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History: the “Duchess of Baltimore” and the 13th Amendment that never was.

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Now here’s a bizarre story. In 1810, Congress proposed a Thirteenth Amendment to the Constitution which stated that titles of nobility conferred upon Americans were invalid, and that anyone who got one would cease to be a citizen of the United States. The amendment was never passed, but its mistaken inclusion in an 1815 book about the Constitution has fueled controversy ever since–a very bizarre controversy.

I happened upon this story while reading a web page demolishing the ridiculous and nonsensical arguments of “tax protestors,” delusional folks who come up with false but often hilarious “legal” arguments as to why they don’t have to pay taxes. The page’s story on the “phantom 13th Amendment” is pretty interesting. Here it is:

In 1810 the Congress proposed a Thirteenth Amendment (the Twelfth having been adopted in 1804) to the effect that “If any citizen … shall accept, claim, receive or retain any title of nobility or honor … from any emperor, king, prince or foreign power, such person shall cease to be a citizen … and shall be incapable of holding any office … or either of them”.  This proposal is appended to some editions of the Constitution as an unratified proposal.

This 1810 proposal was inspired by the instance of Elizabeth Patterson, a Baltimore socialite who, in 1803, apparently married the brother of the Emperor Napoleon and insisted on being identified as a duchess (the bona fides of her alleged marriage were eventually disputed by the Bonaparte family, which eventually obtained a divorce); the story is told in “The Phantom Amendment & the Duchess of Baltimore” by W.H. Earle, American History Illustrated, November 1987.  The proposed amendment had accumulated only 12 state ratifications,  the last in December 1812 by which time it would have required 14 to be adopted.

However, in 1815 there was published by Bioren & Duane of Philadelphia, under a government contract, a five volume set titled “Laws of the United States”, which printed the proposal as “Article 13” immediately following the authentic 11th and 12th Amendments on page 74 of the first volume; however more than 75 pages earlier, in the volume’s introduction, the editors had cautioned (on page ix), “There had been some difficulty in ascertaining whether the amendment proposed, which is stated as the thirteenth, has or has not been adopted by a sufficient number of the state legislatures….  It has been considered best, however, to publish the proposed amendment in its proper place, as if it had been adopted, with this explanation, to prevent misconception.”   It thereafter appears that several editors or publishers of other editions of the US Constitution relied on the Bioren & Duane edition when working up their own texts of the Constitution (sometimes mentioning the Bioren & Duane edition by name as their source) but missed this editorial caution and thereby were misled into including this 1810 proposal as if it had been adopted.

In 1813, the Secretary of State, James Monroe, sent a circular letter to all the governors inquiring about further ratifications of this proposed amendment, without result. However, in 1817, the House of Representatives arranged to have a pocket edition of the Constitution printed up for distribution and when these copies arrived containing the so-called Thirteenth Amendment, the House on the last day of 1817 formally asked the President for verification of whether this was validly part of the Constitution.  The President, James Monroe, presented the House with two reports of his Secretary of State, John Quincy Adams, which confirmed that there had been only twelve state ratifications, an insufficient number for adoption, and these were published as Messages from the President on February 6, and March 2, 1818.  The Congress was apparently satisfied with these reports and thereafter this 1810 proposal never again appears as part of the Constitution in any edition published by any part of the federal government.

What does this have to do with not paying your taxes? Absolutely nothing. However, “tax protestors”–people who really really really really really hate paying taxes–have claimed that this “Thirteenth Amendment” was in fact passed. (The real Thirteenth Amendment, the one that abolished slavery, was passed in April 1865). Under the fake “Thirteenth Amendment,” tax protestors claim that “Congressman,” “Senator,” “judge” or even “attorney” are “titles of nobility” that the Amendment prohibits, and anyone who has them is not a U.S. citizen, which means the tax laws were passed by non-citizens, which (supposedly) means nobody owes taxes.

Yeah, I know, it’s pretty silly, but it’s no sillier than other tax protest arguments like “Federal Reserve Notes are not money” or “taxes are voluntary and therefore no one owes them.” Needless to say, these arguments have never prevailed in court, not even once.

Anyway, from a historical standpoint, the story of the Thirteenth Amendment that never was and the “Duchess of Baltimore” was pretty interesting, and one I hadn’t heard of before. Fascinating stuff!

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3 Comments

  1. My favorite tax protester nuttery is the red crayon one. It’s so crazy, I’m surprised anyone ever fell for it.

  2. Bernard J. Sussman

    I am the author of the paragraph quoted above. I will add that, repeatedly, Justices of the US Supreme Court – sometimes singly and sometimes together – have made clear that the TONA (Titles Of Nobility Amendment) was never adopted. The number of books mistakenly setting forth the TONA as the adopted 13th Amendment is very small compared to the number that don’t, and the frequency of such mistaken citations drops markedly after 1845, when an entirely new set of federal statutes, U.S. Statutes at Large, was begun by Little & Brown, of Boston, under a federal contract (it is now being published by the US Govt Printing Office), to replace the Bioren & Duane edition, and the Statutes at Large printed in the first volume the complete Constitution as of 1845, with only 12 Amendments; the TONA was relegated to another volume, among Congressional resolutions. The Bonaparte family had no trouble proving that Jerome was under-age when he married Betsy Patterson, so the marriage was annulled even before the TONA was proposed in 1810, and Betsy Patterson faded into obscurity.
    To further show that the TONA was never adopted, the text itself provides a choice of at least two different penalties, but Congress NEVER adopted any laws indicating what sort of process or what sort of evidence would be needed to deal with such cases, nor which penalty was to be used in which situatons.
    The usual nonsense is that “Esquire” is a “title of nobility” — it never was, even in England — and in the UK it is utterly unregulated and anyone can attach to his name — it was never bestowed by a monarch and American lawyers never “received” this attachment to their names by any ceremony or authority, either domestic or foreign; it appears that it simply became a habit, almost a tradition, before WW2, an era when many, perhaps most, lawyers learned their profession by apprenticeships instead of lawschool and therefore had no academic degrees trailing their names and so they attached “Esq.” where other learned professions would have abbreviations of university degrees. Some of the nuts even claim that TONA also punished bankers, although I am really at a loss to guess what “title” bankers got from foreign royalty.

    • Bernard, thanks for dropping by! I love your pages wrecking the extremists’ legal arguments. They are very impressively researched and documented. One might think, “Why do so many nuts continue to use these long-discredited arguments?” but the answer is, of course, that they choose to believe they haven’t been discredited (or that they make sense in the first place). When I clerked for a federal magistrate years ago I remember a loony defendant who tried to stop the foreclosure of his farm by trotting out the old fringe-on-the-flag nonsense. His brief was a bizarre science fiction story of how the government was secretly overthrown in the 1930s by FDR or Goldman-Sachs or Shirley Temple or aliens from planet Magroob or something. Really wacky.

      One thing I notice that’s a common thread in these arguments, tax protestors and other extremists, is their almost universal belief that form trumps substance. The “patriots” who change their names to all capitals and punctuation like CLIV3N BUNDY thinking it will allow them to escape federal process, or hinging arguments on a strained interpretation of one word, or some technical mistake (or perceived mistake) like this proposed amendment appearing in certain books–all of these assertions essentially flow from an assumption that government and legal processes are totally formalistic, obsessed with minor detail to the exclusion of real substance. I would imagine the IRS’s “substance over form” concept is a rude awakening to most of these people. But you would probably know better than me.

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