Instead of Waiting for the Thirteenth Amendment: The War Power, Slave Marriage, and Inviolate Human Rights

In the fateful year before peace came at Appomattox—as slaves pursued their exodus from bondage and the Civil War dragged on—a counterpoint arose between two antislavery decrees under debate in the United States Congress. That counterpoint illuminates conceptions of universal human rights forged at an epic moment in the downfall of New World slavery. One decree became the Thirteenth Amendment; all but forgotten is the other, a congressional act to “encourage Enlistments” in the Union Army.

The amendment provided for abolishing slavery everywhere in the United States and its territories. The enlistment measure freed soldiers' wives and children owned by masters in the loyal border states exempt from the 1863 Emancipation Proclamation. As destroying slavery became inseparable from vanquishing the South, bondsmen refused to go to war unless, in exchange, they won their families' freedom as well as their own. “It is a burning shame to this country,” affirmed congressional abolitionists, “to hold the wives and the children in slavery of men who are periling their lives before the rebel legions.” A month before the war's end, on the very day of Abraham Lincoln's second inaugural, March 4, 1865, the measure took effect.

As the Thirteenth Amendment awaited ratification and as the president spoke of malice toward none, upwards of 50,000 slave wives and children went free.1 In a world in flux, where constitutional change flowed from the tides of war, the abolition of slavery fused with freedom endowed by marriage, thereby tethering a new birth of human rights to enduring domestic bonds.