The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-12-29

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N. said Ssera@y"
Now. il will be that the chief clerk ia these de-
parlmcns 10 expressly termed "infcTor officer" whose
appointment is vested in the principal of6ce"-ibe head
OF The department; and ii the chief clerk is inferior
surely I'll others are And in the last act find this
che! clerk whose appointment gwen TO the head, de
nominated an assistant Secretary Of the Iisasuyy"-he
act leaving The other officers TO be appointed under the
constitutional provision. by the President with The ad
vice anu consent OF the Senate
Now, sir there any doubt arising upon the face
OF the constitution, il must surely be dspelled by ihe
light which 10 reflected from the history OF this egsla
t0n who shall say that the act OF lS49, which vests
in the Secretary the appointment OF Assistant Secre
ary, is vioative OF the constitution, when The act o
1852 clothed with the sanction OF the great men who
framed it, and who yet warm from the debate upon
this very constitutional point makes precisely the same
provisions!
Following up this same line Of argument. in demon
strang that all others than the chiefs OF departments
were considered nteroTs," we lind the act making
compensation TO these officers entitled IAN act for eslab-
shng the salaries Of the executive officers OF the govern
men,, with their assistants and clerks"
With these lights before u.s. let us now examine, with
some particularly. the act Of ls49 which is vehc
menty denounced on this floor as unconstitutional and
void. This acl created the executive department
called the department OF the INTERIOR" 10 which were
transferred many OF the duties which had been formerly
assigned to the other departments BY the eleventh Sec
ton OF this act n conformity with the legislation estab-
fishing the old departments, the Secretary OF the Interior
was authorized to appoint CHIEF clerk OF bis depart
ment The thirteenth section containing the objection
able clause, quote entire:
That officer shall be appointed in The Treasury De-
parmen by Tue Secretary Of the Treasury 70 be called
The Assistant Secretary Of The Tressury. whose salary
OF The Secretary OF the Treasury who shall examine all
letter. contracts and ID, warrants prepared tor the signature
all other duties in the Office Of the Secretary OF tho Treas
my now performed BY some Of his clerks as may be de,
also appoint clerk a. SALARY Of LOO per annum, who
re- I'D a ad a 81 's IN n D
signed to him by the Secretary Of the Treasury."
Now, sir admitting that am wrong in my construc-
ton, and that the view OF the gentleman is correct let
try this section by his own touchsl0ne. What the
important duties !wha the high functions this officer
is to perform, which exclude him from the constitutional
tracts. and warrants prepared for the signature Of the
Secretary, and 10 perform any other clerkly duly
which may be assigned 10 him Does not every chief
clerk in every department OF business private well
public, perform the duties, and exercise the
vigilance! II the provisions OF this section had vested
the Assistant Secretary with any pc Uer or discretion TO
be exercised independent OF the head OF the department.
if they had constituted him check in the transactions
OF the principal and established direct responsibility
the governmenl--.here would have been some show of
argument that the magnitude and Importance OF the du-
ties excluded him from being considered, in the cons
uhonal sense, an "nferior Officer" But, in the alb
OF all power and OF all discretion, minste
ing through his ear thinking with his mind and execu
ling BY his hand, how, in candor. can the gentleman
ser upon the constitutional rule which he has him
self laid down. that he snot within the legislative action
OF this governments 10 me- sir, manifest
that as the whole power OF judgment and control is in
the head OF the department, his Assistant is
titled to be ciassed. under the constitution as superior
officer than the meres clerk who placed pen behind
his ear IN an attorneys office.
II will have been seen that the act OF lS49 pre-
cisey the language OF the act OF 1889 in denominating
this officer; but II differs only in thistha while the act
OF 1889 is silent his duties, the of 1S49 pre-
scribes them But there is essential difference, AS
these prescribed duties are all necessarily Implied IN the
very nature OF the appointment itself There is duty
mentioned which does not pertain to the character oil bc
office and in this respect the silence OF The old act
much more expressive than the enumeration oil The new
one.
Now. sir, will call the gentemans attention to some
OF the difficulties 10 which his position has involved him
II the character OF the duty to be performed is the test Of
constitutionaly. what will he do with those acts of
Congress which create the Office without setting out IN
terms the duties 10 be performed, such il the with
the very Office the act OF 1882 Will the gentleman
say that he will imply the duty from the designation OF
the office, and upon this implication will pronounce his
Judgments Where will the gentleman find standard
before 1859 by which he could specify what where the
usual duties which attached such an ofcel These
two acts stand upon the footing, and must be gov
ened by the same rule and Sc, neither OF the three
,lemen who have assaled the act Of Is4e-,he chairman
OF the Judiciary. [Mr. SrASrosI The chairman Of the
Public Lands, Mr. DISNEY, nor my opponent, the chair
OF Foreign Affairs lair. BArLYl has yet, and
pophesy will not hereafter, deny the consluiionaliy OF
the act of 1882
Again, sir If the construction depends upon the dig
nifty OF the duty to be performed, ask the gentleman,
inasmuch there is no prescribed rule fixed in the
sttuiion, who is 10 judge OF the question: Surely Con-
gress, and Congress alone And the Congress OF 1s9
considered the duties assigned to the Assistant Secretary
not OF that class which would constitute him superior
in a constitutional sense what right have we to de-
clare that they have been gully of usurpaton' We
may decide for ourselves when similar question arses
bat this right oil judgment shows that the very
thorty existed in the Congress OF 1919
Leaving this subject rests upon argument, let
turn to the question presented by the Leaf ned gentle
man, tMr. BAYLY] on authority
We first referred 10 the debates the constitution
and 10 isolated expression OF Mir. Madison. when il
was proposed 10 add to the clause, as !, originally
reported
That the Congress may, by law, vest the appointment
OF such Inferior oi,ers IL think IN the Pfe
dent alone in tho Of law, In the heads of depart
rnents.
"Mr. SHERMAN seconded the motion.
Mr. MADISON said, the provision did far enough
IL II were necessary at an Superior officers, below the
heads OF departments ought in have the
pon,ment Of the les Offices
"Mr GouvssskuR MoKprs. There is no necessity blank
commissions be ssnt"-Aadisow papers, poi g. $50
Now, the expression OF Mr.. Madison is strenuously
relied on, to show that il does sary follow
that all below the heads OF departments were inferior"
az he speaks oil superior officers standing in this rea
ton But 1t will be observed that the point 10 which Mr.
Madison was addressing himself did not involve the
consideration OF the question at issue and that he
IDENTIFY uses the word superior not 10 designate the
constitutional standing OF any particular class OF officers
but word OF mere relation 10 the lesser officers !"
chief clerk In department would BE- considered
superior TO the second third, &c We may take the
whole scale OF offcefs from the highest 10 the owes,
and he who stands the second round OF the ladder IL
above superior TO him who stands the first In
other than this did Mr.. Madison intend TO be
derstood.
The gentleman next relies with good deal OF conf
dence. on the OF parte Duncan N. Hennen, 10
Peerss Reports and without reading stating the facts