The "Missing 13th Amendment" and "Titles of Nobility"

     There is much talk on the Net regarding the alleged "missing" 13th amendment and a related position concerning "titles of nobility." I have followed the development of this research since it first got some notoriety years ago and my views are expressed below.

    A law review article regarding this issue is posted here. This is a large file and may take a few minutes to download.

     When Bill Benson and I tried to rip the 16th amendment out of the constitution, I had to immerse myself into the law of ratification of amendments. First, an amendment's ratification is a decision committed to the political branch of the government, Congress. The President and the courts play no role in the ratification process. When an amendment is proposed in the typical manner, States ratify the amendment and send notice of ratification to the Secretary of State. Once a sufficient number of States ratify, the Secretary of State proclaims its adoption. The number of States required to ratify an amendment is not limited to those in the Union at the time of the amendment's proposal. Although there is no litigated decision on the point, the accepted scholars declare that States admitted after the proposal of an amendment must likewise join in the ratification process. It seems that the courts would agree with these scholars.

     In reference to the "missing" 13th amendment, I have over the years had a number of people mail me material regarding the issue, which I have studied. In order to prevail on this argument, the proponents must refuse to count States that entered the Union after this amendment was proposed; they limit the number needed for ratification to those in the Union when this amendment was proposed in 1810. But even with this invalid limitation of the number of States needed to ratify, the proponents admit that they cannot prove that Virginia ratified. All they have are published copies of constitutions of the period that include this amendment. You cannot prove that an amendment was ratified without having the actual State ratifications of sufficient number to meet the constitutional threshold (If you wish to read my brief regarding the ratification of constitutional amendments, click here). The proponents do not have this essential proof of ratification. While this issue is an interesting study, there is no substance to it.

    But ignoring the problems regarding ratification of this "amendment" and presuming that it was ratified, what would it mean? The advocates of this argument claim that the term, "esquire," is a prohibited "title of nobility" within the scope of this non-ratified amendment. These people then argue as best I can tell that attorneys, having "titles of nobility," are thus agents of some monarch, apparently contending that attorneys really work for the Queen. This fits nicely into the argument made by the "we are Brits" crowd. However, I must note that I have never met an attorney who has met the Queen, let alone been paid by her; but clearly, I have never met the Queen and she certainly sends nothing to me.

     To prove their position, the "esquire" proponents quote the definition of this term from Black's law dictionary, often via inaccurate quotes. Here is an accurate quote of the definition of this word from Black's law dictionary, 4th edition (the one I bought while I was in law school). According to this dictionary, this word means: "In English law. A title of dignity next above gentleman, and below knight. Also a title of office given to sheriffs, serjeants, and barristers at law, justices of the peace, and others. 1 Bl.Comm. 406; 3 Steph. Comm. 15, note; Tomlins. On the use of this term in American law, particularly as applied to justices of the peace and other inferior judicial offices, see Christian v. Ashley County, 24 Ark. 151; Com. V. Vance, 15 Serg. & R., Pa., 37." Thus, an "esquire" is lower than a knight; if a knight is not a noble, then clearly an "esquire" could not be a noble.

     From Webster's 1828 American Dictionary, the word "esquire" is defined as follows: "Properly, a shield-bearer or armor-bearer, scutifer; an attendant on a knight. Hence in modern times, a title of dignity next in degree below a knight. In England, this title is given to the younger sons of noblemen, to officers of the king's court and of the household, to counselors at law, justices of the peace, while in commission, sheriffs and other gentlemen. In the United States, the title is given to public officers of all degrees, from governors down to justices and attorneys. Indeed the title, in addressing letters, is bestowed on any person at pleasure, and contains no definite description. It is merely an expression of respect." Thus from Websters, we know that in America this term denotes nothing but respect and not a "title of nobility."

     The real question which should be asked of the "missing 13th amendment" crowd is this: what is a title of nobility? These advocates simply do not want you to know this meaning because their whole argument would be destroyed and the fraud they are playing exposed. In Black's law dictionary, 4th edition, the word "nobility" is defined as follows: "In English law, a division of the people, comprehending dukes, marquises, earls, viscounts and barons." This same definition then quotes Blackstone's Commentaries as authority for what is a "title of nobility":

"These had anciently duties annexed to their respective honors. They are created either by writ, i.e., by royal summons to attend the house of peers, or by letters patent, i.e., by royal grant of any dignity and degree of peerage; and they enjoy many privileges, exclusive of their senatorial capacity. 1 Bl. Comm. 396."
From Webster's American Dictionary of 1828, "nobility" is defined in relevant part as follows: "The qualities which constitute distinction of rank in civil society, according to the customs or laws of the country; that eminence or dignity which a man derives from birth or title conferred, and which places him in an order above common men. In Great Britain, nobility is extended to five ranks, those of duke, marquis, earl, viscount and baron." It can't be questioned that the source for both of the above definitions is Blackstone's Commentaries because he stated in Book 1, Chapter 12, §533, of his work that the nobles "are dukes, marquises, earls, viscounts and barons."

     We clearly know that in England, the nobility consists of "dukes, marquises, earls, viscounts and barons." Precisely where is a knight or even an esquire defined as being a part of the nobility? The truth is that in English law, an esquire is not a part of the nobility. But in America, the term is meaningless. Again, this "esquire" aspect of the "missing 13th amendment" argument is another example of the very bad legal scholarship emanating from the crazy group in this movement known as the "liaryers." They have "titles of stupidity."

     Has this argument done damage? I know of a case up in Cincinnati styled United States v. Ed Badley, Gar Bradley and another of Ed's sons. They were indicted in the fall of 1998 for federal tax crimes and they filed pleadings which were predicated upon this "missing" 13th amendment argument. They went to trial pro se in early 1999 and used this and the "non de guerre" issue (names in CAPS) for the 3 weeks that the trial lasted. The jury was back with guilty verdicts in 45 minutes.

    Further in reference to this insane argument, I offer the following which is the gist of an e-mail to me regarding this issue:

Very briefly put, the Title of Nobility Amendment (TONA) was proposed in 1810. There is absolutely nothing in the legislative history to indicate that it was written with lawyers (much less bankers) in mind; especially since most of the members of Congress who voted for it were themselves lawyers. In fact, there is very good history that indicates that it was proposed as a direct slap at a Maryland debutante, Betsy Patterson, who purportedly married Jerome Bonaparte, brother to the French emperor and later the king of Westphalia, in 1803 and became the center of mid-Atlantic high society as a result, either being called or actually encouraging people to call her the Duchess of Baltimore. By 1808 she was no longer married to Bonaparte and there might be a small doubt whether there had actually been a marriage, and she gradually slipped into obscurity.

In 1815, Congress awarded a contract to print up the collected federal laws to a Philadelphia publisher, Bioren & Duane, who churned out a set of the Laws of the United States. In the introduction there was a caveat that the proposed 13th amendment (the TONA) was, at the time of printing, not yet adopted into the Constitution but it could accumulate the requisite number of ratifications any day now * * * but this note was about 60 pages removed from the text of the proposal itself, which was simply captioned 13th Amendment and immediately followed the validly adopted 12th Amendment, these two separated from the main text of the Constitution and the Bill of Rights by many pages of intervening Acts of Congress.  This could be viewed as sloppy editorial style.

Apparently the possibility of misunderstanding the printed layout didn't actually occur to anyone until 1818 when Congress also contracted for a Philadelphia printer to churn out pocket editions of the US Constitution * * * and this printer, obviously relying on the Bioren & Duane collection but not having noticed the introduction, included the "13th  Amendment".  When a member of Congress spotted it, he raised a ruckus and the House passed a resolution asking the President (Monroe) to report back if the TONA had actually be adopted. Monroe, who had been Sec. of State, kicked the project over to his Sec. of State, John Quincy Adams, who conducted considerable research and reported (twice) in 1819 that not quite enough states had ratified the proposal to accomplish its adoption. So Bioren &  Duane had been wrong.

Thereafter, no Congressionally sponsored printing of  the Constitution contained the TONA as if adopted. But other printers, sometimes putting the finishing touches on collections of state laws, made the same mistake in the same way. But in 1845, Congress again contracted for an official collection of federal laws, this time with Little & Brown of  Boston, the series called Statutes at Large, which is still printed by  the US govt, and the 1845 edition very clearly showed that only 12 amendments had been adopted and the TONA had not been. Because the Little & Brown edition rapidly replaced the Bioren & Duane edition, the occurrence of the error in various editions of the Constitution rapidly diminished.

Additionally, a number of RELIABLE and authoritative references made clear that only 12 amendments had been adopted (up to 1865), including the 1833 Commentaries by Justice Joseph Story, which very explicitly said that the TONA had not been adopted. This is how the error crept in, and was perpetuated. It's worth noting that when the Congress was proposing yet another amendment in 1860 - this one for state's rights - it called it the 13th and nobody then quibbled that the number was already taken, and when that proposal was not adopted, the real 13th amendment was proposed in 1865 and then again nobody said that there was already an amendment with that number.

    If you wish to read a good article regarding the flaws of the "missing 13th amendment" argument, please visit Jol Silversmith's webpage.

    Here is my final comment about this issue. I have been engaged in a Net battle with one of the chief proponents of this argument, who has stated as follows:

"I remind you that you are defending your position by quoting English law, and in America, we are dealing with in principle with the spirit of the law. In England Esquire may not be considered a title of nobility, but in America under American principle, Esquire is a title of nobility as it is a privileged class different than the common man."
This man has relied upon an old Alabama case, Horst v. Moses, to assert that a mere privilege constitutes a title of nobility. This prompted me to address his completely erroneous contention in the following manner:
Hey * * *,

 Alabama has long had a constitutional provision which reads as follows:

"That no title of nobility or hereditary distinction, privilege, honor, or emolument shall ever be granted or conferred in this state * * * "

Even today, this provision appears in our current constitution as Art. 1, §29. You assert that lawyers have a title of nobility, and your whole argument now finally rests upon this provision of the Alabama Constitution and the Alabama case of Horst v. Moses.

 For a long time now, people have been deliberately mislead by the "title of nobility" crowd to believe that lawyers have titles of nobility, which I and every other lawyer have denied. At first, these "nobility" advocates just broadly asserted this proposition without informing people that historically lawyers and "esquires" were not nobles, and that "In Great Britain, nobility is extended to five ranks, those of duke, marquis, earl, viscount and baron." This misleading was, as far as I am concerned, intentional, and it was only corrected when I pointed out to the people you mislead this historical fact that there were only five classes of nobles. I even posted this information to my web site.

 In our recent exchange regarding this matter, you have finally admitted that nobility encompasses only the five classes of "duke, marquis, earl, viscount and baron." But as a last straw, you find comfort in the Alabama decision of Horst v. Moses, 48 Ala. 129 (1872). You rely upon what Justice Saffold wrote in this case for your conclusion that even a privilege amounts to a "title of nobility." You reject my argument that such "distinction, privilege, or honor" must be hereditary. I am afraid that you loose because you simply have not read Horstin a long time (and probably never have). Let me tell you about that case.

 This case was about gambling, an activity now generally prohibited by our constitution. Here, the Alabama legislature enacted a law to allow Moses and his partnership to conduct lotteries and other gambling activities, provided such activities benefitted the schools. Moses and his buddies were required by law to pay $1000 every year for this gambling franchise. They paid the first year fee, but failed to pay later years. But with this franchise, Moses and his buddies toured the state engaged in all sorts of gambling activities which the opinion in the case mostly leaves to your imagination; in fact, the reporter so stated, therefore Moses and his partners were probably like the mobsters who started Reno and Vegas. In any event, the whole affair turned sour and the legislature rescinded the act which granted the franchise to Moses & Co. However, Moses & Co. continued and the cops in Mobile started arresting Moses and his partners (along with some patrons, Heaven forbid!!), and this lawsuit resulted. Moses & Co. obtained an injunction against the arrests from the trial court judge and the Mayor of Mobile, Horst, appealed to the Alabama Supremes.

 There were 6 justices on the court in 1872 and Justice Peck was the Chief Justice. All 6 justices agreed that the injunction had been wrongfully issued. The majority of 4 justices (Peck wrote this part of the decision) simply concluded that by Moses' failure to pay the $1000 franchise fee after the first year, the franchise was forfeited and thus Moses & Co. were operating illegally. It is in the separate opinions of Justice Saffold and Peters where the discussion about the above provision of the Alabama Constitution arose.

 Justice Saffold agreed that the injunction should not have been issued, but he separately concluded that there should be limits to the authority of the legislature to grant franchises. In his argument, he mentioned the above provision, but only to buttress his argument that there had to be some innate limits to the legislature's power to grant franchises; but please remember, that this was just solely his opinion. Thus the part of Horst which you rely upon for your "titles of nobility" argument comes from a separate opinion. But it is Justice's Peters separate opinion which destroys your argument.

 Justice Peters wrote separately to address what Saffold had brought up. Peters stated that a"hereditary distinction" had to be "hereditary":

"Had this been their purpose, the language used would have been without any qualifying and limiting adjective. The word ‘hereditary' would have been left out of the sentence altogether. This word qualifies the whole series of particulars enumerated in the sentence, as if it had been repeated before each * * * The power to grant and confer privileges, honors or emoluments, intended to be prohibited, were such as were ‘hereditary,' and not such as were limited to a reasonable length of time."

Justice Saffold did not conclude that Moses & Co. had a title of nobility or similar privilege, and the reason why the company did not was explained by Peters: such a title or privilege within the meaning of the Alabama Constitution is one which is hereditary. This is precisely the argument I made to you. The Horst case is the wrong one to rely upon for an argument that a "title of nobility" is a mere privilege. That court concluded that it must be "hereditary."

 Please remember, that whenever you rely upon any given case, you should read it first before you put your mouth in gear. I strongly encourage you to forward this e-mail to those other parties who have been copied by you in this exchange. But in any event, I will post this message to my site.



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