The Governments of Europe

by Frederic Austin Ogg

452. The Constitution of 1848 and the Revision of 1874.—The war was worth while, because the crisis which it precipitated afforded the liberals an opportunity to bring about the adoption of a wholly new constitution. For a time the outlook was darkened by the possibility of foreign intervention, but by the outbreak of the revolution of 1848 at Paris that danger was effectually removed. The upshot was that, through the agency of a committee of fourteen, constituted, in fact, February 17, 1848—one week prior to the overthrow of Louis Philippe—the nationalists proceeded to incorporate freely the reforms they desired in a constitutional projet, and this instrument the Diet forthwith revised slightly and placed before the people for acceptance. By a vote of 15-1/2 cantons (with a population of 1,900,000) to 6-1/2 (with a population of 290,000), the new constitution was approved.

The adoption of the constitution of 1848, ensuring a modified revival of the governmental régime of 1798-1803, comprised a distinct victory for the Radical, or Centralist, party. During the two decades which followed this party maintained complete control of the federal government, and in 1872 it brought forward the draft of a new constitution whose centralizing tendencies were still more pronounced. By popular vote this proffered constitution was rejected. Another draft, however, was prepared and, April 19, 1874, by a vote of 14-1/2 cantons against 7-1/2, it was adopted. The popular vote was 340,149 to 198,013. Amended subsequently upon a large number of occasions,[591] the instrument of 1874 is the fundamental law of the Swiss Confederation to-day, although it is essential to observe that it represents only a revision of the constitution of 1848. As a recent writer has said, "the one region on the continent to which the storms of 1848 brought immediate advantage was Switzerland, for to them it owes its transformation into a well-organized federal state."[592]

II. The Nation and the States

453. Dominance of the Federal Principle.—In its preamble the Swiss constitution proclaims its object to be "to confirm the alliance of the Confederation and to maintain and to promote the unity, strength, and honor of the Swiss nation;" and in its second article it affirms that it is the purpose of the Confederation "to secure the independence of the country against foreign nations, to maintain peace and order within, to protect the liberty and the rights of the confederates, and to foster their common welfare."[593] The use of the term "nation" (which, curiously, nowhere occurs in the constitution of the United States) might seem to imply a considerably larger measure of centralization than in fact exists. For although the effect of the constitution of 1848 was to convert a loosely organized league into a firmly constructed state—to transform, as the Germans would say, a Staatenbund into a Bundesstaat—the measure of consolidation attained fell, and still falls, somewhat short of that which has been realized in the United States, and even in Germany. There are in the Confederation twenty-two cantons, of which three (Unterwalden, Basel, and Appenzell) have split into half-cantons; so that there are really twenty-five political units, each with its own government, its own laws, and its own political conditions. In territorial extent these cantons vary all the way from 2,773 to 14 square miles, and in population, from 642,744 to 13,796;[594] and the primary fact of the Swiss governmental system is the remarkable measure of political independence which these divisions, small as well as large, possess.

454. The Sovereignty of the Cantons.—In the United States there was throughout a prolonged period a fundamental difference of opinion relative to the sovereignty of the individual states composing the Union. The Constitution contains no explicit affirmation upon the subject, and views maintained by nationalists and state right's advocates alike have always been determined of necessity by interpretation of history and of public law. In Switzerland, on the contrary, there is, upon the main issue, no room for doubt. "The cantons are sovereign," asserts the constitution, "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."[595] As in the United States, the federal government is restricted to the exercise of powers that are delegated, while the federated states are free to exercise any that are not delegated exclusively to the nation, nor prohibited to the states. In the Swiss constitution, however, the delimitation of powers, especially those of a legislative character, is so much more minute than in the American instrument that comparatively little room is left for difference of opinion as to what is and what is not "delegated."[596]

455. Federal Control of the Cantons.—After the analogy of the United States, where the nation guarantees to each of the states a republican form of government, the Swiss Confederation guarantees to the cantons their territory, their sovereignty (within the limits fixed by the fundamental law), their constitutions, the liberty and rights of their people, and the privileges and powers which the people have conferred upon those in authority. The cantons are empowered, and indeed required, to call upon the Confederation for the guaranty of their constitutions, and it is stipulated that such guaranty shall be accorded in all instances where it can be shown that the constitution in question contains nothing contrary to the provisions of the federal constitution, that it assures the exercise of political rights according to republican forms, that it has been ratified by the people, and that it may be amended at any time by a majority of the citizens.[597] A cantonal constitution which has not been accorded the assent of the two houses of the federal assembly is inoperative; and the same thing is true of even the minutest amendment. The control of the federal government over the constitutional systems of the states is thus more immediate, if not more effective, than in the United States, where, after a state has been once admitted to the Union, the federal power can reach its constitutional arrangements only through the agency of the courts. Finally, in the event of insurrection the government of the Confederation possesses a right to intervene in the affairs of a canton, with or without a request for such intervention by the constituted cantonal authorities. This right was exercised very effectively upon the occasion of the Ticino disorders of 1889-1890.

Like the American states, but unlike the German, the Swiss cantons enjoy a complete equality of status and of rights. They are forbidden to enter into alliances or treaties of a political nature among themselves, though they are permitted to conclude intercantonal conventions upon legislative, administrative, and judicial subjects, provided such conventions, upon inspection by the federal officials, are found to be devoid of stipulations contrary to the federal constitution or inimical to the rights of any canton. In the event of disputes between cantons, the questions at issue are required to be submitted to the federal government for decision, and the individual canton must refrain absolutely from the use of violence, and even from military preparation.

456. Powers Vested Exclusively in the Confederation.—Within the text of the constitution the division of powers between the federal and the cantonal governments is minute, though far from systematic. The clearest conception of the existing arrangements may perhaps be had by observing that provision is made for three principal categories of powers: (1) those that the Confederation has an exclusive right to exercise, some being merely permissive, others obligatory; (2) those which the Confederation is required, or allowed, to exercise in concurrence with the cantons; and (3) those which are not permitted to be exercised at all.

Of powers committed absolutely to the Confederation, the most important are those of declaring war, making peace, and concluding alliances and treaties with foreign powers, especially treaties relating to tariffs and commerce.[598] The Confederation is forbidden to maintain a standing army, and no canton, without federal permission, may maintain a force numbering more than three hundred men. None the less, by law of 1907, every male Swiss citizen between the ages of twenty and forty-eight is liable to military service, and the constitution vests not only the sole right of declaring war but also the organization and control of the national forces in the Confederation.[599] The neutralized status with which, by international agreement, Switzerland has been vested renders a war in which the nation should be involved, other, at any rate, than a civil contest, extremely improbable.[600] Within the domain of international relations, the cantons retain the right to conclude treaties with foreign powers respecting border and police relations and the administration of public property. All remaining phases of diplomatic intercourse are confided exclusively to the Confederation. Other functions vested in the federal authorities alone include the control of the postal service and of telegraphs; the coining of money and the maintenance of a monetary system; the issue of bank notes and of other forms of paper money; the fixing of standards of weights and measures; the maintenance of a monopoly of the manufacture and sale of gunpowder; and the enactment of supplementary legislation relating to domicile and citizenship.

457. Concurrent Powers and Powers Denied the Confederation.—Among powers which are intrusted to the Confederation, to be exercised in more or less close conjunction with the cantonal governments, are: (1) the making of provision for public education, the cantons maintaining a system of compulsory primary instruction, the Confederation subsidizing educational establishments of higher rank;[601] (2) the regulation of child labor, industrial conditions, emigration, and insurance; (3) the maintenance of highways; (4) the regulation of the press; and (5) the preservation of public order and of peace between members of different religious organizations.