n is then turned out, and another put in. But the
Senate sometimes _rejects_ the new nomination; and what then becomes of
the old incumbent? Is he out of office, or is he still in? He has not
been turned out by any exercise of the power of appointment, for no
appointment has been made. That power has not been exercised. He has not
been removed 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time afterwards withdrawn, does _not_ remove the actual incumbent.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, remai