From James McHenry
War Department 26 April 1799
A question has arisen, respecting appointments, to a part of the Army establishment,1 on which I have to request your opinion, as soon as convenient, viz:
Is it within the authority of the President, to appoint, the Officers, to the additional batalion, to the second Regiment of Artillerists and Engineers, directed to be raised by “an act, for the better organizing of the troops of the United States and for other purposes,” passed the 3d. March 1799?2
The Constitution of the United States, art. 2. Sect. 2. provides, that, “Congress may by law, vest the appointment of certain inferior officers, as they think proper, in the President alone, in the Courts of law, or in the heads of departments,” and that, “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next Session.”
It would seem, that under this Constitutional power, the President cannot alone make certain appointments or fill up vacancies that may happen during a session of the senate, without an express power derived from an act of Congress. The following acts are refered to viz:
1. “An Act for raising and adding another regiment to the military establishment of the United States, and for making further provision for the protection of the frontiers,” passed the 3d. March 1791, which enacts, “that the President be, and he hereby is impowered to organize the said levies, and alone to appoint the Commissioned Officers thereof, in the manner he may judge proper.”3
2. “An Act for making further and more effectual provision for the protection of the frontiers of the United States,” passed the 5 March 1792: Which enacts “that the President alone be, and he hereby is authorized to appoint for the Cavalry so to be engaged, the proper commissioned Officers.”4
3d. “An Act to augment the army of the United States, and for other purposes.” passed the 16th. July 1798—which enacts, “and in recess of Senate, the President of the United States, is hereby authorized, to appoint all the regimental officers, proper to be appointed under this act, and likewise to make appointments, to fill any vacancies in the army, which may have happened, during the present session of the senate.”5
4th. “An Act, authorizing the President of the United States, to fill certain vacancies in the army and navy,” passed the 3d. March 1799, which enacts “That the President of the United States shall be, and he is hereby authorized, to make appointments, to fill any vacancies in the army and navy, which may have happened during the present session of the Senate.”6
Is it not evident from the above acts, that it was the opinion of Congress, the Constitution did not authorize the President, to fill up any vacancies in the army, which might happen during a Session of the Senate, but that an express authority for the purpose was indispensibly necessary to be vested in him by law?
If such is the meaning of the Constitution with respect to actual vacancies, occuring during a Session of the Senate—another principle requires mature consideration, and a clear decision, before Officers can be appointed to the companies, intended to compose, the additional batalion of Artillerists in question—viz: Whether Offices, created, during the late session of the senate, and not then filled by appointments, by and with their advise and consent, can now be considered, as offering vacancies, happening during the said Session, to the filling of which the President is competent, independent of any act, by virtue of that part of the Constitution, which declares “The President shall have power to fill up all vacancies that may happen, during the recess of the Senate, by granting Commissions which shall expire at the end of their next Session.”
I am Sir With great Respect Your Obedient Servant
Major General Alexander Hamilton
LS, Hamilton Papers, Library of Congress; LS, letterpress copy, James McHenry Papers, Library of Congress.
1. The question of the power of the President to make Army appointments during the recess of the Senate arose when John Adams wrote to McHenry on March 29, 1799, about appointing John Hastings, a resident of Newton, Massachusetts, to the Army (LC, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston). On April 8, 1799, McHenry replied to Adams that he “entertained a doubt” whether “An Act authorizing the President of the United States to fill certain vacancies in the Army and Navy” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 749 [March 3, 1799]) “could be construed to intend appointments to offices which had never been filled” (ALS, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston). Adams disagreed with McHenry and wrote to him on April 16, 1799: “It is not upon the Act of the 3d of March Ulto. that I ground the Claim of an Authority to appoint the Officer in question, but upon the Constitution itself. Whenever there is an office that is not full, there is a Vacancy as I have ever understood the Constitution.… All such Appointments to be sure must be nominated to the Senate at their next Session and subject to their ultimate decision. I have no doubt that it is my Right and my duty [to] make the Provisional Appointments” (LC, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston). It was in order to answer Adams that McHenry consulted H in the letter printed above.
8. This is a reference to “An Act supplementary to, and to amend the act, intitled ‘An Act authorizing the President of the United States to raise a provisional army’” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 569–70), which became law on June 22, 1798, not June 25 as McHenry states.