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This is the doctrine of the Constitution, as asserted by three AttorneysGeneral, to wit, Butler, Nelson, and Clifford, and as heretofore accepted by the Executive. Attorney General Butler (Opinion, March 29, 1837) says, the case involves constitutional questions of much practical importance.” “The Senate has no power to originate an appointment; its constitutional action is contined to a simple affirmation or rejection of the President's nomination. Whenever the Senate disagrees to such nomination it fails; and no appointment can be made except upon a new nomination to be made by the President. Suggestions as to the views of the Senate, in cases wbere that body disagrees to the Presi. dent's domination, may, no doubt, be informally communicated to him; but should be think proper to conform to these views, I know of no way in which it can be done consistently with the provisions of the Constitution, except by the making a new nomination in accordance therewith.” Mr. Butler proceeds to suggest that perhaps, “ as a superior rank may be said to include the inferior, the President may accept the confirmation to a rank inferior to that specified in the nomination, and issue a commission thereon,” but otherwise when the Senate proposes a prior date to the commission. These views of the constitutional question Mr. Butler urges as involving “the harmony of the two co ordinate branches, the independence of the President, the just weight of the Senate, the useful operation of the appointing power.”
The same case being subsequently before Attorney-General Nelson, he affirmed the same doctrine (Opinion, August 9, 1843). "The opinion of Mr. Butler” he says, " was recognized as the law of the case by the then President.” It was so recognized by President Tyler himself (in submitting a new domination). To disturb these reiterated decisions now would, I think, tend to the subversion of principles upon the cou. sistent maintainance of which the most importaut interests of the Gov. ernment are dependent.” And Mr. Attorney-General Clifford (Opinion, July 14, 1847) to the same point: “In consequence of the variation of the approval from the nomination, no commission could issue." It follows, then, that the commission dated July 11, 1859, issued by Presi. dent Buchanan to Dr. Simons, is not valid, and cannot place him, where it was designed to place him, at the head of the assistant surgeons, entitled by the law, in regard to promotion, to fill the first vacancy among the surgeons, but that his date and rank in the Medical Corps of the Army is of October 3, 1856, according to the nomination of President Pierce, and the confirmation of the Senate.
This appointment, however, is claimed for Dr. Simons on another ground; that it is a restoration to bis former rank. Now, a restoration certainly can be nothing, in fact or in law, but a new appointment, except in the case of an illegal and invalid removal from office, which is no removal at all in law, and may be so treated in fact. But if the removal was valid in law it cannot be annulled in fact. This principle is as well settled by authority as it is clear in reason. Mr. Legaré, Attorney-General (in Dubarry's case, November 29, 1842), said (to cite in this place only so much of that opinion as applies to this point): “He was clearly out of service by a lawful and valid, however harsh, and it may ever be uufair, exercise of the Executive power. The act dismissing him cannot be avoided. It is beyond the power of the Executive. All that the President can do in such cases is to repair the wroug done by a new appointment.” And Mr. Attorney-General Nelson (January 23, 1844): “I kuow of no power by which an officer once out of service can be brought back to it, other than by that of appointment."
Mr. Nelson lays down (November 6, 1843), the same doctrine in Whitney's case, and declares any other doctrine or practice to be “in direct repugnance to the Constitution and laws." Dr. Simons was out of the service by a valid and irreversible act. He was adjudged to be dismissed from the service by the sentence of a court martial, which sentence was duly confirmed and executed by the President, and it is not contended that these proceedings were illegal, that either the court or the President exceeded their jurisdiction or authority, but it is urged that the verdict and sentence were harsh, and it is erroneously stated they were reported by the Committee on Military Affairs to be unjust. This objection furnishes no ground now to set them aside.
Mr. Attorney-General Cushing lays down in Howe's case (Opinion, June 5, 1854), that if there be no “cause in law or fact to declare the sentence of the court-martial void ab initio, there is no rightful cause or authority to review or reverse it for alleged error.” And Mr. AttorneyGeneral Nelsou, in Moorhead's case (Opinion, November 6, 1843): “The facts disclosed by the record sbow it to be one in which the sentence pronounced and xecuted was peculiarly barsh and severe. ceedings of the court were exceedingly irregular; testimony manifestly illegal was adınitted, whilst that which was legal was ruled inadmis. sable. But still I do not perceive that these irregularities can be regarded as annulling the judgment pronounced. They might be appealed to as reasons why the revisory power, when called to act upon the proceed. ins, should not have approved the finding and sentence of the court, but that approval having been signified, they cannot avail wholly to avoid everything that has been done. The judgment of the tribunal created by the law has been pronounced and carried into effect, and the officer upon whom it operated was thenceforth unquestionably out of service. The judgment I now hold to be irreversible," and Mr. Nelson then repeats the doctrine as heretofore reported, “if Mr. Moorhead is restored to the service it must be through the power of appointment.”
Having thus shown that the dismissal of Dr. Simons cannot be annulled, and that his restoration can only be by a new appointment, it remains to consider, tirst, whether such appointment can be made, and, second, whether it ought to be made.
1. He cannot be appointed to this vacancy, nor to the head of the list of assistant surgeons, nor to rank by date of commission any assistant surgeon who was already in commission on the 3d October, 1856, when he was reappointed, if the laws regulating appointments and promotions in the Army by seniority be valid and binding. That they are cannot be questioned, unless they are overridden by the constitutional prerogatives of the appointing power.
If this be, indeed, the doctrine of the Constitution, if this forinidable prerogative, uncontrollable by law, is lodged in the appointing power, it is now, as the committee believe, asserteil for the first time. They find many such laws prescribing conditions and qualifications for office, and imposing restrictions upon the appointing power. They conceive, to use the language of Mr. Attorney-General Legaré, in regard to the Sena' e, that all laws do, to say the least, "chalienge the respect of that august body," and they are not aware that the validity of these laws has ever been questioned by the Executive.
In regard to this office of surgeon the law has imposed various restraints on the appointment. It requires that the appoiutee shall be first examined and found competent by a medical board ; also, that he shall bave served tive years as an assistant surgeon. (See act of June 30, 1934, chap 133.)
Are these laws invalid, as well as the law in favor of seniority? Are the various laws requiring appointments in the staff to be made from the line invalid? Is the law which has so long existed regulating promotions in the regiments by seniority invalid? If it could be necessary to point to a special grant in the Constitution to the law-making power in this regard, the committee would refer to the authority to make rules for the government and regulation of the land and naval forces. Surely, a rule of promotion is among the most obvious of these.
The committee cannot doubt that the laws of promotion in the Army are constitutional and binding laws, and that they forbid the appointment now proposed to the Senate. It is true that Attorneys-General Legaré and Clifford, in Dubarry's case, and Nelson in Whitney's and and Moorhead's, recognize the legality of such appointments. These cases, however, were in the Navy, where no law regulating appointments and promotions exists to forbid them.
Mr. Nelson, in his opinion, January 23, 1844, admits that in regard to the Navy the appointing power was controlled while the temporary law of August 4, 1842, was in force. Mr. Legaré, in the leading case of Dubarry, which the other cases follow, has certainly no intention to assert any authority in the appointing power, independent of, or superior to law; on the contrary, he says expressly : “Appointments have reference to the laws which they are made to fulfill, and seem to be not valid, ex. cept so far as they conform to these laws." The antedating of commissions, he suggests, must be for a good legal reason; for instance, he says, “ an officer under arrest on groundless charges is not promoted, because promotion were a pardon; but he is acquitted, and is nominated by relation back."
Everybody sees that this is no arbitrary advancement through partiality, but sheer justice, and a faithful execution of the law. So, if any law entitle an officer to promotion at the end of ten years, and the Executive having neglected to give him his due for some time, afterwards confer it, relation back seeins called for by the law itself. “ This,” he says, 66 is Vinton's case.” (2 Sum., 299.) This was au Army case, where the commission by brevet was antedated in strict compliance with the law. And Mr. Legaré, in regard to the restoration of an officer to bis former rank, says, unless “prohibited by some special law.” In the present case it is subinitted whether the antedates given to the commission of assistant surgeon, and again in the nomination to be surgeon, are not prohibited by the special laws governing promotion in the medical staff and fixing the number of surgeons and assistant surgeons of the Army. The legal right of promotion is lost by every officer whose position is affected by the antedate; and an appoiutment which takes effect before the vacancy occurred necessarily increases the grade beyoad the uumber fixed by law.
On the second point, whether this nomination ought to be confirmed, if the law permitted it, the committee desire to say but little, and that in reference rather to the very important principle involved than to the merits of this case.
It is a case in which one Executive reviews the act and rejudges the judgment of his predecessor. Formerly this was considered inadmissi. ble. “Each adıninistration,"says Mr. Attorney-General Wirt, October 1, 1825, "ought to considerthe acts of its predecessors conclusire; other wise no question could be settleil, but the executive business would be always in confusion.” “If," he says, a decisiou of Mr. Mouroe may be reviewed by Mr. Adams, he does not see how he could refuse to review
and reverse the decision of Mr. Washington, upon the application of any aggrieved party.” And Mr. Attorney-General Toucey, September 8, 1848, said: “It might well be asked which of the two high functionaries exercising the same authority would, in contemplation of law, be deemed to be in the right—the one who, at a proper time, and on a proper occasion, exercised his legitimate authority according to his best judgment, or the oue who undertook to go back into a past stage of administration and revise the acts of his predecessor, whose power was equal to or identi. cal with his own."
It does not appear that the Executive has attempted to review or reverse the decision in this case, but that he merely acted “in respectful compliance with the recommendation and request of the Senate."
But can the Senate set as a tribunal of appeal to review, upon the evidence, the verdict of courts ? If such appeal could be allowed in this case it must be allowed in all; it cannot, in honor and justice, be denied in any; and the whole time of the Senate may henceforth be employed in assuming the legal jurisdiction of courts-martial. A crowd of cases may await their review upon the principles of this case.
For all which reasons, as aforesaid, to wit, that the proceedings dismissing Dr. Simons cannot be avoided, and that he cannot lawfully be restored to his former rank by a new appointment, and that the law requires the appointment now of the senior assistant surgeon, the committee recommend that this domination be not confirmed.
On motion by Mr. Davis, Ordered, That the said report be printed in confidence for the use of the Senate.
Mr. Mallory, from the Committee on Naval Affairs, to whom were referred, January 19th, the nominations of John Harris, James Edelin, Benjamin Macomber, John C. Grayson, Frederick N. Wise, and Lucien L. Dawson, reported.
Resolved, That the Senate advise and consent to the appointment of the said persons, agreeably to their nominations respectively.
The Sevate proceeded to consider the nomination of Emery D. Potter.
On the question, Will the Senate advise and consent to the appointment of Emery D. Potter?
18 On motion by Mr. Pugh, The yeas and nays being desired by one-fifth of the Senators present, Those who voted in the affirmative are,
Messrs. Chandler, Collamer, Crittenden, Fitch, Foot, Harlan, Houston, Shields, Slidell, Wright.
Those wbó voted in the negative are,
Messrs. Broderick, Brown, Chesnut, Clay, Clingman, Davis, Doolittle, Fitzpatrick, Iverson, Jones, Mason, Pugh, Reid, Sebastian, Seward, Stuart, Toombs, Wade. No quorum voting,
On motion by Mr. Mason, The Senate adjourned.
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THURSDAY, FEBRUARY 3, 1859. The following messages were received from the President of the United States, by Mr. Henry, his secretary: To the Senate of the United States :
I nominate Wilson McCandless, of Pennsylvania, for appointment as district judge for the district court of the United States for the western district of Pennsylvania, vice Thomas Irwin, resigned.
JAMES BUCHANAN. FEBRUARY 30, 1859.
To the Senate of the United States :
I nominate Samuel W. Black, of Nebraska, to be governor of the Territory of Nebraska, in place of William A. Richardson, resigned.
JAMES BUCHANAN. WASHINGTON, 3 February, 1859.
The messages were read.
Ordered, That the nomination of Wilson McCandless be referred to the Committee on the Judiciary.
Ordered, That the nomination of Samuel W. Black be referred to the Committee on Territories.
Mr. Benjamin, from the Committee on the Judiciary, to whom was referred, the 2d inst., the nomination of Philip T. Colby, reported.
Resolved, That the Senate advise and consent to the appointment of Philip T. Colby, agreeably to the nomination.
On motion by Mr. Slidell, Ordered, That the Committee on Public Lands be discharged from the further consideratiou of the nomination of Christopher H. Dabbs.
On motion by Mr. Slidell, The Senate proceeded to consider the nomination of Christopher H. Dabbs; and
Resolved, That the Senate advise and consent to the appointment of Christopher H. Dabbs, agreeably to the nomination.
Mr. Clay, from the Committee on Commerce, to whom were referred, the 2d inst., the nominations of William Sheaver and William Nolen,reported,
Resolved, That the Senate advise and consent to the appointment of the said persons, agreeably to their nominations respectively.
TUESDAY, FEBRUARY 8, 1859. The following messages were received from the President of the United States, by Mr. Henry, his secretary : To the Senate of the United States :
I nominate Jesse Thomas to be surveyor of the customs for the port of Nashville, in the State of Tennessee, from the 11th day of March, 1859, when his present commission will expire.