606 CONSTITUTIONAL LAW 



There, doubtless, lies a most difficult problem in this matter of the 

 appointment and promotion of judges. Elective methods have not 

 given good results in France nor do they present such in your country. 

 But neither is appointment by the executive, on the other hand, so 

 very satisfactory, especially if it is considered that no magistrate 

 can in fact be appointed without numerous recommendations from 

 members of parliament, as is at present the case in France ; that no 

 appointment can be made without the approval of the deputy of the 

 electoral district; and lastly, that the magistrates depend for their 

 promotion on the ability to conciliate these many and sometimes 

 hostile influences. 



The formula of the separation of powers alone cannot remove 

 all these difficulties. It can, however, be of great assistance towards 

 the solution of the problem, inasmuch as it shows us that its applica- 

 tion is conditioned upon the organization of a body of judges who shall 

 have nothing to fear from the electorate, the executive, or the 

 representatives of the people, a body of upright, learned, and inde- 

 pendent men. 



Ill 



Working of the Judicial Power 



Here it is that the contrasts between the United States and France 

 are most conspicuously revealed. 



The principle of separation of powers has begotten very different 

 results in each country, in the way that a tree transplanted in a 

 different climate yields fruits more or less savory than in the country 

 where it originally grew and slowly developed with its special 

 features. 



Let us look successively for the demonstration of this idea into 

 the relations of the judiciary with both the executive and the 

 legislative. 



(1) Relations between the Judicial Power and the Executive Power. 

 The Americans and the French have conceived the relations between 

 the judiciary and the executive from entirely opposite points of view. 



The executive is vested with powers which enable it to interfere 

 with the functions of justice; it exercises them through the prose- 

 cuting officers and occasionally through the Minister of Justice and 

 even through the prefects, notwithstanding the fact that the latter 

 are functionaries of an essentially administrative character. This is 

 the first encroachment upon the principle of separation. 



This principle is, on the contrary, most strictly applied on the 

 judicial side. The courts which undertake to enforce the law 

 against a member of the administration are divested even of their 

 normal attributes. 



