Opinions on the Constitutionality of the Residence Bill
Editorial Note

Probably the most celebrated and most controverted coalition in American history is that by which Thomas Jefferson and James Madison came to the aid of Alexander Hamilton’s plan to assume the states’ war debts and thus insured its adoption. It is a remarkable fact that one aspect of the opposition that they encountered, involving legislative construction of the constitution and an effort to focus public attention on this argument at the moment that final decision lay with the president, has remained unexplored. There is little doubt that Washington was disturbed by the tone and force of arguments by Junius Americanus. The questions that he addressed to Jefferson when he read these arguments in the Daily Advertiser of 13 July 1790 show that he suspected the enemies of the Potomac site for the seat of government of holding in reserve a powerful legal and moral assault that would, in effect, place the decision in the context of Washington’s devotion to constitutional government. There is also no doubt that Washington’s questions betrayed his desire to learn who was back of this attempt to break the coalition on the rock of his own integrity. Thus, because Junius Americanus addressed himself to a serious inconsistency in Madison’s position on the question, the President’s searching questions were in effect directed to both men. Their collaboration in the rebuttal of Junius Americanus’ arguments proves that they so interpreted these questions. In their handling of the thorny constitutional predicament in which their coalition effort had placed them, they were in effect engaged with Junius Americanus in a contest in which the decisive influence of the President was the goal.

Early in 1790 the French chargé d’affaires expressed the belief that the eternal discussions about fixing the seat of government, fanned into a new flame by Virginia’s offer of land on the Potomac, by her plans to improve the navigation of the river, by her pledge of $120,000 for the construction of buildings in the federal district, and by her invitation to Maryland to join in the gesture, would give a more perceptible shock to the union than the problems of reorganization had done in the first session. The prophecy was accurate. The debate on residence reached its peak six months later in an atmosphere in which the threat of disunion was clear and ominous. But the old flames had never been extinguished. The issue had become intermingled with many important measures of the national government from the very beginning of the union, exacerbating sectional feelings and arousing personal and local interests. Jefferson and Madison had collaborated six years earlier in the effort to move the capital away from an eastern city and to a position central to the extreme northern and southern states and accessible to the western regions by improved navigation.1 In 1789 Madison and other Southerners, by the narrowest of margins, had stood off the combination arranged between Robert Morris and Rufus King whereby the Pennsylvania delegation signed a pledge and engaged its honor—Senator Maclay abstaining—to keep the government in New York until 1793 on condition that a bill should pass Congress that session fixing the permanent seat at Germantown.2 Now in 1790 Jefferson and Madison were participants in another and successful bargain that removed the troublesome issue forever from American politics.

On Sunday, 13 June 1790, Jefferson informed several friends in Virginia that the old issue of the residence would come on in that session. To George Mason, whose favorable disposition towards the administration it was important to cultivate, he said that the proposal for assuming the debts of the states, then quiescent because of the bitter animosities that had been aroused, would be revived in some form. “My duties preventing me for mingling in these questions,” he added, “I do not pretend to be very competent to their decision.”3 To another friend that same day he also wrote: “I am only a passenger in their voyages, and therefore meddle not.”4 But in letters to Virginia, written on the following Sunday, no such note of aloofness can be detected. In these he explained that Congress was faced with “two of the most irritating questions that ever can be raised among them,” assumption and residence. Unless “some plan of compromise” could be agreed upon, no funding bill would be adopted, American credit at Amsterdam would “burst and vanish, and the states separate to take care everyone of itself.” In the face of this situation, he said, efforts were being made to bring about a disposition for “some mutual sacrifices.” He admitted that he himself saw the need to listen “to the cries of the creditors in certain parts of the union, for the sake of union, and to save us from the greatest of all calamities, the total extinction of our credit in Europe.” The proposed ground of accommodation was a modification of the assumption bill to allow each state a fixed sum in proportion to its census, with a temporary residence at Philadelphia for twelve or fifteen years and a permanent location thereafter at Georgetown. In this way, Jefferson concluded, there would be “something to displease and something to soothe every part of the Union, but New York, which must be contented with what she has had.” On this ground the Pennsylvania and Virginia delegations had conducted themselves honorably and with fixed determination not to yield to “insidious propositions made to divide and defeat them.” They had done this by recognizing their concurrent interests, without stipulations and without “descending to talk about bargains.”5 Obviously, the process by which the assumption and residence measures were blended was one that came to a point of crystallization sometime during the six days that separated these two stints of Sunday letter-writing.

In view of the exacerbated feelings aroused by the proposal to assume the state debts, with the Massachusetts delegation leading the fight for adoption and, so Abigail Adams thought, with the Virginia representatives following Madison like a flock of sheep in his effort to defeat the measure, a composition of interests was a natural and perhaps inevitable plan that no doubt occurred to many.6 Having arranged a similar combination in 1789, Robert Morris lost no time in making delicate hints of his objectives even to the President in the new session.7 But there can be no doubt that the Secretary of the Treasury, whether he originated the move to connect the two measures or not, was the key figure in this maneuver to save the assumption bill as an integral part of his funding system. Jefferson may have overdrawn the picture of Hamilton’s uncharacteristic despondency as they met before the President’s house that fateful morning, but Hamilton was indubitably caught in the coils of those ligaments of interest with which he had sought to bind men of substance to the federal government. Their clamors, thought Senator Maclay, were as insistent as Shylock’s cry for his bond. “The nonAssumption of the state debts,” wrote Henry Jackson to the Secretary of War in a typical outburst coming from New England at this time, “has thrown the people into the greatest confusion, and will be the means of weakening the Federal government more than any other measure they could have pursued. Its best and most substantial friends are shagreen’d, mortified and disappointed, and appear ready to say or do anything to release themselves from a government that are not disposed to do them common justice. From the present temper of the People I am clear in it that unless this measure is obtained in the present session of Congress very serious consequences will take place. I assure you the minds of the people are more agitated than I ever knew them.”8

Madison, disliking assumption from the beginning but willing to accept it under some modification as being what Jefferson called it, “a choice of evils,” was given pause by the threat of disunion. “The Eastern members talk a strange language on the subject,” he wrote James Monroe. “They avow, some of them at least, a determination to oppose all provision for the public debt which does not include this, and intimate danger to the Union from a refusal to Assume. We shall risk their prophetic menaces if we should continue to have a majority.”9 Jefferson noted the danger as well and his contemporary comments reinforce the assertion made in his history of the episode—that assumption was “acquiesced in merely from a fear of disunion.”10 The ligaments of interest were indeed powerful, but they were at this time threatening to pull the government apart and with it the man who had done so much to create them.

It is therefore misleading to describe the accommodation of interests reached in mid-June as the result of a deadlock between champions of Hamilton’s proposal to transfer the state debts and those determined to move the national capital southward.11 Until late May the residence issue was not actively agitated. Madison in April was in command of the majority against assumption, but he had not much hope of moving the capital to the Potomac: that, he said, “seems pretty much out of sight.”12 Jefferson had been ill, was immersed in his report on weights and measures, and had formed a strict resolution to confine himself to his own department and not to intermeddle in legislative questions. Washington, deeply interested as everyone knew, was equally aloof. It was not a Virginian but Thomas FitzSimons of Pennsylvania who on 31 May 1790 called up the tabled motion for the next session of Congress to be held in Philadelphia.13 Further, assumption was a sharply defined sectional issue in a sense that the decision on locating the seat of government was not. Maclay, who fought for the Susquehanna with single-minded intransigence, and Robert Morris, who maneuvered for the Delaware more adroitly but just as hard, were the first and the most zealous promoters of the residence intrigues in the second session as they had been in the first. Rufus King of New York was just as valiant in mobilizing support from New England and elsewhere to keep Congress where it was. The advocates of the Hudson, the Delaware, the Susquehanna, the Chesapeake, and the Potomac were representatives of competing local interests and their maneuvers were perennial. When Richard Peters heard that a resolution had been adopted to hold the next session at Baltimore, he needed no more than the newspaper account to detect the feint. “The Transactions on that subject,” he wrote Jefferson, “cast a shade on the congressional Character. I had enough of it when I was in the old Congress and I see it is the same Pack of Cards shuffled and used for another game. An odd Trick is often won I see by those who do not get the Rubber.”14 Far from arising out of a deadlock between equally matched and determined forces, the accommodation grew naturally out of this perennial competition among local interests over the seat of government.

The possibility of a bargain was sensed by assumption forces immediately on the adoption of FitzSimons’ motion. A Federalist in the Daily Advertiser of 3 June 1790 wrote:15

A report is circulated (for the honour of America may it be false) that certain gentlemen, belonging to certain states, between New-York and Florida, have made the following bargain with certain other gentlemen who come from states directly opposite to the west of New-York, viz. That the former will vote for the assumption of the state debts, if the latter will support the motion for removing to Philadelphia.—True or false, it is currently spread, and by some believed. If it be true, some gentlemen have brought themselves into a very awkward situation. If they really think that the assumption would injure the interests of the United States, base must be their principles if any consideration can induce them to vote for the measure. If they think that it would promote those interests, no less base is their conduct in waiting for a bribe to do their duty. The friends of America must, with indignation, execrate their caballing, which makes her most precious interests an article of barter. I am persuaded that the citizens of Philadelphia, would not esteem the residence of Congress a desireable acquisition, when they considered it as the fruit of perfidy.

A Federalist admitted this was strong language, but, he added, “the author loves his country.” He sounded remarkably like Senator Maclay, a scribbler for the newspapers whose sensitivity to the whispers of bargaining was extraordinarily acute.

The first direct evidence of trading maneuvers came to Maclay on the morning of the 14th of June when he called at the Treasury on a matter of business. There Tench Coxe pushed aside the business, “so keen was he on the subject of proposing a bargain … Pennsylvania to have the permanent residence on the Susquehanna, and her delegation to vote for the assumption.” Maclay restrained his “indignation at this proposal with much difficulty within the bounds of decency.” He doubted the sincerity of the one he regarded as the principal, Alexander Hamilton. Later that day Robert Morris told him of a meeting on the 11th at the lodgings of Thomas FitzSimons and George Clymer, with the President’s secretary, William Jackson, and Tench Coxe also being present. The object was the same bargain, save that the location of the permanent residence was to be “in Pennsylvania.” Morris, distrusting the intermediaries, had sought out Hamilton himself, who stipulated one vote in the Senate and five in the House as the price for placing “the permanent residence … at Germantown or Falls of the Delaware.” Morris agreed to sound the Pennsylvania delegation but stipulated temporary residence at Philadelphia as the price. “You need not consult me,” Maclay bluntly interrupted. Morris went on to say that Hamilton had reported that morning that his friends would not hear of his negotiating about the temporary residence. He knew that the Secretary of the Treasury had been able to “manage the destruction of the Baltimore vote” without his aid but could not tell how. Morris added: “I think he has some other assurances.”16

It was on the 14th that the Baltimore resolution was postponed, thus opening the way for the accommodation arranged by Hamilton and Madison with Jefferson’s intermediation. As the Senate rose on the 15th, Morris told Maclay that “he had had a communication from Mr. Jefferson of a disposition of having the temporary residence fifteen years in Philadelphia and the permanent residence at Georgetown. Morris added that he had called a meeting of the delegation at six o’clock. All that transpired at that caucus was a repetition of the offer by Hamilton of the permanent residence in Pennsylvania. Maclay thought the offer mad and spoke with detestation of the “bargain proposed by Hamilton.” Morris repeated the “communciation from Mr. Jefferson.”17

Hamilton was enmeshed. The Pennsylvanians, knowing the impossibility of settling the question of a permanent site at that session without provoking a violent fight and thus endangering assumption, worked for the temporary residence in the hope that this would ultimately become the fixed seat. The Massachusetts advocates of assumption, impatient at the attempt to inject this disruptive problem into their drive for the funding system, promptly took advantage of the intrusion to press for decision on the permanent site. If, as Fisher Ames hoped, that bone of contention could be tossed to the bargainers, the champions of the funding system might be able to “dictate their own terms.”18 By this strategy Massachusetts balked the New Yorkers while frustrating Morris and the Pennsylvanians at the game they were playing. Rufus King made a desperate effort to influence Caleb Strong and other New England friends to stand by New York.19 Hamilton afterward explained to King why Massachusetts did not: nothing but Philadelphia as the permanent residence or that place temporarily and the Potomac permanently, he said, would insure the assumption, which was the object of the Massachusetts delegation.20 But before that time arrived, Hamilton had undergone the agony that Jefferson described.

The atmosphere of bargaining and intrigue is impenetrable, but both chronology and the known facts suggest that Jefferson’s meeting with Hamilton and his offer of intermediation came earlier than is generally supposed. The day of confusion and irregularity in the Senate on the 8th of June perhaps reflected and certainly set the stage for the kind of strategy that Fisher Ames contemplated.21 By the time of the meeting on the 11th at the lodgings of Clymer and FitzSimons, bargaining for votes at Hamilton’s instigation was definitely under way. Morris and Hamilton must have had their meeting at the Battery on Saturday the 12th, for that night Henry Wynkoop of the Pennsylvania delegation—so earnest for assumption that in April Maclay had deemed him “all Secretary”—came to sound out the stubborn advocate of the Susquehanna and implacable enemy of the transfer of debts. Maclay gave him short shrift. The next day Morris and FitzSimons took George Read of Delaware into the country, seeking from him the vote that Maclay would not give. Read joined the combination readily enough. Morris had no reason to doubt that he could rely on the Pennsylvania delegation to deliver the four or five votes needed in the House. Thus on the day that Jefferson wrote Virginia friends of his detachment from legislative proceedings, the bargain to give the temporary residence to Philadelphia seemed about to be sealed. But on the morning of the 14th Morris received the note from Hamilton that dashed these hopes. Misreading Hamilton’s position for one of strength gained from “other assurances,” Morris did not realize that the Secretary of the Treasury had far greater reason than he to be dismayed at the outcome of this promising arrangement.

It must have been on that day that Jefferson met Hamilton in front of the President’s house. Both the urgency of the situation and the blow that Hamilton had been dealt by his supporters justify the assumption. On issues of such importance it would seem uncharacteristic of Hamilton to have delayed several days when he found himself blocked. Given the desperate circumstances surrounding the assumption measure and the attendant threat to the union which Hamilton delivered as a sine qua non, no other hypothesis about the date of the decisive meeting seems adequate. Jefferson stated that he wrote immediately to both Hamilton and Madison inviting them to dinner the next day. No such letters have been found, but the invitations could have been sent by messenger for delivery orally or in writing.22 Unless it is assumed that the meeting took place on the 14th, Morris’ report to Maclay on the 15th about Jefferson’s agreement to a temporary residence in Philadelphia seems inexplicable.23 The confused entry in Maclay’s journal does not necessarily mean that Jefferson communicated directly with Morris. All it may mean is that, once Hamilton had found he could get votes from Virginia by sugar-coating the pill of assumption, he reported that fact to Morris. The financier, knowing Maclay’s readiness to see Hamilton’s hand in every move, may have found it expedient to conceal the source of the communication from this ardent foe of assumption.

The bargain seems to have been a well-kept secret, otherwise Hamilton would not have had to explain the acceptability of its terms to the Massachusetts delegation, as he did to Rufus King without, presumably, revealing the manner of arriving at those terms.24 No one engaged in the deal left a record of the transaction save Jefferson, who explained his part in it on at least three occasions. His three accounts are: (1) the statement made to the President that the Secretary of the Treasury had duped and used him as a tool for forwarding his schemes; (2) the explanation made to the collection of memoranda called Anas; and (3) the undated document called “The Assumption” included in the present grouping and conjecturally assigned to 1792.25 On essential points all three are in agreement. This is natural, Jefferson’s systematic habits being what they were, for when he compiled one account late in life he used both his letter files and the earlier accounts to guide his recollections. This is demonstrable, though it is also true that the version written in 1818 was guided in its extreme expressions by Jefferson’s resentment against Marshall’s Washington and against the tendency of its author’s Supreme Court decisions, both of which seemed to him to embody Hamiltonian doctrines.

It was in the last account that Jefferson asserted he had been duped “most ignorantly and innocently … to hold the candle” to Hamilton’s schemes. Much has been made of this as an unworthy impugning of Hamilton’s motives, as a pretension to innocence belied by the facts, as a belated attempt at justification dictated by partisan animosities, and as an expression of Jefferson’s deep hunger for posthumous fame.26 It is quite obvious, of course, that in the spring of 1790, despite his recent arrival, his preoccupation with the affairs of his own department, and his lengthy illness, Jefferson could not possibly have been unaware of the general nature of the funding and assumption proposals even if he had been less astute politically than he was. It is difficult to believe that he could have seriously intended or expected his words to mean an ignorance or innocence of the measures themselves. Significantly, so literal and restrictive an interpretation of his meaning is usually based upon the words that Jefferson wrote in 1818, not on those of similar purport he penned in 1792. But in the latter year when he told Washington that Hamilton had duped and made a tool of him to forward his schemes, the words were set in a context that made their meaning crystal clear to the President. What rendered Hamiltonian measures “not then sufficiently understood” was not their exact nature. It was, he said, their ultimate tendency as part of a system that “flowed from principles adverse to liberty, and was calculated to undermine and demolish the republic, by creating an influence of [Hamilton’s] department over the members of the legislature.” It was for his unwitting part in forwarding principles of administration so opposed to his own, not for aiding assumption as such, not certainly for satisfying a deep hunger for posthumous fame, that Jefferson said in this most private and candid letter to Washington: “of all the errors of my political life, this has occasioned me the deepest regret.”27 The true meaning of Jefferson’s agony over the matter was that he had lent himself, so he thought, to a betrayal of his own principles. A narrowed interpretation of his subsequent explanations obscures the equally important truth, fully verifiable by letters at the time, that his acquiescence in assumption was primarily to forestall a dissolution of the union threatened by those who were not bound to it, as he was, by ligaments of liberty.

When at last the residence bill passed the Senate, having survived a last-ditch struggle to keep the government in New York, Robert Morris announced the good news to his wife. He was cautious in predicting ultimate success, for he knew what a trial of fire awaited in the House. “I cannot help remembering,” he said, “what happened the last year; we were nearer to our object then, than we are now, and yet we lost it, at the moment when we were most sure. The majority in the House of Representatives is so small, that … it is best not to be too sanguine.” This was his only concern. “There is no room to fear the President’s consent,” he confidently asserted.28 Such confidence was understandable, considering Washington’s well-known wish to have the government on the Potomac. But in the preceding session when Maclay heard a false rumor that the House had passed the residence bill, he had concluded that the New Yorkers had “no resource but in the President.”29 The first warning that such a resource would now be employed came during the debate in the House.

The ordeal was as fiery as Morris anticipated. Madison and others of the Virginia and Maryland delegations argued against any amendment, lest the opportunity to take the government to the Potomac be lost forever. Gerry called the measure “a delusion, a deception, sanctioned by Congress itself.”30 Laurance charged that the issue had been “secretly settled” already and Smith and Burke repeated the allegation. Further, the moment the government left New York, faction and party would continue to affect all measures:31

There will be one party endeavouring to carry the bill into effect, and another, and a very strong one too, that will exert themselves to oppose it‥‥ The influence of these factions will go into every measure of government: it is expected that if a bill passes, a majority of the two houses will not be able to repeal it, because the dissent of another branch of government may make it necessary to have two thirds to repeal the bill. Sir, should this be the case, the exertions of party will go into the election of the chief magistrate himself, and that great and good man now at the head of our government may feel the influence of it.

The dissent of the third branch of government was sought on the ground of constitutionality. This issue was evidently raised on the 7th of July, for on the 8th John Page of Virginia replied to such an argument. According to Junius Americanus, Madison also must have made a rebuttal.32 But the report of the debates makes no mention of this or of the speech by the member who raised the issue. It is impossible, therefore, to assign responsibility for this turn of the argument, though it seems to have been employed as a last resort in the face of a disciplined coalition who time after time voted down every amendment proposed. This is precisely what happened in the preceding session when Madison and the advocates of the Potomac site found themselves facing an implacable combination intent on fixing the permanent residence in Pennsylvania.

On that occasion, after a prolonged debate devoted chiefly to the idea of centrality of territory and population, William Smith of South Carolina was the first to appeal to the constitution, but on other grounds. He opposed FitzSimons’ resolution authorizing purchase of lands for the seat of government on the ground that the Constitution required a cession of the right of soil as well as jurisdiction. Fisher Ames thought the argument “more ingenious than solid, and hoped it was not intended to embarrass the business”—as doubtless it was.33 The debate continued for three weeks of acrimonious exchange. Madison was certain that there was a “predetermined majority” ready to ride roughshod over all the arguments advanced by the advocates of the Potomac.34 The blunt charge of bargaining was angrily reprobated, but there was no yielding. At last Madison rose in the final days of the session in apparent surrender. He would offer no further opposition to the bill were it not for his compelling belief that the provision for continuance of the temporary residence at New York was “irreconcilable with the spirit of the Constitution.” He then declared:35

From the Constitution, it appeared that the concurrence of the two Houses of Congress was sufficient to enable them to adjourn from one place to another; nay, the legal consent of the President was, in some degree, prescribed in the 7th section of article 1st, where it is declared, that every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment), shall be presented to the President of the United States, and approved by him, before the same shall take effect. Any attempt, therefore, to adjourn by law, is a violation of that part of the Constitution which gives the power, exclusively, to the two branches of the Legislature.

He therefore urged the rejection of this clause. The contention that New York was not central had been little valued, but he hoped members “would be guided by arguments springing from a superior source.” Further, the two houses possessed the right to adjourn for more than three days and to any other place they thought proper. The President was constitutionally restrained from interfering. It would therefore “be dangerous to attempt to give to the President a power which the Constitution expressly denied him.” He did not suppose that the attempt to vest such a power in the President would “absolutely convey” such power but he thought it wrong to make the experiment. He reminded the majority that an unconstitutional clause might bring on risks to their coveted bill in its passage through the Senate. He rejected the doctrine that the seat of government might be at a place different from that where Congress held its sessions and that, while the residence could be determined by law, Congress might nevertheless remove elsewhere:36

What is the Government of the United States for which a seat is to be provided? Will not the Government necessarily comprehend the Congress as a part? In arbitrary Governments, the residence of the monarch may be styled the seat of Government, because he is within himself the supreme Legislative, Executive, and Judicial power; the same may be said of the residence of a limited monarchy, where the efficiency of the Executive operates, in a great degree, to the exclusion of the Legislative authority; but in such a Government as ours, according to the legal and common acceptation of the term, Government must include the Legislative power‥‥ There was another clause favorable to this opinion; it was, that giving Congress authority to exercise exclusive Legislation in all cases whatsoever over such district as may, by cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States; this was the only place where any thing respecting the seat of Government was mentioned; and would any gentleman contend that Congress might have a seat of government over which they are empowered to exercise exclusive Legislation, and yet reside at a distance of 2 or 300 miles from it? Such a construction would contradict the plain and evident meaning of the constitution, and as such was inadmissible.

Sherman conceded the force of the argument, but said that even if the seat of government were designated by law, Congress might still adjourn to some other place. Page wondered why the clause was defended when obviously it had “no binding force as it related to its main object”—the continuance in New York. If the clause were unconstitutional, Laurance asked, why had the opponents of the bill voted for a temporary residence at New York or Wilmington without advancing the argument? Moreover, how could Madison insist that Congress have a right to adjourn by concurrence to such place as they choose and that their presence determines the seat of Government, yet at the same time advocate the fixing a permanent seat by law? If Congress fixed a permanent seat, they could still remove elsewhere. Hence, if they should remove from their permanent seat, there would become two seats of Government. Which of these would have legal operation with respect to departments obliged to transact business at the seat of government? Laurance concluded that Madison’s arguments applied with equal force against both permanent and temporary residence. He also rejected the idea that the presence of the legislature was an absolute requisite for determining the seat of government. The more rational construction in his view was that the seat of government “was determined by the residence of the Executive, the great officers of Government, the Judges, and the foreign ministers, public archives, &c.” Madison’s construction, he concluded, was filled with dangers and inconveniences.

Madison denied the inconsistency. He could not “as an American, with an eye to the American constitution and the American language, separate the Legislative Power from that of the Government; it appeared to him, to be the most essential part of any free Government, but much the most extensive and essential in the Government of the United States.” Fisher Ames agreed with Laurance in thinking Madison’s objection equally valid against the permanent and temporary residence of Congress, paid tribute to Madison’s role in the formation of the Constitution, and yet was not “disposed to pay implicit deference to that gentleman’s expositions” of the instrument. He would take the Constitution as he found it and he could say with Madison: “as an American, with an eye to that constitution, the language of liberty in his mouth, and the love of it in his heart, he hoped it would never be considered … that the two Houses of Congress are the Government of the United States.” The inconsistency of the doctrine was so apparent that he hoped it would be given up. Madison protested that he had made no such assertion, claiming only that the Congress was a part of the government. This, he argued, was also supported by the constitutional provision requiring the electoral votes to be transmitted to the seat of government and there opened by the President of the Senate in the presence of the two houses. But his rebuttal was in vain. Fisher Ames possessed both the eloquence and the votes. Madison’s appeal to the Constitution as a last resort failed by a vote of 29 to 23.

The next day Daniel Carroll, with the engrossed bill before the House, arose in embarrassment. He had felt obliged to vote for location of the seat of government on the Susquehanna upon adoption of the clause making it obligatory upon Maryland and Pennsylvania to concur in opening the navigation. Nothing restrained him from agreeing to the bill save the constitutional argument advanced by Madison. “I have endeavored to remove this conviction from my mind,” he declared, “… but as I am under the sacred obligation of an oath to support the constitution, as I cannot efface the conviction from my mind that it is contrary to the Constitution, and as we could not succeed in striking out the clause, I feel myself under the disagreeable necessity of giving my dissent to the bill.” This made no difference. The measure was adopted by a vote of 31 to 17. Smith of South Carolina, who agreed that the seat of government should be fixed by law, thought that the bill was “perfectly constitutional.”37

Now, in 1790, it fell to Madison to lead the “predetermined majority” and to others to hurl his constitutional arguments back at him. Smith of South Carolina, supporting the motion of his colleague Ædanus Burke to substitute Baltimore for Potomac, urged conciliation and warned against arrangements and combinations between two such powerful states as Virginia and Pennsylvania. He declared it a delusion to expect removal from Philadelphia at the end of ten years. New England would combine with Pennsylvania in forcing a repeal. Resorting to ridicule—a characteristic of his writings and speeches—he derided those who sought the enactment of a law that would only become operative in the next century. Madison, who had become the South Carolinian’s bitter foe on assumption and navigation bills, exposed the diversionary nature of the amendment. If a law fixing the seat at Potomac could be repealed, why vote for Baltimore when it could obviously suffer the same fate? Any alteration, Madison declared, would only defeat the measure and prolong the agitation. Several amendments were offered, but the lines held firm. Ames, Gerry, Smith, Madison, White, and several others joined in the ensuing debate on the 7th. As indicated above, it must have been during this unreported discussion that the issue of constitutionality was brought forward.

The next day Burke’s amendment to fix the seat of government in New York for two years and then in Philadelphia until 1800 was debated. John Page denied that New York had any claims whatever, repeated the argument that any alteration jeopardized the bill, and added:38

There is one argument indeed which deserves attention. I mean that which is founded on the supposition that the bill is unconstitutional, and that this was the opinion of my colleague on a former occasion. Sir, it was then my opinion also; but we were then overruled by this House, and now have the opinion of the Senate also against our construction of the Constitution. However, I rely not merely on this circumstance, for I find, upon an examination of all that the Constitution says about an adjournment, that the clause in the bill is perfectly constitutional, as there are but two sentences in the Constitution respecting adjournments. The last clause of the fifth section of the first article, and the third section of the second article, the former of which runs thus: ‘Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.’ Now, sir, to be inconsistent with this clause of the Constitution, the bill should direct that adjournments shall take place without the consent of the Senate; but the bill before us was framed by the Senate, and a perfect concurrence of the three branches of the Legislature is proposed to the adjournment now under consideration; how, then, can it be inconsistent with the third section of the second article of the Constitution, which gives the President a right to interfere in case of a disagreement respecting the time of an adjournment? It might, indeed, be said, upon a question concerning common adjournments, that the two Houses would do well to retain the right of adjourning without the consent of the President. But, sir, this is an extraordinary case, in which it will be happy for Congress and their constituents if the business of adjournment shall depend upon the joint consent of the three branches of the Legislature, and not on that of the two Houses alone. Without this check, after getting to Philadelphia on an adjournment, we might be brought back to New York, and then carried back again; and so on without end. I think, therefore, that the clause in the bill is not only constitutional but proper.

Page did the best he could, but the strategy of the opposition forced him to employ arguments he had repudiated in the previous session. The following day William Smith of South Carolina moved that the clause stipulating that Congress should hold its next session at Philadelphia be struck out. He contended “that it was unconstitutional to pass a law for the purpose; the constitution having provided that the two houses should adjourn by concurrent resolution, without the controul of the President.” The motion was defeated by a majority almost as decisive as that of the previous year, 33 to 26. Smith, too, had abandoned the position he assumed in 1789. So, too, had Ames, Laurance, and others.39 Evidently the question of constitutionality depended upon the predetermined majority to which one belonged, for in a situation in which there was no substantial distinction in the texts of the bills both minorities had appealed to the constitution as a last resort and both majorities had ridiculed the appeal. If Madison was inconsistent, so were those who made the allegation.

Yet the charge struck home with the greater force because this time the minority had been overridden. The constitutional arguments of Junius Americanus, coming to Jefferson and Madison through the President, could not be voted down but had to be answered. Jefferson employed every device of rebuttal available. He repeated and amplified Page’s claim that the charge of unconstitutionality had been overruled by majorities of both houses. Indeed, since Page was not a lawyer, it is possible that this was an argument Jefferson had advanced to the collegemate who remained as close as a brother to him for half a century. Certainly it is difficult to believe that Jefferson, Madison, Page, and others of the Virginia delegation were not in close consultation during the bill’s ordeal of fire in the House. But Junius Americanus—or perhaps the fear that the seat of government might not be brought to the Potomac after all if every trace of doubt in the President’s mind could not be removed—forced Jefferson onto higher ground. His ultimate argument was grounded on natural law. Though created by the Constitution, the two houses in his opinion held their right of adjournment “not from the constitution, but from nature.”40 The resort to such an argument is an emphatic testimonial to the strength of Jefferson’s desire to sustain the dual object of the predetermined majority of 1790—the assumption whose advocates warned of disunion and the residence on the Potomac that he had long regarded as just. But he overlooked the fact that Junius Americanus had also recognized the right of adjournment as inherent—“a right which all legislative bodies possess, of reserving to themselves … the power of declaring at what place they will re-assemble.”

Junius Americanus cannot be identified with absolute certainty, but there is little doubt that he was the arch-Federalist from South Carolina, William Smith. Jefferson may indeed have intended to point in his direction when he argued that the constitutional objection had been overruled by every state in the union, “South Carolina excepted.” It would be surprising indeed if Madison did not detect the hand of his foe in the performance. Jefferson could have suspected his identity from Madison or from the report of debates in the newspapers showing that it was Smith who raised the constitutional issue. Both would surely have seen the evidence of the man in the address itself—in the style with its repeated characterization of opponents’ arguments as “absurdity” and “folly”; in its attack on Madison for an inconsistency that Smith himself shared; in its narrowly legalistic and syllogistic forensics; and especially in its allusion to some members’ holding their seats in the House of Representatives “under a resolution of that house alone.” For, in addition to the four persons of the New Jersey delegation to whom this remark applied and whose votes on the issue were divided the only member to whom it was also applicable was the South Carolinian who had moved to amend the bill by deleting the adjournment clause he regarded as unconstitutional.

William Smith, son of a wealthy merchant-planter of Charleston, had spent the years 1770 to 1783 mostly in England where he studied, traveled, and lived the life of a self-indulgent, undisciplined young man of fortune until late in 1779 when he began to keep term at the Middle Temple. He arrived at Charleston only in 1783 on the wave of returning Loyalists and British merchants, being refused permission to land for ten days and evidently succeeding then only through family influence. Confining his practice mainly to the British merchant group, Smith had recouped his fortune and gained political prominence in the short space of five years. In 1788, at the age of thirty, he was elected to Congress against two opponents. One of them, David Ramsay, contested the election on the ground that the victorious candidate had not been seven years a citizen of the United States as required by the Constitution. Smith defended himself with a recital of his years spent abroad in which both the facts omitted and those supplied ran counter to his assertions on material matters, but he was seated.41 A zealous advocate of assumption and perfectly at home in the city that was even more pro-British in sympathy than Charleston, Smith fought as stubbornly as his friends Schuyler, King, Wadsworth, Sedgwick, and others to keep the residence in New York. He was able, indefatigable, and aggressive. It is not likely that he could have raised the constitutional issue except on his own initiative or that he did so solely to obstruct. Smith revered the Constitution and regarded Washington almost as its embodiment. His concepts of fundamental law were imbibed in his youth from the fountainhead of Mansfieldianism. When he later became well known as the author of a text-book of American constitutionalism, he did not conceal his high-Federalist beliefs. He thought the Pennsylvania Constitution of 1790 excellent because modelled on that of the nation. But the democratic Constitution of 1776 which it supplanted he regarded as productive of many evils. Its “feeble and clogged Executive, a single uncontrouled and despotic” legislature, and a dependent judiciary, he thought, had kept the state in “a perpetual scene of faction and disorder.” Even its excellent reformation, however, had not been perfect. Here and there in the Constitution of 1790 were sacrifices to old habits and popular prejudices. “The vesting the appointment of sheriffs in the people,” he thought, “… is a striking deformity in their constitution.”42 The constitutionalism of Smith was the exact reverse of that of Jefferson.

It was in this ardent constitutionalist’s diatribe against Madison and Jefferson two years later—a pamphlet which designated the leader of the Virginia delegation as “the General” and the Secretary of State as “the Generalissimo”—that Smith virtually identified himself as Junius Americanus by recalling the debate on the residence bill. In this scathing attack he alluded in revealing terms to the constitutional objection that had been raised:43

The Residence Bill [he wrote], which was the offspring of a political cohabitation (for it cannot be called a marriage) between Pennsylvania and Virginia, was passed this session; it was begotten in darkness and its Nurses were afraid of its being exposed to the light—having forced its way through the Senate (to which it was first introduced) by a bare majority, it was ushered into the house of Representatives, where it underwent the solemn farce of a discussion—a phalanx of well disciplined troops were placed to guard it, and their General was so barefaced as to declare in public debate that not a word of it should be altered; that it must not go back to the Senate, and that however absurd, it should go down just as it was, and so it did by a majority of two or three;—containing a clause, which he had in a former bill respecting the same subject, proved to be unconstitutional.

The concluding sentence states in summary a large part of the argument of Junius Americanus. The case for the identity of Smith as Junius Americanus must remain conjectural, but it seems very doubtful indeed whether any member of the minority who faced the phalanx of well-disciplined troops of 1790 would have remembered so long and so accurately the way the constitutional argument was overruled save the one who had raised the issue and had presumably continued to debate it before the public.

Junius Americanus must also have been One of the Gallery who repeated the substance of the constitutional argument on the day that Jefferson handed in his opinion to the President.44 The unsigned rebuttal, coming almost a month later and after the issue was settled, is a silent acknowledgment of the storm that raged in cartoons, squibs, and denunciations of Congress for removing Congress to Philadelphia as the result of a presumed bargain. It bears all of the earmarks of origin in the Virginia delegation if not in a collaboration between its leader and the Secretary of State.45 So, too, the sarcastic reply of Truth that it evoked seems only attributable to the pen of Junius Americanus.46

These were not the only newspaper references to the constitutional issue. Long after the bill was signed by the President, the argument continued amid the squibs and paragraphs, many of them coarse and some evidently too much so even for that day.47 A Citizen of America, remarkably similar to Junius Americanus in his flattery of Washington and in some of his phraseology, declared:48

I can bestow a smile of contempt on the little intrigue of a book worm; I can bestow a sigh on the avarice of a mercantile Senator, who has distracted and convulsed the government of the Union for his own personal accommodation. The duplicity and avarice of these men, as individuals, may excite contempt—Charity may exercise a kind of forgiveness, which would hurt their feelings (if they have any) as the chiefs of a party, which have fabricated a law, which violates the constitution, and which contains an insidious snare for the virtue of the executive, by a Grecian gift‥‥ If a faction can violate the constitution; this sacred charter of government, which they are sworn to support, may be considered as blank paper. The convention marked with precision the respective limits of legislative and executive powers, and concessions and encroachments should be viewed with alarm‥‥ The residence bill was a political trap, set for the integrity and popularity of the executive.

On the day that Washington made the residence bill law, another squib stated that wagers were still being placed, though rumor had it that the President had signed on the 12th. The name of the bill did not need to be specified:49

Whether the President of the United States has signed the bill—was the question in all companies yesterday, and on which many minds appeared to be much agitated. A certain female personage was heard to say, that she expected soon to leave the city—says one. Aye, says another—then the matter is all over—the bill is signed without a doubt!—You blockhead, says a third, do you really suppose the President will sign it—he never will—for an adjournment can be constitutionally effected without the agency of the President, and his feelings spared on so delicate a subject.

Junius Americanus had indeed raised a storm on the constitutional issue. From that point on the contributors were not so tender of the President’s sensibilities. One took the Mayor and members of the Common Council to task for commissioning a portrait of Washington for the City Hall: “Is it,” he asked, “for that inflexible justice, that distinguished gratitude to the city of New-York, in giving his sanction to the unconstitutional residence bill?” On the same subject Vox Res Publica declared it to be “an inauspicious moment for the wise fathers of a republican city, to pay a prodigal compliment to the——[President] when the c-sti-ti-al propriety of his conduct is ambiguous, and divides the opinion of the wise.”50

By the end of July when the debate on assumption took place, Timothy Bloodworth of North Carolina gave notice of his intention to move to repeal for a limited time the controversial fifth section of the residence Act. All of those members of the Virginia and Maryland delegation who were targets of Junius Americanus and all who were involved in the accommodation arranged by Jefferson—Madison, Page, Carroll, Lee, and White—voted against the motion and decisively defeated it.51 It was just at this time that one newspaper correspondent announced the fate of the assumption bill in words that must have brought pain to Jefferson, Madison, and the President:52

The true reason of the removal of Congress from this city will be explained to the people in the course of a very few days. To the lasting disgrace of the majority in both houses it will be seen, that the Pennsylvania and Patowmack interests have been purchased with twenty one and an half millions of dollars, and that the good people of this state will have to pay about one eighth part of that enormous assumption, merely to remove Congress from their capital.

The debates upon the funding bill, as sent down by the Senate, will be well worth the attention of the citizens: it will be curious to see all the reasoning against the assumption done away: even the powers of Mr. M——n are to be silent on the subject, but to preserve a consistency of character, he must vote against it, his mouth is to be shut, his silent negative is to satisfy his new friends, and he is to prove ‘that every man may be purchased, if his price is offered;’ his price is the Potowmack; he has accepted, and, no doubt, he is a man of too much honor not to perform his part of the bargain.

A member of the Virginia delegation—perhaps White or Lee—explained his vote on the assumption to a friend in Alexandria in terms similar to those Jefferson employed in letters at the time and in his retrospective accounts: “it appeared impractical to go on with the government without it in some shape or another. I was therefore among those who agreed to it under certain modifications, which have either removed, or greatly lessened, my original objections.”53 This was essentially the position of Jefferson and Madison. But the sugar coating of the pill of assumption was already affected by public censure and derision over bargains, disciplined phalanxes, and unconstitutional measures, with worse yet to come for Jefferson from the promptings of conscience over the unwitting aid he had given to Hamilton’s principles of administration. Only William Smith seemed able to depart at the close of the session with a feeling of consistency and rectitude. This was not wholly deserved, but he had labored zealously both for assumption and for the letter of the Constitution, in each case out of deep conviction. If, as seems certain, he was Junius Americanus, it is ironic that Jefferson soon found himself cooped up with him for two days, for the President had invited Smith to be one of the party on the journey to Rhode Island. The sea was ordeal enough for the Secretary of State, without the enforced company of a young and aggressive Federalist of the highest tone. Washington extended the invitation to Smith on Friday the 13th, the day after Congress adjourned and the day the address of Junius Americanus appeared.54