The argument derived from the duty of the President to take care that the laws be faithfully executed proves too much; as,if it prove any thing, it proves, that, the President may direct the judges, as well as other officers during pleasure. The supervisory power cannot control the discretion of an officer, given to him by law, because the faithful execution of the law consists in the exercise of such discretion; and to disturb that exercise is to violate the law, not to execute it. It is a power not enlarging the President's authority, but declaratory of the result of other powers before given to him by the Constitution. It is corrective, to put aside, where his power is adequate, both dishonesty and incompetency; but it is not directory nor transcendental, to bring all the officers and operations of the nation under his sway.

Under the construction at present given to the Constitution and laws, the President, certainly, has the power to remove most of his appointees from office. But that is not the matter, now, for consideration. The question is, whether the power to remove, involves, as a consequence, the right to direct. The principle which must govern this question would seem to be, that the right of direction, wherever it exists, results from official connection, subordidation and responsibility and not from tenure of office. If the duty belong to the Executive Department, the right of direction is in its head,— if to the Judiciary, the right of direction is in the judges,if to the Legislative, the right of direction is in Congress. The direction in these several cases, by force of this principle, is in perfect harmony with the system. It proceeds from official responsibility to the principal, and the duty of the subordinate, to follow what the principal directs. The subordinate is bound to obey, because the principal is responsible for him in the very matter directed, and his direction justifies the officer who obeys him. Any other principle must produce perpetual conflict and confusion. The attempt to make a test of the removing power fails as soon as applied. The marshals are, as to matters of judicial cognizance, directed by the Courts, to whom they are responsible, and for the proper direction of whom the Courts are responsible; yet the Courts do not appoint, and cannot remove, the marshals.

Under these views, the supervisory power of the President may be reconciled with the responsibility of his appointee to another authority. His power will be corrective whilst the other ~ will be directory and transcendental. Thus as in case of the Secretary of the Treasury, Congress may prescribe the du

ties and require reports to them of its performance. and the President may remove for ascertained non-performance or malfeasance. If, however, we grant to the President a directorial power, consequent on the power to remove, the case is not one of usurpation, but may be one of abuse of power. The propriety of an attempt to direct the conduct of the subordinate, will depend on his powers and duties. If they accord with the direction given by the President, he may justly remove for disobedience; if they do not, the removal will be an abuse of power, perverting it to a purpose for which it was never designed. But the danger of this perversion is so imminent whenever the superior officer is disposed to strengthen his own hands, that the power which makes the subordinate wholly dependent cannot be safely entrusted to him. This is fully demonstrated in the proceeding of the President on the removal of the deposits.

451. But, the President contends, that, the Treasury Department is on the same footing as the other departments;— that, the Secretary, being appointable and removable by him, is an executive officer, the mere instrument of the Chief Magistrate, in the execution of the laws, and like the other heads of departments, subject to his supervision and control; That, the pretension, that, the Secretary is an officer of Congress is not warranted by any thing in the Constitution; no joint power of appointment is given to the two houses of Congress; nor is there any accountability to them, as one body. The consequence of this position is, that, the President has uncontrolled disposition of the Treasury, as all the inferior officers must also be subject to his direction.

The President, however, does not leave his pretensions to the possession of the Treasury to be for a moment doubtful, or to rest upon inference. He claimed distinctly the right to manage the public treasure, in his inaugural message; and in his protest to the Senate, there is nothing equivocal; the doctrines in that message are thus summed up by him:

"It is settled by the Constitution, the laws, and the whole practice of the Government, that the entire executive power is vested in the President of the United States; that, as incident to that power, the right of appointing and removing those officers who are to aid him in the execution of the laws, with such restrictions only as the Constitution prescribes, is vested in the President; that, the Secretary of the Treasury is one of those officers; that, the custody of the public property and money is an executive function, which, in relation to the

money, has always been exercised through the Secretary of the Treasury and his subordinates; that, in the performance of these duties, he is subject to the supervision and control of the President, and in all important measures having relation to them, consults the Chief Magistrate, and obtains his approval and sanction; that the law establishing the Bank did not, as it could not, change the relation between the President and the Secretary did not release the former from his obligation to see the law faithfully executed, nor the latter from the President's supervision and control; that, afterwards, and before, the Secretary did in fact consult, and obtain the sanction of, the President, to transfers and removals of the public deposits; and that, all departments of the Government, and the nation itself, approved or acquiesed in these acts and principles, as in strict conformity with our Constitution and laws.'

This unequivocal and presumptuous claim to the possession of the public funds produced universal astonishment and indignation in Congress, and throughout the country, compelling even the usually unyielding temper of the President to bow before them. An attempt was therefore, made within four days after the communication of the protest, to qualify it by a supplement, alleging that several passages of the former might be misunderstood.

"I admit," he said, "without reserve, as I have before done, the constitutional power of the Legislature to provide by law, the place or places in which the public money or other property is to be deposited, and to make such regulations concerning its custody, removal, or disposition, as they may think proper to exact. Nor do I claim, for the Executive, any right to the possession or disposition of the public property or treasure, or any authority to interfere with the same, except when such possession or disposition or authority is given by law; nor do I claim the right, in any manner, to supervise or interfere, with the person entrusted with such property or treasure, unless he be an officer whose appointment, under the Constitution and laws, is devolved upon the President alone, or in conjunction with the Senate, and for whose conduct he is constitutionally responsible."

The extent of the claim of the President over the public property and money, as an executive function, is not at all narrowed by this explanation. For all officers of the United States must be appointed by the President in conjunction with the Senate, by the President alone, or by the courts of

law, or the heads of departments; in the last case, the subordinates are appointed by the superior officers, and by and through them are subject to the President; and he does claim, even in the supplement, by unequivocal implication, the right to "supervise or interfere with the person entrusted with the public property or treasure, if he be an officer whose appointment is devolved upon him alone, or in conjunction with the Senate."

452. If it were the duty of the Senate to reprehend the interference of the President with the functions expressly, and exclusively, given to the Secretary of the Treasury, it was more specially required, to rebuke the audacious assumption of power maintained in the protest, as well as the invasion of the privilege of the Senate by the protest itself.

By a vote of 27 to 16, a majority more than double that on the former reproof, the Senate resolved, "That the protest communicated to it on the 17th April, by the President of the United States, asserts powers belonging to the President, which are inconsistent with the just authority of the two Houses of Congress, and inconsistent with the Constitution of the United States." And, at the same time, the right claimed and exercised by the President, to make a formal protest against votes and proceedings of the Senate, declaring them to be illegal and unconstitutional, and requesting the Senate to enter such protest upon its journals was repudiated, and the protest was declared a breach of the privileges of the Senate, and refused a place on its journals.

453. Not content with the share in the appointing power, which the Constitution has allotted to the President, he has sought to engross the whole power to himself; by endeavouring to make his nominations imperative and conclusive upon the Senate; by availing himself of, and making, opportunities, to fill vacancies, without their consent; and by appointing to office, persons who have been rejected by the Senate. Thus when the Senate have rejected his nominations, as in the case of the Surveyor of the Port of New York, of the Receiver of the Land Office in Mississippi, he has renominated them; procuring the appointment to be made in one case, though it was rejected in the other. So, when the presidential instruments, the Government Directors of the Bank, were rejected by the Senate, they were renominated, with a threat that unless approved, no others would be named: Thus, the nomination to office which should have been made during the session of the Senate, has been reserved until the adjournment of that body,

when the officer has been nominated and thus enabled to hold his place until near the rising of the Senate from the succeeding session; by which means, the officer retained place for many months without the assent of the Senate, as was the case of Senator Hill, whilst officiating as a Comptroller of the Treasury: Thus, instead of submitting, at the earliest convenience, the nomination of the high offices of State, for the approbation of the Senate, as in the cases of Mr. Taney, Secretary of the Treasury, and Mr. McLane, Secretary of State, he kept them in office the greater part of a year without the approbation of the Senate, and many months during the session of that body: Thus, when the Senate rejected Stambaugh, the editor of a newspaper, nominated as an Indian Agent, he was immediately after appointed to the sub-agency; and when Gwinn was rejected, as Receiver of a Land Office, he was immediately upon the rising of the Senate, reinstated in the office for which they deemed him unfit.

454. To this dispostion to abuse the power of appointment belongs the case of the Turkish mission. It has always been contended by the Senate that the President has no power, without the advice and consent of that body, to institute a mission to a State with which we have had no previous diplomatic relations; and whenever the occasion has presented itself they have testified their disapprobation. Thus, they had negatived the mission instituted by Mr. Jefferson to Russia; entertained the protest against the appointment of the ministers to Ghent, even during war; and reproved the claim of right made by Mr. John Q. Adams in relation to the Panama mission.

The power perhaps is a doubtful one, and much may be said, for and against it. Mr. Adams had instituted a mission to Turkey in 1828, and doubtless believed himself constitutionally entitled so to do. Granting the right of the President to institute such missions, during the recess of the Senate, he is certainly required, by the Constitution, to submit the appointment of the ministers he may select for the approval of the Senate, at the next session after the appointment, if the service shall so long endure.

On the 12th September, 1829, and during the recess of the Senate, President Jackson appointed commissioners to negotiate a treaty with the Sublime Porte. All parties agreed, that, it was the duty of the President to have submitted the appointment of the commissioners to the Senate, unless the mission was at an end before the Senate had adjourned; and