Year: 1869

Radicsas in the House that the new law Is


eqr.valent in fact if not in terms. to repeal
of the old law. One of the Radical members
remarked that the difference between the con-
ference report and the repeating act is only the
difference between tweedle-dum and tweedle-
dee, which proposition Butler corrected by
stating the difference to be that between
tweedle-dee and tweedle-dum. OF course an
inequality expressed indiferently as dun to
dee, or as dee to dun, amounts to that equa-
ton which Butler tried to establish in this


jocose mathematical style between the two
acts. Unhappily, in this case, the calculus Of
Interpretation is not ct one with the calculus
of humor, and Buffers little joke does not
seem to have convinced either the Democrats
of the House, or the anti-repealers OF the


Senate, of the existence of an identity against


which their reason protested. If the Demo


Gratis had not seen good reason to believe that


the report was equivalent to surrender ofthe


principle at issue they would have voted orit;


whereas, in fact, they all voted against it. If


the anti-repealers of the Senate had not be-


lieved that the report favored their pretensions
they would have voted against it; whereas, in


fact, they voted for it.


1t is impossible to regard the action ofthese


two parties as anything else than contradic-


ton of Buffers assertion that the act is equiva-
lent to repeal, and it is almost equally impos-


sible to believe that SO astute man should have


been deluded by pretensions which could not
deceive even persons less acute than he. In
deed the act itself, taken as a whole, does not


sanction Buffers explanation Of its effects, and


does sanction, at least by reasonable implica-


tion, the Interpretation placed upon it by the


Democrats of the House and the anti-repeaIers


of the Senate. Buffers conclusions are drawn


from the second section of the act. which


reads as follows:


SEQ. 2. And be il further enacted, That during
any recess OF the Senate the President hereby Is
empowered In his discretion to suspend any civil
officer appointed by and with the advice and COZ
sent of the Senate, except judges OF the United


States Courts until the end Of the next session Of


the Senate, and TO designate suitable person,
subject TO be removed in his discretion or by the
/ resignation of another, TO perform the duties Of
such suspended officer I'm the meantime, and such


person designated shall take the oaths, and give
the bonds required by law to be taken and given
by the suspended officer, and shall, during the
time he performs his duties, be entitled TO the sa
airy and emouments OF such officer, no part OF


which shall belong to the officer suspended; and


1t shall be the duty OF the President, within thirty
days after the commencement of every session Of
the Senate, except for any Office which In his


opinion ought not to be filed, to nominate persons


TO oil all vacancies in offices which exist prior to
the meeting of the Senate, whether temporarily


filed or not, and so In the place Of all officers


pended; and if the Senate, during such session


shall refuse to advise and consent to an appoint


meut In the place of such suspended officer, then,


and not Otherwise, the President shall nominate


another person as coon as practicable to said ses


sion of the Senate for said office.


Taken by itself this section seems to justify
the view that suspension is equivalent to per-
manent removal; but the first section shows
that this was by no means the intention of the
act. That section reads thus:


SEC 1. Be Il enacted, etc., That every person
holding any civil Office to which he has been, or
hereafter may be, appointed by and with the sd.
vice aud consent of the Senate, and who shall
have become duly qualified to act therein shall be
entitled 10 hold such office during the term for
which be shall have been appointed, unless sooner
removed by and with the advice and consent Of the
Senate, or by the appointment, with the like ad


vice and consent, OF successor In his place, ex-
cept as herein otherwise provided.


The general principle of the act is thus es-
tablished by the first section, and that general
principle is that a person once appointed to
an Office "by and with the advice and consent
of the Senate" is entitled to hold such Office
for its full term, unless removed by and with
the advice and consent of the Senate, or by
the appointment of a successor similarly ap-
proved. The exception provided for in the
second section indicates only the manner in
which an officer may be suspended" not
removed; =. and limits the time during which
such suspension shall remain in force. That
is to say the substitute for such suspended
officer shall act until the end of next session
of the Senate, the President in the meantime
having the right to nominate this substitute
to the Senate as permanent successor. OF
course il such nomination be confirmed there
can be no difficulty; but if the Senate refuse
to confirm the nomination, only in that case
can the President nominate another person.
This nomination may, likewise, in the discre-
ton of the Senate be rejected and, of course,
in such case, the suspension is only suspen-
sion, the substitute is only substitute; and
his power to act is limited by the term fixed
in the law-to-wit: the expiration of the cur
rent session of the Senate. Here the difficulty
arises as to the manner in which the old in
cunbCAb 10 W kCoUAho tIo OAdi bC Vi Lis OAlAOC,
and how the substitute is to be elected. A
President, determined to exercise the power
of appointment to the extent of controlling
his patronage, would be very likely to insist
on maintaining the substitute in place, to
the exclusion of the principal. But this
would give rise to struggle with the Senate;
and to litigation between the competing par
ties which the courts would be pretty sure to
settle in favor Of the original officer if they
should regard the principle Of the law as
valid and constitutional. 1t is noticeable |
that this view of the case is taken by the New
York Tribune, q journal favoring the old law;
by the New York Times, journal committed
to repeal in the interest Of the President; by
the New York World, journal representing
the Democratic repealers; by Mr.. Trumbull,
and other Senatorial leaders, and by Messrs.