Washington June 12th. 1815
I have given to the questions growing out of your letter and communications, of the 29 April, and 18 & 23rd of May last, and others from the Commissioners of the navy Board the consideration due to them. The following remarks convey the result of it.
The Law which establishes the Board, containing provisions entirely new, and rendering the constitution of the navy Department more complicate, at the same time that they render it, more ample for its objects; it might well happen that different constructions would, in the first instance be put on some parts of the law. It is to be hoped, however, that by recurring to the constitutional principles on which the Executive Departments of the Government rests, in aid of the established rules of interpretation, the meaning of the act may be satisfactorily determined.
The better to ascertain the relation on which the Board is placed to the Secretary of the navy, it is proper to take into view the relation of the latter to the President.
By the structure of the several Executive Departments, and by the practice under them, the Secretary of the navy, like the other Secretaries, is the regular organ of the President, for the business belonging to his Department, & with the exception of cases, in which independent powers are specially vested in him by law, his official acts derive their authority from, or in other words, carry with them the authority of the Executive of the United States. Should a head of Department at any time violate the intentions of the Executive; it is a question between him and the Executive.
In all cases where the contrary does not appear, he is to be understood to speak and act with the executive sanction, or in other words, the Executive is presumed to speak and to act through him. This being the relation of the Secretary of the navy to the Executive, and no direct relation existing between the Board of Commissioners and the Executive, the relation between them must be through the Secretary of the navy, and must depend upon the relation of the Board to the latter as established by Law.
According to the terms of the Law, the Board is attached to the office of the Secretary of the navy and shall discharge all its ministerial duties under his superintendence.
Altho’ the term "attached" taken by itself, may not fully explain the relation of the Board to the office of the Secretary, it excludes the idea of a substantive power independent of him. The ministerial duties to be performed by the Board, are the ministerial part of the duties of the Office of the Secretary.
The nature of these duties, are as well expressed by the term "ministerial" as by any other that could be applied - uncertainties will doubtless occur in the detail, which a course of practice only, can remove.
In saying that the Board, "shall discharge" the duties in question, the Law is not to be understood as given an independent power, an imposing an absolute obligation. The terms taken by themselves would not require such a construction. In the Legislative use of the terms in analogous cases, they import only, that when certain acts become requisite, it will be the duty of the functionary named to perform them. The terms if taken in a litteral and absolute sense would make the Board as independent of the President, as of the Secretary of the navy, and would destroy the unity, the efficiency, and the responsibility of the Executive in an important branch of the Administration. This could not be contemplated by the Legislatureon the contrary, it is expressly provided that the ministerial duties in question, are to be discharged "under the Superintendence" of the Secretary of the navy, acting of course, under the authority of the Executive. The term "superintendence", whether it be sought in the books employed in the explanation of words, or the use of it in Legislative acts, imports a superiority and authority in the superintending, over the superintending party. To superintend, or supervise, without an authority to guide, or controul, would be a task altogether nugatory, or of a nature which the Legislature can not be presumed to have committed to a head of Department and a constitutional organ of the Executive authority. But whilst the Board is restricted to the discharge of duties which are ministerial, and are subject therein to the Superintendence of the Secretary of the navy, the Secretary in the discharge of his duties; so far as they ministerially relate to matters Connected with the naval Establishment, is restricted to the intermediary functions of the Board. No seperate or subordinate officers or agent can be immediately employed by him, for purposes embraced by the duties of the Board.
The powers of the Board to adopt rules and regulations for the Government of their meetings, and to appoint their own Secretary and Clerks to be attached to their Office, being specially vested in them, are exceptions and not under the superintendence of the Secretary of the navy.
The Board is especially authorized to prepare rules and regulations necessary for Securing uniformity in the several Classes of vessels, and their equipment, and for preparing & refitting them, and for securing responsibility in the subordinate Officers and agents, under the restriction however, of preparing them by, and with the consent of the Secretary of the navy, & that they be approved by the President
Whether the alteration which has been made in the Navy Department, might have been better modified or defined with a more discriminating precision, are questions which do not belong to those whose duty it is to execute the Law according to the necessary rules of expounding it, as it stands.
The exposition which has been given will at least have the advantage of avoiding essential inconsistencies in its several parts, as well as of preserving that unity of action which is essential to the Executive trust. And with the aid of that candour, cordiality and confidence, which distinguish those whom the Law associates, and which will be exercised in proportion to the call for Co-operation, in overcoming difficulties, of whatever sort, incident to new arrangements for complicated objects, I flatter myself, that the Law will go into its due effect; with the advantages to the public service, for which it was enacted.
Accept assurances of my Esteem and Respect.
The Secretary of the navy will communicate to the Board of navy Commissioners a copy of the above Letter
DLC: Papers of James Madison, Rives Collection.