It is doubtless true that the parliament could, as a matter of law, abolish all courts and assume to itself the administration of justice, but even in that case there would still exist the judicial power now administered by courts, and it would be equally distinct as now from the legislative function, even if both were exercised by the same agency of govern ment.
The French constitution of Sept. 3, 1791 (the first written constitution in Europe), recited that the ju dicial power cannot in any case be exercised by the legislative body or by the king, and that tribunals cannot interfere with the exercise of the legislative power nor suspend the execution of the laws, nor encroach upon administrative functions, nor cite any administrators to appear before them on ac count of their functions. This comprehensive limi tation is attributed by a thoughtful writer on this subject to the French historical associations, which were hostile to any judicial competency to criticise legislation for unconstitutionalty. It is to this in fluence that the writer referred to attributes the different views on this subject which are found in the French constitution referred to and that of the United States. Coxe, Jud. Pow. 78. From a his torical review on the subject the author last cited concludes that in France long before 1787 the French judicial power had been used to declare legislation to be void because contrary to the views of right entertained by the court ; and that, by the further contrast to American views, the judicial power in question existed under an unwritten constitution and was expressly prohibited under a subsequent written constitution.
Under the Swiss constitution the federal govern ment is organized to some extent upon the idea of the separation of powers; but as it has been ob served, "the separation of powers is not very strictly observed between the federal assembly and the fed eral council, nor indeed . . . between the judicial authority and the political federal authorities;" Adams and Cunningham on the Swiss Confederation 48. The Swiss federal tribunal is bound by all laws passed by the federal assembly without quali fication ; which Is not competent to decide whether the federal law be constitutional or unconstitution al; this is declared not to be a judicial question, nor is it such a question whether a constitution or a law of a canton contains anything contrary to the constitution of the confederation, such a question is extra-judicial and is decided by the federal as sembly; Vincent, Swiss Government 34, 142. An
other writer says that the Swiss federal court, al though instituted in imitation of the American, differs from it in an essential point, while in the United States judicial power alone extends to de claring a law unconstitutional, under the Swiss con stitution some points of cantonal law are reserved and the federal legislature is made the sole judge of its own powers and the authorized interpreter of the constitution; 1 Bryce, Am. Com. In Germany it is said that the law of a state must yield in case of conflict between It and constitutional law of the empire, and that the judicial tribunal must decide between them, but that It was uncer tain whether such tribunal can decide upon a ques tion of the constitutionality of a law of the empire; Coxe, Jud. Pow. 96.
In Canada it is said that the supreme court and the privy council in England have concurred in recognizing the rights of provincial courts to pass upon the constitutionality of the laws enacted by the provincial legislatures and the Dominion parlia ment; Doutre, Conat. of Canada, preface.
For an extended historical commentary on pre vious systems of law, with respect to the limitations of judicial power in passing upon the validity or effect of legislation, see Coxe, Jud. Pow. pt. 1.
The English doctrine of the absolute in violability of a legislative act never did ac quire a footing in this country. It was repudiated by James Otis nearly a quarter of a century before the framing of the Amer ican constitution. He contended before the superior court of judicature for the province of Massachusetts, that the validity of stat utes must be determined by courts of justice. This doctrine afterwards became the princi ple of American constitutional law. Befofe 1787, the colonial courts refused to grant writs of assistance, on the ground that gen eral writs of assistance were unconstitution al; Quincy (Mass.) 504; and see Bowman v. Middleton, 1 Bay (S. C.) 252, where an act passed by the colonial legislature was declared void ; Den v. Singleton, Mart. (N. C.) 49. Judicial questions of a national character were, under the confederation, de termined by a court; Articles of Confedera tion, Art. 9; and the framers of the consti tution ordained and established a judiciary as a necessary department, and used in it the phrase judicial power as one well under stood and not needing definition in the in strument itself ; Federalist, Nos. 22, 28, 80, 81; 3 Elliott's Deb. 142, 143.