608 CONSTITUTIONAL LAW 



ordinary law. Otherwise the case is taken away from the court, 

 as, indeed, in order to pronounce a judgment on a question of lia- 

 bility, the court would have to construct an administrative act, 

 which it may not do. Such is the system in force at the present 

 time. Up to 1870 the prosecution of officials who had rendered them- 

 selves liable was provided for in a different w r ay. It w r as permitted, 

 if authorized by the state council (Art. 75 of the Constitution of the 

 year VIII). The leaders of the revolution of the 4th of September 

 hastened to suppress this rule which had shielded the worst excesses 

 of the administration under the Second Empire. But French public 

 law soon became disorganized through this abrogation, and the 

 administrative jurisprudence revived the old rule of administrative 

 guaranty under another form; it claimed that the principle of sepa- 

 ration of powers would be violated if the courts had to pass judgment 

 on cases of liability incurred by a functionary, as they would neces- 

 sarily be taking cognizance of an administrative act. 



This distrust of the courts which is shown by the administration 

 and the jealous independence which characterizes the latter is, we 

 cannot repeat too often, only to be explained in the light of history. 

 What has been introduced in France is not the separation as de- 

 scribed by Montesquieu in his immortal chapter vi. But the new 

 public law has retained the principle of separation as contained in 

 the old public law by giving a legal character to what was only an 

 administrative practice, and by making of it an institution with 

 peculiar and well-marked traits. The embryo, shapeless at first, 

 and slowly developed in the last centuries of the French monarchy, 

 resulted into the sharp formula set forth by the Constituent 

 Assembly. 



The men of the Revolution who had received their legal education 

 from the old regime and who had been present at the struggle of the 

 parliaments against monarchy, simply held on to the administra- 

 tive practices introduced by the King's Council and the intendants. 

 These practices constituted the law at the time when the Revolution 

 broke out, and were sternly enforced in a manner which could not be 

 opposed and which had totally suppressed every resistance. 



Your conception of the relations between the judiciary and the 

 executive is not of the same nature. Your courts may take cogni- 

 zance of any litigation raised by the enforcement of the laws, even 

 when the administration is a party to it. You are not acquainted 

 with administrative jurisdictions; your courts may even serve in- 

 junctions upon the administration, ordering it to take such action 

 as is required by law for the benefit of the public, or to discontinue 

 any unlawful action. As to the liability of officials, it rests on quite 

 different foundations, which it is unnecessary for me to point out; 

 you know them better than I. 



