Life of James Buchanan, Fifteenth President of the United States. v. 1 (of 2)

by George Ticknor Curtis

The Senator from South Carolina (Mr. Calhoun) has justly denominated the amendments to the Constitution as our Bill of Rights. The jealousy which the States entertained of federal power brought these amendments into existence. They supposed that, in future times, Congress might desire to extend the powers of this Government, and usurp the rights which were not granted them by the people of the States. From a provident caution, they have, in express terms, denied to Congress every sort of control over religion; over the freedom of speech and of the press; and over the right of petition. The first article of the amendments declares that “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.”

Now, sir, what is the first position taken by the Senator from South Carolina against receiving this memorial? I desire to quote him with perfect accuracy. He says that the Constitution prohibits Congress from passing any law to abridge the right of petition; that, to refuse to receive this petition, would not be to pass any such law, and that therefore, the Constitution would not be violated by such a refusal.

Does not the Senator perceive that, if this doctrine can be maintained, the right of petition is gone forever? It is a mere empty name. The Senate would possess the power of controlling it at their will and pleasure. No matter what may be the prayer of any petition; no matter how just may be the grievances of the people demanding redress, we may refuse to hear their complaints, and inform them that this is one of our prerogatives; because, to refuse to receive their petition is not the passage of a law abridging their right to petition. How can the gentleman escape from this consequence? Is the Senate to be the arbiter? Are we to decide what the people may petition for, and what they shall not bring before us? Is the servant to dictate to the master? Such a construction can never be the true one.

The most striking feature of this argument is, that the very article of the Constitution which was intended to guard the right of petition with the most jealous care is thus perverted from its original intention, and made the instrument of destroying this very right. What we cannot do by law, what is beyond the power of both Houses of Congress and the President, according to the gentleman’s argument, the Senate can of itself accomplish. The Senate alone, if his argument be correct, may abridge the right of petition, acting in its separate capacity, though it could not, as one branch of the Legislature, consent to any law which would confer upon itself this power.

What is the true history and character of this article of the Constitution? In the thirteenth year of the reign of that “royal scoundrel” Charles the Second, as the Senator from Virginia (Mr. Leigh) has justly denominated him, an act of Parliament was passed, abridging the right of petition. It declared that “no petition to the king or either House of Parliament, for any alteration in Church or State, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury in the county; and in London by the lord mayor, aldermen, and common council; nor shall any petition be presented by more than ten persons at a time.” Each Senator will readily perceive that the right of petition was thus laid almost entirely prostrate at the feet of the sovereign. The justices of the peace, and the sheriffs who selected the grand juries, were his creatures, appointed and removed at his pleasure. Out of the city of London, without their consent, no petition for an alteration in Church or State could be signed by more than twenty individuals. At the revolution of 1688, the Bill of Rights guarantied to English subjects the right of petitioning the king, but the courts of justice decided that it did not repeal the statute of the second Charles. This statute still remained in force at the adoption of the federal Constitution. Such was the state of the law in that country, from which we have derived most of our institutions, when this amendment to the Constitution was adopted.

Although the Constitution, as it came from the hands of its framers, gave to Congress no power to touch the right of petition, yet some of the States to whom it was submitted for ratification, apprehending the time might arrive when Congress would be disposed to act like the British Parliament, expressly withdrew the subject from our control. Not satisfied with the fact that no power over it had been granted by the Constitution, they determined to prohibit us in express terms from ever exercising such a power. This is the true history of the first article of our Bill of Rights.

Let me put another case to the Senator from South Carolina. Some years since, as a manager on the part of the House of Representatives, I had the honor to appear before this body, then sitting as a high court of impeachment. In that case, the accused, when sitting as a district judge of the United States, had brought an attorney of his court before him by an attachment for contempt, and without any trial by jury had convicted him of a libel, and sentenced him to imprisonment. The judge was acquitted; and at the moment I thought this decision had placed the freedom of the press in danger. If the sedition law were clearly unconstitutional, and nobody now doubts it; if Congress could not confer upon the courts of the United States, by express enactment, any question over the power of libel, I thought it monstrous that a judge, without the intervention of a jury, under highly excited feelings, should be permitted to try and to punish libels committed against himself according to his will and pleasure. My apprehensions were of but short duration. A few days after the acquittal of this judge, the Senate, without one dissenting voice, passed a bill, not to create a new law, but declaratory of what the old law, or rather what the Constitution was, under which no federal judge will ever again dare to punish a libel as a contempt. The constitutional provision in favor of the liberty of the press was thus redeemed from judicial construction.

Now, sir, we must all admit that libels of the grossest character are daily published against the Senate and its individual members. Suppose an attempt should be made to bring one of these libelers before us, and to punish him for a contempt, would the gentleman from South Carolina contend that we might do so without violating the Constitution, and that we might convict him and sentence him to imprisonment, because such a conviction and sentence would not be the passage of a law abridging the freedom of the press? The gentleman’s excited feelings upon the subject of abolition have led his judgment astray. No construction can be correct which would lead to such palpable absurdities.

The very language of this amendment itself contains the strongest recognition of the right of petition. In the clearest terms, it presupposes its existence. How can you abridge a right which has no previous existence? On this question I deem the argument of my friend from Georgia (Mr. King) conclusive. The amendment assumes that the people have the right to petition for the redress of grievances, and places it beyond the power of Congress to touch this sacred right. The truth is, that the authors of the amendment believed this to be a Government of such tremendous power that it was necessary, in express terms, to withdraw from its grasp their most essential rights. The right of every citizen to worship his God according to the dictates of his own conscience; his right freely to speak, and freely to print and publish his thoughts to the world; and his right to petition the Government for a redress of grievances, are placed entirely beyond the control of the Congress of the United States, or either of its branches. There may they ever remain! These fundamental principles of liberty are companions. They rest upon the same foundation. They must stand or must fall together. They will be maintained so long as American liberty shall endure.

The next argument advanced by the gentleman is, that we are not bound to receive this petition, because to grant its prayer would be unconstitutional? In this argument I shall not touch the question, whether Congress possess the power to abolish slavery in the District of Columbia or not. Suppose they do not, can the gentleman maintain the position, that we are authorized by the Constitution to refuse to receive a petition from the people, because we may deem the object of it unconstitutional? Whence is any such restriction of the right of petition derived? Who gave it to us? Is it to be found in the Constitution? The people are not constitutional lawyers; but they feel oppression, and know when they are aggrieved. They present their complaints to us in the form of a petition. I ask, by what authority can we refuse to receive it? They have a right to spread their wishes and their wants before us, and to ask for redress. We are bound respectfully to consider their request; and the best answer which we can give them is, that they have not conferred upon us the power, under the Constitution of the United States, to grant them the relief which they desire. On any other principle we may first decide that we have no power over a particular subject, and then refuse to hear the petitions of the people in relation to it. We would thus place the constitutional right of our constituents to petition at the mercy of our own discretion.