604 CONSTITUTIONAL LAW 



out that it does not exist with you. No discussion on this point 

 has ever been raised in your country, so far as I know. Neither in 

 the text of your federal constitution nor of your state constitutions, 

 nor in Hamilton's letters in the Federalist on the analysis of the 

 judicial power, nor in the opinions of American judges, which form 

 such remarkable disquisitions on constitutional law, is the least doubt 

 expressed as to the existence of an actual judicial power. 



The reason for this difference between the United States and 

 France we shall find in the fact that there have always 'been close 

 relations between the courts and the government in France. Some 

 of our monarchical constitutions expressly state that justice was 

 administered ''in the name of the King," or " in the name of the 

 Emperor." Judges were appointed by the executive, the Minister 

 of Justice, and the prosecuting magistrate who, in so many respects, 

 is under the control of the government, exerted a constant influence 

 over .the courts. As a consequence of these facts, which seem to be 

 inconsistent with the existence of a distinct, autonomous, and sep- 

 arate judicial power, very naturally there set in a tendency to consider 

 the judicial power as a mere branch of the executive. This was 

 a way of reinstating logic in the relations of the executive with the 

 courts, and of doing away with the necessity of explaining certain 

 peculiarities of the judicial organization. It is indeed something 

 of a defect, I would even say a monomania, with jurists to endeavor 

 to introduce logic everywhere and to bring everything down to 

 simple ideas, whereas facts, which in this case are represented by 

 texts, laws, and regulations, often do not lend themselves to these 

 abstract and sometimes very unreal generalizations. On the con- 

 trary, the organization and power of the judicial department in your 

 country have always been such as to keep free from any of these 

 contradictions, which after all are only apparent. Nobody, there- 

 fore, has ever thought of setting forth a claim that this power, the 

 oldest function of the state, is not a real power. 



II 



Organization of the Judicial Power 



The subject of the organization of the judicial power leads us into 

 a less doctrinal and more practical realm. 



Here again we shall find several contrasts between the two coun- 

 tries. They have not understood the separation of powers in the 

 same way. To begin with, this separation seems to have a bearing 

 upon the very question of the selection of judges. In countries 

 which, like the United States and France, hold the principle of the 

 sovereignty of the people as the foundation of their institutions, 

 should not the elective system be considered as the only mode of 



