the newly created office of Adjutant-General.  Brevet General Porter, an officer of great experience in the artillery, and merit, was appointed to the command of another of those regiments.  Colonel Fenwick, then the oldest lieutenant-colonel of artillery, and who had suffered much in the late war by severe wounds, was appointed to a third, and Colonel Towson, who had served with great distinction in the same corps and been twice brevetted for his gallantry in the late war, was appointed to the last remaining one.  General Atkinson having declined the office of Adjutant General, Colonel Gadsden, an officer of distinguished merit and believed to possess qualifications suitably adapted to it, was appointed in his stead.  In making the arrangement the merits of Colonel Butler and Colonel Jones were not overlooked.  The former was assigned to the place which he would have held in the line if he had retained his original lineal commission, and the latter to his commission in the line, which he had continued to hold with his staff appointment.

That the reduction of the Army and the arrangement of the officers from the old to the new establishment and the appointments referred to were in every instance strictly conformable to law will, I think, be apparent.  To the arrangement generally no objection has been heard; it has been made, however, to the appointments to the original vacancies, and particularly to those of Colonel Towson and Colonel Gadsden.  To those appointments, therefore, further attention is due.  If they were improper it must be either that they were illegal or that the officers did not merit the offices conferred on them.  The acknowledged merit of the officers and the peculiar fitness for the offices to which they were respectively appointed must preclude all objection on that head.  Having already suggested my impression that in filling offices newly created, to which on no principle whatever anyone could have a claim of right, Congress could not under the Constitution restrain the free selection of the President from the whole body of his fellow-citizens, I shall only further remark that if that impression is well founded all objection to these appointments must cease.  If the law imposed such restraint, it would in that case be void.  But, according to my judgment, the law imposed none.  An objection to the legality of those appointments must be founded either on the principle that those officers were not comprised within the corps then in the service of the United States—­that is, did not belong to the peace establishment—­or that the power granted by the word “arrange” imposed on the President the necessity of placing in these new offices persons of the same grade only from the old.  It is believed that neither objection is well founded.  Colonel Towson belonged to one of the corps then in the service of the United States, or, in other words, of the military peace establishment.  By the act of 1815-16 the Pay Department, of which the Paymaster General was the chief, was made one of the branches of the staff, and he and all those under him were subjected to the Rules and Articles of War.  The appointment, therefore, of him, and especially to a new office, was strictly conformable to law.