Page images
PDF
EPUB

28. Since the referendum has been in force 226 Federal laws and resolutions have been enacted, of which 40 were submitted to the people, 14 by the compulsory and 26 by the optional referendum. The people have exercised the initiative five times since its adoption in 1891, rejecting the measures proposed four out of five times.

TABLE IV.-Demands for referendum which failed for want of requisite number of

[blocks in formation]

Table V, on the initiative in constitutional and legislative questions and the optional and compulsory referendum, in the Cantons gives, for each Canton, the date of adoption, the number of signatures required, and the measures subject to popular vote. The provisions governing the use of the initiative and referendum in the Cantons are too varied, and the use of these principles too numerous, for detailed specification in this report. The following general observations will, however, be of interest:

1. All the Cantons possess the initiative, either in constitutional or legislative matters, or both; and all, except Freiburg, some form, either compulsory or optional, or both, of the referendum.

2. The right of initiative is exercised in various ways:

I. When the demand is presented in form of a general suggestion. (a) In Schaffhausen and Thurgau, for example, the grand council immediately elaborates a law. (b) In Vaud and the Grisons the grand council prepares a law only after the submission of the proposition to the people and the expression of their desire for its preparation. (c) In other Cantons the grand council approves or rejects the suggestion. In the former case it prepares a law, in the latter case only after the suggestion has been submitted to and approved by the people.

II. When the people themselves present a finished bill, the legislative body is then only the agent of its transmission to the people.

III. When the people present a finished bill, but the legislature may also prepare a counter project, both being submitted to the people.

3. In certain Cantons a popular vote may take place not only on the demand of the voters, but also on that of the grand council or a certain number of deputies. This is the case in Zurich, Schwyz, Soleure, Aargau, Thurgau, St. Gall, Basel-Ville, Lucerne, Zug, and the Grisons. This form of the referendum does not commend itself in practice and is rarely employed.

4. In the Cantons, as in the Federal legislation, the difference between a law (L.) and a resolution (R.) is not defined. But in certain Cantons, as Zurich and Aargau, a list is drawn up of the subjects which may be finally disposed of by the representative body without reference to the people.

5. The word "treaties" (T.) in the table refers to such treaties as by their constitutions the Cantons have the right to conclude with each other or with foreign states under articles 7 and 9 of the Federal constitution.

6. The power to control expenditures (A.) varies greatly in the different Cantons. Generally the budget is not subject to the referendum. In Berne, where the compulsory referendum is in force, the people on several occasions rejected the budget. An article withdrawing the budget from the referendum was inserted in a bill which, having certain economies in view, was sure to receive popular sanction. This trick succeeded, and the budget is not now submitted to the people. But if, in order to balance receipts and expenditures, additional taxes are proposed, such increase must be approved by the people. Generally speaking, a new tax or increase of one already existing, or the proposal to issue a loan, must receive popular ratification. Thus, in Schaffhausen any resolution imposing an extraordinary tax of 200,000 francs or more, or an annual tax of 20,000 francs, must be referred to the people,

7. In all the Cantons which have the compulsory referendum all laws are submitted to popular vote, except in Vaud and the Valais, where the compulsory referendum applies only to certain financial measures.

8. Theoretically, the official message accompanying the law submitted to the people is intended to supply the absence of discussion by rehearsing the arguments pro and con. Practically this is not the case. The message is generally confined to a statement of the advantages of the proposed law and is an effort to render it acceptable. It does not inform.

9. Where the referendum is compulsory the people are not usually called upon to pronounce upon each measure as it is passed, but on all at certain stated times; in Berne, once a year; in Zurich, twice a year; in Soleure, very often; thus in 1892 there was a popular vote every three weeks, nearly.

10. As illustrating the use of the referendum:

In Zurich, from 1869 to 1890, 133 popular votes took place, of which 44 resulted in the negative. The average number of absentations was 26 per cent. The absentations were generally far less for financial measures. In communes where a fine is imposed for failure to vote the number of absentations is a minimum. Thus, in the referendum of June 25, 1871, in two communes where the voting is obligatory 97 per cent and 94 per cent of the voters took part; in three communes where voting is not obligatory only 19 per cent, 14 per cent, and 10 per cent took part.

In Berne, from 1869 to 1888, 68 measures were submitted to the people, of which 50 were approved. The average absentations was 45 per cent. In Bale-Campagne, from 1864 to 1881, of 94 popular votes, 45 were affirmative, 23 negative, and 17 without result, because an absolute majority of voters did not take part.

TABLE V.

[L., Laws; R., resolutions; T., treaties: A., appropriations; P., propositions; U., rules; I., laws and resolutions prepared as the result of popular initiative; C., prepared by grand council under delayed authority.]

[blocks in formation]
[blocks in formation]

The conclusions and opinions of Swiss and other publicists and legislators on the practical results of the referendum and initiative are of the most opposite character. Dubs (a distinguished Swiss federalist, ex-President) calls attention to the fact that in the ancient Landsgemeinde the whole people appeared together for the discussion of public questions and were deeply influenced by a sense of unity; that the deposit of a ballot yes or no in an urn, without previous discussion by the people assembled for that purpose, by scattered voters, fails to supply the ennobling motives of the primitive gatherings of a small, united population. He contends that the error of theorists consists in thinking that the people think as rapidly as they themselves. The people learn by practical experience, and its judgments can equal those of Parliament only on condition that they are formed in a natural way. He denies that the referendum instructs, maintaining that this can result only from popular reunions, where the people can hear the law discussed by competent men-a plan for which the people have neither the leisure nor the will.

Zemp (President of the Confederation) affirms that experience shows the Swiss people are more conservative than their legislators.

Hilty, the distinguished Bernese writer, while admitting that the referendum and initiative can not find universal application, prefers them to purely representative government for these reasons: (1) The people gain a better knowledge of the laws, and legislators are forced to prepare them in a simple form easily comprehended by the masses. (2) Patriotism is stimulated, the State ceasing to exist apparently for a privileged class, and responsibility is developed. (3) The referendum has the great merit of showing where the real majority is, and thus silences the protestations of the minority. He declares that while infallibility can not be claimed for the people, they have made, relatively, as few mistakes as legislative bodies.

Naville (Geneva) points out that the large number of abstentions proves that it is not the people, but a relatively small part of the electoral body which accepts or rejects a law; that it is ridiculous to suppose that each citizen can form a just and matured opinion upon the laws submitted; that political leaders having a majority in the legislature always possess means to secure a popular majority, especially when the law at issue is a complicated one, and concludes that legislation by the people in the sense that each citizen can study, digest, and form a really personal opinion on the submitted law is a chimera.

Brunialti remarks that experience shows that parties judge the referendum by the services it renders them, and not by its intrinsic value.

Carteret would suppress the referendum, especially the compulsory, and terms the FR 1902, PT 1-63

initiative "legislative dynamite," contending that both, in the hands of the clericals, are made the obstacles to progress.

Lavelaye, commenting on the practical results of the referendum in Switzerland, says that it has disappointed the hopes of its partisans and the fears of its adversaries. It was demanded by the radicals and opposed by the conservatives. It has shown itself hostile to centralization, to large expenditures. The suffrage which persists in electing radicals rejects everything which they propose. It is economical and antirevolutionary. Elections obey a mot d'orde; the referendum is a result of personal judgments.

Signorel, in his study on the referendum, concludes that the frequency of popular votes in Switzerland has not produced popular indifference; that the referendum has not proved a revolutionary instrument; that more than any other country Switzerland possesses the necessary conditions for good democratic government, and therefore that conclusions founded upon Swiss experience can not be applied else where; that in view of the large number of abstentions, voting, like jury duty. should be made obligatory; that the relative frequency with which the people have voted in the negative shows that the body of electors and the representative body are not in accord, hence the movement in favor of proportional representation; that the referendum has favored economy in public expenditures; that complete liberty of action should be secured by not including several propositions under one vote, this practice having led to the adoption of unwise with wise measures; that by repeatedly presenting the same law, as the law establishing a tax for exemption from military service, the people finally yield through lassitude; that after twenty-five years' experience, taking good and bad results together, no real progress has been made, and that only by modifying the representative system through compulsory voting and proportional representation can the decisions of the people reach conformity with those of its councils, and that this would probably lead to a more or less complete abandonment of the referendum.

ARTHUR S. HARDY.

No. 40.]

Mr. Hay to Mr. Ilardy.

DEPARTMENT OF STATE,

Washington, July 2, 1902.

SIR: Your No. 62, of the 10th ultimo, transmitting, in compliance. with the request made in the Department's instruction No. 32, of May 6 last, a report on the initiative and referendum in Switzerland, has been received.

The Department desires to commend the conscientious care shown in the preparation of the report.

I am, etc.,

JOHN HAY.

EXECUTION IN SWITZERLAND OF JUDGMENT OF MASSACHUSETTS COURT DENIED BY SWISS AUTHORITIES BECAUSE OF REFUSAL OF UNITED STATES TO GUARANTEE RECIPROCAL ACTION IN

SIMILAR CASES.

Mr. Hardy to Mr. Hay.

No. 70.]

UNITED STATES LEGATION,
Berne, August 22, 1902.

SIR: I have the honor to inclose herewith translation of a letter from Dr. Sidney Schopfer, a lawyer of Lausanne, from which it appears that one Mrs. Dupré, who was granted a decree of divorce in the State of Massachusetts, with alimony to the amount of $3,000, desires to bring suit against her former husband for payment of the same, and has applied to the authorities of the Canton of Vaud for the recognition of the decree of the Massachusetts court. The Vaudois author

ities are, it appears, disposed to grant the necessary exequatur, but, in the absence of a treaty, only on condition of a declaration of reciprocity, for which Dr. Schopfer applies to this legation. I await your instructions in the matter. It appears from the documents accompanying the inclosed letter that Mrs. Dupré is by marriage an American citizen, her former husband having been naturalized before the supreme court, common pleas division, of the State of Rhode Island, in Providence, December 28, 1895.

I am, etc.

ARTHUR S. HARDY.

[Inclosure.-Translation.]

Mr. Schopfer to Mr. Hardy.

LAUSANNE, August 20, 1902.

MR. MINISTER: I have the honor to solicit your good offices under the following circumstances:

I am consulted by an American lady named Dupré, now in Paris, 11 Rue Scribe, who was granted a decree of divorce October 2, 1901, which decree was made absolute by a decision of the supreme court at Boston of May 10, 1902.

As you will perceive from the accompanying documents, the said Dupré has due to her from her former husband the sum of 15,000 francs, or, more exactly, $3,000. Mr. Dupré resides in France and possesses real estate in Moudon, Switzerland. He has never paid anything to Madam Dupré and appears to have no intention whatever to do so.

Consequently Madam Dupré wishes to bring suit against her former husband, and, if necessary, to attach his property to the amount of what he owes her. But to defeat the opposition of the husband it is necessary to obtain beforehand the exequatur of the American judgment in the Canton of Vaud. In the absence of a treaty the conseil d'etat of Vaud, through its department of justice and police, has informed me that it is disposed to accord the exequatur required, on condition, however, that I produce an official declaration of reciprocity from your legation or some other competent authority.

I therefore take the liberty, Mr. Minister, to ask you in the name of your countrywoman Dupré to be so good as to furnish, on payment of costs, a declaration of reciprocity stating that a similar judgment of a Vaudois court could be executed in the United States.

Accept, etc.,

SIDNEY SCHOPFER.

Mr. Adee to Mr. Hardy.

No. 44.]

DEPARTMENT OF STATE, Washington, September 8, 1902.

SIR: I have to acknowledge the receipt of your dispatch No. 70, of the 22d ultimo, with inclosure, from which it appears that one Mrs. Dupré, who was granted a divorce in the State of Massachusetts, with alimony to the amount of $3,000, desires to bring suit against her former husband for payment of the same, and has applied to the authorities of the Canton of Vaud for the recognition of the decree of the Massachusetts court. It is stated that the Vaudois authorities are disposed to grant the necessary recognition provided the legation will furnish an official declaration of reciprocity, stating that a similar judgment of a Vaudois court could be executed in the United States. In reply I have to say that the general doctrine maintained in the American courts in relation to foreign judgments is that they are prima facie evidence only and not conclusive of the merits of the controversy between the parties. As the judgment in this case was

« PreviousContinue »