The executive power was made much stronger than the legislative by the Constitution of the year VIII (1800). In the latter there is no mention of the principle of the separation of powers; there is no definition of the law; the government proposed the laws the wording of which was prepared by the Conseil d'Etat and the executive power was entrusted with the care of providing practical regulations, especially in the form of reglements •d'administration pub lique. Under the First Empire, Napoleon took completely in his own hands the legislative and the executive powers. A great number of his decrees encroached upon the field proper to the legislative power, especially after the Senatus of the 28th Florio! An XII, which is consid ered as the first law decree. • The Charter of 1814 conferred upon the king the right of making regulations and orders concerning the execution of the laws and the safety of the state (article 14). It was only under the Restoration that the principle of the separation of powers was reasserted, under that regime the parliamentary and constitutional practices were made more definite than ever before. The executive power developed more and more its attributes by making such regu lations as were sometimes more or less required by the laws, and sometimes were not required at all.
The Charter of 1830 (article 13) curtailed the prerogatives of the sovereign by providing that °the king can no longer suspend the ef fects of the laws themselves nor their enforce ment.* But the practice which had been es tablished since the Charter of 1814 continued nevertheless to be followed. The form to be assumed in the regulations of public adminis tration was determined by order of 18 Sept. 1839, article 6, which requires a discussion of the matter first in committee, then in a gen eral assembly of the Council of State. The advice of the Council of State, in the regula tions of public administration, was made legally necessary by a law passed on 19 July 1845. The Provisional Government of 1848 kept in its own hands all the attributes of full sovereignty; its regulations are consequently considered as law-decrees.
The Separation of Powers was proclaimed once more by the Constitution of 1848. The President of the Republic was only to super vise and to procure the execution of the laws, but no mention was made that he had the right of drawing up regulations. however the practice established by the Directoire and adopted by the kings since the Charter of 1815, quickly reasserted itself and the President took the initiative of drawing up regulations.
The coup d'etat of 2 Dec. 1851 once more modified the conditions .under which the Separa tion of Powers used to be made effective. Up to 25 March 1852 the President disposed of the legislative and executive powers. During his reign, Napoleon III adopted the same system as Napoleon I, without however encroaching so radically upon the legislative power.
After the revolution of 4 Sept. 1870, the two powers were once more concentrated in the hands of the government of National Defense which wielded absolute power until 12 Feb. 1871.
(6) Separation of the Powers under the Third Republic.— The first law which organized the public powers was passed by the National Assembly on 17 Feb. 1871. Monsieur Thiers was made head of the executive power which he was to exercise under the supervision of the Assembly. Another law of 31 Aug. 1871, (Con
stitution Rivet), gave to M. Thiers the title of President of the Republic. A third law of 13 March 1873, (Provisional Constitution) took away from the President of the Republic the right of addressing himself to the Assembly; it also modified the prerogatives of the Presi dent which allowed him to suspend the official publication of the laws for a certain period. A law passed 20 Nov. 1873, (Loi du Septen nat), decided that MacMahon who had suc ceeded M. Thiers in May 1873 should hold the presidency for a term of seven years. It was only in January 1875 that the constitutional laws began to be discussed. The powers of the President of the Republic were defined by article 3 of the law of 25 Feb. 1875, in the fol lowing terms: °He (the President) has the initiative of the laws together with the members of the two Chambers; he supervises and se cures their execution?) Although no mention was made of the continuation or the abroga tion of the practice which had been followed since the Constitution of the Year VIII (1800) concerning the executive power, the framers of the new Constitution have always held that the fundamental rule to be applied was the principle formulated by Montesquien on the separation of the three powers: (1) Estab lishing the laws; (2) Enforcing them (3) Deciding on offenses or individual conflicts.
The Constitution of 1875 must be considered as being rather similar to that of the year VIII (1800) as regards the separation of powers; the legislative power is completely and exclu sively entrusted to the state, but there is ,no doubt that the President and his ministers have the right to make by-laws and regulations under the form of regulations of public administra tion, and decrees in Council of State or minis terial decrees. • The tendency of the legislative power is more and more to leave it to the executive power to devise the means of enforcing in a practical way the laws which have been passed. That delegation of power is the more necessary be cause in many instances the enforcing of the laws is conditional.upon theprevious establish ment of practical and detailed regulations or decrees which under the form of °Reglement !'administration Publique° always require the advice, that is to say the sanction, of the Coun cil of State in general session, and have the same character as the law itself. The other decrees (which do not assume the form of ('administration Publicridea) may be rendered without a special delegation of the leg islative power. The point is to know whether such decrees, rendered on the initiative of the Ministers of State, may or may not refer to such matters as have already been dealt with by legislation. As regards the constitutional laws, the negative is absolute. As regards the other laws, the tradition admits the eventual interference of the executive power, but in a very limited way, mostly in matters of a purely administrative character, rarely in civil or commercial legislation, and in that case merely for the purpose of settling points of de tail in the light of the fundamental principles, In fact, the growing activities of the legisla tive power form the best regulating factor of the separation of powers.