The Governments of Europe Part 37

*475. The Optional Referendum: Laws and Resolutions.*--After a law which has been enacted by the Federal a.s.sembly has been published it enters regularly upon a probationary period of ninety days during which, under stipulated conditions, it may be referred directly to the people for ratification or rejection. The only exceptions are afforded by those measures which, by declaration of the councils, are of a private rather than a general character, and those which are "urgent." Such acts take effect at once. But all others are suspended until there shall have been adequate opportunity for the carrying through of a referendum. At any time within the ninety-day period a referendum may be demanded, either by the people directly or by the cantonal governments. Pet.i.tions signed by as many as 30,000 voters, or adopted by the legislatures of as many as eight cantons, render it obligatory upon the Federal Council to arrange for the submission of a measure to a referendum within four weeks after the announcement of the demand has been made. The method of the referendum is carefully prescribed by federal legislation. Every citizen in possession of unimpaired civil rights is ent.i.tled to vote, and the voting takes place under the supervision of the authorities of the commune and of the canton. If in a majority of the cantons a preponderance of votes is cast in favor of the measure in hand, the Federal Council proclaims the fact and the measure goes at once into operation. An adverse majority, on the other hand, renders the measure null. In the event that no referendum is demanded, the measure, of course, goes automatically into effect at the expiration of the ninety-day period. Since its introduction (p. 431) into the federal const.i.tution the principle of the legislative referendum has been brought to bear upon a not inconsiderable number of legislative projects. The proportion, indeed, of laws falling within the range of the system which have been subjected to the popular vote, while varying widely from time to time, has been not far from ten per cent; and of the measures actually voted upon several of importance have been rejected. In all instances the demand has arisen directly from citizen pet.i.tioners, not from the cantonal governments.[633]

[Footnote 633: On the operation of the optional referendum see Lowell, Governments and Parties, II., 252-261. "From 1874 till 1908 the Federal a.s.sembly pa.s.sed 261 bills and resolutions which could const.i.tutionally be subjected to the referendum. Thirty of these 261 were actually voted on by the people, who ratified eleven and rejected nineteen of them. The effect of the federal optional legislative referendum was, then, to hold up a little more than seven per cent of the statutory output of the Federal a.s.sembly." W. E.

Rappard, in _American Political Science Review_, Aug., 1912, 357. On the most recent exercise of the federal referendum (the adoption, February 4, 1912, of a national Accident and Sickness Insurance bill) see M. Turmann, Le referendum suisse du 4 fevrier--la loi federale sur l'a.s.surance-maladie et l'a.s.surance accident, in _Le Correspondant_, Feb.

10, 1912. This particular referendum was called for by 75,000 voters. The measure submitted was approved by a vote of 287,566 to 241,416, on a poll of 63.04 per cent of the registered electorate.]

*476. The Obligatory Referendum: Const.i.tutional Amendments.*--In its application to laws and resolutions the referendum is optional; in application to const.i.tutional amendments it is obligatory. Revision of the Swiss const.i.tution may be accomplished at any time, in whole or in part, and in a variety of modes. In the event that the legislative councils are able to agree upon a scheme of revision they vote the adoption of the proposed amendment precisely as if it were an ordinary statute, and it is thereupon submitted to the people for acceptance or rejection. If, however, the two houses disagree upon the question of a total revision, or if as many as 50,000 voters make demand for a total revision, there must be put to the people the preliminary question as to whether there shall be a revision at all. If the will of the majority is affirmative, new legislative councils must be elected, and to them falls the obligation of executing the popular mandate.

When the question is one of but partial revision the procedure is somewhat different. Partial revision may be inst.i.tuted either by the councils or by pet.i.tion of 50,000 voters. When a popular pet.i.tion is presented there are four possible courses of action: (1) if the project is presented in general terms and the councils are in agreement upon it, they reduce the proposal to specific form and submit it to the people; (2) if the councils are not in agreement (p. 432) upon the project they put to the people the preliminary question of whether an amendment of the general type proposed is desirable, and if the vote is affirmative they proceed with the revision; (3) if the pet.i.tion is presented in a form that is specific and final and the councils are in agreement upon it, the project is submitted forthwith to the people; and (4) if the councils are not in agreement upon a specific project so advanced, they may prepare a project of their own, or recommend the rejection of the proposed amendment, and they may submit their counter-project or their recommendation at the same time that the initiative pet.i.tion is presented to the people.[634] In no case may an amendment be put into effect until it has received the a.s.sent of a majority of those voting thereon in a majority of the cantons. Of seventeen const.i.tutional amendments submitted by the Federal a.s.sembly between 1874 and 1908 twelve were ratified and five were rejected.

[Footnote 634: Arts. 118-123. Dodd, Modern Const.i.tutions, II., 287-289.]

*477. The Popular Initiative.*--The right of popular initiative in the revision of the const.i.tution was established by an amendment of July 5, 1891, through the united efforts of all the anti-Radical parties and groups. The purpose underlying the amendment was to break the monopoly long enjoyed by the Radicals by placing within the hands of any fifty thousand citizens the power to compel the federal government to take under consideration proposed modifications of the const.i.tution, to prepare projects relating to them, and to submit these projects to the ultimate decision of the people. When the system was established many persons seriously feared that the way had been thrown open for frequent, needless, and revolutionary change, by which the stability of the state would be impaired. Such apprehension, however, has been proved groundless. During a score of years only nine popularly-initiated amendments have been voted upon, and only three have been incorporated in the fundamental law. One of the three, adopted in 1893, prohibited the Jewish method of slaughtering animals, and was purely a product of the antisemitic movement. The other two were adopted in 1908. One authorized for the first time legislation by the federal authorities upon subjects relating to the trades and professions; the other prohibited the manufacture and sale of absinthe. A number of other more or less sweeping amendments, it is true, have been proposed, but all alike have failed of adoption. Thus, in 1894, perished a socialistic scheme whereby the state was to obligate itself to provide employment for every able-bodied man, and in the same year, a project to pay over to the cantons a bonus of two francs per capita from the rapidly increasing returns of the (p. 433) customs duties.[635] Similarly, in 1900, failed two interesting projected reforms relating to the federal electoral system. One of these provided for the introduction, in the various cantons, of the principle of proportional representation in the election of members of the National Council. The other provided for the election of the members of the Federal Council, not, as at present, by the General a.s.sembly, but by direct popular vote, the whole ma.s.s of electors voting, not by cantons, but as one national const.i.tuency. In June, 1900, both of these electoral proposals were rejected by the legislative chambers, and in the ensuing November the people ratified the rejection. In 1903, there was defeated in the same way a proposal to base representation in the National Council, not upon the total population of the country, but upon the Swiss population alone. In 1909-10 the proportional representation project was revived, but with a negative result.[636]

[Footnote 635: C. Borgeaud, Le plebiscite du 4 novembre 1894, in _Revue du Droit Public_, Nov.-Dec., 1894. The adverse votes were decisive, i.e., 308,289 to 75,880 and 347,401 to 145,362 respectively.]

[Footnote 636: The introduction of proportional representation in Switzerland is advocated especially by the Socialists and the Clericals, to whom princ.i.p.ally would accrue the benefits of the system. The Liberals are favorable to the principle, though they prefer to postpone the issue. The Radicals are solidly opposed. At the referendum of 1900 the project was rejected by 11-1/2 to 10-1/2 cantons, and by a popular majority of 75,000; at that of October 23, 1910, it was approved by 12 to 10 cantons, but was rejected popularly by a majority of less than 25,000 (265,194 negative, 240,305 affirmative). Rather curiously, the defeat arose largely from the defection of the Catholic canton of Freiburg, which in 1900 was favorable by a vote of 13,000 to 3,800.

The canton's vote in 1910 was for rejection, by 11,200 to 3,900. By those best acquainted with the situation this astonishing reversal is explained by the influence which is exercised in the canton to-day by M. Python, a dictator who opposes any innovation whereby his own controlling position would be menaced. Not unnaturally, the friends of the project (and in 1910 all parties save the Radicals gave it their support) regard the outcome in 1910 as a certain forecast of eventual victory.

In nine of the cantonal governments, beginning with that of Ticino in 1891, the principle has been already put in operation. In truth, the defeat of 1910 was followed promptly by a triumph in the important canton of St. Gall, where the proportional system was adopted for the first time, February 5, 1911, for elections of the cantonal council. See E. Secretan, Suisse, in _Revue Politique et Parlementaire_, Feb., 1911; G. Daneo, La rappresentanza proporzionale nella Svizzera, in _Nuova Antologia_, Sept. 16, 1910.]

Among reforms that have been much discussed in recent years has been the extension of the initiative and of the obligatory referendum to all federal legislation. Both apply as yet only to const.i.tutional amendments. In 1906 the Federal Council went so far as to submit to the legislative councils a proposal intended to meet the first of these ends. The purport of the proposal was that fifty thousand voters, or eight cantons, should have the right at any time to (p. 434) demand the pa.s.sage, modification, or repeal of any sort of federal law or federal decree. In December, 1906, the project was debated in the National Council; after which it was referred to the Federal Council for further consideration. The proposal is still pending, but its eventual adoption is probable.[637]

[Footnote 637: Dodd, Modern Const.i.tutions, II., 280-281. For references on the initiative and the referendum see p. 420. A very satisfactory appraisal of the operation of these principles in Switzerland may be found in Lloyd, A Sovereign People, chaps. 14-15. See also W. E. Rappard, The Initiative and the Referendum in Switzerland, in _American Political Science Review_, Aug., 1912.]

IV. POLITICAL PARTIES

*478. Centralism vs. Federalism.*--Until the middle of the nineteenth century the most fundamental of political questions in modern Switzerland was that of centralization, and the most enduring of political cleavages among the people was that which marked off the "centralists" from the "federalists." There was a time when the annihilation of the cantons and the establishment of a thoroughly consolidated state was not only openly advocated but confidently predicted. With the establishment, however, of the reasonable compromise embodied in the const.i.tution of 1848 the issue of centralization dropped pretty much into the background. There continued to be, and still are, "centralizers;" but the term has come long since to denote merely men who, with due regard for the susceptibilities of the cantons, direct their influence habitually to the strengthening of the central agencies of government.

The const.i.tution of 1848 was the work of a combination of centralist elements which acquired the general designation of Radicals. Opposed to the Radicals were the federalist Moderates. Between 1848 and 1874 controlling influence was maintained steadily by the Radicals, although during the decade 1850-1860 there was a fusion of parties in consequence of which there existed through many years an extremely intricate political situation. Gradually there emerged a three-fold party grouping, which has survived uninterruptedly from the era of the const.i.tutional revision of 1874 until our own day. The three parties, as aligned now through more than a generation in the National Council, are: (1) the Right, or Clericals; (2) the Left, or Radicals; and (3) the Centre, or Liberals. To these, in very recent times, must be added a small but growing group of the Extreme Left, comprising ultra-democrats and socialists.

*479. The Parties of To-day.*--The basis of segregation of the Right is primarily religious. The party is thoroughly clerical, and it has for its fundamental object the defense of the Catholic church and the (p. 435) interests of the Catholic population. In the Catholic cantons it occupies the field almost alone, and everywhere it is the most compact and zealous of the parties, although even it is not without a certain amount of division of opinion and of policy. The Left, or Radical party, has always represented a combination of widely varied shades of radicalism and democracy. Its greatest strength lies in the predominantly Protestant cantons, and it is distinctly anti-clerical.

Large portions of the party have ceased long since to be really radical, although on one side there is an imperceptible shading off into the ranks of the advanced democrats and socialists. Through many years the party has been lacking notoriously in cohesion. Between the Conservative Right and the Radical Left stands the Centre, or the Liberal group, lacking most notably of all in unity, but preserving the traditional Swiss principles of personal freedom in defiance of the tendency of the state in the direction of paternalism. The Liberals are not strong numerically, but they comprise men of wealth and influence (largely conservative Protestants), and in the shaping of economic policies, in which they are interested princ.i.p.ally, they sometimes exercise a powerful influence. During the years immediately following the const.i.tutional revision of 1874 no one of these three parties possessed in the Federal a.s.sembly a clear majority, with the consequence that the Centre was able to maintain a balance between the other two. Gradually, however, the Radicals regained their former ascendancy, and in subsequent years their preponderance, in especially the lower chamber, has tended steadily to be increased.

*480. Party Stability and Strength.*--Concerning the political parties of Switzerland two or three things are worthy of special observation.

The first is the remarkable stability which these parties, despite their obvious lack of cohesion, exhibit from the point of view both of party ident.i.ty and of party strength. Except the Socialists, who have ceased to vote and act with the Radicals, there has sprung into existence not one new political party since 1874. Numerous and varied as have been the political issues of these four decades, no one of them has given rise to a new party grouping. And, save for the gradual augmentation of Radical strength to which allusion has been made, there has been in this period no noteworthy change in the relative strength of the party groups. Sudden fluctuations, such as in other countries are common, are in Switzerland quite unknown. The reasons are varied and not wholly clear, but among them seem to be the brevity of national legislative sessions, the lack of federal patronage whereby party zeal may be whetted, the indirect method of electing the Federal Council, and the essentially non-partisan character of the (p. 436) referendum.[638] Party strength in the National Council following the election of 1878 was: Clericals, 35; Liberals, 31; Radicals, 69. After the election of 1881 it was: Clericals, 36; Liberals, 26; and Radicals, 83. In these proportions the six triennial elections between 1884 and 1902 produced no important change, although in 1890 the Socialists broke somewhat into the balance by winning six seats. After the census of 1900 the number of members of the Council was raised from 147 to 167, and the results of the election of 1902 were as follows: Clericals, 35; Liberals, 25; Radicals, 97; Socialists, 9; and Independents, 1. In 1905 the Radicals, who hitherto had co-operated with the Socialists in many const.i.tuencies, broke with them upon the question of military policy, with the result that the Socialist contingent in the Council was cut to two. In 1908 and 1911 the Socialists made, however, some recovery; so that, on the whole, the party situation in the Council remains to-day very nearly what it was ten years ago. By popular suffrage the Radicals are continued uninterruptedly in control, although the people do not hesitate again and again to reject measures framed by Radical administrators and law-makers and submitted to the vote of the nation.

[Footnote 638: Upon this subject, especially the effects of the referendum upon political parties, see Lowell, Governments and Parties, II., 314-332.]

*481. The Inactivity of Parties.*--A second important fact respecting the parties of Switzerland is their all but total lack of organization and machinery. Parties are little more than groups of people who hold similar views upon public questions. Of office-seekers there are few, and of professional politicians fewer still. Elections are not infrequently uncontested, and only at rare intervals do they serve to awaken any considerable public enthusiasm. There are no campaign managers and funds, no platforms, no national committees, no elaborate systems of caucuses or conventions. Candidates for seats in the National Council are nominated by political gatherings in the several districts, but the proceedings are frequently of an all but purely non-partisan character. Political congresses are held occasionally, and a few political a.s.sociations exist, but their activities are limited and comparatively unimportant. So far as there is party vigor at all, it is expended princ.i.p.ally upon local issues and contests within the cantons.

Finally, it must be observed that the Swiss government is not a government by party at all. The Federal Council regularly includes members of more than one party, and there is no attempt to preserve in the body a h.o.m.ogeneous partisan character. Even in the legislative councils considerations of party are but incidental. Upon by no means all public issues are party lines drawn, and where they are drawn (p. 437) there is seldom that compactness and discipline of party to which legislative a.s.semblies in other nations are accustomed. An evidence of the secondary importance of party demarcation is afforded by the fact that, instead of being arranged in groups according to party affiliations, the members of the National Council are so placed, as a rule, that all of the deputies of a canton occupy contiguous seats.

The Federal Council, being elected by the Federal a.s.sembly, is practically certain to reflect the preponderating political complexion of that body. But, in the entire absence of the parliamentary system, there is no essential reason why politically the executive and legislative organs should be in accord.[639]

[Footnote 639: On Swiss political parties see Lowell, Governments and Parties, II., Chap. 13; Adams and Cunningham, The Swiss Confederation, Chap. 7.]

V. THE JUDICIARY

*482. The Federal Court: Civil Jurisdiction.*--In respect to organization, the Swiss federal judiciary is very simple; in respect to functions, it is extremely complex. It comprises but a single tribunal, the Bundesgericht, or Federal Court. The court, created originally in 1848, consists to-day of sixteen judges and nine alternates, all chosen by the Federal a.s.sembly for a term of six years. Any citizen eligible to the National Council may be elected to the Federal Court, but it is inc.u.mbent upon the a.s.sembly to take care that all of the three officially recognized languages--German, French, and Italian--are represented. The president and vice-president of the court are designated by the a.s.sembly, for a two years' term, but the court is authorized to organize its own secretariat and to appoint the officials thereof. Judges are forbidden to sit in either house of the federal legislature, to occupy any other office, or to engage in any alien pursuit or profession. Their yearly salary is 12,000 francs. The seat of the Court is Lausanne, in the French province of Vaud.

The jurisdiction of the Federal Court extends not only to ordinary civil and criminal cases but also to cases arising under public law.

The competence of the tribunal in civil cases is very considerable. It extends to all suits between the Confederation and the cantons; between the Confederation and corporations or individuals, when such corporations or individuals appear as plaintiffs, and when the amount involved exceeds 3,000 francs; between cantons; and between cantons and corporations or individuals, upon request of the parties, and when the amount involved exceeds 3,000 francs. The const.i.tution authorizes the Confederation to enlarge, by legislation, the competence of (p. 438) the Court,[640] and from time to time a variety of specific fields of civil jurisdiction have been opened to it, such as those of transportation and bankruptcy. In addition to original jurisdiction in all matters that have been named, the Court is required by the const.i.tution to exercise appellate jurisdiction in cases carried on appeal, by mutual consent of the parties, from the cantonal courts.

For the adjudication of civil cases the Court divides itself into two chambers of seven members each, presided over respectively by the president and vice-president.

[Footnote 640: Art. 114. Dodd, Modern Const.i.tutions, II., 287.]

*483. Criminal and Public Law Jurisdiction.*--The tribunal's criminal jurisdiction is less extensive. It covers, in the main, cases of high treason against the Confederation, crimes and misdemeanors against the law of nations, political crimes and misdemeanors of such seriousness as to occasion armed federal intervention, and charges against officers appointed by a federal authority, when such authority makes application to the Federal Court. In cases falling within any one of these categories the Court is required to employ a jury to decide questions of fact. With the consent of the Federal a.s.sembly, criminal cases of other kinds may be referred to the Federal Court by the cantonal governments. For the trial of criminal cases the Court is divided each year into four chambers, each of three members, save the fourth and highest, the Ka.s.sationshof, or Court of Appeals, which has five. The Confederation is divided into three a.s.sizenbezirke, or a.s.size districts, and from time to time one of the criminal chambers sits in each.

Within the domain of public law the Court is given cognizance of conflicts of jurisdiction between federal and cantonal authorities, conflicts between cantons when arising out of questions of public law, complaints of violation of the const.i.tutional rights of citizens, and complaints of individuals by reason of the violation of concordates or treaties. In actual operation, the range of powers which would appear thus to be conferred is much restricted by a clause which declares that "conflicts of administrative jurisdiction are reserved, and are to be settled in a manner prescribed by federal legislation."[641]

Legislation in pursuance of this clause has withdrawn from the jurisdiction of the Court a long list of possible subjects of litigation. Like European courts generally, the Swiss Federal Court possesses no power to determine the const.i.tutionality of law, federal or cantonal. On the contrary, it is obligated to apply all law, by whatever proper authority enacted.[642]

[Footnote 641: Art. 112. Ibid., II., 286.]

[Footnote 642: On the Swiss federal judiciary see Vincent, Government in Switzerland, Chap. 15; Adams and Cunningham, The Swiss Confederation, Chap. 5.]

*484. The Civil Code.*--In 1898 the nation, through the means of (p. 439) a referendum, adopted the principle of the unification of all cantonal legal systems, civil and criminal, in a set of federal codes. Through more than a decade the task has been in progress, drafts being prepared by experts and submitted from time to time for criticism to special commissions and to public opinion. Early in 1908 the a.s.sembly adopted an elaborate Civil Code which in this way had been worked out, and January 1, 1912, this monumental body of law was put in operation.

By it many long established practices within the individual cantons were abolished or modified; but the humane and progressive character of the Code won for it such a measure of public approval that there was not even demand that the instrument be submitted to a referendum.

PART VI--AUSTRIA-HUNGARY (p. 441)

CHAPTER XXIV

AUSTRIA-HUNGARY PRIOR TO THE AUSGLEICH

*485. The Dual Monarchy.*--The dual monarchy Austria-Hungary, comprising a sixteenth of the area, and containing an eighth of the population, of all Europe, is an anomaly among nations. It consists, strictly, of two sovereign states, each of which has a governmental system all but complete within itself. One of these is known officially as "The Kingdoms and Lands represented in the Reichsrath," but more familiarly as Cisleithania, or the Empire of Austria. The other, officially designated as "The Lands of St. Stephen's Crown," is commonly called Transleithania, or the Kingdom of Hungary. By certain historical and political ties the two are bound together under the official name of the osterreichisch-ungarische Monarchie, or Austro-Hungarian Monarchy.[643] In the one the common sovereign is Emperor; in the other, Apostolic King.

[Footnote 643: This designation was first employed in a diploma of the Emperor Francis Joseph I., November 14, 1868 (see p. 459).]

"If," says a modern writer, "France has been a laboratory for political experiments, Austria-Hungary is a museum of political curiosities, but it contains nothing so extraordinary as the relation between Austria and Hungary themselves."[644] In its present form this relation rests upon the memorable Ausgleich, or Compromise, of 1867.

The historical phases of it, however, may be traced to a period as remote as the first half of the sixteenth century, when, in 1526, after the Hungarians had suffered overwhelming defeat by the Turks at the Battle of Mohacs, a Hapsburg prince, the later Emperor Ferdinand I., a.s.sumed, upon election by the Hungarian diet, the throne of the demoralized eastern kingdom.[645] Until the eighteenth century the union of the two monarchies was always precarious, much of the time practically non-existent. Set in the midst of a whirlpool of races and political powers, the ancient Hungarian state, recovered from its days of disaster, struggled unremittingly to preserve its ident.i.ty, and even to regain its independence, as against the overshadowing (p. 442) Imperial authority of which Austria was the seat. The effort was fairly successful and as late as the Napoleonic period Hungary, while bound to her western neighbor by a personal union through the crown, maintained not only her essential autonomy but even the const.i.tutional style of government which had been hers since at least the early portion of the thirteenth century. A rapid sketch of the earlier political development of the two states seems a necessary introduction to an examination of the inst.i.tutions, joint and separate, which to-day enter into the texture of their governmental organization.

[Footnote 644: Lowell, Governments and Parties, II., 177.]

[Footnote 645: See p. 448.]

I. AUSTRIAN POLITICAL DEVELOPMENT TO 1815

*486. Origins.*--The original Austria was a mark, or border county, lying along the south bank of the Danube, east of the river Enns, and founded by Charlemagne as a bulwark of the Frankish kingdom against the Slavs. During the ninth century the territory was overrun successively by the Moravians and the Magyars, or Hungarians, and all traces of Frankish occupation were swept away. At the middle of the tenth century, however, following Otto the Great's signal triumph over the Hungarians on the Lech in 955, the mark was reconst.i.tuted; and from that point the development of modern Austria is to be traced continuously. The name osterreich, i.e., "eastern empire" or "dominion," appears in a charter as early as 996.

The first notable period of Austrian history was that covered by the rule of the house of Babenberg. The government of the mark was intrusted by the Emperor Otto II. to Leopold of Babenberg in 976, and from that date to the extinction of the family in 1246 the energies of the Babenbergs were absorbed princ.i.p.ally in the enlargement of the boundaries of their dominion and in the consolidation of its administration. In 1156 the mark was raised by King Frederick I. to the dignity of a duchy, and such were the privileges conferred upon it that the duke's only obligation consisted in the attending of any Imperial diet which should be held in Bavaria and the sending of a contingent to the Imperial army for such campaigns as should be undertaken in countries adjoining the duchy.