No. 625.
Mr. Rublee to Mr. Fish.

No. 221.]

Sir: I have, in a former dispatch,* mentioned the appeal to the Federal Council of certain Roman Catholic ecclesiastics expelled by the government of the canton of Berne, in January, 1874, from the districts of the Jura, for persisting in recognizing Mgr. Lachat as the bishop of the diocese, contrary to the authority of the diocesan conference and of the government of the canton, as well as the order of the Federal Council of March 27, 1875, relating thereto.

The Federal Council, seeking to spare, as far as possible, the susceptibilities of the cantonal government, withheld any definite expression as to the validity of the decree of expulsion, and suggested to the Bernese government whether the time had not arrived when the decree could be properly revoked. The way was thus left open for the canton to settle the affair without any appearance of acting under the compulsion of a higher authority. It did not, however, accept the opportunity afforded.

Although the grand council or cantonal legislature met for its regular spring session but a few days after this action of the Federal Council, the affair of the expelled ecclesiastics was not taken up, the executive council declaring that further legislation for the security of peace between the different religious sects was necessary before the decree of expulsion could be safely revoked, and that it would not be possible to prepare and act upon a suitable measure on the subject before the autumn session of the grand council.

As the measure, after receiving the sanction of the legislative body, would still need to be submitted to and accepted by the people of the canton before it would become a law, nearly a year would elapse before, under the most favorable circumstances, the cantonal government would feel itself in a position to take action respecting the re-admission of the exiled ecclesiastics.

The Federal Council, however, has refused to assent to this indefinite delay, and, by an order, dated May 31, has pronounced the decree of expulsion incompatible with the existing constitution, and directed the government of Bern to revoke it within a period of two months. This delay is conceded in consideration of the fact that the decree was issued under the constitution of 1848, and that its validity at the date of its enforcement is not denied. Hence, the Federal Council holds that it was not annulled ipso facto by the adoption of the constitution of 1874, but that the necessary time must be allowed the government of Berne for effecting its recall without endangering public order. Some sharp criticisms have been made on this view of the question, and a good deal of irritation exists in the canton with reference to the action of the Federal Council, but mostly of a sullen and undemonstrative character.

In the mean time, the executive council of Berne has called an extraordinary session of the grand council for the 11th of June, and it is understood that an appeal will be taken from the Federal Council to the Federal Assembly. As far as I can ascertain, the general opinion is that the appeal will not be sustained; but it will be useful as affording a settlement by the highest authority of the construction of the constitution upon the points involved in this controversy. Of these, the principal [Page 1290] relates to the proper interpretation of article 50, which empowers “the cantons and the confederation to adopt the necessary measures for the maintenance of public order and peace between the different religious communities, as well as against the encroachments of the ecclesiastical authorities upon the rights of the citizens and of the state.”

The Federal Council declares that the article in question only authorizes such measures as are not in conflict with the principles laid down and the rights guaranteed by the constitution. Those who sustain the constitutionality of the decree of expulsion argue, on the other hand, that article 50 was designed to apply to exceptional crises in the relations between church and state, and that it warrants the adoption of any measure which the state, in its discretion, may deem proper to secure its imperiled authority or to .protect the rights of its citizens. Against the possible abuse of such discretionary power by the cantons, they assert that the admitted supervisory authority of the confederation affords a sufficient guarantee.

The Bund, the leading journal of the canton of Berne, while disagreeing with the views and action of the Federal Council, opposes an appeal from its decision. Such an open conflict between the government of the largest canton and the federal authorities would be, in its opinion, a political mistake, since, whatever might be the result, it would necessarily impair the consideration and influence of the one or the other, and would introduce dangerous dissensions in the ranks of the liberal party of Switzerland.

I have, &c.,

  1. Mr. Rublee’s No. 200, ante.