function. But, if the view of the Constitution which has been presented be correct, it is clear that the Congress cannot vest in itself any right to a participation in the selection of officers of any class save those of the two Houses. The language of the act organizing the Navy is sometimes cited to support the opinion that acting midshipmen are not officers, but employees. In the first section of that act, the President is authorized to appoint certain commissioned officers, and to "employ as many masters, midshipmen, engineers, naval constructors, boatswains, gunners, carpenters, sailmakers, and other warrant and petty officers and seamen as he may deem necessary," &c.
If it were conceded that acting midshipmen are not officers, the bill would not on that account be the less liable, in my judgment, to the objections above set forth; for it is as little in accordance with the letter and the spirit of the Constitution for the members of Congress to participate in choosing employees as in choosing officers for the Executive or Judicial Departments. It is repugnant to the whole theory of our republican institutions, which are based on the fundamental idea of independent and distinct functions in each of the Departments of Government, the Legislative, Executive, and Judicial; and evil consequences must result from any departure from this principle.
But in no just sense can it be maintained that an acting midshipman is not an officer of the Navy. The very clause in the law just referred to implies that he is a "warrant officer;" but if there be doubt as to this, the question is decided by the 3rd section of the act of 21st April, 1862, which declares that "the warrant officers shall be as follows: Twenty passed midshipmen, one hundred and six acting midshipmen," &c., &c. The commissioned officer is appointed by and with the advice and consent of the Senate; the next grade, the warrant officer, belongs to that class of inferior officers which according to the Constitution may be established by law, and appointed by the President alone, or the Head of a Department.
The midshipman is of this class. His appointment is authorized by law, and his promotion provided for by regulations. He cannot be discharged or dismissed from service at the pleasure of his commander, nor without delinquency on his part, as a mere employee for temporary service. His name is placed in the Navy
