by any distinct and separate act of removal, for no such act has been performed, or attempted.  Is he still in, then, or is he out?  Where is he?  In this dilemma, Sir, those who maintain the power of removal as existing in the President alone are driven to what seems to me very near absurdity.  The incumbent has not been removed by the appointing power, since the appointing power has not been exercised.  He has not been removed by any distinct and independent act of removal, since no such act has been performed.

They are forced to the necessity, therefore, of contending that the removal has been accomplished by the mere nomination of a successor; so that the removing power is made incident, not to the appointing power, but to one part of it; that is, to the nominating power.  The nomination, not having been assented to by the Senate, it is clear, has failed, as the first step in the process of appointment.  But though thus rendered null and void in its main object, as the first process in making an appointment, it is held to be good and valid, nevertheless, to bring about that which results from an appointment; that is, the removal of the person actually in office.  In other words, the nomination produces the consequences of an appointment, or some of them, though it be itself no appointment, and effect no appointment.  This, Sir, appears to me to be any thing but sound reasoning and just construction.

But this is not all.  The President has sometimes sent us a nomination to an office already filled, and, before we have acted upon it, has seen fit to withdraw it.  What is the effect of such a nomination?  If a nomination, merely as such, turns out the present incumbent, then he is out, let what will become afterwards of the nomination.  But I believe the President has acted upon the idea that a nomination made, and at any time afterwards withdrawn, does not remove the actual incumbent.

Sir, even this is not the end of the inconsistencies into which the prevailing doctrine has led.  There have been cases in which nominations to offices already filled have come to the Senate, remained here for weeks, or months, the incumbents all the while continuing to discharge their official duties, and relinquishing their offices only when the nominations of their successors have been confirmed, and commissions issued to them; so that, if a nomination be confirmed, the nomination itself makes no removal; the removal then waits to be brought about by the appointment.  But if the nomination be rejected, then the nomination itself, it is contended, has effected the removal.  Who can defend opinions which lead to such results?

These reasons, Sir, incline me strongly to the opinion, that, upon a just construction of the Constitution, the power of removal is part of, or a necessary result from, the power of appointment, and, therefore, that it ought to have been exercised by the Senate concurrently with the President.