SEPARATION OF POWERS AND JUDICIARY 605 



selection admissible under the combination of these two controlling 

 principles? 



Such was the rule laid down by early French constitutions; the 

 monarchical constitution of 1791 as well as the republican constitu- 

 tion of the year III, and most of your state constitutions followed the 

 same rule quite promptly in the course of the nineteenth century. 

 Your Supreme Court and federal court justices have, on the contrary, 

 preserved the system of appointment by the executive,, and it is this 

 system which France also adopted after having made an experiment 

 which was not attended by success. 



It is indeed beyond doubt that the system which logically seems 

 to be most in keeping with the principle of separation of powers 

 conjointly with that of national sovereignty is the system of election. 

 This logic is lacking in the French law, but American legislation has 

 conformed to it only partially. Neither you nor we, therefore, are 

 logical in the end. We unquestionably violate both the principle 

 of separation of powers and that of the people's sovereignty. 



What is, however, to account for the fact that no judge is elected 

 in our country, while practically all of your state judges are desig- 

 nated by election? 



No legal explanation can be offered, but history and politics supply 

 us with the explanations not to be found in the law. 



If the elective method has not been kept up in France, this is not 

 only due to the unsatisfactory way in which it had worked, but 

 mainly to the fact that the executive power became strongly organ- 

 ized under the Consulate and the Empire and that it looked upon 

 the appointment of judges as one of its essential prerogatives. Sub- 

 sequent governments, even republican governments, saw to it that 

 such a powerful means of influence was not impaired in their hands. 



Things went differently with you, and the cause for this divergence 

 is to be found in the steady, uninterrupted development of the 

 elective system in your country, which logically extended to nearly 

 all public offices; there was no reason why judicial functions should 

 have been excepted. 



This may, perhaps, be a democratic error, but it is a genuinely 

 democratic conception. 



The logic of election has led you still further. Since elections 

 were resorted to for the choosing of judges, by virtue of its principle 

 it could only make temporary judges. We, on the contrary, have 

 borrowed from the system of venality of offices, as existing in the 

 old regime, the rules of life tenure and irremovability. This was a 

 restraint put upon the executive power in the exercise of its usual 

 prerogative over the officials appointed by it, I mean of its right 

 of removal. But the limitation has served the interests of justice 

 if it has not always been in accord with political interests. 



