that Congress have the power of supplying the defect. Let gentlemen consider the ground on which they tread. If it is an omitted case, an attempt in the legislature to supply the defect will be, in fact, an attempt to amend the Constitution. But this can only be done in the way pointed out by the fifth article of that instrument; and an attempt to amend it in any other way may be a high crime or misdemeanor, or perhaps something worse. From this view of our situation, gentlemen may perhaps be led to consent to strike out the clause.
In Great Britain there are three estates—King, Lords, and Commons. Neither of these can be represented by the other; but they conjointly can form constructions upon the rights of the people, which have been obtained sword in hand, from the crown. These, with the legislative acts, form the British constitution; and if there is an omitted case, Parliament has a right to make provision for it. But this is not the case in America, consisting of a single estate. The people have expressly granted certain powers to Congress, and they alone had the right to form the Constitution. In doing so, they directed a particular mode of making amendments, which we are not at liberty to depart from.
The system, it cannot be denied, is in many parts obscure. If Congress are to explain and declare what it shall be, they certainly will have it in their power to make it what they please. It has been a strong objection to the Constitution, that it was remarkably obscure; nay, some have gone so far as to assert that it was studiously obscure—that it might be applied to every purpose by Congress. By this very act, the house are assuming a power to alter the Constitution. The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument. Such a power would render the most important clause in the Constitution nugatory; and one without which, I will be bold to say, this system of government never would have been ratified. If the people were to find that Congress meant to alter it in this way, they would revolt at the idea: it would be repugnant to the principles of the revolution, and to the feelings of every freeman in the United States.
It is said that the power to advise the President in appointing officers is an exception to a general rule. To what general rule? That the President, being an executive officer, has the right of appointing. From whence is this general rule drawn? Not from the Constitution, nor from custom, because the state governments are generally against it. Before the gentleman had reasoned from this general rule, he ought to have demonstrated that it was one. He ought to have shown that the President, ex officio, had the power to appoint and remove from office; that it was necessarily vested in the executive branch of the government.
It is said to be the duty of the President to see the laws faithfully executed, and he could not discharge this trust without the power of removal. I ask the gentleman if the power of suspension, which we are willing to give, is not sufficient for that purpose? In case the Senate should not be sitting, the officer could be suspended; and at their next session the causes which require his removal might be inquired into.
It is said to be incumbent on us to keep the departments distinct. I agree to this; but, then, I ask, what department is the Senate of, when it exercises its power of appointment or removal? If legislative, it shows that the power of appointment is not an executive power; but if it exercises the power as an executive branch of government, there is no mixing of
vol. iv.4933
