09.14.2015
  • United States

Not Waiting for Deliverance

Even before the Thirteenth Amendment was ratified, enslaved women struggled for the passage of the Enlistment Act of 1865 and their own emancipation.

An African-American Soldier with Wife and Daughters.

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As Abraham Lincoln addressed the nation at his Second Inaugural on March 4, 1865, almost 100,000 slaves in the border states loyal to the Union enjoyed freedom for the first time. All were women and children, emancipated on that day by an act of Congress designed to encourage enlistments by black men in the Union army.

Meanwhile, on the steps of the Capitol, the president spoke of the Civil War as punishment for the sins of slavery, intoning “Woe unto the world” but envisioning peace, “with malice toward none.”

Unlike Lincoln’s words, the Enlistment Act has been forgotten. It has no place in most histories of slave emancipation and has disappeared from public memory. No monuments exist to mark it. But this moment of wartime liberation was a turning point in the downfall of American slavery, one in which slaves played a leading part in transforming the Civil War into a war for abolition.

Adopted while the Thirteenth Amendment awaited ratification by the states, the Enlistment Act declared “forever free” the black soldier’s wife and children. By 1865, saving the Union had become inseparable from destroying slavery. But as the bloodshed continued, men still enslaved in the border states refused to wage war for the Union unless, in exchange, they won their families’ freedom as well as their own.

Reaching to areas exempt from the Emancipation Proclamation, which applied only to states in rebellion, the Enlistment Act brought liberation to slaves owned by Union masters: human property that Lincoln had pledged the Civil War would leave untouched.

This final measure of military emancipation was revolutionary. In a world in flux, where constitutional change flowed from the tides of war, the Enlistment Act grounded abolition in slave marriage, a bond unrecognized by Southern law. It gave liberating force to the domestic life created by slaves in assertions of their humanity, affirming precisely what the peculiar institution denied — the right of chattel property to marry and have a family.

And, for the first time, Congress stripped loyal slaveholders of property without compensation, a challenge to the takings clause of the Fifth Amendment, which prohibits uncompensated public appropriation of private property. The aim of Congress was both to fill the Union army with black soldiers and to hasten the end of slavery. But the enlistment measure had its roots in the impatience of slaves for liberation. “Mr. president It is my Desire to be free,” a Maryland slave woman wrote to Lincoln in 1864, “please send me word this week. Or as soon as possible and oblidge [sic].”

A Crusade Against Slavery

For nearly a year, Congress had debated two abolition decrees: one became the Thirteenth Amendment; the other was the Enlistment Act. The amendment altered the fundamental law enshrined in the Constitution. The act created a soldier’s quid pro quo under the war power of Congress. Both broke the bonds of slavery, converting chattel property into free persons.

Slowly, the antislavery amendment and the obscure enlistment measure traveled together through Congress; both were introduced in the Senate in January 1864, laboriously revised in the Judiciary Committee and the Military Affairs Committee respectively, and finally adopted in both houses of Congress early in 1865. For months after the language of the amendment became fixed, the terms of the enlistment measure provoked conflict.

As Congress debated, the war dragged on: Confederate troops advanced through Kentucky in the spring 1864, battles across the Shenandoah Valley lasted through the summer, Sherman’s March to the Sea occurred in autumn, and Union troops swept through North Carolina as the new year began.

The Enlistment Act was no ringing declaration of emancipation. Rather it spoke of the “efficiency of the military and naval forces” and of liberation based on “sufficient proof of marriage” — evidence that a soldier and his enslaved wife “lived together, or associated or cohabited,” whether or not the marriage was “authorized or recognized by law.”

Nonetheless, the legislation extended beyond prior wartime measures that restricted emancipation to slaves held by disloyal owners: the military liberation of fugitive slaves as “contraband of war” in 1861, the congressional Confiscation Acts of 1861 and 1862 and the Militia Act of 1862, and the presidential Emancipation Proclamation in 1863. Nearly all wives and children of enlisted men were to be set free, not just those who counted as rebel property.

Antislavery statesmen justified the enlistment measure as an act of congressional abolition, which would precede the ratification of the Thirteenth Amendment. “There can be no delay. The country cannot wait the slow action of a constitutional amendment,” argued Senator Charles Sumner of Massachusetts. “All must confess the humanity of the proposition to enfranchise the families of the colored persons who have borne arms for their country.” The purpose was to “strike slavery wherever you can hit it,” he declared. “I am for a constitutional amendment . . . but how long will it take?” Sumner called for immediate emancipation in the loyal slave states. “Congress at this moment is complete master of the whole question of slavery everywhere in the United States, even without any constitutional amendment.”

But proslavery members of congress saw it differently. “I am a slaveholder myself; and I have my rights guaranteed,” argued Senator Garrett Davis of Kentucky. The enlistment measure was “utterly to disregard the Constitution . . . and utterly to destroy slave property,” he declared, “a crusade against slavery . . . as unjust, as fanatical, and as irrational as all the other crusades that have heretofore taken place in the world.” Davis condemned abolition through slave marriage, denying that “because the husband is liberated therefore the Congress has the power to liberate the wife and the children. There is no logic in that conclusion.”

On one point, however, there was agreement — that the Enlistment Act was as transformative of the nation’s legal system as the Thirteenth Amendment. While Sumner proclaimed the power of Congress to sweep slavery “out of existence,” Davis warned that abolitionist legislators would someday drink from “the poisoned chalice which they are now concocting.”

Emancipation and the Family

At the heart of the constitutional debate on the Enlistment Act lay the paradox of basing abolition on the legal fiction of slave marriage, as slaves had no right to make contracts. How could a woman who was owned as property be liberated as a wife? How could Congress invoke the war power to set free a slave wife bound to both a loyal master and an enslaved man turned Union soldier?

Even antislavery legislators found the question bewildering. “What is this measure?” asked the author of the Thirteenth Amendment, Senator Lyman Trumbull, pointing out that the slave trade’s destruction of families would make the legislation inoperative: “Here is a negro man who was sold . . . not having seen his family nearly a quarter of a century.” Senator John Sherman, the brother of the Union General William Tecumseh Sherman, posed the problem more bluntly. “Who is the wife of a slave?” he queried. “The relation of husband and wife is not recognized with slaves, and yet this relation is spoken of as a measure of emancipation.”

Proslavery legislators conjured up the vision of a multitude of slave women all seeking freedom as the wife of one Union soldier and deplored the conversion of sexual relations among slaves that were unlicensed by marriage into an instrument of emancipation. “Pass this bill, and you will find it very difficult to prove who has a wife, or how many wives he has,” protested a Maryland senator, Reverdy Johnson, who had been the attorney for Dred Scott’s owner. “There will be a dozen women claiming freedom: ‘I am the wife,’ and ‘I am the wife,’ . . . and each will be able to prove it by precisely the same evidence.” Johnson inquired: “which is to be the one?”

There was also the question of whether Congress should pay compensation for taking a slave wife from a loyal master. And how much would she be worth? Some called for a fair price — at least “five hundred apiece,” according to the arithmetic of slaveholders. But others figured that the war had depressed the value of slaves in the border states, making them worth “very little” — no more than ten dollars “in the present state of things.” Others worried that buying slave wives would be a “burden upon our Treasury.” And still others claimed that the payment should go to freedwomen for years of unrequited labor.

Ultimately, Congress refused to purchase the slave wife’s liberty, denying that just compensation under the Fifth Amendment applied to ending the ownership of human beings.

In 1862, Congress had abolished slavery in the District of Columbia, while compensating loyal owners and appropriating funds for voluntary colonization of freed people to Liberia, Haiti, and other countries, and an Enrollment Act of 1864 provided for the payment of compensation to loyal owners for the military service and emancipation of their slaves. But the Enlistment Act established the principle that freedom was not for sale. The Union would no longer be “the purchaser of slaves.”

Constitutional doctrine was remade. Invoking considerations of expedience and humanity in delivering the slave wife from a master to a husband, Congress determined a person had no fair price, gave legal authority to domestic cohabitation, and declared a legislative act of abolition based on slave marriage bonds as valid as an antislavery amendment to the Constitution.

Retaliation and Resistance

At the heart of the transformation embodied in the Enlistment Act lay the aspirations of slaves. Appeals for emancipation came to the Capitol from across the loyal border states, appeals that emerged from plantations, from army camps, and from deep within slave households. The calls also brought to light the vengeance of Union slave owners against the families of black soldiers.

In December 1864, a black soldier named George Washington wrote a letter directly to Abraham Lincoln. “I have a wife and she has four Children,” began the soldier, who was stationed in Kentucky. They had a “hard master,” the soldier explained to the President — a master who had betrayed the Union, “one that loves the South hangs with it” and refused to provide his slaves with as much as a rag, “havnot for too yars.” He requested a “dis Charge” from the army, because “my famaly suferring” and he wanted to “take Cair of them.” But Washington also asked Lincoln, “if you will free me and hir and heir Children with me.”

Letters from slave wives described home life to their husbands away at war, correspondence relayed to antislavery statesmen, who read the accounts aloud in Congress. The letters told of the fury of slaveholders allegedly loyal to the Union, of soldiers’ wives being “‘beaten ‘scandalously’ ” and left “almost naked” and treated “worse and worse.” As one wife of a slave wrote: “I cannot ask any of our neighbors to enlist and have them suffer as I am suffering.”

The torment of these women drew soldiers back to plantations. Some carried away their wives to Union army barracks, personally enforcing freedom as a quid pro quo for their military service. But others remained, calling for abolition instead of returning to battle. Military affidavits told of women “unmercifully whipped” and “awfully abused” and “compelled to work beyond their strength” as punishment for their husbands’ enlistment.

In the case of “Richard Glover, a colored soldier,” a Missouri master beat his enslaved wife “with a strap taken from a harness, and this when she was pregnant and near her confinement.”

Meanwhile, Union army officials pressed Congress to pass the enlistment measure. Military reports enumerated the grievances of black soldiers and their families, indicating that slave owners were “hounding on a persecution in the border States,” that slave wives were asking their husbands to put down their muskets and return home, and that enslaved men were refusing to enlist until freedom came to their families.

“Several colored women have come to this Post and state that since their husbands . . . have volunteered in the United States service their Masters . . . are not willing to feed them,” reported a provost marshal in Missouri. “This action is taken by their Masters in order to discourage further enlistments and vent their spleen against the Government for authorizing the recruiting of Negroes.” A Brigadier General commanding the First Brigade, First Division, United States Colored Troops, Department of the Gulf, advised: “We cannot wait for the routine of ‘Amendments to the Constitution’: we want an immediate remedy.” Directives from the Department of War to Congress demanded “immediate emancipation,” transmitting the claims of black soldiers and slave wives.

The appeals for freedom and the accounts of suffering reverberated in the chambers of Congress. Even opponents of the Enlistment Act confessed to feeling “commiseration” at hearing the reports from black regiments and the letters written by enslaved women and their husbands. Antislavery men spoke of slave wives “mangled and tortured,” of “gross and glaring outrage,” of cruelty that was “infernal” and “inhuman.”

Arguing that the war power of Congress encompassed emancipation based on slave marriage, they asked: “Shall we tolerate this scene? Sit quietly by with no legislation?” They quoted the words of a slave wife who despaired that her husband, a soldier, “ought not to have left her and her children to suffer.” Should Congress, they asked “stand here and let these wives and children be abused . . . until you can amend the Constitution?”

Late in February 1865, Congress adopted the Enlistment Act, by a bare majority — even the Thirteenth Amendment passed by a greater margin. The bill was sent to Lincoln, along with a message from the Department of War stating that it was of the “highest importance.” The president signed the legislation on March 3, 1865, a day before his Second Inaugural.

The Will of Slaves

The question of who freed the slaves is a longstanding one: whether it was Lincoln, or Congress, or Union generals, or fugitives who fled from slave masters. The question of timing is also longstanding; whether the abolition of slavery was a war aim of the Union at the outset or only as the bloodshed revealed the necessity of freeing and arming slaves. Yet it is clear that the Enlistment Act — a landmark in the path toward freedom — originated in the claims pressed by slaves.

During the 150th anniversary commemorations of slave emancipation, it is worth remembering not only how Lincoln came to justify the Civil War as a divine retribution for the wrongs of chattel bondage, but how slaves inscribed their will in the forgotten Enlistment Act. The president spoke, in his Second Inaugural Address, of the war lasting “until every drop of blood drawn with the lash shall be paid by another drawn with the sword.” Meanwhile, slave women impatient for freedom found deliverance as wives of Union soldiers instead of waiting for the Thirteenth Amendment. A month later peace came at Appomattox Court House, and the reconstruction of the nation began.