SEPARATION OF POWERS AND JUDICIARY 603 



become deformed? Lastly and particularly, have the United States 

 and France obtained out of the principle identical or different results? 



The answer to these questions would be too long if all the phases 

 of the problem were to be examined, be it only as to their most salient 

 characteristics. The separation of powers is connected with every- 

 thing or almost everything, and a whole treatise of constitutional 

 law could be written under that title. 



I propose to cover but a very limited portion of this extensive 

 field of study. Laying aside all that relates to government, admin- 

 istration, and legislation properly so called, I will confine myself 

 to the judiciary, specifically considered from the point of view of 

 the separation of powers. I wish to determine to what extent at the 

 present time its organization and operation are in harmony with 

 the deductions which seem to be logically implied in the famous 

 rule laid down by Montesquieu, and I will especially endeavor to 

 explain the characteristic differences which, both in the letter of 

 their respective constitutions and laws and in actual practice, 

 distinguish the American separation of powers from the French 

 separation. 



Summary 



I. Nature of the Judicial Power. 



II. Organization of the Judicial Power. 



III. Working of the Judicial Power. 



IV. Summing-up and Conclusion. 



Nature of the Judicial Power 



From the outset we are confronted in France with a first question 

 of a purely theoretical order, with which you are not acquainted, 

 and this constitutes the first contrast between legal conceptions in 

 the two countries. Our authorities wonder whether the judicial 

 power is actually a power or whether it should rather be in itself 

 looked upon as a branch of the executive, the latter making up with 

 the legislative the only two powers which legal analysis can find in 

 the state, namely, the power which makes the law and that which 

 enforces it either judicially or administratively. And this is not 

 only a doctrinal conception, more or less scientific, but the idea 

 has been expounded in certain legislative discussions during the 

 Revolution, in those memorable debates of the Constituent Assem- 

 bly in which the principles of public law found such eloquent 

 interpreters. Moreover, certain of our constitutions seem implicitly 

 to sanction this solution. It is not my purpose to take sides in a 

 controversy of a merely theoretical character. I shall only point 



