A general question occurs: what is the effect of the Act of the 7: of February 1815 upon the powers and duties of the Secretary of the Navy?
1. The act, by its non declaration, must not be construed to take from the Secretary of the Navy his controul and direction of the Naval forces of the United States, as previously possessed by law. Some powers of controul and direction were meant to be presumed by this express declaration; and those powers are to be ascertained by the previous state of the law. If there are no powers belonging to the Secretary besides those which are involved in the jurisdiction of the Board, it will follow, that his controul and direction are to be exercised over the acts of the Board. And in truth the Secretary’s general powers are all derivative and ministerial, but from Acts of Congress not from the will and orders of the President.
2. The Act preserves for the Secretary a superintendance over the discharge of all the ministerial duties of his office, while it declares, that under that superintendance, the Board shall discharge those ministerial duties. In preserving the superintending power, the Act recognizes in the Secretary, one, who overlooks the proceedings of the Board with authority; one who has the controul and direction of the acts of the Board, in discharging the ministerial duties of his office. The language is remarkable, but it is appropriate; the Board does not discharge the duties of their own office; it discharges the ministerial duties of the Secretary’s office. The duties are not transferred from the Secretary to the Board; but the Board is made the agent of the Secretary in performing them. The Board is not identified with the Secretary’s Office, but simply attached to it.
3. The Act having attached the Board to the Secretary’s Office; and having required the Board to discharge all the ministerial duties of the office, under the Secretary’s superintendance; cannot be guilty of the inconsistency of making the Board at the same time, independent of the Secretary. It says, to be sure, that the Board shall discharge the ministerial duties of the Secretary’s office; but before the duties can be discharged, they must be created; and whether there be a ministerial duty to discharge by the Board relative to the procurement of naval stores and materials &c as well as to do other matters connected with the naval establishment of the United States, must always depend upon a previous exercise of the powers of the Secretary acting under the orders of the President, and determining that it is necessary to procure naval stores and materials &c or to do any other act connected with the naval establishment of the United States. When, in the exercise of the Secretary’s controul and direction of the naval forces, it becomes necessary to procure supplies, construct, arm, equip, and employ vessels of war, or to do any other act connected with the naval establishment, the Board is bound to discharge the resulting ministerial duties. When, too, the duties are thus created, in every stage of the proceedings of the Board to discharge them, the Secretary’s superintending power may be exercised to alter, modify, or discontinue the work. Upon any other construction the unity of action, so essential to the performance of an Executive trust, would be destroyed; and while the controul, direction, and superintendance of the Secretary, required one course of proceeding, the Board might be employed in instituting and accomplishing an opposite one. The head to plan, controul, direct and superintend, would be given to the Secretary; but the hand to execute would be given to the Board. The responsibility for the end, would be entirely separated from the capacity to devise and furnish the means.
4. The Act manifests its principal design, by the manner of disposing of minor objects. The only instances in which it makes the Board independent of the Secretary, are the adoption of rules for the Government of its meetings, and the appointment of the Secretary of the Board. But its records are subject to the inspection of the Secretary of the Navy as well as the President: And they are even restricted from preparing rules and regulations for securing uniformity in the classes of vessels and their equipments &c without the previous consent of the Secretary of the Navy. With whom does the power of making such rules reside, before the Secretary consents that the Board shall prepare them? With him, under the direction of the President, and not with the Board: And is it reasonable to suppose, that the Board is authorised to act upon the subjects of the rules without the consent of the Secretary, and, of course, without the consent of the President, who only acts through the Secretary when the power to make the rules is denied to the Board without such consent?
DLC: Papers of James Madison.