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title:“Undelivered Speeches by William Cushing”
authors:William Cushing
date written:1788-2-4

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https://consource.org/document/undelivered-speeches-by-william-cushing-1788-2-4/20130122080251/
last updated:Jan. 22, 2013, 8:02 a.m. UTC
retrieved:Dec. 11, 2018, 5:37 p.m. UTC

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Cushing, William. "Undelivered Speeches by William Cushing." The Documentary History of the Ratification of the Constitution. Vol. 6. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 2000. 1428-42. Print.
manuscript
source:
Manuscript, Cushing Papers, Massachusetts Historical Society

Undelivered Speeches by William Cushing (February 4, 1788)

[First speech]
Although I have not borne a particular part in the public debates, owing to the seat I have been honored with by the hon. Convention (in the absence of your Excellcy.); yet sharing with others in the same sacred trust with the rest of this hon. assembly, it may be expected by my Constituents, that I withhold not my Sentiments upon the great & interesting Subject which we are employed to discuss; a Constittn of Govmt for the U. States. If therefore the hon Convention would bear with me, I would make some observations upon the System proposed; upon some of the principal Objections offered & upon the 10 amendments proposed by your Excy. to be recommended to Congress.
The important question is upon the adoption of the proposed Constitution & the recommendation of the amendments proposed by yr. Excy. & Reported by the Committee.
Biennial Elections—it was observed that the not laying down a rule of Electing public officers annually has ever been the foundation or cause of Loss of Liberty to all nations; & that this all history Shows. (This I think was said by the worthy Gent. from Topsham.). My position is this, that as long as the body of the people continue virtuous, Simple & uncorrupt in their manners they will be free, in spite of Tyrants. On the Contrary when the people become generally dissolute & sunk in vice, & lost to all sense of public good, & become fit for tyranny, then the scourge of tyrants will come upon them. This I think is the Course of Providence, & this, I am bold to Say All history Shows; and that whether the original Constitution was of an Election of Rulers, was for one year, two years or three years. Boundaries & barriers upon paper are of no consequence, if people are not properly watchful of their liberties. Rulers or Reps. may overleap two years, as well and as easily as one. The question here is, which is most convenient & for the public good is two or one—For instance, if the fœderal For instance, Suppose the Election annual & suppose towards the close of the year a Sudden & dangerous invasion takes place, which must be instantly provided against, & suppose the Reps should make use of that Exigence, & the difficulty of a new Election in that Emergency to hold over their term? I ask, would not that be full as likely to be the case & they as likely to Succeed in it, as if the Election was originally for two years? The question is, which is most convenient & for the public good, all circumstances considered, two years or one?
As to history—an honble. gent. has put the case of the Decemvirs in Rome. Their appointment, I think was for one year But it seems by artful pretences, they extended & usurped their powers beyond the term & became oppressive & tyrannical several years, till at length a remarkable event took place which aroused the people & restored their former govmt. remark that Rulers may overleap the bound of one year as easily as 2 years.
But Rome did not lose its liberties for several 100s years after that, nor till the people had generally sunk into Luxury vice & dissipation & became fit for the tyranny of the Emperors; and Even after that & till almost the fall of the Empire, they kept up the annual Election of Consuls by the Senate,—Consuls, who had been principal officers of govmt during the whole time of the Commonwealth. tis true the Consuls had lost almost all their powers of consequence & they fell into which were placed on a New officer the hands of a tyrant who usurped them; but the improvement to be made of this, to the point in hand, is that, the annual election continued after their libertys were gone, & that therefore, it was not for want of annual Election they lost their Liberties—& that it was as easy to take them away Under an annual Election as a biennial.
As to English history—It does not appear clearly how often parlmts were antiently elected if elected at all-but in the reign of Chs 2d. one parlmt sat 17 years. After the revolution in K. Wm's time an act of prlmt passed making Elections triennial, or once in 3 years, that was tho't by the Patriots of that day a Sufficient guard for Liberty. Afterwards in the reign of G. the I. while the fermentation was hardly over after the Rebellion to bring in the pretenders, the parlmt & whigs of that day pretended that a new Election at that time would endanger the liberties & Safety of the nation, & so prolonged their term (by their own usurped authority), from 3, to 7, years. And the next prlmt confirmed it. But would not the case have been the Same, if their Election had been annual. Would not the pretence have been the same—that a new Election might have fallen upon Jacobites who would have brot in the pretender.
In short the fair question is only which is most convenient & most for the public good general intrest of the Continent, All circumstances considered one year or two.
I agree considerg the Extent of the Country & number & magnitude of the objects to be managed that it is best if not absolutely necessary—for the Election to be biennial.
The only question then is, whether the Constitution proposed is essentially defective in provided with proper checks & guards in favor of the liberties of the people?
Objections have been made by worthy Gent. to almost every paragraph. I shall take notice briefly of only some of the principal.
And first as to a bill of rights, wch. the worthy Gent. from Sutton, thinks wanting.
Bills of rights originated in antient despotic times; in the times of despotic Kings, whose prerogatives were boundless & whole will alone was law. I will mention one Instance—in the Reign of Chs. the I., the spirits of the Commons rose high agst. his usurpations, & Ld. Coke & others drew up a bill of rights, which the King was obliged to assent to, before he could obtain a grant of monies he demanded.
But it was of no consequences, for no sooner had he assented to the bill of rights than he trampled the whole under foot. The short of the matter is,—when the people could extort an Acknowledgment of some of their essential rights as freemen from the King, who before had full posson of the whole, they thought they gained a great point.
Twas then deemed treason to hold, that all civil power originated from the people & that its sole End was their good.
But now this being the only doctrine of the country & well understood by everyman, we should lay ourselves under a disadvantage to go about to enumerate all the particular rights we meant to retain, because we might inadvertently omit some important ones which would thereby be lost The fact is (& it is a selfevident proposition)—we retain all that we do not part with.
And this is the only safe Idea that the freemen of America can rest upon when they assemble to draw up forms & delegate powers of govmt.
And therefore it is that in the Constitution of New York, & a number of others, there is no bill of rights at all; going Upon this Sure ground, that no authority could be exercised over the people but such as should be expressly granted by them; which in my opinion is better & safer than any bill of rights that the wisest mortal can draw by attempting particular enumeration of rights.
It is said still that without the guard of a bill of rights, Congress might even prescribe a religion to us; That could not be without a downright usurpation which we should have as good a right to refuse without a bill of rights as with one—I will put a plain case precisely in point.
A man makes a power of atty to his friend to receive monies due upon certain notes of hand, which he specifies, with dates Sums & names. Does such a power authorise the Atty to receive monies upon any other notes (not named) or to touch real Estate? No more can Congress impose a Religion upon us without color of warrant or authority a Shadow of authority given in anyone paragraph of the whole System.
The doctrine that rulers may have the Controll of the peoples rights, without their grant; is better adapted to the despotic monarchies of the East than to this Enlightned Country—and our Constituents will have no reason to thank us for placing their Liberties upon so dangerous a foundation, as necessarily implies that they are all born slaves, instead of being born free & equal.
1
As to biennial Elections I am satisfied, considering the great extent of the country & the variety & magnitude of the objects to be concerned with, that two years would not be so great in proportion as one year for a particular state. With respect to the Senate & president, chusing the former for 6 years, subject to a change of one third every two years, & a period of 4, years for the president, who, with the senate, will have the management of important treaties & negotiations, will not only give some degree of Stability to govmt, but will be for the intrest of the people & the security of their liberties. They will be able to form & execute plans for the public good before they are displaced by a new Election.
I do not conceive that danger which some Gent, do, of Either branch attempting to perpetuate themselves in office, which they never will or can do, till the people are ready to acquiesce in it—till the people are lost in ignorance—lost to virtue & to all sense of the public Intrest. Besides the rival houses being a check upon Each other against any Extension of powers—there is the perpetual watch of thirteen Legislatures upon both of them, who will know every week or fortnight, what passes in Congress—and from whom, information will continually transpire to the people at large.
When we consider that the whole building is democratic—all parts dependant on the people mediately or immediately—that the period of their existence is fixed beyond which they cannot pass;—And when we consider that the representative body of this people, for 60, years together was a full match & ballance to a royal independant Govr. with a Council subject to his Negatives, So that no people on Earth enjoyed life, liberty & property in greater Security during all that period, and even till the whole power & policy of G: B. began to be exerted against us for the Abridgment of our liberties, (and even then our Reps were not outdone; it issued in our independance, which I wish we may not loose by continuing in a State of disunion, weak &contemptible to all world); When we consider all this, with the other checks and restrictions in the Constitution, it seems to me, it must ease our minds of all jealousies upon the Subject.
A rotation in Congress has been held up as neeessary, that is, that when a person has been in office a certain period; the people, however they may trust in his experience ability & integrity shall not have a right to choose him for a certain other period time: this I think would be an open downright abridgmt of the peoples liberties & right of Election & a bold stroke for any Constitution makers to attempt; besides that it might prove dangerous to the Comwealth in being obliged to bring in, new & unexperienced men, perhaps in an all hazardous moment, a time of war, to conduct the affairs of State, instead of their tried & faithful Servants, whom they would wish to choose. Let the people, as it is their natural & important right judge for themselves in this matter.
2
The rule of apportmt for Reps & direct taxes has been objected to: But as this rule has been heretofore agreed to, by Eleven States, has been practised upon by Congress, & as no better one is attempted to be pointed out, which all the States are likely to approve of, I think we may safely acquiesce in the rule proposed.
Tis said the Number of Reps is too Small. I conceive in the present situation of the Country that 93, men of Ability & integrity (and such I doubt not we shall chuse) are abundantly competent to managing the general affairs of the States for their best intrest—less expensive & less liable to general objections than a much larger number.
There is room however for increase as the Country increases, & as soon as an Enumeration can take place, the apportionmt is to be, expressly, according to the respective numbers in the Several states, not exceeding 1 for every 30,000, which seems strongly to imply that we have a right to choose 1 to Every 30,000. But at worst if the Reps should be so tenacious of power as is supposed, there can never be any danger of lessening the present number even if they had power to do it.
If it be taken that Congress can by law hereafter abridge this right of chusing 1 to 30000, say it shall be only 1 to 40,000, I don't see they can have any motive to do it, unless it be that Congress (a long time hence) will become so numerous as to be unwieldy; which is said to be the reason of wording the Clause in the manner it is.
3
The 4th. Sect. of the power of Congress to make or alter regulations as to the places of holding Elections for Reps—this appears necessary to keep up the General govmt, wch. cant be done, unless Congress is to judge whether a State has neglected or refused to make regulations, (or wch. amounts to the Same thing) whether they have made such regulations as may rather tend to frustrate than answer the End.
I pass to the General powers of Congress over the Union delegated to be exercised for the Common defence & general welfare of the U. S.; the highest of which powers Are (as they are called) the powers of the purse & the sword. These powers are warmly contended to be too high to be trusted in the hands of mortals in time of peace—to be trusted even with our own Reps;4 and the horrible effects of standing armies in time of peace are pathetically displayed & pictured out to our imaginations. Tis true that armies under the controll of absolute monarchs both in time of peace & war have tyrannically shed the blood of their Subjects.
Tis true that a British army shed the blood of our innocent citizens in this metropolis. But was that army either raised by or under the controll of our own legislature?
Does not our own constitution, one of the freest in the world, in its very bill of rights, trust this high power expressly of maintaining an army in time of peace, in our Legislature, if they judge necessary? Did the great patriots of England since the revolution, ever contend for more than, that a military force should not be kept up, in the realm; without the consent of the house of Commons?—
The circumstances in time of peace may so strongly bear the features & marks of war & that for a long time, that the Necessary preparations may be nearly the same. That may be a very dangerous weapon in the hand of a madman or a despot, which may not only be harmless, but necessary in the hand of a faithful Servant, for defence of his master. Yet the Servant may betray his trust & kill his master.
I never, (before I had the honor of being in this Convention) heard question'd the necessity of lodging, in the Reps & guardians of the people, a discretionary power of keeping up a military force, according to the Exigence of the times, whether in peace or war for garrisons of forts guards to public magazines, guards on the frontiers—especially where an opposite force was kept up, in posts detained Contrary to treaty, of all which (particularly to numbers) the Supreme power must be the judge—as it is impossible to define or limit upon paper beforehand what number of forces may be necessary one two, or ten years hence.
The worthy Gent. from Sanford, yesterday day or two ago before he got thro' his Speech upon Standing armies (embarrassed with his subject) was obliged in effect to give up the point he had contended for, as every man must, who thoroughly discusses this subject. He gave it up, by allowing that Congress might keep up such guards & garrisons as they judged necessary. And what will those guards & garrisons amount to, but a military force,—a Standing army in time of peace, wch. the Reps may, if they are wicked enough, turn agst. their Constituents?—
and the Same may be done much more easily in time of war, by striking a bargain & joining forces with the Enemy.
The plain consequence is—we must either delegate discretionary powers for the public safety or delegate no powers at all. The same reasoning will be conclusive as to a discretionary power of taxing.2. All the difference is—in a despotic govmt these powers are lodged in a despot;—in a free govmt, in Reps, trustees or Servants whom the people can, at pleasure, displace, at certain Short stated periods.
What a man gives by his Rep., he gives himself saith the great Mr, Lock, who hath placed this position, as the only rock or foundation upon wch civil Liberty can stand in civil Society or govmt.
There is one clause towards the close of this 8th. Sect. wch. Sounds to some Gent. harsh and dangerous, "that Congress may make all laws necessary & proper to carry their powers into Ex[ecuti]on.
This is no more than was necessarily implied in the powers themselves. For if they could not make laws that were necessary & proper to carry [th]em into Ex[ecuti]on, the powers themselves would be totally dead & Useless.
A difficulty is started about the power of Suspending the privilege of hab. Corps., which 'tis said Congress may suspend for any term they please. The Clause is this. p. 12.
I will only say that the clause appears to me so plain, that if a Judge should refuse a citizen his hab. Corps., after a rebellion was over, or the invasion at an end; I think he ought to be impeached & degraded from his office—at least.
Here I will add one observation further—that in all cases, where the Jurisdiction of the State Judges is not clearly taken away that jurisdiction must remain untouched. This I lay down as a fundamental position, not to be shaken, by Judge or Jury.
There is Jealousy about the State Sovereignties as though they soon would be, absorbed, swallowed up &consolidated in the general govmt; Sr. Hard words and vague expressions without clear & distinct Ideas, can never throw light upon any Subject.
Tis a clear & simple Idea that the general govmt is to have certain powers, as to general objects & intrests, particularly set forth & de- scribed-; the powers of the president & Senate are Specified—the powers of Congress are all named & relate to such matters as must be committed to the general guardians of the Union all the States.—The Cases to which the judicial power extends, both civil &criminal are specified with precision.
The State govmts have certainly, all the powers, not delegated to Congress, except what remain in the people at large.
They must then know the path they have to pursue; And what shall Hinder both from a pacific regular Administration of the affairs of their respective Jurisdictions? The Senate & president at all times will depend on the legislatures for their Existence; the Senate equally represents all the States Sovereignties great & Small; & many other Circumstances show that incroachments may as probably arise on the part of State govmts as of the fœderal.
But I see no kind of necessity for Either, & doubt not that all will work for the general good of america.
And now One word upon amendments, I think [—] a number of those proposed by proposed by your Exy. are proper, & for the sake of unanimity I would not object to any of them.
5
But most Some of them, are of such a nature, such a general nature, not local, that I doubt not Congress will the first opportunity be ready upon motion of our Reps, to make such regulations respecting them as shall be accommodated to the habits the ease &convenience of the people, more Especially as the Constitution itself points to regulations to be made by Congress At the first outset:—As where it says—that the Fœderal Court "shall have Jurisdiction of the Causes specified, with such Exceptions & under such Regulations as Congress shall make." Plainly referring to Juries and Jury trials.
There is provision in the 5th. art. of the Constitution for amendments—which I had much rather trust to, without more saying than, risque the Union by rejecting this Constitution.
I beg now to add a few words on the great & Ultimate question;—I think the system proposed, in general, is nobly calculated to Support the Union the independence & the Liberties & to promote the prosperity of this Country; And that without such a govmt, these States must Sink into Endless dissensions mutual wars wretchedness & ruin.
The great points gained in this Constitution in favor of the general interests of the people & the great danger (if we loose it) of never gaining another equally favorable—the risque of any future general Convention of all ye. States ever agreeing upon any plan of Union AT ALL, render (in my opinion) a DELAY to accept the Constitution, of the most dangerous Consequence to the peace & happiness of these States.
This sentiment is corroborated by the important facts which came from a worthy Gent. of the Boston Seat, respecting the Course of trade & the carrying business—whence it appears that (for want of a fœderal govmt) nearly the whole of the carrying business is in' the hands of foreigners—to the Exclusion of many thousands of our own citizens from a profitable employ and business of one Sort or another—to the great injury of our Seamen, Mechanics, manifacturers, Merchants & Farmers throughout the whole Country.— Why, of all the people upon the face of the Earth, should we, neglect or refuse to improve the advantages, providence hath put into our hands?
Why deprive ourselves of the means of national prosperity—of the means of self defence & self preservation?
Why deprive ourselves of that most important privilege of gradually rising to a Navy Sufficient to protect our fishery & our Commerce in all parts of the globe—a privilege so justly to be expected by us, from the abundant blessings (adapted to that End) which God & nature have so liberally poured down upon this Country.—
As our disquistions have been free &critical, I hope they will be crowned with Success for ye. good of our Country; & that it maynot be our Characteristic—that while we deliberated, the people were Undone.
But not further to tire the patience of your Excy & of this hon. Convention, I will Stop short with one most hearty wish, that may all be so wise as to see our own intrest, & unanimously pursue it, before it be too late.—
[Second Speech]
That mankind have certain important rights, as well as that they are bound to certain important duties wch. are as it were their Counterpart reason incontestibly dictates: no reasonable man will deny—The point is—What are those rights & how are they to be secured?
Among them some are said to be unalienable, that is—such as no man can, consistent with his duty to God & himself give up or make over to Another but must, in the nature of things, exercise them himself & be accountable for the right use of them. Such are the rights of conscience, of thinking & judging in religious matters & of conducting Oneself towards his maker as his own particular reason directs him, without Controll, any further than that under this pretence he shall not be permitted led to infringe the undoubted right of others.
Mankind however in all Ages, & even pious & well meaning men, have been from a certain false zeal, very prone to violate this sacred right, to Set up persecution & intolerance & shedding rivers of blood, as the proper methods of reforming the world & inspiring communicating the true principles of piety.
This Country may boast of having gone as far I suppose further than any other Country upon Earth in putting an end to that absurd practice, having established Religious freedom as one main pillar of government in all their new Constitutions & abolished all governmental preferences of Sects or persuasions. If we exceed our Ancestors in Liberality of Sentiment, it will may be well question if we do not fall as much short of them in Strictness of piety & morality in other Respects.—
As Catholicism & liberality of Sentiment abound, we ought to be upon our guard lest we fall into a Contrary Extreme. Some men have been so liberal in thinking as to Religion as to Shake off all Religion, & while they have labored to Set up heathen above Christian Morals, have shown themselves destitute of all morality, at least the essential points of it—; making a disposition to forgive injuries no part of a man's duty. Thus subverting an essential ingredient in the great principle of benevolence, which is to prevent men from continuing to butcher one another as long as man remains upon Earth. tending to prevent those dangerous revengeful retaliations which produce perpetual wars & slaughter of the human species, nationaly & individual.
It seems to be agreed, that the Confederation is weak, without powers—totally inadequate to all great national purposes—unable to uphold the union—to protect the Country-to pay any part of the public debt or even the Intrest—that Commerce is in a wretched Situation unregulated, unprotected, unproductive of Revenue—that All the world are become our Carriers, except only that we ourselves—are in a manner excluded;—Shipbuilding & navigation in a great measure cease;—while hundreds of Our Carpenters—& hundreds of our honest Seamen on the coast with men of numerous other trades & businesses dependant on these now lie still for want of employ; in short, the intrest of all classes of men through the community is essentially affected—from the Ocean to the wilderness.
Indeed the defects of the Confedoration were seen & pointed out by some Gents when it was made. But now at last, absolute necessity has roused the states &compelled them to Attempt some effectual measures for their own relief.
What is the remedy to be provided?—
Some Gentlemen say—Alter or amend the old Confederation—not make a new System. why not make a new System, if that were necessary for the Salvation of the Country?
Every essential Alteration, Sir is so far making new System. So that this seems a dispute rather about words than things. The real question is, whether essential alterations were not necessary for the welfare & Safety of the States? And whether those proposed by the fœderal convention are proper now to be adopted.
For instance, the Confederation, in appearance imparted many, if not most of the great powers, now inserted in the proposed Constitution; such as making war & peace, borrowing money without bounds upon the Credit of the united states—building & equipping navy—demanding men & money without limitation—& of appropriating money to defray the public expenses; but not one efficient power to carry a single article into effect; in case the States did not See fit to comply with their promises.6 This capital defect—how can it be remedied? It has been suggested that we may give Congress, the power of the Sword, to compel the states as States to a compliance. That seems to imply that Congress without men or money or means to raise an army are to levy a general war upon thirteen States to reduce [th]em to Submission to their Engagements; the horror of the thing (Mr Presidt) if practicable—but the utter impracticability it, must forceably strike every man's mind. —Sad experience, I take it, has bro't us all to one general point—to one certain conclusion—that efficient govermental powers must be lodged in Congress; as far as respects all great national concerns, & especially the general defence & Safety.—
These govermental powers, in order to have full & proper effect, must in the nature of things, consist of the Executive, the Legislative, & judicial. Without these govmt cannot be carried an End. Now every sensible man without the advantages of a liberal education, sees as plainly as the wisest most learned legislators & politicians, that Lodging these three great primary powers, in One body of men, is directly sowing the Seeds of tyranny. Well, therefore, & wisely have the fœderal Convention done, thus far, that is, in attempting to compose a govmt with proper ballances &checks—in differently organizing & modifying Congress, so as to place the weighty powers of govmt in a president Senate—house of Reps, with a Supreme judicial vested in Judges during good behaviour—very similar to our own Constitution in particular—& similar to the other state constitutions in general.
Thus combining together in the close band of govmt, as to all general concerns (reserving to the States their respective Sovereignties in all other matters.), appears to me a grand & noble plan, and the only one that can Secure our Union, our Commerce & our national Safety.

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