have the same effect? Again, should it be found that her husband is alive and residing in the United States, a citizen thereof, what becomes of the law conferring on the wife the right of the citizenship of her husband? This right, it has been held, can not be impaired by an indefinite residence abroad, her nationality and domicile following and remaining that of her husband. If this be true, a fortiori residence abroad, even in the country of nativity of one incapable of any volition, and abandoned there by her husband, could not operate to do so. Should the Swiss minister learn of the whereabouts of Mr. Weiss in the United States, would not the cantonal authorities be justified in returning his wife there that he might be compelled to support her? for, as correctly ruled in the Blümeling case, the statute of August 2, 1862, applies by its terms only to persons who are not citizens.

The question resolves itself into this: Grant that the continuous residence abroad in the country of origin by a wife apart from her husband may deprive her of the nationality of that husband even during his lifetime, can such a residence, when involuntary and the result of the husband's desertion, operate to the same extent in reviving the original domicile and nationality as if he were dead?

Your dispatch, as I understand it, holds that it would.
I am, etc.,

BOYD WINCHESTER.

No. 1035.

No. 191.1

Mr. Winchester to Mr. Bayard.

LEGATION OF THE UNITED STATES,

Berne, February 17, 1888. (Received February 27.) SIR: Swiss federalism repeats the essential traits of the federal polity as it exists in the United States, with the addition of many interesting and instructive peculiarities which give it an individual character. Whilst in some European countries very anomalous forms of governments have assumed the republican name, it is certain that there is at least one European state in which republicanism is both properly understood and practiced." In Switzerland, as in the United States, there is no single determinate sovereign body or assembly, or any real sovereign other than the people themselves. In the Swiss Confederation the popular will does everything, the legislative power being directly exercised by the body of the people by way of plebiscites, whilst in the Republic of France the tendency is to centralize the direc tion of public affairs almost entirely in the Chamber of Deputies; and in that of the United States, it is claimed with some color of truth, the initiative and legislation is being gradually taken away from Congress by a very occult but authoritative government of committees.

The most obvious difference revealed on first glance by the Swiss political system is the absence of the clear and total separation of the national from the local authorities, federal from state power, and the elaboration of checks and interlocking vetoes found in the United States. The Swiss have the three organs, a federal legislative, a federal executive, and a federal court, but they fail in the strict separation of each of these departments from, and its independence of, the others. There are two chief forms of union between states, confederation and federation, both composite political bodies; the first retains the char

acter of a contractual combination of states, the second implies the advance to the formation of a collective state or union. The former was the case with the Greek leagues under the hegemony of Sparta and Athens, the latter under the Swiss Confederation up to 1818, and the German Confederation of 1815.

The federation form of state appears in modern times in the United States under the Constitution of 1787, and was afterwards imitated by Switzerland in the constitutions of 1848 and 1874. The preliminary stage of confederation being passed, and the higher stage of federation or union reached, the constitution no longer depends on a contract be tween states, but implies the existence of a common state or govern ment, whose laws demand obedience from the minority.

The present Swiss constitution, adopted in 1874, was a mere revision of that of 1848, which had succeeded the federal pact that was framed in 1815, in place of the constitution called the act of mediation, which, having been introduced and guarantied by Napoleon in 1803, had fallen with the extinction of his power. The federal pact was the product of a time when the patrician families were in a state of triumphant reac tion against the restraints imposed upon them from 1798 downwards. The text of the constitution is not so brief, nor its language so terse as that of the United States. It is not confined to general principles, but is full of details, given at length and with some confusion of repetition. It leaves little room for contention in the construction of its phraseol ogy. Its alleged purpose follows closely that of the United States.

In the name of God Almighty! the Swiss Confederation wishing to strengthen the alliance of the confederated; to maintain and increase the unity, strength, and honor of the Swiss nation, has adopted the following federal constitution:

The people of the twenty-two sovereign cantons of Switzerland, united by the present alliance (then follow the names of the twenty-two cantons), form in their entirety the Swiss Confederation. The Confederation has for its object, to ensure the independ ence of the Fatherland against the foreigner; to maintain tranquillity and order within, to protect the liberty and rights of the confederated, and to increase the common prosperity.

There are three chapters, under the headings of (1) General regu. lations; (2) Federal authorities; (3) Revision of the constitution; and the document closes with what are termed "transient regulations."

Chapter I contains seventy articles, the most important of which are: First, those of a general character, declaring the cantons to be sover eign in so far that sovereignty is not limited by the constitution, and as such their exercise of all the rights not delegated to federal power: the equality of all Swiss before the law, with neither subjects nor priv ileges of place, birth, persons, or families; the guaranty to the cantons of their territory and constitutions (these constitutions must insure polt ical rights after republican forms, must be accepted by the people and be subject to revision on demand of an absolute majority of the voters: military capitulations forbidden; no permanent troops (standing army to be maintained (federal police force, gendarmes not included in this every Swiss liable to military service and every one who, by reason of said service, loses his health, is entitled to assistance from the Confederation, if in need, and the same as to family of one killed in the service; right of the Confederation to encourage, by means of sul sidies, public works that are of interest to the country, or considerable portion of it; right to create and assist establishments for higher in struction; public schools to be exclusively under civil authority, at tendance obligatory and gratuitous; liberty of conscience and indus try throughout the Confederation, except in the manufacture of salt and powder, federal customs, sanitary police measures, and regulations

1

touching the exercise of commercial and industrial professions which must not be contrary to the principles of liberty of commerce and indus try; the Confederation having the right to grant certificates of capacity to practice the liberal professions; right to regulate labor in factories and to protect workmen against dangerous or unhealthy industries; capital punishment abolished; gaming houses prohibited; direct contributions may be levied upon cantons for support of Confederation, wealth and taxable resources to be the basis; every citizen of a canton declared to be a Swiss citizen, with the right to establish and reside anywhere, with the full enjoyment, at the place of his domicile, of all the rights of citizens of the canton, and with the rights of an elector after three months' residence, paupers and those civiliter mortuus excepted; citizens subjected to the jurisdiction and legislation of their places of domicile in all the relations of civil law, but to be protected against double taxation; the Confederation to define the difference between residence and sojourn and to fix the measure of political and civil rights to the latter; Confederation to legislate as to the expenses of sickness and burial when occurring outside of canton of origin; liberty of conscience and faith to be inviolable; persons having paternal or tutelary authority shall dispose of the religious education of children up to the age of sixteen; exercise of civil and political rights not to be restrained by prescriptions of an ecclesiastical or religious nature; no one to be relieved from civic duty on account of religious opinions; no one to pay taxes for the sup port of religious worship to which he does not belong; Confederation may adopt measures to maintain public order and peace among members of different religious communities; bishoprics not to be set up without the consent of the Government; orders of Jesuits and societies affiliated with them forbidden, and this prohibition may be extended by federal decree to other religious orders whose action is dangerous to the Government or disturbs the peace between denominations; no new convents to be founded; Confederation may determine by statute as to the civil state (état civil), keeping of the registers, and as to marriage and divorce, but no hindrance to the former must be founded on denominational reasons, the indigence of either party, on their conduct or any police ground; the wife to acquire her husband's right of town and community; no charge to be made for admission to marriage, nor any similar tax to be levied on either party thereto; liberty of the press, with the right of the Confederation to take steps to repress abuses directed against it or its authorities; right of petition; no one to be deprived of his natural judge, and no extraordinary tribunals to be established; ecclesiastical jurisdiction abolished; for personal claims the debtor having domicile in Switzerland must be brought before the judge of his place of domicile, his goods by virtue of personal claims not to be seized or sequestrated outside of the canton where domiciled; bodily constraint abolished; final civil judgments rendered in one canton exeentory in all; Confederation may legislate concerning civil capacity, obligations, and contract, literary and artistic property, prosecution for debts and bankruptcy, but the administration of justice shall rest with the cantons, under reserve of the prerogatives of the federal tribunal; Confederation may fix limits within which a citizen can be deprived of his political rights and the extradition of accused persons from one canton to another; however, extradition must not be made obligatory for political offenses or those of the press; may take measures to incorporate homeless persons, and can dismiss from its territory any strangers compromising its domestic or foreign safety.

H. Ex. 1, pt. 1-96

Second. Those rights exclusively conferred on the Confederation; the manufacture and sale of war powder; to maintain the post-office and telegraphs (with inviolability of the secrecy of letters and telegrams); to coin money, determine the monetary system and legislate as to the issue and redemption of bank-notes, but must not create any monopoly for the issue of bank-notes nor decree the obligatory acceptance of these notes; to establish weights and measures; to declare war and conclude peace; to make foreign alliances and treaties, with the reservation to the cantons, with federal approval, to conclude foreign treaties on matters concerning public economy, neighborhood, and police; to regulate fishing and hunting; supreme inspection over dikes and forests in the ele vated regions; to grant rights for the construction and to regulate the management of railroads; to collect import and export duties, but the former must, as far as practicable, subject articles necessary to the mdustry and agriculture of the country and necessaries of life to the lowest possible tax, and levy the highest tax upon articles of luxury.

Third. The special restrictions upon the cantons; no canton to have more than 300 men as permanent troops without authority from the Government, and in event of differences arising between cantons, they shall abstain from all course of action or armament, submitting to decisions rendered conformably to federal prescriptions; no treaty or alliance of a political nature to be entered into between the cantons, except with the approval of the Government; agreements may be concluded between them on matters of legislation, administration, and jus tice, and as to these the federal power may be invoked for their execution. These are the only powers expressly prohibited to the cantons, all the others resulting from the relinquishment through the direct and discretionary assumption given the federal Government, as already stated.

Chapter II, Federal Authorities, embraces (1) federal assembly, (2) federal council, (3) federal chancellery, (4) federal tribunal, (5) national languages.

The first two, representing the legislative and executive departments, have been fully treated of in my numbers 169, November 15, and 176, December 15, ultimo.

(3) The chancellery is simply vested with the secretaryship of the federal assembly, custodianship of the records, the preparation for and publication of all official decrees of the federal council, and legislative enactments of the assembly. The chancellor is elected by the assembly for a term of three years, and at the same time that the federal council is chosen.

(4) Federal tribunal: It provides there must be a federal tribunal for the administration of justice in federal matters, the members of which must be appointed by the federal assembly, which shall see that the three national languages are represented in it. Any Swiss citizen eligible to the national council may be appointed to the tribunal, and its members must not engage in any other employment, career, or profes sion.

Civil jurisdiction extends to cases (1) between the Confederation and one or several cantons; (2) between the Confederation and corporations and individuals as plaintiffs, when the suit attains a degree of importance to be fixed by federal legislation; (3) between cantons; (4) between cantons and corporations or individuals, when one of the parties demands it, and when the suit attains a degree of importance to be fixed by federal legislation.

Further, it has jurisdiction in cases relating to heimathlosat (those who have no local citizenship), and differences between communes as to

the right of town, and of all causes placed within its competence by federal legislation.

Penal jurisdiction.-Its jurisdiction, aided by the jury, which must decide the facts, goes to cases of (1) high treason against the Confederation, revolt and violence against the federal authorities; (2) crimes and offenses against the law of nations; (3) political crimes and of fenses which are the cause or consequence of troubles requiring armed federal intervention; (4) charges against functionaries named by a federal authority when committed to the tribunal by such authority, and other cases placed within its jurisdiction by the constitution or laws of a canton, ratified by the federal assembly.

Public law. The tribunal is further given jurisdiction in cases of (1) conflicts as to competence between federal and cantonal authorities; (2) differences between cantons when within the domain of the public land; (3) claims for violations of rights guarantied by the constitution or federal legislation.

The tribunal shall in all cases before it apply the laws voted by the federal assembly and the decrees of said assembly having a general bearing. It shall also have regard in its decisions to the treaties that have been ratified by the assembly.

The assembly is authorized to place other affairs within the competence of the tribunal.

(5) The national languages: German, French, and Italian are declared to be the national languages of the Confederation.

Chapter III. Revision of the constitution. It provides that the constitution may be revised at any time, and when the two branches of the federal assembly can not agree upon any proposed revision, or when 50,000 Swiss citizens having the right to vote demand revision, the question shall be submitted to a popular vote by "yes" or "no," and if a majority of those voting affirm, the two branches of the federal assembly shall be renewed in order to carry out the revision. It closes with the provision that the constitution as revised shall take effect when accepted by a majority of the Swiss citizens and by a majority of the cantons, the popular vote in each canton to be taken as the vote of the canton.

The transient regulations which follow are unimportant, being designed simply to give time to the cantons in some instances to harmonize existing local laws with the provisions of the constitution, the most notable one being the postponement for five years of the enforcement of article 27, requiring the cantons to furnish gratuitous instruction in the public schools.

This concludes the constitution as submitted and adopted by a popular vote on Sunday, April 19, 1874, a result reached with considerable opposition, the vote being 340,199 for and 198,013 against; cantons 14 for and 74 against, the votes of the half cantons being counted as a half

rote.

Three amendments of the constitution have taken place since its ratification or within fourteen years of its history.

The first amendment in 1879 repealed the provision abolishing capital punishment and adopted as a substitute that "no condemnation to death shall be pronounced for reason of political offense. Corporal penalties are prohibited."

The second amendment in 1885 modified article 31 and interpolated article 32 bis, so as to authorize the "spirit monopoly" by the Confederation.

The third amendment in 1887 modified article 64, placing legislation