SEPARATION OF POWERS AND JUDICIARY 607 



The French system, we must say at the outset, is, above all, an 

 historical product. The separation of powers with us did not so 

 much proceed from Montesquieu as from the old French public law, 

 in which it slowly and laboriously assumed its specific characteris- 

 tics during the struggle between the monarchy and the parliaments. 

 This system in its essential features may be described as follows: 



The courts which we call judicial, that is, the courts proper, which 

 alone constitute the judicial power, may not take cognizance, except 

 in a few cases, of the differences arising between the administration 

 and citizens. Now we must point out that these differences occur 

 very frequently on account of the considerable importance of the 

 administration in our country and of the many ways in which it 

 comes in contact with citizens. The courts may not interpret any 

 administrative act, nor look into its execution, nor declare it void. 

 And if the court attempts to do this, deeming itself within its juris- 

 diction (which may well be the case since this jurisdiction does 

 exist in some exceptional circumstances), it is disqualified by the 

 authority of the administration itself which aroused the conflict. 



Now who is to solve this question, that is, decide whether the 

 matter should be submitted to the courts or to an administrative 

 jurisdiction? This decision for a long time rested with the execu- 

 tive, a fact which affords further evidence of the special character 

 of the French separation of powers entirely directed against the 

 judicial power. Since 1872 this duty has belonged to a special 

 court, called the Court of Conflicts, in which both the ordinary courts 

 and the administrative jurisdictions are represented, but which 

 may be presided over by the Minister of Justice. The executive 

 power is, therefore, still endowed with a preponderating position in 

 the Court of Conflicts. 



Let us suppose now that a question in regard to jurisdiction has 

 been decided against the court. The matter is withdrawn from 

 the latter 's hands forever. But who shall try it? For tried it must 

 be! This mission will devolve upon the administration itself, which 

 then takes the name of administration of litigation, signifying 

 an administration clothed with a judicial capacity. It will exer- 

 cise these functions through the prefectural councils and the state 

 council, organs half judicial, half administrative, whose members 

 are not protected by the privilege of irremovability, the real touch- 

 stone for judicial courts. The separation is thus carried to its ex- 

 treme limit. The case is similar when it becomes necessary to prose- 

 cute an administrative agent for a dereliction committed in the 

 exercise of his functions. The court cannot take cognizance of 

 this matter of liability unless the dereliction is so gross as in some 

 way to deprive the administrative agent of the capacity which pro- 

 tects him and to transform him into a plain citizen amenable to 



