Membership of a Commune comes by descent or purchase; and marriage confers on the wife the communal citizenship of her husband. In the first, that of descent, the right of the Commune depends not on place of birth or domicile, but on descent from parents who are citizens of the Commune, even though they live outside of it. It is not unlike the old Roman municipal law, which was also based on origo from a particular municipium. In the second, that of purchase, it is of the essence of a Commune that the stranger should be admitted to membership only on such terms as the Commune itself may think good. In every case it is regarded as a privilege and an affair of sale. A man of any craft or creed may apply for admission, but the Commune is the judge of whether his prayer will be granted or not. More or less inquiry will be made as to his antecedents, his ability to support himself, and his belongings; but, at all events, it is a business transaction, and the price varies according to the value of the communal property, the age, condition in life, and number in the family of the applicant. So much for a wife and each child; a boy is taxed more than a girl, for in the course of time the one may add by marriage to the burden of the Commune, and the other may lessen it by marrying into another Commune. In some, the craft and calling are regarded; in a few, where they are in part a congregation with a common faith in charge, religious considerations may weigh more than any thought of worldly goods. A foreigner is usually charged more than a native. In olden time this discrimination extended to citizens of other Cantons, and the last trace of this distinction was only abolished in 1871 by the Commune of Lausanne. Some Communes are closed, but many remain open for additional members. Under any circumstances, it is a privilege to be bought, and the tariff varies from 50 to 5000 francs, or from ten to one thousand dollars. This operates as a tax on Swiss citizenship, of which the Commune is the necessary basis.[55]
Originally, entrance into the Guilds, or Zünfte, was the only road to citizenship in the Commune. These corporations or guilds had certain monopolies and political privileges. It was a prominent feature of the time that every mass of men, in any way whatever associated, was also incorporated. They were necessary for the protection of the humble burgher and infant industry against an unruly aristocracy, as well as, in some cases, for the transmission of knowledge and skill. Without them the cities would never have performed their high service in the promotion of civilization, and the acknowledgment of the burgher’s rights. The various trades were separated by these guilds, but within them the employer and the employed had a common interest. Their effect was to strengthen the rights of their members and to raise the dignity of their masters. Under the reign of Henry I., surnamed the Fowler, when that awful catastrophe came over all the central part of Europe, the irruption of the terrible and ferocious Magyars, who swarmed westward from Hungary, spreading horror and desolation wherever they went, and Helvetia, being exactly in their course and unfortified against such an invasion, suffered fearfully, he compassionated its helpless condition and took pains to fortify the cities and towns. The peasantry, however, were so attached to their free mountain lives that often, in spite of all danger, they could not be persuaded to come into the towns. So, in order to induce them to do so, Henry conferred very many privileges on the citizens of the towns, and in this way laid the foundation of the guild and burgher class. All the members of the guilds had to be burghers of the particular Commune. The systematic education and gradual development of the artisan class, their progress in technical skill and in wealth, their privilege of carrying arms under the banner of their corporation or guild, their permanent connection with the interests and prosperity of the town, all tended to awaken in the artisans a sense of their importance. As the administration of justice became general, government became national, and skill and knowledge were so diffused that no special protection, by way of monopolizing guilds, was any longer deemed necessary. In order to check the tendency of members of poor Communes to establish themselves in more prosperous ones, a practice prevalent when the property was held in common by all the inhabitants, there was a close corporation constituted, called the Burgher Commune, to the members of which the communal property was limited; the remaining inhabitants being excluded from participation in it, as well as in the local administration. It soon came to pass, with increased facility of communications, that in most Communes the majority of the inhabitants were not burghers. It was necessary to raise taxes to meet the public expenditure, and it was not admissible that the burghers alone should administer the Commune to the exclusion of all others who dwelt within its limits. Hence in many Cantons there came to be a double Commune; that of the burghers who kept their property and only looked after the interests of their own members, especially of those who were poor; then there was that of the inhabitants forming a municipality, embracing the whole of the population and providing for the public service. The former is known as the Commune des bourgeois or Bürgergemeinde; the latter, Commune des habitants or Einwohnergemeinde. This dual communal organism has given rise to much political contention, the Radicals desiring to abolish all Burgher Communes and to establish what is termed a “unique” Commune of all the inhabitants; but to this the Conservatives of all shades are strongly opposed.
There is no limit as to the area or population of the Commune. In the Canton of Bern there are 509 Communes, the largest embracing a population of 44,000, and the smallest 35; many have less than 200 inhabitants. Some are rich and extensive, others are poor and small. Rules and regulations differ, but each Commune is free and independent in itself, subject only to the supervision of the Canton.
Every Commune owns some land, some wood, and some water-right, in common fee. These constitute the communal fund, in which each member has an equal share. The allotment of land is so made that every one may have a part in the different kinds, forest, pasture, and arable. Each Commune manages its common property very much its own fashion, but from the general similarity of their circumstances and conditions, certain uniform methods pervade their management. It is with these general features we will deal. All the Communes which have arable lands, allot them among their members upon an equitable basis; consequently one will see a large number of small squares of land growing different crops, and resembling a checker-board; each one constitutes the share of a member of the Commune; and one hundred and twenty-nine gleaners have been counted in a field, thus subdivided, of less than six acres. A large part of the land of each Commune is preserved as a common domain, called Allmend, signifying the property of all. It means land which is held and used, as the word itself indicates, in common; and by common usage the name Allmend is restricted in some Communes to that portion of the undivided domain situated near the village, and which is under cultivation. These common lands may be divided into three general classes, forest, meadow, and cultivated land (Wald, Weide, and Feld). Some Communes have in addition lands where rushes are cut for litter (Riethern), and others where turf is cut for fuel (Torfplätze). The economic corporation, which owns the Allmends, is distinct from the political body which constitutes the Commune. The right exercised by the Communes over their domain is not a right of “collective ownership,” it is a right of “common ownership.” The domain does not belong to a collection of individuals, it belongs to a perpetual corporation. The individual has no share in the landed property, but merely a right to a proportional part of the produce. Then in some are the old burghers and the new burghers. The former are the lineal descendants of those who were burghers for hundreds of years, and they only own these lands in common; the latter are those, or the descendants of those, who, having come in from other Cantons or Communes, settled in the place, and have no rights of any kind in the common land. The land may be common to all the old burghers of a Commune equally; it is then said to belong to the Commune; or it may belong to sections of the old burghers, as, for instance, to those who reside in a particular class of families; and again these may hold it either simply for their own use or for the promotion of some defined object. The right of common, with rare exception, cannot be assigned, transferred, or let, except to Communers; it is a right inherent in the person. As a rule, the right belongs to every separate couple of hereditary usufructuaries, who have had “fire and light” within the Commune during the year or at some fixed date. The girls and young men therefore very commonly keep their own little ménage, even though they have to go to their daily work at other people’s houses; and if they have remained the whole week away from their home, they come back on Sunday evening to make “fire and light” in their habitations. A young man when he marries can claim the right; this rule is extended to a widow or orphans living together, and sometimes to every son who attains the age of twenty-five, provided he lives in a separate house. Natural children, whose parentage is known, may also claim their share. To the communer, his native soil is a veritable alma parens, a good foster-mother. He has a share in it by virtue of a personal inalienable right, which no one can dispute, and which the lapse of centuries has consecrated. It does not simply give its members abstract rights; it procures them also in some measure the means of existence. It provides a valuable resource for indigent families, and preserves them at least from the last extremity of distress. It supplies the expenses of the school, the church, the police, and the roads, besides securing to its members the enjoyment of property. In a few Communes the wine and bread, which is the fruit of their joint labor, forms the basis of an annual banquet, at which all the members of the Commune take part, and is known as the Gemeinde-trinket.
In 1799 the Swiss republic forbade all partition of communal land, declaring, “these lands are the inheritance of your fathers, the fruit of many years of toil and care, and belong not to you alone, but also to your descendants.” There are, however, indications of a tendency in Switzerland—which stands alone in the world as a land that has maintained both the free political institutions and the communal system of property, of the times before feudalism—towards a disintegration of the Allmend. Thus, in the Canton of Glarus, the commonable Alps are let by auction for a number of years, and, in complete opposition to the ancient principles, strangers may obtain them. A project was recently submitted to the Grand Council of Bern, to facilitate the dissolution of the Communes, and to allow of the realization of their property by the members. It received little support, but was significant of the existence of a sentiment that may some day become formidable and aggressive. Common property still plays a very important part in the economic life of the Alpine Cantons, but private property is spreading considerably. Facilities for transportation, the substitution of machinery for manual labor, the accumulation of capital, and all the marvellous revolution and progress of industrial life, have brought about conditions which render the system of commonable lands no longer the best. Families can be supported without this common use, and, in most cases, better without it than with it. It might be shown that, when capital exists in abundance, this common use is a hinderance to the greatest possible production of food for the people. No system that has been assailed by such conditions has ever been able to maintain itself. It will be no defence of it, to say that it has hitherto been a good and workable system, and that the long ages of its existence have proved it to be so. This is what might have been said, and doubtless was said with truth, but without effect, of every system, not only of agronomy, but of everything else that was ever established in the world. This is the logic of sentiment, of habit, of custom, of tradition, and of those who think that they have interests distinct from and superior to the interests of the rest of the community, and of those who cannot understand what is understood by the rest of the world. It is, however, no match for the logic of facts, and of the general interest, the public good. That must ever be the strongest logic, as well as the highest law. If, then, this common use of land should be overturned by capital, notwithstanding its long history and all that may be said on its behalf, we may infer that it was the absence of capital which brought it into being and maintained it. The abolition of common lands, or Allmends, the disappearance of communal property into private ownership, would not involve the existence of the Commune or impair the value of its most salient features. The Commune forms a distinct part of the state organism, as constituted by the cantonal power; it is a society of citizens for the purpose of exercising the rights of election, legislation, and administration; it has functions, as to certain affairs, in which it is vested with a certain autonomy; its institutions, estates, and donations, within the limits of the cantonal constitution, being under its exclusive authority and direction. It is as administrative units, presenting an orderly and systematic arrangement, giving the population an opportunity to exercise an immediate influence on affairs, and quickly awakening the public spirit, that the Communes possess their most essential importance. The reason that the republican system is so firmly established in Switzerland is, that it has its roots in these minute districts forming the principal forces of political and administrative life. Freedom is best served by breaking up commonwealths into small self-governing communities. They decentralize the government. A free state is free, not so much because its executive or even because its legislature takes a certain shape, as because its people are free to speak their minds and to act as they choose, within the limits of the law, in all matters, public and private. That is the best form of government that best secures these powers to its people. In Switzerland national freedom has grown out of personal and local freedom. The Confederation is a union of independent Cantons, the Cantons a union of autonomous Communes. Political life is localized, centripetal, intense, expressing itself in social and civic forms. The parts come before the whole, the smaller units are not divisions of the whole, but the whole is made up by the aggregation of the smaller units. Each stage—Commune, Canton, Confederation—is alike self-acting within its own range. Many of the Cantons changed from oligarchies to democracies, many rose from the rank of subjects to the rank of confederates; in all, their institutions rested on an ancient and immemorial groundwork of Communes; and whatever is new in them has grown naturally and consistently out of the old. During the time when the greater Cantons were aristocratically governed, some by a hereditary class of patricians, others by the exclusive corporation of burghers, communal liberty was retained as the basis of the cantonal organization, and through its influence, the republic, the political ideal of the people, had its deep root in the popular character and customs; therefore the transition from an aristocratic to a representative republic was easy and natural, when, in harmony with modern theories, civil liberties were extended to all classes.
Switzerland has 2706 Communes, divided as to nationality, 1352 German, 945 French, 291 Italian, and 118 in the Grisons, where the Romansch language is used. These Communes as an area of general state administration serve for electoral districts, and as voting districts for the Referendum. Their powers are numerous. They provide for all the public services within their limits, much after the manner of a Canton; they possess a sort of local police, which keeps order day and night in their territory, is present at fairs and markets, having an eye to the public houses, and watches over rural property. Other communal officials maintain the public buildings, roads, fountains, look after the lighting, take measures against fires, superintend schools and religious matters, and supply aid to the poor both in sickness and health. In the small Communes there is only a municipal council, composed of not less than four, elected directly by the members of the Commune in a general assembly (Gemeinde-Versammlung), one of whom is made presiding officer and called the Syndic or Maire. In the large Communes there are two councils, one legislative and the other executive. A greater or less number of Communes in each Canton form a district, presided over by a Prefect (Regierungsstatthalter) who represents the cantonal government. The functions of the communal assemblies extend to: voting the budget, receipts and expenses; the determination and apportionment of taxes; the choice of president and functionaries of every kind, with the right of controlling and dismissing them; administration of property belonging to the Commune; acceptance or modification of all communal regulations; foundation of churches, charitable institutions, hospitals, school-houses and prisons. The assembly or legislative council elects the communal or executive council, and the president of this body is the chief official of the Commune. Every citizen is eligible to the communal council, who is domiciled in the Commune, and a qualified voter in the communal assembly. The qualifications which entitle every citizen in the Commune to vote in the communal assembly require that he must have attained his twentieth year, be sui juris, in full enjoyment of the general civil and political rights of the citizen, and be under no temporary civil or criminal disability. Paupers and those who have not paid their taxes cannot vote; those, too, who from intemperate habits have been prohibited from frequenting public houses are not allowed to vote during that probationary period. The principal matters assigned to the supervision of a communal council embrace: the local police, including residents and establishments in the Commune; guardianship, embracing orphans and those not capable of managing their own property (for any improvident citizen may be made a ward, and the control of his property taken away from him); the poor, relieving them as far as possible from the communal funds, and when this is insufficient, to seek voluntary contributions; public instruction, appointing the teachers in the primary schools and paying their salaries; levying taxes upon the landed property, capital and revenue, for the administration of the Commune, when revenues of communal property are insufficient. The habit of borrowing money on the security of communal credit has obtained but little footing; far from being disposed to spare themselves by throwing burdens on their successors, they rather think it necessary to get together and keep together a capital which shall produce interest, a school fund, a poor fund, so the weight of annual taxation for these purposes may be lightened. In general, every citizen of a Commune must serve his two years in any office to which he is elected, unless excused, from the fact that he is already filling some public position, or that he is sixty years old or in bad health; every one takes his turn of office, as he takes, in earlier days, his spell of school, and in his later days, his spell of camp. Non-members of the Commune, if Swiss citizens, by virtue of a constitutional provision, have within it equal rights, excepting in respect of the communal property; nor can they be subjected to taxes or other contributions than those imposed on their own citizens. Every inhabitant of a Commune must be inscribed at the police office, and be prepared at all times to show that he is really a member of the Commune; if he removes to another Canton he must be fortified with this evidence of his communal citizenship, or he will not be allowed to remain. This regulation is strictly enforced in every case, specially where the party is in any danger of becoming a public burden. Every Commune, under this strict police surveillance, is absolutely protected against being compelled to support the vagrants or beggars of other Communes. The idea that it is the duty of the Commune to take care of its poor, the unfortunate, and incapable is firmly planted in the mind and breast of every member. They will try to prevent an hereditary or professional pauper from acquiring a domicile in the Commune, and to return to their own Communes shiftless persons that are apt to need aid, but are ready to relieve every case of destitution which fairly belongs in the Commune.
The control of the Canton over the Communes in early times was only nominal; it consisted in finding fault and proposing amendments that were not adopted; any semblance of cantonal interference, in the way of inspection and suggestions, being resented by the Communes. Of later years there has been a gradual and systematic improvement in the relation of the Canton and the Commune; and increased activity of cantonal superintendence has effected a better management of the Commune. The common funds as well as the common obligations have been subjected to more efficient rules, without at all extinguishing the principle of distinct communal management. Communal accounts are referable to the Canton for investigation and correction. Where great irregularities are discovered (which occurred once), the Canton has the right to put a Commune under guardianship; a Commune might, indeed, under certain circumstances be forced into bankruptcy. The Constitution of 1874 largely extended this cantonal supervision over the Commune, and modified many extraordinary powers hitherto exercised by it. Some writers look upon the Commune as representing an “antiquated form of corporation,” to which the modern era is opposed; a sort of mediæval fraternity for the existence of which no plausible ground can be found. Others still contend that the Communes form the true unities, through which, by equilibration of the interests of each, the wants of the whole are more wisely and effectively served. The republic of Switzerland can largely trace its foundation, historically, to a free communal constitution. It forms the solid foundation of the whole organization. In the Commune, the citizen himself feels that he is connected with his fellow-members by the bonds of a common ownership; and with his fellow-citizens, by the common exercise of the same right. With him the fair motto of the French, “Liberty, Equality, and Fraternity,” is no empty formula inscribed on the tablets of public documents. His liberty is complete, and has been handed down from remote antiquity; equality is a fact sanctioned by all his laws; fraternity is not mere sentiment, it is embodied in institutions which make the members of the same Commune members of one family, partaking, by equal right, in the hereditary patrimony. It would be unnatural if he was not deeply attached to an administration in which he takes so constant and essential a part. It is to him, also, the nursery of independence, and the training-school for higher politics; not controversial, office-seeking, electioneering politics, but politics as including in one and the same comprehensive signification, as in the vocabulary of a free country it should be, all the relations and obligations of the citizen to the state. The rights and duties of a citizen are themes of daily interest and discussion in the Commune, and are taught in all its secondary and superior schools; every one is instructed and encouraged to take a personal and intelligent interest in what concerns the public weal, to be familiar with the public business, to the interchange of ideas, and to the give-and-take of civic life generally. He is taught that no man liveth to himself in a republic, but every man has public duties, every man is a public man, every man holds one high, sacred, all-embracing office, the office of a free citizen.
Switzerland, with its Communes, fully answers Aristotle’s definition of a state, as “the association of clans and village communities in a complete and self-sufficing life.” Small bodies are more closely united and more vigorous in the pursuit of their end than large communities; this results from their leading more easily to personal friendships, and from the circumstance that, in a limited circle, men are brought more frequently and immediately into contact with one another. By this means their sympathetic feelings become more deeply interested in the common welfare; they see more clearly that they are pursuing a common object, and perceive the importance of vigorous co-operation on the part of each member of the association. Amid so small a number, each person feels that his single vote and exertions are of consequence, and the thought of this excites in him a sense of responsibility, and inspires him with a more lively interest in that government of which he himself is an efficient member. Every man who fills a communal station, however humble, is conscious that he is playing his part in the presence of the whole miniature republic, and that his conduct is every moment exposed to a minute and jealous scrutiny. By all these circumstances public virtue is stimulated, corruption checked, mutual sympathy heightened, patriotic zeal inflamed, and the union of public with private interests clearly and substantially demonstrated. “It is not by the consolidation or concentration of powers, but by their distribution, that good government is effected. Were not this great country already divided into States, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every State again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual owner. It is by this partition of cares, descending in gradation from general to particular, that the mass of human affairs may be best managed for the good and prosperity of all.”[56]
CHAPTER X.
CITIZENSHIP.
In the old days of the Swiss Confederation, the days of the Staatenbund, when no part of the internal sovereignty had been given over to any central power, the citizen of any Canton was regarded and treated as a foreigner in any other Canton; he was as strictly a metoikos as a Corinthian who had settled at Athens, having no voice in the government either of the Canton or Commune into which he removed. All Swiss citizens who settled in Gemeinden, or Communes, of which they had not the hereditary burghership, answered exactly to the Greek metoikos; being in every important respect strangers in the places where they themselves dwelt, and where, perhaps, their forefathers had dwelt for generations. Down to 1815, it was left to each Canton to determine for itself the conditions under which persons from without could settle and gain citizenship; and for the first time, under the Constitution of 1848, a general law governing this matter was adopted; and it was still further extended and elaborated by that of 1874.[57] The good example of the United States, where it had already been constitutionally provided that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” was followed in the present Swiss constitution; giving every Swiss citizen equal federal and cantonal rights, in whatever part of the Confederation he may settle. The two higher franchises, those of the Confederation and the Canton, are assured to him at his place of domicile as fully as to a native thereof; but to the lower franchise of the Commune he can be admitted only by a special grant, or by the effect of some special cantonal enactment. Communal questions, even including citizenship, are left to the legislation of the Canton and of the Commune itself, the federal constitution only providing that one domiciled in the Commune shall not be discriminated against as to taxation. The mere fact of indefinite residence and contribution to the local taxes no more gives one a right to communal than it would to American citizenship. Membership in the Commune is the determining factor of Swiss citizenship. Modern states generally recognize nationality as a personal relation not mainly dependent on place of birth or domicile, but on descent from members of the nation and personal reception into its membership, place of birth and domicile coming in to complete the notion. Midway between these comes the Swiss principle of membership in the Communes, which forms the basis of membership of the Canton (Cantonsbürgerrecht), and that, in turn, of the Swiss Confederation (Schweizerbürgerrecht). Citizenship in Switzerland is primarily an affair of the Commune, from which the broader conception of citizenship in the Canton and the Confederation must be reached. The “right of origin” is the great imprescriptible right and muniment of Swiss citizenship, and the production of a certificate of Commune d’Origine secures the constitutional right “to establish residence at any point in Swiss territory.” The lines of distinction between these several conceptions are not clearly presented, even to the minds of the Swiss themselves.