Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1808-02-26
liz 1-2 Cents SiAsYe.J

whereas there is the most palphh!c differ
ence both In the form and effect ST their
meaning. An independent department uf
a government is conceived to he Cclart.
inent furnished with powers 10 organize IT.
{se.f, and 10 execute the peculiar functions
assigned 10 1t. without the aid, or in other
words, independent OF any other Depart
ment. a moments attention to the consti-
'ution will serve to shew that this is rot the
lconsti uutional character of our judicial de-
lpartment An independent Judge may be
defined to be person who, in the exercise of
Judicial functions, is placed abo, tempta-
ton In the discharge Gi judicial duties, or
in o her words,a juige W q, wi neither gain
or lose any thing by deciding for or against
ne government, or for or against any in
dividual or number of individuals or l
Judge whose salary is fixed, and who does
not hold his Office at the pleasure of another
IperSon.
In England the king is the fountain of
honor and justice, and formerly decided
upon the meaning of the laws in his own
Iperson; afterwards, that branch Of eXccu-
i've duties was confided to his comn,issiocer;
who were appointed by him, held their APP
lpo ntments during his pleasure, and were
dependent upon him for their compensa-
lions, until by the statute of - of William
l3rd, 1t WAS declared, that the Judges should
hold their Offices during good behaviour
isuil however their Offices were vacated uD-
| on the demise OF the crown Until the lst Of
Anne when it was declared that the Offices
of the Judges should not be vacated until
six months after the demise of the crown:
and finally by statute of 1st of George Sd,
these salaries of the judges were fixed, and
IL was declared that their off ceS should
lnotbe vacated upon the demise of the crown.
This statute completely eStabli he'd, whac
IinEngland is called the independence Of
lkhe judgSS. BIT 10 infer from this, that the
Judicial department there is independent of
me parliament, would be an absolute mis-
application of terms and Incompatible
with every principle of the British consti-
tuition. From these observations it is not TO
be Inferred, that our constitution is precise
ly analogous 10 the British in all these res
Dects but to shew the meaning OF the term
g independently in the country from which
it was borrowed, and its misapplcation to
our constitution. 1t was his wish &c dis.
card these technical, generic terms, which
rather embarTaSS than assist us in the COR
rect INTERPRETATION of the constitution. II
W as his wish to examine the instrument.
and to deduce our Interpretation otit,ron
its own context. For whatever degree of in.
dependence is attached either 10 The iudici-
al department or the judges themselves ac-
cordine 10 the constitution, it was his wish
should be fully enjoyed by the department.
or the Judges without the smalle st abate-
ment but the constitution, as it is, should
be standard of Interpretation, not what il
is described to be by general borrowed
misapplied phr-ses.
With this general exposition of the con-
stitution lie would now proceed TO examine
the precise question under consideration.
The question is, can congress declare Nv
law, what acts amount TO treason arair,t
the u. States under the constitution liz
said tn at from the best reflections he had
been able to bestow upon the subject. un-
der a strong sense vt the duty imposed ,i,,on
him, he had no doubt but Congres, can aad
ought to do so. And since his r. fect;ons
he had wondered that he ever had doubted
the legislative right The first clause N
the constitution upon which Ills oues.ion
arises is in the following words
"Treason againstthe u. States shan cor
sist only in levying war agrinst them, or
IN sdherinG to their enemies giving hem
aid or comfort. Nopcrsun slali be convict
cd Of treason unless on the testimony of two
witnesses to the same overt act, or on con.
fession IN open court"
Mr.. G.. said that the only reason, which
could be deduced from his clause, fer cx-
Guiding Congress from passing all laws,
WDiCh might be deemed nc CeSSafY AID DgO-
per, for carrying into effect the powcrthere-
in contained, IVES, that in the distribut. on of
powers, this particular power was ciassi-
fed amongst the judicial powers But il
will be obsei yed that it is not directed
exclusively to the judiciary, nor legislative
department. and il will also be observed.
that some Of the powers classified under
the judicial department, are particularly
directed to the legislative department. -
Hence It may be fairly concluded, that tho
mere classification Of this power with The
judicial powers, is not Of itse If sufficient.
to exclude the necessary legislative power
for carrying Il into effect.
A reason however may be assigned, per-
haps not satisfactory to all, for this classi-
fication Of powers. Ii is derived from the
last part Of tho clause, which seems to BE- 2
Limitation to the judicial, as well as legisla-
tive department This part Of the clause
requires two witnesses, at least, 90 the same
overt act Of treason, rs Indispensable 20 q
conviction whereas in other criminal ca
ses, conviction may be had according tothe
ordinary rules OF evidence in courts, uDou
the testimony of one witness This lmia.
/ tion upon the ordinary rules of evidrnceTu
the courts, would Of itself have justified the
classification Of this power acc0rding to the
constitutional arrangement. TenCe it sp-
pears irresis'ably conclusive, a., { accord
f1,fs rffrn1 ~f.,,~- e 81. ee...t.s..