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from the 1st of March, 1836." This commission is duly signed by Presi. dent Jackson, countersigned “Lew. Cass, Secretary of War," and is duly recorded in the Adjutant General's office. By “ general order” No. 46, dated July 6, 1836, issued from the Adjutant General's office" by order of Major General Macomb,” commanding general of the army, Mr. Schaumburg is announced as being promoted from a second lieutenancy (which he held before) to be first lieutenant from Ist March, 1836, “ vice Noland, resigned, in the first regiment of dragoons,” &c.

This commission of first lieutenant, in the judgment of a majority of this committee, has never been forfeited by any act of commission or omission of Mr. Schaumburg; has never been resigned by him; and he has never been discharged from the army by any legal order of the Presi. deut, upon any sentence of any court

martial or otherwise. The correctness of this opinion has been before, and is now, questioned ; and it appears that a different opinion being entertained by the "commanding general of the army" in 1836, James W. Schaumburg's name was by his order, in that year, dropped from the roll of the army, and omitted in the subsequent official Army Register.

The facts by which it has been contended this course was made legal and proper, are briefly these :

Mr. Schaumburg had been on the 10th day of May, 1834, commissioned by and with tithe advice and consent of the Senate, a second lieutenant in the regiment of dragoons in the service of the United States."

On the 6th day of June, 1836, S.cond Lieutenant Schaumburg, then stationed and being at Fort Des Moines, on the Upper Mississippi, trans. mitted his resignation was second lieutenant, to take effect on the 31st of October, 1836.” It was received at the War Department June 23, 1836. The endorsements on that letter of resignation are these: “Submitted to the Adjutant General.-R. J." " Recommended to be accepted, and to take effect 31st July, 1836.-A. Macomb, M. G.” " Approved.-L.C."

By general order No. 44, issued " by order of Major General Macomb,” dated June 30, 1836, it is announced that the President has accepted

First Lieutenant Schauinburg's resignation, to take effect 31st July, 1836." Except from the evidence this order affords, it does not appear that the President ever accepted any resignation of Mr. Schaumburg.

The committee regard the condition, that it should not take effect till October 31, 1836, contained in the resignation of Mr. Schaumburg, as an essential part of it. The resignation could not take effect till 31st October, 1836. Such mode of resignation was entirely legal, and conformable to the rules and regulations of the army, the several orders under them, and the long established usages and customs of the service, acquiesced in and approved by the War Department under several successive administrations. It has not been contended that the law forbids such qualified resignation. When of such character, the time cannot be changed with out the assent of the officer proposing to resign. Such resignation cannot be turned into an unqualified resiguation, or i's terms modified or varied, by any authority, against his wishes, without bis knowledge, and to his injury, as in this case. A resignation is the voluntary act of the oficer. If it is conditional or qualified, and the conditions or qualifications are altered or changed without his consent, such different resigna. tion cannot be said to be his act. It is an abuse of language to call an act

On motion by Mr. Johnson, of Louisiana,
That it be referred to the Commitiee on the Judiciary.

On motion by Mr. Sevier,
The Senate adjourned.

MONDAY, JANUARY 11, 1847.

On motion by Mr. Johnson, of Louisiana,
Ordered, That the motion of the 6th instant, to refer the memorial of
James W. Schaumburg to the Committee on the Judiciary, lie on the
table.

On motion by Mr. Johnson, of Louisiana,
Ordered, That the memorial of James W. Schaumburg be referred to
a select committee, to consist of five members, to be appointed by the
President pro tempore; and

Mr. Cass, Mr. Henry Johnson, Mr. Westcott, Mr. John M. Clayton, and Mr. Hannegan were appointed.

SATURDAY, JANUARY 16, 1847.

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Mr. Cass being, on his motion, excused from serving on the select committee on the memorial of James W. Schaumburg,

On motion by Mr. Johnson, of Louisiana, Ordered, That a member be appointed by the Vice President on the said select committee, in the place of Mr. Cass, excused; and

Mr. Badger was appointed.

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Mr. Westcott, from the select committee to whom was referred, on the 11th of January, the memorial of James W. Schaumburg, made the fol. lowing report:

The select committee of the Senate, to which was referred the memorial

of James W. Schaumburg, having considered that memorial and the documents submitted to the committee, report:

That, on the 6th day of June, 1836, the memorialist, James W. Schaumburg, was nominated by the then President of the United States (General Jackson) to the Senate of the United States for the office of first lieutenant in the regiment of United States dragoons, from the 1st of March, 1836, vice Noland, resigned, (vide page 145, vol. II, Senate Executive Journal.) This nomination was on the nomination of Adjutant General Jones of same date to Mr. Secretary Cass, and the recommendation of the Secre. tary to the President, all laid before the Senate June 8, 1836. On the 15th June, 1836, Mr. Benton, chairman of the Committee on Military Affairs, to which had been referred, with others, this nomination, reported thereon, and the nomination was “advised and consented to” by the Senate same day, (page 153, vol. 11, S. E. J.) On the 1st of July, 1836, a commission was issued to Mr. Schaumburg as a first lieutenant in the regiment of dragoons in the service of the United States, to rank as such

from the 1st of March, 1836." This commission is duly signed by Presi. dent Jackson, countersigned “ Lew. Cass, Secretary of War," and is duly recorded in the Adjutant General's office. By “ general order” No. 46, dated July 6, 1836, issued from the Adjutant General's office" by order of Major General Macomb," commanding general of the army, Mr. Schaumburg is announced as being promoted from a second lieutenancy (which he held before) to be first lieutenant from 1st March, 1836, “vice Noland, resigned, in the first regiment of dragoons," &c.

This commission of first lieutenant, in the judgment of a majority of this committee, has never been forfeited by any act of commission or omission of Mr. Schaumburg ; has never been resigned by him; and he has never been discharged from the army by any legal order of the Presi. dent, upon any sentence of any court-martial or otherwise.

The correctness of this opinion has been before, and is now, questioned ; and it appears that a different opinion being entertained by the “commanding general of the army” in 1836, James W. Schaumburg's name was by his order, in that year, dropped from the roll of the army, and omitted in the subsequent official Army Register.

The facts by which it has been contended this course was made legal and proper, are briefly these :

Mr. Schaumburg had been on the 10th day of May, 1834, commis. sioned by and with the advice and consent of the Senate, a second lieutenant in the regiment of dragoous in the service of the United States."

On the 6th day of June, 1836, Second Lieutenant Schaumburg, then stationed and being at Fort Des Moines, on the Upper Mississippi, trans. mitted his resignation “as second lieutenant, to take effect on the 31st of October, 1836.” It was received at the War Department June 23, 1836. The endorsements on that letter of resignation are these: “Submitted to the Adjutant General.-R. J.” · Recommended to be accepted, and to take effect 31st July, 1836.—A. Macomb, M. G.” “ Approved.-L.C."

By general order No. 44, issued " by order of Major General Macomb,” dated June 30, 1836, it is announced that the President has accepted « First Lieutenant Schauinburg's resiguation, to take effect 31st July, 1836." Except from the evidence this order affords, it does not appear that the President ever accepted any resignation of Mr. Schaumburg.

The committee regard the condition, that it should not take effect till October 31, 1836, contained in the resignation of Mr. Schaumburg, as an essential part of it. The resignation could not take effect till 31st October, 1836. Such mode of resignatiou was entirely legal, and conformable 'to the rules and regulations of the army, the several orders under them, and the long established usages and customs of the service, acquiesced in and approved by the War Department under several successive administrations. It has not been contended that the law forbids such qualified resignation. When of such character, the time cannot be changed with out the assent of the officer proposing to resign. Such resignation cannot be turned into an unqualified resignation, or i's terms modified or varied, by any authority, against his wishes, without his knowledge, and to his injury, as in this case. A resignation is the voluntary act of the officer,

If it is conditional or qualified, and the conditions or qualifi. cations are altered or changed without his consent, such different resigna. tion cannot be said to be his act. It is an abuse of language to call an act

an

“acceptance of a resignation which makes a new and different resignation from that tendered, and which, in effect, refuses to accept the resignation really made. The acceptance of the tender of a resignation which contains conditions or qualifications, adopts them. If the terms coupled with the tender are not acquiesced in, the resignation is refused. The resignation cannot be separated from the conditions or qualifications, and the first accepted and the latter refused. If the conditions or qualiti cations are not agreed to by the authority empowered to accept a resig. nation, the proposal to resign is rejected. A refusal to accept a condi. tional or qualified resignation, or offer to resign, with the conditions or qualifications coupled with it, has the same effect as an unqualified re. fusal. Só manifest does the correctness of these positions seem to the committee, that it is not deemed necessary to do more than to make this brief statement of them. The first and elementary principles of justice require that nothing should be imputed to a person as his act which he never assented to. If, in the absence of any act of Congress, or established wiitten regulation made according to law, any rule of departmental law” has obtained in violation of these fundamental principles, it is invalid. lu this case, the resignation stated io have been accepted was not made by Mr. Schaumburg. He resigned on the condition that his resignation should take effect October 31, 1836. He never assented to the condition that his resignation should take effect July 31, 1836. This condition was ime posed by the commanding general. Mr. Schaumburg could not have known of it when it was substituted for what was his resignation. The resignation stated to have been accepted as his, was impuited to him by others, without any authority so to do, either derived from him or from

any law.

Without referring, at present, to the circumstance, that, though the ten, der of resignation was of his commission as second lieutenant, the resignation, it was stated by the War Department, was as first lieutenant also, the committee conceive that the terms of Mr. Schaumburg's proposed resignation should have been acceded to, in its acceptance, to complete the resignation ; and that, the terms proposed being refused, the acceptance, if even regarded as of his second lieutenancy, as it rejected the proposed terms coupled with the offer to resign, and imposed other ternis, was a nullity.

That the President, in 1836, possessed the power to dismiss Second Lieutenant Schaumburg from the army, may be conceded without affecting this case. li is not that power which was exercised. It was never intended or attempted to be exercised by the President.

The attention of the committee, in weighing the effect of the circumstances of this case, has been directed to the dates before given as important. The nomination of Mr. Schauinburg as first lieutenant was june 6, 1836, and it appears was first noted in the Senate journals June 8, 1836. li was on the same 6th of June, while at Fort Des Moines, Second Lieu. tenant Schaumburg sent his conditional or prospective resignation to the Secretary of War. It was received at the War Department seventeen days after it was written. The nomination to the Senate, of Mr. Schaumburg as first lieutenant, could not have been withdrawn, as it had been previously confirmed by the Senate. The particular day the resignation was accepted, in the manner stated, is not ascertained : it is presumed it was the day order No. 44, before referred to, was issued. The commis

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sion of first lieutenant is dated the day after this order, No. 44, was issued. The general order, No 46, announcing the promotion of Mr. Schaumburg to a first lieutenancy, is dated six days after that order, No. 44, stating that his resignation as first lieutenant had been accepted. His nomination as first lieutenant was confirmed by the Senate eight days before his resignation as second lieutenant (dated 6th June, 1836,) was received at the War Department. It thus appears that Mr. Schaumburg, when he wrote his resignation at Fort Des Moines, (a great distance from Washington,) could not have known of his nomination as first lieutenant; and also, that when the resignation of the commission of second lieutenant was accepted, he was not a second but a first lieutenant; which commission he never offered to resign, and of which no resignation could have been accepted. Order No. 44, stating the resignation of such com. mission, is therefore incorrect in point of fact, unless it is held that the resignation of a second lieutenancy, which he had, was also a resignation of a first lieutenancy, that he had not ! The committee do not, however, consider it necessary to present an extended argument founded on these dates,

They are noted in the first place to sustain the position, that the commission of Mr. Schaumburg as first lieutenant, and the general order an. nouncing him as having been promoted to such first lieutenancy, both being subsequent to the order stating the resignation to have been accepted, rescinded and revoked that acceptance, (unless they were issued by inadvertence;) which position, it is submitted, cannot be successfully controverted.

It has been contended that Mr. Schaumburg was not a second lieutenant when promoted to a first lieutenancy, and that therefore his commission as first lieutenant was void, inasmuch as the law requires promotions to be confined to officers of the army, in regular order, according to rank. This position cannot be sustained. His resignation of his second lieutenancy could not take effect till received and accepled. Though the Adjutant General, in his letter to Mr. Schaumburg, dated March 28, 1845, seems to advance the opinion, by the expression that Mr. Schaumburg “had not received his promotion at the rivme your (his) letler was WRITTEN, to wit, June 6, 1836”-that the resignation took effect from the day it was written ;

yet it is believed the question is settled differently by the 27th clause of 1 article 8 of the Army Regulations, which declares that “no officer will be

considered out of service, by resignation, until his resignation shall have been duly accepted by the proper authority.The dates stated show that he was nominated and confirmed as first lieutenant before his resignation as second lieutenant was either “received” or “accepted,” upon which confirination his commission as first lieutenant subsequently issued. It may be observed, also, that this article of the regulations, besides destroying the argument that the acceptance when made relates back to the date of the resignation, operates to nullify that resignation in another way. It is a two-edged sword. Mr. Schaumburg was not, in fact, a second lieu. tenant when the resignation was accepted, or even when it was received. His commission as such had been nullified by his previous promotion to a first lieutenancy. It is true, his commission as first lieutenant was not issued till the day after the acceptance was made; but in such cases a commission is but the evidence of the appointment, and it was not ne. cessary that he should have received and accepted such commission to

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