After examining Dodge's evidence of multiple publications of the "missing" Amendment, Senator Mitchell and Mr. Hartgrove conceded the Amendment had been published by several states and was ratified by twelve of the seventeen states in the Union in 1810. However, because the Constitution requires that three-quarters of the states vote to ratify an Amendment, Mitchell and Hartgrove insisted that the 13th Amendment was published in error because it was passed by only twelve, not thirteen States.
Dodge investigated which seventeen states were in the Union at the time the Amendment was proposed, which states had ratified, which states had rejected the amendment, and determined that the issue hung on whether one last state (Virginia) had or had not, voted to ratify. After several years of searching the Virginia state archives, Dodge made a crucial discovery: In Spring of 1991, he found a misplaced copy of the 1819 Virginia Civil Code which included the "missing" 13th Amendment.
Dodge notes that, curiously, "There is no public record that shows that this book [the 1819 Virginia Civil Code] exists. It is not catalogued as a holding of the Library of Congress nor is it in the National Union Catalogue. Neither the state law library nor the law school in Portland were able to find any trace that this book exists in any of their computer programs.
Dodge sent photo-copies of the 1819 Virginia Civil Code to Senator Mitchell and Mr. Hartgrove, and explained that, "Under legislative construction, it is considered prima facie evidence that what is published as the officials acts of the legislature are the official acts." By publishing the Amendment as ratified in an official publication, Virginia demonstrated: (1) that they knew they were the last state whose vote was necessary to ratify this 13th Amendment; (2) that they had voted to ratify the Amendment; and (3) that they were publishing the Amendment in a special edition of their Civil Code as an official notice to the world that the Amendment had indeed been ratified.
Dodge concluded, "Unless there is competing evidence to the contrary, it must be held that the Constitution of the United States was officially amended to exclude from its body of citizens any who accepted or claimed a title of nobility or accepted any special favors. Foremost in this category of ex-citizens are bankers and *lawyers." *ie. members of the bar association.
RATIONALES (for Ratification)
Undeterred, Senator Mitchell wrote that, "Article XIII did not receive the three-fourths vote required from the states within the time limit to be ratified." (Although his language is imprecise, Senator Mitchell seems to concede that although the Amendment had failed to satisfy the "time limit," the required three-quarters of the states did vote to ratify.)
Dodge replies: "Contrary to your assertion . . ., there was no time limit for amendment ratification in 1811. Any time limit is now established by Congress in the Resolves for proposed amendments.
In fact, ratification time limits did not start until 1917, when Section 3 of the Eighteenth Amendment stated that:
This Article shall be inoperative unless it shall have been ratified within seven years fromthe date of submission . . . . to the States by Congress.
A similar time limit is now included on other proposed Amendments, but there was no specified ime limit when the 13th Amendment was proposed in 1810 or ratified in 1819.
Senator Mitchell remained determined to find some rationale, somewhere, that would defeat Dodge's persistence. Although Senator Mitchell implicitly conceded that his "published by error" and "time limit" arguments were invalid, he continued to grope for reasons to dispute the Ratification:
regardless of whether the state of Virginia did ratify the proposed Thirteenth Amendment on March 12, 1819, this approval would have not been sufficient to amend the Constitution. In 1819, there were twenty-one states in the United States and any amendment would have required approval of sixteen states to amend the Constitution. According to your own research, Virginia would have only been the thirteenth state to approve the proposed amendment.
Dodge replies: "Article V [amendment procedures] of the Constitution is silent on the question of whether or not the framers meant three-fourths of the states at the time the proposed amendment is submitted to the states for ratification, or three-fourths of the states that exist at some future point in time. Since only the existing states were involved in the debate and vote of Congress on the Resolve proposing an Amendment, it is reasonable that ratification be limited to those States that took an active part in the Amendment process."
Dodge demonstrates this rationale by pointing out that, "President Monroe had his Secretary of State . . . [ask the] governors of Virginia, South Carolina, and Connecticut, in January, 1818, as to the status of the amendment in their respective states. The four new states (Louisiana, Indiana, Mississippi, and Illinois) that were added to the union between 1810 and 1818 were "not even considered"." (italics added)
From a modern perspective, it seems strange that not all states would be included in the ratification process. But bear in mind that our perspective is based on life in a stable nation that has added only five new states in this century -- about one every eighteen years. However, between 1803 and 1821 (when the 13th Amendment ratification drama unfolded), they added eight states -- almost one every two years. This rapid national growth undoubtedly fostered attitudes different from our own. The government had to be filled with the euphoria of a growing Republic that expected to quickly add new states all the way to the Pacific Ocean and the Isthmus of Panama. The government would not willingly compromise or complicate that growth potential with procedural obstacles; to involve every new state in each on-going ratification could inadvertently slow the nation's growth.
For example, if a territory petitioned to join the Union while an Amendment was being considered, its access to statehood might depend on whether the territory expected to ratify or reject a proposed amendment. If the territory was expected to ratify the amendment, government officials who favored the amendment might try to accelerate the territory's entry into the Union. On the other hand, those opposed to the amendment might try to slow or even deny a particular territory's statehood. These complications could unnecessarily slow the entry of new states into the nation, or restrict the nation's ability to pass new amendments. Neither possibility could appeal to politicians.
Whatever the reason, the House of Representatives, along with President James Monroe, resolved to ask only Connecticut, South Carolina, and Virginia for their decision on ratifying the 13th Amendment -- they did not ask the decisions of the four new states. Since the new states had Representatives in the House who did not protest when the resolve was passed, it is apparent that even the new states agreed that they should not be included in the ratification process.
In 1818, the President, the House of Representatives, the Secretary of State, the four "new" states, and the seventeen "old" states, all clearly believed that the support of just Thirteen states was required to ratify the 13th Amendment. That being so, Virginia's vote to ratify was legally and lawfully sufficient to ratify the "missing" Amendment in 1819 (and would still be so today).