There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under the provision that the officer might be removed from office, at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U. S. 419, 425.

Various state courts have also held that where an officer may be removed for certain causes, he is entitled to notice and a hearing.

It must be presumed that the President did not make the removal for any cause assigned in the statute, because there was given to the officer no notice or opportunity to defend. The question then arises, can the President exercise the power of removal for any other causes than those mentioned in the statute; in other words, is he restricted to a removal for those causes alone, or can he exercise his general power of removal without such restriction?

It cannot now be doubted that in the absence of constitutional or statutory provision the President can by virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the Senate. Ex parte Hennen, 13 Pet. 230; Parsons v. United States, 167 U. S. 324, and cases cited. To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication.

The appellant contends that because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any other cause, and that the President was therefore by the statute prohibited from any removal excepting for the causes, or some of them, therein defined. The maxim, expressio unius est exclusio alterius, is used as an illustration of the principle upon which the contention is founded. We are of opinion that as thus used the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon that subject. It does not exist by virtue of the grant, but it inheres in the right to appoint,

unless limited by the Constitution or statute. It requires plain language to take it away. Did Congress by the use of language providing for removal for certain causes thereby provide that the right could only be exercised in the specified causes? If so, see what a difference in the tenure of office is effected as to this office, from that existing generally in this country. The tenure of the judicial officers of the United States is provided for by the Constitution, but with that exception no civil officer has ever held office by a life tenure since the foundation of the government. Even judges of the territorial courts may be removed by the President. McAllister v. United States, 141 U. S. 174. To construe the statute as contended for by the appellant is to give an appraiser of merchandise the right to hold that office during his life or until he shall be found guilty of some act specified in the statute. If this be true, a complete revolution in the general tenure of office is effected, by implication, with regard to this particular office. We think it quite inadmissible to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. The rule which is expressed in the maxim is a very proper one and founded upon justifiable reasoning in many instances, but should not be accorded controlling weight when to do so would involve the alteration of the universal practice of the government for over a century and the consequent curtailment of the powers of the executive in such an unusual manner. We can see no reason for such action by Congress with reference to this office or the duties connected with it.

In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes of removal thereby excluded the right of the President to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient.

It may be said, however, that there is some use for the provision for removal for the causes named in the statute. A removal for any of those causes can only be made after notice and an opportunity to defend, and therefore, if a removal is made without such

notice, there is a conclusive presumption that the officer was not removed for any of those causes, and his removal cannot be regarded as the least imputation on his character for integrity or capacity. Other causes for removal may, however, exist, and be demanded by the interests of the service, in order that the office may be better conducted, although the officer may not be proved guilty of conduct coming within the statute as a cause for removal. It is true that, under this construction, it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the government. The only restraint in cases such as this must consist in the responsibility of the President under his oath of office, to so act as shall be for the general benefit and welfare.

We are of opinion that the judgment of the Court of Claims should be Affirmed.

3. The Power of Direction and Supervision.

THE JEWELS OF THE PRINCESS OF ORANGE.

2 Opin. Attys. Gen. 482.

Attorney General's Office, December 28, 1831.

Sir: I have, according to your request, read your argument on the questions which have grown out of the seizure of the jewels said to have been stolen from the Princess of Orange; and I concur with you in the conclusion to which you have come, although I do not place my opinion on precisely the same grounds.

The main question, and the only one about which there seems to be much difficulty, is, whether the President may lawfully direct the district attorney to discontinue the libel now pending against these jewels in the district court of New York. The libel is in the name of the United States; it was filed by their attorney, in their behalf, and claims to have the property condemned as forfeited to the United States, for an offence alleged to have been committed against their revenue laws.

Assuming that the district attorney possesses the power to discontinue a prosecution, the next inquiry is, Can the President law

fully direct him, in any case, to do so? And this, I understand, is the chief point of difficulty.

I think the President does possess the power. The interest of the country and the purposes of justice manifestly require that he should possess it; and its existence is necessarily implied by the duties imposed upon him in that clause of the constitution, which enjoins him to take care that the laws be faithfully executed.

If it should be said that, the district attorney having power to discontinue the prosecution, there is no necessity for inferring the right in the President to direct him to exercise it,-I answer, that the direction of the President is not required to communicate any new authority to the district attorney, but to direct him or to aid him in the execution of the power he is admitted to possess. It might, indeed, happen that a district attorney was prosecuting a suit in the name of the United States, against their interest and against justice, and for the purpose of oppressing an individual: such a prosecution would not be faithful execution of the law; and upon the President being satisfied that the forms of law were abused for such a purpose, and being bound to take care that the law was faithfully executed, it would become his duty to take measures to correct the procedure. And the most natural and proper measure to accomplish that object would be, to order the district attorney to discontinue the prosecution. The district attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President could give no order to the court or the clerk to make any particular entry. He could only act through his subordinate officer, the district attorney, who is responsible to him, and who holds his office at his pleasure. And if that officer still continued a prosecution which the President was satisfied ought to be discontinued, the removal of the disobedient officer, and the substitution of one more worthy in his place, would enable the President, through him, faithfully to execute the law. And it is for this, among other reasons, that the power of removing the district attorney resides in the President.

The district attorney stands in relation to the President on very different grounds from that of the court. The judicial power is wholly independent of the Executive. The President's direction or approbation would be no justification for their acts. He has no right to interfere with their proceedings; and if they misbehave themselves in office, they are not responsible to him. But the dis

trict attorney is made dependent upon him, for the very purpose of placing him under his control; and the act of May 15, 1820, which directs the district attorney to conform to the directions of the agent of the Treasury, (whose powers have since been transferred to the Solicitor), shows that, in the discharge of his official duties, he is to be subject to the direction of the executive department.

Upon the whole, I consider the district attorney as under the control and direction of the President, in the institution and prosecution of suits in the name and on behalf of the United States; and that it is within the legitimate power of the President to direct him to institute or discontinue a pending suit, and to point out to him his duty, whenever the interest of the United States is directly or indirectly concerned. And I find, on examination, that the practice of the government has conformed to this opinion; and that, in many instances where the interference of the Executive was asked for, the cases have been referred to the Attorney General, and, in every case, the right to interfere and direct the district attorney is assumed or asserted.

In the second place, if this case were clearly embraced in the powers given to the Treasury Department, it would not, and could not, deprive the President of the powers which belong to him under the constitution. The power conferred on the secretary by the law of Congress, would be merely in aid of the President, and to lighten the labors of his office. It could not restrain or limit his constitutional powers.

To the Secretary of State.

R. B. TANEY.

RELATION OF THE PRESIDENT TO THE EXECUTIVE DEPARTMENTS.

7 Opin. of the Attys. Gen. 453.

Attorney General's Office, August 31, 1855. Sir: Your communication of the 4th instant requires my opinion upon the following question:

"Are instructions issued by the Heads of Departments to officers, civil or military, within their respective jurisdiction, valid and