SEPARATION OF POWERS AND JUDICIARY 613 



tutionality. To repeat a comparison used by Mr. Boutmy, who has 

 an excellent acquaintance with the spirit of your institutions, we must 

 picture to ourselves these two types of government as " two animal 

 species quite removed one from the other." It has been scienti- 

 fically proved that any attempt to cross animal species removed 

 from one another yields but poor results. No better results could 

 probably be secured by attempting to mingle these two types of 

 government. 



It is in vain that we have a written constitution and that we pro- 

 claim very loudly the distinction between the constituent powers 

 and the constituted powers; in practice we act as though we had 

 a parliament invested w r ith a paramount authority. The reason as 

 stated above is that parliamentary government labors under its 

 own logic and leads inevitably in fact to an almost all-controlling 

 authority of parliament, even if there exists a written constitution. 

 Legally our parliament is not sovereign; politically and practically 

 it is. 



I do not think, therefore, notwithstanding the contrary opinion 

 held by a number of my fellow citizens, that it may be possible or 

 even desirable to adopt your " exception of unconstitutionally." 



You export bicycles, and especially agricultural implements, into 

 France, and your Chicago manufacturers flood our country with 

 these products, with which w r e are very well satisfied. But the 

 exception of unconstitutionality would not be a good article of 

 importation into France. 



Another equally potent reason which causes us to exclaim " Timeo 

 Danaos et dona ferentes " is the fact that the judiciary would be the 

 power which would suffer most thereby. It would soon become 

 disorganized, thrown out of balance and upset by the unwel- 

 come present thus made to it. The gain for politics would be but 

 trifling, while the judiciary would most assuredly be the loser in the 

 transaction. 



IV 



Summing-up and Conclusion 



To sum up and conclude: 



(1) The separation of powers is merely a formula, and formulas 

 are not working principles of government. Montesquieu had 

 chiefly aimed to indicate by his formula the aspirations of his times 

 and country. He could not and did not wish to propose a definite 

 and permanent solution of all the questions brought up by the govern- 

 ment of men and their long-felt longings for fairness and justice. 



(2) The separation of powers since this conception was first 



