Texas Law Review

June, 1990

Symposium on the Texas Constitution


Robert E. Hall [FNa]

Copyright 1990 by the Texas Law Review Association; Robert E. Hall

This old anvil laughs at many broken hammers.

. . . .

In the darkness with a great bundle of grief the people march.

In the night, and overhead a shovel of stars for keeps, the people march:

‘Where to? what next?’

–Carl Sandberg, The People Will Live On [FN1]

I. Introduction

Few people have heard of remonstrance. Even fewer realize that it is a right granted to each Texas citizen. The Texas Constitution provides: “The citizens shall have the right, in a peaceable manner, to . . . apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.”‘ [FN2] Standard treatises and dictionaries define remonstrance as a self-help remedy against a hasty and unresponsive government. One dictionary defines remonstrance as ” e xpostulation; showing of reasons against something proposed; a representation made to a court or legislative body wherein certain persons unite in urging that a contemplated measure be not adopted or passed.”‘ [FN3] A remonstrance is also defined as a “‘petition to a court or deliberative or legislative body, in which those who have signed it request that something which is in contemplation to perform shall not be done.”‘ [FN4]

The Texas Constitution, unlike the first amendment to the United States Constitution, which refers only to the right to petition for “redress of grievances,”‘ [FN5] grants Texas citizens the right of “petition, address or remonstrance.”‘ [FN6] If one assumes that the framers of the Texas Constitution *1410 were not guilty of redundancy and were using words with some care, the right of remonstrance must mean something different from the right of “address”‘ or “petition.”‘ [FN7]

The distinction is significant because of the narrow construction sometimes given to the right of petition, classifying it as an unilateral process of communication by citizens to government concerning some matter–an effort to initiate some new action or elicit some new remedy for a grievance. [FN8] In this Paper I contend that the right of remonstrance is a right to some kind of dialogue with government. [FN9] I submit that reducing the right of remonstrance to the submission of protests to heedless governors, like shoving them under an iron door, is contrary to the intentions of the patriots from whom citizens have inherited this right.

The right of remonstrance protected by article I, section 27 of the Texas Constitution was much prized and vigorously used by the liberty-loving men who wrested it and other instruments of freedom from Antonio Lòpez de Santa Anna. After serving as legal justification for the revolutions that yielded the Republic of Texas, the remonstrance lay idle for 150 years, like Rip Van Winkle’s “old firelock . . . the barrel incrusted *1411 with rust, the lock falling off, and the stock worm-eaten.”‘ [FN10]

In 1983, some college professors at a state school in El Paso filed a remonstrance to protest a pending proposal by their employer’s board of directors to abolish faculty tenure. [FN11] The directors, reacting in the usual manner of government officials to anything unfamiliar, ignored the remonstrance. [FN12] The professors sued to enforce their rights. [FN13] The busy trial judge, apparently as impatient with novelty as the college directors, ruled that the Professors’ pleadings stated no cause of action. [FN14]

The El Paso Court of Appeals reversed. [FN15] The court declared that a remonstrance must not be ignored, [FN16] concluding that a remonstrance must be “considered,”‘ but refused to require that the government agency “negotiate or even respond”‘ to the authors of the remonstrance. [FN17] Justice Osborn, instead of adopting some eloquent phrase of Adams, Franklin, or Paine, echoed his grade-school teachers’ warnings about crossing streets, or perhaps subconsciously recalled a slogan about railroad crossings. The court equated the citizens’ right of remonstrance to an enforceable demand that “those trusted with the powers of government . . . stop, look and listen.”‘ [FN18]

In a second opinion, on a motion for rehearing, the court elaborated by consulting three sources defining “consider,”‘ all of which stressed that the term implies some degree of serious contemplation. [FN19] The court *1412 wrote, with some apparent hope, “in most instances a deliberating body will by its conduct show whether it has or has not ‘considered’ a petition, address or remonstrance presented to it.”‘ [FN20] But the court refused to acknowledge that the remonstrants had any right to a response from the government. The court found “no requirement that those trusted with the powers of government must negotiate or even respond to complaints filed by those being governed.”‘ [FN21]

The history of remonstrance demonstrates that the El Paso court’s decision that remonstrants are entitled to good-faith consideration of their complaints is fully justified by the events which led to the inclusion of remonstrance as a fundamental right in the Texas Constitution. But the El Paso court failed to do enough. History demonstrates that the court erred by requiring only thoughtful consideration without also requiring some kind of reasoned response.

II. The Texas Experience with Remonstrance

A. The Role of Stephen F. Austin

In 1820, Moses Austin persuaded Antonio de Martinez, the Governor or Texas, to forward Austin’s application to establish a colony to the commandant general of the Eastern Interior Provinces, of which Texas was a part. [FN22] The Eastern Provinces were then a part of Spain’s Mexican colony. The general granted Austin’s application and gave Austin permission to settle 300 families in Texas. Moses Austin died a few weeks later and his son, Stephen F. Austin, took responsibility for implementing his father’s plan. [FN23]

The first group of immigrants arrived in November 1821 and established a tiny settlement on the Colorado River at the crossing of La Bahia road, near the present town of Columbus. [FN24] In December, the sailing vessel Lively deposited another group of settlers at the mouth of the Brazos River. [FN25]

Meanwhile, the Mexican Government was floundering through successive*1413 revolutions. [FN26] On February 24, 1821, Augustin Iturbide declared Mexico’s independence from Spain pursuant to the Plan of Iguala. [FN27] That plan offered the throne of Mexico to Ferdinand VII of Spain or to any other member of the Spanish royal family. [FN28] General Juan O’Donajù, the highest Spanish authority in Mexico, had provisionally ratified this offer in the Treaty of Còrdova. [FN29] The Spanish Government, however, subsequently rejected the plan. [FN30] A period of confusion followed, during which the country was governed, first, by a Congress; then by Iturbide, who was designated as Generalissimo; again by Iturbide, as emperor declared by the Congress; next by a commission of three generals, after Iturbide abdicated; and finally by Iturbide, who was restored as emperor when he agreed to rule subject to the provisions of a written constitution. [FN31]

During this turbulence, Stephen F. Austin was in Mexico City securing confirmation of his father’s permission to establish a Texas colony and obtaining legal authority to administer law and order once the colony was populated. [FN32] While there, he offered assistance to those trying to construct a constitutional government for Mexico. [FN33] Those suggestions offer the first evidence of Austin’s theory of government. Austin declared that “‘all Government of right originates from the people, is founded in consent, and is instituted for the general good.”DD” [FN34] He referred to a popularly ratified constitution as “the foundation, the soul of all free political institutions”‘ and recommended that such a constitution *1414 must include an “inviolable guarantee of liberty of speech.”‘ [FN35]

Austin finally obtained legal sanction for his colony and returned to Texas in the summer of 1823. [FN36] In 1824, the Mexican Government adopted a constitution. [FN37] This constitution combined Texas and Coahuila into one territory administered as three departments: Bexar, which comprised all of present-day Texas, Monclova, and Saltillo. [FN38] Within each department, an ayuntamiento–composed of an alcalde (an official like our mayor, but who also exercised both criminal and civil judicial authority), regidores (a council composed of no more than twelve persons appointed for life) and sindicos (trustees charged with the care, defense, and advancement of the interests of a community)–governed each town. [FN39]

The joinder of Texas to Coahuila caused dissatisfaction among the Texas colonists, who felt that their interests were overshadowed by those of the more populous parts of the territory. [FN40] The colonists also believed that the seat of the territorial government in Saltillo was too far from their colony to be sensitive to their needs. [FN41] They were alarmed when the Mexican Government, apprehensive about the flood of Anglo immigration, enacted a law that prohibited further entry of colonists from the United States. [FN42]

On October 1, 1832, representatives from sixteen Texas towns met at San Felipe de Austin, elected Austin as presiding officer, and dispatched a statement of colonial grievances to the Mexican Government. [FN43] The ayuntamiento of Bexar did not participate because of local political concerns, but they assured Austin that they were in accord with the objectives announced at the meeting. [FN44]

On December 3, 1832, Austin went to San Antonio to persuade the *1415 Bexar ayuntamiento to address the colony’s grievances in writing. [FN45] Austin wrote a note to his personal secretary discussing his efforts:

The object is to form a list of all the insults offered to Texas, and all her grievances and to demand full satisfaction. . . .[If I succeed] in getting this [ayuntamiento] to [pass] this remonstrance as I have proposed and as was agreed to in the conference yesterday, it will place Texas on much better ground than to go into the measure now, and it will unite this place and La Bahia firmly with the balance of Texas, for they will be so compromised that there will be no backing out, even if they wished to do so, which they will not, for they are as anxious for a separation as we are, but wish to show to the world that they are right and stand on just ground in case force must ultimately be resorted to. [FN46]

Austin was trying to prevent Texas from breaking away from Mexico, but he was also committed to securing a remedy for the problems that the Texas colonists faced. D.W. Anthony, editor of the Brazoria Advertiser, wrote to Austin about what he perceived as Austin’s inconsistency. He wrote that he did not “see much harmony in the design of a remonstrance”‘ [FN47] directed to the Mexican Government, from which the remonstrants were preparing to declare their independence. [FN48]

The colonists convened a second convention at San Felipe de Austin on April 1, 1833. [FN49] Austin drafted an address to those present at the convention. [FN50] In it he announced the right of Texans to communicate directly with the government:

The right of the people of Texas to represent their wants to the government, and to explain in a respectfull (sic) manner the remedies that will relieve them cannot therefore be doubted or questioned. It is not merely a right, it is also a sacred and bounden duty which they owe to themselves and to the whole Mexican nation, for should evils of great and desolating magnitude fall upon Texas for the want of competent remedies, the people here would have cause to accuse themselves of neglect for not making an effort to procure such remedies, and the government would also have cause to complain, that a full and frank and timely representation had not been made and a remedy solicited. [FN51]

In that same communication, Austin stated that “[t]he general neglect of the state Legislature of all the important interests and rights of *1416 Texas and their repeated violations of the constitution are very clearly and energetically set forth in the Bexar remonstrance of last December.”‘ [FN52] Austin’s efforts to solve the colony’s problems with the Mexican Government show that he frequently relied on remonstrance as a method of persuasion. More importantly, his statements reveal his assumption that a remonstrance required a response by the solicited government.

B. Remonstrance and the Drafting of the Texas Constitution

Sam Houston, a close friend of President Andrew Jackson, came to Texas in 1832, after serving as Governor of Tennessee and as a member of Congress. [FN53] He was a delegate to the second convention in Texas and chairman of the committee that drafted the first Constitution of Texas. [FN54] Predictably, given the circumstances surrounding the convention, the “Proposed Constitution for the State of Texas”‘ included the following provision: “The people have a right to assemble together, in a peaceable manner, for their common good: to instruct their representatives and to apply to those invested with the powers of government, for redress of grievances, or for other proper purposes, by address or remonstrance.”‘ [FN55] This proposed constitution was not intended for an independent country. Instead, a premise of the proposed constitution was that Texas separate *1417 from Coahuila and become an independent Mexican state. [FN56] Austin took the proposal to Mexico City and presented it to Valentin Gomez de Farias, who was then head of the Mexican Government. [FN57] Although the separate-state proposal was not accepted, Austin did obtain some significant concessions, including a suspension of the law barring further immigration from the United States, the right of trial by jury for the colonists, and relief from some of the new taxation. [FN58]

Farias was concerned that the concessions might not placate Austin’s colonists. Austin had warned that, unless steps were taken to alleviate the Texans’ problems, there would be a move for total independence. [FN59] Farias perceived this warning as a threat. [FN60] Austin wrote a letter to the ayuntamiento at Bexar and asked that they contact the other towns and prepare some orderly arrangement for government in case a serious move for independence emerged. [FN61] Mexican government officials intercepted the letter, and Farias, concluding that Austin was guilty of treason for plotting to withdraw Texas from Mexico, had him arrested and jailed. [FN62] Austin remained in jail for eighteen months without a trial, [FN63] spending much of the time in solitary confinement. [FN64]

In 1835, after Austin’s release from prison and return to Texas, he wrote an Explanation to the Public Concerning the Affairs of Texas, By Citizen Stephen F. Austin, in which he offered his interpretation of these episodes. [FN65] He expressed outrage at the Mexican authorities’ accusations that he and the other Texans were trying to create an excuse for withdrawing from Mexico. [FN66] He insisted that he and the other delegates, in drafting and presenting the results of the second convention at San Felipe de Austin to the central government, had been trying to negotiate some way to remain a part of Mexico. He wrote:

No force was employed. Popular elections were held to name agents and commissioners. And for what purpose? In order respectfully and in a fitting and peaceable manner to present to the general government the needs of the people.

*1418 This is indeed a right of petition which belongs to every free people and is an essential part of the republican system, because it is born of the fundamental principle that the will of the people forms the safest standard to guide the deliberations of public agents, and that this will ought to be expressed in the simplest and most direct manner, not by means of insurrections, clash of arms, threats, nor with lack of respect. [FN67]

Austin, however, had little time to make amends with the Mexican Government. Before Austin could make additional efforts toward peace, Texas and Mexico were at war. Three weeks after Austin returned to Texas, General Còs landed 400 troops at Copano. [FN68] The first battle of the revolution was fought at Gonzalez, where, on October 2, 1835, a small band of Texans (called the Minute Men of Texas) opened fire with a twelve-pound cannon on 100 of Còs’s Mexican cavalrymen, who fled toward San Antonio. [FN69] Ben Milam, in December 1835, led a volunteer army of Texans into San Antonio, defeated Còs’s troops, and expelled Còs from Texas. [FN70]

On November 3, 1835, a month before Milam’s action in San Antonio, but after the Gonzalez skirmish, delegates assembled at San Felipe de Austin for a third convention. [FN71] Like the Second Continental Congress at Philadelphia in 1775, their task was to announce a justification for a war already in progress. Like that Congress, they were not then prepared to declare their independence from Mexico. [FN72] Indeed, when the question “‘all in favor of a declaration of independence will say aye,”DD” was proposed, “the vote was fifteen ayes and thirty-three noes.”‘ [FN73] The delegates contented themselves with a declaration that read:


Whereas, General Antonio Lopez de Santa Anna, and other military chieftains, have, by force of arms, overthrown the federal institutions of Mexico, and dissolved the social compact which existed between Texas and the other members of the Mexican confederacy; now the good people of Texas, availing themselves of their natural rights.


1st. That they have taken up arms in defence of their rights and *1419 liberties . . . . [FN74]

Then, in eight numbered paragraphs, the delegates declared their intention to defend their rights under the Mexican Constitution of 1824. [FN75]

In response to Milam’s action, Santa Anna invaded Texas with an entire army. [FN76] San Antonio was evacuated except for a small force of less than 200 men, led by William Travis, who defended an old mission, San Antonio de Valero, from February 23 until March 6, 1836, when the Alamo fell and the last man was slain. [FN77] Five days earlier, fifty-eight delegates had convened at Washington-on-the-Brazos. On March 2, 1836, the delegates declared that Texas was independent from Mexico. [FN78] The first paragraph of their declaration concluded with a reference to the Mexican Government’s refusal to respond to earlier petitions and remonstrances:

When, long after the spirit of the Constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the Constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to enforce a new government upon them at the point of the bayonet. [FN79]

When the delegates adopted this declaration on March 2, 1836, they knew that Santa Anna and two thousand Mexican troops were besieging the Alamo at San Antonio de Bejar. [FN80] Thirteen days later, on March 15th, the delegates learned that the Alamo had fallen and that the Mexican army was headed east. [FN81]

The delegates hastily [FN82] retreated to a safer location–Bradshaws, *1420 about 40 miles from Nacogdoches–where they completed the formation of an interim government. [FN83] On March 20th, the government moved south to Harrisburg (now a part of Houston) “on Buffalo Bayou.”‘ [FN84]

On April 21, 1836, a few miles south of Harrisburg in the salt marshes bordering San Jacinto Bay, Sam Houston, with his back to the Gulf of Mexico, turned his ragged band of Texans to face Santa Anna’s army. There, as a fife whistled a popular song, “Won’t You Come to My Bower,”‘ the Texans routed the Mexican army, captured Santa Anna, and validated their claims to independence. [FN85]

In 1845, after nine years as a free country, Texas joined the United States and adopted its first state constitution. [FN86] The first Constitution, and every one of its successors, has guaranteed the right of remonstrance to all Texas citizens. [FN87]

The 1845 convention was convened on July 4. [FN88] Sam Houston was in Nashville, where he had gone to be with his friend, Andrew Jackson, during Jackson’s last illness. [FN89] Jackson died June 8, 1845, but Houston had not yet returned to Texas. [FN90] Thomas J. Rusk, who had held several offices in the Republic, including Chief Justice of the Supreme Court, [FN91] was elected President of the Convention. [FN92] One native Texan, Jose Antonio Navarro, was among the delegates. [FN93] The remaining delegates *1421 were from Tennessee (18), Virginia (8), Georgia (7), Kentucky (6), North Carolina (5), and other locales “scattered through the Union and Great Britain.”‘ [FN94]

Rusk appointed Isaac Van Zandt to chair the committee on “General Provisions,”‘ which included the Declaration of Rights. [FN95] Van Zandt was originally from Mississippi, but had practiced law in Tennessee before migrating to Texas. [FN96] He was unwilling to rubber-stamp the work of the 1836 Convention and stated: “That convention embraced a good share of wisdom and talent, but the result of their action, under the circumstances surrounding them at the time, is entitled to no great degree of consideration here.”‘ [FN97]

The constitution that the 1845 Convention adopted included article I, section 19, which parallels the language of article I, section 27 of the current Texas Constitution, giving Texas citizens the right of remonstrance.

C. Summary

In light of this history, the statement of the El Paso Court of Appeals that “‘[w]e find no requirement that those trusted with the powers of government must negotiate or even respond to complaints filed by those being governed”‘ [FN98] is difficult to accept. To test that interpretation, using the favorite analytical tools of the strict constructionists–the original intent of the framers–one must imagine the court offering that interpretation to Sam Houston, Tom Rusk, Stephen Austin, or Isaac Van Zandt. Houston and Rusk fought a war in part because the Mexican Government jailed Austin, the bearer of their remonstrances. Moreover, Farias had actually responded to the remonstrances, granting some and offering to take others under consideration for future action. [FN99] The Texas Revolution almost certainly would have started years earlier if the Mexican Congress and Farias had confronted Austin and attempted to limit him to the unilateral submission of a grievance, which the Congress could consider at its pleasure.

No explicit evidence exists that those who claimed the right to remonstrate *1422 also expected some response, either a “Yes”‘ or “No”‘ with reasons. Given the nature of the events that occupied the attention of the principal convention delegates, this evidence is probably absent because even the recalcitrant officials with whom they had been dealing had not presumed to refuse any response. [FN100] The remonstrants were asserting the right to engage in a dialogue with their government. They understood, as did those with whom they were negotiating, that the communication process was a farce unless there were at least two participants. They believed, as Austin stated, “that the will of the people forms the safest standard to guide the deliberations of public agents.”‘ [FN101]

III. The United States Colonial Experience

The events that preceded the Texas Revolution paralleled those that, sixty years earlier, provoked colonial patriots to break free from the British Empire. Just as the Texans felt geographically alienated from Saltillo and Mexico City, the American colonists felt that time and distance created insurmountable barriers to effective communication with the British Government. Although the Americans railed against “taxation without representation,”‘ their more thoughtful leaders reasoned that representation would not solve their problems. In 1765, Samuel Adams wrote:

Now the Colonies are at so great a Distance from the Place where the Parliament meets, from which they are separated by a wide Ocean; and their Circumstances are so often and continually varying, as is the Case in all Countries not fully settled, that it would not be possible for Men, tho’ ever so well acquainted with them at the Beginning of a Parliament, to continue to have an adequate Knowledge of them during the Existence of that Parliament. [FN102]

Ten years later, John Adams rhetorically asked: “Could American representatives possibly know the sense, the exigencies, &c. of their constituents, at such a distance, so perfectly as it is absolutely necessary legislators should know?” [FN103]

The Americans’ interest in effective dialogue with their government was not limited to communication with the British Parliament. In 1764, a group of Western Pennsylvania frontiersmen, the Paxton Boys, converged on Philadelphia, where the legislature was considering a proposal *1423 to punish those who killed Indians. [FN104] The Paxton Boys presented to the legislature “A Remonstrance of Distressed and Bleeding Frontier Inhabitants.”‘ The remonstrance stated various grievances and, specifically, remonstrated against the “‘bill . . . now before the House of Assembly . . . provid ing that . . . persons as shall be charged with killing any Indians in Lancaster County shall not be tried in the county where the fact (sic) was committed, but in the counties of Philadelphia, Chester, or Bucks.”‘ [FN105]

The colonists regarded the right to participate directly in the affairs of government as fundamental to their status as free people.

The . . . rights of assembly and petition were proclaimed in hundreds of town and county resolutions. The towns of Middlesex County, Massachusetts, acknowledged the importance of these rights in this representative statement:

Resolved, That every people have an absolute right of meeting together to consult upon common grievances, and to petition, remonstrate, and use every legal method for their removal. [FN106]

The best known employment of remonstrances as a basis for direct involvement in the legislative process, however, were the protests by American colonists against various acts of Parliament and decrees of King George III designed either to pacify or intimidate the unruly Americans. [FN107] The Stamp Act controversy is one good example. In March 1764, George Grenville, Chancellor of the Exchequer, declared his intention to propose a bill that would impose a tax on legal documents, playing cards, dice, almanacs, pamphlets, books, and other such items, by requiring the placement of a government stamp on each item. [FN108] On December 18, 1764, the Virginia House of Burgesses drafted a petition to the King, a memorial to the House of Lords, and a remonstrance to the House of Commons. [FN109] The House of Commons, because of a rule prohibiting the reception of remonstrances relating to revenue measures, *1424 refused to accept the remonstrance. [FN110] According to Professor Macdonald, “There was little opposition in Parliament, and Grenville’s bill passed . . . . George III. was at the time insane, and the act received the royal assent, March 22, by commission.”‘ [FN111]

For the next ten years, this kind of exchange between the Americans and the British Government was repeated several times. [FN112] Finally, on July 6, 1775, the Continental Congress adopted a “declaration . . . setting forth the causes and necessity of their taking up arms.”‘ [FN113] It began with a recitation of multiple grievances. [FN114] It continued:

But why should we enumerate our injuries in detail? . . . We saw the misery to which despotism would reduce us. We for ten years incessantly and ineffectually besieged the throne as supplicants; we reasoned, we remonstrated with parliament, in the most mild and decent language. [FN115]

A few pages later, the document concludes: “In our own native land, in defence of the freedom that is our birth-right, . . . we have taken up arms.”‘ [FN116]

A few months before, on March 23, 1775, Patrick Henry had electrified the Virginia House of Burgesses with a speech that has become a battle cry for angry victims of oppression throughout the world. [FN117] Before reaching his thundering climax with the defiant vow “give me liberty or give me death,”‘ he voiced the Americans’ frustration with the indifference of the English King and Parliament: “Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne!” [FN118]

In January 1776, Thomas Paine’s Common Sense was published anonymously in Philadelphia. [FN119] He laced his call for independence with exquisite attacks on royal prerogative. He wrote:

Our prayers have been rejected with disdain; and hath tended to convince us that nothing flatters vanity or confirms obstinacy in *1425 kings more than repeated petitioning–and nothing hath contributed more than that very measure to make the kings of Europe absolute. . . . Wherefore, since nothing but blows will do, for God’s sake let us come to a final separation, and not leave the next generation to be cutting throats under the violated unmeaning names of parent and child. [FN120]

Finally, on July 4, 1776, Thomas Jefferson enshrined, in a few bitter words, the reaction of freedom-loving people to silence and indifference from government. In the unanimous Declaration of the thirteen united States of America, he wrote:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People. [FN121]

Having declared themselves free of British authority, the new American states began to experiment with the process of self-government, in which people contract with each other to design their own structure of law and authority. [FN122] In response to a resolution of the Second Continental Congress in 1776, the colonies began drafting and adopting their own constitutions. [FN123] Virginia, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, and Connecticut all adopted “Declarations of Rights,”‘ either as part of formal constitutions or as addenda to their colonial charters. [FN124] New York and Georgia acted similarly in 1777, as did South Carolina in 1778. [FN125] The radicals in Massachusetts rejected *1426 the first constitution offered them in 1778 and finally adopted the one drafted by John Adams in 1780. [FN126] New Hampshire adopted a constitution in 1783. [FN127]

The Pennsylvania Constitution was the first to include a specific declaration of the right of remonstrance. [FN128] Benjamin Franklin was the president at that convention. [FN129] The language they adopted surely served as a model and pattern for the documents that were drafted later by other original colonies, several southern and western states (including Tennessee), and, fifty-seven years later, by Houston’s committee at San Felipe de Austin. [FN130] The Pennsylvania Constitution provides: ” T he people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.”‘ [FN131] Delaware included similar language in its constitution, as did Maryland, North Carolina, Massachusetts, Vermont, and New Hampshire. [FN132]

During the 1784-85 session of the Virginia Assembly, James Madison presented a remonstrance to the House of Delegates protesting a proposed bill that provided governmental support for teachers of the Christian religion. [FN133] Madison’s remonstrance is a powerful and carefully reasoned defense of the separation of church and state. It was successful and the bill was defeated. [FN134]

The men who guided the American colonists toward independence claimed for themselves and their countrymen the right to remonstrate against governmental authority. Men like John and Samuel Adams, Thomas Paine, Patrick Henry, Thomas Jefferson, James Madison and *1427 Benjamin Franklin not only believed that remonstrants were entitled to a response from government, they rationalized a revolution around the failure of Great Britain to respond to colonial petitions and remonstrances. I submit that Patrick Henry expressed the feelings of these men when, in 1775, he roared “our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne!” [FN135] That man was not talking about “stop, look and listen.”‘ [FN136]

I believe that colonial history, like Texas history, teaches that those who claimed the right of remonstrance intended to claim more than a right of access to a silent government. They were demanding a reasoned reaction.

IV. The British Experience with Remonstrance

Just as the Texas Revolution was kindled with legal arguments based on the Mexican Constitution of 1824, the American revolutionaries justified their rebellion by appeals to their rights as British citizens. The 1776 creation of the first true constitutional democracy, claiming mutual consent as its only authority, ended a struggle whose roots in British history reached at least to Runnymede. [FN137] There, in 1215, the British nobility extracted the Magna Carta from King John as the price of their continued financial and military support. [FN138] Chapter 61 insured the enforcement of the rights granted by establishing an enforceable right of petition:

we give and grant to them the underwritten security, namely, that the barons choose five-and-twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we . . . shall in anything be at fault toward anyone, . . . and the offense be notified to four barons of the foresaid five-and-twenty [, they] shall repair to us . . . and, laying the transgression before us, petition to have that transgression corrected without delay. And if we shall not have corrected the transgression . . ., the four barons aforesaid shall refer that matter to the rest of the five-and-twenty barons, and those five-and-twenty barons shall, together with the community of the whole land, distrain and distress *1428 us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit . . . . [FN139]

These promises were merely the prelude to a several-hundred-year struggle between royal prerogative and citizen resistance. In 1641, after fifteen years without a parliament, [FN140] King Charles was presented with a Grand Remonstrance. It was a 204-paragraph recitation of grievances, voted on, paragraph at a time, by a rebellious parliament led by John Pym and other daring defenders of British liberty. [FN141]

This was no fawning appeal for royal favor; it was an assertion of rights and demands. John Forster, a lawyer, later wrote an essay on this episode. [FN142] He referred to the last fourteen paragraphs of the Remonstrance as follows: “‘In the Grand Remonstrance were frankly indicated the measures which the people were entitled to demand, as their only safe or sufficient guarantee against the recurrence, at any moment, of the wrongs and sufferings of the past sixteen years.”‘ [FN143]

After further conflict and bloodshed, William and Mary were placed on the British throne in 1689, [FN144] subject to a Bill of Rights that proclaimed:

That it is the right of the subjects to petition the king and all commitments and prosecution for such petitioning are illegal.

. . . .

And that for redress of all grievances and for the amending, strengthening and preserving of the laws parliaments ougth to held frequently. [FN145]

In his Commentaries on the Laws of England, Sir William Blackstone, in a section on the “rights of persons,”‘ said:

If there should happen any uncommon injury, or infringement of the rights before-mentioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. [FN146]

*1429 By the mid-1700s, as the minds of some angry American colonists began to toy with a new idea–that people needed no authority beyond their own collective intelligence to define their rights and design their system of government–their British ancestors had already forged the legal and philosophical weapons necessary for a final break with royal prerogative. The right of petition and remonstrance were rights of British subjects. The exercise of those rights and the stony lack of response to that exercise by the British king and parliament goaded the Americans toward revolution.

V. The French Experience with Remonstrance

Meanwhile, the right of remonstrance was being used by French citizens to erode royal authority. The king, advised by his council, ruled by decree. [FN147] These decrees, often containing tax levies, were transmitted to provincial parlements, hold-overs from feudal baronial councils. [FN148] The decrees did not become effective until the parlements registered them in a book. [FN149] If the parlement determined that a decree or law was unjust or contrary to traditional rights of citizens in that province, it declined to register the law. The parlement then notified the king of its action by sending a remonstrance to him. [FN150] Having received a remonstrance, the king had two alternatives: (1)negotiate with the parlement and arrive at some acceptable basis for resolving the issues raised by the remonstrance, or (2) physically go to the province and personally, in the exercise of his derived authority from God through the Pope, preside over the registration of the law. [FN151]

These parlements, despite the similarity of their name to the British parliament, were not representative legislative bodies. Membership in a French parlement was inherited or purchased and was reserved for upper-level nobility. [FN152] Members served as counselors to the king and exercised judicial, rather than legislative, authority. [FN153]

*1430 These [parlements] were very powerful bodies, and they no doubt deserve their reputation, though they were not all equally important. . . . The Parlement was a court of appeal for cases heard in a lower court. It was both magistrate’s court and appeal court for certain privileged cases, but it was much more than this. It considered itself the guardian of the unwritten Constitution derived from what it saw as the ‘fundamental laws of the kingdom.’ This involved invoking the droit d’enregistrement, by which royal edicts, to be enforceable, had to be inscribed in the registers of the Parlement; remonstrating against royal policy; and yielding only in the face of royal authority solemnly exercised at a lit de justice. [FN154]

Between 1774 and 1789, when the French Revolution overthrew the French monarchy, the principal vehicle for challenging and weakening the authority of the king was a series of remonstrances from the parlement of Paris, which practically paralyzed the government. [FN155] Louis XVI’s effort to resist that check on his authority was one of the issues that triggered the Revolution of 1789. [FN156]

These assertions of the right of remonstrance were undoubtedly well known to the leaders of the American Revolution. John Adams and Benjamin Franklin were in France during the 1770s, desperately negotiating for money and allies in their conflict with Great Britain. [FN157] The treaty with France in 1778 probably insured the success of the faltering revolution. [FN158]

John Adams, dispatched to France by the Continental Congress, returned in 1779, just in time to draft the Massachusetts Constitution of 1780. [FN159] He began that draft with a Declaration of Rights. Article XIX establishes the right of remonstrance. [FN160] Four years earlier, Benjamin Franklin had presided over the Pennsylvania convention that drafted the constitution containing the first statement of a citizen’s constitutional right of remonstrance. [FN161]

*1431 VI. Conclusion

The history of remonstrance is the history of the taming of governmental authority. In the eighteenth century, the citizens of America, France, and Texas cast off the fetters of official authority and asserted the ultimate secular right: to obey no higher authority than their own collective will. Their language is passionate and their ardor is unmistakable. Their words evoke an excitement and vigor that jumps from the page to tighten the throat and mist the eyes. These were brave men, but they were more. They not only trusted themselves, they trusted each other and their fellow citizens. They were willing, indeed determined, to abandon the safety of royal paternalism, however orderly, to risk submission of themselves and their country to the authority of the common will, directly and relentlessly expressed.

This history contrasts sadly with our present television-ridden, money-driven political process. Participation in the electoral process has declined steadily during the past twenty years. [FN162] Voter participation rates in America are significantly below those in other comparable democracies. [FN163]

The urbanization of our country, the mind-numbing complexity of the issues that now preoccupy our government, and our racially and ethnically diverse population have contributed to the difficulty of maintaining an actively involved body of citizens participating in the political process. I insist, however, that the apathy which allows our officials to be elected by smaller and smaller minorities of potential voters also results from the belief of many, perhaps most, of our citizens that they have no actual, or even potential, effect on the political or governmental process.

If that is true, then our effort should be to make government more, not less, responsive to the demands of our citizens. We should not accept government by bureaucracy, insulated from citizens behind paper citadels and aloof disdain for unsophisticated demands for relief. Government should, instead, be a nexus for an expression of community will, without which our democracy is endangered.

We live in a time of “single-issue”‘ politics, when matters of public interest are not debated as a predicate for ultimate consensus, but instead preoccupy the attention of small groups of political activists, skilled at appealing to fear, raising money, and staging television news. These activists *1432 do not seek coalitions, but are content to make threats of political doom in order to achieve their narrowly focused aims.

The answer is not to restrict citizens’ rights to dialogue with government, but to encourage more dialogue. Broader-based majorities will result from larger, not smaller forums. Government should encourage more direct participation of citizens by proving its willingness to be affected by that participation.

Between 1982 and 1984, a group of five social scientists conducted a study of contemporary American society. In their conclusion, they wrote:

America was colonized by those who had come loose from the older European structures, and so from the beginning we had a head start in the process of modernization. Yet the colonists brought with them ideas of social obligation and group formation that disposed them to recreate in America structures of family, church, and polity that would continue, if in modified form, the texture of older European society. . . . The battles of modernity are still being fought.

But today the battles have become halfhearted. . . . Many might find still applicable Matthew Arnold’s assertion that we are

“Wandering between two worlds, one dead,

The other powerless to be born.”DD’

There is a widespread feeling that the promise of the modern era is slipping away from us. [FN164]

I understand the reluctance of courts to require a reasoned response to every citizen’s remonstrance. The “floodgates”‘ argument–that such a doctrine would only waste the time of busy officials in responding to neurotics, malcontents, and publicity-seekers–is a powerful one. I do not deny that this is a problem. I do deny that relieving government of the obligation to respond to a remonstrance is the solution.

In an appropriate case, the court should compel the legislature to design and enact some orderly procedure for filing remonstrances, including a requirement for a minimum number of signatures. The number of signatures required should vary according to the constituency served by the agency to which the remonstrance is directed. If, after an appropriate delay for legislative action, the legislature does not act, the court should use its equitable powers to design such a procedure and render an appropriate decree. [FN165] Constitutional rights should not be restricted *1433 because the legislature has neglected to enact an orderly procedure for their exercise.

In 1854, Chief Justice Shaw, of the Massachusetts Supreme Court, espoused this fundamental doctrine in a case involving the Massachusetts precursor of the Texas constitutional right of remonstrance. In Commonwealth v. Porter, [FN166] he first quoted Article 19 of the Massachusetts Declaration of Rights. [FN167] He then wrote:

This, like the similar declarations of other rights, essential to a free government, is expressed in general terms; but it not only gives authority to the legislature, but it makes it their bounden duty, to make suitable laws from time to time, as the exigencies of the times may require, for the protection and enjoyment of such rights. [FN168]

Those who decry the erosion of “respect for law and order”‘ often seem to gloss over the meaning of “respect.”‘ If history teaches anything, it is that citizens will not respect a government from which they feel alienated. To command respect a government must borrow a concept from computer software and become “user friendly.”‘ Citizens will not respect a government they cannot trust. And they will not trust a government with which they cannot communicate. Communication, to be meaningful, must move in both directions. Anything that reduces the degree of alienation that now separates our citizens from their government will enhance the probability of increasing their trust, and therefore respect, for that government and its laws. Requiring that government be more responsive to the remonstrances of citizens will surely serve that goal.

[FNa] Law Offices of Bob Hall, 440 Louisiana, Houston, Texas, 77002-1634, LL.B. 1955, The University of Texas at Austin.

[FN1]. THE OXFORD BOOK OF AMERICAN VERSE 602 (F. Matthiessen ed. 1950).

[FN2]. TEX. CONST. art. I, § 27.

[FN3]. BLACK’S LAW DICTIONARY 1164 (5th ed. 1979).

[FN4]. 3 BOVIER’S LAW DICTIONARY 2872 (8th ed. 1914).

[FN5]. U.S. CONST. amend. I.

[FN6]. TEX. CONST. art. I, § 27.

[FN7]. See generally Professional Ass’n of College Educators v. El Paso County Community Dist., 678 S.W.2d 94, 95 (Tex. App.–El Paso 1984, writ ref’d n.r.e.) (discussing the history of the remonstrance provision and noting that “‘[t]here is no Texas case discussing a citizen’s right to seek redress from the government by remonstrance. We write on a totally clean slate.”‘ (footnote omitted)). For an example of statutory interpretation in which each provision is assumed to have a distinct meaning, see Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279, S.W.2d 315 (1955), in which the Supreme Court of Texas considered the phrase “damage or harm”‘ in the definitional section of the Workers’ Compensation Law. See id. at 435, 279 S.W.2d at 318. The court wrote: “‘We cannot assume that either the word ‘damage’ or ‘harm’ is extraneous. Some difference must have been intended.”‘ Id. at 436, 279 S.W.2d at 319.

[FN8]. See Dallas Indep. School Dist. v. American Fed’n of State, County and Mun. Employees, 330 S.W.2d 702, 707 (Tex. Civ. App.–Dallas 1960, writ ref’d n.r.e.); Beverly v. City of Dallas, 292 S.W.2d 172, 176 (Tex. Civ. App.–Dallas 1956, writ ref’d n.r.e.).

[FN9]. Several states have adopted statutory procedures for the exercise of the right of remonstrance. Statutory remonstrances typically are designed to protest school annexations, pavement assessments, or the issuance of liquor licenses. These procedures have a common characteristic: they require that the government postpone final action on the matter to which the remonstrance is directed until the government addresses the issues raised by the remonstrance. See Hoop v. Affleck, 162 Ind. 564, 565, 70 N.E. 978, 978 (1904) (requiring the board of commissioners to inquire into the substance and form of remonstrance against issuing a liquor license); Ray v. Ripley School Township, 148 Ind. App. 33, 37-38, 263 N.E.2d 737, 738-39 (1970) (noting the statutory provision for a right of remonstrance against proposed school annexation before such annexation occurs); Sedalia v. Montgomery, 227 Mo. 1, 29-30, 127 S.W. 50, 51 (1910) (concluding that the city council’s power or jurisdiction to make street improvements is in abeyance until the ten-day period in which the property owners can remonstrate has expired).

In Noble v. Vincennes, 42 Ind. 125 (1873), the Indiana Supreme Court recognized the right of citizens to remonstrate against a petition to the common council of the City of Vincennes, Indiana. The challenged petition provided for a donation to a railroad as an inducement for the railroad’s building a connecting line to the town. Id. at 125. The Indiana Supreme Court recognized the distinction between a petition and remonstrance, decided that the remonstrants had correctly asserted their rights, and reversed a trial judge who had granted a demurrer and dismissed the remonstrants’ suit. Id. at 130-32.

[FN10]. Irving, Rip Van Winkle, 1 ELZEVIR LIBR. 5, 17 (1883).

[FN11]. College Educators, 678 S.W.2d at 96.

[FN12]. Id.

[FN13]. Id. at 95.

[FN14]. Id.

[FN15]. See id. at 97.

[FN16]. See id.

[FN17]. Id. at 96.

[FN18]. Id.

[FN19]. See id. at 98. The only court that has considered this ruling is the Corpus Christi court of Appeals in Corpus Christi Indep. School Dist. v. Padilla, 709 S.W.2d 700, 704 (Tex. App.–Corpus Christi 1986, no writ). Two bus drivers, employed by the Corpus Christi school district, filed a grievance complaining about changes in their work assignments. The school district’s policies did not permit drivers to appeal their grievance to the school board. Id. at 703. When the board, in compliance with that policy, refused to hear their grievance, the drivers filed suit. Id. The trial judge granted a summary judgment to the bus drivers, and the school district appealed. Id.

The day before the case was to be filed in the court of appeals, the parties filed a joint motion in which the drivers agreed that the trial court had improvidently granted summary judgment and the grievance policy did not violate their rights. Id. at 708. The drivers asked that the court of appeals issue a ruling in accordance with their motion. Id. Justice Nye took that as a directive to render a five-and-one-half page opinion detailing his analysis of the right of remonstrance, the implications of the first and fourteenth amendments to the United States Constitution, and the requirements of article 5154c of Vernon’s Revised Civil Statutes. See id. at 703-08.

Justice Nye’s opinion did not result from the usual adversarial process that provides judges with opposing arguments and discussions of pertinent authority as a basis for judicial analysis. Consequently, Justice Nye failed to acknowledge the implications of the El Paso court’s discussion of the deliberative process required when responding to a remonstrance. He merely ruled that the remonstrants were entitled to “access,”‘ which he decided was available during a “public forum”‘ period scheduled near the end of each school board session. Id. at 704-05. The Padilla case did not disapprove of anything in the College Educators decision. In fact, after discussing it, Justice Nye wrote, “We consider this holding a sound one.”‘ Id. at 704.

[FN20]. College Educators, 678 S.W.2D at 98.

[FN21]. Id. at 96.

[FN22]. See E. BARKER, THE LIFE OF STEPHEN F. AUSTIN 25 (2d ed. 1949). See generally T. FEHRENBACH, FIRE AND BLOOD: A HISTORY OF MEXICO 377 (1973) (discussing North American immigration into Texas).

[FN23]. See E. BARKER, supra note 22, at 24-28.

[FN24]. See id. at 38.

[FN25]. See id. at 38-39.

[FN26]. See generally T. FEHRENBACH, supra note 22, at 319-52 (discussing the turmoil leading up to the Mexican declaration of independence from Spain).

[FN27]. See E. BARKER, supra note 22, at 43.

[FN28]. See id.

[FN29]. See id.

[FN30]. See id.

[FN31]. See id. at 43-70.

[FN32]. See id. at 47-69.

[FN33]. Professor Barker writes that, while Austin’s suggestions have been preserved, there is no indication of who received them. See id. at 71-74. We know that Austin made suggestions, but we do not know whether they were actually delivered. See id. at 70-73; see also McKnight, Stephen Austin’s Legalistic Concerns, 89 SW. HIST. Q. 239, 263-64 (1986) (noting that “[t]hough he sought to be involved in the drafting of the Mexican Constitution of 1824, his suggestions probably had little if any effect on its preparation”‘).

[FN34]. E. BARKER, supra note 22, at 72 (quoting Austin’s 1823 document entitled “‘Reflections addressed to the junta Instituyente”‘). Austin’s language paraphrases John Locke’s, whose widely-read essay Of Civil Government declares:

Men being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent, which is done by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it.

J. LOCKE, OF CIVIL GOVERNMENT: SECOND TREATISE 78 (Gateway ed. 1955) (1689).

[FN35]. E. BARKER, supra note 22, at 72 (quoting Austin’s 1823 document entitled “‘Reflections addressed to the junta Instituyente”‘); see also McKnight, supra note 33, at 263-64 & 264 n.124 (discussing the limited effect Austin’s suggestions had on the actual preparation of the 1824 Constitution); infra note 55 (discussing the sources of the first Constitution of Texas).




[FN39]. See id. at 131-32; see also Strother v. Lucas, 37 U.S. (12 Pet.) 410, 442-43 n.4 (1838) (defining these terms in reference to the laws of the Spanish empire of the Indies).

[FN40]. See E. BARKER, supra note 22, at 115.

[FN41]. See T. FEHRENBACH, supra note 36, at 144 (noting that American colonists thought the legal system was “impossible”‘ because testimony had to be transmitted to Saltillo, over 400 miles away).

[FN42]. See Robinson, Texas–Land of Courage, The Daily Sun [Goose Creek, Texas], Centennial “Mail-It-Away”‘ Edition (1936), § 1, at 3, col. 1; see also E. BARKER, supra note 22, at 256 (discussing the Mexican government’s reasons for passing the law).

[FN43]. See T. FEHRENBACH, supra note 36, at 180-81.

[FN44]. See E. BARKER, supra note 22, at 348-54.

[FN45]. See id. at 355.

[FN46]. Id. (emphasis added).

[FN47]. Id. at 357 (emphasis added).

[FN48]. See id.


[FN50]. See Address by Stephen F. Austin, second colonial convention of Texas (Apr. 1, 1833), reprinted in DOCUMENTS OF TEXAS HISTORY 74, 74-76 (E. Wallace ed. 1963).

[FN51]. Id., reprinted in DOCUMENTS OF TEXAS HISTORY, supra note 50, at 74.

[FN52]. Id., reprinted in DOCUMENTS OF TEXAS HISTORY, supra note 50, at 76 (emphasis added).

[FN53]. See J. CLARK, supra note 49, at 161.

[FN54]. See id. at 164.

[FN55]. DOCUMENTS OF TEXAS HISTORY, supra note 50, at 81. Houston probably copied this language from the 1796 Tennessee Constitution. The corresponding language from § 22 of the 1796 Tennessee Constitution establishes that “the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other purposes, by address or remonstrance.”‘ TENN. CONST. art. I, § 22 (1796) (currently codified at TENN. CONST. art. I, § 23).

Professor Barker, the preeminent student and analyst of Texas history, speculates that Houston’s provisional constitution of 1833 was “closely modeled upon the Massachusetts constitution of 1780–possibly because a copy of that happened to be at hand.”‘ E. BARKER, supra note 22, at 361. In a footnote, Barker relishes the irony of using the handiwork of John Adams as a model for the Texas Constitution when John’s son, John Quincy, vehemently opposed the drafting of the Texas Constitution. See id. at 361 n.30. Joseph L. Clark accepts and repeats this opinion in his history of Texas. See J. CLARK, supra note 49, at 165-66.

Although Professor Barker’s theory supports my argument, his taste for a good story overwhelms his analysis. The Massachusetts Constitution, discussed later in this Paper, bears little structural or linguistic similarity to Houston’s document. Professor Joseph W. McKnight, a Southern Methodist University law professor, states: “The proposed constitution which Austin bore to Mexico City was a collage of articles from the Tennessee, Missouri, and Louisiana constitutions along with some original provisions.”‘ McKnight, supra note 33, at 265.

Professor McKnight, in a footnote, remarks on Professor Barker’s statement that the Texas Constitution was patterned after the Massachusetts Constitution. McKnight characterizes the statement as “puzzling,”‘ and observes that while “‘there are a number of passages in it which bear similarity to those of the Massachusetts Constitution, all of those are almost verbatim adoptions of the Tennessee Constitution. Sam Houston was chairman of the drafting committee.”‘ Id. at 265 n.128.

As stated, I reluctantly agree with Professor McKnight.

[FN56]. See J. CLARK, supra note 49, at 164.

[FN57]. See T. FEHRENBACH, supra note 36, at 182.

[FN58]. See id. at 183.

[FN59]. See id. at 182.

[FN60]. See id.

[FN61]. See id.

[FN62]. See id. at 182-83.

[FN63]. See id. at 183.

[FN64]. E. BARKER, supra note 22, at 375-79.

[FN65]. Explanation to the Public Concerning the Affairs of Texas, By Citizen Stephen F. Austin (E. Rather trans.), reprinted in 8 Q. TEX. ST. HIST. A. 232, 246-55 (1905) [hereinafter Explanation to the Public].

[FN66]. See id. at 236-37.

[FN67]. Id. at 240.

[FN68]. See J. CLARK, supra note 49, at 183.

[FN69]. See Robinson, supra note 42.

[FN70]. See id.

[FN71]. See T. FEHRENBACH, supra note 36, at 198-200.

[FN72]. See id. at 199-200.

[FN73]. Barker, The Texan Declaration of Causes for Taking Up Arms Against Mexico, 15 Q. TEX. ST. HIST. A. 173, 178 (1912).

[FN74]. Id. at 182.

[FN75]. See T. FEHRENBACH, supra note 36, at 200.

[FN76]. See id. at 205.

[FN77]. See Robinson, supra note 42, col. 3.

[FN78]. See T. FEHRENBACH, supra note 36, at 219. “They met in a fireless, unfinished house while a norther whistled through strips of cloth fastened over the windows. Sam Houston, picturesque in Cherokee vest and buckskin coat, dominated the fourth and most important convention held by the colonists.”‘ Robinson, supra note 42, col. 3.

[FN79]. The Declaration of Independence, Republic of Texas, para. 1 (1836), reprinted in TEX. CONST. APP. (Vernon 1955) (emphasis added).

[FN80]. See T. FEHRENBACH, supra note 36, at 211-23.

[FN81]. See 2 H. FOOTE, TEXAS AND THE TEXANS 264 (1935).


The constitution was written of (sic) scrap odds and ends, paper being scarce at the convention. The different articles and provisions were voted on but the convention disbanded before the constitution could be recopied (sic) and signed by the delegates. Gen. Sam Houston and eight other members left to join the army. Others left hurriedly when Deaf Smith, Texas greatest spy though deaf and partially blind, came in with the news that the Mexicans were approaching. He had mistaken a herd of cattle for some Mexican forces. The clerks of the convention gathered the bits of paper containing the constitution and fled to the ranch of a friend. Here they proceeded to rewrite the constitution on a better piece of paper. Whenever there was a dispute as to whether or not a certain article had passed, the two clerks agreeing would prevail over the third. It is said that an occasional point of difference was decided between them by a toss of a coin. When the document was finally finished there was no one left there to sign it. This difficulty was overcome by placing the Declaration of Independence alongside the constitution and one of the clerks carefully copying the signatures of the one instrument onto the other.

Houston Chronicle, April 19, 1936, bound in Texas Scrap Books, 106 TEXAS HISTORY 219, Texas Collection, Houston Public Library.

[FN83]. See 2 H. FOOTE, supra note 81.

[FN84]. Id. at 264-65. Reality often does not conform to logic or consistency. After the provisional Texas Government drafted a Declaration of Independence that complained bitterly about the Mexican Government’s imprisonment of Austin after he delivered the Texas petition and remonstrance, the convention’s constitution omitted from its Declaration of Rights any protection of the right of petition or remonstrance. See TEX. CONST. OF 1836, Declaration or Rights, reprinted in J. SAYLES, supra note 38, at 172; see also Ponton, Sources of Liberty in the Texas Bill of Rights, 20 ST. MARY’S L.J. 93, 118-19 (1988) (arguing that because the 1845 and 1876 constitutions specifically provided for the rights of petition and redress, the rights were implicit in the Declaration of Independence).

[FN85]. See T. FEHRENBACH, supra note 36, at 230-31.

[FN86]. See J. CLARK, supra note 49, at 300-01; T. FEHRENBACH, supra note 36, at 266-67.

[FN87]. See TEX. CONST. art. I, § 19 (1845); TEX. CONST. art. I, § 19 (1861); TEX. CONST. art. I, § 19 (1866); TEX. CONST. art. I, § 19 (1869); TEX. CONST. art. I, § 27.

[FN88]. See Paxson, The Constitution of Texas, 1845, at 18 SW. HIST. Q. 386, 386 (1915).

[FN89]. See id.

[FN90]. See id.

[FN91]. Rusk actually served as the first chief justice although he was appointed to replace Chief Justice James T. Collingsworth. Chief Justice Collingsworth drowned before his first term began. See D. Rankin, Thomas J. Rusk and the Convention of 1845, at 78 (unpublished M.A. thesis submitted at Stephen F. Austin State University 1988) (copy on file with Texas Law Review).

[FN92]. See Paxson, supra note 88, at 386.

[FN93]. See id. at 387.

[FN94]. Id. at 387. For a list of the delegates and their birth places, see D. Rankin, supra note 91, at 94-95.

[FN95]. See DEBATES OF THE TEXAS CONVENTION 20-23 (W. Weeks reporter) (J. Cruger ed. 1846) (available from Texas State Archives).

[FN96]. See Paxson, supra note 88, at 390; D. Rankin, supra note 91, at 94, 102-04.

[FN97]. DEBATES OF THE TEXAS CONVENTION, supra note 95, at 90 (statement of Isaac Van Zandt during debate over the bill of rights).

[FN98]. Professional Ass’n of College Educators v. El Paso County Community Dist., 678 S.W.2d 94, 96 (Tex. App.–El Paso 1984, writ ref’d n.r.e.).

[FN99]. See E. BARKER, supra note 22, at 373-75.

[FN100]. See id. at 370-75.

[FN101]. Explanation to the Public, supra note 65, at 240.

[FN102]. 1 S. ADAMS, WRITINGS 67-68 (H. Cushing ed. 1904); see also C. ROSSITER, SEEDTIME OF THE REPUBLIC 336 (1953) (noting the ambivalence of colonists concerning colonial representation in Parliament).

[FN103]. 4 J. ADAMS, WORKS 139 (1851).

[FN104]. See 2 ANNALS OF AMERICA 118 (1968).

[FN105]. Id.

[FN106]. C. ROSSITER, supra note 102, at 386.

[FN107]. See S. MORISON, H. COMMAGER & W. LEUCHTENBURG, A CONCISE HISTORY OF THE AMERICAN REPUBLIC 68-72 (2d ed. 1983) [hereinafter S. MORISON]. Thomas Paine, equally outraged at British conciliation and British threats, wrote that “[i]t is the madness of folly, to expect mercy from those who have refused to do justice; and even mercy, where conquest is the object, is only a trick of war; the cunning of the fox is as murderous as the violence of the wolf, and we ought to guard equally against both.”‘ T. Paine, The American Crisis I (unpublished pamphlet), reprinted in 1 T. PAINE, THE COMPLETE WRITINGS OF THOMAS PAINE 56 (P. Foner ed. 1945).



[FN110]. See DOCUMENTARY SOURCE BOOK, supra note 108, at 122.

[FN111]. Id.

[FN112]. See S. MORISON, supra note 107, at 70-74.

[FN113]. A declaration by the Representatives of the United Colonies of North-America, now met in Congress at Philadelphia, setting forth the causes and necessity of their taking up arms, reprinted in DOCUMENTARY SOURCE BOOK, supra note 108, at 177-83.

[FN114]. See id. at 177-79.

[FN115]. Id. at 179 (emphasis added).

[FN116]. Id. at 183.

[FN117]. See A TREASURY OF THE WORLD’S GREAT SPEECHES 139 (H. Peterson ed. 1954) [hereinafter WORLD’S GREAT SPEECHES].

[FN118]. Address of Patrick Henry, Virginia House of Burgesses (March 23, 1775), reprinted in WORLD’S GREAT SPEECHES, supra note 117, at 141 (emphasis added).

[FN119]. See THOMAS PAINE READER 65 (M. Foot & I. Kramick ed. 1987).

[FN120]. T. Paine, Common Sense, reprinted in 1 T. PAINE, supra note 107, at 23.

[FN121]. The Declaration of Independence para. 30 (U.S. 1776).

[FN122]. See W. ADAMS, THE FIRST AMERICAN CONSTITUTIONS 63 (1980) (stating that in 1776 “American political leaders found themselves faced with a task that had never before been accomplished . . . ‘the people’ had to be the originators of the basic law of the land”‘).


[FN124]. See id. at 231 (stating that the “Virginia Declaration of Rights of 1776 is the first true Bill of Rights in the modern American sense, since it is the first protection for the rights of the individual to be contained in a Constitution adopted by the people acting through an elected convention”‘); id. at 256 (stating that New Jersey’s “Convention promulgated a new Constitution a few days after the Virginia Convention adjourned”‘); id. at 262 (announcing that the “Pennsylvania Constitution, like the Virginia one, is prefaced by a Declaration of Rights which is similar in many respects to the Virginia model”‘); id. at 276 (stating that Delaware “adopted a Declaration of Rights on September 11 and a Constitution on September 20″‘); id. 279 (announcing that “‘the Maryland Declaration of Rights was actually drafted in August 1776, though it was not approved by the Maryland Convention until November 3, 1776″‘); id. at 286 (stating that “the committee [in North Carolina] reported a Declaration of Rights and it was adopted on December 17″‘); id. at 289 (stating that the “‘Connecticut enactment . . . contains a brief Declaration of Rights”‘).

[FN125]. See id. at 301 (stating that the New York Convention “was not able to finish its work . . . until April, 1777, when the Constitution was adopted, with only one dissenting vote”‘); id. at 291 (stating that the “Georgia Constitution adopted in early 1777 contains guarantees for individual liberties, of the type normally found in Bills of Rights, in the body of its text”‘); id. at 325 (declaring that “a more permanent Constitution was adopted by the [South Carolina] General Assembly in March, 1778″‘).

[FN126]. See id. at 337 (announcing that “[i]n 1778, the legislature drew up a Constitution, but it was rejected by the people by an overwhelming majority. . . . The Adams draft was accepted by the Convention with relatively few modifications”‘).

[FN127]. See id. at 374 (noting that the New Hampshire Constitution was finally approved in October 1783).

[FN128]. Virginia was the first state to adopt a state constitution that included a bill of rights, see B. SCHWARTZ, supra note 123, at 231, but the Virginia Constitution did not include the right of remonstrance. See id. at 284-86. Pennsylvania was the second state to adopt a constitution with a bill of rights. See id. at 262. The right of remonstrance was guaranteed in art. XVI of the declaration of rights. See id. at 275.


[FN130]. See, e.g., B. SCHWARTZ, supra note 123, at 276, 286, 319 (noting that the Delaware, North Carolina, and Vermont Constitutions, each of which guarantees the right of remonstrance, were influenced by the Pennsylvania Constitution).

[FN131]. PA. CONST. art. XVI.

[FN132]. See DEL. CONST. art. I, § 16; MD. CONST. (Declaration of Rights) art. 13; N.C. CONST. art. I, § 12; N.H. CONST. pt. I, art. 22; VT. CONST. ch. 1, art. 20. For the original provisions of the declarations of the rights, see B. SCHWARTZ, supra note 123, at 277 (Delaware), 281 (Maryland), 287 (North Carolina), 324 (Vermont), 339 (Massachusetts), 378-79 (New Hampshire).

[FN133]. See 3 ANNALS OF AMERICA, supra note 104, at 16-20.

[FN134]. See id. at 16.

[FN135]. See supra text accompanying note 118.

[FN136]. See supra text accompanying note 18.

[FN137]. See S. MORISON, supra note 129, at 182 (stating that the American colonists “were a high-spirited people who claimed all the rights for which Englishmen had fought since Magna Carta, and would settle for nothing less”‘).

[FN138]. See W. MCKECHNIE, MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 47-48 (1905) (stating that “until John had actually carried out the more pressing reforms promised in Magna Carta, [the barons] refused formally to swear allegiance”‘).

[FN139]. Magna Carta ch. 61, reprinted in W. MCKECHNIE, supra note 138, at 545, 547.

[FN140]. See THE CONSTITUTIONAL DOCUMENTS OF THE PURITAN REVOLUTION 1625- 1660, at 208 (S. Gardiner 3d ed. 1906).

[FN141]. See id. at 202-32.


[FN143]. Id. at 269-70.

[FN144]. See L. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 248 (1981).

[FN145]. An Act Declareing the Rights and Liberties of the Subject, and Setleing the Succession of the Crowne, 1689, 1 W. & M. 2, ch. 2, reprinted in T. PLUCKNETT, TASWELL-LANGMEAD’S ENGLISH CONSTITUTIONAL HISTORY: FROM THE TEUTONIC CONQUEST TO THE PRESENT TIME 449-55 (11th ed. 1960).


[FN147]. See 1 R. MOUSNIER, THE INSTITUTIONS OF FRANCE UNDER ABSOLUTE MONARCHY 1598-1789: SOCIETY AND THE STATE 665-68 (B. Pearce trans. 1979) (noting that the King’s power over all three branches of government was absolute). But cf. 2 R. MOUSNIER, THE INSTITUTIONS OF FRANCE UNDER ABSOLUTE MONARCHY 1598-1789: THE ORGANS OF STATE AND SOCIETY 16 (A. Goldhammer trans. 1984) (noting that the King governed through the Grand Counseil; before issuing any decrees, however, the King would consult with the affected parties in order to determine the preferences of the nation).

[FN148]. See 2 R. MOUSNIER, supra note 147, at 234-44.


[FN150]. See 2 R. MOUSNIER, supra note 147, at 259.

[FN151]. See E. KENNEDY, supra note 149.

[FN152]. See 2 R. MOUSNIER, supra note 147, at 259.

[FN153]. See, e.g., id. at 259-61 (discussing the acquisition of office in and the operation of parlements).


[FN155]. See 2 R. MOUSNIER, supra note 147, at 654-88.

[FN156]. See L. KRIEGER, KINGS AND PHILOSOPHERS, 1689-1789, at 316 (1970). A well-written narration of the interplay between the parlements’ remonstrances and the ultimate erosion of royal authority is included in Tom Paine’s Rights of Man, which Paine wrote to justify the French Revolution. See Paine, Rights of Man, in THOMAS PAINE READER, supra note 119, at 264, 336-42.

[FN157]. See S. MORISON, supra note 129, at 251-56.

[FN158]. See id. at 90.

[FN159]. See Cella, The People of Massachusetts, a New Republic, and the Constitution of 1780: The Evolution of Principles of Popular Control of Political Authority 1774-1780, at 14 SUFFOLK U.L. REV. 975, 998-99 (1980).

[FN160]. See MASS. CONST. art. 19.

[FN161]. See supra notes 128-31 and accompanying text; see generally P. KLEIN & A. HOOGENBOOM, A HISTORY OF PENNSYLVANIA 91-94 (2d ed. 1980) (noting Franklin’s involvement in the drafting of the Pennsylvania Constitution of 1776 and discussing the provisions of the constitution).

[FN162]. See A. REICHLEY, ELECTIONS AMERICAN STYLE 114 (1987) (detailing a decline in voter turnout rates from 63.3% in 1964 to 55.2% in 1984).

[FN163]. See id. at 107 (detailing an average voting rate in excess of 70% for most countries, as compared to 55.5% during presidential elections in the United States).

[FN164]. R. BELLAH, R. MADSEN, W. SULLIVAN, A. SWIDLER & S. TIPTON, HABITS OF THE HEART 276-77 (1985) (quoting Arnold, Stanzas from the Grand Chartreuse, in M. ARNOLD, NEW POEMS 208, 213 (1867)) (footnote omitted).

[FN165]. See, e.g., Dade County Classroom Teachers Ass’n, Inc. v. Legislature, 269 So. 2d 684, 686-87 (Fla. 1972) (holding that judicial enforcement of a Florida constitutional provision that gave public employees the right to bargain collectively with the government would be premature at the time of the case, but reserving the right to enforce the provision later if the legislature did not act to enforce the provision in issue).

[FN166]. 67 Mass. (1 Gray) 476 (1854).

[FN167]. See id. at 477.

[FN168]. Id. at 477-78.


§ 3 Responses to Remonstrance

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  • Phyllis Hovenden says:

    Dear Mr. Hall, I just read your work on the Remonstrance and sure could have used this information and a lawywer like you many years ago. In 1994, I started a battle to save my property and that of my neighbors from being destroyed by the effects of a Wal-Mart Superstore being built in close proximity. After trusting lawyers only to find them working for the oppenents, I started the process of exposing the truth through the filing of legal documents with the courts. Needless to say they were either destroyed or denied. Finally, after reading the Tennessee Constituton, Article 1, Sec. 23, with 44 signatures, I filed a Remonstrance Petition with the Supreme COurt who had refused to hear my case. In said Remonstrance with evidence, was exhibited that the rulings of the other courts had been based on forgery, perjury, altered official government documents, truthful evidence had been removed and basically, everything in the record was bogus. I filed said Remonstrance and had my copy stamped and signed by one of the deputy clerks. When I arrived home, I had a message from the Clerk of the Courts to pick it up or he would throw it in the trash. I called the clerk and explained to him that I had a right under the Constitution to file the petition. He told me “to quit reading the constitution and read the rules of Court.” I filed a complaint against him with the court and cited every case I knew at the time including the state laws which state that the rules of ourt cannot abrogate the constitution but was threatened by the Court to be “held in contempt” if I filed anything else and three years later was sent a bill for $159.00. I started at the bottom and went to the top. I filed criminal complaints with the local D.A. and T.B.I.. I was thrown under the bus. Years later a similar instance, another piece of property, other local citizens being screwed by altered documents, a ocal business man took me to the FBI. They keep my info for 9months and then called to say they couldn’t do anything. I lost everything in this battle, my marriage, home, reputation in the community. My only son has suffered far more than me. Iknow that there is a JUDGE that keeps perfect records and that one day this will be heard. It has never been my desire to see these people hurt as they hurt me. My desire has been that they change, have a respect for everyones rights and moe importantly the truth. Sorry for going on and on. It still saddens me to this day that a right given to me under my constitution was so blantantly disregarded. Cecil didn’t just throw the petition in the trash. He basically threw me and my neighbors and many to come in the trash also. I always thought I would eventually find someone honest in the legal profession. To date, I haven’t but your thoughtful work has given me hope that maybe there are some out there. Thanks for your time and your insight. Phyllis Hovenden


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