STUDIES IN ECONOMICS AND POLITICAL SCIENCE
Edited by Professor W. A. S. HEWINS, M.A.
THE REFEHENDUM IN SWITZERLAND
THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE
10 ADELPHI TERRACE, STRAND, LONDON, W.C.
The special aim of THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE is the study and investigation of Economic and Political Institutions. Many of the Lectures and Classes are designed to promote a wider knowledge of modern com- mercial conditions, and to meet the needs of those engaged in the Civil Service, municipal employment, journalism, teaching, and public work. The School provides training in methods of investigation, and affords facilities for original work in Economics and Political Science.
PUBLIC LECTURES AND CLASSES are held on Economics, Statistics, Commercial History and Geography, Commercial and Industrial Law, Railway Economics, Banking and Currency, Finance and Taxation, Muncipal History and Administration, and Political Science.
SPECIAL CLASSES, only open to full students of the School, arranged as a three years' course of study, are held in each subject. Students carry on their studies under the Direct Personal Supervision of the Lecturer.
THE LECTURES are usually given between 6 and 9 p.m. The Classes are held both in the evening, between 6 and 9 p.m., and during the daytime.
THE SCHOOL IS OPEN TO MEN AND WOMEN.
THE SCHOOL YEAR commences in October. There are Three Terms, each about ten weeks in duration, viz. : ( i ) October to December ; (2) January to March ; (3) April to July. Students MAY JOIN the School at any time.
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STUDIES IN ECONOMICS AND POLITICAL SCIENCE are in course of publication under the Editorship of the Director of the School.
All communications should be addrsssed to the Director, W. A. S. Hewins, M.A., The London School of Economics and Political Science, 10 Adelphi Terrace, London, W.C.
Vol Sci Govt"
THE REFERENDUM IN SWITZERLAND
By SIMON DEPLOIGE
ADVOCATE With a Letter on the
REFEEENDUM IN BELGIUM
By M. J. VAN DEN HEUVEL
PROFESSOR OF INTERNATIONAL LAW AT THE UNIVERSITY OF I.OUVAIN
Translated into English Br C. P. TREVELYAN, M.A.
TRINITY COLLEGE, CAMBRIDGE
Edited with Notes, Introduction, and Appendices By LILIAN TOMN
GIRTON COLLEGE, CAMBRIDGE
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON NEW YORK AND BOMBAY
1898
All rights reserved
STUDIES IH ECONOMICS ABD POLITICAL SCIEBCE
Published under the auspices of the London School of Economics and Political Science, and Edited by Professor W. A. S. Hewins, M.A., Director of the School.
1. THE HISTORY OF LOCAL RATES IN ENGLAND.
By Edwin Cannan, M.A., Balliol College, Oxford. Crown 8vo, 2s. 6d.
"An interesting summary of the development of one element of taxation. It is still more interesting as the first publication of the newly-established London School of Economics and Political Science, which is attempting to do, though on different lines, a work analogous to that which has been for some years carried on by M. Boutmy's well-known Ecole des Sciences Politiques in Paris." — Times.
2. SELECT DOCUMENTS IF.LUSTRATING THE HIS-
TORY OF TRADE UNIONISM, i. The Tailoring Trade. E<Utpd by F. W. Galton. With a Preface by Sidney Webb, LL.B.
" What Professor Brentano failed to find when he collected the materials for his memorable essay ' On the History and Develop- ment of Guilds and the Origin of Trade Unions,' Mr. Galton has discovered in great abundance, setting forth in his introduction the historical sequence and the economic significance of the docu- ments themselves, and the movements they illustrate, with no little skill and insight." — Times.
3. GERMAN SOCIAL DEMOCRACY. By the Hon. Bertrand
Russell, B.A., Fellow of Trinity College, Cambridge. "A history of the movement during the last thirty years, and of the abortive efforts to retard its growth, leads up to the consideration of its present position, which is approached in a fair-minded spirit and discussed with insight and judg- ment."—/imes.
4. THE REFERENDUM IN SWITZERLAND. By Simon
Deploige, University of Lou vain. Translated by C. P. Trevelyan, M.A., Trinity College, Cambridge, and Edited with Notes, Intro- duction, and Appendices, by Lilian Tomn, Girton College, Cambridge.
5. LOCAL VARIATIONS OF RATES OF WAGES. By F.
W. Laurence, B.A., Trinity College, Cambridge; Adam Smith Prizemari, Cambridge, 1896. [To be published shortly.
6. THE ECONOMIC POLICY OF COLBERT. By A. J.
Sargent, B.A., Brazenose College, Oxford ; Hulme Exhibitioner and Whately Prizeman, Trinity College, Dublin, 1897.
[To be published shortly.
7. SELECT DOCUMENTS ILLUSTRATING THE STATE
REGULATION OF WAGES. Edited, with Introduction and Notes, by W. A. S. Hewins, M.A., Tooke Professor of Economic Science and Statistics at King's College, London ; Director of the London School of Economics and Political Science.
[In preparation. And other Volumes.
INTEODUOTION
The Swiss have systematised direct legislation by means of two institutions, the referendum and the popular initiative. The referendum is a popular vote on laws or legislative questions which have already been discussed by the representative body. The popular initiative is a further development of the principle of direct legislation, by which sections of the community are able to draft a law themselves on any subject, or to insist that the Legislature shall do so.
Proposals to establish some kind of direct legis- lation, and especially the milder form of it, the re- ferendum, have been made in the Belgian and Australasian Parliaments, in the first case as a sub- stitute for the royal veto, and in the second as a way out of deadlocks between the two houses of the Legislature. In the French Parliament various attempts have been made of late years to get certain laws submitted to the people, and to introduce the referendum into the communes.^ The introduction of a communal referendum has also been proposed in the Italian Parliament.
In the United Kingdom the referendum has been advocated by writers of more or less eminence as a substitute for the House of Lords, and as a corrective
^ See J. Signorel, Le Referendum Ugislatif^ pp. 171-181.
V
vi Introduction
for all the evils of party and parliamentary govern- ment.^ The referendum has been extensively used in the British Trade Union world,^ and has existed for over a century in many of the states of America in the form of a popular vote on constitutional changes.^ A Direct Legislation League was formed there in 1894 to secure the introduction of the re- ferendum and initiative in the Swiss form, not only in all the American states and municipalities, but also in the Federal Government, as a remedy for the prevalent corruption of political life.*
The expediency of direct legislation by the people is therefore more than a question of speculative in- terest : it has become a question of practical politics. M. Deploige's objective and impartial study of the historical development and actual working of the referendum and the initiative in Switzerland — the country which has the most extensive experience of direct legislation by the people — will therefore interest not only the student, but the politician and the intel- ligent citizen. It is, however, most important to bear in mind that direct legislation of the people as prac- tised in Switzerland forms a part of a peculiar and complicated constitution. To study it without con- sidering the people who work it, the system for which it was designed, and the circumstances in which it
^ See Contemporary Review, April 1890, "Ought the Eeferendum to be introduced into England 1 " A. V. Dicey ; also the discussion on the subject in the National Review, 1894, by Professor Dicey, Mr. Curzon, Admiral Maxse, Lord Grey, and Mr. St. Looe Strachey.
' See Industrial Democracy, S. & B, Webb, 1898.
' The Referendum in America, E. P. Oberholtzer, 1893, and the Adoption and Amendment of Constitutions, C. Borgeaud, 1895.
* The organ of the League is the Direct Legislation Record, pub- lished quarterly. Editor, J. Eltweed Pomeroy.
Introduction vii
originated, is like examining and criticising a set of wheels without inquiring whether they are intended for a perambulator, a coach, or an engine. For we must remember that in Switzerland the people have an Executive which does not resign when out-voted by the Parliament, a Parliament which does not dis- solve when its measures are negatived by the people, and an electorate who, whilst constantly rejecting the laws made by their representatives, nevertheless usually send back those same representatives to serve for the same term of years. Party organisation, as we understand it, seems to be almost unknown in the Swiss Kepublic. The referendum, in fact, exists in Switzerland under circumstances and amid surround- ings that are without parallel in any other country. M. Numa Droz, who has been President of the Confederation, and who is one of the most able of the Swiss constitutional writers, has expressed grave doubts as to the possibility of successfully introducing it into other countries without at the same time ac- cepting other parts of the Swiss Constitution. Indeed, it is only by realising the peculiarities of the Swiss Constitution that the referendum appears in its true light as part and parcel of the Swiss ideal of democracy.
The Swiss Republic, though but a speck on the map of Europe, is composed of twenty-two " sovereign " states united in a Confederation, " in order to ensure the independence of the country against foreign nations, to maintain internal tranquillity, to protect the liberty and rights of the confederated citizens, and to increase their common prosperity." ^
^ See Swiss Constitution, 1874.
viii Introduction
Three of the twenty-two cantons are subdivided into demi-cantons, and each of the twenty-five has its own constitution and special laws, its own legislative, executive, and judicial authority. They differ from each other in race, language, religion, and habits of thought. The French occupy the cantons of Vaud, Geneva, Neuchatel, and parts of Fribourg, the Valais, and Berne; the Italians spread over Ticino and part of the Grisons, which is inhabited for the greater part by Romance-speaking people, and German is spoken by the majority of the people in fifteen cantons.^ All official documents, laws, and administrative orders issued by the Federal Government are published in three languages — German, French, and Italian — while in a canton like Berne, where the people are partly French and partly German, the cantonal laws and decrees are published in both languages. The can- tons can be classified according to religion just as easily as according to race, but the lines of race and religion do not coincide.^
The government of Switzerland could not, under these circumstances, be highly centralised, yet union of some kind is an absolute necessity. The Swiss
1 According to the last census, 634,613 speak French, 155,130 Italian, and 38,335 Komance, and no less than 2.083,097 German ; Zurich, Basle (Rural and Urban), Aargau, Thurgau, Schaffhausen, Appenzell (Inner and Outer Rhodes), Uri, Schwyz, Unterwalden (Obwald and Nidwald), Zug, Glarus, St. Gall, Lucerne, Solothurn, and Vaud are almost entirely German.
2 Lucerne, Uri, Schwyz, Unterwalden, Zug, Fribourg, Ticino, Valais, Appenzell (Inner Rhodes), and Solothurn are Catholic ; Zurich, Berne, Schaiffhausen, Appenzell (Outer Rhodes), Vaud, and Neuchatel are Protestant ; Glarus, Basle, Thurgau, and St. Gall have a Protestant majority ; while the Grisons, Aargau, and Geneva are equally divided. According to the census of 1888, there are about 1,716,548 Protestants to 1,183,828 Catholics.
Introduction ix
cantons are so small that the population in the largest numbers scarcely half a million, and in the smaller ones about 13,000. To avoid absorption in their powerful neighbours and to preserve their independ- ence, they have entered into an alliance, of which the Federal Government is the political expression. Hence we find in Switzerland an intense local patriot- ism and a very real national patriotism, great jealousy of any encroachment by the Central Government, and also the fii-m intention of supporting it at all hazards. The Swiss citizen is first of all a member of a com- mune, then a member of a canton, and last of all a member of the Federal Government. The three thousand communes into which the country is divided are, in fact, the basis of the Swiss Constitution, for it is only by being a member of a commune that a Swiss becomes a citizen of the republic. The com- munes vary in size and extent, those that include the large towns being in a different position as regards wealth and population from those in the purely agri- cultural districts. Each commune, whether large or small, is practically a state in miniature, with an organised government, consisting of a deliberative and an executive body. In the German parts of Switzerland the deliberative body, known as the Com- munal Assembly, is composed of all the resident male citizens. They meet together at regular intervals, and decide all questions relating to local police, sani- tation, the maintenance of highways, the erection of buildings, and the sale of landed property.^ At
^ The descendants of the original settlers alone have the right of managing the communal lands. They are known as the Burger or citizens, and the assembly in which they discuss these questions is
X Introduction
these meetings they fix the' annual budget, pass the accounts, levy new taxes, and elect the Executive Council and other local officials.
Any member of the Assembly may offer motions or amendments at the meeting, but usually these are brought forward by the Executive, or referred to that body before being finally voted on.
The Executive, which is generally known as the Communal Council, consists of a body of three or four members, one of whom is chosen as president or mayor. Their function is to carry on the current business of the commune.
In the towns of Berne and Zurich it has become impossible for the people to assemble together in a mass meeting, owing to the growth of popula- tion, and we therefore get the councils elected by the people. In Berne since 1887 there is a Com- munal Council of nine members, and a Municipal Council, which supervises the Communal Council. The inhabitants of the commune elect these councils annually, but they do not surrender their powers to them. A communal voting by ballot takes place once a year at least, in which the people decide on all important questions, the town being divided into several districts for the purpose of voting.^ In
called the Burgergemeinde. The difference between this assembly and the Communal Assembly is very slight in practice. When the question of communal lands comes up, the later settlers or '* in- habitants " abstain from voting,
1 At these communal votings the citizens assent to the annual budget, fix the local rates, and decide questions as to the purchase or sale of property the value of which is more than 1 00,000 francs. On June 28, 1896, the people of Berne rejected a proposal to elect the Communal Council by proportional representation, they rejected
Introduction xi
addition to this, any 500 citizens may bring forward any proposal which is submitted by the councils to the people.
The commune of Ziirich was reorganised in 1891, and possesses now a council of nine members, which act as the executive, and a "Great Municipal Council," which is the deliberative body. In this case, also, the electors vote finally on all important matters, and on all appropriations over a certain amount.^
The right of the people to initiate proposals them- selves is also recognised in Zurich, and is vested in any 800 citizens.
In most of the French communes the general body of inhabitants elect a council which attends to the matters ordinarily dealt with by the people in the German communes. There are, therefore, two coun- cils, one dealing with general policy and matters of importance, and a smaller executive body with a mayor at its head.
In the canton of Geneva a communal referendum was established, in 1894, much like that of Berne and Zurich. The difference is, that in Berne and Ziirich certain questions must go to the people and be voted on, whereas in Geneva a voting only takes place when a demand to that effect has been pre- sented by a certain number of citizens. In the
a plan to organise a fire brigade, they accepted a proposal to lower the price of gas, and a proposal providing for the maintenance of the cathedral tower.
^ In December 1894 the people of Zurich decided to buy up the existing tramways. In June 1896 they agreed to lay down three more lines, at an estimated outlay of 2,cxx),ooo francs. They also decided on buying up land to the value of 95o,cxx) francs to build artisan dwellings.
xii Introduction
municipality of Geneva any i2CX) electors may de- mand a referendum on any resolution of the council within thirty days after it has been passed. The budget is, however, excepted. This is never laid before the people. In the other communes of Geneva the number is fixed at one-third of the voters, and the demand must be sent in within fourteen days. The people of Geneva also have the right of initiative. Any 1 200 citizens can either draw up a scheme, which must be sent to the electorate without alteration, or they may suggest a project to the councils in general terms, leaving them to work it out. In the first case, the council has the right of proposing an alternative scheme to the people, or can merely advise that the popular proposal be accepted or rejected.
Besides these communal assemblies there are parish meetings, which are assemblies of all the members of the same confession living within the boundaries of the commune. The people in every canton decide what form of religion shall be the State religion. In nine cantons they have adopted Roman Catholicism, in six others both Roman Catholicism and Protestantism, while in five others there are three State Churches, and Neuchatel supports an Israelitish society besides three Christian sects. The State denominations are supported by the public treasury,^ but local matters concerning the Church are considered in the parish meetings. The questions dealt with in the meetings include the election of pastors, the building and main-
* The funds are provided by a tax in some states, and in others out of the proceeds of the Church lands taken over by the State. See Vincent, p. 179, and Orelli, Staatsrecht, &c., p. 156, for further information on Church matters.
Introduction xiii
tenance of houses of worship, and the management of Church funds. The members of this assembly also elect the Church officers, who administer the aifairs of the society, supervise the work of the pastor, and in some states act as a board of overseers of the poor.
The School District Assembly is another of these local mass-meetings. The members of the commune ■ — or, in the case of the small communes, the members of several communes — meet together to elect a school board, and to exercise a general supervision over all educational matters. The necessary funds are pro- vided partly by the State and partly by a local rate levied by the school assembly when it meets. The amount to which the State subsidises the commune varies according to the wealth of the commune.
It is difficult to exaggerate the importance of these local assemblies upon the development of Swiss de- mocracy. The introduction of the referendum or initiative into the cantonal and federal constitutions is of recent date ; but the people have been trained to direct legislation in their local assemblies for half a thousand years. " Democracy in Switzerland," says Mr. Lowell, "is not merely a national or cantonal matter, but has its roots far down in the local bodies, and this gives it a stability and conservatism which it lacks in most other Continental nations."
The connecting link between the canton and the commune is supplied by the district, which is estab- lished merely for the convenience of administration, and has no separate political life of its own. The head of the district is the agent of the cantonal government in the territory over which he is placed.
xiv Introduction
He carries out the laws enacted by the cantonal legislature, and enforces the orders of the cantonal executive. He is usually elected by popular vote and is sometimes assisted by a council.^
The Swiss cantons are the democratic workshops of Europe.^ On their twenty-five anvils are hammered out almost every conceivable experiment in political mechanics; and if a particular experiment proves successful, it is adopted by one canton after another, until it ultimately receives a definite consecration by becoming part of the Federal Constitution, which is, indeed, largely moulded on cantonal experience. The cantons are, so to say, the " seed-trial " grounds of the various forms of popular government, and offer an unrivalled field to those who wish to study the latest phases and expedients of democracy.
The cantons are free to adopt what form of con- stitution they like, so long as it is republican, and contains nothing contrary to the Federal Constitution. Therefore all the constitutions and constitutional amendments must be " guaranteed," i.e. sanctioned by the Federal Assembly.^
1 In several states of small territory the district is dispensed with altogether, the cantons dealing directly with the communes,
2 The Swiss Confederation is said to consist of twenty -two cantons ; but three of these are divided politicEilly, and are to all intents and purposes separate cantons. Basle is divided into Urban Basle and Kural Basle, Appenzell into Inner and Outer Khodes, and Unterwalden into Obwald and Nidwald. These half cantons only differ from whole cantons in that they send but one deputy each to the Council of States, and count only as half a vote when the State votes are counted in the case of a federal referendum on constitutional amendments,
' Constitutional changes are very frequent. Between 1891 and 1895 there were twenty-three revisions, four of which were total revisions.
Introduction
XV
The spirit of the cantonal constitutions is fittingly- expressed by the following phrases: "Sovereignty resides in the mass of the people. It is exercised directly by the electors, and indirectly by the autho- rities and officials" (The Constitution of Berne, 1893). "The people, in virtue of their sovereignty, give themselves the following constitution " (Constitution of Zurich, 1868).
The Swiss cantons fall into two classes — the cantons with elected legislatures, and the cantons with a system of legislation by mass-meeting.
Eighteen of the cantons have a Legislature con- sisting of a single chamber, called the Great Council (sometimes the Kantonsrath or Landrath), the mem- bers of which are chosen by universal suffrage for periods ranging from two to five years. The usual term is, however, three or four years.^
^ In Zurich there is one deputy for every 1200 of the population ; in Geneva, one to every 666 persons ; and the largest proportion in any canton is one member to 2000 people. In Ticino, Geneva, Neuch^tel, Zug, and Solothurn, proportional representation has been intro- duced since 1891 for the election of the Great Councils. It was also proposed in St. Gall in 1895, and in Berne in 1896, but was vetoed in each case by the people.
For an account of the diffeient systems of proportional represen- tation tried in each canton, see Les Lois Suisses de la Representation proportionelle comparees et commentees, par Alphonse Frey, in Le Bulletin de la Societe Suisse pour la ReprSsentation proportionelle, Geneva and Basle, Librairie Georg. The system in Geneva is also described in the Annals of the American Academy, November 1895, by Professor Wuarin, of Geneva. See also Droz, Etudes et portraits politiques ; La Suisse Jug6e par un Americain, pp. 500-504. The method of pro- cedure is of a complicated type, as there are usually several parties at Swiss elections. The system varies considerably in the different cantons. It is a subject which would well repay study. The first elections by proportional representation took place in Ticino in 1892.
b
xvi Introduction
The work of the Legislature is to pass the laws, vote the taxes and appropriations, and supervise the administration. The people are the check on the Legislature, and they act as a check in three ways.
In the first place, they can veto legislation by means of the referendum, and can make an im- perative suggestion as to the subject of legislation by means of the initiative. The different forms which these institutions take are conr/ldered in detail by M. Deploige. It is sufficient to say here that the referendum is always compulsory in constitutional amendments, i.e. no constitutional change can be- come law without the popular assent expressly given. In the domain of ordinary legislation there is only one canton, Fribourg, in which the referendum is not recognised in some form or other. It is compulsory in the case of every law in nine and a half cantons, it may take place upon demand in six and a half cantons, and in two it is compulsory for financial questions only.
Every canton, except one, recognises the right of the people to demand, by means of the initiative, either a partial or a total revision of the constitution.^
Nineteen cantons recognise the right of initiative in ordinary legislation.
The second check on the Assembly is the popular right of bringing about a dissolution, which is, how- ever, only found in six of the German cantons. A petition for a dissolution is signed by the statutory number of citizens and sent in to the Executive, who
^ Geneva, which is the exception, puts the question of revision to the people periodically every fifteen years. Schaffhausen only recognises the initiative in the case of a total revision,
Introduction xvii
are obliged to put the question to the whole people, " Shall the Great Council be dissolved or no ? " If the people reply in the affirmative, the Council is ipso facto dissolved, and a new election takes place. "This device," says Mr. Lowell, "has not, however, proved to be of much importance. Formerly it was sometimes used, and in one case, at least, with suc- cess ; but owing to the shortening of the periods for which the councils are elected, and the general introduction of the referendum, it is practically obsolete." ^
Another method of getting rid of the Great Council is occasionally tried. In every cantonal constitution, except Geneva, the people have the right of demand- ing a total revision of the constitution. The law in most cases provides that if the people decide in the affirmative, the Great Council must dissolve, as a sort of penalty for driving the people to extreme mea- sures and not anticipating the general wish. A new Council is then elected to carry out the revision. This exceptional method was last tried in Ticino in 1 890. As a rule, however, the life of the Legislature is measured by the constitution, and not by the exigencies of politics. The Executive^ is usually elected for the same term as the Legislature, and generally consists of five or seven members.^ It is of the nature of a business committee of the Legis- lature, and each member has charge of a separate department.
^ Lowell, p. 230.
2 Called sometimes Conseil d'Etat, sometimes Kleine Rath, and Regierungsrath. ' In Berne, of nine.
xviii Introduction
It is elected directly by the people in eleven of these cantons, so that there are only eight in which the Executive is elected by the Great Council.^
The members of the Executive do not sit in the Great Council, but appear there to make reports on the administration, propose measures, and take part freely in debate without voting. They are the motive power in legislation, and yet are quite subordinate.^
The absence of party, which we shall notice at greater length when we come to deal with the Federal Government, is very marked in both the cantonal executives and legislatures. The party in the minority usually have seats allotted to them in the Executive Council, and in Berne and Aargau the constitution expressly directs that this shall be done.^
It is a curious fact that direct popular election does not produce a homogeneous Executive any more than election by the Legislature. The minority is, in fact, represented in the Executive in every canton except two, and these are two of the cantons which leave the choice to the Great Council.
The members of the Executive do not resign when they come into conflict with the Assembly, but sub- mit, retain their places, and carry out the orders of the larger Council. Both the members of the Executive and Legislature enjoy practically permanent tenure, the people seeing no reason why they should not
1 The eight are — Neuchjltel, Vaud, Valais, Fribourg, Berne, Lu- cerne, Schwyz, and Aargau. In Ticino, Geneva, and Zug the executive is elected by proportional representation.
2 The Council of State in Geneva can, however, send any measure it did not itself introduce back to the Council for reconsideration.
3 ' ' The minority shall be equitably represented in the Executive Council" (Constitution of Berne, 1893).
Introduction xix
continue to re-elect a good man, even though his views may not always coincide with their own.^
In three cantons^ the people have the right of dissolving their Executive by presenting a demand to that effect, which is referred to the whole people, as in the case of the Great Councils.
The second group of cantons have a much more historic and picturesque form of government than those we have just been considering. In six small and very conservative cantons, or rather in two cantons and four half cantons,^ there is a system of govern- ment known as the Landsgemeinde.
These assemblies consist of the -whole of the adult male population, who meet once a year, and are the supreme authority of the canton. The power of the Landsgemeinde is set forth in the Constitution of Uri (Art. 51) in the following words: "Whatever the Landsgemeinde within the limits of its constitution ordains, is the law of the land, and as such shall be obeyed."
Then it continues : " The guiding principle of the Landsgemeinde shall be justice and the welfare of the Fatherland, not wilfulness nor the power of the strongest."
It differs from an ordinary mass-meeting, says Mr. Vincent, '^in the respect that the voter not only expresses his political opinions, but instantly gives effect to them. The majority does not imply, wish, or demand the passage of a measure, but enacts it
^ See Graphisck-statistischer Atlas der Schweiz, 1897, for the average terms during which the members have sat continuously.
2 Schaffhausen, Solothurn, and Thurgau.
' These are Glarus, Uri, the two Unterwalden, and the two Appenzells. Until 1848 it existed in Schwyz and Zug also.
XX Introduction
at once, and the vote is a solemn legal proceed- ing.-i
The business to be laid before the Landsgemeinde is carefully prepared beforehand by a Council. This Council is generally known as the Landrath or Kan- tonsrath. Its members are not elected at the mass- meeting, but by separate electoral districts. It is described by Mr. Lowell as a sort of subsidiary legis- lature which attends to all the details that cannot well be brought before the people. It passes adminis- trative resolutions, votes the smaller appropriations, examines the accounts, and appoints the minor officials.^
There is also an executive body elected by the Landsgemeinde known as the Regierungsrath or Standesconimission. It is usually composed of from five to nine members, one of whom is Presi- dent, and is officially known as the Landamman.
Each state has practically an independent judicial system of its own, for the Federal Tribunal is not a regular Court of Appeal. The organisation of the Judiciary varies in the different states. There is a Justice of the Peace or Official Mediator, whose duty it is to try and settle the matter in a friendly way. Then there is the District Court, consisting of a bench of judges, and above that the Cantonal Court. Criminal matters go before special tribunals. In certain cantons the people elect all the judges from the highest to the lowest; in others they elect the
^ State and Federal Government in Switzerland, p. 109.
^ Lowell, p. 225, op. cit. Mr. Vincent points out that in this body there is one delegate for every 400 inhabitants in Uri ; in Nidwald, Appenzell, and Inner Rhodes, one to every 250 ; and in Obwald as many as one to 187.
Introduction xxi
Juge de la Paix and the members of the District Court. The tendency is for the people to extend their powers in this direction. The judges are elected for stated periods, generally four or six years, at the end of which they have to be re-elected. In Zug even the judges are elected by the system of propor- tional representation — a very curious development of the system. The Swiss cantonal tribunals do not, like the American State Courts, try acts of the Legislature. Only in two of the Landsgemeinde cantons, Uri and Nidwald, does the constitution provide that a person injured in his private property or rights by a deter- mination of the Landsgemeinde may protest, and if the meeting disregards the protest, the judge shall decide between the people and the plaintiff.
By the Federal Constitution the Swiss National Government has only power to legislate on a certain number of subjects, and all powers not expressly con- ferred upon the Federal Government are vested in the States.^ The constitution provides no special machinery for executing the federal laws or judg- ments, these are carried out by cantonal authorities ; and by cantonal machinery.
The Federal Government consists of a Legislature, an Executive, and a Judiciary. The Federal Legis- lature or Federal Assembly, as it is called, is com- posed of two Houses, the National Council and the Council of States. The National Council, consisting of 147 members, is elected for a term of three years by universal suffrage. The Council of States corre- sponds to the American Senate, and is the final repre- sentative of the old Diet of Ambassadors. Each state
^ See Federal Constitution of 1874 and amendments.
XX ii Introduction
sends two members to the Council, and if the canton be subdivided, each half canton sends one. The Council of States thus numbers forty-four members. ^ The Federal Assembly meets twice a year, in June and December, for about four weeks; and there is usually an extra session in March, which is even shorter still. The debates are not officially reported, and only meagre accounts of them appear in the papers. The whole of the proceedings are very quiet, business-like, and rather informal. The two Houses are exactly equal as to powers. Any proposition, even those of a financial nature, may be introduced in either House. The motions or bills, when discussed and adopted by one Chamber, are then sent to the other. The rejection of a proposal by the House which first discusses it does not prevent the other House taking it up. In 1883, for instance, a law relating to civil status and marriage was rejected by the National Council, taken up by the Council of States, and finally passed by both Houses. Bills amended in either Chamber pass to and fro until some compromise is arrived at, or until both agree that it shall be dropped. Grave conflicts between the Houses never occur. If one Chamber continues
^ The deputies to the Council of States are elected directly by the people in some cantons, in others they are appointed by the cantonal legislatures. There is no uniformity either of payment or of the length of period for which they are elected, some being sent for a year, others for four. The growing tendency is for the people to directly elect the members of the second Chamber as well as the popular Chamber. Ten cantons and six half cantons have now adopted the system. It is becoming the custom to elect the members for three years, so that both elections should coincide, and both Houses be renewed at the same time. This is now done in nine cantons and four half cantons.
Int7'oduction xxiii
to energetically oppose a project adopted by the other, the latter submits with a good grace.
The two Houses sit together for three purposes: to elect the Federal Council and the commander- in-chief, to exercise the right of pardon, and to decide conflicts of jurisdiction between the cantonal authorities.
The Executive consists of a Federal Council of seven members, who are elected for the three years by each new Federal Assembly as soon as it meets.^ Each Councillor presides over a separate department, and for the sake of convenience he usually retains the same one continuously, though the re-allotment is supposed to be made every year. . One of the seven Councillors is elected each year to the supreme office of President of the Federal Council, and is officially recognised as " President of the Swiss Confederation." Another Councillor is elected at the same time to the office of Vice-President. Neither the President or the Vice-President may hold office for more than one year, and the custom is for the Vice-President to be elected President, so that the office really passes in rotation through the Council. The President receives a salary of £$4^ ^ J^^^, tlie other Councillors ;^48o, and none of them are allowed to pursue any other profession or business while in office. The President has no special powers. He is merely the annual chairman of the committee and titular head of the State, and has charge of any one of the seven depart- ments. His position is very inferior to that of any
1 The Council cannot contain two men from the same canton, and by tradition certain cantons are entitled to special considera- tion. Berne and Zurich, for instance, have always been represented.
xxiv Introduction
individual head of any known executive. Apart from his colleagues he has no power, nor has he any power over them. He is, however, one of a body of seven that count for a great deal. The Council has not any direct executive functions, except in the depart- ment of foreign affairs, the customs, postal and tele- graph services, the polytechnic school, the arsenal, and the alcohol monopoly. It acts by way of in- spection and supervision.
The Executive have important legislative as well as administrative functions. The Federal Council as a body have the right of initiating legislation. They also report in practice on all proposals brought forward in the Chambers before these become the subject of serious debate. It is also very common for the Chambers to pass a resolution, called ^ ''pos- tulate" requesting the Council to prepare a bill on some subject. Thus the Federal Council can intro- duce, draft, and report on legislation ; but the Presi- dent has no vote, no power of suspending or annulling laws.
The relations of the Executive and Legislature are peculiar. The members of the Executive are not allowed to sit in the Assembly. They may, however, take an active part in the debates, though, of course, they may not vote. The Executive has no power over the Assembly. It cannot prevent the Assembly meeting, prorogue it or dissolve it, and can only summon it on extraordinary occasions.
The Federal Tribunal, the chief judicial body of the Confederation, does not occupy anything like the position of the American Supreme Court. It is not the guardian of the constitution, and has no power to
Introduction xxv
pronounce any Act passed by the Federal Parliament unconstitutional and therefore void.
So far we have dealt with the dry bones of the Swiss Constitution. Now we have to consider its two unique and distinguishing marks — on the one hand the absence of the party system, and on the other the direct intervention of the people in the work of legis- lation by the referendum and the initiative.
The Federal Council represents no one body in the Federal Assembly. It is usually composed of mem- bers of the left and centre groups — that is to say, of Radicals and Liberal-Conservatives; but in 1891 a member of the extreme right, Dr. Zemp, the clerical representative of Lucerne, was elected Councillor, and in 1894 was promoted by a three-to-one vote of a dominantly Radical Assembly to the office of Presi- dent. Nor is it even necessary that the majority of the Council should share the opinion of the majority of the Assembly. From 1 876-1 883 four of the seven members were Liberals and three Radicals, though the majority of the people's representatives were Radicals.
It follows from this non-party character that the Federal Executive is not expected to be unanimous. No measure, it is true, may be brought before the Assembly unless it has received the votes of the other ministers, but it is a mere matter of form, and a Councillor feels himself in no way bound to support a bill of his colleague because he has been obliging enough to give it his vote in order that it may be debated in the Assembly. What is more, he has no hesitation in opposing it openly, and members of the
XX vi Introduction
Council have even been known to argue against each other in the Assembly.
To Englishmen it would seem impossible that an Executive made up of persons of different political views, and unconnected by any ties of party loyalty, should constitute a strong and efficient administrative body. One would expect such a casual coalition to spend its time in quarrels and fruitless discussions. As a matter of fact, however, it works very smoothly. This is partly due to the placid dispositions of the Swiss Councillors and their readiness to accept a compromise. But such a result could not be possible if the Federal Council were in any sense a " responsible Cabinet," obliged themselves to lay before Parliament and the country a distinct policy, and expected to resign collectively or individually if that policy or any part of it were defeated. No idea of responsible leadership enters into the relationship between the Federal Council and the Federal Assembly. Each minister is elected as an executive official to carry out within his own department the will of the Assembly, and ultimately of the whole electorate. The Coun- cillors are not expected to shine as so many stars in the political firmament. Whatever their politics, they are expected to obey the orders of the Assembly.^
Thus no minister thinks of resigning if his measure is vetoed either by the Assembly or by the people at a referendum. If either the Legislature, or in the last resort the electorate, show by their vote that they disagree with him, he submits, and prepares another bill more in harmony with the wishes of his em-
^ See article by M. Numa Droz, "The Election of the Federal Council," in Etudes et portraits politiques.
Introduction xxvii
ployers. Thus a bill on the construction of railways by private enterprise was substituted for a bill in which the Council had proposed that the railways should be a monopoly of the Confederation, and this without any change in the Government. Since 1848 there have been only two cases of resignation on political grounds, and only one of these was caused by a conflict with the Legislature. When M. Welti resigned in 1891 because his project for the purchase of the Central Railway was rejected by a referendum, his resignation created a great sensation, and was even said to be "unconstitutional." To the Swiss democrat it seems irrational for the State to lose a valuable administrator on account of a difference of opinion. No censure is implied by a hostile vote, the servant has merely misunderstood his master's views. The relationship between the Federal As- sembly and the Executive is in fact much like that of a man with his old and trusted family solicitor. The solicitor manages his legal business, persuades him for his own good, and is a factor which cannot be neglected although nominally subordinate. The client usually defers to his advice, and takes no im- portant legal action without consulting his lawyer, but he retains full freedom to take his own course w^ithout giving offence, and there arises no question of resignation or dismissal on either side. But this analogy from common life hardly does justice to the real power of the Swiss Executive over the Assembly. For whilst a solicitor advises a client how to act, the Federal Council not only advises as to policy, but is itself the only authority charged with carrying out, that policy.
xxviii Introduction
Another important outcome of the non-party char- acter of the Government is the tendency for the Federal Council to become a permanent body. From 1848 to 1895 there have been only thirty-three Federal Councillors, the average period of service being over ten years.^ Only two Councillors who were willing to serve have failed to be re-elected, one of whom lost his seat in 1854, and the other in 1872, when party passions ran high. The Swiss Federal Council is, in fact, far more akin to a body of elected civil servants than to the responsible ministry which governs the United Kingdom, or to its analogues in some European countries or in the self-governing British colonies.
The same absence of party spirit characterises the election of members to the Federal Assembly as well as to the Federal Council. The Swiss have it so firmly rooted in their minds, that there is no need to dismiss a good man because you disagree with him, that the certainty of the result prevents the elections from being contested. Only forty per cent, of the seats, for instance, were disputed in 1887. No great effort, therefore, is needed to retain seats ; and as the minority know they have no chance of controlling the Govern- ment, they cease to agitate, and there is an absence of excitement about elections generally.'^ M. Borgeaud
1 Four have served over twenty years ; and Herr Carl Schenk, vsrho died in office in 1895. was elected in 1863, served, therefore, thirty-three years, and was six times President. (See Graphisch- statistischer Atlas der Schweiz, 1897).
- M. Numa Droz says : " When the people reject a law in virtue of their sovereign right, there is no entering into a state of conflict. The craftsman carries out the work to his satisfaction ; the em- ployer who gave the order is of a different opinion, and sends it
Introduction xxix
has described the motives which influence the average Swiss elector: "If the candidate is obhging and affable," he says, " and if he is a neighbour and a decent fellow generally, and if he belongs to the party from which the elector has been in a habit of choosing, then the elector argues thus : Would it not be an undeserved reproach to turn X out ? His opinions may be different from my own, well ! what of that ! If he does it again, one can always say No." ^ The Swiss elector is, on the whole, more interested in the person of his representatives than in his politics. The re- jection of laws by the referendum seems, in fact, to take the place of a change of parties. When the Government is unpopular or times have been bad, and people are generally discontented, J;hey do not give vent to their dissatisfaction by turning their repre- sentatives out of office, but they promptly vote down the measures their representatives have prepared. Thus the fate of a law depends a great deal more on the immediate popularity of the Government than on its own merits or defects. It is a novel method of rebuking the party in power, but it is not ineffective. It makes them careful not to offend if possible, and it has the merit of avoiding all violent changes.^
back to be altered. The legislator is not discredited. He is in the position of a deputy whose bill has not passed ; there is no want of confidence." (See Contemporary Review, March 1895.) This is typical of the way in which the Swiss regard the question,
^ Revue du Droit Public, Nov.-Dec. 1896 : " In the elections which took place in October 1896, out of the 160 members in the National Council there were only 25 new ones, and in the Council of States only 8 new ones. Between 1888 and 1896 the National Council has only lost 20 of its members by non-re-election, while 62 retired voluntarily."
^ There is also an absence of party machinery and organisation outside the houses of the Legislature. "There are in the Con-
XXX Introduction
Whether an Executive Government elected on these principles is more or less harmful than a Cabinet representing one party or the other is an interesting problem of political science. One thing is certain, both the Council and the Assembly are less susceptible to popular influence in that they do not change with the changing ideas of the people. The Executive Council in particular pursues its own course, guiding and lead- ing the Legislature in virtue of its superior capacity and experience, telling them what they ought to do, producing the necessary documents, and finally see- ing that the orders of the Assembly are carried out. The Council has therefore been called the mainspring or balance-wheel of the constitution.
How far the aloofness of the Executive from the popular currents of opinion in the State is responsible for the desire of the people to intervene directly in public affairs, or, on the other hand, how far such a stable and permanent government is rendered possible by the safety-valve of direct legislation ; how far, in short, the absence of party government causes direct legislation, or direct legislation contributes to the absence of party government, is a delicate question for political philosophers to decide.^
federation," says Mr. Lowell (p. 313), "no national committees, no elaborate system of primary caucuses and general conventions, no men who make a business of arranging nominations and managing campaigns. The Clericals and the Kadicals do occasionally hold Congresses, but these are simply intended to prevent disruption by discussing the questions of the day ; they take no part in the nomination of candidates." Parties, however, play an important part in getting up demands for the referendum — still more in drafting initiative demands. There are a group of professional politicians, the neinsager, who make a business of collecting signa- tures against federal laws, and raising an opposition.
^ Mr. Lowell says, " The causes of the peculiar relation of Swiss
Introduction
XXXI
With regard to the organisation and actual working of the referendum and the initiative, M. Deploige's careful study will speak for itself. Though the Swiss experiments in direct legislation have, during the last ten years, excited much interest in the United King- parties to the Government, and of the condition of the parties themselves, may be sought in various directions." He attributes the low development of party to the shortness of the sessions of the Federal Assembly, which give little opportunity for the develop- ment of a party policy or the consolidation of party ties ; also to the fact that the Government has little patronage to bestow, and that the deputies to the Federal Legislature are elected on local rather than national issues. In the case of all elected represen- tatives, the Swiss votes for men with whom he is personally acquainted, and this obviates the need of party machinery for the selection of candidates. No doubt the fact that Switzerland is divided internally by race and religion also prevents the growth of strong compact parties. The referendum itself, Mr. Lowell con- siders, "tends in a variety of ways to lessen the importance and increase the stability of parties." It tends to split up the issues. " The referendum entails a decision only on the special measure under consideratioo, and hence the people are never called upon either at an election or a referendum to judge the conduct of the party as a whole. It is no doubt largely for this reason that Swiss political parties have no very definite programmes and little organisation."
Again, Mr. Lowell points out that the referendum tends to draw attention to measures instead of men, " and it is the personal admiration or dislike of public men that forms a great deal of the fibre of party allegiance."
Moreover, the referendum weakens the motives for a change of parties. "If a law is unpopular the people simply refuse to sanc- tion it, and this prevents an outcry against the party that enacted it. If, on the other hand, the people ratify it, there is clearly no use in trying to persuade them that the men in power were very wrong in passing it, and ought to be turned out for doing so. Nor is there any chance for an opposition to work on the popular fears by foretelling the bad laws the ruling party is likely to pass if continued in power, because the people can always reject measures they do not like. Hence it is not easy to finds arguments for electing a new set of representatives drawn either from the past or the future."
C
xxxii Introduction
dom, they have been more often popularly described than precisely studied. In particular the use of the referendum and the initiative in the government of the canton as distinguished from the Federation has received but scanty notice. In M. Deploige's excellent work the English student will find a more precise and detailed account of these re- markable experiments than in any other volume known to me.
Mr. Lowell, after praising the excellence of the Swiss government, points out that Switzerland is free from many of the difficulties that perplex other nations. Her population is, after all, very small, only three millions in all, " and experience proves that the larger the population the harder is the problem of free government."
These three million inhabitants are not recruited from without by a long line of immigrants which have to be absorbed and to be educated into useful citizens. They are not divided by any glaring in- equalities of wealth. There are no very rich or very poor, no millionaires and but few paupers. The Swiss are, therefore, not confronted with the great problem of poverty. There are no eager capitalists always seeking new fields for investment with the attendant result of inflation and crashes. They have no great undeveloped countries to be opened up with untold possibilities of mineral wealth, which arouse all the gambling instincts of a nation. Social equality, too, is very marked. There are no " classes " and "masses," and no great class differences. The people are de- cidedly stationary, not moving about from one part of the country to another, or rising or falling in
Introduction xxxiii
the social scale. i Two-thirds of the population are engaged in agriculture, and the manufacturing ele- ment is comparatively small. The great industrial struggles which convulse other countries and paralyse trade are therefore non-existent.
There are no very large cities. In 1893 the popu- lation of Zurich was 130,000, including suburbs; Geneva, 7^,777, including suburbs; Basle, 75,114; Berne, 47,620 ; Lausanne, 35,626. There are no others with a population over 30,000. There are in conse- quence no great congested and discontented masses of unemployed with their burden of poverty and vice, with which most modern governments attempt to cope in vain.
For the Swiss foreign policy is a negligible quan- tity. Their neutrality is guaranteed, and they are not hampered by belonging to the European Con- cert, and are not obliged to make enormous sacri- fices of men and money in order to keep up military appearances.
" The Swiss Confederation," says Mr. Lowell, " is on the whole the most successful democracy in the world. . . . The people are contented ; the Govern- ment is patriotic, far-sighted, efficient, and economical, steady in its policy, not changing its course with party
fluctuations. Corruption in public life is unknown
Officials are selected on their merits, and retained as long as they can do their work, and yet the evils of a bureaucracy scarcely exist. . . . The Swiss states- men deserve the highest praise for their labours and
^ Cf. New South Wales, which proposes to introduce the referen- dum. Fifty thousand were disfranchised in 1893 who had voted in 1892, because they had changed their residence.
xxxiv Introduction
the greatest admiration for their success, but we must beware of thinking that their methods would produce the same effects under different conditions. The problem they have had to solve is that of self- government among a small, stable, and frugal people, and this is far simpler than self-government in a great, rich, and ambitious nation. " ^
I have endeavoured in my footnotes to bring up to date the mass of material on the referendum and initiative which M. Deploige has so clearly mar- shalled, and I have ventured in a few places to add some further references and explanations likely to be of use to the English reader.
L. TOMN.
1 " Lowell," pp. 335-336.
CONTENTS
PAOE
Introduction v
Author's Pre b^ ace xxxvii
Letter op M. Van den Heuvel on the Referendum
IN Belgium xxxix
CHAPTER I
THE EVOLUTION OF DEMOCRACY IN SWITZERLAND
§ Before 1798 : —
I. The Landsgemeinde .... . . 3
II. The Referendum in the Grisons and in Valais —
The Rittinghausen System . . . .27
III. Popular Institutions in the Canton of Berne . . 44 § After 1798 : —
I. Public Law in the Federation and in the Cantons
from 1798 to 1830 50
II. The Growth of the " Rights of the People » in the
Cantons 68
III. The "Rights of the People" in the Confederation 91
CHAPTER II
THE MODERN ORGANISATION OF " LEGISLATION BY THE PEOPLE"
Section I. — The " Rights of the People " with Regard TO THE Constitution : —
1. § In the Confederation 124
2. ^ In the Cantons 136
XKXV
xxxvi Contents
PAGE
Section II. — The "Eights op the People" with Regard TO the Ordinary Laws :—
1. § In the Confederation 144
2. § In the Cantons 171
I. The Optional Referendum 171
II. The Compulsory Referendum . . . .176 III. The Popular Initiative 189
CHAPTER III
THE RESULTS
Section I. — The Principal Votings on Federal and Cantonal Laws 211
Section II. — The Referendum prom the Swiss Point of View 266
CONCLUSION Appendix—
I. The Popular Initiative in the Federal Constitu- tion 297
II. Constitutional Revision in the Cantons . . 305
Bibliography 3^5
Index 323
AUTHOR'S PREFACE
The letter published at the commencement of this volume absolves me from the necessity of a long ex- planation as to my motives for undertaking a study of the Swiss referendum.
The Belgian Chambers are about to discuss the important proposal for a royal referendum, and I have thought that it might be useful at this juncture to make the Swiss referendum known in this country. Although they differ in certain respects, yet these institutions have one thing in common — they are both concerned with the direct intervention of the electorate in the legislation of the country.
I have endeavoured to describe the historical origin of the referendum, to demonstrate its mechanism, and to set forth its results, without taking a side, or being actuated by any prejudices.
My book would have been very incomplete had I confined myself to the works on the subject. The referendum has attracted but little attention up to the present, and has not hitherto been examined as a whole. I have therefore prosecuted my inquiries in Switzerland in person, in order to become initiated into the working of the institution. I now offer the fruits of this twofold investigation to the public.
I must not omit to express my gratitude to those Swiss gentlemen who have given me both useful
xxxvii
xxxviii Authors Preface
advice and valuable information. My thanks are especially due to MM. Kuchonnet and Droz, Federal Councillors; to MM. Naville and Kespini, National Councillors; and to Professors Hilty of Berne, Ped- razzini of Fribourg, and Wuarin of Geneva.
S. DEPLOIGE. ToNGRES, Sth March 1892.
A LETTEE ON THE KEFEEENDUM IN BELGIUM
BY
M. J. VAN DEN HEUVEL
Dear Sir, — Your book is most opportune. Yester- day no one spoke of the referendum without a smile. The direct intervention of the people in legislation was looked upon as a democratic dream, which could only be realised under exceptional and transitory circumstances, or in countries where legislation was in a primitive stage. It was clearly understood that a permanent system of popular consultations was quite a different thing from those unfortunate plebis- cites which have taken place from time to time in France, and from those solemn ratifications of con- stitutional reforms which are prescribed by the constitutions of the American States. But quite suddenly one fine morning, in the midst of the din of party strife over electoral reform in Belgium, a powerful voice was heard above the rest, demanding the immediate introduction of the referendum for a reason which had not occurred to any one up to that time, namely, in order to strengthen the royal autho- rity.^ There was a pause fgr the moment out of sheer
^ [On the 27th November 1890, six Liberal members proposed that there sboul(i be a revision of the constitution, and the idea was to
xl The Referendum in Belgium
surprise. Then the controversy broke out, and dis- cussion began to rage.
Those who are not enamoured of sudden and un- tried poKtical reforms have had recourse to the legis- lation of other countries for guidance and instruction. In spite of a thorough and searching examination, however, they have not been able to find a single country with a monarchical government in which any one has thought of establishing the referendum for the sake of strengthening the influence of the sovereign. And, indeed, in no country have they discovered any attempt to combine the rights of a constitutionally limited head with so democratic an institution as the referendum. The only country which afforded a suitable field of observation was
introduce universal suffrage for the election of members of the two Chambers. M. Beernaert, one of the ministers, suggested instead, in March 1891, that the suffrage should be extended, but that it should not be universal, and also that the Execu- tive should be invested with power to consult the electorate on a law which had been proposed but not yet passed, or on a law which had passed but to which the King had not yet given his assent. The idea was that the referendum would strengthen the royal power, and compensate for the practically obsolete veto of the Crown. The proposal was adopted in the two Houses, with the proviso that the conditions under which the King should directly consult the electorate should be afterwards deter- mined by a law. The Belgian constitution directs that the Parliament, after having voted for a revision, should dissolve, and the question be taken up by a new Parliament. When the next Parliament met, a commission to revise the constitution was appointed; but on the 26th of November 1892 the Minister of the Interior declared that, in view of the unfavourable reception which the referendum had met with both in Parliament and in the coun- try, the Government would officially withdraw its proposals. Three members took the referendum proposal up, but the commission of re- vision rejected it by 15 votes to 3. The question of electoral reform still remained to be solved, and the discussions seemed so inter-
The Referendum in Belgium xli
Switzerland, a federation of a group of republican cantons. The referendum has existed there for cen- turies, in the seclusion of a few cantons, like some rare alpine plant, and needed the atmosphere of modern ideas and the aid of special circumstances to revivify it, develop it, and make it spread over the whole country.
Your work has a twofold merit. It portrays the referendum for us as a living, working institution, with its almost invariable accompaniment and younger sister, the popular initiative. Your observations have been made on the spot, and are taken from life, and every page of your description irresistibly leads our thoughts back to our own country in order to com- pare the situations, and to prophesy the results of
minable that the people of Brussels determined to undertake a referendum on the subject. They applied to the municipal autho- rities to organise it, and a referendum was taken in four communes on the five different propositions of electoral reform. There were many protests as to the unconstitutionality of the proceeding, and finally, on the 14th February 1893, the King annulled the proceed- ings, and commanded the authorities not to interfere. The Liberal Association then took the matter up, and summoned 1 1 1,837 citizens of Brussels, over twenty-one years of age, to vote ; 60,732 voted, and 56,338 were in favour of universal suffrage, but as the opponents of universal suffrage had recommended their party not to vote, and as 50 per cent, of those summoned did not vote at all, the result cannot be said to be decisive one way or the other.
For a history of the proposed introduction of the referendum, and a discussion of the principles involved, see Arnaud, La Revision beige, Paris, 1893 > Fuld, Die versuchte Einfuhrung des Heferendums in Belgien, in the Arcliiv fiir offentliches Recht, 1893, pp. 558-567 ; De Gamond, De la Revision constitutionelle en Belgique, Belgique Judi- ciaire, 1893 ; the Revue generate d' Administration, November 1893 ; Wuarin, Le Referendum beige, in the Revue des deux Mondes, ist August 1891 ; Lorand, Le Referendum, Brussels, 1890; Deploige, Ze Referen- dum en Belgique, Revue g6n6rale, December 1891 ; Hauleville, Le Referendum royal, Brussels, 1892. — Ed.]
xlii The Referendum in Belgium
a referendum in Belgium by the habitual results of the referendum in Switzerland. Your book is a book of living politics, and one which is very suggestive.
Three forms of the referendum are discussed in Belgium. To distinguish them I have ventured to term them —
The Initiative Referendum {Le Referendum
dJ Initiative). The Referendum of Appeal {Le Referendum, de
Partage). The Corrective Referendum (Le Referendum de Correction). All these three forms seem to me equally bad, because they all proceed from the same principle, the direct intervention of the people in legislation, which in Belgium at the present day could not but result in a state of things directly opposed to political progress. Public opinion, however adverse it may be to the referendum in itself, seems to me to vary in its degree of opposition. It is entirely hostile to the referendum of initiative ; it regards the referendum of appeal with more or less indifference, but rather unfavour- ably on the whole; it dislikes and almost fears the corrective referendum.
I. The Initiative Referendum.
This referendum, according to its supporters, ought to take place before every deliberation of the Chambers. It is an attempt to engraft the popular initiative on to the parliamentary system. What a combination ! The people are to be consulted on principles which
The Referendum in Belgium xliii
are likely to be more vague and dubious than usual, since they are drawn up in general terms, and not elucidated previously by any public discussion be- tween those interested on different sides. The Parlia- ment will moreover be bound to take a certain course without having been first heard. It will be obliged to submit to and accept the vote, however brutally bald and laconic may have been its expression. Such a referendum would resemble an imperative mandate. It would be the immediate ruin of parliamentary government. Popular opinion has been so unanimous, and has opposed the proposal for an initiative re- ferendum with so much energy, that it now seems to be definitely abandoned.
II. The Referendum of Appeal.
Many worthy people then bethought themselves of a compromise, and proposed to utilise the referendum in the case of a conflict between the two Chambers.
" A serious disagreement between the Senate and the Chamber of Representatives," they say, " is a crisis to be regretted, for it prevents the regular and normal conduct of business. Surely the most natural and simple course is to end the conflict by an appeal to the opinion of the electors, and to make them act as arbiters."
This concession seems at first sight to be un- important, but appearances are deceptive, and it is, in reality, an innovation which needs careful consideration.
At the present day conflicts between the two Houses rarely occur. If the majority in the two Houses are
xliv The Referendum in Belgium
actuated by different principles, both of them try to come to an agreement, and make attempts to find a common ground on which they can meet. They know that the solution of the difficulty depends upon themselves alone, and upon their mutually concilia- tory attitude to each other. When once the dispute can be settled by a third party, the position will be immediately changed, the obstinacy of majorities will increase, and the concessions will be less frequent; each Chamber will wish to show that it knows itself to be in the right, and will have fewer scruples in opposing the other, because it knows that there is an easy method of deciding the matter and ending the struggle.
The dominant thought will no longer be that of mutual conciliation. When once the two Houses are certain that they cannot agree, their one object will be to formulate their opinions in those terms which are most likely to win for them the sympathy and favour of the arbiter, the people.
The referendum is not only open to the grave objection of increasing the temptation to disagree, but it is also liable to determine the dispute in such a manner that the result obtained is either bad or at least more incomplete and inadequate than would have been obtained had other means been adopted.
If the two Chambers continue to keep the same electoral origin — which seems to be the wish of the actual majority of the Senate — then, if the matter in question is important, and its solution too urgent to be postponed, the dispute ought to result in a dis- solution. The Crown intervenes in this case without incurring any personal responsibility, takes note of
The Referendum in Belgium xlv
the deadlock, ascertains its gravity and the necessity of ending it by the method laid down in the constitu- tion. If, however, the two Chambers shall be chosen on a different electoral basis — and this seemed to be what the Government desired at first — then, when the revision takes place, some other expedient ought to be devised by which a conflict may be avoided. For instance, mixed commissions might be instituted which should be composed of deputies and senators similar to those which take place in the United States. Were the electoral basis different for each House, a referendum would be an appeal to the electoral body who chose the Chamber, and this would be to sub- ordinate the Senate to the Chamber, and a priori to relegate to a second place those authorities who have received the title of senators.
The organisation of the referendum of appeal would moreover be far from simple. Nothing would, in fact, be more complicated. At what precise moment can it be definitely said that there is a conflict ? Upon what sort of questions are the people to give judg- ment ? What is to be the result of the popular vote ? These are all difficult points.
It might often happen that dispute would not merely arise over the question of maintaining the status quo or replacing it by some other definite system. It might not unfrequently be a question of two systems of reform — one desired by the Chamber, the other by the Senate. Can you submit all sorts of projects and counter-projects to the electors? Poor elector! He is to be forced to legislate himself when he has chosen reliable men whose business it is to find the right path in the midst of a labyrinth of controversies.
xlvi The Referendum in Belgium
III. The Corrective Referendum.
In reality all the heat of the discussion in Belgium is concentrated in the third form of referendum. It is proposed that the King should have the right to appeal to the referendum after the two Chambers have voted, in order that it may guide him in exer- cising his right of consent, and enable him effec- tually to quash the decision of the parliamentary majority.
Your book is principally concerned with the study of the Swiss institution, its legislative vicissitudes, and its relation to the social and economic conditions of the nation.
But when one reads what you have written, and then thinks of our own country, what vital differences there are between the Swiss and the Royal referen- dum. The mechanism of the political machinery is apparently identical in both cases. But when the institutions are examined more closely, and due attention is paid to the political surroundings of which they form part, it is obvious that the resem- blance is merely superficial, and that the two are quite opposed. The Executive, the Parliament, the Ministry, the organisation of parties, the education of the people — all these primordial elements which con- stitute the characteristic features of a State are utterly and entirely different in Switzerland and in Belgium.
The King.
In Switzerland the right of appealing to the referen- dum is not confided to the executive power. It is in the hands of permanently organised groups, such as
The Referendum in Belgium xlvii
the cantons, or accidental groups, consisting of a cer- tain number of persons who sign a petition and who are bound by no legal tie. In Belgium the idea is to place the referendum in the hands of the King, who is to be the judge as to whether a solemn appeal to the nation shall or shall not be made.
The justification of this royal referendum is given as follows : —
" The monarch, it is said, does not enjoy in prac- tice the authority which he has in theory and which the texts ascribe to him. By the constitution he has the right to assent to laws, the right of dissolving the Chambers, the right of choosing and dismissing the Ministers, But apart from certain exceptional and unimportant circumstances, it would be morally impossible for the King to avail himself of his prero- gative of veto. It would be a power at once too great, too weighty, and too perilous. The King could only refuse his assent, and put himself in opposition to his Parliament, if he felt himself supported by the general will of the country. Every time he refused his assent it would lead to a political upheaval and a dissolution. Every refusal would affect the personal responsibility of the King, and would affect it very seriously should he have wrongly interpreted the state of public opinion, and the same majority be returned after the dissolution. The referendum will solve these diffi- culties without the necessity of proceeding to extreme measures ; it will make the sentiments of the electo- rate known by national and legal methods. The King will henceforward be able to act with certainty ; he will see clearly which side is taken by public opinion, and whether he should or should not refuse his assent."
d
xlviii The Referendum in Belgium
Such is the argument. It seems to me, however, that it contains two errors, one of principle and the other of fact.
In principle the King has the right of sanctioning or refusing laws, not only according to the text of the con- stitution, but according to the ideas which actuated the national Congress. It is for the King to follow the dictates of his conscience and his reason in the exercise of this right. It is certainly an extremely dangerous and undefined power ; but it is irrational to conclude that because its character is thorny and difficult it is therefore non-existent. The right of sanction, like the veto, when actually exercised, also affects the moral responsibility of the King — there can never be any question of his legal responsibility — but it is impossible to modify this situation by a reform in procedure, and the notion of right cannot be separated from the notion of responsibility.
Two theories are really advanced here. According to the first, which I consider absolutely untenable, the consent of the King must depend solely upon his interpretation of the true feeling of the country. The opinion of the country will be the opinion of half the citizens plus one who enjoy the franchise, and who have answered either yes or no. It is this majority which decides in the last resort as to the justice and utility of the law.
According to a second theory, which seems to me the only one based on law and on reason, the assent of the King must depend on his personal opinion of the justice and utility of the measure under discussion; but in forming that opinion he must give serious consideration to the opinion of the
The Referendum in Belgium xlix
country ; and the opinion which he ought to regard is the opinion expressed, according to party rules, by the majority of the deputies who enjoy the confidence of their electors, and who have been chosen by legal methods.
As a matter of fact, it is a great mistake to imagine that the referendum is a kind of present to the Crown. The King will gain nothing by this new right. He will neither be free to consult the people when it pleases him, nor will he be able to retain the power of decision in his own hands after the people have been consulted. If no text regulates the conditions under which the monarch shall exercise his right, he will be at the mercy of mass-meetings and petitions organised by the different parties, or even of disturbances and agitations in the street. The King will be obliged to resort to popular consultations every time that he thinks the Government powerless to cope with a difficulty.
A future Parliament, in order to avoid such a state of things, might draw up an explicit text, which should state the conditions under which the right should be exercised, and should limit it to the case in which a preliminary demand has been made either by a cer- tain number of members of Parliament or by certain provincial and local bodies. These persons or bodies would then become " the ruling powers." On the one hand, the King could not appeal to the people unless those authorities were to agitate for it. On the other hand, if they were unanimous, he could not refuse to grant the referendum if they demanded it. Moreover, the people would be excited by parliamentary discus- sions, the press would become very noisy, and the
1 The Referendum in Belgium
party in a minority would move heaven and earth to defeat their opponents.
Various suggestions of a different nature have been put forward by the press. I shall only quote one of them here. It has been proposed that the King should have recourse to the referendum when a law has only passed one of the two Houses by a small majority. Such a provision would be equally disas- trous to any freedom of action on the part of the King. Every time that a law is much disputed, and does not obtain a certain specified majority, the monarch must inevitably appeal to the electors, unless he would incur the reproach of being partial.
Laws which bear on matters which are the special province of the King, and which are likely to impose heavy charges on the country, such as military laws and estimates for the construction of fortified works, would in all probability be generally submitted to the electorate, in consequence of the agitation of the opposition.
Let us now turn to another side of the question, and consider the result of the popular consultation. If it is to be regarded as final, then the King has only to submit — he loses all personal freedom in the matter. Supposing, however, that the referendum is only re- garded as a solemn piece of advice. Then the mon- arch is placed in a most embarrassing position. There is no difficulty evidently if there is a large majority; but how is he to decide if the figures are almost equally balanced, or if the number of negative tickets are not equal to half the number of the registered electors? How is he to decide if the total number of electors against the law is less than
The Referendum in Belgium, li
the total number of suffrages received by the parlia- mentary majority at the election ? How is he to decide if cases of fraud and undue influence come to light which would be sufficient to annul an ordinary election ?
Is it not true, then, to say that the Crown will not gain anything by the referendum, neither power or relief?
The referendum will, moreover, imperil the other powers which the monarch actually possesses.
As to the right of veto, it is not necessary to dwell upon it. This right will be entirely lost.
The right of dissolution will be fatally restricted. Those powers appointed by law to make a demand for the referendum will consider themselves bound to point out in how far the parliamentary majority and the people are at variance. How then can the King tell the country that a dissolution is necessary because the Parliament seems to him opposed to the general opinion of the country, when these authorised powers have made no sign or refuse to declare that the Parliament no longer represents the feeling of the nation on some particular point. The right of dis- solution ought especially to be preserved from all new complications just now, as its exercise will become a more difficult matter in consequence of the proposed electoral reform by which general, provincial, and communal elections are to be placed on the same elec- toral footing. Formerly the results of the local elec- tions were made use of to influence the parliamentary majorities, although the composition of the electoral bodies in each case might be very different. In the future it is to be feared that these attempts will
lii The Referendum in Belgium
be renewed with more semblance of reason, unless public opinion comes at last to realise that local elections are principally concerned with administra- tive questions.
In short, to introduce the referendum in the in- terest of the Crown is to pursue an illusion. Instead of being a benefit to the monarch who wishes to preserve a strictly constitutional attitude, it can only bring about many unfortunate complications, and lead eventually to loss of power.
The Parliament.
The Swiss Parliament and the Belgian Parliament have nothing in common. The important points of difference must be specially noticed.
The first is a difference in the fundamental ideas of government. My colleague and friend, M. Dupriez,i has recently described it to me as follows : —
"Switzerland is a democratic republic. The prin- ciple of popular sovereignty applied in its purest form has produced results in the constitutional organism and on political customs which are quite peculiar to that country. Every man who forms part of the Legislature, Executive, or Judiciary, is appointed for a fixed term. Each person elected is imbued with the idea of the sovereignty of the people, and uses the power delegated to him according to what he believes to be the wdsh of those who sent him. If he has made a mistake as to their wishes, he hastens to repair his error, and does not think of refusing his
^ Author of that remarkable work, Les Ministres dans les principaux pays d' Europe et d'Ameriquc.
The Referendum in Selgium liii
consent. Thus the members of the Federal Assembly whose opinions have been disavowed by their electors do not vacate their seats, the Ministers whose personal wishes are thwarted by the votes of the Assembly or the people nevertheless remain at their posts. In Switzerland the authorities do not resign, they always submit.
The organisation of the Federal Assembly con- stitutes a second great difference between the two countries. The electoral districts are so mapped out that one of the parties has a great advantage, and the parliamentary majority does not always represent the majority of the electors.
Finally, the third difference consists in the auto- nomy of the cantons, and in the fact that the Federal Parliament has only very limited powers. On an average it passes about two or three laws a year. The ordinary session only lasts eight weeks. As to the cantonal assemblies, they scarcely sit longer than our provincial councils.
These three striking features of Swiss political or- ganisation explain why the electors consider them- selves authorised to interfere in legislation, either by means of the popular initiative or the referendum. According to their theories they are the great motive power, and ought to command the legislative assem- blies to halt, or to advance, or to take a certain direction. Turbulent minorities avail themselves of the initiative as a means of dividing parties, and of the referendum as a means of obstruction.
The country, as a whole, only bestirs itself on cer- tain occasions. It then protests against the parlia- mentary majority, and either gives the Legislature
liv The Referendum in Belgium
an imperative mandate to legislate by means of the initiative, or it makes use of the referendum to curb tendencies which are too pronounced. But the elec- tors do not intervene except at long intervals, because they do not live in a unitary country under the direction of a general Parliament whose activity is unceasing. To introduce the referendum into Bel- gium is to make an attempt to bridge, by means of a badly poised plank, the abyss which separates the system of popular government from the true parlia- mentary system.
In England and Belgium the deputies are appointed by the electors, but they are not commanded by the electors. They must enjoy the confidence of the country, but they preserve an independence of thought and action. Our political conceptions are opposed to the idea of imperative mandates of any kind whatso- ever. The members of the minority as well as the majority represent the nation. They guard between them both private and public interests. The referen- dum will degrade their position in the eyes of the electorate, who will ask why the choice of representa- tives is so important when their resolutions are not final It will weaken their prestige and destroy the principle of their responsibility. Every deputy will realise that his vote is only equivalent to a piece of advice which the electorate may adopt or reject, and that it is the majority of the electors who decide either by tacit ratification or express decision. The position of members and senators will be that of political pioneers, their mission being confined to discovering the land, and to pointing out the advan- tages and the dangers of the situation.
The Referendum in Belgium Iv
There are also other drawbacks. If the two Chambers have a different origin, the Senate will be annihilated, and the principle of the duality of the Assembly will only be a hollow mockery.
Again, if the number of electors who are success- fully opposed to the Government at the referendum is less than the number of suffrages obtained on the day of the election of the deputies of the parlia- mentary majority, this majority will be able to say that it is overcome and oppressed by the minority. In this way the dignity and force of Parliament will be irretrievably compromised.
Once a start has been made in the direction of popular concessions, it will not be easy to turn back. Even if the referendum should lead to un- fortunate results, it would be difficult to abolish it, because it would be necessary to persuade the people themselves that they have been in the wrong, that they must make a public acknowledgment of the fact, and that they must renounce rights which seem to them to be rights lawfully acquired. No ! the step once taken can never be retraced; and when the idea is followed out to its logical consequences by the rival parties, the result will be a series of legis- lative efforts much more advanced than those pro- posed to-day.
It will be necessary to revise Article 131 of the Constitution, which relates to constitutional reforms, and Article 85, which deals with the final choice of a new dynasty. These two articles provide a method of popular consultation quite different from the referendum. The country is appealed to for its opinion by means of a dissolution. This system will
Ivi The Referendum in Belgium
have then to be discarded as old-fashioned. It will also be necessary later on to introduce the popular initiative, which is an inevitable consequence of the referendum. The people will not only have the right of putting the drag on the legislative coach, they will also insist on giving it a start. Finally, the referendum and the initiative will be introduced with more show of reason for local, provincial, and communal affairs.^
The introduction of the referendum into our par- liamentary organisation will not be merely a slight modification of the constitution, unnoticeable in its effects: it will be the germ of a new departure, or, to speak more exactly, the commencement of a com- plete political revolution.
The Ministers.
It is very rare for the chiefs of the administrative departments to resign in Switzerland when they have experienced a rebuff or a check at a referendum.
The attitude of the Belgian Ministers is very dif- ferent. It is dictated, not by constitutional or legal texts, but by ancient and unchanging traditions. .
Let us consider two distinct cases. Suppose, first of all, that an important law is passed by the two Chambers, and is supported by the Ministry, who stake their existence on it either implicitly or in express terms.
As matters stand to-day, should the King refuse
^ The referendum has nothing in common with the inquiry which the local authorities are authorised to institute by Article 75 of the Communal Law, in order to gain information before making a decision.
The Referendum in Belgium Ivii
his assent to such a law, the logical course for him to pursue is to change the Ministry, or even dissolve the Chambers. But if the referendum is introduced into our constitution, it is quite a mistake to suppose that the situation will be simplified. It will instead be extremely complicated, not only before but after the popular consultation.
When the persons or bodies authorised to demand the referendum from royalty exercise their right, or, to speak more generally, when the specified conditions to be determined by a future Parliament shall be fulfilled, the Cabinet will assemble in all haste ; they will discuss the point as to whether they are obliged to give their countersign in order that a work which they regard as most important shall be called in question at a popular consultation.
The parliamentary supporters of the party will be convoked in a special meeting. If they are of opinion that the chances are that the consultation will be favourable to them, they will permit the Ministers to countersign without raising any difficulties. If, on the other hand, they consider that an isolated con- sultation would be a bad piece of policy, and that they would be more likely to succeed in a dissolu- tion, they will decide upon resistance, and begin the struggle from above. The Ministers will be obliged to openly refuse their countersign and to send in their resignation, or allow themselves to be dismissed. If they fear, however, both the consultation and the dissolution, they will then face the referendum with the courage with which we face the lesser of two evils.
Let us then take one step further and consider a
Iviii The Referendum in Belgium
fresh difficulty. Let us suppose that the people have been appealed to, and that they have answered very clearly, and have rejected the law passed by the Parliament and supported by the Ministers. What course is then open to the Ministers and the deputies ? According to our present theories the Ministers must retire before a hostile vote of the Chambers on a Cabinet measure. How much more then must they retire before an unfavourable decision of the country itself? How could the majority remain on the front benches as if nothing had happened ? How could these Ministers and this majority discuss and pass any other important law? They would be a mere butt for the witticisms of the Opposition, who would declare the Government to be destitute of all moral support. It would be condemned to a policy of in- action until it acquired renewed strength at a general parliamentary election.
The second case is this: Suppose one of the Chambers has adopted an important law in spite of the opposition of the Cabinet. The Ministers have done all in their power to ensure its defeat; they have agitated both by speech and writing, and all to no purpose: they have been beaten. To-day only one course is open to them : they must give in their portfolios. But when once the referendum appears on the horizon, will there not be a great temptation for these Ministers to resist the Chamber, and to threaten it with an appeal to the electorate ?
In some countries the unfavourable vote of the Senate is not regarded by the Ministry as having the same significance as an adverse vote of the Chamber. The Senate seems to be somewhat removed from
The Referendum in Belgium lix
the people, while the Chamber seems to be closely in touch with them'. But it would surely be going a step beyond this were the people in Belgium to have the right of personally intervening in legislative decisions.
If the parliamentary majority has no fear of a dis- solution, it will show its teeth and resist the Cabinet, and make the latter's existence an impossibility. But in a country where the parties are a periodical check on each other, the majority will generally be in doubt as to the results of a dissolution. In this case it will draw in its horns, and the Ministry will remain in power, in spite of the opposition aroused. This will, in fact, be personal government supported by a latent and extra parliamentary force, the force being a popular one, and only manifesting itself at indeterminate intervals, and on questions which have been cleverly chosen.
When the Cabinet shall make the bold experiment of submitting even the budgets to the people, then the Parliament will cease to be a necessary part of our political organisation; the Ministers and those who support them will be "the sovereigns of the plebiscite."
Parties.
In Switzerland there are numerous dismembered and divided groups, there are passing coalitions and a considerable floating mass of unattached members.
In Belgium, on the contrary, the parties form two armies ; they have ancient traditions, and an organisa- tion extending throughout the country. They corre- spond to the tendencies which manifest themselves
Ix The Referendum in Belgium
in society. The extension of the franchise will perhaps modify their position; it will accentuate the sub- divisions. No one, however, expects a radical change to take place in their composition from one day to another. The tendency is for the two existing currents to continue to be the dominant currents for a long time to come without any miQgling of the waters.
The advocates of the referendum do not seem to understand the necessity for the existence of parties, and seem also to have no fear of the influence these same parties will exercise upon general opinion. Let us examine the argument advanced with such fre- quency that it comes only second to the argument we have just examined in connection with the King. They say "that the referendum must have been in- vented, even if it did not already exist, in Switzerland, that it is indispensable to a representative organisa- tion, and that it is a happy complement of the right of dissolution." If the nation and the parliamentary majority be out of harmony, it is essential, so they maintain, to find out the points on which the two differ. If these points prove to be numerous, or if there be a general disagreement, the dissolution of Parliament must ensue. If the nation and Parliament be merely at variance on some special question, the referendum is the necessary remedy, the people will be consulted on the one subject, isolated from all others, and the issues will be precisely and openly stated. A dissolution leads to a discussion of persons and pro- grammes; the referendum abolishes personal pre- ferences, and restricts the debates to the examination of a particular law. A referendum and a dissolution
The Referendum in Belgium Ixi
are two separate rights, corresponding to two situa- tions which are in reahty quite different.
Without raising any doubt as to the competence of the people in legislative questions, this political dilemma is capable of being satisfactorily disposed of in more ways than one. Let us suppose that a party has a large majority, and that the two Chambers pass a bill of the first importance, and that the Crown, before giving its assent, dissolves Parliament. In this case the electoral struggle will surely centre round this particular law. If the Opposition be successful, it is easy to see that the opinion of the country is unfavourable to the politics of the majority. Should the King, instead of dissolving Parliament, have re- course to the referendum, is it not probable that a great many considerations will influence the discus- sions? Again, if the referendum should result in a negative answer, the real feeling of the people still remains unknown. Did the country only wish to reject the law, or did it wish at the same time to overthrow the majority ? One thing is certain, and that is that the electors who supported the majority at the time of the election have now ranged themselves against the law passed by that same majority. The difficulty is to know whether these electors are not discontented with their party as well as with the law. The actual figures obtained at the referendum will always be equivocal in this respect, and the public mind will be full of uncertainty on the point.
The partisans of the referendum shut their eyes to the practical truth. They are ingenuous enough to believe that the electors, when voting, will merely vote on the merits of the question, and that their
Ixii The Referendum in Belgium
judgment will be as unbiassed as that of a stranger who has only arrived in the country the evening before. It is a curious mistake, for it is obvious that the vote of the electors will be a party, and not a theory vote. The electors are instructed by party journals; they attend party meetings, they belong to party associations, they have fought for years on the the side of a party, and have debated the party pro- gramme within their circle. Is it likely that the elector will be able suddenly to put off " the old man " when a consultation occurs, and learn to think in a new manner ? Will not even the most thoughtful and least prejudiced men hesitate before separating themselves from the flag which they habitually follow ? The idea is to divide political programmes, but will not these men see a close connection, either logical or historical, between questions which are supposed to be separable ?
The supporters of the referendum think that it will be easy to determine whether the discord between the nation and Parliament exists on a whole series of questions or on some special one only. They forget, however, that party programmes are often regarded by the electors in the light of pieces of cloth which have still to be made up. They are the expression of certain tendencies which will be curtailed or developed at length according to circumstances. They include also traditional questions, as well as local questions and questions of organisation. All the articles in the programme do not possess the same characteristics of urgency and importance at any one given moment, but they are aU connected by ties of principle or interest. The poHtical crock is always on the bubble,
The Referendum in Belgium Ixiii
and sometimes it is one item and sometimes another that rises to the surface. At certain times the whole programme seems to be summed up in two or three points, sometimes in one only. When the party in power has embodied this special point in a law which appears to it of the greatest importance, is it then possible to distinguish, as the advocates of the re- ferendum seem to wish, between the party and the principle of their law, to separate the father and the child, so to say, declaring all the while that to hit the one is not to strike the other ?
Each time that he uses the referendum, the King will be obliged to declare that there is no discord between the parliamentary majority and the country, and that it is not necessary to have recourse to a dissolution. But he will nevertheless be obliged to add that he is uncertain whether all the adherents of the party in power are agreed on such and such a special point, and that he thinks in this respect there may be some difference of opinion between them which may have arisen either before or after the election. Such a proceeding would probably be a great strain on a party, and might lead to general confusion and a possible relaxing of party ties. It seems to amount to an appeal against a compact and well-disciplined group of deputies, addressed to all the forces of the opposition, to all the malcontents within the majority itself, and to all those whose interests are more or less affected by this particular law, and whose hopes in the present or in the future may have received a check. The break up of parties into groups would be a grave danger. A government has as much need of energy as a man has of will-
Ixiv The Referendum in Belgium
power, and the parliamentary government which does not rest on the soUd basis of a faithful majority is a government which is poAverless and impotent. More- over, the horizon is not so clear and cloudless in Belgium to-day that we can afford to weaken our motive powers and content ourselves with repre- sentative authorities devoid of force and stability.
Parties are a necessity in a parliamentary system, and in spite of their exaggerations and inconveniences, they are a distinct benefit in our country. They are the intermediaries between the mass of the electors and the leaders. They group and educate the citizens, they register the echoes of general opinion, they sub- ject complaints to a sifting process, they recommend moderation to the turbulent, and tabulate the im- portant matters in the order which seems to them most useful. Once you divide them, break up their ranks, and destroy their programmes, you will have deprived the people of their necessary guides, and you will only have before you a great multitude of errant or indifferent electors.
The People.
The gulf between the Swiss and the Belgians is quite as great as that which separates the Belgians, who have always enjoyed a real independence, from the French, who have been unused to self-government for centuries.
Democracy has had a peaceful existence in Switzer- land, for the mountains have afforded it the security of a natural and impregnable fortress. The inhabit- ants have learnt to regulate their affairs in a patri-
The Referendum in Belgium Ixv
arclial manner. Cantons with Landsgemeinde still exist there to-day, and the people collect together in the great valleys and decide all civil and political questions as of old. In other places this primitive form of government has had to be abandoned. But the desire to take part in public affairs has become engrained in their natures. They have been accus- tomed to hear their fathers discuss problems of State, and have received the best of all political educations, that of experience.
The Belgian possesses a great love of liberty. He reasons calmly and with much common-sense, but he is not accustomed to solve administrative and social difficulties by himself He utilises division of labour, he concentrates his activity on his trade or on his profession, and he confides the task of guiding the politics of the State to the men who seem to share his views. Now all of a sudden, without preparing him in the least for it, it is proposed to consult him directly on the most disputed and difficult questions of legislation.
Two reforms of the first importance are being dis- cussed. On the one hand, the scheme is to extend the suffrage, the result of which will be to summon to the polls considerable numbers of electors who have never taken any part in public affairs, and who have perhaps been rather neglected by the parties and the ruling classes, and who have as yet only vague notions of politics, and aspirations rather than ideas. On the other hand, it is proposed to introduce the referendum, which is an appeal to the people, and which presupposes that their education is already made, and that all classes of society have been in
Ixvi The Referendum in Belgium
close touch for a long time. There seems to be here a double danger.
But there is yet another striking fact to be noticed, which is this : The Swiss people themselves, whose political wisdom entitles them to rank foremost among the nations of Western Europe, are somewhat cautious and hesitating in the use they make of the referendum. In the Federal Government experience has shown the wisdom of placing certain laws beyond the possi- bility of popular intervention. Thus budgets, treaties, and all enactments which Parliament^ may consider to be urgent, are excepted from the referendum.
In your book there is much that is instructive on the question of the vote itself, you dwell on the many reforms that have been attempted or proposed in Switzerland with a view to lessening the dangers of the referendum.
It has been proposed to enlighten the people before the popular consultation by means of the distribution or publication of messages.
If these documents are business-like, the electors find them long and tiresome, and the majority do not take the trouble to read them. If they consist merely of a short abstract, they are ridiculous, and do not teach anything.
Compulsory discussion has also been suggested. But such a discussion presupposes that the speakers will be clear and eloquent, and the audience com- plaisant, and well up in the course of events. As a matter of fact, no one speaks at the meetings which are held for purposes of debate.
Others again have thought that it would be wise to defer the referendum until the law had come into
The Referendum in Belgium Ixvii
force, and experience had proved its worth. But this would be too great a check on the impatience of the opposition, and in the end the referendum would fall into disuse.
On the voting day abstentions are numerous. Only 6 1 per cent, of the electors go to the polls in the case of federal laws. In several places the vote has been made compulsory in the case of cantonal votings. The number of voters has increased; but, on the other hand, the number of blank tickets has increased also. The answer obtained at the referendum has proved to be deceptive and enigmatical. The electors are led to give the same vote by motives which are absolutely opposed. This would be remedied, some reformers think, if the answers were accompanied by a statement of reasons. There are others who claim for the elector the right to separate or amend the proposals submitted. What a dreadful muddle there would be were these plans adopted !
Politicians in Switzerland are not slow to take advan- tage of the general confusion, and have recourse to all sorts of subtleties of procedure. With a view to carrying measures likely to be unpopular with the majority, they make the strangest combinations of independent groups by tacking on provisions to win their favour. When a law is rejected, they return to the task and modify the form, and present the same law again under new colours. At the third attempt the people become tired of resisting, and allow the law to pass.
There is nothing astonishing in this state of things. The people are competent to choose capable men. They are able to declare their general preferences.
Ixviii The Referendum in Belgium
and can give judgments on questions which do not re- quire expert knowledge. But to ask them to do more than this is to ask them to do something they cannot perform. They are incapable of making legislative de- cisions ; they have not got the necessary documents, nor the leisure for the necessary study. They are liable to be swayed by special and transitory considerations. Their view is not a trained one, and they naturally cannot see things from the same standpoint as men who have been used to the conduct of affairs.
Moreover, there are certain questions the signifi- cance of which would escape them altogether. I will only quote one example which is deserving of special consideration in Belgium, as the Swiss re- ferendum does not reassure us on the point. It is the colonial problem. The founding and develop- ment of a colony demand enormous sacrifices of men and money, of activity and devotion, for results which are in the dim future, and which are very diffi- cult to guarantee or even to define. The people, however, are always impressed by present sacrifices, and by reverses which are more or less dramatic. They do not pay any heed to future benefits, and to the development of individual energies. From this point of view it is permissible to think that if the referendum ever became an additional source of power to the King of the Belgians, it would nevertheless be a great weakness for the Sovereign of the Congo.
To sum up what I have been saying at perhaps too great length.
The referendum would be an absolutely new insti- tution in a parliamentary monarchy.
The Referendum in Belgium Ixix
The Crown, whose function it would be to remain neutral between the parties, would not gain in in- fluence, while its authority would be lessened and hampered by many complications.
The Parliament and the Ministry run the risk of being irrevocably transformed. The ancient system of checks and balances would be succeeded by a transitory state of things which might lead either to personal or to popular government.
The unity of parties would be threatened if this sword of Damocles were always hanging over their heads.
Finally, the people, incompetent as they are for the task, would be obliged to come to the polls to give their decision in spite of themselves.
These dangers are not apparent to me alone ; they have already been recognised and pointed out by the press and by eloquent party leaders. But the longer one thinks over the question, and the more one reads your book, the more one becomes convinced of the gravity of the situation.
Indeed, in Belgium, it may be said, with a good deal of truth, that if there should ever be a referendum on the referendum, the only voters in its favour would be the authors of the reform. — I remain, yours sincerely,
J. VAN DEN HEUVEL. LouvAiN, March lo, 1892.
THE REFEEENDUM IN SWITZERLAND
CHAPTER I
THE EVOLUTION OF DEMOCRACY IN SWITZERLAND
The object of this chapter is to give some account of the more important parts of those poHtical in- stitutions which are essentially a product of Swiss democracy, and to examine the various constitutional experiments which have had as their result the direct participation of the people in the work of legislation. At first sight the task of tracing the evolution of democracy in such a place as Switzerland would seem to be an easy one, on account of the limited field of observation. On closer examination, however, we find that what appeared so simple is really very com- plicated. More than twenty states have continued to exist side by side in this little corner of the globe, united from time to time, it is true, in defensive alliance, but separated by lofty mountains, differing from the first in language, and later in religion, and enjoying varying degrees of independence from auto- nomy to partial subjection, with the result that each little state has worked out its own history apart from
A
2 The Referendum in Switzerland
the rest, and so powerful have been the disintegrating factors that no great current of thought seems to have acted as a stimulus towards unity.^ It naturally follows that their respective governments were the outcome of very different political ideals. This abso- lute political separation lasted down to the time of the French invasion at the end of the last century. The Constitution of the 12th of April 1798, which was imposed on the country by France, proclaimed the Helvetic Republic to be "one and indivisible," and it reduced the ancient states to the position of mere administrative departments. Such a complete revolution in the position of century-old institutions, due moreover to foreign intervention, was too sudden and too fundamental a change to be permanent, and Switzerland quickly reverted to the state of a con- federation.
Nevertheless, ephemeral though it was, the Helvetic Constitution could not but exercise a considerable influence in the future. It introduced a new prin- ciple into the public law of the country, the principle of the sovereignty of the people. From this time forth all the advocates of the " rights of the people " have armed themselves with these magic words, and have made them the basis of a whole series of claims. The Constitution of 1798 was in this way the origin
^ [For a general history of Switzerland the following works are accessible in English : — MacCrackan, The Rise of the Swiss RepuUic, 1892 ; Hug and Stead, Switzerland, in the Story of the Nations series, 1890 ; the article on Switzerland in the Encyclopcedia Britannica, by the Rev. W. Coolidge ; E. Grenfell Baker, The Model Republic : A History of the Rise and Progress of the Swiss People, 1895. •^'^ ^^' cellent bibliography of works on Switzerland is given by J. M, Vincent, State and Federal Government of Switzerland, p. 228.]
The Evolution of Democracy 3
of that outburst of enthusiasm for democracy which, a few years later, after the July Revolution of 1830, convulsed the whole of Switzerland. Up to the end of the last century direct legislation by the people had been a fact, though the form which it assumed was accidental. From this time forth legislation by the people was demanded as a right, and publicly advo- cated as the only legitimate form of government.
The study of the democratic institutions of our own time becomes much easier if we realise that they, too, have sprung from the very same inspira- tion, and are the outcome of one and the same idea.
The veto, the referendum, and the popular initia- tive, all these creations of modern democracy are like organisms, which, in a more or less perfect shape, and with more or less difference in their final form, have all sprung from a single primordial cell. We shall trace their rapid evolution in the second part of this chapter. Let us pause, first of all, to examine the classical and somewhat curious forms of what we might term " historical " democracy.
§ Before 1798.
I. The Landsgemeinde.
Direct legislation has been a regular constitutional feature in Switzerland from the very beginning of its history. In the republics of Uri, Schwyz, Unter- walden, Appenzell, Zug, and Glarus the people have never ceased to legislate for themselves and vote their own taxes from the thirteenth century down- wards. They met together at least once a year for
4 The Referendum in Switzerland
the purpose in solemn conclave, called the Lands- gemeinde.^
The Landsgemeinde was an assembly of all the active citizens of the canton, that is to say, of all the "freie Landleute" of the age of fourteen and over,^ and who were entitled to wear a sword.^
^ The first Landsgemeinde of which we have any precise infor- mation was held in the canton of Schwyz in 1294 (Blumer, Staats und Rechtsgeschichte der schweizerischen Demokratien, St. Gall, 1850, i- P- 135)- The following study of the Landsgemeinde is based throughout on this masterly work of Blumer.
[Before the thirteenth century, however, the inhabitants of the Keuss valley (Uri) met to regulate all the affairs concerning their pasturage, and in Schwyz for purposes of local order from very early times. The records of the Landsgemeinde of 1294 prove that it was then no incipient institution, but a democratic assembly in which the people were sovereign with unlimited powers.
One of the explanations of the origin of the Landsgemeinde is that they were the outgrowth of the feudal manorial court of Hof- gericht. The countrymen of the Alpine valleys assembled together at the call of the lord's bailiff or deputy, to witness trials and to act as a popular jury upon disputes arising under the customary law of the district. They did not legislate, they applied the law ; they did not elect the magistrate, they received him. In the First Perpetual League they declared that they would only have natives as judges, not foreigners. It would be an easy change, when the feudal power grew weaker, for the people to meet together to elect a man instead of waiting for his appointment, and to assume the general direction of affairs at such meetings. See Eambert, Les Alpes Suisse, p. 164. M. Dunant, in Legislation par le peuple en Suisse, p. 6, says that the word Landsgemeinde dates only from the fifteenth century.]
2 Towards the middle of the fifteenth century the age of political majority was fixed at sixteen in the cantons of Schwyz, Glarus, and Appenzell, and their example was followed by Zug in the sixteenth century.
3 Thieves, bankrupts, and malefactors generally, were deprived of their political rights. They were ehr and gewchrlos, and were for- bidden to wear a sword, the distinguishing mark of an active citizen.
[If a man attended without his sword he was not allowedjto vote,
The Evolution of Democracy 5
It was held in the spring, before the peasants left for the high Alps, on the last Sunday in April or the first Sunday in May.i The place of meeting was an open space, with the turf for a carpet, and with only the boundless sky above, unter Gottes freiem Himmel. What more superb council chamber could be conceived than such a one in these Alpine lands ?
Attendance was compulsory ,2 because on the day
and was, moreover, fined. To the present day men attend the Landsgemeinde wearing swords of very ancient patterns, evidently heirlooms.]
^ [In Appenzell and Unterwalden the Landsgemeinde is held on the last Sunday in April, in Uri on the first Sunday in May, and in Glarus, if possible, during the month of May. At Glarus and Appenzell (Inner Khodes) the Landsgemeinden meet in an open space in the town. An excellent historical account, description, and criticism of the Landsgemeinden is given by Rambert in Les Alpes Suisse (Lausanne: F. Rouge, 1889). M. Lefevre Pontalis has described them as they exist at the present day in a pamphlet called Les Assemblies pUni^res de la Suisse (Paris : F. Dentu, 1896), and in the Figaro of the 28th of May 1894. Prince Roland Bona- parte contributed two descriptive articles on the subject in the Figaro of the 28th May 1890, and in the Evinement of the 6th of June 1890.
Mr. Irving Richman, in Pure Democracy and Pastoral Life in Inner Rhodes (Longmans, 1895), gives a vivid account of a Lands- gemeinde held in Appenzell (Inner Rhodes), which, by the way, is the only account I have ever seen of a Landsgemeinde held in the rain. A Landsgemeinde is also described by Adams and Cunningham in The Swiss Confederation, pp. 132-33 ; by Vincent, State and Federal Government of Sivitzerland, pp. 106-1 14 ; by W. Boyd Winchester, The Swiss Republic, pp. 101-107 ; and by MacCrackan, Teutonic Switzer- land, chap. xi.
The description of Freeman in chapter i. of The Groxoth of the English Constitution is classical (London, 1892).]
2 A fine was imposed in case of absence. [Mr. Richman, in his book, states that a fine of five francs is still exacted in Inner Rhodes ; and in an article on Compulsory Voting {Le Vote Obliga- toire), by M. Deploige, in the Revue Ginirale for March 1893
6 The Referendum in Switzerland
when the Landsgemeinde was held the people had to take an oath to observe the laws and customs of the country. In the early morning, chanting the while their patriotic hymns, these peasant legislators streamed in from all the communes of the canton. The chief magistrate of the state, the landamman, was ex officio president of the assembly. A band of musicians conducted him to the platform, erected in the middle of the meadow ; the active citizens ranged themselves round him in a circle ; farther off outside the circle the women and children ^ and strangers listened and looked on in silence. According to traditional prac- tice, a prayer, recited in unison, and the speech of the landamman, preceded the orders of the day.
Before exercising its principal function, that of legislation, the Landsgemeinde proceeded to nominate the state officials,^ the governors of bailiwicks, and the deputies for the federal Diet. The elections were made by show of hands. The landamman, with the help of his assistants, declared the result, which no one was allowed to call in question. In case of doubt,
(Brussels), M. Deploige has the following note : — A deputy of the canton of Appenzell writes me that the Landsgemeinde punishes electors who stay away by a fine of ten francs. My correspondent did not, unfortunately, send me the regulation in question.]
^ [At Glarus the children occupy reserved places in front of the tribune erected for the oiBcials, in order that they may be thus instructed from their youth up in the conduct of public affairs.]
2 [In Glarus, up to 1857, the candidates had to be entreated to accept office. After many compliments they were elected in spite of their refusals, and the majority accepted the posts offered. Those who declined had to declare upon their honour, or even on oath, that they would not take office before any one even thought of replacing them. See Droz, Mudes et portraits politiques, " Life of Landamman Heer,"]
The Evolution of Democracy 7
either a second show of hands took place, or the voters separated into two groups and were then counted.^
A not uncommon piece of tactics was to call out, " Friends, hands up " — Hend auf ihr liehe Landlut — when any particular name was called out. It was in all probability a ruse employed by the supporters of a candidate to make the doubtful electors take one side or another. There were laws, however, which imposed a fine on this especial manoeuvre.
Every free man was eligible for office.^ The terms were short, with little if any remuneration. The offices were therefore in practice only accessible to persons in easy circumstances, which explains the fact that in the list of landammans the same name occurs again and again.^
1 [At Appenzell (Inner Ehodes) the people enter the church by different doors, and are counted as they enter.]
' In the cantons of Uri and Glarus those employed as merce- naries in foreign countries were ineligible (Blumer, ii. p. 112). The Swiss were to be found in the Middle Ages in all the armies of Europe, the poverty of their soil and the scarcity of employment having compelled them to enrol themselves in foreign armies. The cantonal governments often used to take advantage of this practice, and would conclude treaties with foreign sovereigns, known as military capitulations, by which they undertook to provide con- tingents of soldiers. The Federal Constitution of 1848 forbade military capitulations.
2 [In Uri in the Middle Ages we find one Werner d'Attinghausen in ofl&ce from 1294-13 17. From 1317-30 there is no record. In 133 1 we find his son in office, and again in 1333-37, and from 1346-57. Thus father and son were in office at least thirty-seven years. In Schwyz, Conrad ap Yberg and Werner Stauffach alternate from 1291-1314. From 1314-19 there is no record. Then we find a Henri Stauffach in office in 13 19. From that time to 1342 there is no record. From 1342-73 we get a Conrad ap Ypberg (thirty-one years), and from 1378 we get a line of Stauffachs. See Rambert, op.
8 , The Referendum in Switzerland
After electing the officials the people next pro- ceeded to deal with the internal and external affairs of the canton. In such matters the Landsgemeinde was not only supreme, but a very real and effective sovereign. The citizens recognised no other laws than those of their own making ; ^ not a farthing for taxation left their pockets without their consent. The state contracted no alliance that was not for- mally approved by the majority of the nation, and
cit. p. 1 86. It was the same later on. M. Numa Droz, in his " Life of the Landamman Heer of Glarus," Etudes et portraits politiques, 1895, says that from the eighteenth century there had been Landam- mans out of the family of Heer. Cosme Heer, the grandfather, had been Landamman from 1828-33; Nicolaus, the uncle, from 1803-21 ; and the Heer of the biography eighteen years from 1857-76. The same author gives the following account of the duties of a landamman in Glarus : — The landamman has to direct the assembly of the people. He has to preside at the Council of State of 9, at the Landrath of 40 members, and at the triple Landrath of 117, which deliberates on the questions to be sub- mitted to the Landsgemeinde. It is the landamman who elabo- rates the greater part of these proposals. It is he, as a rule, who draws up the memorial to be sent to each active citizen before each Landsgemeinde, a memorial which contains all the proposi- tions and arguments in their support. The landamman may be called upon to take part in many commissions. He is the councillor of all. Every one goes to him in all the difficulties of life, some- times for advice on legal matters, sometimes to ask his intervention in their favour when they apply to the commune for relief. The landamman has no official secretary to help him in all this. Yet we find constant rivalry between the different families to obtain the post, and some curious scenes at election time.
The government of trades unions by general meeting, the earliest form adopted, presents many analogies with the Landsgemeinde. See Industrial Democracy, by Sidney and Beatrice Webb, vol. i. chap. I, " Primitive Democracy."]
1 In 1733 t^^ Council of Glarus consulted the Landsgemeinde on the interpretation of an obscure law on bankruptcy. Originally the Landsgemeinde administered justice and exercised the right of pardon. (Blnmer, i. pp. 270-72.)
The Evolution of Democracy 9
no foreigner could become a citizen of the country unless admitted by the Landsgemeinde.^
Among the series of laws enacted by the Lands- gemeinde, one group ought specially to be noticed, because it throws new light on the political morality of those primitive democracies. I refer to the suc- cession of statutes designed to prevent corruption at elections. The purchase of votes seems, in fact, to have been carried out on a large scale, especially by candidates for the office of bailiff. This was a lucra- tive post, because the bailiffs were the governors of the subject domains belonging to the little republics, and they did not fail to make the most out of the inhabitants. The existence of these subject domains, it may be mentioned in passing, is one of the curious features of "historical" democracy, and those who theorise about modern democracy will no doubt regard their very existence as a monstrous anomaly, for nothing is more at variance with the principles, if not with the mode of action, of those who claim to rally round the doctrines of the French Revolution.
^ [It was a very difficult matter to be admitted to citizenship in another canton. For instance, in Appenzell (Outer Ehodes), in 1834, a man had to reside ten years in the canton. An application then had to be made to the Great Council, who minutely investigated the man's antecedents, and submitted the demand to the Lands- gemeinde with a favourable report. The candidate then mounted the platform at the Landsgemeinde to be presented to the people, who were the final judges. In Appenzell (Inner Ehodes) he and his family had to take an oath before the people that they were Koman Catholics and went to church regularly. The candidate had to pay a fine for admission. Even if the votes at the Landsgemeinde were in his favour he was ineligible for any public office during his life- time, but his children were under no disability. At the present day the procedure is very similar, but five years' residence only is neces- sary, and the candidate is eligible for all offices.]
lo The Referendum in Switzerland
But in tlie old-time democracies things bore a dif- ferent aspect. Their aim was independence, their bias repubhcan, but the rights of man as an abstract idea was still a good deal beyond them. Liberty was much more than an idea, it was an actual fact ; not a philo- sophic theory, but a more or less complicated system of positive rights, based on a series of enactments exactly similar to those by which all other rights had been acquired. Civil or political liberty, once attained, was handed down as an inalienable heritage from those who first acquired it to those who came after them. The freeman, owing neither suit nor service to any feudal superior, no less than the burgess who owned no allegiance to any foreign power, would never dream of quoting in support of their claims to freedom the prehistoric equality of primitive man ; still less would they advocate the sovereignty of the people. They produced charters, they appealed to the rights acquired by their fathers, they quoted the concessions and exemptions obtained from former lords.^ The subject lands, however, had no charters to invoke. They had ceased to exist as seignorial domains, and had become republican property, gener- ally as part of the spoils of conquest. They gained nothing, however, by the change. Their new masters were no more considerate than the old, and the exactions of the republican bailiff fell in no whit behind those of the feudal lords.
A bailiwick was a snug berth for the man who could obtain the appointment by winning the sove- reign's favour. In this case, however, the sovereign was an aggregate of some thousands of peasants, all
^ Cherbuliez, Be la democratie en Suisse, Geneva, 1843, vol. i. p. 39.
The Evolution of Democracy 1 1
of them men leading hard and parsimonious Hves. The way to the hearts of such men was not to be found by mere flattery : a bribe of money, a good meal, or a flagon of wine were better means to the end, a fact which soon became apparent to any candidate. Already, as far back as the sixteenth century, the Landsgemeinde are found legislating against the abuse. At first such legislation was con- ceived in merely general terms ; then, as the candi- dates continued to be successful in evading the letter of the law, the statutes took a more detailed form.^ Such fits of repentance on the part of a sovereign people, followed by their relapse and by new projects of amendment, seem strange at first, and somewhat difiicult of explanation. It would almost seem as if these laws were due to the efforts of defeated candi- dates, who took this way of revenging themselves on their more fortunate rivals.^
^ [In 1666, 1667, and 1700 the Landsgemeinde of Schwyz fixed a scale of expenses for marriages, baptisms, fairs, and shooting matches, which varied according to the period at which these festivals took place — a higher maximum being allowed in ordinary times, and a lower one in the period just before the Landsgemeinde. This clearly shows that these joyful occasions were utilised for bribery. In Lower Unterwalden, in 1692, "giving, paying, or receiving food or drink " was forbidden during the whole year without distinction of person. — Eambert, p. 223.]
2 [Rambert, p. 325, says : " The Landsgemeinde have always retained something of the vivacity and impulsiveness of great crowds. It is a nervous government which has fits of exaltation and fits of depression. Glarus, where corruption was so rife, is now a model Landsgemeinde. M. Heer attributes the bribery to the state politics of the time, which were simply concerned with questions of personal interest. Something must be allowed for the spirit of emulation and competition which so quickly infects great crowds when brought together."]
1 2 The Referendum in Switzerland
Whatever the reason might be, nothing seems to have put an end to the electoral corruption. Fines, and the exaction of an oath from the successful can- didate to the effect that he had not made use of illicit tactics, seem to have been alike unsuccessful. At last the bribery attained the proportions of a public scandal. In 1581 it was said at the Lands- gemeinde of Glarus, that if the sale of votes were not put a stop to, it would " demoralise and disgrace the canton." ^ Perhaps if there had been any power superior to the Landsgemeinde, possessing the energy and the will to repress the evil, it might have been eradicated. But the Landsgemeinde was the sole sovereign. The very sinners themselves, with their accomplices, formed part of it. An unusual amount of virtue and will power, therefore, on their part would have been required to put an end to practices the immorality of which did not appear so flagrant to those concerned.
When it became clear that to eradicate the abuse was to attempt the impossible, efforts were made to regulate it and give it an appearance of legality. What had been, up till then, a vice odious to the law, became a duty imposed by the law. Under the new conditions the candidate was obliged to provide a dinner for the electors. In later times a sum of money was substituted, to be distributed in whole or in part among the voters. It goes without saying that in the long run, as far as the successful bailiff was concerned, it was his subjects who provided the funds.^
1 Blumer, ii. p. ii6.
- [At Glarus, the bailiffs for Thurgau, Baden, and the Rhine valley paid between six and seven hundred florins for the post, and bribed heavily besides.]
The Evolution of Democracy 1 3
Kadical as these measures appear, they were never- theless inadequate. Only one resource was therefore left, namely, to suppress the election itself which gave rise to such fraudulent dealing. This was accordingly done. As formerly in the Athenian democracy, so in the latter years of the old system in Switzerland they had recourse to the ballot.^ If the lot fell to a man who had not the leisure to devote to the administra- tion of a bailiwick, he put his office up for sale, and parted with it to the highest bidder.
These details may perhaps be resented by enthu- siastic admirers of the Landsgemeinde, but that is no good reason for suppressing them. The old democracies will appear in a less poetic but truer light, and truth is our great object.^
The rights of the members of the Landsgemeinde,
^ [In Glarus eight citizens were nominated for each post, and a child gave round eight balls wrapped in black, which, when opened, contained seven silver and one golden ball, and the man who had the golden ball was declared to be elected. Schwyz also adopted election by lot in 1692, but it had fallen into disuse by 1706, and it was decided in 17 18 that whoever raised the question again should be outlawed. But the law continued in force in Glarus till 1798, and in 1793 they even chose their landamman by lot. Choice by lot was given up when the cantons became part of the Confederation. One writer complains that the method of electing the officers is now very dull by comparison.]
2 The existing constitutions of these cantons still forbid the purchase of votes in general terms. [In Schwyz in 1830 — it ceased to have a Landsgemeinde in 1848 — we find that the people after the Landsgemeinde went to salute the magistrates, who gave them little " gratifications." This was no small tax, for there was always a considerable crowd, swelled by all the children of the district. The year 1824 is specially mentioned, for then the people had "cider in casks, and bread and cheese as much as they liked." One might criticise the ancient Landsgeraeinden on other points besides those of bribery. See Rambert, pp. 218-22.]
14 The Referendum in Switzerland
as forming part of a legislative assembly, were not confined merely to sanctioning laws and ratifying treaties. To begin with, each citizen had in theory the right of initiative, and could, therefore, himself bring any proposition before the Landsgemeinde. It was found necessary, however, at a later date, to restrict the unlimited exercise of this privilege. Certain precautionary measures were therefore in- troduced, and it became the custom, some weeks before the date of the Landsgemeinde, to send in the measures proposed to a council called the Land- rath, whose members were chosen by the people in the communal assemblies.^ It was the province of the Landrath to consider all proposals sent to it. Those which it approved, and to which it was ready to give its support, were submitted to the Lands- gemeinde before the others.
This preliminary examination undoubtedly had its merits. It acted as a sifting process by which the really useful and suitable measures were separated from the others, and thus recommended to the suffrages of the citizens. As a natural result, the Landrath attempted to claim a new power which
^ The Landrath may be considered as the executive and the Lands- gemeinde as the legislative power, though the sphere of each of these bodies was too loosely defined for this to be strictly accurate. The importance of the business affected the size of the assembly. De minorihus consilium de majoribus omnes. In course of time the Landsgemeinde came to deal with executive matters, and the Land- rath voted the laws ; but Blumer especially points out that the ratification of such legislation proceeded from the people. The electors were jealous of their rights, and tolerated no encroach- ments on the part of the authorities. (^ several occasions the Landsgemeinde expostulated with the Landrath on account of real or fancied misuse of power.
Tlie Evolution of Democracy 1 5
constituted a grave menace to the rights of the people. It tried to exclude from the deliberation of the Landsgemeinde all the motions to which it had not given its assent. Had this been effected, the popular initiative would have been reduced to the mere right of petition. The people protested, and would not recognise any such power. At Lower Unterwalden and at Appenzell the struggle was ex- citing and prolonged. Sometimes the people, some- times the council gained the upper hand.^
The way in which the popular initiative was re- gulated in the canton of Uri is worthy of special notice. Each proposition had to be supported by seven citizens belonging to different families before
^ Blumer, ii. pp. 132-38 ; Keller, Das Volksinitiativrecht nach den schweizerischen Kantonsverfassungen, Zurich, 1889, pp. 12-27.
[See alsoDunant, Legislation par le peuple enSuisse, pp. 16-23 ; Desch- wanden, Die Entwicklung der Landsgemeinde in Nidwalden als gesetz- gebende Gewalt, in Zeitschrift fiir dffentliches Recht, vol. vi. ; Zellweger, Geschichte des appenzellischen Volks, Trogen, 1830-40. The following particulars are taken from Deschwanden : — In Lower Unterwalden, in 1688, we find that no proposition could be submitted to the Lands- gemeinde by a citizen unless it had first been discussed by the Landrath. In 1700 it was declared that each citizen had the right to propose anything that was not contrary to the glory of God and the well-being of the country. The government then claimed the right of judging whether the propositions were or were not con- trary to the honour of God and the welfare of the country, and under this pretext they eliminated all that displeased them. The Landsgemeinde then abolished these saving clauses. In 17 13 a great fire consumed Stanz, and the Landrath attempted to persuade the people that God was angry because they were allowed to make propositions which might be contrary to His glory. The Assembly protested, and the Landrath retired, which prevented the Lands- gemeinde from deliberating. Then the people compromised and restricted the right of initiative to those propositions which con- tained nothing contrary to the glory of God, but they themselves were to be judges of the fact.]
. 1 6 The Referendum in Switzerland
it could be submitted to the vote of the people. This method of procedure was called the Siebengeschlecht- begehren — the demand of the seven families.^
The preliminary deliberations of the Landrath lessened the importance of the great popular dis- cussions in that it made them less essential ; but at the Landsgemeinde perfect freedom of speech was allowed. The landamman consulted the public officials and other dignitaries, as well as the people generally, on each question as it arose. A fine coupled with expulsion from the Assembly were the penalties for interrupting a speaker, but any one who considered himself injured by a speech might demand redress.^
The great difficulty was the maintenance of order on such an occasion — a veritable holiday for the hun-
^ Blumer, ii. p. 131.
[These seven electors dictated their motion to the Secretary of State at the beginning of the Landsgemeinde, and it was dis- cussed at the Nachgemeinde. It was not till 1823 that the propo- sition, signed by the seven electors, had to be sent in first of all to the Landrath.
In Glarus the authorities drew up in a memorial a list of mea- sures for discussion. So many interruptions occurred, however, in consequence of the unrestricted right of initiative, that in 1766 the citizens were allowed to unite their propositions in the memorial, which was sent to the communes three weeks beforehand for this purpose. The measures of the Council were discussed first.]
^ [In Schwyz, in the sixteenth century, we find that the inter- rupter had to ask pardon of God and the magistrate ; and at Stanz he had to kneel in the middle of the ring and say five pater and five ave. At the present day writers always remark on the freedom from interruption which the speakers enjoy. In Schwyz the injured party who sought redress could demand an explanation of the speaker, and then the Assembly decided if such explanation were sufiicient or if the complainant should be allowed to seek legal redress. 1
The Evolution of Democracy 17
dreds of legislators who attended. Men like these, habitually armed with swords, were only too apt to come to blows when a discussion became heated. As a preventive measure the sale of wine and spirits was forbidden, both directly before the meeting and during its continuance. At Schwyz no one was allowed to carry a stick, and if a disturbance oc- curred the combatants were imprisoned on the spot. At Glarus the disturber of the peace was deprived of his sword and of all political rights : was declared, in fact, to be ehr and gewehrlos until he obtained a pardon. It goes without saying that police regula- tions such as these could only be effectual if the culprits were few in number. When, as sometimes happened, the excitement spread through the whole mass, all attempts at suppressing the tumult were useless, and the debate had to come to an end.^
After the different opinions had been expressed, the landamman summed up the amendments and put them to the vote. The citizens voted by raising their right hands, and the landamman counted the numbers and declared the result from the tribune.
The sitting of several hours was not always long enough to exhaust the orders of the day. When night put an end to the meeting, still leaving several matters to be discussed, the legislators arranged for an after-meeting, a Nachgemeinde. At this supple- mentary meeting, which was held a week or fortnight later, attendance was not compulsory. It must have been less well attended than the ordinary Lands- gemeinde, because in the canton of Uri on two occa- sions, in 1705 and again in 1753, attempts were made
^ Blumer, ii. p. 109.
B
1 8 The Referendum in Switzerland
to attract people to the meeting by making small payments to those present.
The May meeting of the Landsgemeinde and its possible Nachgemeinde took place in the ordinary course of events, but it remains to be noticed that in case of need the authorities or a certain number of citizens had the right of calling an Extraordinary Landsgemeinde.
The Constitution of the Helvetic republic of the 1 2 th of April 1798 respected neither the antiquity of the Landsgemeinden nor the independence of the small republics of Central Switzerland. Their indig- nation was great indeed when they learned that a foreign power was going to force on them a new constitution. The French spoke to them of liberty, of equality, of the sovereignty of the people, and of political emancipation. What meaning had such language for these mountaineers, already sovereign legislators, and free as the eagle that soared over their own Alpine snow heights, ignorant of the mean- ing of feudal privileges, and emancipated for cen- turies from the rule of monarchs and aristocrats ? They perceived merely the emptiness of all these promises, and felt the hoUowness of the revolutionary phraseology. Their fathers had founded a genuine democracy ; the democracy the invader would estab- lish was only a theory on paper.
A touching letter addressed to the French Direc- torate on the 5 th April 1798, expresses their senti- ments on the matter. It is, unfortunately, too long to give in full. The following is an extract : —
" Nothing can in our eyes equal the misfortune of
The Evolution of Democracy 19
losing the Constitution which was founded by our ancestors, which is adapted to our customs and needs, and which has for centuries enabled us to reach the highest attainable point of comfort and happiness. Citizen directors, if you should have really come to the determination to change the form of our popular governments, allow us to address you on the subject with frankness and freedom. We would ask you if you have discovered anything in our constitutions which is opposed to your own prin- ciples. Could any other conceivable form of govern- ment put the sovereign power so exclusively in the hands of the people, or establish among all classes of citizens a more perfect equality ? Under what other constitution could each member of the state enjoy a greater amount of liberty ? We wear no other chains than the easy fetters of religion and morality, no other yoke than that of the laws which we have made for ourselves. In other countries, perhaps, the people have still something to wish for in these respects. But we, descendants of William Tell, whose deeds you laud to-day ; we, whose peaceful enjoyment of these constitutional privileges has never been in- terrupted up to the present time, and for the main- tenance of which we plead with a fervour inspired by the justice of our cause, — we have but one wish, and in that we are unanimous : it is to remain under those forms of government which the prudence and courage of our ancestors have bequeathed as a heritage ; and what government, citizen directors, could more accord with your own ?
"We who address you are inhabitants of those countries whose independence you have so often
20 The Referendum in Switzerland
promised to respect. We are ourselves the sove- reigns of our little states. We appoint and dismiss our magistrates at will. The several districts of our cantons elect the councils which are our representa- tives, the representatives of the people. These are, in short, the very foundations of our constitution. Are not your own identical ? "
The^c^ of Mediation of 1803 gave back a certain degree of their former independence to the cantons. Then the little peasant republics returned to their old traditional policy, and the people once again assembled every year to debate on public matters, to make their laws and appoint their magistrates.^
The Landsgemeinde meets to-day just as it did in the Middle Ages. The same ceremonial is still observed. There is the prayer in which all join before the proceedings, the procession, and the speech of the landamman, the voting by show of hands, and the oath of fidelity taken by the people to observe their laws and customs. Except for certain encroach- ments of the central government in the domain of cantonal sovereignty, the power of the Landsgemeinde has remained essentially the same as in the olden days. It still legislates and votes the taxes, approves the estimates and the budget, appoints the officials and the magistrates. In the constitutions of the cantons the Landsgemeinde is declared to be the
^ [Napoleon nevertheless introduced certain habits of order which were not without their influence on the Landsgemeinden held after his fall. Under the Act of Mediation the discussions at the Landsgemeinde had been restricted to the subjects which had been sent in to the Great Council and published one month beforehand. This is the practice now universally followed, with slight variations in the date fixed.]
The Evolution of Democracy 21
sovereign legislative power, and attendance at its meetings is enforced as a civic duty.i The citizens have still in principle the right of initiating laws, and of freely discussing, " under the free heaven of God," the propositions brought for their consideration.^
The demand of the seven families — Siebenge- schlechthegehren — that peculiar feature which has existed from time immemorial in the Constitution of Uri, did not disappear until 1888. Any elector since that date may bring forward a proposal in the Lands- gemeinde, provided it is in writing, is clearly ex- pressed, contains an epitome of the arguments in its favour, bears the signature of the proposer, and is
1 [Each Landsgemeinde canton has a " Landbuch," which is an official record of the Landsgemeinde. Some of these Landbiicher are very ancient, and date from the fifteenth century. They were the only thing in the nature of a written constitution which the cantons possessed ; they were merely a collection of laws, decrees, and traditional practice which were altered from time to time. The fact that the cantons are now obliged to have a written con- stitution which is guaranteed by an outside power, which they are bound to observe, and which they cannot alter without the same sanction, forms no slight limitation of their power. These cantons found the greatest difficulty in drawing up a written con- stitution, and it was not until after 1850 that all the Landsgemeinde cantons succeeded in drafting constitutions. The document drawn up by the government of Uri in 1820 is very characteristic :— " We, Landamman, Council, &c., hereby declare that we have never had a written constitution contained in one document, but our constitu- tion rests on the following principles, consecrated by the usages of centuries and by legal enactments, which, with the protection of the Almighty, we hope to transmit to our descendants." Then follows a meagre list of six articles.]
2 [It is interesting to compare the Town Meeting in the New England States with the Swiss Landsgemeinde. See Professor Bryce's description in the American Commonwealth, vol. i. p. 590, &c., 1893. For a detailed account of the power of each Lands- gemeinde, see Dunant, op. cit. pp. 14-23 ; also Signorel, Le Refc- renduin legislatif, pp. 120-24, 1 895.]
22 The Referendum in Switzerland
forwarded before the end of March to the Landrath, which makes a report on the subject at the Lands- gemeinde. The mover either makes a speech in support of his own bill, or gets somebody else to defend it for him.^ The other states have constitu- tional provisions of much the same character.
In the half canton of Lower Unterwalden proposals must be sent in to the Landrath before the ist of March. The official Gazette publishes them within ten days. Within three weeks of publication, any elector has the right of submitting counter-proposals and amendments to the Landrath. The Landrath examines these new motions, and can in its turn supply others. But no proposals may be modified at the Landsgemeinde. They are there put to the vote as originally drafted.^
The canton of Glarus is an exception, for its con- stitution states expressly that the Landsgemeinde has the right of accepting, modifying, or rejecting the propositions which are presented to it, as well as the power to send any measures back to the Triple Council for reconsideration or ratification.^
1 Verfassung des Kantons Uri, Arts. 26 and 28. [An amendment of the constitution cannot proceed from a single person. It must be supported by fifty signatures at least.]
2 Verfassung des Kantons Unterwalden nid deni Wald, Art. 41.
3 [In Glarus, according to the Constitution of 1887, citizens send propositions to the Landrath to be inscribed in the memorial which contains the orders of the day for the Landsgemeinde. These motions, if supported by ten votes in the Council, are incorporated with an explanatory clause one month before the Landsgemeinde assembles. The rejected motions are also included in the memo- rial, but without any recommendation. If the Landsgemeinde accepts one of these latter motions, the Landrath is bound to include it in the next memorial with an explanatory clause. A law cannot
The Evolution of Democracy 23
The stranger who witnesses a Landsgemeinde never forgets the experience, and is always profoundly im- pressed. The grandeur of such a scene has affected even such eminent contemporaries as Cherbuliez,
be amended until three years after its promulgation unless it is prejudicial to the country.
In Appenzell (Inner Rhodes) the Constitution of 1892 stipulates that the right of making propositions belongs to all citizens, but the motions must previously be sent in to the Great Council. If the Council will not undertake to present a particular motion, any citizen may do so, provided it contains nothing contrary to the federal or cantonal constitution. The regulations in Upper Unterwalden are the same.
In Appenzell (Outer Rhodes), where they only vote and do not discuss matters at the Landsgemeinde, the Great Council, or a group of electors equal in number to the Great Council, may pro- pose any law to the Landsgemeinde, but in the latter case the Council has to report on it first.
Thus at the present day everything passes, first of all, through the hands of the Council. They cannot, however, suppress or throw out motions. They can only comment adversely.
Mr. Irving Richman gives the following account of the popular initiative in Inner Rhodes : —
"It has long been a constitutional rule of the state that no measure can be presented at the Landsgemeinde unless it has been passed upon by the Great Council. An inference from this might be that the Landsgemeinde merely goes through the form of accepting and rejecting what the Great Council has accepted and rejected beforehand. And in matters of slight importance this is usually the practice. But that it is not the practice in matters of more than slight importance is shown by the following incident : To the year 1891 it had been the prerogative of the Great Council to choose the cantonal member of the Standerat or Senate. In the Landsgemeinde of that year a citizen brought forward a measure (previously passed upon adversely by the Great Council) to annul this prerogative and place the election of Senator in the hands of the Landsgemeinde. The vote was taken and the measure passed."
It would also seem that several measures proposed by the Council have been rejected by the Landsgemeinde, the people being more conservative than their councillors. See Pure Democracy and Pastoral Life in Inner Rhodes, J. Irving Richman, 1895.]
24 The Referendum in Switzerland
Dubs, and Welti, all of them confirmed opponents of the popular veto and the referendum.
"The people in a pure democracy," wrote Cher- buliez, "is a being morally complete in itself, a unique personality with an actual existence quite distinct from that of the individuals who compose it. The people in a representative democracy is only an abstract quantity without any corporate life, a mere numerical result whose component units feel and act for themselves as if there were no common tie between them." ^
" The Landsgemeinde," said M. Welti in his great speech against the referendum in the Federal Assembly of 1892, "has nothing in common with the referendum. It is a real and living thing, while the other is nothing but a dead form of democracy on paper. In the Landsgemeinde each man feels that he is also a citizen. In the Referendum the ballot-paper is his substitute." ^
" A Landsgemeinde," wrote Dubs, " held on a spring day, under God's free sky, with the very women and children taking part in it outside the circle, with the mountains as a background, those bulwarks of our freedom — this is the finest and most ideal personifi- cation of democracy. Anything and everything that might be offered in exchange would only seem a feeble reflection of this living union of the people." ^
1 Cherbuliez, ii. p. 134.
2 Protocol of the deliberations of the National Swiss Council concerning the revision of the Federal Constitution, 1871-72.
^ Dubs, Le droit public de la Confederation Suisse, Geneva, 1878, i. p. 210.
[M. Curti, in his article on the Eeferendum in Switzerland in the Revue Politique et Parlementaire for August 1897, P* 245, says
The Evolution of Democracy 25
The admiration of these men, though sincere, is by- no means bUnd. They reahse thoroughly that Lands- gemeinden are like rare plants. They can only live in special surroundings. Their admiration, moreover, is shared by nearly all their fellow-countrymen. The Swiss, taking them as a whole, have a weakness for the Landsgemeinden of their little cantons. They are historic curiosities, relics of the past, which the lofty mountains seem to have preserved from the adverse influences of feudalism and monarchy. No one imagines, however, that they could be trans- planted to a new soil.^ Nowhere else could we find the conditions universally regarded as essential to the proper working of direct legislation. Such countries must necessarily be small,^ and contain a compara-
that " the success of the Landsgemeinden depends on the favour of the heavens. They are magnificent to behold in fine weather, but if a shower comes the business is treated with rather undignified haste, while whole groups leave the meeting."]
^ Orelli, Das Staatsrecht der schweizerischen Eidgenossenschaft, p. 107 ; Ernst, Die Volksrechte irti Eidgenossischen Bunde in the Monat Rosen, 1883-84, p. 245 ; E. Naville, La ddmocratie representative, p. 2 ; Brunialti, La legge e la libertd, i. p. 259 ; Dubs, Die schweize- rische Demokratie in ihrer Fortentwicklung, pp. 30-32.
"^ [The longest dimensions of any one of the Landsgemeinde cantons does not exceed thirty miles. Appenzell (Inner Ehodes) has the configuration of a circle, the diameter of which is only ten miles across, and the seat of government is almost central. The population of these Landsgemeinde cantons when we first know anything of them cannot have exceeded 1500 men. The number of registered electors in October 1896 was 4495 in Uri, 3824 in Obwald, 2877 in Nidwald, 8323 in Glarus ; in Appenzell (Outer Rhodes) 12,214, and in Inner Ehodes 3005. In addition to a small territory and small population, the political unity of a canton must be beyond discussion. The natural effect of Landsgemeinde is to bring out geographical divisions, to which also correspond diver- gencies of interest and moral differences. After the Reformation there was a Protestant and a Catholic Landsgemeinde in Glarus, and a Protestant and a Catholic Landsgemeinde in Uri.]
26 The Referendum in Sivitzerland
tively limited number of inhabitants.^ Nor can there be found in the world at large such simplicity of life and social relations, which come upon an observer of these primitive democracies almost as a revelation.^
The inhabitants of these cantons are occupied with agricultural and pastoral pursuits. They do not, there- fore, come in contact with all the complicated and difficult problems which press so urgently for solution outside their frontiers. They rarely find it necessary to make new laws. Their relations with each other are regulated by custom, and this is all-sufficient. Their magistrates, who are upright and experienced men, have an exceptional position. They are universally
^ Both Zug and Schwyz have been obliged to give up their Landsgemeinde since 1848 owing to the growth of population.
[The outlying districts were jealous of Schwyz, and broke away and formed a canton of Schwyz-Exterior in 1832. There were struggles between the two, the Confederation intervened, and the matter was compromised by the Landsgemeinde being held at Roththurm in between the rival places. The parties, however, fought over the elections, and maligned the men to be elected, until at last the meeting became a free fight. Another Lands- gemeinde was held, at which five Federal Commissioners were present to keep order. The result was that the Landsgemeinde was given up, and Schwyz now has practically six Landsgemeinden. It is divided into six districts, and each has a Bezirksgemeinde, con- sisting of all the male citizens who have attained their majority. They assemble once a year, on the first Sunday in May, or they may be summoned at other times by the district council, or when one-fifth of the voters demand it. They elect the judges of the district and the other officials. They levy taxes, approve expendi- ture, and make binding agreements (Arts. 78-90, Cons, of Schwyz). There were after the Reformation no less than eleven Lands- gemeinden in Switzerland — two in Appenzell, two in Unterwalden two in Glarus (a Catholic and a Protestant one, which united in 1836), two in Uri, two in Schwyz, and one in Zug. There are now six.]
2 See a very interesting monograph by M. Bechaux, Une d6mo- cratie modde V Unterivald, Paris, 1888.
The Evolution of Democracy 27
respected, and, thanks to the authority with which they are endowed, they find no difficulty in directing the great assemblies of the people. Then, too, demo- cracy can never degenerate in these countries into demagogy. It can never become the oppression of the minority by the majority. The two principal causes which rouse the great mass of people to act as despots are differences in religion and social inequalities. These do not exist in the cantons with Landsge- meinden. The inhabitants are reUgious, and join in the same form of worship. They are neither very rich nor very poor, but possess a modest competence. The enmities of religions and of class and class do not find anything to thrive on, and the country is preserved from those unfortunate laws which in other countries make democracy sometimes so dangerous to true liberty.^
II. The ReferenduTYi in the Orisons and in Valais — The Rittinghausen System.
The Landsgemeinde was composed of all the citizens of the country, and all the local assemblies habitually held in the several communes were merged on this occasion in one great central gathering. This general assembly was due to the need of ascertaining public opinion on matters of common interest, and of having a concerted plan for the defence of the country. Such a meeting was only possible, however, where
^ [It will be remembered that the word Landsgemeinde simply means "National Commune," and that the principle of the mass meeting obtains in almost every local division of Switzerland. See Preface.]
28 The Referendum in Switzerland
the territory was small. Hence, when this condition failed, as in the Grisons and in Yalais, it was out of the question to collect all the people in one day at the same spot. Thus, while the more ancient cantons summoned their inhabitants together in one large assembly, the Grisons and Valais had to leave the business of debating on matters of general interest to their little communal assemblies. In the one case, legislation was the work of the entire nation solemnly convoked for the purpose in a Landsgemeinde ; in the other, it was none the less the work of the nation, but of the nation acting in sections, and subdivided into a number of local assemblies or Gemeinden. In the former, the limited area of the country made it possible to give a central organisation to popular legislation ; in the latter, the people had to be content with a strictly federal system.
The canton known as the Grisons was essentially a federation of separate communes which during the thirteenth century had succeeded in wresting their independence bit by bit from their feudal superiors, so that by the fourteenth and fifteenth centuries they were in a position to contract alliances between them- selves. They first formed three leagues — the Grey League, the League of the House of God, and the League of the Ten Jurisdictions. Finally, towards the end of the fifteenth century these three leagues coal- esced and formed the RhcBtian republic, and became an allied canton (zugewandte Ort) of the Swiss Con- federation.1
^ Hilty, Das Referendum im schweizerischen Staatsrccht, in the Archiv fiir offentliches Jtecht, Zweiter Band, pp. 171 and 176.
[See also Hiltj, Die Bundesverfassunr/cn der schweizerischen Eid-
The Evolution of Democracy 29
A Federal Assembly, consisting of delegates of the communes of the three leagues, sixty-three members in all, was held every summer. The meeting-place was alternately Ilanz in the Grey League, Coire in the League of the House of God, and Davos in the League of the Ten Jurisdictions.^ This Diet was a deliberative and consultative assembly. Its members came to it furnished with definite instructions, which it was the custom to read out at the beginning of the session. Their function was to discuss and consider questions before them, but any decision they might arrive at was only of a provisional nature, and was adopted with the saving clause ad referendum,^ that
genossenschaft, an historical treatise written by request of the Federal Council on the occasion of the six hundredth centenary of the First Perpetual Alliance of August i, 1891 ; Eevue de Droit International, xxiv., 1892, pp. 384-405, 476-89, Le Referendum et V Initiative en Suisse. Also Benoist, Une dimocratie historique in the Eevue des deux Mondes for August 1891 ; Vulliemin, Geschichte der schweizerisehen Eidgenossenschaft, i. p. 130. Also Rechtsquellen des Canton Grauhiinden, with an introduction by Wagner and Von Salis, in the Zeiischrift fur schweizerisches Recht, vol. iii. part 2, vol. iv. part I, and vol. v. part 3 ; " The Early History of the Eeferendum" in the Historical Review, vol. vi. p. 674, by W. A. A. Coolidge. The re- ferendum system is fully described by Simler in his De Helvetiorum RepuUica (1577), and by Sprecher in his Pallas Rhcetica (1617). Ganzoni, in Beitrdge zur Kenntniss des hundnerischen Referendwms, p. 15, points out that though the Ehoetian and Swiss historians describe the referendum very fully, yet there is very little trace of it in the Rhoetian law, merely a few enactments on the subjects. It was not until 1794 that the whole system was elaborately set forth on paper, reformed and regulated.]
1 Curti, Geschichte der schweizerisehen Volksgesetzgebung, Zweite Auflage, Zurich, 1885, p. 1 1. This remarkable work is the best history of the democratic ideas and institutions of Switzerland.
2 [The words occur apparently for the first time in Vulpius' narrative, Ilistoria Rhcetica. He died in 1706. See " Early History of the Referendum," Historical Review, vol. vi. p. 681.]
30 The Referendum in Switzerland
is, to be referred back to the constituent bodies, the communes, with whom the final adoption or rejection really rested.^ Thus the communes themselves were the real sovereigns of the country. In order to en- able these bodies to exercise their legislative power, a committee of the Diet prepared at the end of each session a report of the debates, together with a list of questions. In this list were set forth the different subjects upon which the communes were required to exercise their sovereign power of sanction or veto. It had to be printed, to be expressed in a clear manner without unusual words, and to be in the language spoken by the people to whom it was addressed.2 The communes received the papers from the hands of messengers, who had to obtain an acknowledgment of their safe delivery. This was called das Ausschreiben auf die Gemeinden.^
1 [Mr. Coolidge, in his article on "The Early History of the Eeferendum," Historical Review, vol. vi., p. 68i, says that there was also another assembly, a sort of standing committee, called the Beitag, which also had to refer matters back to the communes. He quotes the following passage from Simler, De Ilelvetiorum Re- publica : " Quoties causae publicse agendaj sunt quarum tamen causa non placet indici senatum totius Koetiag, turn hi tres prsecipue et praeterea aliquot alii ex singulis foederibus convocantur ; sed non habent plenam statuendi potestatem verum acta ad communitates fcederum separatim referuntur, et quod major horum pars statuerit, ratum est."]
^ According to a decree of 1794. Before that, by a decree of 1587, the questions had been drawn up exclusively in German. Three languages are spoken in the Grisons — German, Romance, and Italian. The members of the Great Council, as a rule, speak in German, but they can also use Italian or Romance. There are three Romance dialects— the Oberland, the Oberalp, and the Engadine. There are three or four newspapers in the Romance language.
^ Another mode of ascertaining the opinions of the communes
The Evolution of Democracy 3 1
When once a commune was duly informed of some question, the citizens collected together to agree upon their answer. 1 These communal assem- blies, which were distributed throughout the whole territory of the Grisons, each reproduced the chief features of the Landsgemeinde in miniature. There was this difference, however: the Landsgemeinden were really sovereign, whereas the answer of one commune was not decisive for the whole country unless it happened that this was the opinion of the majority of the communes.
As a rule, the questions submitted to the Referen- dum were not of a legislative nature. Decentralisa- tion was carried so far in the Grisons that each league dealt separately with all matters touching civil or criminal law, and in the League of the House of God these subjects were even within the competence of each commune.2
was known by the name of das Rciten und Fahren auf die Gemeinden, in which messengers were sent to the sovereign communes instead of circulars.
^ The electoral qualifications were not fixed by any general regu- lation for the whole country. Each commune settled the matter as it liked.
2 The questions which were the special province of each league were also referred back to the communes of the league, and decided by the vote so obtained. Finally, everything within the special sphere of the communes was decided by an appeal to the citizens in their local assemblies or gemeinden. (Ganzoni Beitrdge zur Kennt- niss des bilndnerischen Referendums, Zurich, pp. 12 and 45.)
[Herr Ganzoni remarks that "the Eeferendum has been the corner-stone of every constitution in Rhcetia up to the present day." It existed in three distinct strata. There was, first of all, the referendum from the Hochgerichte to the villages. The Hoch- gerichte, or jurisdictions, which are described above as communes, were primarily the units for judicial purposes. They were also the centres of political organisation. Below them were the villages
32 The Referendum in Switzerland
The referendum was therefore applied more espe- cially to administrative matters of general interest and to questions of foreign politics. The majority of the communes decided, for instance, such a matter as the creation or suppression of the judiciary ; they approved the Federal budget, and gave their consent to the public expenditure ; they passed police laws like those against vagabonds or those for the suppression of epidemics ; ^ they acted as sovereigns in all the rela-
possessing land in common, and these were known as Dorfschaften. In 1839 we get the system further elaborated, though this is pro- bably only a codification of customary usages. The envoys from each village met in the chief assembly of the Hochgericht. When they had agreed on any matter, the " little council," or executive authority of the Hochgericht, had to issue a circular to the various villages inquiring the opinion of each on matters specified therein. A dis- cussion then took place, the result was reported by the envoys, and the council announced which side was supported by the majority of villages. Secondly, there was a referendum from the Diet of each league to the component Hochgerichte of the league. The Diet of each league was composed of envoys from the Hochgerichte of the league, but in the Grey League, or Graue Bund (graue = grafen, counts), the feudal lords were also members of the Diet, which had therefore not such popular tendencies as the other leagues. The referendum was chiefly used as a means of ascertaining the views of the Hochgerichte, although when ascertained they were not necessarily final. In the League of the Ten Jurisdictions the referendum was much more important ; and in the League of the House of God, which had been consecrated by the Bishop of Chur, the referendum was of extreme importance, as everything was laid before the Hochgerichte. Thirdly, there was the referendum from the Diet of the Three Leagues to the Hochgerichte, described above. See Coolidge, "Early History of the Keferendum."]
^ [Hilty [Le Referendum et V Initiative en Suisse, in the Revue de Droit International, 1892, No. 4, p. 317) does not seem to agree with this. " The right of voting possessed by the citizens of these republics (in the Grisons and Valais), the necessary majority, and even the matters to be submitted to the vote, were not settled by any precise rules in either country. Questions of general police and financial matters were considered as outside the sphere of the
The Evolution of Democracy 33
tions of their state with other states ; they nominated and recalled the ambassadors ; they ratified treaties ; they declared war in the last resort, and concluded peace. With them rested the responsibility of plan- ning the defence of the country, for it was their pro- vince to sanction the construction of fortresses. In addition to these powers the communes were a sort of Court of Appeal, the resort of any person who con- sidered himself injured by the decision of any in- ferior authority.^ Towards the end of the month of January, a Congress, composed of the president and three deputies from each league, twelve in all, met at Coire, for the purpose of examining the answers of the communes, and of ascertaining the decision of the majority.^
A more delicate and difficult mission than that of their Congress can scarcely be conceived. The diffi- culty lay in the fact that the questions to be answered by the communal assemblies were not drawn up in such a manner that their replies could be only either Yes or No. A very great latitude was left these bodies in the exercise of their vote. The idea was that, since they had the power of wholly accepting or entirely rejecting the proposals of the Diet, it was possible to accept or reject conditionally. After all,
referendum, and a good deal could be included under these heads. For instance, in the Grisons a forest law, which was necessary but unpopular, was enforced for a long time under the title of ' General police regulation concerning forests.' "]
^ Ganzoni, pp. 27-69.
2 The majority which decided a question was not the majority of the electors of the whole country, but that of the communes. The communes were the political units, and each possessed one or more votes according to the ratio in which it contributed to the taxes. (Curti, p. 11.)
C
34 The Referendum in Switzerland
the communes were the actual sovereigns of the country, and hence it logically follows that they had the right to modify the projects of law submitted for their consideration, and were justified in making amendments. As a matter of fact they did make considerable use of these prerogatives. Sometimes they took the course of refusing to entertain the pro- positions submitted them, and consequently declined to give any answer except one to the effect that the time was not ripe for the solution of such matters. If the question were so thorny that silence on their part would have been inexcusable, they escaped re- sponsibility by sending an answer with a double meaning. Heaven only knows how the members of the Congress were able to evolve any sort of order out of this chaos, or how they discovered the leading idea among the many and varying answers. They must often have had to content themselves with evolving a majority out of a mere preponderance of opinion in one direction or another, or even some- times have been obliged to issue their questions afresh. We find them more than once giving vent to their extreme irritation, and upbraiding the communes either for sending an answer in terms much too general to be intelligible, or for not sending any answer at all. In 1 7 1 2 the members of the Congress almost threatened to strike. They decided, in fact, not to reassemble unless the majority, at least, of the communes provided them with answers. The com- munes, on the other hand, re-echoed the complaints and protests of the Congress. They declared that it had acted arbitrarily in estimating the majority, and that it credited them with intentions they never con-
The Evolution of Democracy 35
ceived. They ultimately demanded that a detailed report of the result of the examination of the votes should be communicated to them, in order that they might be able to check the proceedings of the Congress.^
Such were the general features of the referendum in the Grisons. It is interesting to compare this old institution with the system proposed at the time of the Revolution of 1848 by Rittinghausen, who, with Victor Considerant and Ledru Rollin, defended the practice of direct legislation by the people against Louis Blanc, Iilmile de Girardin, and Proudhon.^ This
1 Ganzoni, pp. 29-75.
2 [Rittinghausen went to Paris in 1848 in order to propagate an idea which he had propounded in his journal, the Westdeutsche Zeitung, and at the Parliament of Frankfort, In his works he violently attacks the representative system, and calls the legisla- tive assemblies "the incarnation of incapacity and evil intentions." He then goes on to consider what other form ought to replace the representative system, and arrives at the conclusion that direct legislation by the whole people "is the only government worthy of an enlightened nation, the only one by which the theory of the sovereignty of the people becomes a reality." His principal works are La legislation directe par le peuple ou la veritable democratic, Paris, 1850; La legislation directe et ses adversaires, Brussels, 1852; De V organisation de la legislation directe, Cologne, 1870; Refutation des arguments produits contre la legislation directe, Cologne, 1872 ; Die direkie Gesetzgebung durch das Volk (Zurich: Schw. Griitliverein, 1893). Some of Rittinghausen's work has been translated into English. See Three Letters on "Direct Legislation by the People ; or, True Democracy" (London: James Watson, 1851). "The Difficulty Solved ; or, The Government of the People by Themselves," by Victor Considerant (J. Watson, 1851), is a translation of one of the pamphlets of Rittinghausen's chief supporter.
The introduction of the referendum into, at least, one Trade Union in England is ascribed to the influence of these pamphlets. John Melson, a Liverpool printer and a Trades Unionist, urged the
36 The Referendum in Switzerland
system is all the more interesting as a Belgian politician has recently characterised it as the ideal towards which all democrats ought to strive.^ " The time has now come to explain," wrote Kittinghausen, " how direct legislation can be organised."
The people are to be divided into sections, each containing a thousand citizens.^
Each section is to assemble in a place suitable for the purpose — a school, town hall, or public building — and then will proceed to elect a president, who will direct the debates in the mode hereinafter men- tioned.
Every citizen shall be allowed to take part in the discussions.^
The voting will take place at the end of the dis- cussion.
After the examination of the result the president of the section forwards the number of the votes, for and against, to the mayor of the commune. The mayor makes a return of the votes in all the sections of the commune, and communicates the result to his official superior, who goes through the same process for his district. He then forwards the tale of votes,
adoption of direct legislation by his Union instead of legislating by what was known as a delegate meeting. He was unsuccessful at first, but, as a result of his efforts, the delegate meeting was super- seded in 1861 by the Keferendum {Typographical Circular fox March 1889). See " Industrial Democracy," by Sidney and Beatrice Webb, 1898, vol. i. p. 21, note.]
1 Lorand, Le Referendum, 1890, p. 23.
2 " It is not essential that there should be a thousand citizens in each section. This number will obviously have to vary according to the density and distribution of the population in the different countries." — Rittinghausen, La legislation directe, p. 39.
2 [" Consequently every mind is at the service of the country." — Rittinghausen, Three Letters, &c.. Letter II., p. 13.]
The Evolution of Democracy 37
for and against, to the head of the department, who in his turn transmits the result of the vote in his department to the minister, who collects the total results for the whole country. By this process it can be known accurately how many citizens have approved and how many would reject any particular measure. Its fate is decided by the will of the majority. The following are the general rules for the debates : The president shall direct the discussion. No bills shall be presented to the people. The only initiative pos- sessed by the ministry, elected by the whole people for a certain time, consists in determining that on such and such a day, in all the sections throughout the country, meetings will be held for the purpose of deliberating on such and such a subject. When a certain number of citizens demand a new law on any matter whatsoever, or a change in some law already in existence, the ministry must, within a certain pre- scribed interval, summon the people to act in their sovereign capacity as legislators; and it is only in matters of external policy that the ministry will be able to submit propositions, to be deliberated on by the people, which have not previously been indicated to them by the number of citizens fixed by law.^
The law will emanate organically out of the discus- sions themselves.2 In order to attain this result, the
^ " I am of opinion that every Power is a tyranny in the bud, and that democracy will never be able to neutralise it sufficiently unless by taking from it all initiative in legislation."— Rittinghausen,
p. 39.
^ " Laws prepared by commissions will happily become impossible under this system, for their admission would also necessitate the admission of every proposition involving alterations. Now, with the privilege of making amendments, it would be easy to see that
38 I'he Referendum in Switzerland
president will first of all bring the principle of the law up for debate. He will then lead up quite natu- rally to the subordinate questions in their turn.^ When all the results shall have reached the ministry, a drafting commission will draw up the text of a clear and simple law, which will have the advantage of not giving rise to several interpretations.^
Louis Blanc, without knowing anything of the working of the Rhsetian referendum, noticed immedi- ately among the defects of the Rittinghausen system the drawback which we criticised when consider- ing the history of the referendum in the Grisons.^
all direct legislation would be only a brilliant dream, a utopia." — Kittinghausen, p. 34.
" The right of amendment is a compromise, and the law does not tolerate compromises. — Id. p. 216,
[Every project of law produced by any commission whatever is of no value, inasmuch as it is not the work of the general mind, and is tainted by the self-interest of those who have prepared it."]
^ [Rittinghausen gives an example. He takes the subject of pre- scription in criminal matters. First of all the president would start the discussion on the question, " Shall there be prescription in criminal matters or not ? " Then he will pass to the question, •' Shall prescriptions be the same for felonies, misdemeanours, and police contraventions ? " Then, •' After what period shall there be prescription for felonies ? " The voter marks the figure he wishes to prevail upon the ticket. The president puts the same question relative to misdemeanours, and afterwards as to police contraven- tions.] It will perhaps be feared that the presidents of many of the sections will not know how to put the questions in the order required by direct legislation ; but have we not the press, which will make it its business to discuss all the matters before the time fixed for the debates, which will thrash out the subject in all its bearings, and, in a word, will guide those who have not the good sense requisite to put a few questions of principle ? But such cases will be rare." — Rittinghausen, Three Letters, &c., p. 14.
2 Rittinghausen, La Ugislation directe par Ic peuple et ses adversaires, Brussels, 1852, pp. 24-26.
^ [Rittinghausen himself foresees that three objections will be
The Evolution of Democracy 39
" Frankly speaking," said Louis Blanc, " nobody will have any confidence in the system. Moreover, M. Rittinghausen does not seem to realise that eight figures, and only eight, combined in every possible way, two and two, three and three, four and four, can form as many as 40,000 combinations. A law containing eight principal clauses could therefore give 10,000 assemblies for 10,000 different bills. How would he propose out of these 10,000 opinions, all differently expressed, to extract the will of the people, who are thus directly governing themselves ? And what is it that he proposes the ministry should add up ? ' When all the data are in the hands of the ministry,' says Rittinghausen, 'a commission shall draft the text of a clear and simple law.' The task before your commission is to frame a clear and simple law
brought against his scheme, and, as he considers, answers them satisfactorily.
1. That the people are too ignorant. He combats this by urging that in legislative assemblies real talent is swamped by the medio- crities, but in the popular reunions opportunity will be given for all lights to shine. There will, moreover, he says, be no tumult or dis- order in these popular assemblies ; for when the people deliberate, it is quieter and more dignified than the great legislative assemblies. Free masses, he says, "listen generally to every opinion, and I have often remarked that they do not scruple to sacrifice a favourite orator to the first-comer with better arguments." Personal animosity will give place to an enthusiasm for principles. Direct legislation will elevate and improve the press, whose columns will no longer be soiled by the efforts of parties to mutually annihilate each other.
2. That the people will not have time for law-making. The matters for legislation will not be numerous. At the end of three years, after deliberating twice a week in the sections, the people will hardly have anything to legislate about.
3. That direct legislation is not the ideal of democracy. Ritting- hausen admits this, but says it is the decisive step to be taken towards the brilliant future which humanity has before it. See Three Letters, &c., pp. 17-28.]
40 The Referendum in Switzerland
out of five, six, even ten thousand bills, and to do it, moreover, in such a way that it shall be the expression of the direct united will of five, six, or ten thousand sections, who will each have given a different reason for their vote. I defy any commission to do it. It is absurd even to suppose that this clear and simple law, when finally drafted, would be regarded by the various sections as the exact expression of their wishes, and as the result of the direct self-government of the people, when such a law is not the exact reproduction of their work. It is just as far-fetched to imagine that this com- mission could possibly compose, out of so many data, the text of a clear and precise law, without exercising a power a hundred times more irritating than that of a legislative assembly elected by universal suffrage. For it might happen, indeed it would almost always happen, that, from the very fact of the multiplicity and diversity of the data, the text of the clear and precise law would not harmonise exactly with any of the proposals drawn up by the majority of the sec- tions. They would then say to the drafting com- mission: You not only make a law quite different to what we desired, but you have done so in the face of our formally expressed wish to the contrary. You are arrogant usurpers." ^
Rittinghausen was deeply wounded by this biting criticism.2 Although he believed thoroughly in his
^ Louis Blanc, Plus de Girondins, quoted by Rittinghausen, pp. 140-42.
2 " You, Louis Blanc, the renowned writer, are the only one who needs an explanation of my system. The proletariat has always understood me without the slightest effort ; to them my scheme has always appeared clear, and devoid of all superfluous or incom-
The Evolution of Democracy 41
system, which he considered as his own invention,^ he was so much disturbed by the attack of Louis Blanc that, without seeming to be in the least aware of it, he threw over an essential part of the mechanism of his institution.
"Let the drafting commission," he wrote, "just try to follow that constitutional tradition which has shown itself to be representative, and the people will soon make up their minds. For, after all, a drafting commission is not indispensable. What is the GOOD of insisting on formulating the text of A LAW when the answers to the questions, once in the hands of the central authority, will serve the same purpose? If only the counting of the votes be honestly carried out by that central authority, the people can, if they please, dispense with the services of the drafting commission." ^
And after having written that, Rittinghausen enters the lists against the Anarchists. Has he, however, any right to attack them ? He upholds against
prehensible phrases with double meanings." — Rittinghausen, p.
143-
^ Rittinghausen wrote in answer to Proudhon: "The direct legislation of the Greeks, Romans, and Germans has never been organised as I propose. My method will infallibly be adopted, for it is the only organisation that is reasonable. I can claim it as my own invention, and it is neither more nor less than the art, hitherto unknown, of producing laws spontaneously and organically from the free deliberations of the whole people. I can claim to have made the science of legislation enter upon a new phase." — Id. p. 184.
2 Rittinghausen, p. 146. [For a scathing criticism of Ritting- hausen, see Idie ginercde de la R6volution au XIX SUcle, by Proudhon, in vol. ix. of his complete works. See also an article by M. Agathon de Potter, called Rittinghausen et son systeme, in the PhUosophie de I'Avenir, 19th year, No. 176.]
42 The Referendum in Switzerland
Proudhon " the necessity of a social interpretation of natural right." But where could one find in his mutilated system, without its drafting committee, any "social interpretation of right" stated, as he demands, in the text of a clear and simple law which will not admit of several interpretations? Ritting- hausen has condemned his own work. He has him- self proved that his invention belongs to the domain of dreams and Utopias.
It is therefore very gratifying to see M. Lorand bringing up the subject again to-day, and trying to put it in the place of honour. What a curious turn of fortune's wheel.^
A referendum much like that of the Grisons formed part of the constitution of Upper Valais. This canton was allied to the Confederation, and was divided into seven districts called Dixains. The Upper Valais was governed by a " Great Council," in which sat the Bishop of Sion, the president of the canton, and twenty-eight deputies nominated by the councils of the Dixains? All affairs of importance which occupied the attention of the Council were
^ [Direct legislation has also its advocates in France to-day. It is advocated in the Petite ripuhlique frangaise of the 2nd of Feb- ruary 1895, ^^^ i^ ^^ article in the Almanack de la question sociale of 1895. There is in Paris a league, founded in May 1895, called the " Socialist and revolutionary league for republican, socialistic, and direct revision by the people, deliberating and voting in its assemblies." On the nth November 1895 * memorial on the subject was presented to the Chamber of Deputies in Paris, signed by the leaders of the socialistic party. See Signorel, Le Referendum Ugislatif, pp. 147-53.]
[This meeting is first mentioned in 1339 under the name of conciliv/m generate. Later it was called the Landrath, and took
The Evolution of Democracy 43
communicated to the people, who discussed them in the communal assemblies. The results of their deli- berations, and of the popular votings, were transmitted to the president of the canton and to the Chancellor, who laid them before the Great Council, No law could come into force unless it had been accepted by the majority of the Dixains — that is to say, by four out of the seven.i
pJace regularly twice a year. The object was not to unite the districts to each other, but to control the action of the Bishop. See "Early History of the Keferendum," Coolidge, and Eechtsquellen des Cantons Wallis, Heusler, 1890 (Basle, Detloff).]
^ Hilty, op. cit. 172. [From instances given by Professor Heusler in his introduction to Rechtsquellen des Cantons Wallis, Zeitschrift fur schweizcrischcs Recht, vol. vii. and ix. (or published separately in 1890, Basle, Detloif), it would seem that some measures at least required the assent of every Dixain. These instances are quoted by Coolidge, "Early History of the Referendum," Historical Review ^ vol. vi. p. 678, who says that no measure was valid unless it obtained the whole of the votes. This system lasted in Valais down to 1802, when Napoleon then incorporated the canton with France, and the referendum disappeared. In 181 5 it was restored, and we get the first constitutional statement of this popular right : * ' The Diet exercises the legislative power. Laws are drafted by the Council of State, and cannot be enforced until they have been referred to the councils of the Dixains and sanctioned by the majo- rity of these councils. When there is a question of financial laws, of military capitulations, and of naturalisation, these are referred not only to the councils of the Dixains, but to those of the com- munes. The referendum is not applicable to the affairs which con- cern the Valais as a Swiss canton." In 1839 the referendum gave place to the veto (see p. 75), and it was no longer the majority of the Dixains, but the majority of the people, that decided the matter. The right of legislation by the people is now restricted to financial matters only.]
44 The Referendum in Switzerland
III. — Popular Institutions in the Canton of Berne.
Communal assemblies were also held in the canton of Berne from the fifteenth to the seventeenth cen- tury, for the purpose of deliberating and voting on questions of general interest. In external character they resemble the local gemeinden of the Orisons, but from the point of view of public law they approxi- mate to a very different type. The communes of the Grisons were independent of each other, and on an equality among themselves. Their assemblies each formed a part of a sovereign nation ; when united, they constituted the supreme power in the state. The com- munes of the canton of Berne, on the contrary, had not been able to preserve their freedom. They had fallen into a state of dependence on the town, and were governed by the patrician families of Berne. There was no question of their participating in any way whatever, either directly or indirectly, in the sove- reign functions of government. They neither elected the deputies nor gave their assent to the laws. Poli- tically they were non-existent. They were, in fact, possessions of the city of Berne, and had to provide her with the sinews of war — soldiers and money. If the inhabitants of the country sometimes met in con- sultation about affairs of state, it was not in virtue of any right to do so. It was the result of a manifesta- tion of good-will on the part of the government, who, when in a critical position, wished to assure them- selves of the support of the country, or even to shift
The Evolution of Democracy 45
the responsibility of an important decision on to the shoulders of the people.^
To put it shortly : The referendum in the Grisons was compulsory ; in the canton of Berne it was only optional, the option resting with the government. The communal assemblies in the Bernese territory were presided over by a member of the council of the town, or by the president of the commune. Attend- ance does not seem to have been compulsory. Only now and again, when some very important question came up for discussion, was the delegate of the council who presided over the gathering obliged to ask if everybody were present.^ The age of political majority was fixed at fourteen years. In 1503 chil- dren of twelve could take part in the voting. From 1535 to 1546 eighteen was the statutory age, and then it was reduced again to fourteen.^
The first popular meeting took place in 1449. The city of Berne applied to the people for authority to exact a special tax to meet the debts contracted during a war. From this year up to the end of the fifteenth century there were eight similar meetings. In the sixteenth century we hear of sixty-eight, and in the seventeenth only one, in the year 16 10. Most
1 [M. Hilty says that the object of these popular consultations was twofold. In the first place, to get at the voice of the people, which was by no means the voice of God in the eyes of the aristo- cratic council, but which was nevertheless instructive. In the second place, the object was so to direct public opinion that the government would not meet with an obstinate resistance on the part of the people should it wish to embark on a more or less uncertain enterprise. — Le Referendum et V Initiative en Suisse, Revue de droit international, 1892, p, 389.]
2 Von Sturler, Die Volksanfragen im alten Bern, Berne, 1869, p. 14. ^ Von StUrler, op. cit. pp. 14-15.
46 The Referendum in Switzerland
of the questions submitted to the people were of a military character — such as the undertaking of an expedition, the conclusion of peace, the making of treaties and alliances, the expediency of prohibiting the enlistment of citizens as mercenaries, the im- position of a war tax, and, at a later date, religious matters. At the time of the Keformation the people were called upon to decide in the communal assem- blies whether they would adopt or reject the new form of worship. Finally, very occasionally they discussed economic questions.^
The city of Berne, as sovereign, decided on the subject to be discussed, and fixed the time for its discussion, and also settled the form in which the appeal to the people should be made. These appeals were carried out in three different ways.^ Some- times the city of Berne summoned deputies from the country districts to a council. In this case, circulars were addressed to the communes stating the question that was pending. It requested the inhabitants to meet together to deliberate on the matter, and to entrust their resolutions to two deputies who were to appear on a certain day at Berne. On the appointed day each deputation announced to the council the view taken by its commune, and these opinions were embodied in the formal report. At a later date the government
^ [In January 1590 a very interesting consultation took place. The Bernese Council had signed a peace with the Duke of Savoy, by which treaty Berne kept Vaud and abandoned its ally Geneva to the Duke. The people of Berne would not accept the treaty, the peace was not adhered to, and Geneva was saved for the Con- federation.]
2 Von StUrler, op. cit. pp. i6-i8.
The Evolution of Democracy 47
communicated its own decision to tlie communes. It would be difficult to say, considering the optional nature of the referendum, how far the government took the will of the country into consideration. Yon Sttirler, the historian of the ancient Bernese referen- dum, has estimated that fifty consultations resulted in favourable replies to the previously expressed opinion of the government. The people gave a negative answer on fourteen questions only. In the remaining cases we are either ignorant of the result, or the people merely stated beforehand that they would be content to leave the matter in the hands of the government.
This method of getting to know the feeling in the country was frequently employed in early times, but Berne ceased to have recourse to it later on, and, instead, sent her own delegates from the city to the country districts.^ The presidents of the communes were ordered on such an occasion to call the in- habitants together. The delegate from Berne first of all greeted his audience in the name of the government, and stated the reason for the summons and the subject to be discussed. If he were asked to do so, he explained the matter more in detail; then, finally, he took the vote of the meeting by
^ [The reason for this is given by the chronicler Anselm, who says that the government in 1509 "preferred to send their own messengers rather than make their subjects quasi-councillors, for such a proceeding rarely happened without being harmful to those in authority ; for these country-folk were apt to encroach on the rights of the government, to discuss other matters, and to support and create intrigues and misunderstandings." As a matter of fact, we find that these peasants, when they were once consulted, pro- fited by the occasion to give utterance to many grievances. See Hilty, Revue de droit, &c,, 1892, p. 389.]
48 The Referendum in Switzerland
saying: "Will those who agree with our lords and masters of Berne remain in their places ? Will those who are of a contrary opinion go to the side?" The result of the vote was communicated to the government by the delegate, or by a letter from the president of the commune. When Berne did not think it advisable to send out members of her government as delegates, she issued a circular letter to the presidents of the communes, in which the object of the referendum was indicated. The communes were allowed a specified time in which to consider their answers. Each president then assembled the electors and directed the discussion on the matter. After the debates he drew up a report of the meet- ing, signed it and sealed it, and sent it to the Council at Berne.
Then these reports were sorted according to their contents into two groups, those for and those against the proj ect of the government. Each commune, what- ever its population, possessed one vote, and an absolute majority of the communes decided the question.
The practice of thus consulting the people fell into disuse in the seventeenth century. The Bernese patrician families, who had organised themselves into a powerful and exclusive oligarchy, would not, from that time onwards, allow the inhabitants of the coun- try districts to have any controlling voice. However, on two occasions the rural inhabitants succeeded in treating on equal terms with their lords of the city. In 1 5 1 3 the government was obliged to promise not to contract any alliance without the consent of the people, and in 1531 it undertook not to go to war unless the people had previously given their assent.
The Evolution of Democracy 49
These conventions, by which the referendum be- came a popular right, and, therefore, part of the constitution, continued to be observed for some time. Unfortunately, the peasants lacked cohesion and guid- ance. They had the advantage of numbers, and could, in times of excitement, force the government to yield to their demands. To maintain their position, how- ever, they required leaders endowed with energy and perseverance, they needed an understanding between themselves, and a certain amount of discipline ; but they had none of these. Their isolation and im- potence resulted in the triumph of the patrician families, who were the sole and uncontrolled legis- lators down to 1798.^
1 [i. In discussing the history of the referendum before 1798, one might also notice the traces we find in Zurich, in Geneva, in Lucerne, and also a curious form of military referendum known as the Kriegsgemeinde.
In Zurich we find the city council consulting the communes by a very similar method to that employed by Berne. Delegates were sent to the communes to explain the matter, and brought back the opinions of the people in each locality. They only seem to have been consulted on matters of foreign politics or administrative affairs of great importance, and the answers sent back were long, and contained a full account of their reasons for voting as they did. They voted on such questions as the alliance with France, on religious questions arising out of the Eeformation, and on foreign enlistments. The first official mention we get of the referendum in Zurich is in the Waldmannischer Spruchbrief of 1489, and in the Kappeler Brief oi 1531, which are almost our only authorities.
This letter contains a promise on the part of the government not to commence any war against the wish of the country, and to ascertain the views of the good people of the country upon all important affairs. The referendum disappeared in the seven- teenth century, and those who attempted to revive it were pun- ished as traitors. Bluntschli attributes its disappearance to the exhaustion after the struggles of the Eeformation, combined with unlucky foreign wars and the visitations of the plague, when the
D
50 The Referendum in Switzerland
§ After 1798.
I. Public Law in the Federation and in the Cantons from 1798 to 1830.
Under the old system Switzerland was a confedera- tion of states, having no federal constitution properly speaking, nor any central organised authority. The confederate cantons were independent states, sove-
bare necessity of existence dwarfed all political aspirations of a popular nature. A very amusing extract is given by M. Dunant in Legislation far le peuple en Suisse, p. 34, which shows, as he says, that democratic notions were not very advanced in Zurich at that time.
2. The history of popular rights at Geneva is interesting because of their connection with the writings of Rousseau. Geneva did not, however, become part of the Swiss Confederation until 181 5. We find the government in the fifteenth century in the hands of a council of fifty, which was afterwards increased to sixty, and then to two hundred. These councils took over all the rights which had belonged up to that time to the general council of all the citizens; but in order that the laws and decrees passed by them should come into force, they had to be approved by the assembly of the citizens. The aristocratic government established under the influence of Calvin reduced the powers of the popular assembly. They no longer had the right of deliberating on the laws and on the consti- tution ; they had only the right of voting, not of discussing. In the eighteenth century (1707) a democratic reaction took place, and under the popular pressure certain reforms were granted. The elections were to take place by secret ballot, and no new law could come into force without having been approved by the assembly of the citizens, which was to meet every five years.
Further disturbances took place, however, and France, Berne, and Zurich intervened in 1738, and a new constitution was drawn up. Under this constitution the assembly of citizens had full rights of legislating, but the right of initiating laws was reserved to the authorities. All citizens had, however, the right of petition. At the time of the French Revolution, 1794, the assembly of citizens declared that they alone had the right of approving, rejecting, modifying, interpreting, or abrogating laws or edicts ; and by a revision of the constitution in 1796, the right of initiative also was given to the
The Evolution of Democracy 51
reign within the limits of their respective frontiers. They established, according to their inclinations, in the one place a democratic government,^ in another an exclusive aristocracy ,2 and in others a federal republic.^
A common danger, and the need of combining their separate forces against powerful enemies, had given birth to the Swiss Confederation. This alliance was strengthened by the desire to settle by arbitration the disputes which arose between the states. The bond was still further cemented by common financial interests in the administration of the domains or
assembly, or to 700 citizens in the case of an ordinary law, of 1000 in the case of an amendment of the constitution. When Geneva was incorporated with the French republic, these rights were cur- tailed, and it was not until 1830 that the people regained their position. See Fazy, Les Constitutions de la Ripuhlique de Geneve, 1870.
3. A system of appeal to the people by the authorities was in operation in Lucerne in 15 13, but it only lasted until 1525.
4. We find in the military history of Switzerland a sort of military referendum. In the case of the more important campaigns the districts used to send certain councillors with their captains, so that a parliament could be practically held on the field. This par- liament often concerned itself