Were it joined to the executive power, the judge might behave with all the violence of an oppressor." Furthermore, "were the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would then be the legislator. He points out that when the legislative and executive powers are united there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. Calling the accumulation of legislative, executive, and judicial power in the same hands - whether of one, of a few, or of many, and whether hereditary, self-appointed, or elective - the very definition of tyranny, Madison considers their separation essential to the preservation of liberty.
In this essay, Madison clearly delineates his philosophy concerning separation of powers. The state constitutions do not violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and neither does the United States Constitution. Madison continues that if one looks at the state constitutions, there is no state in which the branches of government are absolutely separate and distinct. or, if the power of judging be not separated from the legislative and executive powers," did not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches. From these few facts, Madison infers that Montesquieu, when he wrote that "there can be no liberty where the legislative and executive powers are united in the same person. The legislative branch advises the king on constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial power. The judicial branch, then, acts in an advisory capacity to the executive branch. The English king not only appoints and removes judges he frequently consults them. For example, the English king acts in a legislative capacity when he enters into treaties with foreign sovereigns: once treaties are signed they have the force of legislative acts. He took the British constitution as his model, which he called "the mirror of political liberty." However, the most casual glance at that constitution reveals that the branches of the British government are far from totally separate or distinct. Montesquieu, the French political writer, formulated this principle of government. How separate should each branch of government be? He, however, is convinced that this charge cannot be supported. Too much power in one branch of government "is the very definition of tyranny." If these claims were true, Madison says that no other arguments would need oppose it. If one branch has too much power, it does not matter how many men govern or how they obtain office. Madison agrees with those who place great importance on the separation of powers, especially on the point that an unequal division of power could result in the loss of liberty. It is feared that the new government will collapse, and that liberty will be threatened.
Its opponents claim that the three branches of government are not sufficiently separate and independent and that power is too unevenly distributed. James Madison begins this paper by telling his readers that he is going to examine a specific principle of republican government: "separation of powers." One of the principal objections to the constitution is that it violates this important principle.
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