[Docketing page; extremely faded. The following text is partially legible at center:] [7 [undecipherable]] [Providence.] [N° 12 a.] [Remaining columns of text on page are undecipherable] War Dep[artmen]t [undecipherable] Sir. Previous to my Taking any ultimate step relative to appointing the [undecipherable] of persons to Officer, the batallion add[itional?] [undecipherable] of Artillerists and Engineers [undecipherable] are not for [undecipherable] organizing of the troops [undecipherable] and for [undecipherable] purposes, passed the 3[rd] of [undecipherable] 1799, I thought it adviseable to submit to the Attorney General for his opinion [undecipherable]. The inclosed is a copy of his answer. The Attor[ney] General conceives "an Office created dur[ing] [the?] Session of the [undecipherable] and not filled by appo[intment], by and with the advice and consent of the Senate, as a vacancy happening during the Session, which the President cannot fill, during the recess, by the power vested in him by the Constitution, but a Legislation act of Congress [undecipherable] [undecipherable]. Their legislative act was [undecipherable] on the 3[rd] of March 1799 intitled 'an act authorising the President [undecipherable] to fill certain vacancies in the army and navy' for the extension [undecipherable] meant to embrace old Officers in [the?] [undecipherable] while having [been?] filled [not?] become vacant during the Session, and also to embrace new Officers created during the Session [undecipherable] remained vacant on the 3[rd] of March 1799. This Opinion is certainly [undecipherable] venible. After however all the considerations I have been able to give to the question, I cannot divest myself of a certain force which I believe attached to my [undecipherable] personal conceptions. According to my away of thinking, 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 [undecipherable] appointment to office. The phrase, used in the law, "which may have happened" serves to confirm this construction. It implies casualty - and denotes such offices as having been once filled, have become vacant by accidental circumstances. [undecipherable] seems to me the most familiar [undecipherable] ...case; and in a matter of this kind, sho[u]ld [undecipherable] require the immediate appoint[ment] of the officers, perhaps it would be advis[able] not to exercise a doubtful auth[ority]. I inclose a list of [undecipherable] these gentlemen with their recomm[endations] who have struck me as the best intitled to fill the [offices?] in question. Lt. Jonathan Williams, the first named for Major, is the gentleman who [undecipherable] in France [undecipherable] you was in that country. and now at the [undecipherable] where, [undecipherable] was [undecipherable] on the Schuylkill; he is a man of good moral character, of abilities and learning. Lt. Drury Ragsdale, [undecipherable] the list for the Majority, was created Capt. of Artillery - 13^th of January 1779, and served with no limitation to the end of the war. Lt. John Lillie was created Captain of Artillery the 1 Nov[embe]r 1778, and served with reputation to the end of the war. General Washington, in a letter to me dated the 22 July 1798 copy of which I had the honour to transmit you, observes, "In furnishing the list I gave you [undecipherable] whom field officers might be selected for the corps to be raised, I omitted not seeing his name [undecipherable] Major Ragsdale of the Artillery. his character in that corps I am told stood high. How has it happened that he is yet in the back ground, whether from choice, or because he has been overlooked I am unable to say. He is of this State." M[r.] [undecipherable: probable reading "Deas"], who is presented for the first Captain, is the oldest Lieutenant in the first Regiment of Artillery, consequently will be intitled to the first vacant Captaincy which shall happen in that corps. While this promotion, can hardly be considered as a favour, it may neverthel[e]s give some pleasure to his friends, and cannot give umbrage to any person. [undecipherable] is the only native Engineer we possess, has acquired the profession in the best foreign schools, at his own expense; has evidenced his skill as Engineer in a work which he has [undecipherable], and superintended the execution of, at Charlestown, [and?] is [undecipherable] of a higher grade. With the greatest respect, I have the honour to be Sir your most ob[edien]t — James McHenry [Marginalia, left side of page:] [undecipherable] [undecipherable] [undecipherable] [undecipherable] John Adams President of the United States.