War Department. 22nd. May 1800
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 may wish my candid opinion upon the project contained in the letter enclosed. Whether his (Col. Smith’s) request can be granted in whole or in part, consistent with military and political justice and properly without favour or [affection].
Col. Smith [solicits] by his letter that you should appoint him to the command of the 2nd. Regiment of Artillerists and Engineers, and also allow him to order for the union Brigade, a Major and full Battalion 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 in [. . .] 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 honor of writing to you, and take the liberty of referring now to the letter—that previous to [any] ultimate stop relative to presenting the names of persons to officer the battalion added to the 2nd Regiment of Artillerists and Engineers, by an Act of Congress I had thought it adviseable 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 enacted] during a session of Senate, and [. . .] as vacancies happening [either] during the [Session] or [otherwise]? That the Attorney General had given his opinion which [I] [. . .] 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, [intitled] “An Act authorizing the President of the United States to fill certain [vacancies] in the Army and Navy” for the [. . .] large enough to [. . .] old offices in the Army and Navy; which having been filled had [. . .] vacant during the Session, and also to [. . .] created during the Session, which had been filled [. . .] “vacant [. . .] 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 battalion in question [give] accordingly [. . .].
The reasons which induced to my former conclusions are still operative on my mind. I shall consider offices created, and never [filled], as presenting [vacancies] vacancies relative to which either the Constitution, or the Act of Congress of the 3rd. of March 179 (if still in force) could operate.
But Sir, the Act of the 3rd. 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 ([. . .]) 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 battalion allowed by law; in the 2nd Regiment of Artillerists and Engineers, [is precisely] the same—I have always [. . .] [said] to have been [. . .] upon, respecting all other original offices created but never filled. Does not this practice seem to establish a [. . .] as 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 [. . .] of Senate, in consequence of Vacancies then [happening] in offices once filled, and the care taken to limit the duration of the Commissions.
I am therefore candidly of opinion that altho’ [. . .] and solid authority might have [been given by law], to appoint absolutely to the Offices of the additional battalion as has been the case with respect to other Cases—[yet this] [. . .] authority [was in fact] given by the Act now [. . .] of the 3rd. of March 179—no satisfactory construction [. . .] 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 battalion—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 battalion officer But it is presumed, to be expected my opinion should extend to the measure of preferring Lt. Col. Smith to the Office of Lt. Col. Commandant of the 2nd. Regiment of Artillerists and 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 movement 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 recollections are 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 indispensable to the Artillerists and Engineers.
My opinion however must be an abstract one. The Office of Commandant of this Regiment was never considered. 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 2nd. of July 1798. It is properly a subject for legal men to determine, whether the mere appointment and, altho’ afterwards declined—constituted a filling of an office, and the after 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 2nd. 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 2nd. 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 a proposition intimated to me respecting Major Lewis Tousard I [. . .] him the [oldest] Major of Artillery in Service—that the plan for a military academy—which would enable, by a new modification advantageously to lay aside the additional Battalion of the 2nd. Regiment, as well as an [existing] Battalion 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 battalion,—and as I could not but indulge the hope, that Congress would establish the Academy, and permit the unification recommended, at their next Session—that I thought it best the appointment should not be made as well as more conformable to the [aconomical] views, which seemed to prevail at the present day.
Since writing the above I have had my attention called to “an Act giving executive 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 2nd. Section authorizes 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 Section of this Act cited, to the president, with respect to raising and officering troops in addition to the other military forces 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, Sir, / Your most obedt. servant,
(signed) James Mc:Henry.
DLC: Alexander Hamilton Papers.