From Edmund Randolph
Novr 2. 1793.
The attorney general of the United States has the honor of submitting to the President of the United States the following considerations on the power and propriety of convening congress to a place, different from the city of Philadelphia.
The constitution declares, that “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.” 1
The residence-act directs, that the session “of congress next ensuing the present (that is the session in July 1790) shall be held” in the city of Philadelphia;2 and the adjourning order of both houses, at the close of every session, since they began to sit in Philadelphia, has made no mention whatsoever of place.
Hence it is correct to infer, not only that Philadelphia was the place, intended by congress for their next session; but also, that the constitution and residence-act have rendered that city, at least until the year 1800, the constant place of session; unless it be changed in some constitutional way.
How can such a change be effected?
By a new law, a concurrent vote of both houses, even without the intervention of the President, or by a summons from the President.
The past conduct of the legislature shews their opinion of their own power, to fix a temporary place for the session of congress. If it were now a question, whether by a new law the permanent seat of government might be altered, much could be urged in opposition upon constitutional grounds. But the temporary seat stands upon a less solemn basis.
Had the constitution been silent as to the place for the sessions of congress, they would have possessed inherently a right to assemble, wheresoever they pleased. But it is more than silent: it recognizes that right; and restricts it in no respect, until the permanent seat shall be established. For the temporary is not contemplated by the constitution—it makes no part of the ten miles square—it requires no cession from particular states—it is liable to no exclusive legislation. It is true indeed, that the temporary seat was said out of doors, at the time of the passing of the residence-act, to be a condition of the permanent: that is, Pennsylvania was to enjoy the benefit of congress until the year 1800, as preliminary to the final position on Potomack. Be this as it may, the judgment must turn upon the rules of construction. These inform us no where of this supposed condition: in 1800, the government is to be transferred to the fœderal city, without regard to any place, from which it is to go; and after 1800, the public offices attached to the seat of government, will absolutely cease to be exercised elsewhere.
It may therefore be concluded, that by a new law, congress may choose a new spot for the temporary seat of government.
Nor does the residence-act abridge the power of the two houses to adjourn to a different place, even without the consent of the President; or in other words, they may so adjourn by a mere vote, instead of a formal law. For, altho’ it is thereby established, that the offices, attached to the seat of government, among which is comprehended that of President, are to remain at Philadelphia; it is practicable for congress, notwithstanding the inconvenience, to carry on their business, without the presence of those offices, with all their papers, or more than are necessary for the matters immediately in hand.
In like manner may the place be varied, whensoever an extraordinary occasion shall arise, which justifies the President to convene congress. It must be admitted, that he will generally find the last place of session most proper for their meeting on his call: Yet if the last place must be adhered to at all events, the power of convening may be often annihilated in substance. For example: the extraordinary occasion may consist in a foreign invasion; and the last place of session may be in the hands of the enemy. In such a case, the President may surely mark out both time and place. If therefore an extraordinary occasion may sometimes signify place, as well as time; the President, being the judge of the nature of that occasion, may name the place, according to his discretion, as soon as he has decided the time.
Between the act of the two houses, and his own interposition, the President will be compelled to elect; should the misfortune of Philadelphia continue to oppress it; and indeed it ought rather to be said, that this is the moment for determining, whether he will leave the place for the next session to the will of congress in the first instance, or will now convene them to a place of his own choice.
The objections appear so strong against the latter expedient, as to give a clear preference to the former. What are extraordinary occasions, are left to the decision of the President; who may pronounce definitively and without controul upon them. No individual, nor either body of legislation can refuse to comply with the summons. This power therefore, like all others of a supreme nature, ought to be exercised with caution.
It would be impossible to enumerate every species of extraordinary occasion. The most obvious definition would be such a situation of public affairs, as requires the meeting of congress at an earlier day, than that, on which they would meet of course. For if they were bound by their own adjournment, or by the operation of the constitution, or of some law, to meet sooner than, or as soon as, they could assemble under a call from the President, it would be in general inexpedient to superadd a call.
With this criterion of an extraordinary occasion, it may be asked, whether any exists independent of the contagion? It cannot but be answered, that some such does exist. The contagion then may be viewed under two aspects; either as a cause for calling congress, or as a cause for changing the place of session. It might perhaps amount to a cause for calling congress, if we were to advert, only to the expence of double public offices—the danger of keeping the public archives in so exposed a city, and a well grounded reluctance in the President to be responsible for ordering them to another place, not designated by, but contrary to law—the difficulty to public creditors in procuring payments from the treasury—the propriety of legalizing many acts, concerning the revenue performed at the custom-houses, removed, as they are, from the port of Philadelphia—the interruption to the sessions of the district courts, confined as they are by law to Philadelphia; and to other topics, like these.3 But the entire energy of them is taken away, when it is notorious, that congress will come together, in pursuance of their own adjournment sooner than the President could collect them.
Undoubtedly the contagion may be a cause for changing the place of session. But how wide is this idea from a cause for calling congress? It would approach to an absurdity to contend, that the malignant fever in Philadelphia, by being a reason for congress, (if they are to meet) meeting at some other place, is of itself a reason, why they should meet. In fact, the extraordinary occasion must arise, before the place can be thought of; for the power of fixing the place is not given to the President expressly, but merely as an incident to the great necessity, which induces the President to convene congress. And this distinction deserves the more attention; as the constitution, while it suffers him to interpose on a disagreement of the two houses as to time, has not submitted to his umpirage their disagreement as to place.4
And what harm can be done, by leaving things in their usual channel? Perhaps by the first monday in december next, Philadelphia may be restored to health, and freed from infection. It is possible, that on the appointed day a quorum of both houses may enter its limits, and adjourn to some other spot, or be content to remain. If none of these events should happen during the first day, then an extraordinary occasion will be created. For the legislative concerns of the U.S. will not admit delay; and it will be fairly presumable, that there will be no certainty of a session before a distant day. A proclamation for convening congress may therefore issue immediately afterwards.
Upon the whole, It seems adviseable for the President not to convene congress now. This opinion may be fortified by other subordinate considerations: the exercise of a doubtful power excites clamor—some members nay a majority may prefer Philadelphia under all its embarrassments—it may be conceived to be an unnecessary cruelty to that depressed city, as yet, to transfer congress elsewhere.
If at length, however, a place must be selected by the President, he will probably ask himself, whether he means it for a previous consultation of the members, or for the absolute sitting of congress. For the former purpose, German Town is sufficiently convenient. But it will not escape the President’s observation, that this exercise of authority will be so feeble, as to betray a suspicion, that he himself distrusts his right to fix the place, and therefore consigns it to congress. Besides it may be easily conceived, that the representations from the different states will be very disproportionate at the commencement of the session; and it will be fortunate, if any accidental majority should be deprived of the opportunity of rivetting an improper place of session. Nay farther: if one place if countenanced for a moment by the President, it will prevent every other place from making preparations; and then congress must go to some large town, New-York or Baltimore, where they can be received at the shortest notice.
But if instead of a place for previous consultation, the President should seek one adapted to the full session, and Philadelphia be excluded, New-York, Trenton, Wilmington, Baltimore, Annapolis, German-Town, Reading, and Lancaster come into competition.
A general objection applies to the first five. They are out of Pennsylvania, which is intitled by law, as the law now stands, and by equity too, to the temporary residence. If this once passes into another state, its return will be very difficult; or if it should return, a precedent will be established, which will press at a future day, with great force, on the removal to the fœderal city. It will be argued, that the residence-act had no other sanction, than an ordinary law, since it could be so easily dispensed with for the sake of a seeming public utility.
But against those five towns, individually taken, these things may be excepted. New-York will awaken old jealousies, and may not be without her hauteur—Trenton is a thoroughfare; considerably exposed to infection, if it exists in Philadelphia; and from its past pretentions to the seat of government in its neighbourhood may also agitate the minds of some. If Wilmington is equal to congress, it is also a thoroughfare. Baltimore and Annapolis would be to the Pennsylvanians, as odious, as New-York would be to the friends of Potomack.
As to the towns in Pennsylvania, Lancaster is first in rank. It is able and willing to accommodate. Reading, as Judge Rush asserts, cannot undertake such a task—German Town, in spite of all, that may be said, cannot accommodate congress satisfactorily. The timid will shrink from the neighbourhood of Philadelphia, they may with reason apprehend the return of the fever in the spring; and with certainty they may expect old beds and furniture from Philadelphia, which remained in many infected houses. The fare and rooms will be wretched; the distance, which the members will have to travel thro’ unpaved streets in a muddy season, will be dreadful; the high prices, which will be demanded by the people for putting themselves out of the way, will disgust, when the entertainment is so indifferent; the foreign ministers will be crouded into dirty hovels; and a place of worship in the English language is scarcely to be found. These disadvantages cannot be counterbalanced by access to the public offices; as the papers, wanting for congress from them, may be put in a compass, not very bulky.
Altho’ the foregoing sentiments are designed to dissuade the President, if he interferes at all, from interfering in an indecisive manner; yet as the sense of Several members as to the place will be known, it will no doubt be treated with due respect.
However it will be a very questionable policy for the President to recommend to them, even informally, any thing preliminary; because in his intercourse with public men on public subjects, he ought to be seen only as a public man himself; and because the steps, which the exigency of the moment may dictate, will be so obvious to the members, that an intimation from him will be deemed useless, if not intrusive.
If any thing is permitted to be said, as from the President, by individuals to their friends, ought it to go farther than this: that if from the appearance of things on the second day it shall be proper to convene congress by a special act, he will do so, and at a different place. This communication may serve to bring the members into the neighbourhood.
1. Randolph was quoting from Article 1, section 5 of the Constitution.
2. Randolph was referring to “An Act for establishing the temporary and permanent seat of the Government of the United States,” 16 July 1790 (Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends , 1:130).
3. Section 1 of “An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States,” 31 July 1789, had specified that Pennsylvania would be a single district, with Philadelphia the “sole port both of entry and delivery,” and that the naval officer, collector, and surveyor “shall be appointed, to reside at the said port of Philadelphia” (Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends , 1:32). Section 3 of “An Act to establish the Judicial Courts of the United States,” 24 Sept. 1789, stated that the district court for Pennsylvania would be held at Philadelphia (Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends , 1:73–74).
4. Article 2, section 3 of the Constitution, which gave the president the power to convene Congress “on extraordinary Occasions,” also stated that “in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”