1. U.S. Const., amend. I.

2. See generally Bailey, R., Popular Influence Upon Public Policy: Petitioning In Eighteenth Century Virginia 23–29 (1979)Google Scholar; 10 Holdsworth, W., A History of English Law 696–700 (1938)Google Scholar.

3. See generally Smellie, , The Right of Petition, 12 Encyclopaedia of the Social Sciences 98–101 (1934)Google Scholar; Smith, , “Shall Make No Law Abridging…”: An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 Cin. L. Rev. 1152, 1183–88 (1986)Google Scholar; Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 143 n.2 (1986)CrossRefGoogle Scholar; Note, On Letting the Laity Litigate: The Petition Clause and Unauthorized Practice Rules, 132 U. Pa. L. Rev. 1515, 1519 (1984)CrossRefGoogle Scholar; Rydstrom, , Annotation: The Supreme Court and the First Amendment Right to Petition the Government for a Redress of Grievances, 30 L. Ed. 2d 914Google Scholar.

4. See Levy, L., Emergence of a Free Press 259 (1985)Google Scholar. But see Rabban, , The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795, 801 (1985)CrossRefGoogle Scholar.

5. Most commentators place the origins of the petition right in the Magna Carta, See, e.g., Rice, , “Freedom of Petition,” in II Encyclopedia of the American Constitution 789 (1986)Google Scholar; Congressional Research Service, the Constitution of the United States: Analysis and Interpretation 1141–42 (ed. Killian, J. 1982)Google Scholar. One scholar, however, traces petitioning to property disputes that arose prior to 1215 and contends that the Magna Carta solidified a preexisting practice by providing a legal means of redress. See Smith, D., “The Right to Petition for Redress of Grievances: Constitutional Development and Interpretations” 12–13 (Ph.D. diss., Texas Tech Univ., 1971)Google Scholar. For more on the English parliamentary practices, see R. Bailey, supra note 2, at 9–10; D. Smith, supra, at 27.

6. 10 W. Holdsworth, supra note 2, at 696.

7. Resolution of the House of Commons, 1669, reprinted in Robertson, C., Select Statutes, Cases, and Documents to Illustrate English Constitutional History, 1660–1832, at 27 (4th ed. rev. 1923)Google Scholar. Curiously, there appears to be no scholarly commentary explaining this apparent contradiction.

8. Scholarship on petitions in England and the American colonies tends to focus on the procedures for petitioning or on historical episodes in which petitioning was significant, rather than on the conceptual meaning of petition. See, e.g., R. Bailey, supra note 2; Smith, supra note 3; Note, supra note 3. In his doctoral dissertation, D. L. Smith attempts to offer a conceptual framework for understanding the linkage between the rights of petition and assembly. See D. Smith, supra note 6. Smellie, supra note 3, at 99, notes that “king and Parliament did not hesitate to show their disapproval of petitions that touched their privileges.” The idea of petitions as remedial mechanisms, articulated by Blackstone, see infra text accompanying note 11, became problematic conceptually after the ratification of the Constitution in the United States. Because of the Constitution's specification of enumerated powers, the notion of a petition right permitting pleas for action beyond existing law is antithetical to the English position of petitions to the king for redress of grievances that parliamentary law had not yet addressed. In this sense, the transformed conception of constitutional government in America affected the scope of the right to petition.

9. Smellie, supra note 3, at 99. John Quincy Adams ardently believed that the petition right served this function. He provided an excellent illustration of his views in a letter to his constituents published in local newspapers on March 13, 1837. Discussing whether slaves enjoyed the right of petition, Adams explained that: “[I]f slaves were laboring under grievances and afflictions not incident to their condition as slaves, but to their nature as human beings, born to trouble, as the sparksflyupward, and it were within the power and competency of the House to afford them relief, and they should petition for it… I was ready to receive it.” Letters from John Quincy Adams to his Constituents of the Twelfth Congressional District in Massachusetts 18 (1837)Google Scholar [hereinafter Letters to Constituents].

10. Even this privilege of speech was strictly limited to the matters the Queen herself submitted to Parliament. See 4 W. Holdsworth, supra note 2, at 88–92. “Members who persisted in discussing forbidden topics, or who protested against royal prohibitions of such discussions, were committed to the Tower.” Id. at 97. The development of free speech followed an interesting course. Vincent Blasi argues that during the seventeenth and eighteenth centuries, free speech and press began to serve a “checking” function on the behavior of government officials in England and America. See Blasi, , The Checking Value in First Amendment Theory, 1977 Am. Bar Found. Res. J. 523, 525–26.Google Scholar

11. 2 Blackstone's Commentaries 142 (Tucker, St. George ed. 1803)Google Scholar.

12. See 5 id. at 151–52. Compare Emden, C., The People and the Constitution 77 (2d ed. 1959)Google Scholarwith L. Levy, supra note 4, at 121.

13. The Bill of Rights provided that “it is the right of the subjects to petition the King, and all committments and prosecutions for such petitioning are illegal.” 1 William & Mary, st. 2, c. 2, reprinted in Chafee, Z., 1 Documents on Fundamental Rights 270 (1963)Google Scholar. Maitland reports that the case of the Kentish petitioners in 1701 further solidified the right. Petitioners from Kent, in accordance with the Bill of Rights had petitioned Parliament to appropriate money for the king's war against France. Parliament voted the petition “scandalous” and committed the petitioners to prison. Daniel Defoe courageously attacked the House of Commons, and argued that the freeholders were the masters and superiors of Parliament, forecasting Madison's position on popular sovereignty later in the century. Parliament backed down and voted the funds for the war against France. See generally Maitland, F., The Constitutional History of England 323 (1968)Google Scholar.

14. The Case of the Seven Bishops (1688), in Stephenson, C. & Marcham, F. (eds.), 2 Sources of English Constititional History 585 (rev. ed. 1972)Google Scholar. See generally Smith, G., A Constitutional and Legal History of England 363–66 (1955)Google Scholar; D. Smith, supra note 5, at 41–42.

15. See Rabban, supra note 4, at 828–34; see also R. Bailey, supra note 2, at 23.

16. R. Bailey, supra note 2, at 13–14, 61–62.

17. The Massachusetts Body of Liberties provided: “Every man whether Inhabitant or fforeiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting, and either by speech or writing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.” Z. Chafee, supra note 13, at 124. Both the English Bill of Rights and the 1774 Declaration and Resolves of the Stamp Act Congress had asserted a right to petition the Crown. The latter document, for example, included “the right ‘peaceably to assemble, consider of their grievances, and petition the King,’” and thereby coupled the rights of petition and peaceable assembly that appeared later in the first amendment. See Schwartz, B., The Great Rights of Mankind 37, 64, 87 (1977)Google Scholar.

18. These states were: Maryland (1776); New Jersey (1776); North Carolina (1776); Pennsylvania (1776); Georgia (1777); Vermont (1777, 1786); Massachusetts (1780); New Hampshire (1784). Rhode Island and Connecticut, which continued to use their charters of 1662 and 1663, respectively, also protected the right of petition. The Constitutions of Delaware (1776), New York (1777), and South Carolina (1778), did not contain any protection for the petition right. See D. Smith, supra note 5, at 67–68.

19. The debates over the inclusion of the right to petition reveal very little about why the convention delegates may have regarded the right as important or what the “framers” intended with respect to the substantive meaning of the right. See 4 Schwartz, B., The Roots of the Bill of Rights 762–66, 840–42 (1980)Google Scholar. The text of the petition amendment as originally proposed by Madison stated: “The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.” 1 Annals of Cong. 434 (1789). The congressmen also hotly debated whether to include a provision whereby citizens would “instruct” their representatives. See id. at 757–68. Madison persuaded the House to reject such a clause with these words: “Amendments of a doubtful nature will have a tendency to prejudice the whole system; the proposition now suggested partakes highly of this nature…. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiments by petition to the whole body; in all these ways they may communicate their will.” Id. at 738. See also 5 B. Schwartz, supra, at 1051–52.

20. John Fenno to Joseph Ward, 25 December 1795, folder 5, Correspondence of John Fenno, Chicago Historical Society, quoted in Staff Study, House Comm. on Energy and Commerce, Petitions, Memorials and Other Documents Submitted for Consideration of Congress, March 4, 1789 to December 14, 1795, at 6 (April 1986)Google Scholar.

21. Staff Study, House Comm. on Energy and Commerce, Petitions, Memorials and Other Documents Submitted for Consideration of Congress, March 4, 1789 to December 14, 1795, at 8 (April 1986).Google Scholar

22. 3 Annals OF Cong. 730–31 (1792)Google Scholar. The debate makes clear that the problem was less the form of the petition than its incendiary subject matter. See id.

23. 31 Annals OF Cong. 704 (1819)Google Scholar. For an exhaustive cataloguing of petitions submitted to Congress from 1789 to 1795, see Staff Study, supra note 21.

24. John C. Calhoun was the prime proponent of this view. Calhoun successfully led an effort in the Senate to quash abolition petitions early on. Although he never formally debated John Quincy Adams, the prime defender of the petition right in the House, Calhoun's views serve as a useful counterpoint to Adams's. See 2 The Works of John Calhoun 467, 469 (Cralle, J. ed. 1853).Google Scholar

25. As Adams stated in a letter to his constituents, “Both the [censure] resolutions are mere opinions of a majority of the House, reversible at any day when the majority of the House shall entertain a contrary opinion. It is not competent for the House of Representatives to adjudicate what are and are not the rights secured to the citizens of the United States by the Constitution….” Letters to Constituents, supra note 9, at 40.

26. 12 Cong. Deb. 684, 766 (1836)Google Scholar. Calhoun based this argument on a comparison between the right of citizens to petition and the rights of the Senate to conduct its business:

There must be some point, all will agree, where the right of petition ends, and that of this body begins. Where is that point?… When a petition is presented, it is before the Senate. It must then be acted on. Some disposition must be made of it before the Senate can proceed to the consideration of any other subject. This no one will deny. With the action of the Senate its rights commence—rights secured by an express provision of the constitution, which vests each House with the right of regulating its own proceedings, that is, to determine, by fixed rules, the order and form of its action. To extend the right of petition beyond presentation is clearly to extend it beyond that point where the action of the Senate commences, and, as such, is a manifest violation of its constitutional rights.

Id. at 766.

27. See, e.g., 3 Story, J., Commentaries on the Constitution § 1887 (1833)Google Scholar; 12 Cong. Deb. 2323–25 (1836).Google Scholar

28. One late nineteenth-century view, albeit exaggerated, held that it “would not be extravagant to say that the whole course of the internal history of the United States from 1836 to 1861 was more largely determined by the struggle in Congress over the abolition petitions and the use of the mails for abolition literature than by anything else.” Burgess, J., the Middle Period, 1817–1858, at 274 (1897).Google Scholar

29. Blackstone's restricted view provides an interesting contrast with the perspective on this side of the Atlantic, taken by the American editor of Blackstone's Commentaries, supra note 11. Blackstone offered this description: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.” 5 id. 151–52. The concept of free speech became increasingly viewed in a libertarian way in America in the late eighteenth century. St. George Tucker, on the other hand, denned freedom of speech as follows: “Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical…. Thought and speech are equally the immediate gifts of the Creator, the one being intended as the vehicle of the other….” Id. Appendix, at 11. Although Blackstone's view was dominant, not everyone viewed free speech in this way in eighteenth-century England. See Rabban, supra note 5, at 823–28. For more on the earlier period, see Blasi, supra note 10, at 533.

30. United States v. Cruickshank, 92 U.S. 542 (1876). In this case, white defendants were indicted under the Enforcement Act of 1870 for allegedly abridging the constitutional rights of two black men. Among the purported offenses was an attempt to infringe the rights of peaceful assembly and petition in the first amendment. Although there appears to have been no formal petition, the prosecutor raised the issue because of the defendants' interruption of a meeting by the complainants. The Court construed the first amendment narrowly and linked the peaceable assembly provision with the right to petition as a single attribute of national citizenship that did not apply to the states. Id. at 552. This position followed in the tradition of the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). The Court's narrow readings of these constitutional provisions signaled an unwillingness to extend these rights to the state level, even if at the national level the Court viewed the right to petition as fundamental. See, e.g., In Re Quarles and Butler, 158 U.S. 532, 535 (1895).

31. Thomas v. Collins, 323 U.S. 516, 530 (1945). The Court added that “[t]he right thus to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as part of free speech, but as part of free assembly.” Id. at 532 [citing Hague v. Committee for Industrial Org., 307 U.S. 496 (1939)]. James Madison, for one, would have found this position objectionable. He specifically separated the assembly-petition provisions from the free expression (speech and press) clauses when he proposed his list of amendments on June 8, 1789. See 2 B. Schwartz, supra note 19, at 1026.

32. 341 U.S. 651, 653 (1950). Justices Burton, Douglas, and Black dissented.

33. For Justice Jackson's view, see, e.g., U.S. v. Harriss, 347 U.S. 612, 635 (1954) (Jackson, J., dissenting). In Harriss, the Court upheld congressional reporting requirements under the Federal Regulation of Lobbying Act, 2 U.S.C. §§ 261–270, 60 Stat. 812, 839, against a right of petition challenge. Justice Jackson dissented, arguing that “if this right is to have an interpretation consistent with that given to other First Amendment rights, it confers a large immunity upon activities of persons, organizations, groups and classes to obtain what they think is due them from government.” 347 U.S. at 635.

For Justice Douglas's position, see, e.g., Adderley v. Florida, 385 U.S. 39 (1966) (Douglas, J., dissenting). In Adderley, a group of black youths gathered at the Leon County, Florida, jail to demonstrate against the arrest the day before of their classmates, who were jailed for attempting to integrate public theaters. The demonstrators sang, clapped, and danced to express their protests against the arrests, and more generally, against the segregation in the jail and elsewhere. See id. at 41–42. The sheriff arrested the demonstrators for trespass, and the students defended by claiming an abridgment of their first amendment rights. In a five-to-four decision, the Supreme Court held that the state had not violated the students' rights, because the state “has power to preserve the property under its control for the use to which it is lawfully dedicated.” Id. at 47.

Justice Douglas, dissenting with Chief Justice Warren and Justices Brennan and Fortas, wrote a defense of the right of petition as passionate as any speech by John Quincy Adams. The majority's first error, he noted, was in denying that the “jailhouse, like an executive mansion, a legislative chamber, a courthouse, or the statehouse itself is one of the seats of government.” Id. at 49 (citations omitted). Citing historical authorities and prior first amendment cases, Douglas then defended the demonstrators' actions as a form of petition:

The right to petition for the redress of grievances has an ancient history and is not limited to writing a letter or sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television and radio … may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.

Id. at 49–51. Douglas concluded somberly by noting that “[w]e do violence to the First Amendment when we permit this 'petition for redress of grievances' to be turned into a trespass action.” Id. at 52.

The majority expression is captured well in United Mine Workers of America v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967). But cf, McDonald v. Smith, 472 U.S. 479, 484–85 (1985). Arguing that the “right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression,” id. at 482, the Court rejected the notion that petitioners enjoyed absolute immunity for statements in their pleas. Id. at 484–85. The Court diverged from the position that the right to petition protected no rights outside the right of free speech in Meyer v. Grant, 108 S. Ct. 1886, 1895 (1988).

34. McDonald v. Smith, 472 U.S. 479, 490 (1985) (Brennan, J., concurring). For the similar views of other justices, see, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909–12 (1982); Adderley v. Florida, 385 U.S. 39, 40–42 (1966); Edwards v. South Carolina, 372 U.S. 229, 234–35 (1963).

35. Indeed, the post-1808 period was so quiet that Alice D. Adams described it as the “neglected period of anti-slavery in America.” A. Adams, The Neglected Period of Anti-Slavery in America (1908). The victory of 1808 for antislavery forces did not spark a general movement toward abolitionism, although gradually emancipation sentiment increased. State anti-slavery societies first organized in Pennsylvania and involved many states by 1830. See generally Nye, R., Fettered Freedom 3 (1949)Google Scholar; Howard, W., American Slavers and the Federal Law, 1837–1862 (1963)Google Scholar; Zilversmit, A., The First Emancipation 169–231 (1967).Google Scholar

36. Mann, Horace, “Address to the Boston Young Men's Colonization Society, March 13, 1833,” The Colonizationist and Journal of Freedom (April 1833)Google Scholar, quoted in Weisberger, B. (ed.), Abolitionism: Disrupter of the Democratic System or Agent of Progress? 16 (1963)Google Scholar.

37. Child, Lydia Maria, “Colonization Society and Anti-Slavery Society,” An Appeal in Favor of That Class of Americans Called Africans (1836)Google Scholar, quoted in B. Weisberger, supra note 36, at 28.

38. See Act of July 2, 1836, ch. 43, § 32, 5 Stat. 80; see generally Wiecek, W., The Sources of Antislavery Constitutionalism in America, 1760–1848, at 172–78 (1977).Google Scholar

39. See generally Richards, L., The Life and Times of Congressman John Quincy Adams 3–26 (1986)Google Scholar; Falkner, L., The President who Wouldn't Retire 19–23 (1967)Google Scholar.

40. On October 30, 1826, midway through his presidential term, Adams composed a sonnet to mark his father's birthday. He modestly recorded the poem in code, so that “it may be legible only to myself, or to a reader who will take the trouble to pick it out of the shorthand. If it were better poetry I would have written it at full length”:

Day of my father's birth, I hail thee yet.

What though his body moulders in the grave,

Yet shall not Death th'immortal soul enslave.

The sun is not extinct—his orb has set.

And where on earth's wide ball shall man be met,

While time shall run, but from thy spirit brave

Shall learn to grasp the boon his Maker gave,

And spurn the terror of a tyrant's threat?

Who but shall learn that freedom is the prize

Man still is bound to rescue or maintain;

That nature's God commands the slave to rise,

And on the oppressor's head to break his chain.

Roll, years of promise, rapidly roll round,

Till not a slave shall on this earth be found.

Years later, in extreme old age, Adams wrote out a transcription. Perhaps the years of political loneliness that he endured in the 1830s and 1840s fighting for the right of petition during the course of the abolition debates inspired this small concession to posterity. 8 Memoirs of John Quincy Adams 164 (1875)Google Scholar (October 26, 1826); [hereinafter Memoirs].

41. 8 Cong. Deb. 1426 (1831).Google Scholar

42. 8 Memoirs, supra note 40, at 454–55 (January 9, 1832).

43. Id.

44. U.S. Const., art. I, § 8, cl. 17 states in relevant part: “The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.”

45. See 11 Cong. Deb. 1132–34 (1835).Google Scholar

46. Id. at 1137. One contemporary source described Dickson's speech as throwing “the live coals of truth upon the very nest of abominations.” Slavery in the District of Columbia, 1 The Anti-Slavery Record 31 (1835 & reprint ed. 1970).Google Scholar

47. 11 Cong. Deb. 1140–41 (1835).Google Scholar

48. 9 Memoirs, supra note 40, at 254 (August 14, 1835). See generally Aptheker, H., American Negro Slave Revolts 325–29 (1943)Google Scholar.

49. In ostensibly defending the procedural point that these petitions should be printed, Slade cleverly argued in favor of the prayer. He “knew” these memorials contained the names of “many individuals who had no connexion with abolition societies,… but who, nevertheless, felt deeply impressed with a conviction of the right and the duty of Congress to act upon this subject, and to abolish slavery, and erase from the national escrutcheon the foul blot of the slave trade within the limits of this District.” 12 Cong. Deb. 1962 (1835)Google Scholar. James K. Polk, the Speaker of the House, interrupted to tell Slade that House rules prohibited discussion of the merits of the petition at this time. Polk particularly disliked Slade, not only for his uncompromising abolitionism but also because Slade became a Whig after being elected as a Democrat. As on this day, Polk rarely missed an opportunity to upbraid the Middlebury Representative. Slade responded that in 1828 the House had received a petition signed by more than 1100 citizens of the District of Columbia that “set forth in strong language the evils of slavery, and painted, in vivid colors, the abominations of the slave trade within this territory over which Congress is invested with the right of exclusive legislation.” Id. He added that the 1828 petition, which articulated “a correct judgment with regard to the evils of which they complained,” spoke of slavery in “stronger language than that which was employed in the memorial which he now asked the House to print.” Id. at 1963.

50. Id. at 1966.

51. See Standing Rule No. 45, cited in 13 Cong. Deb. 1318 (1837)Google Scholar: “Petitions, memorials, and other papers addressed to the House, shall be presented by the Speaker, or by a member in his place; a brief statement of the contents thereof shall verbally be made by the introducer, and shall not be debated or decided on the day of their being first read, unless where the House shall direct otherwise, but shall lie on the table, to be taken up in the order in which they were read.”

52. 12 Cong. Deb. 1966–67 (1835).Google Scholar

53. See Letters to Constituents, supra note 9, at 5–6. Adams explained that: “The practical result to the petitioner was the same. The freedom of speech in the House was equally denied to the members presenting the petition, to support, by argument, its prayer. But the slaveholder denied the right of Congress to receive the petition. His northern auxiliary receives the petition, and lays it on the table, to be taken up when the time shall serve, but in the meantime refuses to hear it read. The slaveholder would strip Congress of the power. The northerner holds it in reserve. This distinction may hereafter prove to be a difference.”

54. 12 Cong. Deb. 1988 (1835).Google Scholar

55. Id. at 1990.

56. See id. at 1980 (Beardsley); id. at 1981–82 (Vanderpoel); id. at 1988–89 (Hunt).

57. Id. at 1996.

58. Id. (Hammond); id. at 2000 (Patton).

59. Id. at 2000–01.

60. Id.

61. See Bemis, S., John Quincy Adams and the Union 335 (1965)Google Scholar.

62. 12 Cong. Deb. 2002 (1835).Google Scholar As Adams exclaimed at one point in the speech:

Well, sir, you begin with suppressing the right of petition; you must next suppress the right of speech in this House; for you must offer a resolution that every member who dares to express a sentiment of this kind shall be expelled, or that the speeches shall not go forth to the public—shall not be circulated. What will be the consequence then? You suppress the right of petition; you suppress freedom of speech; the freedom of the press, and the freedom of religion; for, in the minds of many worthy, honest, and honorable men, fanatics, if you please so to call them, this is a religious question….

Id.

63. Id. at 2006.

64. Id. at 2010 (citation omitted from original).

65. Id. at 2043.

66. Adams, Letters to Constituents, supra note 9, at 5. See also S. Journal, 25th Cong., 2d Sess. 136–37 (1838).

67. See supra notes 21–23 and accompanying text.

68. The Constitution invests Congress with “exclusive jurisdiction” over the District of Columbia. Southerners obstinately argued that Congress must respect states' rights in its legislative function, behave like the states in performing its local duties, and compensate for expropriation of property only from local funds. On this last point, Henry Wise brilliantly trapped the northern emancipators in Congress. Congress could not free slaves in the District without compensating their owners, but because this was a local, not a national action, Congress could not rely on national revenues to pay slaveholders. For the full text of Wise's arguments, see 12 Cong. Deb. 2030–31 (1835).Google Scholar

69. For Adams, a fine line distinguished the right of petitioners to send their grievances to Congress and have them received, and to expect Congress to act on pleas that affected concerns outside the mover's constituency. He explained his position in a letter to Alexander Hayward of Rhode Island in October 1835: “I do not think it just or generous that you should be the Petitioner to impair their right of property and not your own. The Inhabitants of the District of Columbia have a right to petition the Legislature of Rhode Island to pass a law for taxing you and your estate, what would you think of such a petition?” JQA to Alexander Hayward, Jr., Coventry, Rhode Island, October 2, 1835, Adams MS, 152, John Quincy Adams Letterbook 251. To Isaac Sanborn, a member of the Society of Friends, Adams was even more explicit: “That Congress has the power Constitutionally to abolish slavery in the District of Columbia I have no doubt,” but they should not “exercise it upon the petitions from the Inhabitants of States where Slavery does not exist. It seems to me contrary to natural justice that laws should be passed affecting the rights and interests of one class of men upon the petition of another not to be affected themselves by the Operation of Law.” JQA to Friend Isaac Sanborn, Avondale, Pennsylvania, October 2, 1835, Adams MS, 152, Letterbook, id., at 252. See generally Bemis, supra note 61, at 331. Adams could thus view slavery as an illegitimate reason for imposing the gag rule.

70. 12 Cong. Deb. 2135 (1836)Google Scholar.

71. Henry Wise offered an amendment that called on Congress to affirm that “there is no power of legislation granted by the constitution” for Congress to “abolish slavery in the District of Columbia,” and that any attempt to do so “will not only be unauthorized, but dangerous to the Union of the States.” Id. at 2136. Glascock went one further, adding an amendment that attacked the petitioners: “Resolved, That any attempt to agitate the question of slavery in this House is calculated to disturb the compromises of the constitution, to endanger the Union, and, if persisted in, to destroy, by a servile war, the peace and prosperity of the country.” Id. at 2137.

72. Id. at 2316.

73. Id. at 2318–19. Adams never responded to this argument, and it is unclear whether Jefferson believed that a petition should be rejected for lack of a second.

74. Id. at 2326.

75. Id. at 2450.

76. See W. Wiecek, supra note 38, at 202.

77. 12 Cong Deb. 2483.

78. Id. at 2496.

79. The House voted to divide Pinckney's resolution into three parts:

1. Resolved, That all the memorials which have been offered, or may hereafter be presented, to this House, praying for the abolition of slavery in the District of Columbia, and also the resolutions offered by an honorable member from Maine [Jarvis], with, the amendment thereto proposed by an honorable member from Virginia [Wise], and every other paper or proposition that may be submitted in relation to that subject, be referred to a select committee.

2. With instructions to report that Congress possesses no constitutional authority to interfere in any way with the institution of slavery in any of the States of this confederacy.

3. And that, in the opinion of this House, Congress ought not to interfere in any way with slavery in the District of Columbia, because it would be a violation of the public faith, unwise, impolitic, and dangerous to the Union.

Id. at 2498. Wise expressed his anger at Pinckney by declaring that a Southern Representative should have been responsible for the resolution “is astonishing, and he hissed him and spurned him as a deserter from the principles of the South.” See id. at 2533.

80. Id. at 3756. The committee's findings were unanimous although Benjamin Hardin, the stubborn Kentucky Whig, had “declined to attend or take part in its proceedings.” Id. at 3757.

81. Id. at 3757–58. The committee contended that two factors influenced Congress's power over slavery in the District of Columbia: The national objects of the original act of cession (especially tranquillity in the District) and whether slavery in the tenmile strip would have been altered by Maryland and Virginia if cession had not been granted. On both counts, the committee felt that abolition was inappropriate. The committee concluded: “It follows conclusively, therefore, that Congress, as the local legislature of the District, and acting independently of the national considerations connected with its powers over it, is bound, for the preservation of the public faith, and the rights of all the parties interested, to act upon the same reasons, and to exercise the same paternal regard, which would have governed the States by which the District was ceded to the Federal Government.” House Report No. 691, “Slavery in the District of Columbia,” 24th Cong., 1st Sess., at 10 (May 18, 1836).

82. 12 Cong. Deb 4052 (1836).Google Scholar

83. Id. at 4053.

84. Barnes, G., The Antislavery Impulse: 1830–1844, at 114 (1933).Google Scholar

85. W. Wiecek, supra note 38, at 184. For its part, the Senate avoided the flood of petitions. The Senate adopted a tabling procedure that effectively frustrated the efforts of abolitionists to incite debate in that body. Although statewide antislavery constituencies gradually built up, northern senators may well have felt less electoral pressure to advance the emancipation cause. Moreover, immediatist abolitionists and moderate antislavery activists perhaps also realized that they had no champion in the Senate on a par with John Quincy Adams in shielding their substantive position with an array of constitutional and procedural arguments. Accordingly, abolition committees sent the vast majority of their petitions to the lower body, and emphasized their political action efforts in the Senate much less strongly.

86. Barnes appears to be making this argument. See G. Barnes, supra note 84, at 116–17.

87. Id. at 116.

88. See 11 Cong. Deb. 1136 (1835).Google Scholar John Dickson of New York described in this 1835 speech a petition presented in 1828 by “more than 1000 respectable citizens of the counties of Alexandria and Washington” who petitioned for the abolition of slavery in the District of Columbia. Id. This petition represents the only petition of this period submitted by citizens of the District of Columbia.

89. Although the modern reaction to such a situation might be to initiate litigation, such a step was hardly contemplated in the mid-1830s. First, judicial review was still in its nascent stages—Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), served as a controversial example of the power—and few potential litigants could have imagined the lengths to which assertions of rights might later be made. Moreover, by 1836, the Supreme Court was dominated by southerners or Democrats, who could hardly be sympathetic to northern assertions of congressional abridgments of constitutional rights. Finally, even if abolitionist litigants successfully brought a claim, the court would be hard-pressed to issue a remedy. A writ of mandamus to Congress would have been without precedent, and it would be difficult for a court to issue a specific order to Congress for a continuing “violation.” In earlier situations where the king of England or Parliament had suppressed the right of petition, petitions themselves were used to overturn the decision. See Smith, supra note 3, at 1163–64. The petitioners themselves may not have believed it possible to sue Congress for this infringement.

90. The Cincinnati Philanthropist, December 2, 1836, quoted in R. Nye, supra note 35, at 36.

91. See R. Nye, supra note 35, at 37. Although the annexation of Texas as a territory was not in itself problematic, the fact that it permitted slavery meant that many abolitionists feared its inclusion into the Union would raise the total of slave states. See S. Bemis, supra note 61, at 365.

92. W. Wiecek, supra note 38, at 184; see also Wiecek, W., Constitutional Development in a Modernizing Society 20–25 (1985).Google Scholar

93. W. Wiecek, supra note 38, at 202.

94. 9 Memoirs, supra note 40, at 302 (July 9, 1836). Abolitionists occasionally threatened Adams with their opposition, an example of which can be found in 10 Memoirs, supra at 39 (November 10, 1838).

95. Adams, , The Diary of John Quincy Adams 493 (ed. Nevins 1951) (January 28, 1838).Google Scholar

96. 13 Cong. Deb. 1156–57 (1836).Google ScholarSee J. Adams, Diary, supra note 95, at 485 (October 10, 1837).

97. See id. at 1156–57. The resolution called for “all petitions, memorials, resolutions, propositions, or papers, relating in any way, or to any extent whatever, to the subject of slavery, or the abolition of slavery, shall, without being either printed or referred, be laid upon the table, and that no action whatever shall be had thereon.” 13 Cong. Deb. 1411 (1837).Google Scholar Frustrated at the tabling and nonreception devices used to thwart his presentation of petitions, on January 9, 1837, Adams began to read a petition that called for abolition of slavery in the District of Columbia. Cries of “Order, Order,” filled chambers. Upon a query whether the rules permitted members to read petitions, Polk ruled with a firm hand. “[I]t was not in order for a member to read a petition, whether it was long or short"; he could only make “a brief statement of the contents.” Id. at 1318. Adams replied that he had never heard of such a thing—“that a member of the House should not have the power to read what he chose.” Id. He noted the absurdity of the rule, because his “brief statement of the contents” was so short, “that to read the petition in its own language was the briefest statement that could be made.” Id. at 1319; see also id. at 1425.

98. See id. at 1318.

99. See, e.g., id. at 1432. Polk's position and the opposition of the southern contingent to the right of petition helped to focus public attention on the slavery issue. Even state legislatures criticized the Congress. On April 12, 1837, for example, the Massachusetts legislature passed resolutions by a large majority contending that “such disposition of petitions was a virtual denial of the right itself.” See Whipple, L., The Story of Civil Liberty in the United States 116 (1927)Google Scholar (reprint ed. 1970).

100. John C. Calhoun, Calhoun Papers, 2 Reports of the American Historical Association 513 (1899)Google Scholar; Cong. Globe, Appendix 97 (28th Congress, 1st Sess.); G. Barnes, supra note 84, at 124.

101. 13 Cong. Deb. 1586–87 (1837).Google Scholar Adams frankly explained his purpose in a published letter to his constituents: “One of the gross absurdities of the [gag] resolution, as administered by the Speaker, was, that every paper relating to slavery… should, without being read, be laid on the table…. [O]ne of my purposes in putting this question to him was to expose the absurdity in its uncoverable nakedness.” Letters to Constituents, supra note 9, at 8–9.

102. See e.g., 13 Cong. Deb. 1587 (1837)Google Scholar (statement of Dixon Lewis); id. at 1590 (statement of Waddy Thompson); see also id. at 1590, 1593.

103. Id. at 1594–95 (emphasis added). Adams was particularly critical of Polk for permitting these resolutions, which Adams regarded as violations of freedom of speech. With a rhetorical flourish, he wrote to his constituents: “If such a question as I asked of the Speaker is a direct invitation of the slaves to insurrection, forfeiting all my rights as a representative of the people, subjecting me to indictment by a grand jury, to conviction by a petit jury, and to an infamous penitentiary cell—I ask you not what freedom of speech is left to your representative in Congress, but what freedom of speech, of the press, and of thought, is left To You?” Letters to Constituents, supra note 9, at 13.

104. 13 Cong. Deb. 1599 (1837).Google Scholar

105. Id. at 1601, 1612. John Robertson heartily agreed with Dromgoole, and spoke for many when he declared that southerners will never “surrender one jot or tittle of our constitutional rights upon this subject.” Id. at 1619.

106. Id. at 1623, 1627.

107. Id. at 1630 (statement of Congressman William J. Graves of Kentucky).

108. The Editor's Note to Adams's Letters to Constituents explained why Adams faced such uncertainty in this struggle: “John Quincy Adams belongs to neither of the prominent political parties, fights no partisan battles, and cannot be prevailed upon to sacrifice truth and principle upon the altar of party expediency and interest. Hence, neither party is interested in defending his course, or in giving him an opportunity to defend himself.” See Letters to Constituents, supra note 9, at 3; see also 13 Cong. Deb. 1655–57 (1937).Google Scholar

109. 13 Cong. Deb. 1663 (1837).Google Scholar

110. 13 Cong. Deb. 1668–69 (1837).Google Scholar Adams described Patton in a letter to his constituents as “one of the ablest, most independent, and most rational of the slaveholding members,” and respected Patton for attempting “to divert the torrent of their wrath into another channel.” See Letters to Constituents, supra note 9, at 11. Nevertheless, an earlier resolution by Patton stated that any member who presented such a petition [from slaves] “ought to be considered … an enemy of the Union.” Id. at 23. In a letter to his constitutents, Adams observed that this resolution directly conflicted with the Constitution, because the Constitution “declares that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” But here Patton presented a resolution that a member ought to be considered an enemy “for presenting a petition.” Id. at 24.

111. See id. at 1593 (Lewis); id. at 1597 (Thompson); id. at 1627 (Bynum).

112. Id. at 1674.

113. Id. at 1674. He impishly noted that Patton had objected to his presentation of a memorial from nine colored females. “That, sir, is giving color to an idea with a witness!” Id. at 1675.

114. Id. at 1684–85. Adams left no record of his private thoughts concerning the affair. Presumably shocked that it should occur at all and relieved at its outcome, he went about his business, pledging to uphold the right of petition and fighting subsequent efforts to choke it.

115. In this episode, Adams presented a petition calling for the dissolution of the Union. The petition caused a storm in the House, and after nearly two weeks of debating procedures to deal with the petition and earning the wrath of public and press alike, Congress abandoned its censure motion of Adams. See generally 7 McMaster, J., History of the People of the United States 52–54 (1910)Google Scholar; S. Bemis, supra note 61, at 347.

116. The Creole mutiny occurred during the voyage of an American coastal slave trading ship carrying slaves from Virginia to New Orleans. The slaves mutinied outside the territorial waters of Virginia and sailed the ship to the Bahamas, where the British authorities detained some of the mutineers suspected of murder, and set the rest free. The incident naturally caused a storm in the United States, and provided much fuel for the antislavery theories being advanced by abolitionists. See generally W. Wiecek, supra note 38, at 214–36.

117. Giddings's resolutions stated in pertinent part:

That slavery being an infringement of the natural rights of man, can exist only by force of positive municipal law, and is necessarily confined to the territorial jurisdiction of the power creating it.

That when the brig Creole, on her late passage for New Orleans, left the territorial jurisdiction of Virginia, the slave laws of that State ceased to have jurisdiction over the persons on board said brig, and such persons became amenable only to the laws of the United States.”

11 Cong. Globe 342 (1842).Google Scholar

118. The vote was 125–69 for a resolution that stated in relevant part:

And whereas it is the duty of every good citizen, and particularly every selected agent and representative of the people to discountenance all efforts to create excitement, dissatisfaction, and division among the people of the United States at such a time,…

Resolved, That this House holds the conduct of the said member as altogether unwarranted, and unwarrantable, and deserving the severe condemnation of the people of this country, and of this body in particular.

11 Cong. Globe 343 (1842).Google ScholarSee generally W. Wiecek, supra note 38, at 215; Julian, G., The Life of Joshua R. Giddinos 126–28 (1892).Google Scholar

119. As Nye points out, “Since the total number of abolition society members was no more than 100,000, it was clear that the signers included many who were not abolitionists, but who, as defenders of the right to petition, probably were persuaded to join the abolitionists in their campaign.” R. Nye, supra note 35, at 47.

120. See supra note 60 and accompanying text.

121. It is worth noting how little help Adams received in this effort from free-state congressmen. In 1836, 82 of 117 “aye” votes on Pinckney's resolutions came from free-state members, 49 of 126 in 1839 for Atherton's gag, and 28 of 114 in 1840 for Johnson's, which became a standing rule by a 114 to 108 vote. See NYE, supra note 35, at 53n. Adams noted in a speech that the southern contingent had caucused separately to determine its strategy for the gag resolutions, and had, in effect, determined legislative policy outside the presence of northerners. See Speech of John Quincy Adams Upon the Right of the People, Men and Women, to Petition; On the Freedom of Speech and Debate 7–8 (1838).Google Scholar The 1840 gag rule was also stricter than the prior resolutions. The House rule of 1836 provided for automatic tabling, without printing or reference. The 1840 standing rule did not permit the reception of slavery petitions. See Cong. Globe 150 (1840).Google ScholarSee generally Fehrenbacher, D., The Dred Scott Case 121 n. 16 (1978).Google Scholar

122. See 14 Cong. Globe 7 (December 3, 1844)Google Scholar. For an interesting treatment of the political dynamics of the repeal, see L. Richards, supra note 39, at 175–78. Several months later, Adams received an ivory cane with the inscription, “Right of Petition Triumphant.” Underneath, Henry Ellsworth, the Commissioner of the Patent Office, added a gold plate with a special tribute to Adams: “To John Quincy Adams, Justum et Tenacem Propositi Virum.” (“A just and firm man of purpose”) See Diary, supra note 95, at 575 (March 13, 1845).

123. See, e.g., 14 Cong. Globe 18 (December 10, 1844).Google Scholar

124. Sarah Grimke applauded his efforts to secure for women the right of petition but regretted his opposition to abolition in the nation's capital, calling it a “surrender of moral principle to political expediency.” Sarah Grimke to JQA, June 8, 1837, Adams MS, quoted in S. Bemis, supra note 61, at 349. Lewis Tappan asked why Adams resisted what he believed: “If slavery is a sin, its immediate abolition is a duty.” Lewis Tappan to JQA, February 15, 1837, quoted in id.

125. See G. Barnes, supra note 84, at 125.

126. See, e.g., W. Wiecek, supra note 38, at 213–14; see also D. Smith, supra note 5, at 94–95.

127. See McMaster, R., A History of People of the United States During Lincoln's Administration 250–51 (1927)Google Scholar (citing Act of June 19, 1862). On Adams's prediction, see S. Bemis, supra note 61, at 336.

128. See supra notes 20–23 and accompanying text.

129. See supra note 22 and accompanying text.

130. Population pressures might have led to the transformation of the petition practice in any event. By the 1830s, the country had grown too large to occupy Congress with the number of petitions being submitted. But rather than choke off the right, Congress might well have adopted an alternate means of consideration like the British Parliament, or created separate tribunals for their consideration, as it did eventually with courts of claims and suits brought against the United States. See generally Schuck, P., Suing Government (1983).Google Scholar