Evening star., 1897-04-03
Imaginary Secretaries of the Navy.
To the Editor Of The Evening Star:

1t is interesting to know how republican
prejudice ag inst imperial militarism has
manifested itself in various acts of Con-
gIess. The ways in which precautions
against despotism have been taken are
quiet and subtle, and, In view of the fact
that army and navy chiefs in Washington
are in close social contact with the national
lawmakers, the statutory restraints have
been inserted very delicately ard politely.
In section 1922, L. 8. Revised Statutes.
army officers, for example. are prohibited
from holding any civil office, the idea being
that If military leader should get both the
civil power and the military in his own
hands the combination might In future
contingencies. be too strong for popular
liberty. Under this statute the United
States Attorney General held that even the
trusted General Sherman could not be ap-
pointed acting secretary of war without re-
signing or vacating his military office Still
more delicate is the restriction in section
III, United States Revised Statutes. When
this was enacted neither the War or Navy
Departments had an assistant secretary"
and these two military departments of the
government were the only ones that did not
have such. In the case of the absence,
etc. of a head of department., said this
section III then, 'the first sole assistant
secretary of that department shall perform
| the duties Of the secretary until his absence
| shall cease" 1t did not say first or sole
| thus carefully, subtly and silently omitting
to imply or designate any other department
| than those which had an assistant secre-
| tary," so leaving the War and Navy DE.
| partments subject to the command only OF
| q civilian appontee (or his civilian success
sor), and rendering it Impossible to make a
| military man acting cabinet officer
A keen lawyer. on scrutinlzing secIions
| 177-1S1 of the United States Revised Stat
| ules, will perceive that the right to have an
| acting secretary is limited to such depart
| .nents only as have an assistant secre-
! tary.
| no assistant secretary" and. therefore,
no one who could be acting secretary.
1t is, therefore, merely imaginary acting
secretaries that figure in the records OF
the NAVY Department prior to 1SO-thus
prohibited by law. For instance, In 1888
| Commodore Harmony undertook to exc
| cute duties required of the Secretary OF
| the Navy alone-the people of the United
states not deiegating TO the then President
| of the United States the right to make
| such military acting secretaries. On
September &. 1885, though being prohibited
| from "acting as secretary, he issued an
| order as such Tor tried to), an order which
| an officer, having sworn to support the acts
| of Congress, refused to obey; whereupon
| the latter was tried by court-martial Tor
| ..disobeying' this null order of this pro-
| hfbited or imaginary secretaries, and was
| .dismissed" or was said to be. But this
dismissal was, of course. void, section 1914,
| United States Revised Statutes. authorizing
q naval court to punish for disobeying or
ders only Of that officer (very naturally
| who Is empowered by law of Congress to
issue such orders. The statute does not
forbid person to be appointed to desig-
mated Office, and at the same time permit
a court-martial to find one guilty of dis
obeying the commands of such prohibited
appointee.
In those days of 1855 the military judge
advocate general would disregard even the
| of Snch
tended appointment, for example, was
| given by President Cleveland to Commo-
dore Harmony on June II. 1888. But II
vas to expire when the temporary alb
sence'' Of Secretary Whitney should
cease" In July and August the Navy
Department records show that Secretary
Whitney was again present "at the seat OF
government" many orders and letters
signed by him at Washington bearing
those dates. And yet on September 8 we
find Harmony attempting to act as Secre-
doubly defunct order of June II. 1888. Thus
Harmony's void order of September @ tt
the dismissed officer was doubly void.
The Attorney General has held az op.
| 800: 1.-The right Of an incumbent of any
| office established under the government OF
the United States to continue therein at
ter the expiration of his term" lie. the ces
sation Of Whitney's temporary absence)
depends upon whether Congress ha.
thus provided: so that when Con
grees has not thus authorized ths
officer to hold over. his incum
bency must be deemed to cease at the enc
of his term" Thus Harmony was withou
power to "act as secretary on Septembel
fer two reasons: a. His letter Of ap
!. pointment had expired: (2) only an assist
ant secretary could have received such al
} appointment.
A civilian lawyer first brought this omis
sion of the statutes to the attention of tn,
Secretary of the Navy, with the result
that in 1901 (act Of March 81 a new &C
of Congress gave to the Navy Department
the assistant designated in section 1T
The Judge advocate general, who regarde.
the former practice as legal. was subse