To James McHenry
New York May 3d. 1799
After mature reflection on the subject of your letter of the 26th. of last month; I am clearly of opinion that the President has no power to make alone the appointment of Officers to the Batalion, which is to be added to the second Regiment of Artillerists and Engineers.
In my opinion Vacancy is a relative term, and presupposes that the Office has been once filled. If so, the power to fill the Vacancy is not the power to make an original appointment. The phrase “Which may have happened”1 serves to confirm this construction. It implies casualty—and denotes such Offices as having been once filled, have become vacant by accidental circumstances. This at least is the most familiar and obvious sense, and in a matter of this kind it could not be adviseable to exercise a doubtful authority.
It is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate.2
With great respect I am Sir Yr. Obedt. servt.
The Secretary of War
LS, Stark Library, The University of Texas at Austin; LS (photostat), James McHenry Papers, Library of Congress; ADf, Hamilton Papers, Library of Congress.
1. H is quoting from Section 8 of “An Act to augment the Army of the United States, and for other purposes” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 604–05 [July 16, 1798]). This section reads in part: “… 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.”
2. On May 7, 1799, McHenry wrote to John Adams,that Attorney General Charles Lee believed that “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]) was “large enough to embrace old officers in the army and navy … and also to embrace new offices created during the session which had never been filled but remained vacant.” But he also wrote: “After however all the consideration I have been able to give to the question, I cannot divest myself, of a certain force which I believe attached to my original conception” (ALS, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston). McHenry then quoted the second paragraph of H’s letter printed above. He did not, however, attribute the quotation to H, and he did not enclose it in quotation marks.