hamilton to mchenry - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 7 [1774]
Edition used:
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 7.
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hamilton to mchenry
May 3, 1799.
Sir:—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 battalion 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 a vacancy is not the power to make an original appointment. The terms, “which may have happened,” serve to confirm this construction. They imply casualty, and denote 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 advisable 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.
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