State and Federal Government in Switzerland

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Part I.— Federal Government. Page

Chaptbe I. — Origins op thb Commonwealth 3

Chaptee II. — Thb Oonfedsbation and thb Cantons 80

Chaptbe III.— Fbdbeal Legislation 88

Chaptbe IV. — The Law and the People 46

Chaptbe V. — The Fbdeeal Executive 62

Chaptbe VI.— The Fbdeeal Judiciaet 68

Chaptbe VII.— The Fbdeeal Aemy 62

Chaptbe VIII.— Inteenational Relations 67

Chaptbe IX.— Fbdeeal Finance 70

Chaptbe X.— The Confedbeation and Society 83

Chaptbe XI.— The Confedbeation and the Individual 97

PART II.— STATE GOVERNMENT. Chaptbe XII. — State Legislation 106

Chaptbe XIII. — Refeebndum and Initiative 122

Chaptbe XIV.— State Executive and Judicuet 182

' Chaptbe XV.— State and Local Finance 146

Chaptbe XVI. — Community and Citizenship 157

Chaptbe XVII. — Church and State 178

Chaptbe XVIII.— Education ', 182

Part Iii.— Sources Of Constitutional History, 1291-1891

The Fiest Fbdeeal Constitution 191

The Peesent Fbdeeal Constitution 194

The Alcohol Monopoly Law 228

litbeatuee of constitutional histoey 228

Statistical Table 240

Index 241

BBV'M

Part I Federal Government

STATE AND FEDERAL GOVERNMENT

IN SWITZERLAND.

CHAPTER I. Origins of the Commonwealth

The origins of the political institutions and ideas of Switzerland must be sought an^ong the laws and customs of the early Germans. Although the foothills of the Alps were for a long time occupied by tribes of Kelts, and, later on, became subject to the Roman Empire, no influence of the ancient Helvetians or of Latin civilization survived the Great Migration with strength enough to determine the form in which law and state should develop.

Two nations of Germans, the Burgundians and the Alamanni, then enemies, later confederates, took possession of Switzerland in the first half of the fifth century, and have never been supplanted. The Burgundians, already christianized, divided the soil of the southwestern part with the Roman inhabitants, became Frenchmen, and, because of their connection with the larger Burgundy of France, became members of a Swiss Confederacy, only after it had been long in operation and the line of its evolution determined.

The Alamanni, still pagan, and hating the restraints of civilization, entered a land once flourishing with cities, but then almost abandoned. Neither Latin inhabitants nor Roman remains affected to any great degree their language or institutions. They grew and developed as a German nation. Their mountainous country fostered their native individuality, and tliey became the founders of Swiss liberty, the originators of the Confederation, and were for centuries the exclusive material out of which the republic was enlarged.

Thus the foundations of the existing form of government and the political instincts of the people of to-day were in large part laid by the same Teutonic forefathers to whom we trace the constitutions of England and America.

The Alamannic invaders divided the land among themselves and settled down under separate chieftains or kings in difiFerent districts, and, we may believe, as in other German tribes these districts were subdivided into gav£ and hundreds which were governed by counts and centenarii or centgrafen. This was at least the form of government when they were conquered by the Franks in the sixth century. At that time these chiefs were deprived of what royal power they may have had, and were made dukes of the Merovingian empire. Pippin in 748 abolished the dukes, and Charles the Great completed the subjugation by causing the grafen to be appointed by royal warrant instead of by popular election. In his district the graf administered the laws under the oversight of the royal commissioners, and commanded its army contingent in time of war. In the hundred the centgrafy with the whole body of citizens assembled about him as judges and jury, held court upon minor offenses, and, like the graf in his larger sphere, led his neighbors to battle.

Such a district, for example, was Thurgau, which originally included all the northeastern and central part of Switzerland, and such hundreds were the valleys of Schwyz, Uri, and Unterwalden.

In the expansion of the feudal system, and in consequence of vast endowments of churches and monasteries, proprietorship in the soil became greatly changed, and the lordship of these counties and hundreds became hereditary in different families. Many small owners put themselves under the protection of powerful lords, others placed themselves in feudal relation to the monasteries. Whole districts were granted in

Origins of ihe OommonweaUh. 5

fief to abbeys and cloisters, and thereby received the immunities which the church then enjoyed. Hence, at the time when we first begin to hear of a Swiss Confederation, the legal and political status of the country had become very much complicated, and each of the districts had reasons of its own for revolt.

Uri had been from the ninth century a fief of the abbey of Zurich. It thereby gained immunity from the jurisdiction of the ordinary graf and centgrafy and enjoyed the milder rule of the monastic officials, recei^'ing later also the direct protection of the emperor, who appointed the advocate or overlord for all the possessions of the abbey.

The inhabitants of the lower valley of the Reuss formed the " Community of the People of Uri," and regulated for themselves all matters pertaining to their common pastures and woodlands. In Schwyz also, along with some manorial subjects, there had been preserved from earlier times a Markgmosaert'Schoft, owning its own land and making its own local laws. Their external political status, however, was not so desirable as that of Uri, since they were under the protection of neighboring magnates and only distantly attached to the empire. The same may be said of Unterwalden, except that ownership of land was more divided up among monasteries and nobles and there were fewer free farmers than in Schwyz. In both the constant menace was that their overlords would assume not only the feudal protection of the districts, but the territorial ownership as well, and gradually deprive the small owners of their remaining rights.

We must not put too large an estimate upon the legislative powers of these communities at this time. The scope of lawmaking doubtless went little beyond the concerns of their common farming and pasturage. Popular rights found expression rather in the application of law, in attendance upon court and in sitting upon juries in local trials. Here they would jealously guard ancient usages and resent foreign interference and arbitrary interpretation. It is important to

6 Stale and Federal Government in Switzerland.

note, however, that their common interests and occasional assemblies kept alive the sense of mutual dependence, and when political matters were in the air, the Markgenossenschaft became the centre of action. In this local agricultural freedom lay the germ of larger political liberty, and when the time came for action, the instinct and the instrumentalities were at hand.^

At the beginning of the thirteenth century we find the dukes of Zahipingen in hereditary possession of the combined offices of Count of Ziirichgau, now partitioned out of Thurgau, and of advocate for the abbey of Zurich. Thus the three hundreds, Schwyz, Uri, and Unterwalden, were under the same overlord, but with far different relations. In Uri the duke only exercised a general superintendence through a sub-advocate, while in Schwyz and Unterwalden he administered the laws through his own vassals, who received the offices of graf and centgraf as hereditary fiefs. There was imminent danger that through long usage the local liberties of the people would gradually sink into feudal serfdom. But in 1218 the house of Zahringen became extinct and its fiefs fell back to the crown.

Zurich, city and abbey, and consequently Uri, sought and received a renewal of their immunities.^ The other districts began at once to strive after the same immediate attachment to the empire, and at last obtained it from the emperor Frederic II., in 1240, who decreed that Schwyz and Unterwalden should forever after be imperial fiefs and should be governed by imperial advocates.^ The counts of Habsburg, who, as vassals of Zahringen, had long held the offices of centgraf in these valleys, now became imperial instead of feudal administrators, and the condition of the people so far improved that in case of misgovernment appeal could be made directly to the emperor, in place of a self-interested overlord.

> Cf . Dierauer, Gesch., I. 84. « In 1331.

' Oechsli, QuelleDbuch, p. 47.

Origins of the GommonweaUh, 7

In 1273, Eudolf of Habsbnrg was elected king. He at once confirmed the imperial relationship of Uri, but for Schwyz and Unterwalden deferred without directly refusing the renewal of the privileges of Frederic 11.

The evident object was to gain by gradual usurpation the territorial lordship over these districts and add them to the increasing hereditary possessions of his family. The purchase of Luzem and many small landed properties scattered over the three cantons, the imposition of foreign bailiffs, together with increasing burdens of taxation, strengthened these suspicions, and caused not only Schwyz and Unterwalden, but also the imperial fief Uri, to look forward with uneasiness to the future. Kudolf died in 1291, without confirming the charters. The character of his son Albert was not such as would inspire hope of better treatment, and seventeen days^ after Eudolf ^s death, the three districts entered into a league. The charter itself declares it to be a renewal of an older compact, but no document earlier than this having been preserved, this agreement is known as the First Perpetual League^ and the starting-point of the Swiss Confederation.

The object of the League of 1291 was not total independence of all outside domination, but the preservation of their old direct connection with the Empire and long-accustomed local rights. The confederates solemnly agreed not to receive any judge who was not a native of their valleys, nor one who had bought his ofi&ce with a price ; to settle all difficulties arising between the three cantons by arbitration, and if any party refused to accede to a decision, the others should compel it to obey ; and in case of attack by any power, the other cantons should come to the help of the endangered.

But all proper feudal claims should be respected, and each district should serve its own overlord in all things so far as

^Dieraner, GFesch., p. 78.

^AmtlioheSammlungderEidgenossischen Abschiede, I., p. 241; Oechsli, Qaellenbuch, p. 49.

they were right, just, and customary before the time of King Rudolf. The territorial rights of the abbeys and monasteries who had lands and serfs in those valleys, the family 'possessions of noble houses, and the imperial overlordship were to be honored as before. Ten weeks later a defensive alliance was also entered into for three years between Uri, Schwyz, and the city of Zurich, in which mutual assistance is promised in case of attack.

The confederates had not misconceived the plans of Duke Albert, for almost immediately an Austrian force appeared before Zurich, though it does not seem from the meagre accounts that much was done, and peace was signed in August, 1292. The danger was temporarily bridged over by the election of Adolf of Nassau as king. He left the Swiss pretty much to themselves, and finally in 1297 renewed the privileges granted by Frederic II. But in 1298 Adolf was kiUed in a battle with his rival, and the confederates were once more exposed to the ambitious plans of the house of Habsburg.

From this time on until his death, Albert more and more exasperated the people of these valleys by tyrannical measures of government. Overbearing bailiffs were set over them, who acted as if they were the overseers of Habsburg private estates, rather than governors of imperial fiefs, and outraged both the written privileges of the cantons and the commonest laws of justice. The Swiss found it advisable to endure this for a time, but upon the news of the emperor's murder the confederates at once airose, drove out the hated bailiffs, and in the following year obtained from Henry VII. not only a confirmation of their previous imperial independence, but also the privilege that they should not be cited before any court outside their own land, except to the royal tribunal itself.^ But in 1313 another double election of kings brought all Grermany into arms and threatened once more

' Jtts non evocando. Kopp, Urkunden, p. 103. Oechsli, Quellenbuch, p. 52.

Origins of the Oomm<mwealth. 9

the beginnings of freedom in the Swiss valleys. The confederates, naturally distrustful of the house of Austria, sided with -Louis of Bavaria, and in consequence, Leopold, brother of the rival king Frederic, set out with an army of 10,000 men to complete that humiliation of the peasants which his father had attempted. The invaders were routed in the battle of Morgarten in 1315. The confederates, rendered confident by success, renewed in the same year the compact made in 1291, with the important addition that no party should submit to an overlord or n^otiate with a foreign power without the consent of the others.

The eventual success of Louis of Bavaria removed the danger of invasion for a considerable time, and peace between Austria and the Forest Cantons was definitely signed in 1323. In 1324 Louis declared the manorial and feudal rights of the rebellious Frederic forfeited to the crown, and the tenants of his lands free imperial citizens. By this stroke the inequalities of the inhabitants were almost entirely removed, the jurisdiction of manor courts largely replaced by the common law and customs of the land, and the sense of unity among the cantons greatly solidified.

The next addition to this confederation of states was Luzern. Having been for hundreds of years a fief of the abbey of Murbach, and enjoying the immunities connected with clerical possessions, this city suddenly found itself in 1291 sold out to the house of Habsburg and under the domination of Duke Albert. The governor was now an appointee of a prince anxious to extend his dominion and authority, and although this new ofiicial promised to maintain the old privileges, the political tendency of Habsburg government was plainly contrary to the interests of Luzern. The citizens were obliged to fight against their neighbors in the wars of Austria with the Swiss, and had these attacks been successful, the country would have been reduced to one common dependency. These facts and the close proximity of the^ three imperial cantons, brought about a union of

Schwyz, Uri, Unterwalden, and Luzem in 1332. Mutual aid in time of war and arbitration of disputes were the objects of the league. The territorial rights of their several overlords were distinctly reserved, but the final result could not help but be against the house of Austria.

A second infusion of the municipal element into the confederation resulted from the admission of Zurich in 1351. This was an important addition, since Zurich was not only a flourishing commercial centre, and the confederates thereby gained the advantages of internal free trade, but situated as it was at the head of the lake, it formed a strategic point on the main road over the Alps. Zurich also had immediate cause to be glad of allies, for the signing of the compact was the signal for attack by an Austrian army. The siege was sustained with the help of contingents from the Forest Cantons, and the outcome of the war was that the confederation which began it with five members finished it with eight. The additions were Glarus, Zug, and Bern.

The valley of Glarus since the eighth century had been a fief of the abbey of Sackingen on the Rhine, and as such had been administered successively under the overlordship of the houses of Lenzburg, Kyburg and Habsburg, but the resident bailiff had for three centuries been a member of a native family. In 1288, however, to the consternation of the valley, this ofiice also was bestowed upon the house of Habsburg, which thus came into possession of both higher and lower judicial functions. The difference at once became apparent in increased taxation and rigor of administration.

The first evidence of revolt was a refusal to take up arms for Austria in the invasion of 1315. The Glarnese would fight only in behalf of the Abbess of Sackingen. Redoubled oppressions by foreign bailiffs, and the refusal to renew certain charters accidentally burned in a general conflagration, so deepened the bitterness against Austria, that in 1351, when a detachment of Zurich soldiers overran and took possession of the valley, the inhabitants not oply did

Origins of (he QmimonweaUh. 11

not resist, but at the request of the invaders cheerfully sent a company of men to assist the besieged city. When the Austrians endeavored in the following year to recapture Glarus they were completely overthrown, and a few months later this canton was joined to the league. The agreement was entered into by Zurich, Schwyz, Uri, Unterwalden, and Glarus, but the latter was not admitted on an equality with the others. Demands for aid from the other confederates were to be subject to proof, but when the Glarnese were called upon they should respond without question. Equality was not obtained till 1450.

The city and district of Zug were likewise under the overlordship of Habsburg, and, on account of their situation, important to the league in a war with Austria. So a few weeks after the capture of Glarus a confederate force surrounded the city. The besieged sent at once to the Austrians for assistance, but Duke Frederic, intent on humiliating Zurich, refused. Zug, finding no glory in faithfulness to such an overlord, made peace at once and entered into a league with the confederates. In this compact all of the former cantons were parties except Glarus, and Zug was received into the confederation on an equality with the others.

Of still greater importance was the acquisition of Bern. This had long enjoyed the rights of an imperial free city, and as such was an ally of the house of Austria in its war against the Swiss, even sending a contingent to assist in the siege of Zurich. But in fighting against the Forest Cantons, the contradiction of its interests was so apparent that as soon as peace was concluded Bern took steps toward an alliance with these neighbors. By a treaty in 1353 it entered into a perpetual league with Uri, Schwyz, and Unterwalden, upon conditions similar to those in the other agreements. With Zurich and Luzern, Bern had no connection except through the original states. If Bern desired assistance in war it called upon the Forest Cantons, and these in turn demanded the help of the cities. If Zurich and Luzern were in need, Bern was enlisted by the same mediation.

The League of Eight, as thus completed, remained without further enlargement for a century and a quarter. These details of its early history have been given with some particularity in order to show the original motives to the formation of a union, the changing circumstances which caused its continuance and enlargement, and the reasons for the peculiar nature of the federal bond. From this point onward to the close of the eighteenth century, events and institutions move with more deliberation, and, although we pass, through the most brilliant period of the military ascendancy of Switzerland, there is less to record of institutional advancement.

In the course of the next one hundred and thirty years three important landmarks are to be met in the constitutional growth of the confederation. The first is the so-called Pfaffhibrief of 1370. It is an agreement by means of which all the states except Bern and Glarus freed themselves from the jurisdiction of clerical courts in all temporal matters.^

The chief provisions of this " Priest Letter'^ were (1) that every inhabitant who was bound by oath of vassalage to the dukes of Austria should also swear allegiance to the confederation, and that this should include clergy as well as laity, nobles as well as commoners. (2) That clericals who were not citizens of any confederate city or land, yet dwelt within the confederation, should not summon a confederate citizen before any foreign court of justice, either clerical or temporal, but should cite him before the court of the place where he resided, except in matters relating to the clergy and to marriage, which belonged to the jurisdiction of the bishop. The penalty was outlawry to any priest who disobeyed.

It was further attempted to set some limit to the disquietudes of private warfare by prohibiting armed conflicts to all who had not first obtained a government license. But the Pfaffenbriefy as its nickname indicates, is distinguished more than in any other way for the measures taken to cut off the

^ Bidgen. Abschiede, I., p. 301. Oechsli, p. 99.

jurisdiction of foreign and distant courts and to diminish tl\e abuses of clerical immunity, thereby making a distinct advance in the direction of neutrality and independence.

The second constitutional monument of this period was the Sempacher Brief of 1393, which may be called the first war-ordinance of the confederation.^ A secret treaty had been discovered between Austria and the Burgomaster and Privy Council of Zurich, in which the city was pledged to remain neutral if Austria made war upon the confederates. The citizens procured the overthrow and banishment of the traitors, and during the excitement caused by this narrow escape from danger, the confederates took immediate steps to tighten the bonds of union between themselves. Since they had so recently fought out their cause with Austria to an honorable result, they would now provide for future attacks by renewing their former oaths and agreements, to the end that fellow-citizens should live in peace with one another, should not violently enter each other's houses in war or peace, and should assist each other in all things without deceit. Merchants should be protected in person and in goods.

To make defense of their country more eflfective, regulations were made for the better conduct of war. As their forefathers had always done, each city and district fought under its own banner. If any one deserted the flag, his life and goods were at the disposal of his state. Even the wounded were expected to follow the banner as long as they could. No one should begin to plunder until the commander gave permission. The booty when brought in should be handed over to the officers, and these should divide it honorably among all the men alike. Cloisters and churches should not be plundered unless an enemy or his goods were concealed therein. Women should not be struck nor stabbed nor otherwise ill-treated, unless they fought themselves, or by

^ Eidgen. Abschiede, I.» p. 327. Oechsli, p. 110.

outcry gave help to an enemy; they could then be punished according to desert.

This was the first agreement in which the confederated states all acted together without the mediation of the original cantons or through the indirect connection of cities. Its name came from the fact that the battle of Sempach, in 1386, is several times mentioned as showing examples of the evils which the treaty sought to abolish, and one Swiss historian goes so far as to call it the first attempt made by any people to temper by agreement the savagery of war.^

Eighty-eight years after this agreement the confederation passed through a crisis which threatened its very existence. The danger in this case came from within instead of without. Discord among the states had been increasing for some time, for it was plainly to be seen that the interests of the cities and the rural communities widely diverged.

The league had been formed on a basis of equality of states, but it could hardly fail, in course of time, that the cities, with their larger and more cultivated population, should exert a more commanding influence in the politics of the nation than the agricultural cantons, whose boundaries were comparatively stationary and people less progressive. The moral weight was on the side of the cities, but the vote in the Federal Diet exhibited four rural states against three municipal, with Zug in a changeable position, as it was composed of both city and country. The policy of Schwyz, Uri, Unterwalden, and Glarus had degenerated into chronic, opposition to the desires of Zurich, Bern, and Luzern. The Forest States regarded themselves as the founders of the League and still the centre of its life. They were jealous of the increasing power of the towns, their wealth and evident influence with foreign nations. They feared also for their

^ Dandliker, Gesch, d. Schweiz, I., p. 560. Same, L, p. 594 : ** The Confederation which in the 19th century established the Convention of Qeneva for the protection of the wounded, had already in the 14th century, for the first time in the history of the world, mitigated the barbarity of war."

hard-bought freedom, should the axistoeratie cities gain the upper hand, and the municipalities on their part had given cause for suspicions of this kind, for in the government of their territories they made distinctions between citizens within and without the walls, much to the disadvantage of the latter, and in general held their rural subjects in invidious subordination. The Forest States had no desire to become appendages of the rich, aristocratic, and sometimes unscrupulous governments of Bern, Luzem, or Zurich. The cities, moreover, had appeared to reap most of the advantage from the confederate wars. Their territories had grown larger by annexation, while the enclosed central states must remain the same. Especially in the war with Charles the Bold, Bern had gained greatly in extent on the west, while the immense booty taken in battle and the tributes laid on conquered cities seemed to the country cantons to be unfairly divided, for all were supposed to receive an equal share. The cities protested that it was no fair division of booty to give each one of the country states, who had all together furnished 14,000 men for the war, an even share with Bern which had sent out 40,000. Another bone of contention was the enlargement of the union. The cities had for a long time desired to bring the cantons of Freiburg and Solothurn into the League. This was a step recommended by policy as well as by friendship, for by this means the borders of the confederation would have been rounded out to limits much better fortified by nature, not to mention the numerical increase in military forces. But these were municipal governments, and the Forest States, unwilling to add more to the voting strength of the cities and thereby place themselves in the minority, refused again and again to admit these cantons.

The situation daily grew more critical. Schwyz, Uri, and Unterwalden made an agreement with Glarus to stand by each other in case of attack. Luzern, Bern, and Zurich made a compact of mutual citizenship, a form of agreement by which they sought to circumvent the oath they had taken in the League of Eight to enter into no new alliances.

16 State and Federal Oovemment in Svntzerland.

Just at this point there was alleged to have been discovered a plot to destroy the city of Luzem by countrymen of Obwalden and Entlibuch. The cities were thrown into a frenzy and peace was strained to the utmost. Threats and recriminations passed from side to side, but finally, as an almost hopeless effort toward reconciliation, a Diet was called to meet at Stanz on the 8th of December, 1481.

The details of this conference read like romance, so great was the transformation which took place in the feelings of the confederates. Much controversy has arisen over the causes of this sudden change of sentiment. Whether it was the moral influence of the hermit Nicolas von der Flue or the statesmanship of Burgomaster Waldmann which brought it about is diflicult to decide, but just as the Diet was about to break up in confusion a compromise was effected, and an agreement was drawn up which is known as the Convention of Stanz [Stanzerverkomnias). In this convention the agreements of the Perpetual League, the Pfaffenbrief and of the Sempacher Brief are re-aflfirmed and the new separate alliances abolished. As to the matter latest in contention, it was agreed that movable booty should be divided according to the number of men sent into war, but new acquisitions of territory should be shared equally among the states participating. Thus the principle of state-rights was preserved and the idea of popular representation received its first, and for three hundred years almost its only recognition. In another agreement, made the same day, Freiburg and Solothum were admitted to the League on equal terms with the others.

In 1501 the confederation was enlarged by the admission of Basel, which, on account of its situation and importance, was a most desirable acquisition, and in the same year the addition of Schaffhausen, like Basel, a free imperial city with outlying territories, still further strengthened the union.

The next, and for two hundred and eighty-five years the

^Eidgen. Abschiede, I., p. 696. Oechsli, p. 208.

last, addition to the inner membership of the allianoe was Appenzell. This canton had often sought admission, but had hitherto been refused on account of the warlike disposition of the people and their liability to get into trouble without sufficient cause. Indeed, all three of these new states were placed in a subordinate position, as may be seen from the fact that they were enjoined from making new alliances or beginning war without the consent of the other confederates. For Basel and Schaffhausen the peculiar arrangement is made that in case strife should arise between other members of the League, they are to endeavor to mediate peaceably, but failing in this they are to stand by, let them fight it out and aid neither party.