If we look into the State constitutions, we shall find the line of distinction between the departments still less perfectly drawn, although the general principle of the distinction is laid down in most of them, and in some of them in very positive and emphatic terms.  In some of these States, notwithstanding the principle of distribution is adopted and sanctioned, the legislature appoints the judges; and in others it appoints both the governor and the judges; and in others, again, it appoints not only the judges, but all other officers.

The inferences which, I think, follow from these views of the subject, are two:  first, that the denomination of a department does not fix the limits of the powers conferred on it, nor even their exact nature; and, second (which, indeed, follows from the first), that in our American governments, the chief executive magistrate does not necessarily, and by force of his general character of supreme executive, possess the appointing power.  He may have it, or he may not, according to the particular provisions applicable to each case in the respective constitutions.

The President appears to have taken a different view of this subject.  He seems to regard the appointing power as originally and inherently in the executive, and as remaining absolute in his hands, except so far as the Constitution restrains it.  This I do not agree to, and I shall have occasion hereafter to examine the question further.  I have intended thus far only to insist on the high and indispensable duty of maintaining the division of power as the Constitution has marked out that division, and to oppose claims of authority not founded on express grants or necessary implication, but sustained merely by argument or inference from names or denominations given to departments.

Mr. President, the resolutions now before us declare, that the Protest asserts powers as belonging to the President inconsistent with the authority of the two houses of Congress, and inconsistent with the Constitution; and that the Protest itself is a breach of privilege.  I believe all this to be true.

The doctrines of the Protest are inconsistent with the authority of the two houses, because, in my judgment, they deny the just extent of the law-making power.  I take the Protest as it was sent to us, without inquiring how far the subsequent message has modified or explained it.  It is singular, indeed, that a paper, so long in preparation, so elaborate in composition, and which is put forth for so high a purpose as the Protest avows, should not be able to stand an hour’s discussion before it became evident that it was indispensably necessary to alter or explain its contents.  Explained or unexplained, however, the paper contains sentiments which justify us, as I think, in adopting these resolutions.