[pg 175] War Department, 26 April 1799. Sir A question has arisen, respecting appointments to a part of the Army establishment, 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 3^d March 1799? — 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 referred 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 3^d 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." 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." 3^d "An act to augment the army of the United States, and "for other purposes." passed the 16^th 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 [underline: happened, during the present session of the Senate]." 4^th "An act, authorizing the President of the United States, "to fill certain vacancies in the army and navy" passed the 3^d March 1799, which enacts "that the President of the United States shall [pg 176] 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." See also an act authorizing the President of the United States, to raise a Provisional army, passed the 28 May 1798, and supplement to the aforesaid act, passed 25 June 1798. Is it not evident from the above acts, that it [strikethrough: 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, occurring 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 Officers 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 James McHenry Major General Alexander Hamilton