All the members of the judiciary department are appointed by him, can be
removed by him on the address of the two Houses of Parliament, and form,
when he pleases to consult them, one of his constitutional councils. One
branch of the legislative department forms also a great constitutional
council to the executive chief, as, on another hand, it is the sole
depositary of judicial power in cases of impeachment, and is invested
with the supreme appellate jurisdiction in all other cases. The judges,
again, are so far connected with the legislative department as often to
attend and participate in its deliberations, though not admitted to a
legislative vote.
From these facts, by which Montesquieu was guided, it may clearly be
inferred that, in saying "There can be no liberty where the legislative
and executive powers are united in the same person, or body of
magistrates," or, "if the power of judging be not separated from the
legislative and executive powers," he did not mean that these
departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the
acts of each other. His meaning, as his own words import, and still more
conclusively as illustrated by the example in his eye, can amount to no
more than this, that where the WHOLE power of one department is
exercised by the same hands which possess the WHOLE power of another
department, the fundamental principles of a free constitution are
subverted.
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