judicial business of each year, discussing the state of justice, with criticisms upon the system in vogue, and suggestions of reform. These reports are important sources of judicial statistics. The terms of cantonal judges vary from three to four and six years. The judges of the inferior courts are elected directly by the people; those of the supreme courts by the legislative council. In Bern the legislative council also elects the presidents of the district courts. No qualification for election to the bench is required except that of being an “active citizen.” But invariably, to the higher courts at least, competent lawyers are chosen; and re-election is the rule. The district courts render final judgments on claims from fifty to two hundred francs. Either party to the suit has the right to demand that two district judges preside as associate judges. The district courts, consisting of a president and four judges, decide as of first resort, and the appellate chambers of the supreme court, as of second and final resort, all claims exceeding two hundred francs. The commercial court decides finally all claims exceeding five hundred francs, provided the defendant is entered in the commercial register. In proceedings before the district and commercial courts the claim is first submitted to a justice acting as propitiator; he summons the parties for the purpose of effecting an amicable adjustment of their difficulties; if no agreement can be reached, a lawsuit permit is issued by the justice and handed to the plaintiff, which he in turn presents to the court. In a majority of cases the court proceedings are oral; only in exceptional cases, involving difficult and novel questions or intricate accounts, an order will be made for written preparatory proceedings. After the court hears an oral statement of the claim and the defence, it decides whether further evidence shall be produced, and issues an order setting forth what must be established by each party in the form of written testimony; and this must be presented to the court in an accurate and carefully-prepared form. The judgment of the court is first rendered orally, and written notice of the same given to the parties. When an appeal lies, it must be taken within ten days from the receipt of the above notice. In all cases the plaintiff must make a deposit to cover the costs, but the costs are to be finally paid by the party cast in the suit.
Under the constitutional provision, that final civil judgments rendered in one Canton are executory in any other Canton, sometimes a question arises as to the obligation of one Canton to carry out the decree of the court of another Canton. This question must be referred for final decision to the federal authorities. In only one Canton, that of Uri, is there a departure from the federal system, and there the cantonal courts have the power to declare invalid a cantonal legislative enactment.
Trial by jury, even for felony, does not universally exist in the Cantons. The substitution of a tribunal or judicial body instead of the unitary system, though claimed to be almost tantamount, is far from fulfilling the essential purpose of a jury. Knowledge, skill, and strict impartiality belong to the judge; common sense and common feelings to private individuals on a jury. The judge is deaf, blind, and inexorable, and knows only the law; the jury is under the influence of public opinion, or even of public prejudices, which must not be overlooked altogether, and for the sake of the law itself, of peace and good government. The jury is, in fact, a legislative as well as a judicial power, negatively at least, for deciding on law as well as on fact; they may and do silence the law when they please. Unforeseen cases occur sometimes where an undue advantage is taken of the law. The jury may suspend, in fact, its application until it is altered; in other cases, less uncommon, the strict application of the law would be directly in opposition to public feelings and prejudices, to the extent of threatening popular violence and revolution. A judge cannot make the law bend to circumstances; government cannot yield without disclosing weakness and encouraging the factious; but the jury, being supposed to participate in these public feelings, may preserve the peace without disgrace, by a sort of innocent denial of justice. A jury of judges, as the silent part of the bench may be deemed, cannot be ignorant of the law, and would make themselves gratuitously contemptible if they pretended to participate in the feelings of the multitude. Besides the obvious use of juries as a check on judiciary proceedings for the safety of individuals, the institution is of high political importance. It is one of the hidden springs upon which the cumbrous machine of society is, as it were, suspended, and enabled thereby to sustain accidental shocks without coming to pieces.
There was abundant justification in the early cantonal criminal codes for the abolition, by the federal constitution, of capital punishment[48] and corporal pains. Many of the codes were not distinguished for justice, gentleness, or rationality. Nowhere were witches more relentlessly pursued than in some of the Cantons of Switzerland. The laws denouncing them were of Draconian severity. Stern were the ordinances and strange the customs of the older Cantons. In 1666 an entire family, mother, son, and daughter, were burned in Unterwalden for practising forbidden arts. No less than one hundred and fifty individuals were executed at Geneva, in a period of fifty years, during the seventeenth century, for the capital offence of witchcraft, denominated lèse-majesté divine au plus haut chef. The last execution for sorcery was in Glarus in 1782. So late as 1824 a man was racked in Zug, and in the archives of Obwald appears an entry, in 1840, of a payment of thirty francs to the executioner for beating a prisoner, who had proved refractory under examination, with rods, in the torture-chamber. The Swiss historian Müller relates that one Sak, at Bern, was sentenced to be whipped, and led out of the gate by the executioner, for returning from banishment, and if he returned again he should be drowned; also Hanns, the public executioner of Bern, was banished two miles from the jurisdiction of the town for having spoken immodestly to respectable men and women, and if he returned he should have his eyes put out. An inn-keeper of Bern, having procured the seal of a councillor who lodged at his house, made use of it to forge obligations for sums of money which, supported by false witnesses, he claimed after an interval of several years; the fraud being discovered, he was broken upon the wheel, and the witnesses “boiled in a kettle.” In Zurich, any one clipping the coin, had his fingers clipped off, and was then hanged. In the council-room of the old Rathhaus of Appenzell can still be seen an instrument known as the “bocksfutter”; it consists of a long bench, on which delinquents, ordered to be punished with stripes, and prisoners, who were obstinate about admitting their guilt, were wont to be placed, with legs and arms outstretched as if they were going to swim; but every attempt to move these members was prevented by enclosing them in iron clamps firmly fastened to the bench; this preliminary completed, the executioner was called in, and ordered to give the victim as many strokes with “ochsenziemer” on the bare body, as the judges might think necessary, to loosen his tongue or purge him of his offence. Another so-called truth-finder (wahrheitserforschungsmittel) was a cage, in which one could neither stand upright nor stretch his legs, but only cower on the floor in a constrained position. At Freiburg the punishment for stealing five sous was death by decapitation; and a stranger striking a burgher was fastened to a post and scalped, while a burgher striking a stranger paid three sous. Capital punishment was inflicted by cutting off the head, which was done in this manner: the culprit was made fast in an arm-chair, and a cap placed on his head with a hole in the top, by which an assistant took hold of his hair, while the executioner, placed behind, struck off his head with a broadsword.
There is little or nothing in the Swiss cantonal institutions to tempt unworthy men into official life. The salaries are nominal, with very remote chances for any personal aggrandizement. In the local and municipal administrations, it is difficult, if not impossible, for any one class to employ the powers of government for purely selfish ends. Many of the officials serve the Canton, municipality, and community with motives as honorable as their services are intelligent and efficient. The Cantons and communities are comparatively free from debt, and not burdened by excessive taxes. There is a general aversion to incurring public debts, common to the Swiss, from the federal head down through the cantonal, municipal, and community administrations. The revenues of these little states are small, and require strict economy in every branch of expenditure. Nothing is wasted on useless consumers and their retainers; an exact account must be rendered of the employment of the public funds; and precision and publicity in the keeping of public accounts. The people yields its servants, indeed, some compensation, but it does not reward them with pensions or with superabundant influence. It builds up no official class who forget their citizenship and separate themselves from the mass of the people, squeezing as many advantages as possible out of their offices, even to the prejudice of efficient service. The Cantons, upon enumeration, number not twenty-two but twenty-five, because three of them have been divided into half-Cantons, making nineteen whole and six half Cantons. Basel is divided into Basel-Stadt and Basel-Landschaft (urban and rural); Appenzell, into Ausser-Rhoden and Inner-Rhoden; and Unterwalden, into Obwald and Nidwald (above and below the forests which formed the boundary between them). The rending of these Cantons into half-Cantons was the work of party feuds; in one place springing from political causes, in a second from religious strife, and in the third from wrangles about wood and grass. Unterwalden was divided as early as 1366. The division of Appenzell occurred in 1597; the Catholic magistrates having turned out some Protestant ministers, so serious a quarrel ensued between the two communions, that other Cantons were called in as mediators; to restore peace they resorted to a sort of political divorcement; the Canton was divided between the two parties, and a river marked the boundary; the Catholics passed on one side and the Protestants on the other, selling or exchanging reciprocally their fields and houses. The separation in Basel took place in February, 1832; the city of Basel maintained that the country people should either accept the constitution which pronounced them dependent and inferior, or renounce all connection with her: in vain the Diet protested against this division, but the city persisted in the separation rather than put itself on a level with the peasants. Only in one case, that of Basel, was the division accompanied by any violence. There is not a great difference between the population of the halves in the Cantons of Basel and Unterwalden; the urban half, of the former, having an excess of 12,000, and Obwald, of the latter, 3000; but the population of Ausser-Rhoden is four and a half times that of Inner-Rhoden. There is a wide diversity in the area of these several half-Cantons, not easily accounted for, except in the case of Basel, where one-half is composed of the city of Basel. Each half-Canton keeps its own share of sovereign power; each is practically complete in its state autonomy, the original cantonal integral having little recognition beyond the representation in the Council of States. In that body the members from these half-Cantons display, more or less, the antagonism which originally led to the division of their Cantons; Catholic Appenzell is almost certain to oppose Protestant Appenzell; so with all of the members from the fractional Cantons, they are arrayed on different sides of all local questions, seriously impairing their influence. In extent, population, and wealth, the Cantons are about equal to a county; still, each is one of the twenty-two confederate states. The official order of the Cantons corresponds with the historical date of their entry into the Confederation, except that Zurich, Bern, and Luzern, after joining the league of small Cantons, were placed at the head. Uri occupies the first place in chronological order, and anciently Luzern took the lead, but when Zurich entered the Confederation, as an imperial city, in 1351, it displaced Luzern by virtue of its great wealth; and two years later Bern joined the league, and was awarded the second place on account of its military power. The standards of the three original Cantons are very suggestive of their history. The one of Uri represents a bull’s head, with the broken links of the yoke hanging around the neck; that of Schwyz a cross, the double symbol of suffering and deliverance; and the banner of Unterwalden bears two keys, symbolical of the keys of the apostle St. Peter, and destined to open the iron gates of their long slavery. Emile de Laveleye, in his “Primitive Property,” gives the following touching legend as to the method in which the boundary between the Marks or Communes of Uri and Glarus was formerly fixed: “The two Cantons are separated by frozen peaks and a lofty chain of mountains everywhere except at the Klaussen passage, through which one can easily pass from the valley of the Linth to that of the Reuss. In times past, there were disputes and struggles between the people of Uri and Glarus as to the debatable boundary of their pastures. To decide the question, they agreed that, on St. George’s day, a runner should start at the first cock-crow from the bottom of each valley, and that the frontier should be fixed at the point where they met. The start was to be superintended by inhabitants of Glarus at Altdorf, and by inhabitants of Uri at Glarus. The people of Glarus fed the cock, which was to give the signal to their runner, as much as possible, hoping that, being in full vigor, it would crow early in the morning. The people of Uri, on the contrary, starved their cock; hunger kept it awake, and it gave the signal for the start long before dawn. The runner started from Altdorf, entered the Schaechenthal, crossed the top, and began to descend on the other side towards Linth. The Glarus cock crowed so late that their runner met the one from Uri far down the slope on his side. Desperate at the thought of the disgrace which would be reflected on his countrymen, he begged earnestly for a more equitable boundary. ‘Hearken,’ answered the other, ‘I will grant you as much land as you can cross, ascending the mountain with me on your back.’ The bargain was struck. The Glarus man ascended as far as he could, when he fell dead from fatigue on the banks of the stream called Scheidbaechli (the boundary line). This is why Urner Boden, situated on the slope facing Glarus, beyond the division of the water, belongs to Uri. It is a curious legend in which, as so often in Swiss history, the citizen gives his life for the good of his country.”
Individual Cantons have a national character, either because all their inhabitants belong to one people, as in the German Cantons of northern and eastern Switzerland, or in the French Cantons of western Switzerland, or in Italian Ticino; or because one nationality decidedly prevails, as the Germans in Bern and Graubünden, and the French in Freiburg and Valais. The result of holding different peoples together without transforming them into one nationality has been attained only by allowing each people free course in its local and inner life. The drift of Switzerland’s history and its political trend are unquestionably towards a more compact nationality. The constitution was a compromise between the advocates and opponents of nationalism. Every change from 1814 down to 1874 has taken something from the Canton and Commune and bestowed it on the Confederation. In every stage of its historical growth it has been a fight of the Confederation against the Canton, on behalf of general rights; those interests of the citizen which are claimed to lie beyond the proper sphere of local laws and customs. The national government has steadily extended its influence, every step increasing the authority of the nation at the expense of the cantonal independence; a steady growth in national feeling, a constant drift towards a stronger federal government. Many branches of legislation have been taken away from the Cantons, which under the constitution of the United States adhere to the States. The federal government has absorbed numerous matters of social and economic importance, such as those relating to railways, telegraph, factories, insurance, debts, marriage, the law of contract, and general measures of sanitary precaution. “Swiss democratic federalism tends towards unitarianism. This is no doubt in part due to the desire to strengthen the nation against foreign attack. It is also due, perhaps, to another circumstance. Federalism, as it defines and therefore limits the power of each department of the administration, is unfavorable for the interference or to the activity of government. Hence a federal government can hardly render service to the nation by undertaking for the national benefit functions which may be performed by individuals.”[49] Wherever in the history of the world we find a federation having an internal organization sufficiently strong to maintain its own existence, we observe an inevitable drift of power from the several states to the central government, striving to ascertain over how broad a field it is expedient and right to extend the activities of government. Yet it is impossible to study attentively the march of Swiss affairs without seeing that what really lie next to the hearts of the people are their cantonal and local institutions; and while a well-assured nationality is kept up, in event of foreign danger or common peril, nevertheless, the citizens look for protection as well as for command to their own cantonal authority. A familiar colloquialism is often used, which illustrates the relation of the cantonal to the national feeling,—“My shirt is nearer to me than my coat.”
Switzerland, though not extensive in point of superficial surface, embraces such an extraordinary variety of climate, soil, race, and occupation as to render the rule of a single central democratic government, in an especial manner, vexatious. It must of necessity adhere to a system of Federal Union in preference to that of a central and universally diffused authority; because in small states, having each the power of internal legislation, the interests of the inhabitants are nearly the same, and their influence can be felt and their wants receive due consideration.