Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PETITION, Right of

III.54.1

PETITION, Right of. The constitution of the United States, in its first amendment, provides that "Congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances." This provision is not a statement of abstract right based on theory but, like almost all other clauses in the great Anglo-Saxon charters, it had its origin in the successful struggle against actual tyranny. It is founded on English history, and to understand it, it is necessary to glance at that history.

III.54.2

—The right of petition seems to be recognized in magna charta, which was ratified by King John in 1215. Chapter forty contains these words: "Nulli negabimus rectum aut justitiam," and they are repeated in the charters of Henry III. (1216, chap. 29) and Edward I. (1297, chap. 29). Some petitions of this period are said to be preserved in the tower of London. In the reign of Charles I. petitions became bolder and bolder, notwithstanding the contemptuous treatment which they received from him, and the right of presenting them naturally grew to be obnoxious to the cavaliers. Consequently, soon after the restoration of Charles II., parliament passed a bill against tumultuous petitioning, which forbade the presentation of petitions for the alternation of matters established by law, to the king or either house, by more than ten persons; nor could more than twenty persons sign a petition, unless its contents were previously approved by three justices or a majority of the grand jury in the country, or by the lord mayor, aldermen and common council in London. The transgressor was liable to fine and imprisonment. (13 Car. II., st. 1, c. 5; 8 Statutes at Large, p. 6.) This statute did not have the desired result, and in 1679 so many petitions were presented protesting against the repeated prorogation of parliament, that the king issued a proclamation to put a stop to them, but still they continued to pour in. The advanced royalists presented counter-addresses expressing their abhorrence of these petitions. Hence, the two national parties became known as "Petitioners" and "abhorrers," although soon after they were called "whigs" and "tories" instead. (8 Hume's History of England, chap. 68.) It was from James II., that, nine years later, the right of petition received the severest blow in England. He had made up his mind to restore his fellow Catholics to the full rights of English subjects (and, indeed, to give them the preference), in spite of existing penal laws. To this end he found it necessary to set aside the statutes by means of what was called the "dispensing power." This prerogative of dispensing with penal laws had been assumed by the crown several centuries before, and was originally copied from the practice of the Roman church. It was an infringement of law, and had met with resistance almost from the beginning. In 1687 the king issued a declaration, under this power, announcing that none of the penal laws against non-conformists should be enforced. This proclamation, which is known as the "declaration of indulgence," produced no effect. Accordingly, in 1688, he published a second similar declaration, which was followed, a week later, by an order in council commanding the clergy to read the declaration on certain Sundays at the usual time of divine service in all the churches of England, and bidding the bishops distribute copies of it for this object throughout their dioceses. The clergy received the order with doubt and dissatisfaction. Not only was it opposed to their wishes, but it was equally repugnant to public opinion and the laws of the realm. Before the day fixed for the first reading a number of prominent divines met at Lambeth and drew up a petition, which was finally reduced to writing by Lancroft, the archbishop of Canterbury himself, and signed by him and six bishops. In their petition they denied the existence of any power in the king to dispense with acts of parliament; they expressed their willingness to obey parliament or convocation; and besought the king not to insist upon the distribution and reading of the declaration. The six suffragan bishops delivered the petition to James on their knees, but he received it in a passion. Although the declaration was not recalled, it was read in only four churches in London on the day appointed, and from these churches the congregations immediately departed in disgust. At the king's order the seven prelates were sent to the tower, and tried before the king's bench for seditious libel. James used every means to secure their conviction, but it was impossible to turn the presentation of a respectful petition into a criminal offense. The jury returned a verdict of "not guilty," and the prisoners were released. The whole nation learned the result of the trial with joy, and the king's course in the matter called down upon him the lasting enmity of the people, and did much to shake off his tottering crown. (12 Howell's State Trials, 183; 3 Modern Reports, 212.) The prince of Orange referred to the case of the seven bishops in the declaration which he published before coming to England, when he said that the offering of a petition had been held a high misdemeanor, and that this was one of the wrongs which he would redress. (2 Macaulay's History of England, 358; Bishop Burnet's History of his own Time, 775-780.) Afterward, when the two houses offered the throne to William and Mary, the offer and acceptance were made subject to the bill of rights. This important document recited the fact that James II. "did endeavor to subject and extirpate the Protestant religion and the laws and liberties of the kingdom," among other things, "by committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed [dispensing] power," and it goes on to declare "that it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal." ("An Act for declaring the rights and liberties of the subject and settling the succession of the Crown," 1 William and Mary, sess. 2, chap. 2; 9 Statutes at Large; p. 67,1688; 5 Cobbett's Parliamentary History, 108 et seq.) The act of 1700 which established the succession of the crown in the house of Hanover confirms all laws which secure the rights and liberties of the people (12 and 18 Wm. III., chap. 2; 10 Statutes at Large, 360), and the bill of rights, protecting the right of petition, is to-day a conspicuous part of the English constitution. In the celebrated case of Lord George Gordon (1781,) Lord Mansfield said that the statute of 13 Charles II., limiting the number of petitioners, was still in force. The petition in this instance was also directed against the Roman Catholics. Lord George Gordon, president of the protestant association, was displeased with the passage of Sir George Savile's bill removing penalties from Romanists, and presented a petition in the house of commons for its repeal. It bore thousands of signatures, and he went to the house at the head of a large mob which he had collected. His followers attacked several members and attempted to exert intimidation. The motion was, however, almost unanimously rejected, and the rabble, after rioting several days, subsided. (21 Cobbett's Parliamentary History, 654, et seq.) The ringleader was tried for high treason and acquitted, though the act of 13 Charles II. could undoubtedly have been enforced against him. (21 Howell's State Trials, 485; 24 Annual Register, 217, 238.) About this time petitions to parliament became very numerous. Many of them were directed against the slave trade, and afterward against slavery. At last, in 1839, debate was forbidden on the presentation of petitions in the house of commons, as they threatened to occupy all the time of the house. The most important English petition of the present century was the one of the chartists in 1848. These men, excited by the revolutions on the continent, sent a petition to the lower house for annual parliaments, universal suffrage, and the other reforms contemplated in their "charter." More than a million names were appended to the petition, and a mass meeting was called in London to support it. The house received it with respect, but it was soon discovered that many of the signatures were fictitious, and that their number had been greatly over-estimated. The committee on public petitions, while reporting these facts, declared its opinion that the right of petition was an important privilege. (98 Hansard's Parliamentary Debates; 74,283.) The agitation soon died out without affecting legislation. (1 McCarthy's History of Our Own Times, chap 18.)

III.54.3

Practice. In olden times petitions were usually presented to the English monarch, because he was more powerful than parliament. The contrary is now the case; but petitions to the sovereign, though less frequent than those to the legislature, stand upon the same legal footing with them. The sovereign sometimes receives petitions personally, and sometimes through officers of the court. Parliament used to appoint receivers and triers of petitions, but now the house of commons refers public petitions to a committee on public petitions. (May's Law of Parliament, chap 19.)

III.54.4

—The amendment to the constitution of the United States referring to petitions was modeled after the clause in the English bill of rights. (See BILL OF RIGHTS.) The constitution originally contained no list of popular rights, as the general convention considered such an enumeration unnecessary. In the subsequent state conventions, on the other hand, it became evident that a considerable party desired such a "bill of rights."*26 Consequently, in the first congress a series of amendments to the constitution were adopted, including the one quoted at the head of this article. The convention of Virginia had submitted a proposed section on the right of petition, which also asserted the right of constituents "to instruct their representatives." In the lower house, while the amendments were under consideration, Mr. Tucker, of South Carolina, moved that these words be added. Mr. Madison opposed the motion, and it was lost. (Towle's Analysis of the Constitution, 230, 231.) There have been no petitions of very great historical interest in this country except those which sought the abolition of slavery. (See, e.g., 2 Benson's Abridgment of the Debates of Congress, 57 et seq., 182 et seq., 209, 436-444; 12 ib., 660-666, 676-679, 705-711, 713-720, 722-743; 13 ib., 5-14, 24-29.) These petitions were very numerous, and always drew forth most bitter debates. Finally, in 1836, a resolution was adopted in the house of representatives, which directed that all petitions relating in any way to slavery should be laid upon the table without being printed or referred and that no further action should be taken on them. (13 ib., 24).*27 In 1838 another rule of the same tenor was adopted. (13 ib., 702-707; Congressional Globe, Dec. 17 and 24, 1838, vol. 7, nos. 2 and 3, pp. 23-25, 27, 28, 33-38.) The former resolution was based, according to its recitals, on the want of power in congress over the states, the undesirability of any exercise of power in the District of Columbia, and the necessity of stopping agitation and restoring tranquillity. The latter resolution affirmed that all attempts to abolish slavery in the territories or District of Columbia were virtually aimed at the southern states, and therefore unconstitutional in their tendencies. Fortunately, such rules are no longer needed.

III.54.5

—The national constitution has been followed, as far as the right of petition is concerned, in almost all of the state constitutions. Only three states ignore the right in their fundamental law: Minnesota, Virginia and West Virginia. Eleven include the right of "petition, address and remonstrance" in their "bills of rights": Alabama, Connecticut, Kentucky, Pennsylvania, Rhode Island, Tennessee, Delaware, Massachusetts, New Hampshire, Texas and Vermont. Four recognize the right to "apply for the redress of grievances": Illinois, Indiana, North Carolina and Oregon. Two confirm the right of "petition or remonstrance": Maine and Missouri; while all the rest copy the general constitution more closely, and protect the right of "petition" simply. (2 Hough's American Constitutions, 571.)

III.54.6

—The supreme court of the United States has recently passed upon the right of petition as affected by the constitution of the United States. (United States vs. Cruikshank, 92 U. S. Reports, 542.) Chief Justice Waite, in stating the opinion of the court, says that the right to assemble for lawful purposes existed long before the adoption of the constitution. It is an attribute of free government, springing from laws universally recognized by civilized man. The constitution did not establish it, but found it in existence. Up to that time the individual states were bound to protect it, and as the amendment granted no direct power over it to congress, the right of petition remains subject to the jurisdiction of the states. The amendment recognizes an existing privilege of the people, and guards it against congressional interference only. For their protection in its enjoyment the people must look to the states. The court, however, holds that the right of petition appertains to national citizenship, and that on this account it is guaranteed by the national government. It is implied in the very idea of a republican form of government. (Ib., 551, 552.) As petitions are legal, it follows that a petitioner is not guilty of libel in his petition unless express malice be proved. Therefore a petition to the legislature, requesting that body to direct the attorney general to do his duty, was decided not to be actionable. The court held that a man can petition the legislature for the redress of a grievance which does not exist, if he thinks that it exists. (Reid vs. Delorme, 1806, 2 Brevard's Reports, South Carolina, 76.) So it was held in New York that a petition for the removal of a district attorney on account of malversation in office, directed to the council of removal, and followed by his removal, could not give rise to a cause of action, unless it was presented maliciously, even if it contained false statements. (Thorn vs. Blanchard, 1809, 5 Johnson's Reports, 508, and see cases cited by counsel; see also Gray vs. Pentland, 1815, 2 Sergeant & Rawle's Reports, Pennsylvania, 23, and the very full opinion of the court in Harris vs. Huntington, 1802, 2 Tyler's Reports, Vermont, 129.)

III.54.7

—In the United States each legislative body has its own rules, which prescribe the manner of offering petitions and the disposition of them. We will give a short résumé of the rules of the house of representatives on this subject for an example. Members having petitions to present may deliver them to the clerk, after indorsing on them their names and the reference or disposition to be made of them. These petitions, except such as in the speaker's judgment are obscene or insulting, are entered in the journal and published in the congressional record. Petitions excluded by the speaker are returned to the member who presented them. If a petition has been inappropriately referred, it may be properly referred by direction of the committee having possession of it. (Rule 22; see Smith's Rules and Practice of the House of Representatives, latest edition.) No petition can be withdrawn without the leave of the house, but if an act pass for the settlement of a claim, the clerk can send all the papers to the officer charged with the settlement. (Rule 39.) Every petition reported by a committee must be accompanied by a written report, which report is thereupon printed. (Rule 18, § 2.) After the final adjournment of congress the clerks of committees are obliged to deliver all petitions, not reported, and the evidence taken upon them, to the clerk of the house. (Rule 38.) A petition can only be printed by unanimous consent or suspension of the rules. (Smith; supra, 5th ed., 314; this does not refer to printing in the record.) A committee can not receive a petition except through the house. (9 Grey, 412; Jefferson's Manual, § 8; Smith, supra, 105, 234.) All petitions for the satisfaction of private claims against the government of the United States are transmitted to the court of claims, unless the house in which they are introduced otherwise orders. (U. S. Revised Statutes, § 1060.) Petitions must, of course, be presented to the appropriate department of the government. (Paschal's Annotated Constitution, 256, § 248.)*28

III.54.8

—The right of petition seems to be so just, so harmless, and so unquestionable, that its formal recognition in our constitution may appear needless. Its justice, however, has not always been admitted. In the case of the seven bishops we have seen that James II. attempted to override it. In ancient Persia we learn that petitions were discouraged, for "whosoever, whether man or woman, shall come unto the king into the inner court, who is not called, there is one law of his to put him to death, except such to whom the king shall hold out the golden sceptre that he may live." (Esther, chap. 4, verse 11.) We have the authority of Perry for the statement that Peter the Great made a decree that no petition should be presented to him until it had been offered to his ministers, and by them rejected. If the petition should then be presented to the czar, and fail to secure his approval, the petitioner was to suffer death. The result was, that no more petitions were presented. (Etat de la Grande Russie, 173.) From this account Montesquieu draws the conclusion that "in a monarchy the prince should be accessible." (Esprit des Lois, 12, 26.) It may readily be seen that such instances prove the value of the constitutional recognition of the right of petition, not only in monarchies but also in republics. The right is most useful as a safety-valve for the people, and such a safety-valve is especially necessary where the people govern. The chartist petition did much to quiet the petitioners and those who sympathized with them. Public petitions awaken the attention of men, keep ideas alive, countenance those who wish to act, and show public opinion. (Lieber on Civil Liberty and Self-Government, 3d ed., chap. 12, p. 121 et seq.) In these ways they have a positive power. In the debate on the extension of the time of the income tax in 1853, Lord Brougham told the house of lords how the old income tax law was repealed. "How did the opponents of the tax conduct the campaign in 1816? By means of petitions." He proceeds to show that for five or six weeks, from four o'clock in the afternoon till two or three o'clock in the morning, petition after petition was presented and debated. (128 Hansard's Parliamentary Debates, 798.) In England petitions brought about the abolition of slavery, the emancipation of the Roman Catholics, and the repeal of the corn law. Of course the right of petition may be abused. The legislature should be free, and threatening crowds of petitioners destroy this freedom, as was frequently the case during the French Revolution. Again, petitions should be respectful. The Kentish petitioners in 1701 were imprisoned on the ground that their petition was insolent and seditious. (5 Cobbett's Parliamentary History, 1250 et seq.) Stockdale's petition was rejected by the house of commons in 1840, because it was insulting. The abuses to which the right of petition is liable are by no means enough to affect its value seriously. The statute of Charles II. was designed to prevent the disorders which petitions produced, and it is now unnecessary to enforce it. Such disorders are discountenanced by the constitution of the United States, which recognizes only the right "peaceably to assemble and to petition." (Rawle on the Constitution, 124.) The first amendment has been solemnly criticised because it "savors of the style of condescension, in which favors are supposed to be granted." (1 Tucker's Blackstone, Appendix, 299.) This criticism may account for the word "remonstrance" in many of the state constitutions (supra), but it can have but little weight with those who regard substance rather than language.

III.54.9

—In France the constitution of 1791 included the right of petition among natural rights, specifying it as la liberté d'adresser aux autorités constitués des petitions signées individuellement. Although this section required every petition to be signed by the actual name of the signer, yet the assembly and convention often considered petitions signed by assumed titles, such as "the people," etc. The constitution of 1793 again preserved this right, pointing out the tribunat as the most appropriate recipient of petitions, and in 1799 the same privilege was reaffirmed. (Constitution of 1799, art. 83.) Under the first empire and the constitutions of 1815 and 1830 we find the right of petition protected. Many petitions were presented to the constituent assembly of 1848. During the second empire they could be addressed to the senate only. The constitution of 1870 allowed petitions to be presented to the corps législatif. (2 Block's Dictionnaire de la Politique, 555, tit. Pétition.)

III.54.10

—In Prussia, Frederick the Great was accustomed to receive petitions himself. In the early part of this century a decree was published forbidding the thrusting of petitions personally upon the king. The Prussian constitution of 1850 recognizes the right of petition (articles 23 and 32); and in fact all Germany, as well as the other constitutional countries of Europe, admits its existence. (8 Bluntschli & Brater's Deutsches Staats-Wörterbuch, 67, tit. Petitionsrecht; 3 Holtzendorff's Rechtslexicon, 40, same tit. See, for example, Constitution of Belgium, 1831, article 21, and Constitution of Switzerland, 1848, article 47.) Even in Russia the emperor Nicholas was often addressed personally by petitioners. (Lieber, supra.) Hue states that the right prevails in China. He records a case in which the inhabitants of a Chinese town secured the removal of an obnoxious prefect by means of a popular meeting and a petition to the viceroy. He adds that such incidents are not infrequent in that empire. (2 Travels through China, chap. 3, pp. 77-80)

ERNEST HOWARD CROSBY.


Notes for this chapter


26.
See, for example, "Address to the People of Maryland," 3 American Museum, 419, giving an account of the Mary land convention, very few members of which, it is true, seemed to wish to have the right of petition mentioned in the constitution; p. 424.
27.
See ib., 273-278, 280-290, 557-562, for the attempt to censure John Quincy Adams for a breach of this resolution; and notice, at p. 278, Mr. Cushing's able argument, showing that the right of petition existed independent of the constitution.
28.
(See also 1 Blackstone's Commentaries, 143; Story on the Constitution, § 1894; Cooley's Constitutional Limitations, 349; 1 May's Constitutional History, chap 7, pp. 410-417; Whipple's Report to the Legislature of Rhode Island, and Otis' Letter, published in pamphlet form, by Cassady & March, Boston, 1889; Broom's Constitutional Law, 408 et seq., 493 et seq., 508 et seq.)

Footnotes for PHYSIOCRATES.

End of Notes


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