The Amendment Disappears
In 1829, the following note appears on p. 23, Vol. 1 of the New York
Revised Statutes:
"In the edition of the Laws of the U.S. before referred to, there is an amendment
printed as article 13, prohibiting citizens from accepting titles of nobility or honor, or
presents, offices, &c. from foreign nations. But, by a message of the president of the
United States of the 4th of February, 1818, in answer to a resolution of the house of
representatives, it appears that this amendment had been ratified only by 12 states, and
therefore had not been adopted. See Vol. IV of the printed papers of the 1st session of
the 15th congress, No. 76." In 1854, a similar note appeared in the Oregon Statutes.
Both notes refer to the Laws of the United States, 1st vol. p. 73 (or 74).
It's not yet clear whether the 13th Amendment was published in Laws of the United States,
1st Vol., prematurely, by accident, in anticipation of Virginia's ratification, or as part
of a plot to discredit the Amendment by making is appear that only twelve States had
ratified. Whether the Laws of the United States Vol. 1 (carrying the 13th Amendment) was
re-called or made-up is unknown. In fact, it's not even clear that the specified volume
was actually printed -- the Law Library of the Library of Congress has no record of its
existence.
However, because the notes authors reported no further references to the 13th Amendment
after the Presidential letter of February, 1818, they apparently assumed the ratification
process had ended in failure at that time. If so, they neglected to seek information on
the Amendment after 1818, or at the state level, and therefore missed the evidence of
Virginia's ratification. This opinion -- assuming that the Presidential letter of
February, 1818, was the last word on the Amendment -- has persisted to this day.
In 1849, Virginia decided to revise the 1819 Civil Code of Virginia (which had contained
the 13th Amendment for 30 years). It was at that time that one of the code's revisers (a
lawyer named Patton) wrote to the Secretary of the Navy, William B. Preston, asking if
this Amendment had been ratified or appeared by mistake. Preston wrote to J. M. Clayton,
the Secretary of State, who replied that this Amendment was not ratified by a sufficient
number of States. This conclusion was based upon the information that Secretary of State
J.Q. Adams had provided the House of Representatives in 1818, before Virginia's
ratification in 1819. (Even today, the Congressional Research Service tells anyone asking
about this 13th Amendment this same story: that only twelve states, not the requisite
thirteen, had ratified.) However, despite Clayton's opinion, the Amendment continued to be
published in various states and territories for at least another eleven years (the last
known publication was in the Nebraska territory in 1860).
Once again the 13th Amendment was caught in the riptides of American politics. South
Carolina seceded from the Union in December of 1860, signalling the onset of the Civil
War. In March, 1861, President Abraham Lincoln was inaugurated.
Later in 1861, another proposed amendment, also numbered thirteen, was signed by President
Lincoln. This was the only proposed amendment that was ever signed by a president. That
resolve to amend read: "ARTICLE THIRTEEN, No amendment shall be made to the
Constitution which will authorize or give to Congress the power to abolish or interfere,
within any State, with the domestic institutions thereof, including that of persons held
to labor or service by the laws of said State." (In other words, President Lincoln
had signed a resolve that would have permitted slavery, and upheld states' rights.) Only
one State, Illinois, ratified this proposed amendment before the Civil War broke out in
1861.
In the tumult of 1865, the original 13th Amendment was finally removed from our
Constitution. On January 31, another 13th Amendment (which prohibited slavery in Sect. 1,
and ended states' rights in Sect. 2) was proposed. On April 9, the Civil War ended with
General Lee's surrender. On April 14, President Lincoln (who, in 1861, had signed the
proposed Amendment that would have allowed slavery and states rights) was assassinated. On
December 6, the "new" 13th Amendment loudly prohibiting slavery (and quietly
surrendering states rights to the federal government) was ratified, replacing and
effectively erasing the original 13th Amendment that had prohibited "titles of
nobility" and "honors".