Navy Commissioners Office New York 25th. May 1815
The Honble. Secretary of the Navy, as will appear by the accompanying Correspondence, having adopted a construction of the Law constituting this Board, which in the opinion of the Commisioners will entirely defeat its object, and take from them powers which they conceive themselves expressly enjoined to exercise under the Superintendance of that officer, they respectfully solicit the attention of the President to the views they have taken of the subject.
In the first Section of the Law which specifies the functions to be exercised by this Board, it is ordered that the Conmissioners "shall have power to adopt such rules and regulations for the government of their meetings as they shall judge expedient; the Board shall be attached to the Office of the Secretary of the Navy, and under his superintendance shall discharge all the ministerial duties of said office relative to the procurement of Naval Stores, and materials, and the construction, armament, equipment, and employment of vessels of war, as well as all other matters connected with the Naval establishment of the United States."
Here Sir, the Commissioners beg leave respectfully to observe that this Board is charged with the performance of certain specified and definite duties, which they are not merely permitted, but enjoined to execute; and they conceive that nothing contained in any subsequent section of the Law goes to impair their right, nay their absolute obligation to fulfill all these duties, not by the permission of the Secretary of the Navy, but by the express enjoinment and direction of the Government of the United States, clearly expressd in the Law now under consideration. That government, the Commissioners respectfully conceive, has said they "shall" perform certain duties, not under the orders or by the permission of the Secretary, but merely under his Superintendance, and the Commissioners cannot suppose themselves invested with the power, even if they were so inclined, of waving, or resigning for a moment the exercise of those functions which the Law declares they "shall" perform.
To the full and efficient fulfillment of their duties, the Commissioners beg leave to suggest, that a construction of the Law under which they act, essentially different from that adopted by the Honble. Secretary, in his letter of the 18th., a copy of which is herewith transmitted, is absolutely necessary. The Secretary there observes that "should it be necessary to obtain the assistance of the Board in the performance of any of the ministerial duties of his Office" (those duties which Law declares the Board "shall" exercise under his Superintendance), he will then "consult and instruct the Board."
The Commissioners feel it their duty to observe that the construction here given by the Honble. Secretary, is entirely as they conceive at variance with the Spirit and Letter of that instrument, the Language of which is imperative. The Commissioners "shall" perform all the duties therein specified, which comprehend all the ministerial powers connected with "the procurement of naval stores and supplies, the construction, armament, equipment, and employment of vessels of war, as well as all other matters connected with the Naval establishment of the United States".
The Commissioners respectfully urge, that the Honble. Secretary has no authority to give any other interpretation to a Law of the Land, than that which accords with the usual and acknowledged meaning of the words in which it is conveyed. They therefore consider themselves fully justified in adopting the opinion that the Secretary is not at liberty to withhold such information from this Board as is absolutely necessary to enable the Commissioners to discharge those duties which the Law delegates to them without reserve. Still less Sir, can they for a moment cherish the opinion that the Honble. Secretary has any discretionary power to decide in any case what portion of the functions allotted to this Board, it shall be permitted to perform.
It would appear however, that the Honble. Secretary of the Navy, has founded his construction of the powers granted to this Board, upon that clause of the Law which declares "That nothing in this Act shall be construed to take from the Secretary his control and direction of the Naval Forces of the United States, as now by Law possessed". The Commissioners here respectfully suggest that the Honble. Secretary possesses no power under any Statute that has fallen under their observation, but that of appointing his own Clerks, and convening Courts Martial. No other powers are conferred upon him by Law, and whatever additional functions he may be permitted to exercise, are delegated to him at pleasure by the President of the United States. He exercises no other control over the Naval forces of the United States than the Executive chooses to confer, as distinctly appears from the Act of Congress passed the 30th. of April 1798. By that Act the President is authorised to confide that part of the constitutional power vested in him relative to the administration of the Navy, to a Secretary by him appointed, "whose duty it shall be to execute Such orders as he shall receive from the President of the United States relative to the procurement of Naval Stores and Materials, and the construction, armament, equipment, and employment of vessels of War, as well as all other matters connected with the Naval establishment of the United States".
It is believed that no Law exists placing the Honble. Secretary of the Navy in any other relation to the Executive than as the mere minister of his will, or conferring upon him any other powers than those he may exercise by permission of the President of the United States, to whom the exclusive prerogative was entrusted by the Constitution, and who is not divested of the smallest portion, by the act of Congress establishing a Navy Department. In exercising the powers claimed under the Law constituting this Board, the Commissioners believe that no infringement on the prerogatives vested in the Honble. Secretary of the Navy by the Laws, is made, because by Law he possessed none but those we have just enumerated.
The Commissioners respectfully represent to the President, that whatever ministerial powers the Honble. Secretary of the Navy may have heretofore exercised, have, by the Law constituting this Board, been transferred to the Commissioners, to be performed under his Superintendance. And they found their opinion on the circumstance of the words conveying the duties of the Honble. Secretary, and those defining the powers of this Board, being literally the same, word for word. By the Law establishing the office of Secretary of the Navy, that officer was obliged to execute all the orders of the President relative to the procurement of Navy stores & supplies, and the construction, armament, equipment, and employment of vessels of war, as well as all other matters connected with the act constituting this Board, it is directed that the Commissioners under the Superintendance of the Secretary of the Navy "Shall Discharge all the Ministerial duties of said office, relative to the procurement of Naval Stores and materials, and the construction, armament, equipment, and employment, of vessels of war, as well as all other matters connected with the Naval establishment of the United States". As it would seem that the Honble. Secretary of the Navy, and this Board, cannot both, at one and the same time exercise the same powers, and perform the same ministerial duties, the Commissioners respectfully suggest that by the latter law all the ministerial functions originally confided to the Honble. Secretary were transferred to this Board, which although placed under the Superintendance of that officer, is responsible only to the President of the United States in the performance of its duties. The Superintendance of this Board, and the confidence reposed in him by the Executive in Cabinet Councils still remain with the Honble. Secretary, and of these the Board can have no wish to deprive him.
In this view of the Law, the Commissioners respectfully conceive themselves obliged, by the Law, to perform all the ministerial duties formerly appertaining to the Secretary of the Navy. At all events, they feel the necessity that the respective functions of the Honble. Secretary, and this Board, should be so defined if possible, as to prevent forever any future disagreement, that may embarrass the progress of every projected reform in the Naval establishment, and render totally inefficient the enlightened and patriotick views of the Legislature.
If, as the Honble. Secretary supposes the Ministerial duties relative to the object Specified in the Act, are exercised conjointly, or if they are to be divided between that officer, and the Board, nothing occurs in the provisions of the Law to enable the Commissioners to judge, how far they may act without infringeing on the prerogatives of the Secretary, or to designate what part is to fall under the administration of either. In the first case, the responsibility to the President will be vague and uncertain; and in the Second, embarrassments will undoubtedly arise, that will cause infinite detriment to the publick service. If in a third supposition, the ministerial powers specified in the Law, are to be exercised by the Honble. Secretary at his pleasure, the Commissioners cannot conceive the meaning of that part of the Act of Congress which declares that this Board "shall" exercise all these powers, not subject to the orders "but" under the superintendance of the Secretary of the Navy.
Of all the views then which the Commissrs, are enabled to take of this subject, there is but one, they respectfully Suggest, that will solve the difficulties that occur in deciding this question. If the Law be understood to transfer the ministerial powers originally vested in the Secretary of the Navy, to this Board to be exercised under the superintendance of that Officer, it is conceived that no collision, or difficulty will occur, in futures; the line of distinction will be easily preserved, and the Commissioners be enabled to perform their important duties faithfully, speedily, and efficiently. And this they respectfully Submit to the President is the only rational, as well as legal interpretation, inasmuch as it will relieve the subject from the difficulties which seem to gather around it, under every other construction:
The Commissioners have refrained from taking a view of the objects contemplated in the Law referred to in this communication, because they conceived the President was already fully acquainted with them. All they have ventured to do was to state what they believed the best method to attain these objects. They have sought, as far as it was possible, to keep their own personal feelings from mingling with so important a subject, and will now only venture respectfully to state, that in accepting the appointment conferred on them by the President of the United States, they believed themselves exalted to a station higher, than any they had heretofore filled. If however, the construction given to the Law under which they act is sanctioned by the Executive power, they will be compelled to feel themselves performing only the duties of Clerks of the Navy Department, without power, yet responsible to the Nation and its government, for acts which they do not dictate, and over which they have no control. They earnestly wish to do their duty to the service with which they will ever consider it their highest honour to be appointed; to the Nation which it is believed holds them responsible for the exercise of an important trust; and to the Government that has honoured them with its confidence.
With the highest respect & consideration We are Sir, Your Obedient Servants
DLC: Papers of James Madison.