Quincy April 16. April 1799
I recd yesterday your favour of the 8th.
If there is no room for Mr Hastings as a Major, which I believe there is not, you may consider whether there is Place for him as a Captain. If there are not candidates of Superiour Claims he may be offered a Captaincy, and if he declines that, another may be appointed.
It is not upon the Act of the 3d of March Ult. that I ground the Claim of an Authority to appoint the officers in Question but upon the Constitution itself. Wherever there is an Office, that is not full, there is a Vacancy as I have ever understood the Constitution. To suppose that the President has Power to appoint Judges and Ambassadors, in the Recess of the senate and not Officers in the Army is to me, a distinction without a difference And a Construction not founded in Law or sense and very embarrassing to the public service. All Such Appointments to be sure must be nominated to the senate at their next session and subjected to their Ultimate decision. I have no doubt that it is my Right and my Duty, to make the provisional Appointment. Major Lillie has made me a Visit and I was well pleased with his appearance and Conversation. He did not appear to me to be an altered Man. I learn from others that he has been like many other worthy Men, extreamly unfortunate in Trade and that his Misfortunes have sometimes affected his Spirits, but an appointment in the Army upon which his heart is set, it is believed by Col. Rice, will restore him compleatly to himself. There is some weight, however in your Objection, that two Majors are more than the Proportion of one State. With a View to this Objection I wish to be informed of all the Candidates for his office from other States.
I wish to know whether the Jonathan Williams you mention is the Gentleman who lived in France when I was there and now in McPhersons House on the Schuylkill. If it is the same, Although I have not known much of his military Character, his other Qualifications are respectable.
Perkins’s Lieutenancy for Burbeck, I presume was on the supposition that himself should be Captain and both stationed for Life on the Castle. By all that I can learn Burbeck is well qualified for a Captaincy, and has merited it, if very long services, without reproach are merit.
It is my Intention that all the Commissions shall be dated on the same day and that the Officers from the Carolinas and Georgia, nor any other Officers shall loose any Advantage in rank, by the Circumstances of others receiving their Commissions sooner. I do not intend however that any Regulation of Rank shall be made, untill it has been laid before me. Let Special Care be taken that no directions concerning Rank be given out by General Officers, untill I shall have had opportunity to consider and approve it.
I congratulate you on General McPhersons good Conduct and success.
I have the honor to be, sir / your very humble servant
Inclosed is a Letter from Oliver Whipple requesting  be a Col.—which you will please to note among other Applications.
DLC: James McHenry Papers.