We must now follow the individual path of the legislation and announcements by the Secretary(s) of State in the case of South Carolina. Upon receiving the Resolution from Congress proposing the amendment in 1809, South Carolina referred the matter to a select committee for recommendations. The committee's report was completed on November 28, 1811 and returned by the committee on December 21, 1811. The report recommended passage of the amendment.¹⁹ South Carolina's House of Representatives took up the Select Committee report that same day, but postponed the matter without coming to any final decision.²⁰ In September of 1813, South Carolina's governor sent a message to the House of Representatives enclosing New Hampshire's Resolution approving the 13^th amendment, and reminding them that no decision had yet been made.²¹ The governor's letter to the legislature containing news of New Hampshire's passage recommends that out of respect for Congress and the other states, the amendment should be disposed of in the current session. A new select committee, with Benjamin Huger as Chairman, was appointed to examine the previous legislature's proceedings. Both the select committee report of November 28, 1811 and the proposing Resolution from the U.S. Congress were ordered to lie on the table, and no further action was taken at that time.²² The new committee examined the prior proceedings, and recommended that the amendment be rejected. In its report, the committee explains that it now feels Congress is already empowered to refuse permission to individuals to accept presents from foreign powers and has already done so, and further that the new amendment might later lead to negative consequences presently unforeseen. This report was ordered to be considered on the following Thursday. Legislatively, this was the last time the Legislature of South Carolina even considered taking any action. Nothing further was ever done.²³

Some two years later, on October 27, 1814, Governor Alston of South Carolina sent a letter to then-Secretary of State James Monroe enclosing copies of the proceedings of the State Senate and informing the Secretary that, "the question of adoption or rejection, on the proposed amendment, has never been taken by this state." The Secretary then notes receipt of the proceedings to date and marks the amendment as "Not finally acted upon" in the State Department records.²⁴

Several years later, in January of 1818, pursuant to the question raised by Congress, President James Monroe (since elected to that office) has his Secretary of State, John Quincy Adams, inquire of the governors of Virginia, South Carolina, and Connecticut as to the status of the 13^th Amendment in their respective States. (The President does, apparently, recall that there is no definitive answer yet from South Carolina.)

On February 3, 1818, Secretary of State John Quincy Adams sends a two-page report to the President, showing ratifications by 12 states, and rejections by New York and Rhode Island. The report goes on to explain the slow communication from Connecticut, and states that Connecticut has "not ratified" the amendment. South Carolina and Virginia are each listed as not yet having answered. It is noteworthy that the report by Adams is concerned only with the seventeen states that participated in the initial process under Article V of the Constitution. He does not report with regard to Louisiana, Indiana or Mississippi, which did entered the union after 1810 when the ratification process was already in motion. Clearly, he does not consider those states a part of the process, and President Monroe did not ask Adams to direct inquiries to them. There is no record of any objection whatsoever from the representatives of these newly-admitted states, though they were present and seated within the Congress.²⁵

The following day, February 4, 1818, pursuant to a Resolution of the House, President Monroe sends a letter to the House of Representatives, assuring them that inquiries are being made in South Carolina and Virginia. "...I transmit to the house a detailed report from the secretary of state, which contains all the information that has been received upon that subject."²⁶ Two days later, on February 6, 1818, President Monroe reports to the House that Secretary Adams has written to the governors of Virginia, Connecticut, and South Carolina to tell them that the proposed Amendment has been ratified by twelve States and rejected by two (New York and Rhode Island), and has asked the governors to notify him of their legislature's position.²⁷ Somehow, Connecticut was left out on February 4^th, but included on February 6^th. It is not clear at all whether President Monroe thought that Connecticut was yet capable of reversing itself, whether the "not ratified" phrase left him confused as to whether the phrase meant that Connecticut had not made a decision yet, or whether he simply noted that the State Department was simply lacking Connecticut's formal response and wished to correct this error.

(Mr. Buck had recently asked Congress if he might serve as the Consul General to Hamburg.)³¹ Fortunately, a mistaken status report does not make the law, however well-intentioned. Ó JoEllen Perez, 2000

Curiously, in examining the Documentary History of the Constitution of the United States of America, as published by the State Department in 1894, we find that the table of contents is arranged with Amendments in chronological order, then ratifying states below each, then rejecting states below that. South Carolina is listed amongst those rejecting the 13^th Amendment. Wherever that determination came from when the records were being compiled for the book, it certainly could not have come from the enclosed record itself. The record from the South Carolina House of Representatives, certified by their clerk, shows that the report from the second select committee recommending rejection went so far as to draft a resolution to that effect, but leaving the dates of the original proposal from Congress blanked. The name Benjamin Huger, Chairman of the select committee is shown below it, but without any endorsement. (The Resolution could not be signed off until a vote had been taken.) There is a subsequent note that the report was to be taken under consideration on the following Thursday. And there it ends, followed by the Clerk's certification that this is a true extract from the Journal of the House, and then a note from the Secretary of State's office that the extract had been received in Governor Alston's October 27^th, 1814 letter.

It is difficult to believe that in all the 76 years between 1818 when the mistaken status report was given to Congress, and the 1894 publication of the State Department 's History, no one, including the person(s) transcribing the original record for printing, ever seems to have actually read the entry or to have noticed that the State Department's notes do not match either the report given to Congress or the table of contents of the History itself. The evidence is, however, plainly there in black and white. In 1814, when the governor's letter and the journal extracts were sent up from South Carolina, James Monroe himself was the Secretary of State who made the original note "Not finally acted upon". We know that he later had the question asked of South Carolina again in 1818 when he was President. But it is the more than 7 decades which passed between the mistaken status report to Congress and the publication of the History which show how a single error can be propagated, such that it can actually obscure the law itself, or in this case, the law in its making. No reply from South Carolina to the 1818 inquiry is in the State Department's published record.

Little more than a month after the erroneous report was given in Congress, in the April 25, 1818 edition of The Niles Register, a Baltimore newspaper published by H. Niles of Baltimore, an article appears, forwarded by the National Intelligencer.³² Congress being out of session at that time, Mr. Niles took the opportunity to review much of the congressional business that had taken place prior to the April publication date. An article states that while everyone believed the 13^th Amendment had been duly ratified, and although Congress had already printed an edition of the Constitution which included the amendment, South Carolina had failed to ratify, and therefore the amendment was not law after all. As with the State Department earlier, no mention is made of Virginia. The Niles article states clearly that it was forwarded from The National Intelligencer, a Washington newspaper, but makes no mention as to where the National Intelligencer obtained this information. Had the Intelligencer reporter directly examined the records of the State Department, it would have been apparent in the certified copies, that while South Carolina had so far failed to ratify, it had also failed to reject the amendment.

However, had the reporter relied on the report given in Congress by Secretary Adams, it would have been believed that South Carolina had actually rejected the amendment. It is clear that the article relied on the congressional record and not the State Department documentation. This is evident both in the actual content of the article, and because the Niles Register, in that very same edition, published the day by day record of both houses for that session, right down to the Private Acts. The mistaken news article had now appeared in two widely read newspapers, again erroneously stating that South Carolina had "not passed" and had therefore rejected the amendment. Also, at least in The Niles Register, the outright claim was made that because of this, the amendment was not law. Virginia's say in the matter is completely disregarded, and no explanantion whatsoever is given. However, newspaper articles do not make the law.

[return to top]

Continue