Front Page Titles (by Subject) CHAPTER XXIX: direct legislation by the people: referendum and initiative - Modern Democracies, vol. 1.
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CHAPTER XXIX: direct legislation by the people: referendum and initiative - Viscount James Bryce, Modern Democracies, vol. 1. 
Modern Democracies, (New York: Macmillan, 1921). 2 vols. Vol. 1
Part of: Modern Democracies, 2 vols.
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direct legislation by the people: referendum and initiative
So far we have been studying those parts of the Swiss system which it has in common with other constitutional countries, viz. representative assemblies and an executive responsible thereto or to the people. Now, however, we come to an institution almost peculiar to Switzerland, one which deserves full examination, because it has profoundly modified Swiss government and has begun to influence opinion throughout the world. This is the method of Direct Popular Legislation, i.e. law-making by the citizens themselves and not through their representatives. Nothing in Swiss arrangements is more instructive to the student of democracy, for it opens a window into the soul of the multitude. Their thoughts and feelings are seen directly, not refracted through the medium of elected bodies.
Wherever in the early world we find a people governing itself, its power seems to have found its expression in the direct action of a primary assembly of the whole community, whether as tribe or as city.1 Of the primitive Germans Tacitus says, “De minoribus principes consultant, de maiori-bus omnes.” Such an assembly has, as already observed (see p. 337), maintained itself in some Cantons of Switzerland, and has parallels in other parts of the world, even among the Kafirs of South Africa.2 In the Middle Ages these primitive gatherings died out, as large nations were formed out of small communities, so constitutional freedom, when evolved out of the feudal polity, passed into the form of representative assemblies. Only the Swiss Landesge-meinde kept up the ancient tradition and practice, and made the idea of direct action by the people familiar. Even the oligarchical governments of cities like Bern and Zurich occasionally referred questions of exceptional gravity to the communities over which they ruled, inviting their opinion,1 and in Geneva (not till last century a member of the Confederation) the whole people exercised their right of enacting laws in the Conseil Général.2 Rousseau, who argued that no government was truly popular unless the people acted directly and not through delegates, was doubtless influenced by the recollections of his own city as well as by what he had heard of the Landesgemeinde in the old Forest Cantons. He must, as a child, have accompanied his father to a meeting of the General Assembly of the Genevese in which the citizens voted on the laws submitted by their legislative authorities. The Swiss practice was seldom referred to by the constitution-makers of France from 1789 onwards. But it had impressed Napoleon.3 In his treatment of the country he came as near to allowing himself to be influenced by sentiment as in any other part of his career, and he established in 1803 a Constitution for the whole country, then for the first time officially described as Switzerland, which lasted till his fall.
When the flood of change induced by the French Revolution had passed, and the Landesgemeinde were re-established in the mountain valleys which had known them from old time, their example, coupled with the new theories of popular rights which France had diffused, and perhaps also with the example of the American States, began to tell upon the minds of the larger cantons. In the period of change which lasted from 1830 to 1848, the new constitutions which the cantons adopted were submitted to the people and enacted by their votes, as a Federal Constitution had been submitted but rejected in 1802. Again, in 1848 it was the peoples of the cantons that accepted the new Federal Constitution. The direct action of the people having thus become familiar, the practice extended itself from constitutions to other enactments. As early as 1831 St. Gallen adopted a scheme by which communes could vote to reject a law passed by the Assembly of the canton; and this so-called “veto” in one form or another was adopted by other cantons, till at last a system developed itself under which the people obtained in every canton but one (Fribourg) the right of accepting or refusing a law submitted to it by the Legislature. This is the so-called Referendum, a name drawn from the usage in the old Confederation by which the delegates to the Diet from a canton were entitled to withhold its assent to a resolution of that body till they had referred it to their own canton for assent or rejection.1
Concurrently with the process by which the people asserted their final voice in legislation, there appeared another by which they secured the power of themselves proposing legislation over the head and without the consent of the representative Assembly. In 1845 Vaud inserted in its Constitution a provision giving 8000 electors the right to require that the Cantonal Council should submit to popular vote any question of enacting or repealing a law, and other cantons followed by degrees. When the Federal Constitution was, after long and vehement controversy, revised in 1874, power was given to 30,000 voters to require that a Bill passed by the Legislature should be submitted to the people. This created the Federal Referendum. The possession by the people, since 1848, of the right to demand, by a petition signed by 50,000 voters, that the Constitution should be amended, suggested a new clause, enacted in 1891 and now in force, enabling that number of citizens to put forward a specific amendment to be submitted to the vote of the people. This is the so-called Popular Constitutional Initiative. These two institutions, Referendum and Initiative, represent an effort to return from the modern method of legislation by representative assemblies to the ancient method of legislation by the citizens themselves. In the Hellenic world the area of each republic was so small that the citizens could meet for debate, as they now do in the small Landesgemeinde cantons. Such oral debate being impossible in the Confederation and the larger cantons, the citizen can in these exercise his rights only by delivering his note on paper.
Premising that there are also cantons in which communes, too large to determine issues by a popular vote in the communal meeting, send these issues to be voted on at a poll of the commune, and also some large cities in which municipal matters are similarly submitted to a popular vote of all the citizens, we may proceed to the more important and more instructive procedure employed for popular voting in the Confederation and in the Cantons, examining, first, the arrangements governing the employment of the popular vote by Referendum and Initiative in the Confederation and the Cantons; secondly, the figures recording the use made of it; thirdly, the actual working of the system; and lastly, the arguments used to recommend or disparage it, winding up with the conclusions regarding it at which Swiss opinion has arrived. It will then be possible to judge how far the example Switzerland sets is fit to be followed in other countries.
The arrangements now in force, complicated at first sight, become easier to follow when we consider separately A the Referendum and B the Initiative, and when in considering each of these we distinguish the application of each (a) to the Confederation and (b) to the cantons respectively, and also in both Confederation and Cantons (1) to Constitutions and (2) to laws respectively.
A. The Referendum
(a) In the Confederation the Referendum (i.e. the submission to popular vote, for approval or rejection, of a measure passed by the legislature) exists:
1. For all changes whatever in the Federal Constitution. This approval must be given not only by a numerical majority of the citizens voting, but also by a majority of the cantons.
2. For all Federal Laws (i.e. statutes), and for all Resolutions (Beschlüsse, arrétés) (being of general application and not having been declared by the Legislature to be “urgent”), whenever a demand for such submission to popular vote is made by either aeast 30,000 citizens or by at least eight cantons.
(b) In the Cantons the Referendum exists:
1. For all changes in the Cantonal Constitution.1
2. As respects laws and resolutions passed by the Cantonal Legislature,
In eight cantons for all laws and resolutions. (This is called the Obligatory Referendum.)
In seven cantons where a prescribed number of citizens of the canton (the number varying from canton to canton) demand its application. (This is called the Optional or Facultative Referendum.)
In three cantons there is a distinction drawn between different classes of laws, the Referendum being Obligatory for some and Optional for others.
In one canton (Fribourg) there is no Referendum for laws.
In cantons, governed by a Primary Assembly of all citizens (Landesgemeinde), there is no need for a Referendum, since that Assembly legislates.
It thus appears that the Confederation does not go so far as do the cantons, for it submits laws to popular vote only where 30,000 citizens (or eight cantons) ask for the submission, whereas all cantons but seven require either all laws or all laws of a prescribed character to be so submitted. It is of course easier and cheaper to take a popular vote in a small community than over the whole Confederation. Only five cantons have more than 200,000 inhabitants, a number less than the population of some American congressional districts.
What Resolutions are to be deemed “urgent”? This is a question which has raised much discussion, and as it has been found impossible to frame a satisfactory definition, the matter has been left to be decided by the Federal Assembly in each case as it arises. Broadly speaking it is only enactments of a temporary character or framed for some particular emergency that are deemed “urgent,” 2 and so withheld from submission to the popular vote. Treaties have not so far been submitted (save in the very exceptional case of that by which Switzerland entered into the League of Nations constituted by the Treaty of Versailles of 1919), but the question whether they ought to be is to be presently determined by a popular vote. Xeither is the annual budget submitted, nor decisions of a merely administrative character.
B. The Initiative
The Initiative (i.e. the right of a prescribed number of the citizens to propose the passing of an enactment by popular vote) exists:
(a) In the Confederation —
For changes in the Constitution when a demand is made by at least 50,000 citizens. They may make it either by sending up to the Assembly a specific amendment, which the latter then forthwith submits to the people, or by demanding that the Assembly shall prepare an amendment embodying a certain principle which they lay before it. In this latter case the Assembly first submits to the people the question: Shall the Assembly prepare such an amendment as is desired? If this is carried the Assembly prepares it, and a further popular vote is then taken on the amendment so prepared and submitted.
(b) In the Cantons —
1. In all the cantons (except Geneva)1 a prescribed number of citizens (varying in the different cantons) may either demand a general revision of the Constitution, or propose some particular amendments to it.2
2. In all the cantons except three (Luzern, Fribourg, and Valais) a prescribed number of citizens may either propose a new law or resolution, or submit to the Cantonal Council the principle on which they desire a new law to be based, asking the Council to frame the law desired. In the latter ease the Council puts to the people the question: Shall a new law such as is desired be prepared? and if the people answer affirmatively, the Council prepares the law and it goes before the people to be decided on a second vote. If, on the other hand, the proposal as already drafted by its promoters goes straight to the people, the Council may oppose it, or may themselves draft an alternative new law on the same subject, to be voted on by the people along with the measure proposed by the demanding citizens.
The broad result of these arrangements is that in the Confederation, the wide area of which makes a frequent reference to the people troublesome, popular voting in the two forms of Referendum and Initiative is used for three purposes, viz.:
(α) For changes in the Constitution proposed by the Assembly.
(β) For changes in the Constitution proposed by 50,000 citizens under the Initiative.
(γ) For ordinary laws where 30,000 citizens, or eight cantons, make the demand under the Referendum.
In the Cantons, since they are smaller, it is natural to find it used more freely, viz.:
(α) For Constitutional amendments proposed by the Cantonal Legislature to the people.
(β) For Constitutional changes proposed by a prescribed number of citizens by way of Initiative.
(γ) In most cantons as respects Laws— (1) For all laws proposed by the Legislature (Referendum); (2) for laws proposed by a prescribed number of citizens (Initiative).
Where a revision of the Constitution is proposed by the citizens, the Cantonal Council is entitled to submit its own amendments also, and if the popular vote decides that there is to be a general revision, the work of making it is performed either by the Council or by a body (resembling the American Constitutional Convention) created for the purpose.
It will be observed that while the Confederation restricts the Initiative of citizens to changes in the Constitution, the cantons are less conservative and permit it to be used for changing the ordinary laws. There is, however, no recognized test for determining what is a constitutional change, i.e. for distinguishing constitutional amendments from ordinary laws. In this absence of a clear line between the two kinds of enactment the Initiative has been often used, both in the Confederation and in cantons, to pass under the guise of a constitutional amendment what is really an ordinary and not what lawyers or historians would deem a constitutional law.1
The procedure applied in the Confederation, as respects a Referendum on laws or resolutions, is the following. Every law when passed is published in the official journal and sent to the cantons to be circulated through the communes. Ninety days are allowed to pass before it can take effect. Within this period either eight cantons or 30,000 citizens may demand its submission to the people. The method of demand by cantons being rarely used, the opponents of the Bill proceed to collect signatures. If it excites little popular interest they must work hard to secure the requisite number, and organizations are sometimes formed for the purpose. Where the population is Roman Catholic, the clergy can give effective help; where it is Protestant, action by the pastors if they care to act (which they seldom do) is less efficient, attendance at their churches being less regular. Sometimes, but by no means as a matter of course, party organizations take the matter up. Agents may even be sent out to collect signatures, and paid ten or twenty centimes per signature.1 Where this happens, the signatures are not always above suspicion, and thousands of names have in some instances been struck off, either because written in the same hand or for want of the proper official attestation by the president of the commune to which the citizen belongs. The Federal Council has decided that illiterates can sign by a mark, but the right of signing, since it is a part of citizenship, depends on Cantonal law. When the number sent in has been recognized as sufficient by the Federal Council, it informs the Cantonal Councils, publishes the law all over the country, and fixes a day for the voting, not less than four weeks after the publication and distribution of the law is sent to each voter, but no official explanatory memo-to the importance attached to the law and to the interest which the political parties, as parties, take in it. A copy of the law. Then an agitation begins, greater or less according random accompanies it, the Federal Assembly having considered that it would be hard to secure an impartial one.2 Meetings are held at which members of the legislature and others advocate or oppose it, and the press is full of articles on the subject. Nevertheless not every citizen is perfectly informed, for the debates in the Federal Assembly are so scantily reported that the arguments pro and con cannot be easily gathered from them. However anxious a man may be to discharge his civic duties, he may possess, especially if he lives in an isolated spot among the mountains, no adequate data for judgment on matters perhaps technical or otherwise difficult. This may be one of the reasons why the vote, when it comes, has been often disappointingly small.
The arrangements for voting are in the hands of the cantonal authorities, though the ballot-papers and the copies of the law are supplied by the Federal Government. The voting, which always takes place on the same day over the whole country, and on a Sunday, is quiet and orderly, nor are complaints heard of bribery or of fraudulent counts. As the law has to be printed in German, French, Italian, and Romansch, and more than 600,000 copies are needed, the cost of taking the opinion of the people is considerable.
The cantons employ a procedure generally similar to that described for the Confederation. In most of them also a discretion is left to the Council to exempt from the Referendum resolutions which are temporary in their operation, and some nominations to office and resolutions of an administrative nature are also exempted. Appropriations of money beyond a certain sum (even if not of permanent operation) are in some cantons required to be submitted. In nine and a half cantons where the Referendum applies to all laws, there is of course no preliminary stage of collecting signatures. So soon as the law or decree (not being of an urgent nature) has been passed, or (in some cantons) at the end of the legislative session, notice is given of the day on which the popular vote is to be taken, and a copy of the law is (usually) sent to each citizen. In these cantons a sort of message or document explaining each law is prepared by the Cantonal Executive Council and delivered to each citizen with his copy of the law. Such messages are usually recommendations of the measure, but it seems that in one canton (Thurgau), where the Executive Council, being directly chosen by the people, is independent of the Great or Legislative Council, the former body has been known to criticize the law adversely.1 Before a Cantonal, as before a Federal, voting there is plenty of public discussion, followed by the people with great interest, at least in the towns and in the more educated of the rural districts. The press, too, is alert. It is often accused of misrepresenting the issue; but newspaper misrepresentations, dangerous in the sphere of foreign relations, are less harmful in domestic affairs, where the topic is more familiar and corrections can be promptly made. No European country has so many journals in proportion to its size as Switzerland, and no shade of opinion lacks its organ. Some cantons direct that public meetings for debating the law shall be held before the voting. In some, abstention from voting is punished by a small fine.
Where, as in seven and a half cantons, the Referendum is Optional, i.e. is taken at the demand of a prescribed number of citizens, the Cantonal Council may itself, without waiting for a demand, decide to take the opinion of the people on some particular measure which it has passed, and in some cantons a prescribed minority of the Council may require the measure to be so submitted. In Schaffhausen an official memorandum explaining the law is circulated to the people. In Fribourg the authorities of the Roman Catholic Church, powerful there, show no desire to introduce it.
In cantons where every law must be submitted to the people, an active legislature may lay a heavy burden upon the citizen. Most cantons fix one or two occasions in the year for taking a popular vote on the batch of laws passed at the last preceding sittings of the Council. Zurich has a regular spring and a regular autumn voting, but frequently adds a third, so its citizens are kept pretty busy. In Zurich, moreover, and also in Aargau, a law may (when the Cantonal Council so directs) be voted on in sections, so that the people can reject one part and adopt the rest, a useful provision in an intelligent and painstaking people. One canton (Basel Land) used to require for the acceptance of a law an absolute majority of the qualified citizens, but this requirement has been abandoned, since it often caused the loss of a measure, because a sufficient number of citizens had not come to the polls.
The procedure followed in the cantons where a law comes before the people by way of Initiative resembles (mutatis mutandis) that applicable to the Referendum where demanded by a prescribed number of voters. Copies of the proposed law are distributed to every citizen before the day of voting arrives, and in some cantons the arguments advanced by the proposers are also circulated at the public expense. The Cantonal Council can express its opinion on the project or put forward an alternative plan. The law, if and when passed, may like any other cantonal law be declared invalid by the Federal Legislature if they conceive it to transgress the Federal Constitution.
Some other features of the cantonal Initiative systems deserve to be mentioned.
Proposals for changes in the Constitution and those which submit ordinary laws may be differently treated. In the former case the work of revision is sometimes entrusted to a special body chosen for the purpose (resembling the American Constitutional Convention),1 but more frequently the Cantonal Council undertakes it after its next re-election, and where the people have to vote, first whether there is to be a revision, and thereafter upon changes proposed, a prescribed interval must elapse between the two votings.
In Bern, when the suggestion for a revision comes from the Cantonal Council, a two-thirds majority in that body is required.
Some cantons permit the Council to advise the people against a general revision demanded by Initiative as well as to express its opinion upon particular changes proposed.
Since no sharp distinction is drawn in the cantons any more than (as already observed) in the Confederation between matters fit to be placed in a Constitution and those which belong to ordinary legislation, a Constitution may be loaded with provisions which do not affect the general frame of government and cannot be deemed Fundamental. This is inconvenient as well as illogical, but it has been found practically impossible (as in the States of the American Union) to define what properly belongs to a Constitution. In cantons where the people can initiate changes in the laws as well as in the Constitution there is less temptation than in the Confederation to propose what is really an ordinary Law in the form of a Constitutional amendment. It may be useful to give a few figures showing how these arrangements have worked.
In the Confederation the popular votings between 1874, when the Referendum was introduced, and 1898 have been as follows: —
A. Votings on Constitutional Amendments, 10. Of these amendments, 7 were accepted and 4 rejected.
B. Votings on Laws and Resolutions passed by the Legislature, 25. Of these enactments, 7 were accepted and 18 rejected.
A. Between 1905 and 1919 the figures were: —
Votings on Laws and Resolutions passed by the Legislature, 3. Of these, all were accepted.
In all these cases the vote taken by cantons agreed with the decision of the popular vote.
The signatures demanding a Referendum ranged from 35,000 to 88,000 (in 1907).
It is convenient to give here the figures relating to constitutional amendments also, in order to compare the results when the Legislature proposes and when the citizens propose.
Proposals made since 1874 by the Legislature, 25. Of these 19 were accepted and 6 rejected.
Proposals made by 50,000 citizens, 12. Of these 5 were accepted and 7 rejected.1
The number of votes cast in both forms of popular voting naturally varies with the amount of interest evoked by the particular measure submitted. It has fallen so low as 30 per cent of the total number of qualified citizens, and has risen as high as 74. The average seems to be about 55 per cent. The number of signatures obtained for a demand for the submission of a law seems to be no index to the vote which will be ultimately cast against it. The largest number of signatures for a constitutional amendment was 167,-000 (in 1908) in support of an Initiative for prohibiting the sale of absinthe. The proposal was carried by 241,000 against 138,000.
From these figures two things may be gathered.
One is that the power of demanding the submission to the people of a law passed by the Legislature is not abused. Within the forty-four years from 1874 to 1919 less than one law in the year was so submitted; and in the last fifteen the popular vote, only thrice demanded, affirmed each law. The cases in which attempts were made to obtain submission but the requisite number of signatures could not be collected, were not numerous.
The other is that the proportion of rejections to approvals between 1874 and 1898 shows that cases occur, even in this highly democratic government, in which the legislature does not duly represent popular sentiment.1 This is of course no news to practical politicians. Even in Great Britain Bills are sometimes “jammed through “the House of Commons by a Minister, though everybody knows that the bulk of the nation dislikes them. I recall at least one case where even the majority that was supporting the Ministry was reluctant to pass its Bill, though it obeyed.2
Some examples may show how the people use their power. As the Swiss put into their Federal Constitution matters better fitted to be dealt with by ordinary legislation, we may consider together the cases in which constitutional amendments have been voted on, as they must be in every instance, and those in which a Referendum has been demanded on a particular law.
The people rejected twice a law making uniform the qualifications for the suffrage in Federal elections, with the result that this subject remains in the sphere of Cantonal regulation. This was due to a Cantonal sentiment averse to extension of Federal power.
They rejected several laws relating to banks and to patents which, not quite understanding the details, they thought faulty, and also a Federal resolution anent patents. This latter had been submitted along with a law on epidemic diseases, making vaccination, already compulsory in some cantons, compulsory over all Switzerland. The proposal evoked strong protests and was rejected by a large majority, and the harmless Patents Resolution, discredited by its neighbour measure, shared that neighbour's fate. They rejected a proposal for enlarging the powers of the Federal Government in educational matters, partly because it was denounced as “bureaucratic” and anti-religious, but even more because it might have led to a secularization of the schools. Both Roman Catholics and many of the more conservative Protestants were intensely hostile, while the zeal of the (possibly more numerous) party that favours purely secular instruction was not active enough to overcome this resistance.
They rejected, by a large majority, a law providing pensions for Federal employees, the peasantry seeing no reason why these veterans of public service should have any better treatment than they had themselves. A reluctance to try experiments or enlarge Federal powers led them in 1891 to reject the proposed purchase of the Central Railway of Switzerland, yet seven years later they accepted a scheme for buying up all the lines of the country.
Other laws rejected had the following purposes: an increase in the expenditure upon the representation of Switzerland abroad; the creation of a Federal monopoly of the sale of lucifer matches, especially with a view to the sake of prevention of disease among the workers; the establishment of a State bank; alterations in the administration of the army so as to bring it more under Federal control; amendments in the military criminal law; a guarantee upon the sale of cattle (requiring such guarantee to be in writing); the creation of a system of compulsory insurance against sickness and accidents. In this last case it was apparently not so much the principle as the details that excited criticism, while the various private insurance societies organized opposition, and there were suspicions lest the Federal Government should use the scheme for party purposes. So 1903 saw the defeat of an amendment altering the constitutional provisions regarding the Federal alcohol monopoly, and of a law directed against newspaper incitements to escape the obligation of military service.
On the other hand, they accepted the following measures: A law making civil marriage compulsory and at the same time facilitating divorce. The former provision was so largely approved (though it provoked opposition among Roman Catholics) that it is believed to have secured the acceptance of the latter provision, notwithstanding some Protestant as well as Catholic dislike to a relaxation of the divorce law. The number of divorces rapidly increased.
A measure amending the factory laws and fixing eleven hours as the maximum day's labour.
A general bankruptcy law for the Confederation.
A Constitutional amendment empowering Federal legislation regarding insurance against sickness and accidents.
A law granting a large subsidy to the Gothard railway, coupled with power to subsidize Alpine lines in Eastern and Western Switzerland.
Two tariff laws, successively raising import duties.
An amendment to the Constitution removing the prohibition to the cantons to impose the penalty of death which it had contained.
An amendment (1885) to the Constitution giving the Federal Government a monopoly of the production of distilled spirits, and a subsequent law (1887) framed in pursuance of the power so conferred.
A law for the regulation of railway accounts.
Constitutional amendments extending the supervision of the Federal Government over forests, and empowering it to legislate regarding foodstuffs and other articles of prime necessity in the interests of public health (both by large majorities).
Constitutional amendments (1898) enabling the Federal Assembly to prepare a uniform code of civil and another of criminal law for the Confederation. These long steps towards centralization were accepted by majorities exceeding two-thirds of the citizens voting (264,933 against 101,-820, 206,713 against 101,712).
A Constitutional amendment empowering the Federal Government to grant subventions to schools in the cantons.
An amendment submitted by popular Initiative, and voted on in 1920, for the suppression of public gaming resorts.
A measure for the purchase and working by the Federal Government of all the great railway lines. This bold new departure, though notably enlarging the sphere of Federal administration, was carried by 386,000 votes against 182,-000, the heaviest vote ever cast.
This list has been made full in order to convey to the reader the kind of questions which come before the Swiss people. Since in many instances the English or American reader has no means of judging whether or no the people erred, some remarks on the motives which seem to have influenced their action in Confederation votings may be useful.
The first question that rises to the mind will be as to the part played by political organizations in influencing the action of the people. In most democratic countries, and certainly in Britain,1 it is hard to imagine a popular voting which would not be worked by the political parties. In Switzerland party sentiment seldom dominates the minds of the citizens. It is chiefly where a religious issue or a socialistic issue is involved that such sentiment tells, and then chiefly in Catholic districts. The Swiss voter, always independent, is most independent when he has to review the action of his Legislature. Still there are instances in which displeasure at the conduct of a party seemed to create a prejudice against measures it had put through the Assembly. In 1884 the Referendum was demanded on four laws passed shortly before,2 none of which would probably have been required to run the gauntlet but for the irritation created in the minority parties by what was then deemed the rather high-handed behaviour of the ruling majority in the Assembly. All four bills were rejected, although two at least of them 3 were unquestionably, and one at least of the other two probably, beneficial. but the sequel was the oddest part of the affair. Immediately after these votings there occurred a general election, and the citizens returned to the Assembly a scarcely diminished majority of the same party which they had just censured by rejecting their bills. One would have expected the exact opposite, viz. that the innocent measures should be passed and the offending men dismissed. But the Swiss, who dislike changing their members, took their own way of expressing displeasure, and the majority profited by the warning. Cases occur in which the party dominant in the Assembly having by some law or by some executive act offended a large section of the citizens, this section engineers the rejection of some law submitted to it rather as a rebuke or manifestation of its anger than because it dislikes the law itself. This furnishes a convenient relief for the angry feeling, after the satisfaction of which things resume their normal course, and the people, having delivered their souls, can proceed on the next election to choose the same legislators whom they have just before rebuked.
So sometimes a law is defeated, not because the bulk of the people condemn it, but because the favour of the larger number is so much fainter than the hostility of a smaller that the latter bring up not only all their own voters but a percentage of the indifferent, while the less zealous majority poll less than their proper strength. As often happens, intensity wins against mere numbers. This is one of the ways in which minorities can make themselves into majorities.
Though now and then a harmless measure suffers from being put to the vote simultaneously with one which rouses opposition still, broadly speaking, each proposal is dealt with on its merits. Distrust of the men who have proposed it does not necessarily disparage it; and as a party cannot count on getting its followers to support its measures at the polls, so neither does it suffer damage from their rejection.
Independence, then, is the first quality of the citizen which the working of the system reveals. A second is Parsimony. Like the Scotch, the Swiss are not more avaricious than their neighbours, but they are more thrifty, and in public matters positively penurious. The Swiss peasant lives plainly and is extremely frugal. Averse to anything which can increase taxation — and all pay some direct tax — he does not understand why officials should be paid on a scale exceeding what he earns by his own toil. So laws involving an expenditure which would in England or France be thought insignificant in proportion to the results expected have been frequently thrown out by the votes of those who measure public needs by the depth of their own purses, and lack the knowledge that would fit them to judge financial questions.
A third tendency or motive is the dislike of officials and officialism. It has repeatedly led to the failure of bills for strengthening the administrative departments, and although such bills were sometimes needed, their failure checked for the moment the progress of what is called étatisme, i.e. State Socialism.
A fourth is jealousy of the interference of the Central Government with the cantons. Several instances have been given above. Yet the instances of the railways and the adoption of codes of law for the Confederation show that it is not always operative.
The quality we call good sense, the quality most important in a legislating nation as in a legislating assembly, is compounded of two things: judgment and coolheadedness, the absence of passion and the presence of intelligence. Now in the Swiss, a fighting people, but not (except the Italian Ticinese) a passionate people, long experience has formed the habit of voting in a calm spirit. They are an educated nation; nearly everybody not only can read but does read. They have solid rather than quick minds, and their best minds are more sagacious than imaginative. If few possess the knowledge needed to form an opinion on much of the legislation that comes before them, many have that consciousness of ignorance which is the beginning of wisdom. Hence their attitude towards a difficult or complicated measure is guarded or suspicious. Omne ignotum pro pericw loso. Unless they have such confidence in the Assembly that passed the law, or in the advisers who recommend it, as to supply what is wanting to their own judgment, they are disposed to reject rather than to approve.
This is the explanation of what has been called the “conservatism “of the Swiss. They are cautious, not easily caught by new schemes, little swayed by demagogues, preferring, when something rouses their prejudice or eludes their comprehension, or points to dubious future developments, to vote “No.” As the average voter has a slower and less instructed mind than the average legislator, who is always more or leas a picked man and trained to his work, new ideas take longer to penetrate the voter's head. Study or debate convinces the legislator that some reform is needed, and he passes a law to effect it. But when the law comes before the voter, his attachment to old custom, unenlightened by study though partially enlightened by discussion, prompts a negative. This happens chiefly in the rural and especially the mountain cantons, much less in a manufacturing population such as that of Zürieh or Basle, in which legislation is more active. Thus an intricate law, or one covering more than one subject or introducing new principles, is apt to be rejected on the first voting, yet subsequently accepted.
Under these conditions some laws are delayed, and some lost. But it is far from true to say that the citizen “in the long-run votes' No' to every proposal.” 1 He votes “No” sometimes because he dislikes the proposal on the merits, sometimes because he does not understand it, sometimes because he does not see where it will lead him. But of mere blind aversion to change there is little evidence, as appears from the instances cited in which sweeping measures have been adopted.
But though dogged conservatism is not the note of the Swiss voter, he is frequently more short-sighted than his representative in the Assembly. Wider views of policy would have sanctioned compulsory vaccination, reforms in the military administration, proposals for the better support of foreign legations and for pensions to Federal officials. Here it was parsimony and the want of an imagination that could realize conditions outside the voter's range that caused the mistakes. The former fault is so rare in democracies as to be almost a merit; the latter is inevitable when questions are addressed to a multitude of peasants and artisans who obey neither a party nor a leader. In Switzerland, however, no serious mischief has followed, for most of the laws rejected have been either afterwards adopted in a better form, or recognized to have been premature, because not sure to have behind them the popular sentiment which makes enforcement easy.
The working of Popular Voting in the cantons can be but briefly treated, because the data have never been fully collected, even in Switzerland itself, and could be collected only by a long enquiry in the several cantons themselves. So far as can be gathered from the records of voting in a few of those larger cantons whose experience has been described by Swiss writers, the general conclusions to be drawn do not substantially differ from those which the Confederation furnishes. Zürich, which I take as one of the most important, has had an Obligatory Referendum since 1869; i.e. all laws passed by the Cantonal Council have to be submitted to the people, who, in the words of their Constitution, “exercise the legislative power with the assistance of the Cantonal Council.” Between 1869 and 1893 the people voted on 128 proposals submitted by the Council, whereof 99 were accepted and 29 rejected. Between 1893 and 1919 (inclusive) there were votings on 126 laws and decrees and 12 constitutional amendments submitted by the Council, and there were also votings on 15 proposals made by popular Initiative, 14 for laws, 1 for an amendment to the Constitution. The average percentage of voters is estimated at 74,1 but the use of proxies and the fact that in some communes abstention is punishable by fine makes Zürich exceptional. When a Referendum vote coincides with an election to the Legislature, the average rises to 79. The highest percentage of votes cast to qualified voters I have found is 87 per cent in 1891, and the percentage seldom sinks below 60. Some measures aiming at useful objects have been rejected, as, for instance, laws for extending and improving education and the position of teachers, for limiting factory work to twelve hours a day and checking the employment of children, for establishing a system of compulsory insurance against sickness. The Council in these cases seems to have gone ahead of the general opinion. But when some of these proposals were subsequently submitted they were accepted, because better understood. Thus a law fixing ten hours as the maximum time for the labour of women in shops and certain domestic industries was carried by 45,000 votes against 12,000. Many other valuable measures have been similarly accepted, and according to the Swiss writers who have treated the subject, possibly biassed in favour of their peculiar institutions, no permanent harm has followed rejections; the reforms really needed are ultimately carried, and usually in a better shape than they at first wore.
Anxious to disprove the charge of undue conservatism, the writers just referred to point to the fact that Zürich enacted a progressive income-tax which bears heavily on the rich. Such a measure, which would in some countries be cited to support a very different charge, was enacted in Vaud as a Constitutional amendment proceeding from the Legislature. It deserves to be remarked that although the people of Zürich are sometimes penny-wise in their dislike of expenditure, they have renounced the function of fixing the salaries of officials, vesting it in the Cantonal Council, and that they approved a proposal to spend three million francs on University and other new educational buildings in the city and canton. As an eminent and fair-minded citizen observed to me: “Reform would no doubt have moved faster without the Referendum. Yet the people are less stupid than we thought, when it was introduced, that they would show themselves. They reject some good laws, but fewer than we expected. Even prejudice and parsimony do not prevail against proposals whose utility can be made clear.”
The general results of the use of the popular vote in the cantons, taken all together, show that the Referendum is used temperately in those cantons where it is compulsory.
Where it is optional, the demands for it are not numerous, and are particularly few in the French-speaking cantons, Vaud, Neuchâtel, and Geneva.1 This fact seems to show either that there is no disposition to use the right of demand in a factious and vexatious spirit, or else that the legislatures of these cantons are in such full accord with the general sentiment that there is no occasion for an appeal to the people. It may also imply that the cantons which submit all laws do so rather in conformity to democratic theory than because there is any greater disposition in them than in others to distrust the legislature.
The proportion of voters who go to the poll is rather smaller than in the Confederation, especially in cantons where all laws are submitted. In Bern it has been as low as 30 per cent, and in Basel Land and Solothurn the average does not exceed 50 per cent. Religious issues call out the largest vote; laws involving increased expenditure, especially in the form of increased salaries, are those most frequently rejected.
The system of Direct Legislation excites so much interest in other countries, and has been so often recommended as an improvement on the parliamentary frame of government, that it is worth while, even at the risk of some little repetition, to enumerate and examine the arguments for and against it which Swiss experience has suggested. Its adoption and wide extension may be traced to two sources.
One is the theoretic doctrine of the Sovereignty of the whole People, which, as a theory, is of French rather than Swiss origin,1 and found its first concrete application in Europe in the submission to the whole French nation in 1793 of the Constitution of that year, a Constitution never in fact brought into force. This suggested the similar consultation of the Swiss people in 1802.
The other source is the practice of the small Alpine communities. As the whole people had voted their laws in primary assemblies, it seemed conformable to ancient usage that when the number of citizens grew too large to be reached by one voice, they should be allowed to express their individual wills by voting at the spot wherein they dwelt. Men felt the independent personality of the citizen to be thus recognized in the wider, as well as in the narrower, compass. The law is his law, because he has taken a direct part in enacting it. As the direct control of the people has worked well in the sphere of local government it ought to prove equally sound in the canton and in the Confederation.
A third ground for introducing the system, strongly pressed in the United States, was little dwelt upon in Switzerland, viz. dissatisfaction with representative bodies as failing to embody and express the popular will. Few complaints were made that the Swiss Legislatures were perverting that will, and no one charged them with corruption or other sinister motives; but it was urged that the citizen knows better than his representatives what is for his own benefit, and that a law cannot but carry fuller moral authority and command more unquestioning obedience if it comes straight from the ultimate fountain of power. Here, it was said, is a proper counterpoise to that extension of the sphere of the Central Government which gives rise to disquiet, here is a safeguard against the influence which railway companies and other great commercial or financial interests may exert over the Federal Legislature.
To these arguments, which prevailed in 1874, others, drawn from the experience of the years that have passed since, have been added.
The frequent rejection by the people of measures passed by the Assembly shows that the latter does not always know or give effect to what has proved to be the real will of the people.
While the Assembly has not suffered in public respect, it has been led to take more pains to consult public sentiment, to anticipate objections, to put bills into the shape most brief, simple, and comprehensible by the average citizen. The citizen is supposed to know the law. Give him the best chance of knowing it.
A further benefit is secured for the people. Their patriotism and their sense of responsibility are stimulated, for they feel themselves more fully associated with the work of legislation, formerly left to a class which professed to stand above them, and they are the more disposed to support the law they have shared in making.
As the political education of the masses is thus promoted, so also that class in whose hands the conduct of government has mostly rested is brought into closer contact with the masses and can do more to familiarize the latter with political questions.
The influence of party is reduced, for a measure is considered by the people on its merits, apart from the leaders who have proposed it or the party in the Assembly that has carried it. Its approval by the people does not imply a strengthening, nor its rejection a weakening, of general legislative policy. Neither the Federal Council nor the Assembly is shaken because a Bill fails to become law.
Though some measures bear a party stamp and rouse party resistance, though displeasure at the action of a party may discredit the laws it has passed and lead to their rejection, though those who are accustomed to vote for candidates belonging to one party in the Assembly are predisposed to vote for the laws that party has passed, still, as the comparative weakness of party organization in Switzerland has permitted the habit of giving a popular vote “on the merits “to grow up, measures are more likely to be judged irrespective of those who advocate them than could well happen in any representative assembly where party leadership exists. In an assembly party solidarity and the hope of gaining party advantage disturb the minds of legislators. But the People have no gain or loss to look for save what the law itself may bring.
In a representative democracy there ought to be some check upon the legislature. The Swiss Constitution does not, like the American, give a veto to the Executive, and the two Chambers do not sufficiently differ from one another in composition and type of opinion to constitute their possible disagreement an adequate restraint on hasty action. Thus the only check available is that of a popular vote.
Finally, there must somewhere in every government be a power which can say the last word, can deliver a decision from which there is no appeal. In a democracy it is only the People who can thus put an end to controversy.
These considerations have not entirely removed the objections which a very few Swiss as well as some foreign critics continue to bring against the Referendum. Among such objections, which I state in order to present both sides of the case, the following, applicable to its use in the cantons as well as in the Confederation, may be noted.
The status and authority of a legislature must suffer whenever a Bill it has passed is rejected, for the people become less deferential. Its sense of responsibility is reduced, for it may be disposed to pass measures its judgment disapproves, counting on the people to reject them, or may fear to pass laws it thinks needed lest it should receive a buffet from the popular vote.
The people at large are not qualified, no not even the people of Switzerland, to form and deliver an opinion upon many subjects of legislation. “Imagine,” said Welti, a famous leader, once President of the Confederation, “a cowherd or a stable-boy with the Commercial Code in his hand going to vote for or against it.” 1 They may be ever so shrewd and ever so willing to do their duty, but they have not, and cannot have, the knowledge needed to enable them to judge, nor can the pamphlets distributed and the speeches made by the supporters or opponents of the measure convey to them the requisite knowledge. How can a peasant of Solothurn in a lonely valley of the Jura form an opinion on the appropriations in a financial Bill. Is the object a laudable one? Is it worth the money proposed to be allotted? Can the public treasury afford the expenditure? The voter cannot, as he might in the Landesgemeinde of Uri, ask for explanations: he must vote “Yes “or “No “there and then. The arguments advanced in the Legislature have taught him little, for its debates are most scantily reported. If it is said, “Let ignorant voters take the advice of their more instructed neighbours,” that is an admission that the notion of referring these matters to the decision of the average individual who cannot judge for himself is wrong in principle, for it is the voter's own opinion, not some one else's, which it is desired to elicit.
The number of abstentions at Referendum votings is large enough to show that many a voter either cares little for his civic duties, or knows his unfitness to perform them. As the proportion of these abstentions to the number of qualified voters does not seem to diminish, has not the gain to the political education of the people been less than was expected?
The results of a popular vote cannot be always deemed a true expression of the popular mind, which is often captured by phrases, led astray by irrelevant issues, perplexed by the number of distinct points which a Bill may contain, and thus moved by its dislike to some one point to reject a measure which, taken as a whole, it would approve. No amendments are possible. The vote must be given for the Bill and for the whole Bill. Or again, a laudable measure may be rejected because it has been submitted at the same time with another which displeases a large section of the voters. Having first voted against the one he dislikes, the less intelligent citizen goes on to negative that which comes next, unregardful of its contents.
Frequent Referenda, not to speak of their cost, lay too heavy a burden upon the voter, who relapses into a wearied indifference or gives an unconsidered vote. This happens in those cantons which, claiming to be progressive, pass many laws. The citizen has other things besides politics to attend to, and the unrest and agitation produced by constant appeals to the people by Referenda as well as at elections disgust the quiet solid man.
When a law has been carried by a small majority, its moral authority may suffer more than would be the case had opinion been nearly equally divided in the Assembly. In countries where the legislature rules, a law passed is accepted because it comes in the regular way from the usual organ of the people's will, and few enquire what was the majority that passed it. But when it has gone to a popular vote, a section of the citizens are arrayed against it. They become its opponents, and feel aggrieved if they are overridden by only a few votes.1
The most comprehensive but also the vaguest argument adduced against the Referendum is that it retards political, social, and economic progress. This objection made some noise in the world when currency was given to it by Sir Henry Maine in 1885.2 It particularly impressed Englishmen, of the class which had been wont to associate democratic rights with an aggressive radicalism. To find conservatism among the masses was to them a joyful surprise. The Referendum appeared as a harbour of refuge. On the other hand, some advocates of social reform, in Switzerland as elsewhere, complain that State Socialism and Labour legislation do not advance fast enough. To estimate the truth there may be in these opposite views would require a careful examination, not only of the intrinsic merits of each rejected law, but also whether in each case the law was seasonable, suited to the sentiments of the people, and therefore fit to be forthwith applied with general acquiescence. Space failing me for such an examination, it is enough to observe that although prejudice or undue caution has in some cases delayed the march of economic or social reforms which the Assembly proposed, the best Swiss authorities hold, and hold more strongly now than thirty years ago, that no general harm has followed. Every system has its defects. Those who, knowing England or France, compare the legislation of those countries with that of Switzerland since 187-i will find in the two former instances in which progress has suffered from the pressure exerted upon members of the legislature by classes or by trades whose interests were allowed to prevail against those of the nation.
Some of the arguments here summarized are, like that last mentioned, not supported by Swiss experience. Some apply to the action of the people when they elect representatives hardly less than when they vote on laws, because an election is often (though less in Switzerland than in Britain or America) an expression of opinion on political issues as well as on the merits of the candidate. To others weight may be allowed. It is true that there are laws on which the bulk of the voters are not qualified to pass judgment, true also that demagogues might use the Referendum as a means of attacking a legislature or its leaders, true that the less intelligent voter is sometimes led away from the merits of a law by extraneous considerations, such as party spirit or religious prejudice, or even the prospects of the crops, which may have put him in a bad humour. Abstentions are so numerous that some cantons have imposed penalties, and of those thus driven to vote, many drop in a blank paper, having no opinion to express.
Here let me revert to the part which the system of Popular Voting plays in the constitutional scheme of Government. It disjoins the Legislative from the Executive Department more completely than any form of the representative system can do, because it permits not only the Executive Council (Federal or Cantonal as the case may be) but also the Legislative body, which in the Confederation both chooses and directs the Federal Council, and which in some cantons chooses, and in all directs or influences the Executive Council of the cantons, to continue its normal action whether or not its legislation is approved. Where the function of ultimately enacting the law has been transferred from the representative body to the people, the people become the true Legislature, and their representatives merely a body which prepares and drafts measures, and which, in conjunction with the Executive Council, carries on the current business of the nation. Thus it follows that neither the Executive Council nor the Legislative Assembly need be changed because a law submitted by them is not passed. The people reject the law, as a merchant may reject the plan for a business operation which his manager suggests, but they do not dismiss the Assembly any more than the merchant dismisses his manager. The function of administering the laws continues to be smoothly carried on by the same set of officials, so long as their personal character and capacity makes them trusted.
Under the French and English system this does not happen, because the defeat of an important Bill which the Ministry has proposed means the displacement of the Ministry, while under the American system, although the President and his officials who administer public affairs cannot be ejected by the majority in Congress, yet since they have (through the President's veto) a share in legislation and are closely associated with one or other of the great parties in Congress, they practically share the fortunes of the parties, and cannot expect re-election when the party has incurred popular displeasure by its legislative errors or omissions, whereas the Swiss system tends to reduce party feeling because it makes legislation a matter by which a party need not stand or fall.
Neither in the Confederation nor in the cantons is it now proposed to abolish the Referendum on laws, nor has any canton discarded it, though some have specifically excepted financial laws. Statesmen who would like to restrict it to some classes of laws admit both the practical difficulty of defining those classes, and the objections to leaving discretion in the hands of a legislature. The people as a whole value the privilege. The party which long held a majority in the Assembly, though sometimes annoyed at its results, were and are debarred by their principles from trying to withdraw it; while the Conservative and Roman Catholic Oppositions, less fettered by theory, sometimes found the Referendum useful as a means of defeating Radical measures. The institution has become permanent, not only because the people as a whole are not disposed to resign any function they have assumed, but also because it is entirely conformable to their ideas and has worked in practice at least as well as a purely representative system worked before or would be likely to work now. There are differences as to the extent to which the principle should be carried, but although the Obligatory form has been adopted in most cantons, the opinion of some experienced statesmen prefers the Optional form because the constant pollings which the former involves weary the citizen, and make him less careful to give a well-considered vote. In the Confederation the objections to obligatory submission of every bill seem graver, for this would throw a heavy burden on the voters, producing more trouble and unrest than does the agitation needed to obtain signatures to the few demands for submission.
On a review of the whole matter the foreign observer will probably reach the following conclusions.
Any harm done by the Referendum in delaying useful legislation has been more than compensated by the good done in securing the general assent of the people where their opinion was doubtful, in relieving tension, providing a safety-valve for discontent, warning the legislatures not to run ahead of popular sentiment.
It has worked particularly well in small areas, such as Communes (including cities) where the citizens have full knowledge of the facts to be dealt with.1
There is nothing to show that it has reduced the quality of the members of the Assembly or Cantonal Councils or tended to discourage capable men from seeking a seat thereon.
It has served to give stability to the government by disjoining questions of Measures from questions of Men, and has facilitated the continuance in office of experienced members of the executive and the legislature. Taking its working over a series of years, it would seem to have reduced rather than intensified party feeling.
It has helped not only to give to the governments of the Confederation and the cantons a thoroughly popular character, obliging each citizen to realize his personal share in making the law he is to obey, but, so far from “atomizing “the nation into so many individuals, has rather drawn together all classes in the discharge of a common duty, and become a unifying force giving democracy a fuller self-consciousness.
It has shown the people to be, if not wiser, yet slightly more conservative than was expected. But their aversion to change has been due to caution, not to unreason, and seldom to prejudice.
In recognizing the success of the Referendum we must never forget how much the conditions of Switzerland favour its application. It is specially suited to small areas, and to small populations not dominated by party spirit.1
Working of the Initiative
The working of the Initiative, i.e. the right of a group of citizens to propose measures to be enacted by a vote of the people, needs to be considered apart from the Eefer-endum, for though its theoretic basis is the same, the conditions of its application are different.
It claims to be the necessary development of the idea of Popular Sovereignty. The people, it is held, cannot truly rule if they act through representatives or delegates. The individual will of the citizen cannot be duly expressed save by his own voice or vote. His representative may, consciously or unconsciously, misrepresent him. The Referendum doubtless secures him against being bound by any law on which he has had no chance of expressing his own will. But the opportunity of exercising his volition against a law submitted confers a right of Negation only. He needs also the Positive Right of framing and placing before his fellows the law which expresses his own will and mind. Only thus is the freedom of each citizen secured.1
Abstract theory has been reinforced by the argument that since representative assemblies are apt to consist of one class, or to be dominated by class interests, they cannot be trusted to bring forward and lay before the people the measures which the people desire. As the Referendum protects the people against the legislature's sins of commission, so the Initiative is a remedy for their omissions. Individuals may propound excellent schemes and recommend them at meetings and through the press without affecting an indifferent or hostile legislature. If the People is really to rule they ought to have their chance of going straight to the People. This argument has force in those American States where great corporations know how to “take care of a legislature.” But the Swiss advocates of the Initiative have been moved chiefly by abstract principles. Their strength lies in the universal acceptance of Popular Sovereignty as a dogma, whereof the Initiative seems the logical result.
We have already seen that in the Confederation, where it exists only for proposals to amend the Constitution, the Initiative has been demanded only eight times and amendments proposed by it only twice carried. These cases are worth noting. They included a law to forbid the killing of animals without first stunning them by a blow. This, though proposed in the guise of a desire to prevent cruelty to animals, was really a manifestation of the anti-Semitism then rife in Continental Europe. It was carried against the advice of the Federal Assembly, and although a similar measure had, when passed by the Cantonal Councils of Bern and Aargau, been quashed by the Federal Council and the Assembly as inconsistent with the guarantees of religious liberty provided by the Federal Constitution.1 Some cantons enforce it, but the Federal Assembly has never passed an Act imposing penalties for its breach. This was an inauspicious beginning. The next two constitutional amendments proposed by the popular Initiative were one declaring the “right to labour,” another proposing to distribute the surplus of the Federal customs revenue among the cantons in proportion to population, two francs for each person. Both were rejected in 1894, the former by a vote of three to one, the latter by a majority of nearly three to two; and a like fate befell two other proposals made by Initiative in 1900, one to introduce proportional representation in the election of the National Council, and the other to choose the (Executive) Federal Council by popular vote, as well as one similarly made in 1903 to exclude resident foreigners in computing population for the purpose of determining the number of representatives to which a canton is entitled. But in 1918 an amendment introducing proportional representation was carried. This is the most noteworthy instance of a large constitutional change effected by the Initiative method against the will of the majority of the legislature.
In the cantons, where the Initiative has been much more freely used, it has held its ground, but does not seem to make further way. It has not been the parent of any reforms which might not have been obtained, though not so quickly, through the legislature, while it has sometimes placed unwise laws on the statute book. Zurich, where it can be demanded by 5000 citizens — a small number for so large a canton — has resorted most frequently to it. Sometimes the prudence of the Cantonal Council, dissuading the people from the particular plan proposed and substituting a better one, averted unfortunate results,1 while in the case of an ill-considered banking law the Federal authorities annulled the law as inconsistent with the Federal Constitution. Several times the people have shown their good sense in rejecting mischievous schemes proposed by this method. Not very different have been the results in St. Gallen, Bern, and Aargau. The French-speaking cantons use it less.
When the conditions under which the Initiative works are compared with those of the Referendum we are not surprised to find that the opinion of statesmen was for a long time less favourable to the latter. Its opponents argue that whereas a law submitted to the people by Referendum must have already been carefully considered by the Federal Council which drafted it, and by both Houses of the National Assembly, a Bill proposed by Initiative emanates from a group of more or less intelligent and instructed citizens, having never run the gauntlet of independent critics, possibly hostile, certainly competent by their knowledge and experience. It may be crude in conception, unskilful in form, marred by obscurities or omissions. It will often suffer in practice from the fact that it has not proceeded from those who will, as the Executive, have the function of administering it, and are thus aware of the practical difficulties it may have to overcome. It might be dangerous if applied to agreements made between cantons or with foreign States; and it would render the course of normal legislation more or less provisional, because it may suddenly cut across existing laws, its relation to which has not been duly considered. These objections, which the early history of the Initiative tended to support, would not be conclusive if it could be shown to be the only remedy against the prejudices, or the class selfishness, or the subjection to private interests, that may prevent a legislative body from passing measures which the people deliberately, and not merely by a sudden impulse, desire to see enacted. There have been times in England, as in other countries, when a legislature refused to pass laws which a majority of the adult male population, perhaps even of the registered electors, seemed to desire. Does such a state of things exist in Switzerland or in any of its cantons? If so, why do not the electors when choosing their representatives make known their wishes, and insist that the legislature shall carry them out forthwith? It is doubtless possible that parliamentary obstruction, or corrupt influences applied to members, or the pertinacity of a leading statesman who dominates his party and holds it back from some particular measure, may delay the gratification of the popular will. But (excluding large-scale corruption, unknown in Switzerland) such cases must be rare; such causes can have only a temporary operation. The Initiative has in recent years begun to be more frequently demanded in the Confederation,1 so that men, noting that virtual effacement of the distinction between Constitutional Amendments and Laws which now permits all sorts of proposals to be submitted under the guise of Amendments to the Constitution, have begun to ask why the right of Initiative should not be extended to Laws. The requirement of 50,000 signatures might be retained for Laws because the number of Swiss citizens has risen greatly since 1891, and a larger number, say 80,000, might be required for the proposal of an Amendment. As things stand, the people, though they cannot propose a law when it is called a “law “can propose what is really a law by calling it an Amendment, and can repeal an existing Law by enacting an Amendment which overrides it. The change in form would not increase the volume of direct popular legislation, while it might help to preserve for the Constitution that character of a Fundamental Instrument which it is fast losing.2 The critical period of a threatened strife of classes which has arrived for Switzerland as for other countries may suggest that the time is scarcely ripe for a final judgment on the system of Direct Legislation. But I must add that, revisiting the country in 1919, I found the opinion of thoughtful men much more favourable to the Initiative than I had found it in 1905. Many held it to be valuable as checking the undue power of any party which should long command a majority in the legislature: few dwelt upon the danger present to the mind of statesmen in other countries, that it may offer a temptation to irresponsible demagogues seeking by some bold proposal to capture the favour of the masses.
The foregoing account will have shown that such success as has been attained in Switzerland by the method of direct popular legislation is due to the historical antecedents of the Swiss people, to their long practice of self-government in small communities, to social equality and to the pervading spirit of patriotism and sense of public duty. No like success can be assumed for countries where similar conditions are absent. A popular vote taken over wide areas and in vast populations, such as those of Great Britain or France, might work quite differently. The habits and aptitudes of the peoples may not have fitted them for it. In Switzerland it is a natural growth, racy of the soil. There are institutions which, like plants, flourish only on their own hillside and under their own sunshine. The Landesge-meinde thrives in Uri; the Referendum thrives in Zurich. But could saxifrages or soldanellas gemming a pasture in the High Alps thrive if planted in Egypt? As, however, the plan of Direct Popular legislation has been tried on a large scale in the States of North-Western America also, a general judgment on its merits may be reserved till its working there has been examined.
EXTRACT FROM AN ADDRESS DELIVERED BY THE FIRST CONSUL (BONAPARTE) IN 1801 TO THE SWISS DELEGATES
“Songez bien, Messieurs,” disait Bonaparte, “à l'importance des traits caractéristiques, c'est ceux qui, éloignant l'idée de ressem-blanc avec les autres Etats écartent aussi la pensée de vous confondre avec eux. Je sais bien que le régirae des démooraties est accompagné de nombreux inconvénients, et qu'il ne soutient pas un examen rationnel: mais enfin il est établi depuis des siécles, il a son origine dan le climat, la nature, les besoins et les habitudes primitives des habitants; il ist conforme au génie des lieux, et il ne faut pas avoir raison, en dépit de la nécessité, quand l'usage et la raison se trouvent en contradiction, c'est le premier qui l'emporte. Vous voudriez anéantir ou restreindre lee landsgemeinde, mais alors il ne faut plus parler de démocratic ni de républicans. Les peuples libres n'ont jamais souffert qu'on les privat de l'exercice immédiat de la souveraineté. Ils ne connaissent ni ne goûtent les inventions modernes d'un système représentatif qui détruit les attributs essentiels d'une république. Je vous parle comme si j'étais moi-même un Suisse. Pour les petits Etats, le système féderatif est éminemment avantageux. Je suis moi-même né montagnard; je connais l'esprit qui les anime.
“D'heureuses circonstances m'ont placé à. la tête du gouvernement français, mais je me regarderais comme incapable de gouverner les Suisses. II vous est déjà difficile de trouver un landamman; s'il est de Zurich, les Bernois seront mécontents et vice-versa; elisezvous un protestant, les catholiques feront opposition.
“Plus j'ai réfléchi sur la nature de votre pays et sur la diversité de ses éléments constitutifs, plus j'ai été convaincu de l'impossibilité de la soumettre à un régime uniforme; tout vous conduit au fédéralisme. Quelle différence n v a-t-il pas, par exemple, entre vos montagnards et vos citadins! Voudriezvous forcer les cantons démocratiques à. vivre sous le même gouvernement que les villes, ou bien songeriez-vous à, introduire dans celles-ci, à, Berne, par exemple, la démocratic pure?
“La Suisse ne ressemble à aucun autre Etat, soit par les événements qui s'y sont succédés depuis plusieurs siecles, soit par les differentes langues, les différentes religions, et cette extrême différence de moeurs qui existe entre ses différentes parties. La nature a fait votre Etat fédératif, vouloir la vaincre n'est pas d'un homme sage.”
In 1803 Napoleon wrote to the Swiss as follows:
“Une forme de gouvernement qui n'est pas le résultat d'une longue série d'événements, de malheurs, d'efforts, d'enterprises de la part d'un peuple, ne prendra jamais racine.”
In some Slavonic countries something similar seems to have existed, but apparently not among the Celtic peoples.
A description of the Pitso (a primary assembly) among the Basu-tos may be found in the author's Impressions of South Africa, chap. xx.
As to these Volksanfragen, see an instructive discourse (published as a pamphlet) by M. Horace Micheli (of Geneva) entitled La Souverameté populaire.
See an interesting pamphlet of M. G. Wagniére, La Democratic en Suisse, p. 15. Throughout the eighteenth century a struggle went on in Geneva between the oligarchic government and the popular party which was endeavouring to assert, or recover, the rights of the mass of citizens. An interesting view of its latest phase may be found in Mr. D. W. Freshfield's Life of Saussure.
I quote (in note at the end of this chapter) from M Wagniére a passage from the First Consul's address to the Swiss delegates who came to Paris in 1801.
See as to the history of Swiss popular legislation, the valuable book of Th. Curti, Le Referendum, Paris, 1905, a translation, with additions, from the German original.
The Federal Constitution prescribes (Art. VI.) that every Cantonal Constitution must be accepted by the people.
It is sometimes alleged that this power of the Assembly has, especially in recent years, been unduly extended. By giving the title of Resolutions to enactments which are really Laws, and by declaring such Resolutions to be either “urgent” or “not of general application,” it can withdraw from the operation of the Referendum matters not really urgent. Whereas between 1874 and 1913 the citizens used the right of demanding a Referendum 31 times on a total of 284 Laws and Resolutions passed by the Assembly, they used it only 3 times on 62 Laws and Resolutions passed between 1905 and 1919. This decline from a percentage of 11 per cent to 5 per cent may suggest that the citizens found less occasion for the exercise of their right, but it may also be due to the large use of the power of “declaring urgency,” a power liable to be employed when the Assembly feared rejection by the people. Of 1150 enactments passed by the Assembly between 1874 and 1919, upon only about 350 could the Referendum have been demanded. In a debate (in 1919) in the Assembly a member observed “On raconte qu'un homme d'église qui voulait manger un poulet un jour de caréme dit à son poulet' Je te baptise carpe,' et sa conscience éìtait tranquille. Le Conseil Fédéral et la Commission du Conseil National font un peu la même chose pour leur poulet, pour ce projet. lis la baptisent' arrêté,' et leur conscience démoeratique est tranquille, parce que si c'est un arrêté il n'y a pas besoin de le soumettre au Referendum.” On this occasion the remonstrance prevailed, and the National Council changed the description of the enactment fiom “arrete” “to “loi.”
Geneva has an automatic revision of her Constitution every fifteen years
The Federal Constitution also prescribes (Art. VI) that in every canton the absolute majority of the citizens (i.e a majority of the whole number of citizens) shall have the right of demanding a revision of the Constitution.
The same difficulty has arisen in those States of the American Union which have adopted the Popular Initiative. To-day. the only distinction that can, both in Switzerland and these States, be drawn between a Law and a provision of the Constitution is that the latter can be repeated or amended only by a vote of the people.
Professor Hilty mentions that, having asked one of the inhabitants of a remote valley why all his village had signed the demand for a Referendum, he was informed that a native of the valley who came to collect signatures told the people that he was to get ten centimes — one penny, two cents — for every signature. Having no opinion of their own on the matter, their courteous generosity enriched him by a gift which cost them nothing.
A Memorandum is, however, issued in Oregon, U.S.A., for the information of the voters.
Deploige, Referendum in Switzerland, p. 181 of English translation.
Swiss opinion does not generally approve the plan of a Special Convention, and it is not employed in the Confederation.
Two were withdrawn, and at the beginning of 1920 three Initiative proposals were pending on which the people had not yet voted (one of these has since been carried), and the question proposed by the Assembly of accepting the decision of the Assembly that Switzerland should enter the League of Nations had not yet been voted upon.
In one case a Bill passed by the Assembly with only a single dissentient vote was rejected by a large majority on a Referendum.
The majority was wiser than the Ministry, for the measure damaged the party at the next general election.
Nevertheless in those States of the N. American Union which use the Referendum, democratic as they are, voting does not closely follow party lines
As to these four instances, called at the time “the four-humped camel,” see Th. Curti, ut supra, p. 334. And Deploige, English translation, p. 225.
One of these two was a proposal to strengthen the staff of the Federal Department of Justice, the other to increase by £400 the expenditure on the Legation at Washington.
Sir H. S Maine, Popular Government, p. 97.
When the Federal Constitution was submitted in 1874 the percentage who voted in Canton Zürich was 93.7, which seems to make a “record “in popular votings.
In the thirty years ending with 1912, even Geneva used the Referendum only ten times and the Initiative only seven.
Rousseau held that every law ought to be enacted by the citizens, but seems to have had in mind small communities, rather than a large nation. The doctrine that the People are the ultimate fountain of power descends from the ancient world, and was taken from the Roman law by St. Thomas Aquinas and other mediaeval writers.
This the people did when that Code was, after Welti's time, enacted.
No case was brought to my knowledge in which this had occurred. In Switzerland, as in America, minorities usually acquiesce quietly, perceiving that only thus can free government go on.
In his book entitled Popular Government.
Geneva was mentioned to me as a canton in which an independent committee of citizens had succeeded in defeating, on a popular vote, a scheme propounded by the Council, which they deemed likely to reduce the standard and variety of university teaching. Similarly, an ancient tower, associated with the history of the city, which the Council had meant to remove was saved by an appeal to popular vote.
A Swiss friend whose great abilities and experience entitle his opinion to high respect sums up to me his view as follows:
An interesting abstract of the doctrines of Rittinghausen and Considerant, writers of the last generation who influenced opinion on this subject in their time, may be found in the (already mentioned) excellent book of Th. Curti, he Referendum, pp. 200-207.
This objection was of course overridden by the insertion of the amendment as a part of the Constitution.
This happened in the case of a proposal to forbid vivisection.
It is sometimes alleged that the habit of withdrawing enactments as “urgent” from the category of those which can be made the subject of a Referendum may have contributed to this larger use of the Initiative, but other causes also may be suggested.
In the Canton of Zurich where the Initiative exists for Laws, enactments desired are usually proposed as Laws, and the popular Initiative in constitutional amendments is rare.