In a post last month, I highlighted a document that the Law Library acquired for its rare book collection: a sea letter signed by George Washington and Thomas Jefferson in 1794 for the schooner Two Friends. In that post, I mentioned the 13th Amendment, which abolished slavery in the United States. In this post, I want to describe and provide some context for another new acquisition for the Law Library that relates to the reconstruction amendments: a document signed by President Andrew Johnson, giving the secretary of state warrant to affix the Great Seal of the United States to a presidential proclamation announcing Florida and North Carolina’s ratification of the 14th Amendment. To do this, I’ll address the ratification of the 14th Amendment, the role of the secretary of state in that process, the use of the seal of the United States, presidential proclamations in general, and finally, written warrant from the president for their passage under the seal.
The 14th Amendment granted citizenship to “All persons born or naturalized in the United States,” a provision that extended citizenship to formerly enslaved people. It also provided that the right to due process of law and equal protection of the law would henceforth apply both to federal and state governments. (U.S. Const. amend. XIV.)
The ratification of the 14th Amendment took place over the course of two years. The House of Representatives approved a Senate version of the Amendment on June 13, 1866, and three days later, Congress submitted the House Joint Resolution proposing the 14th Amendment to the Constitution to state legislatures for their consideration. Initially, only Tennessee among the states of the former Confederacy ratified the Amendment (in July of 1866). Some months later, on March 4, 1867, Congress enacted the Reconstruction Act of 1867, which established the framework under which states of the former Confederacy might be readmitted to the Union, one feature of which was the obligation to ratify the 14th Amendment. It was not until July 20, 1868, that Secretary of State William H. Seward certified that the Amendment had been ratified on July 9, 1868. The last states to ratify before that date were Florida, which ratified on June 9, 1868; North Carolina, which ratified on July 4, 1868 (after initially rejecting the measure on December 14, 1866); Louisiana (after rejecting the measure on February 6, 1867); and South Carolina (after rejecting it on December 20, 1866).
Today, the process of administering the ratification of constitutional amendments is the responsibility of the head of the National Archives and Records Administration (NARA), that is, the Archivist of the United States, with the assistance of the Director of the Federal Register. Once three-fourths of the states send certified notice of ratification to the Archivist, that office then publishes an official notice of certification that the amendment has been ratified in the Federal Register and the Statutes at Large. Prior to the creation of NARA in 1934, these responsibilities fell largely to the secretary of state. The secretary of state was the recipient and custodian of all federal legislation, beginning with the Records Act of 1789, “An act to provide for the safe-keeping of the Acts, Records, and Seal of the United States, and for other purposes.” (1 Stat. 68.) That act gave the secretary of state the responsibility to receive any “bill, order, resolution, or vote,” that has become law, to publish it in at least three American newspapers and to “carefully preserve the originals.” (1 Stat. 68., sect. 1.)
The Records Act also handed over to the secretary of state responsibilities that were formerly held by the secretary of Congress. An important example of these is the role of keeper of the seal of the United States. (1 Stat. 68., sect. 4). Under the Articles of Confederation, the Great Seal was in the custody of Secretary of Congress Charles Thomson who created in 1782 (along with attorney William Barton) the design of the seal that Congress finally adopted. Pursuant to the terms of the law, Thomson handed the seal over to John Jay, who had been secretary of foreign affairs under the Articles of Confederation and who continued in the new government for some time in a somewhat unofficial capacity. George Washington commissioned Thomas Jefferson to head the new Department of State on September 26, 1789, but Jefferson did not join the administration until March 22, 1790, at which time Jay stepped down. (Patterson, p. 152.)
The seal remains in the custody of the secretary of state today, where it is used to seal between 2,000-3,000 documents annually. The following documents now require application of the seal:
Instruments of ratification of treaties and other international agreements;
Proclamations of treaties and other international instruments;
Appointment commissions of ambassadors, foreign service officers;
Cabinet officers, and all other civil officers appointed by the president whose commissions are not required by law to issue under another seal; and
Assignment commissions for consular officers. (Great Seal, p. 12.)
In the past, however, many more documents received the seal than do today. Beginning in 1789, sea letters and ship’s passports, including Mediterranean passes, for instance, received the seal. So did letters of marque and reprisal, documents related to public debt, patents for lands or for inventions, presidential pardons, certain extradition warrants, full-powers for treaty negotiation, exequaturs, and ceremonial letters. (Patterson, pp. 346-364.) Presidential proclamations passed under the seal from 1789 to 1967. (A series of Executive Orders, notably Executive Order no. 11354, issued by President Lyndon Johnson on May 23, 1967, limited the category of proclamations requiring the seal to those related to treaties.) (Patterson, p. 362.) The document here signed by Andrew Johnson was written and signed in contemplation of a presidential proclamation that would announce the ratification of the 14th Amendment by two states, Florida and North Carolina. That proclamation was also to be signed by the president and impressed with the seal.
Section 4 of the Records Act required that the seal shall not be affixed to any such instrument “without the special warrant of the president therefore.” This last clause has generally been interpreted to require that the president must issue a written warrant if he wishes to authorize the secretary of state to place the seal on a document bearing his signature. (Patterson, p. 333-334.) Placing the seal on a presidential proclamation, then, required the president to issue a written warrant to authorize the seal’s use. The Law Library’s document is this type of written warrant authorizing the secretary of state to place the seal on a presidential proclamation.
It is interesting to remember that President Andrew Johnson, who signed this warrant on July 11, 1868, opposed the 14th Amendment. (Foner, p. 260.) Despite his involvement in what he called “ministerial” roles related to its ratification, he wished these to “be considered as purely ministerial, and in no sense whatever committing the Executive to an approval or a recommendation of the amendment to the State legislatures or to the people.” As the Republican-led Congress attempted to craft legislation for the reconstruction of the southern states, Johnson repeatedly exercised the veto against key pieces of that legislation. These included, among several others, a bill to extent the provisions of the Freedman’s Bureau Act of 1865 (versions of which Johnson vetoed twice), the Civil Rights Act of 1866, and the Reconstruction Act of 1867. In these three instances, Congress overturned Johnson’s veto.
Sources:
“The Great Seal of the United States.” United States Department of State Bureau of Public Affairs, https://diplomacy.state.gov/exhibits/explore-online-exhibits/the-great-seal/ (downloaded on 5.3.2022).
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