I received your note yesterday afternoon, inclosing a letter to you, from Wm. S Smith Lt. Colonel of the 12th Regiment of Infantry dated the 21st instant.

You request my candid opinion upon the project contained in the letter inclosed. Whether his (Col. Smiths) request can be granted in whole or in part, consistent with military and political justice and propriety, without favour or affection.

Col. Smith solicits by his letter, that you should appoint him to the command of the 2d. Regiment of Artillerists and Engineers, and also allow him to select from the union Brigade, a Major and full battallion of Officers and men, to complete the said Regiment of Artillerists, suggesting that the Officers and soldiers of the union Brigade are well instructed in the duties of their profession, and that it would be greatly beneficial to the public, to retain or reengage, as many of them for service as may be requisite to fill up the corps government have concluded to keep on the establishment.

It will be recollected, on the 7th of May 1799, I had the honour of writing to you, and take the liberty of referring now to the letter—that previous to any ultimate step relative to presenting the names of persons, to officer the battallion added to the 2d Regiment of artillerists and Engineers, by an act of Congress, I had thought it advisable to take the opinion of the Attorney General—Whether existing laws, or the constitution itself, vested authority in the President, under all circumstances, to appoint officers to the said additional battalion, considering the offices in it created during a session of Senate, and never filled, as vacancies happening, either during the session or otherwise? That the Attorney General had given his opinion, which I inserted vz. An office created during a session of the Senate, and not filled by appointment, by and with the advice and consent of the Senate, must be considered as a vacancy happening during the session which the President cannot fill during the recess—by the powers vested in him by the Constitution, without a Legislative act of Congress enabling him to do it. That this Legislative act was passed on the 3d of March 1799—entitled “An act authorising the President of the United States to fill certain vacancies in the army and navy.” for the expressions were large enough to embrace old offices in the army and navy, while having been filled had become vacant during the session, and also to embrace new offices created during the session, which never had been filled, but remained vacant on the 3d of March 1799.”

I took the liberty to differ from this opinion for reasons detailed in my said letter which you acquiesced in, and the appointments to the additional battallion in question were accordingly post poned.

The reasons which induced to my former conclusions are still operative on my mind. I still consider offices created, and never filled, as presenting no vacancies relative to which either the Constitution or the act of Congress of the 3d of March 1799 (if still in force) could operate.

But, Sir, the act of the 3d of March 1799 will be found to extend the authority given by it, only to appointments to fill vacancies in the army and navy, which happened during the (then) present session of the Senate.

The uniform opinion I have ever held on the subject of appointments to fill the offices created in the additional battallions allowed by Law, in the 2d Regiment of Artillerists and Engineers, is precisely the same. I have always supposed to have been practised upon, respecting all other original offices created but never filled. Does not this practice seem to establish a belief in a general impression, that to the first appointment to fill an original or newly created office—the concurrence of the Senate is necessary;—and does not this impression seem strengthened, by the Constitutional provision, which is solely intended, to provide against a stagnation of public business in the recess of Senate, in consequence of vacancies then happening in offices once filled, and the care taken to limit the duration of the Commission.

I am therefore candidly of opinion that altho’ express and valid authority might have been given by law, to appoint absolutely to the offices of the additional battallion as has been the case with respect to other corps, yet that no such authority was in fact given by the act now expired of the 3d of March 1799—no satisfactory construction applying to cause these offices to be considered vacancies happening during a session of Senate:—nor has authority been given by any other act <[. . .]> within my knowledge with respect to this battallion.—And that the vacancies if considered as having happened at all, must have happened during a session, consequently the Constitutional proviso does not operate upon them.

What precedes—it will be observed, has reference only to the battallion offices. But it is presumed to be expected my opinion should extend, to the measure of preferring Lt. Col. Smith to the office of Lt. Colonel Commandant of the 2d Regiment of Artillerists & Engineers.

I here take the liberty to mention, that in the revolutionary war, from the situations in which I was placed, I had good opportunities of observing the military qualifications of Lt. Col. Smith. I then considered him to be a brave, active, and intelligent Infantry officer. I still consider, that his general knowledge of tactics, of the movements of troops, and general operations of a campaign, give him a fair claim to be placed high on the list of our military characters. But, I must add—that in no service, if my recollection is correct, has it been practiced to take an officer of an Infantry Regiment to command one of Artillery—Altho officers of the latter have frequently been taken to command Infantry their original acquirements comprehending the essential duties of Infantry and also others peculiar and indispensible to the Artillerist and Engineer.

My opinion however must be an abstract one. The office of Commandant of this Regiment was never exercised. John Doughty was appointed to it (he was of the Artillery during our revolutionary war) on the 1st of June, and absolutely declined it on the 2d of July 1798. It is properly a subject for legal men to determine whether the mere appointment altho’ afterwards declined—constituted a filling of an office, and thereafter declination a vacancy of it.—but in the present case if so determined—the vacancy happened during a session and not in the recess, of the Senate, for the Senate continued in session at least until the 16th July 1798. and Major Doughty, absolutely declined the acceptance on the 2d of the same month, so that in fact and in no view I can take of the subject, will the constitutional authority of the President now extend to this appointment.

It may be permitted me, to add that it was contemplated to draw a fit character from abroad, to fill the office of Commandant of the 2d Regiment of Artillerists and Engineers, and also that of Inspector of Artillery, and that with your approbation both offices were offered to a distinguished character in Europe—himself an American, that I have very lately mentioned to you, that I never understood this idea to be abandoned—altho’ conformably to the proposition intimated to me respecting Major Lewis Tousard and I reported him the oldest Major of Artillery in service. That the plan for a military Academy—which would enable by a new modification advantagiously to lay asside the additional battallion of the 2d. Regiment, as well as an existing Battallion of Artillerists—reported to you by me and by you to Congress and not decided upon but postponed late in the session, had induced a delay in the presenting to offices for the additional battallion, and as I could not but indulge the hope, that Congress would establish the Academy, and permit the modifications recommended, at this next session—that I thought it best the appointment should not be made as well as more conformable to the œconomical views, which seemed to prevail at the present day.

Since writing the above, I have had my attention called to “an act giving eventual authority to the President of the United States to augment the army”, the 1st Section of which provides for a battallion of Artillerists and Engineers, and the 2d section authorises the President whenever it shall appear to him expedient, if during the session of the Senate, with their advice and consent, if in their recess alone to appoint and commission all officers for the said troops, provided that the general and field officers who may be appointed in the recess, shall at the next meeting of Senate, be nominated and submitted to them for their advice and consent. I observe however that the whole authority given by the sections of this act cited, to the President, with respect to raising and officering troops in addition to the other military force of the United States was discretional, and to be exercised only in case a war should break out between the United States and a foreign European power, or in case of imminent danger of invasion discovered in his opinion to exist, and that the 11th. or last section of the same act provides that the powers given by the first and second sections of the same to the President of the United States shall cease at the expiration of the session of Congress next ensuing the present, unless they shall be by some future law continued in force for a longer time—and that as I do not know of any future law continuing in force the specific powers given by the first and second sections of this act, I cannot suppose they now interfere with the conceptions I have had the honour candidly to exhibit for your consideration in the first part of this letter.

I have the honour to be with perfect consideration &c / your most ob st