The members of the judiciary department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other. According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates.
In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department.
In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX-OFFICIO justices of the peace; as are also the members of the executive council.
The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.
Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department. The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.
The executive prerogative of pardon, also, is in one case vested in the legislative department. The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other," refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.
In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other," we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority.
Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments.
I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.
What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper. Home Contents Previous Index. Bill of Rights History. Latin Maxims of Law. Expanded Bill of Rights. Proxy Voting for House. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts.
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.
This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.
This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it.
The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort.
The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie.
The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department.
Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department. The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.
It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments.
The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves.
Madison states Montesquieu's usage of the British government as the example of separation of powers in order to analyze Montesquieu's connections between the two. Madison quotes Montesquieu in Spirit of Laws as saying the British are the "mirror of political liberty". Madison continues by showing that the branches of the British government are not completely separate and distinct.
He continues by examining how judges can exercise no executive or legislative action, but may be advised by the legislative counsel. Furthermore, he expresses how the legislature can do no judiciary act, but can remove judges upon agreement from both houses, can do no executive actions, but constitutes the magistracy and has the power of impeachment.
From this analysis, Madison shows how each branch is, in some way, interconnected with one another. Madison also infers that when Montesquieu wrote, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates… if the power of judging be not separated from the legislative and executive powers"  he did not mean that there was to be no "partial agency".
After the American Revolution, many Americans were extremely wary of a too-powerful government. In order to avoid dictatorship, the idea of separation of powers was instilled in the political system. Madison takes a different angle at separations of powers at this point in the paper and considers them as more a system of " checks and balances " as he begins to address the states' constitutions.
Madison writes that there was "Not a single instance in which the several departments of power have been kept absolutely separate and distinct"  when he examined each constitution. Madison made a few exceptions when going over each state in No.
Massachusetts's constitution was in agreement with Montesquieu on the separation of powers as it did not state a clear disconnect between the three branches, but did contain partial agencies. New York's had no declaration on the subject even though they did not have total separation either. Madison overlooked Rhode Island and Connecticut when discussing the constitutions, but reasoned that it was due to their constitution's installment before the revolution.
For all the remaining states New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia , they all had constitutions that were contradicting in regards to separation of powers.
Federalist No. 47 is the forty-seventh paper from The Federalist Papers. It was published on 30 January under the pseudonym Publius, the name under which all The Federalist Papers were published. James Madison was its actual author.
The Federalist No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts New York Packet Wednesday, January 30, .
The Federalist Papers: No. Previous Document: Contents: Next Document: The Particular Structure of the New Government and the and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed. The Federalist Papers study guide contains a biography of Alexander Hamilton, John Jay and James Madison, literature essays, a complete e-text, quiz questions, major themes, characters, and a full.
Federalist Papers Summary Essay Concerning The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts. The Federalist Papers: No. 47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts From the New York Packet.