Many Americans feared and distrusted the idea of a standing army into the first half of the nineteenth century. This is illustrated most powerfully in the ability of parents and guardians to use local courts to issue writs of habeas corpus to get their underage children out of the military. Since these minors enlisted without parental consent, local courts demanded that federal authorities produce them as unlawfully detained persons—and for years the military reluctantly obliged.
“Rooted in common law and enshrined in the Constitution, habeas corpus protects citizens from arbitrary detention and imprisonment by allowing them to appeal to a judge for a writ,” explain scholars Frances M. Clarke and Rebecca Jo Plant. Latin for “you have the body,” habeas corpus dates back to twelfth-century English law. The “great and efficacious writ in all manner of illegal confinement,” as English legal commentator William Blackstone put it, has been a foundation of the struggle against arbitrary power ever since. From post-9/11 terrorism suspects and more recent ICE detentions, this old Latin phrase is never far from current events.
But habeas corpus hasn’t remained static over the centuries. In the U.S., the nineteenth century saw a radical transformation of the writ. Habeas corpus was nationalized as part of the qualitative and quantitative increase in federal power brought on by the Civil War. (President Lincoln suspended habeas corpus numerous times during the war, and Jefferson Davis did the same in the Confederacy.)
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During the War of 1812, a military legal expert later wrote, state courts “well nigh disbanded the army” because so many parents resorted to habeas corpus petitions. That, clearly, was no way to run a military. The minimum age of enlistment during the War of 1812 was eighteen. It went up to twenty-one in the decades before the Civil War, but recruiters could take youngsters eighteen and up if the youths had permission from parents, guardians, or in the case of apprentices, from their masters. In early 1861, the minimum enlistment age went down to eighteen—without parental consent—again. Those under eighteen were specifically banned from enlisting, with the law stating that the “oath of enlistment taken by the recruit shall be conclusive of his age.”
Swearing falsely about one’s age was illegal, but a flood of underage recruits nonetheless flocked to recruitment offices during the Civil War—including the military legal authority quoted above. (William E. Birkhimer, author of the 1892 classic Military Government and Martial Law, signed up for the Civil War at the age of sixteen by claiming he was nineteen.) Once again, parents and guardians went to local courts to recover their minor children.
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“Whereas some underage soldiers urged parents or guardians to take this step,” write Clarke and Plant, “many others bitterly opposed efforts to get them discharged. Typically, the impetus to enlist came from minors, whereas attempts to get them discharged generally reflected the wishes of parents or guardians.”
The fate of habeas appeals based on minority closely tracks the consolidation of federal and military power over the course of the war. Early on, access to the writ and to local courts bolstered parents’ abilities to recover minor sons.
But the war would sever that ability. In Ableman v. Booth (1860), the U.S. Supreme Court declared, as Clarke and Plant put it, that “state courts lacked the authority to free individuals held by federal officials and detained under federal laws.” Since Ableman was a “fugitive slave” case, state courts initially mostly ignored it when it came to minors in the military. But the writing seemed to be on the wall. In 1871, SCOTUS definitively reversed a Wisconsin Supreme Court decision to discharge a minor in military service. Tarble’s Case set the stage for what has been described as one of “the greatest reversals in the history of American federalism.” In Tarble’s, the high court declared, in Clarke’s and Plant’s words, that
state judges lacked authority to release any federal detainee, including those enlisted in the military. Henceforth, habeas corpus came to be used primarily as an instrument of federal oversight into state court decision making.
This marked a 180-degree turnaround, from local courts having the power to check federal power to federal courts becoming preeminent over state courts.
“Popular images and accounts of underage Civil War soldiers today tend to be bathed in sentimentality and presented in a manner designed to accentuate the cultural chasm between the 1860s and our own times,” write Clarke and Plant, “but in truth, the problem of underage enlistees and the transformations it fueled helped to forge a new relationship among the federal government, the states, parents, and the military, which is anything but distant.”
