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.)
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.