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.