Speech of Mr. Cushing, of Massachusetts, on the Right of Petition, written by Caleb Cushing
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Caleb Cushing >> Speech of Mr. Cushing, of Massachusetts, on the Right of Petition,
SPEECH OF MR. CUSHING, OF MASSACHUSETTS,
ON THE
RIGHT OF PETITION,
AS CONNECTED WITH PETITIONS FOR THE
ABOLITION OF SLAVERY AND THE SLAVE TRADE
IN THE
DISTRICT OF COLUMBIA:
IN THE HOUSE OF REPRESENTATIVES, JANUARY 25, 1836.
WASHINGTON: PRINTED BY GALES AND BEATON, 1836.
SPEECH.
Mr. Cushing said: I hold in my hand several Petitions on the subject
of the slave interest in the District of Columbia. One of them, I
now present to the House. Upon it, I make the preliminary motion,
understood to be necessary in such cases, that it be received; and,
in reference to this question, I have some few remarks to submit to
the consideration of the House.
This Petition prays for the abolition of slavery, and the slave
trade, in this District. It is respectful in its terms, being free
from the offensive expressions and reflections contained in some of
the Petitions on the same subject, heretofore presented; it is
signed by inhabitants of Haverhill, in the State of Massachusetts;
and among the subscribers are the names of citizens of that State
whom I personally know, whom I avouch to be highly respectable, and
who, whether mistaken or not in their views, are assuredly actuated
by conscientious motives of civil and religious principle. They are
constituents of mine; they have transmitted to me the Petition,
desiring me, as their Representative, to present it; and, under
these circumstances, much as I have deprecated such a commission,
and reluctant as I am to be instrumental in the introduction of any
matter of excitement upon this floor, I cannot permit myself to
hesitate in the discharge of this painful duty, believing, as I do,
that it is the constitutional right of every American, be he high or
be he low; be he fanatic or be he philosopher, to come here with his
grievances, and to be heard upon his petition by this House.
These petitioners look to me to obtain them a hearing in this place;
they have a right to require this office of me; they have, in my
judgment a right to be heard; and so long as I have the honor to
hold a seat in this House, no constituent of mine, however humble
his condition or unwelcome his prayer, shall see his petition thrust
back in his face unheard while the gift of reason or speech remains
to me; for if it cannot be received and considered in the usual
forms of legislation, it shall be heard through the lips of his
Representative. Nor will I undertake to scan over-captiously, either
the object of his petition, or the language in which it is couched;
nor will I stop to inquire how far the petitioners and I myself
entertain the same opinions of the general subject-matter. And there
are particular inducements, which impel me to make a stand at the
present moment upon this Petition.
I declare and protest in advance, that I do not intend, at this time
at least; to be drawn or driven into the question of slavery, in
either of its subdivisions or forms. At home, I am known to be of
those, who long ago foresaw and early withstood the coming of this
anti-slavery agitation. Of the many occasions when I have actively
interposed in this behalf, I hope to be pardoned for distinctly
citing one, as vesting in me some title to be candidly heard by the
House. I allude to a published Address upon the slave question, in
which I deliberately asserted the constitutional rights of the South
in this matter. It shall be my aim, on this occasion to do and say
nothing inconsistent with myself, with the letter of the
Constitution, or with the spirit of the various compromises of
interest and opinion incorporated into the union of these States.
The members of this House have been frequently called, during the
present session, to vote upon divisions connected with petitions of
this nature. On those occasions I have been content to pronounce my
vote simply, and without explanation, leaving my reasons and motives
to be construed or misconstrued by others, as chance might order. To
have continued so to do, until the subject of present controversy
were finally disposed of, is the part I should altogether have
chosen, had circumstances permitted to me such a course. But, if I
have been a silent, I have not been an incurious, nor, I trust, an
uninstructed, spectator of events. It is rendered apparent that
those great matters, which occupy the public mind abroad, do now
occupy also this House. If other gentlemen, differing with me in
part or in whole, had voted without discussion, according to the
dictates of their individual judgment, each of us could fairly have
stood upon his personal convictions, and his personal estimation
elsewhere, for his justification in the eyes of his countrymen. But
that, much as it were in my view to be desired, is no longer
possible. What has happened here is enrolled already in the
unchangeable records of time and of eternity. It is become history.
It cannot be recalled; it cannot be blotted from the memory; it
cannot be expunged from the annals of the country. The winged words
uttered in this House have gone forth to the world, on their mission
of good or of evil. Debate we have; debate we must have; we are
goaded into debate; it is forced upon us; and from a quarter of the
Union whence, I am frank to say, I did not look for it to come; and
forced upon us in terms of dictation, which I cannot brook; since
they leave to me no alternative of escape from debate, but in the
passive surrender of some of the dearest of our birthrights, those
of free petition, free speech, and free conscience. I say, of free
speech and free conscience, both which are involved in the
resolutions moved some time since by a gentleman from Maine, (Mr.
JARVIS.) When these resolutions shall be distinctly before the
House, it will become its members to reflect whether they have the
constitutional right to attempt, or attempting, have the power to
enforce, what those resolutions seem to contemplate, a perpetual
prohibition of debate, and even of motions, upon a large and
comprehensive class of subjects. These rights, neither my
constituents nor myself feel disposed to surrender; and upon one of
these great liberties of the land, and for the sake of incidentally
vindicating the others, I shall, in due time, address the House at
length.
My only object at this time, is to come to a fair understanding with
the House as to the cause to be pursued in the debate, and the
disposition it will make of these Petitions.
At a very early period of the session, a gentleman from South
Carolina (Mr. HAMMOND) met such petitions with the motion that they
be not received. All the debates, which ensued thereon, terminated
in evasive and unsatisfactory votes for laying on the table, which
left every question of principle unsettled.
Afterwards, on a similar objection to reception being made by a
gentleman from Georgia, (Mr. GLASCOCK,) my colleague (Mr. ADAMS)
appealed from a ruling of the Speaker on an incidental point of
order; which appeal, and the matters connected with it, have been
put off, day after day, and week after week, and still remain
suspended for some future time of consideration.
Then came a set of resolutions applicable to a part of the prayer of
these petitions, moved by a gentleman from Maine, (Mr. JARVIS,)
under which there is a debate in progress, on an amendment moved by
a gentleman from Virginia, (Mr. WISE,) to the effect that Congress
have no power granted by the constitution to legislate on the
subject of slavery in this District.
Finally, on the last occasion when petitions of this kind were
presented, the question of reception being raised, that question
was, by vote of the House, laid on the table; as happened this
morning in the case of those petitions presented by my colleague
(Mr. ADAMS;) the operation of which is, practically, to refuse to
receive the petitions.
Now, I am wholly dissatisfied with this course of proceeding, and I
cannot submit to it in regard to the Petitions, which I am charged
to present. I hold that the question of reception, as it is in fact
and of necessity the first in order of time, so is it the first in
order of principle. It must not be pushed aside to make place for
the discussion of speculative resolutions, or for debate, on the
merits of the question raised by the prayer of these petitions. I
maintain that the House is bound by the Constitution to receive the
petitions; after which, it will take such method of deciding upon
them as reason and principle shall dictate. It should first lend an
attentive and respectful ear to the prayer of the People. Whether it
can or will grant that prayer, is an after consideration. I have
already kept back for several weeks the petitions committed to me,
in order to shape my course according to the deliberate decision of
the House; but that decision does not come; it is continually
procrastinated for the sake of considering questions, which, in my
view, are secondary in time and in principle to the question of
reception; and I can no longer consent that these my constituents
shall be held waiting, as it were, at the doors of the Capitol for
admission, when, as I read the Constitution, they have a right to
demand immediate entrance, and to be respectfully received by their
assembled representatives.
I tender to the House, therefore, an alternative. I place this
Petition at their disposal. If they choose to fix absolutely on a
time certain for considering and deciding the question of reception,
so that this shall take precedence of the other debate, they will
then have this day, as usual, for its appropriate business of the
general presentation of petitions. But if they decide, as
heretofore, to lay the question of reception on the table, then I
shall feel myself constrained to take the floor upon another of
these Petitions, and to keep it, as under the late decision of the
House I have a right to do, until I have fully debated the whole
subject-matter. If the effect of this shall be to exclude all other
petitions for the day, I cannot help it. Be the responsibility on
their heads who raise this novel and extraordinary question of
reception, going to the unconstitutional abridgment, as I conceive,
of the great right of petition inherent in the People of the United
States.
[The question, Shall this petition be received? was then, at the
motion of a gentleman from South Carolina, (Mr. HAMMOND) laid on the
table; when Mr. CUSHING resumed the floor and said:]
I now present to the House a Petition signed by inhabitants of
Amesbury, in the State of Massachusetts, among the subscribers to
which are persons whom I know and avouch to be citizens of the
United States. They pray for the abolition of slavery and the slave
trade in the District of Columbia, and in the Territories under the
jurisdiction of the United States. I make the preliminary motion
that it be received; and, upon that motion, I proceed to express my
views to the House.
Steering clear of all the inflammable matter intruded into these
debates, gauging myself to the standard of the most absolute
moderation, and resolutely tying down my thoughts to the real point
in issue, what I propose to examine is the single naked question of
the constitutional right of petition, as involved in the disposition
of these petitions.
Looking into the Constitution I find, among the amendments proposed
by the Congress of 1789, and the very first of the number, the
following article:
"Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof, or abridging the freedom
of speech or of the press; or _the right of the People_ peaceably to
assemble and _to petition the Government for a redress of
grievances_."
Long before I had imagined that such a right would ever be called in
question, I remember to have read the remark of a distinguished
jurist and magistrate of the State of Virginia, (Tucker's Notes on
Blackstone,) complaining that the concluding words of the clause I
have cited from the Constitution did not so strongly guard the great
right of petition, as the liberties of the People demanded. On the
other hand, a still more distinguished jurist and magistrate, of my
own State, (Story's Commentaries,) in remarking upon the same
article, expresses the opinion that it is ample in terms; because,
he adds, "It (the right of petition) results from the very nature of
the structure and institutions of a republican government; it is
impossible that it should be practically denied until the spirit of
liberty had wholly disappeared, and the People had become so servile
and debased as to be unfit to exercise any of the privileges of
freemen." These eminent constitutional lawyers agreed in opinion of
the importance of the provision; they differed only in thinking, the
one, that the right of petition could not be too clearly defined;
the other, that whether defectively defined or not in the letter,
the People would take care that it should in spirit be faithfully
observed. While the first entertained a wise jealousy of the
encroachments of the People's representatives, the other looked for
the protection of the public rights to the People themselves, the
masters of the People's representatives. And as the fears of the
former have been verified too speedily, I trust that the hopes of
the latter will be not less truly realized.
There are some things in the context and phraseology of this article
of the Constitution, which may deserve attention. It speaks of
"_grievances_" in the general; not "_their_ grievances," the
_personal_ grievances of the individuals petitioning, but anything,
public or personal, which they deem to be a grievance. It is the
same article, which allows to us the free exercise of our religion,
and the liberty of speech and of the press. With these primary and
fundamental rights of a free people, it associates the right of
petition. But there is this peculiarity in the language of this
clause of the Constitution. The words applicable to our subject are,
"Congress shall make no law abridging the right of the People to
petition the Government for a redress of grievances." The right of
petition, therefore, is not a privilege conferred by the
Constitution. It is recognised as a pre-existing right, already
possessed by the People, which they still reserve to themselves, and
which Congress shall not so much as touch with the weight of a
finger. The People, in their constitution, say to Congress,--We
place in your hands our right and power of collecting a revenue to
provide for the common defence and general welfare of the Union; our
right and power to regulate commerce, to coin money, to declare war,
and to raise and support armies and navies for its prosecution. Upon
these and other subjects you may exercise the discretion, which we
repose in you by virtue of our constitution. But this you shall not
do:--you shall not, until after the expiration of twenty years,
prohibit the migration or importation of such persons as we think
proper to admit; you shall not pass any bill of attainder; you shall
not lay any tax or duty on exports; and you shall make no law
prohibiting the free exercise of religion, or abridging the freedom
of speech or of the press; or the right of the People peaceably to
assemble and petition the government for a redress of grievances.
These our great natural rights we keep to ourselves; we will not
have them tampered with; respecting them we give to you no
commission whatsoever. And rights which Congress itself, the entire
Legislature, consisting of the President, the Senate, and the House,
acting in their combined functions in the enactment of a law, is
forbidden to abridge,--can this House alone undertake, by a mere
resolution or vote, practically to deny, abolish, and destroy? Sir,
if we can successfully do it, I have greatly misconceived the
democratic ancestry, the democratic principles, and the democratic
energy of the People, whom we are appointed to serve in this House.
The right of petition, I have said, was not conferred on the People
by the Constitution, but was a pre-existing right, reserved by the
People out of the grants of power made to Congress. To understand
its nature and extent we must, therefore, look beyond and behind the
Constitution, into the anterior political history of the country.
And, in the first place, I beg of the House, and especially of the
gentlemen who so ably represent Virginia on this floor, to remember
how this article found its way into the Constitution.
You well know, sir, that when the Constitution was submitted to the
People of the respective States for their adoption or rejection, it
awakened the warmest debates of the several State conventions. Some
of them, in accepting the proposed plan of government, coupled their
acceptance with a recommendation of various additions to the
Constitution, which they deemed essential to the preservation of the
rights of the States, or of the People. The Commonwealth of
Massachusetts insisted, among other things, on the adoption of that
memorable amendment, to the effect, "that it be explicitly declared
that all powers not expressly delegated by the aforesaid
constitution, are reserved to the several States to be by them
exercised." Having attained this object, and thus clearly
ascertained what powers it was that she parted with to the Federal
Government, she felt less anxious in regard to some things which in
other States, were deemed important. Especially, she did not, for
herself demand the insertion of those general clauses of political
doctrine popularly called, at that time, after the celebrated
English bill of rights, and known in some modern European
constitutions by the name of _guaranties_. She was less tenacious on
this point, inasmuch as her own Constitution was very full in this
respect. It contained two clauses material to the present question,
in the following words:
"All power residing originally in the People, and being derived from
them, the several magistrates and officers of government, vested
with authority, whether legislative, executive, or judicial, are
their substitutes and agents."
"The People have a right, in an orderly and peaceable manner, to
assemble to consult upon the common good; give instructions to their
representatives; and to request of the legislative body, by the way
of address, petition, or remonstrance, redress of the wrongs done
them, and of the grievances they suffer."
These clauses being in her own Constitution, I say, and it being
understood by her that all powers not granted to the United States
were reserved to the States, she felt that she was safe in agreeing
to the fundamental compact of the Union.
The People and the Commonwealth, of Virginia reasoned differently
from this; and I will not stop to argue whether they did or did not
reason more wisely than Massachusetts. They said, We choose to leave
nothing doubtful which language can render certain, in a matter of
so much moment. We are laying the foundations of a government, which
we hope may outlast the Pyramids. We know, from old experience, that
the depositaries of the popular power are ingenious in the finding
of glosses and interpretations to abstract from the popular rights.
Let us see to it that this constitution contain such express
recognitions of the rights of the People as it shall be impossible
to misunderstand. We will write, upon its very front the great
doctrines of liberty in characters of light, which, like the burning
letters in the banqueting-hall of Belshazzar, may blast the
eye-balls of whomever shall meditate treason to the democratic
rights we have conquered with our blood and our fortunes.
Accordingly, the convention of Virginia proposed, to amend the
Constitution by inserting therein the following, among other
clauses:
"That all power is naturally vested in, and consequently derived
from, the People; that magistrates, therefore, are their trustees
and agents, and at all times amenable to them."
"That the People have a right peaceably to assemble together to
consult for the common good, or to instruct their representatives;
and that every freeman has a right to petition the Legislature for
redress of grievances."
New York, North Carolina, and Rhode Island proposed, either
literally or in substance, the same provision; and the consequence
was, the addition to the constitution of the article, which I am now
discussing, on the right of conscience, speech, and petition. And,
such being the history of this clause, I look to the gentlemen from
Virginia especially, constant and honorable as they are in their
attachment to constitutional principles at whatever hazard, to go
with me in maintaining inviolate this great original right of the
People.
But we shall not fully appreciate the force and value of this
provision, if we stop at this point of the investigation. The right
of petition is an old undoubted household right of the blood of
England, which runs in our veins. When we fled from the oppressions
of kings and parliaments in Europe, to found this great Republic in
America, we brought with us the laws and the liberties, which formed
a part of our heritage as Britons. We brought with us the idea and
the form of our legislative assemblies, composed of elected
representatives of the people; we brought with us the right of
petition, as the necessary incident of such institutions. For when,
in the whole history of our father-land, has the right of petition
ever undergone debate and question? Go back to the old parliamentary
rolls, coeval with Magna Charta; peruse the black-letter volumes in
which the early laws and practices of the English monarchy are seen
to be recorded; and so far as you find a government to exist, you
find the right to petition that government existing also as an
undeniable franchise and birthright of the humblest in the land. The
Normans came over, lance in hand, burning and trampling down every
thing before them, and cutting off the Saxon dynasty and the Saxon
nobles at the edge of the sword; but the right of petition remained
untouched. In all succeeding times, from the day when the barons at
Runnymede pledged themselves to deny to no man redress of his
grievances, through every vicissitude of revolution and of war, down
to the day when our forefathers abandoned their native country, the
same right of petition continued without challenge. In the next
reign, it is true, that of the misguided Charles I, the king invaded
the public liberties; and he expiated the wrong, as he merited, by a
felon's death. After the Commonwealth had passed away, came the
petition of right, and with it the statute of the 13 Charles II,
distinctly recognising the old right of petition, and regulating the
mode of its exercise; and again, after the dethronement and exile of
James II, the Bill of Rights and the statute of I William and Mary,
again recognising and regulating the right of petition as it has
been exercised at all times throughout Great Britain.
Now, I ask gentlemen to point me, in all or any of the periods under
review, to the precedents of a refusal by Parliament to receive
petitions. I invite them to turn over the histories of parliamentary
proceeding, and cite me the examples of petitions being thrust out
of the House of Commons or of Lords, at the instant of presentation,
on the ground that the prayer of the petition ought not to be
granted. Will they do it? Can they do it? Is it not perfectly
notorious, on the contrary, that every subject is freely admitted to
be heard in his petition, provided it be respectful in terms, even
although he pray expressly for a downright revolution in the
government, as did the thousands of petitioners who thus carried
through, in our own time, the great measure of parliamentary reform?
And shall the People in republican America, with its written
constitution for the protection of the public rights, and by a body
of strictly limited powers,--shall the People here be forbidden to
do that which they may freely do in the monarchy of England, having
no guaranties for the public liberty except laws and prescriptive
usages, all of them confessedly at the will of an omnipotent
Parliament? Forbid it, reason! Forbid it, justice! Forbid it,
liberty! Forbid it the beatified spirits of the revolutionary sages,
who watch in heaven over the destinies of the Republic!
Aye, but, say gentlemen, if such things are not done by the
representatives of the People in monarchical England, they have been
done by their representatives in democratic America. We are told of
precedents at home. What are those precedents?
To begin, I throw aside, as wholly inapplicable to the question, or
at least as evasive of it, the case of petitions refused on account
of disrespectful language towards the persons or the body
petitioned. Those constitute a standing exception, independent of
the merits of the subject.
The proceedings of this House in 1790, in reference to petitions on
the matter of the slave trade, and of slavery in the States, have
been cited. It has been said that those petitions were not received.
That is a mistake, as any gentleman may satisfy himself by
recurrence to the journals of the House. The petitions were
received, committed, and debated on report, as I shall have occasion
hereafter to state at length.