War Department, 26. May 1800.
Since my last on the subject of the appointment of Lt. Col. Smith to the command of the 2nd. Regiment of Artillerists and Engineers, I have had the honour to receive a communication from you authorizing me to send a Commission for your signature, if I approve, of the measure, to promote Major Tousard to be a Lieutenant Colonel, and another to appoint him Inspector.
I have respectfully to represent, that, I must presume—the promotion intended for Major Tousard, is to give him the command of the 2nd. Regiment of Artillerists, my last communication detailed my reasons why I considered this appointment could not be made. This office was never exercised—John Doughty was appointed to it while the Senate were in Session on the 1st. of June, and absolutely declined it on the 2nd. of July 1798 before the adjournment of Congress. If my position be true, that offices created and never filled require to the first appointment to them, the advice and consent of the Senate, the constitutional provision cannot apply to the present office unless Mr. Doughty’s appointment is considered a filling of the office, altho’ he declined acceptance, and did the latter in the recess of Senate—his non-acceptance however was transmitted and received during a Session of Senate—and if it made a vacancy it was not in the recess of Senate.
With respect to appointing this Officer Inspector, (as is presumed to be intended) of Artillery, I must also candidly express a doubt, if not a decided opinion, that this cannot be done. It is an original Office never filled—the provision for it is found in the 9th. Section of “An Act to augment the Army of the United States, and for other purposes,” in these words—“That there shall be appointed an Inspector of Artillery,” but no special or exclusive authority is given to make the appointment—which therefore it is presumed must take the usual constitutional course of nomination to the Senate.
At the same time I feel compelled respectfully to state my opinions, I feel an unfeigned regret, that as I conceive, present circumstances should obstruct the president’s wishes, and the laudable expectations of a meritorious Officer.
I have the honor to be, / with perfect consideration, sir, / Your obedt. servant,
(signed) James McHenry
DLC: James McHenry Papers.