Now I have all 8 pages. Let me produce the transcription from these images. [undecipherable] War Department, 21 May 1800 - Sir- I recieved your Note yesterday after noon, inclosing a Letter to you, from W. S. Smith D. Col. of the twelfth regiment of Infantry, dated the 21^st instant. [undecipherable] request my candid Opinion upon the [undecipherable] contained in the letter in- closed. Whether his (Col. Smith's) requests, can be granted in whole or in part, consistent with military, and Political Justice and propriety, without favour or affection. Col Smith [undecipherable] by his Letter, that you should appoint him, and [undecipherable] [undecipherable] to the [undecipherable: Command?] of the 2. Regiment of Ar- tillerists and Engineers - and also allow him to select from the Union Brigade, a Major and full Battalion of [undecipherable] and men to complete the [undecipherable] several regiments, suggesting that the Officers and Soldiers of the Union Brigade are well instructed in the duties of their [undecipherable], and that it would be [undecipherable] greatly beneficial to the Public, to retain or recruit, as many of them in service as may be requisite to fill up the Corps Government have concluded to keep on the establishment. [undecipherable] It will be [undecipherable] [undecipherable] [undecipherable] now, and [undecipherable] the liberty of referring now to the letter - [undecipherable] previous to making any ultimate [undecipherable] relative to pre- venting the names of persons to Officer the battalion added to the 2 Regiment of Artillerists and Engineers, by an act of Congress - I had thought it adviseable to take the Opinion of the Attor- ney General - whether existing laws, or the Constitution itself, vested authority in the President, under all circumstances, to appoint officers to the additional Battalion [undecipherable] considering the Offices, created during a Session of Senate - [undecipherable] and new [undecipherable], as vacancies happening, either during the Ses- sion or otherwise? That the [undecipherable] had given his opinion, which [undecipherable] In Of- fice created during a Session of the Senate, and not filled by appointments, 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, with [undecipherable] a legislative act of Congress enabling him to [undecipherable]. That the Legislature did [undecipherable], was passed [undecipherable] 1799 - entitled "An act authorizing the Presi- dent of the United States to fill [undecipherable] vacancies in the Army and Navy" for [undecipherable] - ons were large enough to embrace [undecipherable] - ces in the Army and Navy, which having been filled had become vacancies, during the Session, and also to embrace new Offices cre- ated during the Session which never had been filled, but remaining [undecipherable] on the 3. of March 1799" [undecipherable] took the liberty to [undecipherable] [undecipherable] [undecipherable] in my [undecipherable], and when [undecipherable] [undecipherable] [undecipherable] appoint- [undecipherable] ion in Question. [undecipherable] [undecipherable] [undecipherable] to my for- mer [undecipherable] [undecipherable] my [undecipherable] [undecipherable] [undecipherable] I still consider Offices created, and never filled as presenting no Vacancies - relative to which either the Constitution [undecipherable] or the Acts of Congress of the 3. of March 1799, if still in force, [undecipherable] operate. But Sir the Act of the 3. of March 1799 will be found to extend the authority given by it, only to appointments to fill vacancies in the Army and [undecipherable] - which [undecipherable] have happen- ed during the [undecipherable] present Session of the Senate? This uniform Opinion I have ever held on the Subject of appointments to fill the [undecipherable] created in the additional Bata- lion [undecipherable] law, in the 2. Regiment of Artillerists and Engineers - is [undecipherable] the same - [undecipherable] unnecessarily, exposed to [undecipherable] been [undecipherable] upon, res- pecting all [undecipherable] being individuals [undecipherable] creates but never filled - [undecipherable] [undecipherable] [undecipherable] seem to establish [undecipherable] individual [undecipherable] - that to [undecipherable] appointments [undecipherable] fill, an [undecipherable] [undecipherable] created [undecipherable] - The concur- rence of the Senate is necessary and does not [undecipherable] end, by the [undecipherable] provision - which is solely [undecipherable] [undecipherable] information [undecipherable] recess of Senate, in [undecipherable] [undecipherable] happening [undecipherable] to limit the duration of [undecipherable] [undecipherable]. I am [undecipherable] [undecipherable] opinion that [undecipherable] by [undecipherable] [undecipherable] - as has been [undecipherable] [undecipherable] and that no such authority was in fact given by the Act now expired, of the 3^d. of March 1799 - and been given by any [undecipherable] no satisfaction or instruction applying to make [undecipherable] Offi- ces to be considered - Vacancies happening during a Session of Senate - nor has authority been given by any other Act within my know- ledge with respect to this battalion - and that the Vacancies if considered as having happen- ed at all - must have happened during a Session - consequently the Constitutional provision does not operate [undecipherable]. What precedes - it will be observed - has reference only to the Battalion Offices - But it is presumed, too [undecipherable] - my opinion should extend - to the measure of preferring Lt Col Smith to the Office of Commander of the 2. regiment of Artillerists and Engineers. I take the liberty to mention that in the revolutionary War - from the particular situations in which I was placed - I have had good opportunities of observing the mili- tary 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 movements of Troops - and [undecipherable] operations of a Campaign - give him a fair claim to be placed high on the list of our Military Characters.* My opinion however must be an absolute one. The Office of Commandant of this Regiment was never [undecipherable] - [undecipherable] John Bou[undecipherable] [undecipherable] [undecipherable] ever [undecipherable] - and also who was appointed to it, on the 4^th. July 1798 [undecipherable]... by declining it on the [undecipherable] July 1798 [undecipherable]... is properly the Subject [undecipherable] for [undecipherable] - men to determine whether the mere of [undecipherable] - ments all [undecipherable] afterwards declined - constituted a filling of [undecipherable] Office - and the after declination a Vacancy of it - but in the present case it so determined. The Vacancy happened du- ring a Session, and not in the recess, of the Se- nate - so that the Count for the Senate con- tinued in Session - at least until the 16^th. of July 1798 - and Major Doughty absolutely declined the appointment on the 2. of the same month - so that in fact, and in no wise I take of the Subject - will the Constitutional au- thority of the President now extend to this appointment. - It may be permitted to me, to add - that during [undecipherable] it was contemplate- ed to draw a fit Character from abroad, to fill the Office of Commandant of the 2^d. Regt 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 - him- self [undecipherable] American - and that I have very lately mentioned, [undecipherable] That I never had under- stood this idea to be abandoned - [undecipherable] conformably to a proposition intimated to me, respecting Major Lewis Toussard - I reported him the oldest Major of Artillery in service - and that [undecipherable] Military Academy - which, enabling advantageously to organize the additional Battalion of the 2. Regiment - as well as an existing battalion [undecipherable] to [undecipherable] battalion [undecipherable] [undecipherable] [undecipherable] Session - had [undecipherable] a delay in the [undecipherable] presenting [undecipherable] for the additional battalion - and as I could not but indulge The hope that Congress would establish the Academy - and [undecipherable] the modification recommended - at their next Session - That I thought it best the appointments should not now be made as well as more conformable to the oecono- mical views, which seemed to prevail at the present day. - Since writing the above - I have had my attention called to an act giving eventual authority to the President of the United States to augment the Army" - The 1^st. Section of which provides for a battalion of Artillerists and En- gineers - and [undecipherable] the other [undecipherable] [undecipherable] the same [undecipherable] and the 2^d. Section - authorizes the President, whenever it shall appear, 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 [undecipherable] provided that the General and Field Officers, who may be app- ointed in the recess, shall at the next meeting of Senate, be nominated and [undecipherable] submitted to them for their advice and con- sent. - I observe however, that the whole authority given [undecipherable] the President, [undecipherable] [undecipherable] and to be exercised only in constitution cases or wars, should break out between the United States and a Foreign European Power, or in case of imminent dan- ger of invasion, discovered in his opinion to exist - and that the [undecipherable] [undecipherable] the power given by the 1^st. & 2^d. Section of the same - to the Pre- sidents of the United States - shall cease and determine at the expiration of the Session of Congress next ensuing - the President, unless they shall be by some future Laws, continu- ed in force, for a longer time. And as I do not know of any future law, continuing in force the powers [undecipherable] given by this Act - I cannot suppose they now interfere with the con- ception I have had the honor repeatedly to exhibit for your consideration, in the first part of this Letter. I have the honor to be with most consideration John Adams President