#- *** 

ARMY  MEDICAL  LIBRARY
FOUNDED 1836
WASHINGTON, D.C
$}■)::■
*-'":-^e
V.
^IP	fv .•yr-j	Hi
• '		
**s&£4 1!W		
SsSli->:-&A*iJ		
^Hph% >^*i. "-Ovfijfc j		
k^^-.-A. *sjr '^'^b^s^^h		
mt/Tr-	^"3^ a	
 
 
 
ri
OPINION  OF  HON.  JOHN  NELSON.
                        Baltimore, 25th January, 1859.
  Dear Sir,—In  availing myself of the privilege accorded
by your note  of 21st inst. I propose to confine myself to an
examination,  necessarily brief and hurried, of the legal prin-
ciples that are supposed to be involved in the pending nomi-
nation of  Dr. J. Simons, as a  Surgeon  in the Army of the
United States.  Of the merits of his case as presented by the
proceedings which eventuated in his dismissal from the pub-
lic service, I shall say nothing, assuming that the investiga-
tion, laborious and thorough,  already prosecuted in the Sen-
ate, and which resulted in his signal vindication, must on
that point be regarded as conclusive.
  The single inquiry I suppose now to be whether, under all
the circumstances, the nomination of Dr. Simons as made to
the Senate is consonant to the Constitution and the Laws of
the United States.  With a view to the satisfactory solution
of this question, it is proper to recapitulate facts and dates.
  Dr.  Simons was originally appointed Assistant Surgeon
with, rank as such, from the llth day of July, 1839.  He
continued to serve in that capacity until the 12th day of No-
vember, 1855, when he was tried by a General Court Martial,
convened at Fort Riley, by which he was adjudged to be dis-
missed from the service.
  This sentence was  approved  by President Pierce, on the
16th  day of January, 1856,  and  he was  accordingly dis-
missed.  On  the  24th day of October, 1S56, he was re-ap-
pointed Assistant Surgeon.  And at the ensuing  session of
Congress  begun on the first Monday of December, 1856, his
nomination was  submitted to the  Senate for confirmation. 
ii
At the same  time  the nominations of Thomas C. Madison,
and Jos. K. Barnes, who had been the juniors and next in
rank to Dr. Simons, before his dismissal, were communicated
to the Senate, and together with that of Dr. Simons referred
to the  Commitee on  Military Affairs.   These  nominations
were reported to the  Senate, and after full discussion, con-
firmed  on the  3rd day  of March, 1857,  accompanied  by
the following resolution,  which was   likewise adopted.—
"Resolved,  That the Senate advise and consent to the ap-
pointment of  James Simons to be Assistant Surgeon in the
Army, and recommend that the President direct that he take
rank from the llth day of July, 1839, and next after Surgeon
De Leon."   In pursuance of this  resolution,  Dr. Simons
was commissioned  by  the  President,  with the rank recom-
mended,  on the 28th May, 1857.  Commissions were about
the same time issued to Surgeons Madison and  Barnes, with
a notice to them, under the  date of the 2nd day of June, 1857,
of the Senate's resolution in the case of Dr. Simons, and ap-
prising them that  "this officer, (Dr. Simons,)  would (will)
be nominated to fill the  first vacancy of surgeon, which
might  (may)  occur, and to  take place as such next below
Surgeon David C. De Leon."
  A  vacancy having  occurred  by the  death of  Surgeon
Harney, Dr. Simons was accordingly appointed by the Presi-
dent a Surgeon in the Army, on the 20th day of September,
1858,  with rank from the 29th day of August, 1856.   For
this appointment he has  now been  nominated to the Senate
for confirmation.
  On  the 6th  day of November, 1843, whilst  Attorney
General, I gave an opinion in  the case of Mr. Morehead,
in which will be found the following passage.
  "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 the
service.   The judgment I now hold to be irreversable.   If
Mr. Morehead is restored to the service it must be  through
the power of appointment."  The  opinion  then expressed I
still entertain, not  only as it affects the case of an officer dis- 
iii
 missed in pursuance of a judgment of a Court Martial, but
 the case of every officer dismissed by competent authority,
 however and for whatever cause so dismissed.  Once out of
 the service, I am aware  of no authority by  which he can  be
 restored, except by that of the President in the  exercise  of
 his power  of appointment  and nomination.
   The opinion given  by me in the case of Morehead,  will
 be found to be fully sustained by that of Mr. Legare in the
 case of Surgeon  Du Barry of the  29th November, 1842,  in
 which he says:
    "He was clearly out of the service by a lawful  and valid,
 however harsh (and even it may be unfair) exercise of the
 executive power.  If he has been restored, it has not been by
 avoiding the act dismissing him, for  that could not be done.
 It was beyond the power of the executive.   All that the Presi-
 dent can do in such case is  to repair any wrong  done by a
 new appointment."
   Dr.  Simons' case  is one in which that power has been  so
 exercised.   He was appointed by the President  on the 2d
 day of October, 1856, and his  appointment was sent to the
 Senate for confirmation.  In this there was surely nothing
 irregular or at all inconsistent with the opinion expressed by
 me in  Mr.  Morehead's case.  On the contrary, it  was in ex-
 act conformity with  its  principles, and I presume, if  the
 Senate acting  nakedly on  the  nomination made  to it, had
 confirmed Dr. Simons as an Assistant Surgeon, and he had
 been commissioned in the terms of the  provisional  appoint-
 ment,  no question could have been raised touching the legal-
 ity of  the proceedings.
   The irregularity, if any exists, is to be found in  the fact
 that the Senate departed from the terms of the nomination,
 and qualified it by the recommendation embraced  in their
 resolution.  If there be nothing  in  this to invalidate  the
 action  that has been had the case is clear of all difficulty, in-
 asmuch as the President, in issuing the commission has only
followed out the wishes and recommendation of the Senate.
  Now I hold it to be perfectly clear, upon principle, as it is
in accordance with the long settled and established practice of 
iv
the Government, that the President may restore an officer
dismissed from the public service by a new appointment, and
that in nominating him for such restoration he may reinstate
him in  the rank  he would have attained had  he not  been
removed.  In the case of Surgeon  Du Barry, before quoted,
Mr. Legare  says, "He (the President) may  restore, and  he
may (unless  prohibited  by some special  law) nominate the
injured  officer to  a rank equivalent to that he would  have
reached had no injustice been  done him in the usual course
of promotion.  This is within his constitutional authority, but
in my opinion he  has no power to do more.   Rank he can
give from and after his appointment, for this  is the effect,
whatever may be  the form of such  a commission.
   The correctness of this opinion is fortified  by the sanction
of near forty years  practice, as may be seen by reference  to
a report made by Adjutant General Cooper, to Senator  Iver-
son, then a member of the Committee on Military Affairs,
under date of the 26th  of January, 1858, in which will be
found enumerated nineteen  distinct cases, including that of
 Dr. Simons,  in which the principle has been recognized and
acted on, and since  the date of that report,  during the ses-
 sion of 1858, the cases of Capt. Alex. W. Reynolds, dismissed
 October 9th, 1855, and First  Lieut. Matthew R. Stevenson,
 dismissed on the 22d of Sept. 1856, strikingly analogous  in
 principle with that of Dr. Simons, have been  submitted  to
 the judgment of  the Senate, and their nomination with  the
 dates of their rank relating back sanctioned and confirmed.
 To those cases, as well  as to the cases of Captains Deas and
 Dobbins, and Lieut. Northrop, I beg leave, in this connec-
  tion, to invite your particular attention.
    The practice  in regard to  appointments  in the Navy has
  been the same.   I remember now only the cases of  Lieut.
  Chandler and Lieut. Meade.
    But it may ba  said, and I suppose this to be the ground of
  difficulty in your mind, (for from the nature of the case and
  the duty devolved on you being of an executive character, I
  cannot ascertain otherwise than  by conjecture, what your
  views are,) that  whilst it may be  true that  the President  is 
V
clothed by the Constitution with power to  nominate, and in
such nomination to fix the rank of an officer, yet that in this
case he has not done this, and that the rank has  been fixed
by the act of the Senate, and that if yielding to the Senate's
recommendation, the President chose to appoint Dr. Simons
with the rank  recommended, the appointment as made  on
the 8th day of May,  1857, should  have  been submitted to
the Senate for confirmation, and not  having been so  sub-
mitted, it can have no legal validity.
  This objection has  a  seeming  support  in  the opinion of
Attorney  General Butler, of the 29th of March,  1837,  in
the case of Lieut.  Coxe, in which he maintains that the fix-
ing of the  rank of the  nominee by the Senate was illegal,
and that no commission could properly issue; and  you will
find upon referring  to  my opinion of the  9th of August,
1843, that I held  that the commission in  that case, not  hav-
ing  been in fact issued, Lieut. Coxe by  force of  the mere
nomination and confirmation  was not restored to the service.
   Undoubtedly the action of the Senate was not  conclusive
upon the  President, who had the power  to commission or
not, as in every other case;  and if he  did not concur in the
action of  the Senate,  he had  a perfect right  to refuse to con-
summate the appointment.
   But in the case  of Dr. Simons the President has concurred
with the Senate, and has issued a commission, and thereby
consummated the appointment.
   The power of the President  is to nominate, and by and
with  the advice  of the Senate to appoint.   Certainly  the
Senate has no  power to originate a nomination;  that is  the
peculiar function  of the President.   But in  regard to nomi-
nations made,  the Senate has the authority not only to con-
firm, but to advise the  President, and  there is no reason, as
the object of consulting the  Senate is  to  obtain its sanction
to  the President's action, why, in the  case of  concurring
views, the advice may not be addressed  to the rank of the
 officer nominated, in the first  instance  as  afterwards.   If
 unacceptable  to the  President,  he may  disregard  it, and
 refuse to act upon  it,  as Gen.  Jackson  did, in the case of 
vi
Lieut. Coxe, or if acceptable, he may conform  the  appoint-
ment to the recommendation, as was done in the case of Cols.
House and Fenwick,  and Major  Eustis.   Whenever the
commission issues  it  consummates  the appointment,  em-
bracing, as it does, the concurrent judgment of the Senate
and President.
  In a case like the present, it would seem, at best,  to be an
unmeaning form to return a nomination  to the Senate for
confirmation, upon which  it had but just passed  its appro-
batory judgment.  I submit  that  under the Constitution,
the Senate, in regard to nominations,  is an advisory body,
and there  is nothing  incompatible with the nature  of its
functions in its suggesting to the President its views  as to
the rank of an officer, leaving it to the Executive authority
to decide upon the propriety of such  suggestions, and I
think the principle is clearly involved in the cases  of  Cols.
House and  Fenwick and  Major Eustis, before referred to.
But there  is a case of more recent date,  to which I pray
leave to invite your attention, and which enforces, I think,
the views I desire to present.  It is the case of Major Crit-
tenden, of  the Mounted Riflemen, who was  cashiered by the
sentence of a General Court Martial, on'the 19th of August,
1848, and who was restored on the 15th of March,  1849, to
his former position and rank in the Army, without  (as I
understand) a nomination to the  Senate.   This was  done
because the Senate, upon an examination of  the  proceedings
on the 2d March, 1849, had pronounced his trial and convic-
tion to be irregular and contrary to laiv.
  Now it is clear that the  Senate has no authority to review
and correct the proceedings of a Court Martial.  That power
is confided to the President alone, and when  he has once
exercised it, it ceases to exist any where.  In the emphatic
language of Mr. Legare, in Lieut. Coxe's case, "if the sen-
tence of dismissal be harsh and  even unfair, he was out of
the service," by virtue of the act of  dismissal.   But  the
Senate, in the exercise of an undoubted right in consider]"no-
whether a vacancy, created by the dismissal of Major Crit-
tenden,  should be filled,  expressed its opinion, which waa
its advice to the President. 
vii
  I do not doubt that Major Crittenden was properly restored
to the service, but he was thus restored by an  appointment
made by the President, without the form of a nomination to
the Senate,  for the sufficient reason that it had already ad-
vised such action on his part, and it would have been a use-
less ceremony to submit the nomination anew,  for confirma-
tion.
   The omission to nominate was mere form, and involved no
consideration of substance.
   I  have not the means of reference  to verify  it, but my
impression  is,  that  the Senate, in its advisory capacity, in
the ratification of Treaties, has often concurred, with condi-
tions and amendments, and  that such Treaties, when so
provisionally ratified,  after amendments made  or conditions
complied with, have never  been required to  be  submitted
anew to the Senate.   I beg you  to  direct your attention to
this suggestion, and to consider, if it be true,  how strongly
it illustrates the view  I take of the  power of the Senate, in
the analogous case of  nomination to office.
   It has been intimated  to  me  that an objection has been
suggested to the confirmation of Dr.  Simons' nomination,
upon the ground that the act of 1851, ch. 33, has declared
"that all promotions in the  Staff  Department  or  Corps,
shall be made as in  other Corps  of the Army ;"  whilst the
act  of  1853  provides " that no officer shall  be promoted
before those who rank him  in  his  Corps,"  and that the
 Army  regulations  have  been conformed  to these enact-
 ments.
   If the views I have presented be well founded Dr. Simons
 rightfully stood at  the head of  the List of Assistant Sur-
 geons, by virtue of his Commission of the 28th day of May,
 1857, and  so standing is entitled to promotion to  fill the
 existing vacancy, and his nomination is in strict conformity
 with the provisions of the Acts of Congress, as well as the
 regulations.  I do not suppose,  other objections being obvi-
 ated, that this can be seriously entertained.
   In looking at this case, with the imperfect means of inves-
 tigation at  my command, and uninformed as I am of the par- 
viii
ticnlar objections  to the confirmation of the  nomination of
Dr. Simons,  I cannot perceive  how  it can  be  reasonably
withheld ; and especially when I call  to mind that he  has
been induced  to remain in the service, upon the faith of the
deliberate action  of  the Senate affirming his rights,  and
reposing upon the Commission he holds  under the hand
and authority of the President, issued in  furtherance of the
Senate's recommendation, and  supported  by  the  official
opinion of the distinguished Attorney General of the United
States.
  I have the honor to be, &c, with the highest respect,
dear sir, your obedient servant,
                          [Signed,]       John Nelson.
Hon. Jefferson Davis, &c, &c. 
STATEMENT OF THE CASE.
  By an order of President Pierce, of the 16th Janu-
ary, 1856, Dr. James Simons, then an Assistant Surgeon
in the United States Army, with rank from the llth of
July, 1839, upon the sentence of a Court Martial, was
dismissed from the Army.
  In the same year, (1856,) after an examination by a
Medical Board of the Army,  he was' again  appointed
an Assistant Surgeon in the Army, and nominated and
confirmed as such.
  The  President,  (Pierce,) nominated him simply  for
an Assistant Surgeon.  But the  Senate having by its
Committee reviewed his  trial, in confirming him  as
Assistant Surgeon, passed a resulution "that the Senate
advise  and consent to the appointment of James Simons
to be an Assistant Surgeon in the  Army, and recom-
mend that the President direct that he take rank from
the llth July, 1839, and next after Surgeon De Leon."
(Passed 3d March, 1857.)
  This  resolution was transmitted  to the   incoming
President Buchanan.   The Secretary of War issued Dr.
Simons' Commission, and sent it to him.  On its face it
states "to  take rank, as Assistant  Surgeon,  from the
llth July, 1839;" and his name was placed at the head
of the  Assistant  Surgeons on  the Army Register, by
virtue of the above rank. 
                        X
  In September last, a vacancy  occurred  by the death
of Surgeon Harney, and Dr. Simons was  appointed to
fill it; and he has now been nominated for this appoint-
ment, with rank as  Surgeon next to Doctor De Leon.
  While Dr.  Simons was out of the Army, two Assis-
tant Surgeons, Madison and Barnes, were  promoted.
Before, however, their Commission as  Surgeons were
delivered, the War Department had received the Senate's
resolution,  which, if gratified, would place  Dr. Simons
above both these gentlemen, as he originally out-ranked
them.  But as Simons, at the time, was confirmed as
an Assistant Surgeon only, he could not be placed next
to Dr. De Leon, who was a full Surgeon.  So the Sec-
retary, in delivering to Barnes and Madison their Com-
missions, notified them- that upon the first vacancy he
would promote Dr. Simons as  Surgeon  to  rank next
after Dr. De Leon,  and above them.
   Now his  nomination is  for this  place  "as Surgeon
next after Dr. De  Leon."   It is  only in  this way that
the resolution of the Senate alluded to  of March 3d,
 1857,  can be  gratified, and a  complete  restoration of
 Dr. Simons' effected, as his original place on the Army
 Rolls was next to Dr. Leon.  On these  facts your opin-
 ion is requested on the following  questions:
    1st. Can the judgment of a Court Martial approved
 be  reversed, and the President, in such a case, restore
 the officer to his former place and rank ?
    2d. Has the President the power to arrange the rank
 of an officer, relatively to  others of the same  grade,
 and had he the right, when requested by  the Senate
 to do so, to  place Dr. Simons in his old rank, as x>f the
 llth July,  1839,  and at  the head of  the Assistant
 Burgeons ? 
XI
   3d.  Can the President rightfully nominate or appoint
Dr. Simons as Surgeon next to Dr. De Leon and above
Drs. Madison and Barnes, and can the  present Senate
lawfully consent thereto.
To the Hon. Reverdy Johnson,
    January 26fA, 1859.


            OPINION  OF  MR. JOHNSON.
  The  several questions submitted  to me on the above case,
I have  duly considered, and proceed to answer them as much
in detail as the time allowed me will permit.
  First.—The sentence of a Court Martial approved, if on
its face the officer was within  the jurisdiction of the  Court,
is binding, and the officer, if dismissed the service, can only
be restored by re-appointment.  But the rank he is to have
by the  new appointment may be fixed by the President, with
the advice and consent of the  Senate.  This is within the
discretion of the appointing  power, and  may  be exercised,
wholly irrespective of the proceedings of the Court.
  Second.—The mode of appointing under  the Constitution,
requires the advice and consent of the Senate, but whether
that advice  and consent precedes the nomination or not, is
immaterial; if it  precedes the  appointment, it is sufficient.
The President may nominate of himself  without  consulting
the Senate, but it is only by and with their advice and con-
sent  that  he can  appoint.  The Constitution provides only
for such advice  and consent.   The manner of giving it and
the time of giving it is not directed, except that it must
exist when the appointment is  made.   That rank may  be
given,  when such  is the joint  judgment of  the President
and Senate, as of  a date prior to the actual nomination and
appointment, has, I  think, never  been  seriously doubted.
The Army Register exhibits many such cases,  and the opin-
ions  of the  Attorneys General hold it  to be legal.  This
will be seen by the opinion of  Mr. Butler, 29th March, 1837,
in Coxe's case of Mr. Legare, in  Du Barry's case, of the 29th 
xii
November, 1842, and of Mr. Nelson, in Whitney's case, of the
6th November, 1843.  See 3d vol. Attorney General's opin-
ions, p. 189, and 4th vol."pp. 123  and 274.  In each of these
cases the authority to fix the rank, as of a day antecedent to
the appointment, is clearly stated.  In the first case  the
authority is, in words, maintained.   The case itself, and the
question submitted to the Attorney General Legare, was one
in which the officer claimed pay from the date of the rank, and
not merely of the appointment.   He  held against the claim,
but conceded the right to antedate as to  rank.   ''The Presi-
dent," he  said, "may restore, and  he may,  (unless  pro-
hibited by some special law,) nominate the injured officer to
a rank equivalent to that which  he would have reached (had
no injustice been done him) in the usual course of promotion."
  The  question before  Mr. Attorney General Nelson was,
whether an officer legally and wholly out of the service could
be replaced in  it at all, except  by way of  original appoint-
ment, and  he  held, and  I have no  doubt properly, that he
could not.
  But  the  authority of the President with  the advice and
consent of  the Senate, to grant in such new appointment,
rank from a preceding day was not only not denied,  but  vir-
tually  admitted.
  I am therefore clear  in the opinion, that rank may be so
given.
  Third.—The Constitution prescribing no other time for the
Senate's advice and  consent, than that  it shall precede  the
appointment,  I am equally clear   that  it was  with  the
President when the  advice was given, contained in the reso-
lution of the Senate, of the 3d  March, 1857, consenting to
the appointment of Dr. Simons, on his nomination as Assist-
ant Surgeon, that he shall "take rank from the llth of July,
1839, and  next after Surgeon  De Leon," to appoint under
such advice and to give the stipulated rank, as if he had by
his nomination  so provided.  He was certainly not  bound to
act upon such advice, he  might have withheld the appoint-
ment altogether, because the advice and consent went beyond
the exigency of the nomination.   But this was for himself to 
Xlll
decide.  If he concurred in the recommendation, and appointed
accordingly, there was in the appointment all that the Consti-
tution required, the joint will of the President  and Senate.
But the question  is  not an  open one.   It has  not,  that
I am aware, been presented in the instance of  an appoint-
ment to an officer, but in the case of treaties  it has often
been  presented and acted upon, and  without  doubt.   The
first part  of the same clause  of the Constitution, which re-
lates  to appointments, contains the treaty power.   (Art. 2,
§ 2, clause 2d.) "He (the President) shall have power, by and
with the advice and, consent of  the Senate, to make treaties,"
&c.  In the earlier stages of the  Government  this advice
was asked orally, and given in advance of negotiation; and
in  several instances,  without, that I have  ever heard, any
suggestion of  its illegality, that advice and consent has been
given conditionally, after a treaty  negotiated—clauses have
been  stricken  out  and qualifications  to existing clauses in-
serted.  This  was  done in the case of the Florida Treaty of
February, 1819, also in the recent Gadsden Treaty.  In no
such case  did the President, if he concurred with the Senate
in  the changes advised by them,  when he had afterwards
obtained the  consent  of the  Foreign  Government to  such
changes, think it  necessary  to  submit the Treaty again as
modified  for their further advice  and consent.   This  was
considered as  having been  obtained by the first submission
and his  assent to the advice and consent given on such  sub-
mission.  The two cases are  in principle  identical.  They
arise on the same words, in the same clause  of the Constitu-
tion, and  must receive the  same  interpretation.   If these
Treaties therefore  have been legally made, the appointment
in question will be legally made, if the Senate now confirm
the pending nomination of Dr. Simons.  That the President
had the right  to  appoint him under the  advice  of the 3d
March,  1857,  to take rank from the day advised,  I have no
doubt; and  this  being legal, his  present nomination, the
consequence of that rank, is  necessarily within  the Presi-
dent's power.
                                     Reverdy  Johnson.
  Washington, 28th January, 1859. 
|:: 
.%:
0,
xn1& 
iv
NATIONAL LIBRARY OF MEDICINE
NLM  D3SDbMET E
NLM032064292