In the aftermath of the Civil War, state judges lost their long-held right to inquire into the legality of federal detentions, and habeas corpus—once almost solely the business of state courts—was largely transformed into a federal remedy. We argue that the wartime furor surrounding underage enlistees was a key factor in driving this legal change. Scholarship on the use of habeas corpus during the war generally concentrates on cases involving freedom of speech or political association, but thousands of parents and guardians also petitioned Union authorities and state courts to retrieve minor children who had enlisted without their consent. Angrily demanding that the military discharge such youths, they portrayed control over the personhood and labor of minor children as fundamental to American liberty. At the same time, state court judges fought to retrain jurisdiction over such cases as a critical check on federal and military power. We illuminate these conflicts by drawing on a rich array of sources that capture the competing perspectives of federal and state court judges, Lincoln Administration officials, elected representatives, military officers, parents and guardians, and minors themselves. In the process, we show the halting and contested transformation of habeas corpus, the outcome of which ultimately redefined the relationship between American citizens and their government, preventing aggrieved parents from using state courts to safeguard their rights against federal and military authorities, and blocking state courts from querying the legality of federal detentions of any kind.
The authors thank the American Council of Learned Societies and the Australian Research Council (grant number DP150100424) for supporting this research. They are also indebted to Catherine A. Jones, Andy Kaladelfos, Rachel Klein, Michael Parrish, Jonathan W. White, Elizabeth Dale, and the anonymous reviewers at Law and History Review for their helpful suggestions on earlier drafts of this article, and to Danielle Thyer for research assistance.
1. William E. Birkhimer (1848–1914) was himself an underage soldier during the Civil War. Although official records list him as 19 when he enlisted in the Iowa Cavalry, the birthdate on his tombstone (which accords with the United States census of 1850 and 1860) show that he had just turned 16. In 1892, he published Military Government and Martial Law (Washington, DC: James J. Chapman, 1892), a work that for many years served as a standard text at West Point. DeMarco, Louis A., “Birkhimer, William E.,” in America's Heroes: Medal of Honor Recipients from the Civil War to Afghanistan, ed. Willbanks, James H. (Santa Barbara: ABC-Clio, 2011), 22–23.
2. On the significance of age 21 as a major threshold in this period, see Grinspan, Jon, “A Birthday Like None Other: Turning Twenty-One in the Age of Popular Politics,” in Age in America: The Colonial Era to the Present, ed. Field, Corinne and Syrett, Nicholas L. (New York: New York University, 2015), 86–102.
3. Birkhimer, William E., review of Digest of the Opinions of Judge Advocate General, Journal of the Military Service Institution of the United States 29 (1901), 454.
4. Birkhimer, review of Digest, 452–54.
5. Hurd, Rollin C., A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected With It (Albany: W.C. Little, 1858), 166, considered it “settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States,” as did influential jurist Kent, James, Commentaries on American Law, 2 vols. (New York: O. Halsted, 1826), I: 375–76.
6. Ableman v. Booth, 62. U.S. 506 (1858). This matter began when abolitionist Sherman Booth allegedly violated the Fugitive Slave Act by coming to aid of an escaped slave named Joshua Glover. Remanded into the custody of United States Marshal Stephen V.R. Ableman, Booth sought a writ of habeas corpus from the Wisconsin State Supreme Court. His petition was granted: the court decided that the Fugitive Slave Act was illegal and ordered his release, but the marshal sued out a writ of error and the case was sent to the United States Supreme Court. Booth was subsequently returned to jail, where he remained until given a presidential pardon.
7. Gregory, Anthony, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror (Cambridge, and New York: Cambridge University Press, 2013), 108. Four years before this case stripped state courts of their power to review federal detentions, Congress passed legislation decisively expanding federal habeas review over state detentions. See Wiecek, William M., “The Great Writ and Reconstruction: The Habeas Corpus Act of 1867,” Journal of Southern History 36 (1970): 530–48; and Pettys, Todd E., “State Habeas Relief for Federal Extrajudicial Detainees,” Minnesota Law Review 92 (2007): 265–322.
8. For example, Hafetz, Jonathan, Habeas Corpus After 9/11: Confronting America's New Global Detention System (New York: New York University Press, 2011); and King, Nancy J. and Hoffman, Joseph L., Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Writ (Chicago: University of Chicago Press, 2011).
9. Works tracing the history of habeas corpus from the perspective of precedent-setting cases include Wert, Justin J., Habeas Corpus In America: The Politics of Individual Rights (Lawrence: Kansas University Press, 2011); Freedman, Eric M., Habeas Corpus: Rethinking the Great Writ of Liberty (New York: New York University Press, 2001); Ji-Hyung Cho, “The Transformation of the American Legal Mind: Habeas Corpus, Federalism, and Constitutionalism, 1787–1870,” (PhD diss., University of Illinois at Urbana–Champaign, 1995); and Duker, William F., A Constitutional History of Habeas Corpus (Westport, CT: Greenwood Press, 1980). A number of recent studies have also reassessed the origins and political salience of habeas corpus, including Gregory, The Power of Habeas Corpus in America; Wert, Habeas Corpus in America; Halliday, Paul D., Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2010); and Federman, Cary, The Body and the State: Habeas Corpus and American Jurisprudence (Albany: State University of New York Press, 2006). This work complicates the idea that habeas corpus developed solely as a vehicle for protecting individual liberty, a point expanded by those who examine the use of writs to reclaim escaped slaves, including Arkin, Mark M., “The Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners,” Tulane Law Review 70 (1995): 1–73. In addition, a large body of scholarship examines the constitutionality of Lincoln's actions in suspending habeas corpus, much of it cited in McGinty, Brian, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (Cambridge, MA: Harvard University Press, 2011); White, Jonathan W., Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (Baton Rouge: Louisiana State University Press, 2011); and Neely, Mark E. Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991). Finally, Faith’s, Robert O. study of lower level courts, “Public Necessity or Military Convenience? Reevaluating Lincoln’s Suspensions of the Writ of Habeas Corpus,” Civil War History 26 (2016): 284–320, urges historians to question the “practical legitimacy” of Lincoln’s suspension orders, which, he argues, in many cases—including those involving underage soldiers––failed to meet the threshold of “public necessity.”
10. In this essay, we concentrate solely on debates about minor enlistees in the Union Army. Parents also appealed to the Confederate government to recover underage children, especially during 1861 and 1862, but those able to supply proof of minority usually succeeded in recovering their children. According to Donna Rebecca Krug, “The Folks Back Home: The Confederate Home during the Civil War” (PhD diss., University of California, Irvine, 1990), 52, “One of the surest ways to receive a discharge was for parents to prove that an underage son had joined the military without their consent.” Because the Davis Administration proved willing to discharge minors, Confederate parents were probably less likely to turn to the courts; however, this is a topic that we are still exploring. On underage Confederate enlistees, see also Edward Drago, Confederate Phoenix: Rebel Children and Their Families in South Carolina (New York: Fordham University Press), 14–29.
11. Neely, Mark E., “Legalities in Wartime: The Myth of the Writ of Habeas Corpus,” in The War Worth Fighting: Abraham Lincoln's Presidency and Civil War America, Engle, Stephen D. (Gainesville: University of Florida Press, 2015), 120, notes that out of all fifty-six habeas corpus cases reported in the New York Tribune between May– December 1862 and May–September 1863, claims of illegal enlistment on the basis of minority accounted for roughly 42% of cases, whereas child custody cases made up another 16%, meaning that a full 58% of these cases involved parents attempting to reclaim children. Only one case concerned the issue of freedom of speech. See also Neely, Mark E. Jr., Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (Chapel Hill: University of North Carolina Press, 2011), 168–98.
12. Revised Regulations for the Army of the United States, 1861 (Philadelphia: J.B. Lippincott & Co., Publishers, 1861), 130. On the significance of age 21 as a major threshold for young men in this period, see Grinspan, “A Birthday Like None Other.”
13. As in the Civil War, the issue of minority enlistment during and immediately after the War of 1812 was inextricably connected to the conflict between state and federal power. In defiance of the federal statute, both Massachusetts and Connecticut passed laws prohibiting the enlistment of minors over 18 years of age without consent, and Connecticut also strengthened its habeas corpus statute to facilitate the release of minors. Hickey, Donald R., The War of 1812: A Forgotten Conflict (Urbana: University of Illinois Press, 1989), 112, 244. The 1846 act authorizing the president to call up troops during the Mexican–American War did not refer to age at all. In United States v. Blakeney, 44 Va. (3 Gratt.) 405 (1847), the Virginia General Court ruled that all enlistees above the age of 18––which it held was widely recognized as the legitimate age of enlistment without parental consent––were bound by their military contracts; however, lower courts in New York frequently discharged minors up to the age of 21. See, for example: “Law Courts,” New York Tribune, August 24, 1846; “Law Courts,” New York Tribune, November 21, 1846; and “Law Courts,” New York Tribune, July 29, 1847, p. 3.
14. For example, Commonwealth v. Cushing, 11 Mass. 83 (1814); State v. Brearly 2 Southard (N.J.) 555 (1819); Commonwealth v. Gamble 11 Serg.&R. (Pa.) (1824); re Carlton, 7 Cow. (N.Y.) 471 (1827); Commonwealth v. Downes, 18 Pick. 227 (1836); and State v. Dimick, 12 N.H. 194 (1841). “An Act Making Appropriations for the Support of the Army,” September 28, 1850, in U.S. Statutes at Large 9 (1845–51): 504.
15. In 1855 and again in 1856, Secretary of War Jefferson Davis complained of the “growing evil” of fraudulent enlistments, noting that minors transported to distant military posts had to be sent back at government expense when parents demanded their return. In 1858, Davis, by then a senator, introduced legislation to make all military contracts binding or to require that recruits swear an oath as to their age, with deception being punishable as perjury, but the House defeated the measure. See Jefferson Davis to Sen. John B. Weller, March 17, 1856, in The Papers of Jefferson Davis, 1856–1860, 14 vols., ed. Crist, Lynda Lasswell and Dix, Mary Seaton (Baton Rouge: Louisiana State University Press, 1971–2015), 6:15–17. Regarding judicial rulings, see, most notably, United States v. Bainbridge, 24 F. Cas. 946 (No. 14,497) (C.C.D. Mass 1816). Prior to the war, a few judges had gone even further and denied the right of state courts to render decisions in cases of underage enlistments. “The Law Governing the Recruiting Services,” New York Herald, April 10, 1860 referred to two New York decisions which held that, under the 1850 Act cited in Note 13, the authority to discharge minors rested solely with the secretary of war.
16. “The Law Governing the Recruiting Services.” The two cases referenced in this article are discussed in “Army Intelligence,” New York Herald, April 10, 1860, p. 4.
17. Another dramatic clash between the military and the judiciary over an enlisted minor unfolded in the Fall of 1861, detailed by White, Jonathan W., “Sweltering with Treason: The Civil War Trials of William Mathew Merrick,” Prologue 39 (2007): 26–36; and Faith, “Public Necessity or Military Convenience.”
18. Once his temper subsided, Morris offered a more reasoned explanation for his refusal. The writ could prove extremely dangerous “in the hands of an unfriendly power,” he argued, depleting the army's forces “in much less time than it could be done by all the appliances of modern warfare.” Major W.W. Morris to Hon. William Fell Giles, May 6, 1861, Letters Received by the Office of the Adjutant General, Main Series (hereafter AGO Letters, Main Series), 1861–1870, RG94, M619, File No. M324, National Archives and Records Administration (hereafter NARA). Morris's letter to Giles was reprinted in full in “The Habeas Corpus Case,” The Examiner (Baltimore, MD), May 15, 1861, p. 2.
19. “The Courts,” The South (Baltimore, MD), May 2, 1861, p. 3; and “The Habeas Corpus Refusal,” Baltimore Sun, May 6, 1861, p. 4.
20. See notations on the back of letter sent by W.W. Morris to unnamed recipient, May 8, 1861, AGO Letters, Main Series, File No. M324.
21. Merryman's case never came to trial. As a capital offense, it had to be tried by the United States District Court in Baltimore, over which Taney presided. A staunch Democrat and vociferous critic of the Lincoln administration, Taney refused to schedule hearings for those charged with treason, claiming that fair trials were impossible in the wartime climate.
22. Ex parte Vallandigham (1864), the most famous free speech case of the war, centered on the Ohio politician Clement Vallandigham, who denounced the draft and was convicted by a military court of “declaring disloyal sentiments and opinions.” Vallandigham challenged the constitutionality of trying civilians in military courts; the Supreme Court evaded the fundamental question at stake by deciding that it did not have jurisdiction to review cases heard by military commissions, which in effect upheld the Lincoln administration's authority. After the war, however, the Supreme Court decisively ruled in Ex parte Milligan (1866) that as long as civilian courts continued to function within a given area, military tribunals could not try civilians.
23. Judge Joseph Allison presided over the Court of Quarter Sessions. “Quarter Sessions,” Press (Philadelphia, Pa.), July 25, 1861, p. 3; “The Plea of Infancy,” New York Times, August 27, 1861, p. 3.
24. See, for example, Daily Ohio Statesman (Columbus, OH), October 19 and 26 and November 2, 8, 9, and 16, 1861. This paper was one of the few that sent a court recorder to detail the results of cases in a single probate court. As remains the case today, the press generally ignored legal cases heard in lower courts.
25. To understand the administrative response to the problem of minor enlistees, we sampled correspondence sent by parents and guardians to Washington, DC, most of which was forwarded to the Adjutant General's Office. This correspondence is held in two collections at NARA: RG 94: Office of the Adjutant General, Addison Files (hereafter AGO Letters, Addison Files), 1848–62, Letters Received Relating to Soldiers, 1848–62, entry 416.; and RG94: Office of the Adjutant General, Records of the Enlisted Branch, Letters Received (hereafter, AGO Letters, Enlisted Branch), 1862–1889, entry 409. We examined more than fifteen boxes spanning the war years, each containing material related to approximately 250 individuals, and extracted those files concerning underage soldiers. Because of the volume of material, and because letters sent by the AGO are held in a separate collection with no easy cross-referencing system, it proved unfeasible to match the letters received with the government's replies. We were, however, able to create a database of more than 145 cases for which we could determine an outcome. In some cases, the administration's response was written on the back of the petition or was apparent from material in the AGO Letters Received; in other cases, we used compiled service records, pension files, Ancestry.com and Fold3.com to discover if individuals were released. Only in this manner could we gain an accurate understanding of the relationship among the law, what was actually happening, and the way that legal change affected petitioners over time. In what follows, we usually cite only the original archival collection used when we refer to individuals, and not the myriad sources we employed to track case outcomes or biographical details.
26. Revised Regulations for the Army, 130, advised recruiters that they could accept “Any free white male person above the age of eighteen and under thirty-five years, being at least five feet three inches high, effective, able-bodied, sober, free from disease, of good character and habits, and with a competent knowledge of the English language,” excluding musicians or those re-enlisting, but that “No person under the age of twenty-one years is to be enlisted or re-enlisted without the written consent of his parent, guardian, or master.”
27. Provost Marshal General James B. Fry's final report of March 17, 1866 describes the transformation of enlistment procedures during the war. The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, 128 vols (hereafter OR). (Washington, DC: Government Printing Office, 1880–1901), Ser. III, Vol. X, 855ff. Scholars who cite statistics on the ages of Union enlistees typically rely on descriptive or muster rolls, which reflect the age that soldiers specified on their enlistment papers, but these are useless for assessing the volume of underage soldiers because the vast majority lied about their age. Our as-yet-incomplete research of a number of Union regiments suggests that a much larger number of soldiers enlisted before reaching the age of 18 than was generally recognized, constituting more than 10% of the Union Army.
28. As early as July 1861, Senator Henry Wilson of Massachusetts, Chair of the Senate Committee on Military Affairs, urged his colleagues to act, explaining that the secretary of war was “very anxious” to see the law changed. Congressional Globe, 37th Congress, 1st Session, July 17, 1861, 157. Secretary of War Simon Cameron shared his opinion on “the injurious operation of this law” in his annual report. “Report of the Secretary of War,” December 1, 1861, 37th Congress, 2nd session, Senate, Ex. Doc. No. 1.
29. “An Act making an appropriation for completing the defences of Washington, and for other purposes,” February 13, 1862, in U.S. Statutes at Large, 12 (1859–63), 339–40.
30. E.D. Townsend, undated note to N.T. Devin, October 30, 1863, AGO Letters, Enlisted Branch, box 107. Emphasis in original. The administration interpreted the law to mean that, if a soldier had sworn to be 18, no court could hear “any evidence” challenging the legitimacy of his enlistment, whatever his actual age. Joseph Holt to Edwin Stanton, October 2, 1862, RG153, Entry 1, Office of the Judge Advocate General, Letters Sent: Record Books (hereafter JAG Records), 1842–1889, NARA, book 1, September 1862.
31. W. Silvey Capt 1st Arty A.A. Provost Marshal General (Rhode Island) to Provost Marshal General James. B. Fry, November 12, 1863 contained in N.T. Devin, October 30, 1863, AGO Letters, Enlisted Branch, box 107.
32. Neely, “Legalities in Wartime,” 119–20. See also Neely, Lincoln and the Triumph of the Nation, 164. Although false claims certainly occurred, we have determined through the use of census records that the majority of cases were not fraudulent. All of the minors whom Neely refers to by name in his article were under 18 when they enlisted, including one whose case he uses to demonstrate the often duplicitous nature of such claims. In August 1862, the father of a Patrick Carrigan produced a Bible in court in which he had recorded his son's birthday, but the judge rejected the evidence and charged him with perjury on discovering that the Bible had been printed 5 years after the boy's alleged birth. The 1860 census, however, indicates that Patrick was in fact only 17 when he enlisted, and military records show that he was discharged several months later on a writ of habeas corpus. Although the father did indeed present falsified evidence, he apparently did so because he lacked documents that would conclusively prove his son's actual age.
33. Elijah and Mary Boyers to Abraham Lincoln, April 15, 1862, AGO Letters, Addison Files, box 49. Alden deserted in August 1862. Annual Report of the Adjutant-General of the State of New York for the Year 1902 (Albany: Argus Printers, 1903), 41.
34. Kirkpatrick, George Morgan, The Experiences of a Private Soldier of the Civil War (Indianapolis, IN: Reprinted by the Hoosier Bookshop, 1973). Although Mr. Kirkpatrick predicted his son “would get enough [of soldiering] in two weeks and be glad to come back home,” George ended up serving for the duration. Both the Boyers and the Kirkpatricks would likely have sympathized with John Bullock, who travelled from New Jersey to Washington DC, affidavit in hand, to obtain a discharge for his 15-year-old son, Thomas. After expending some $40 (“all the money I had in the wourld”), he managed to get the boy released, but on their way home, they stopped for the night in Philadelphia, where Thomas wriggled free from his father's grasp and was once again sworn into service. After all his effort and expense, Bullock was back to square one. John Bullock to Secretary of War Simon Cameron, December 12, 1861, AGO Letters, Addison Files, box 46.
35. Marriage, however, legally emancipated minors. Syrett, Nicholas, American Child Bride: A History of Minors and Marriage in the United States (Chapel Hill: University of North Carolina Press, 2016).
36. Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press), 285.
37. Abraham Lincoln's father, for example, periodically hired him out from the time he was 13 until he turned 21, taking his full wages. Burlingame, Historian Michael, The Inner World of Abraham Lincoln (Champagne–Urbana: University of Illinois Press, 1994), 37, suggests that Lincoln's experience of being forced to labor without compensation strongly informed his critique of slavery.
38. Benjamin Warren to the War Department, April 23, 1862, AGO Letters, Addison Files, box 51. Emphasis in original.
39. Maria Abby to Abraham Lincoln, September 1, 1861, AGO Letters, Addison Files, box 46.
40. John Archer to Secretary of War Simon Cameron, September 20, 1861 AGO Letters, Addison Files, box 46. Although we refer primarily of “parents” in this essay, mothers did not enjoy the same legal rights over their children as fathers, except in cases of widowhood when no guardian had been appointed. Given the difference in parents’ standing, it is not surprising that men tended to assert their rights more vociferously in the letters parents sent to Washington, whereas women tended to appeal more to the recipients’ sympathies, but these differences were by no means hard and fast. Men often presented themselves as needy dependents in what amounted to begging letters, and some women did not hold back in claiming rights to their minor children. Moreover, both male and female letter writers often vacillated between these stances within a single letter, at times presenting themselves as aggrieved rights-bearers and at other times as worthy supplicants.
41. On children's labor in this era, see Mintz, Steven, Huck's Raft: A History of American Childhood (Cambridge, MA: Belknap Press of Harvard University Press, 2004), ch. 7.
42. This mother claimed that the boy's captain had promised him that the regiment would go no farther than Manchester, New Hampshire, approximately 20 miles from his home in Nashua. George Blood was killed in action in May 1863; that same month, his mother filed for a pension. Eliza J. Stevens to “Honourable Sir,” August 4, 1862, AGO Letters, Addison Files, box 49.
43. Her appeal apparently fell on deaf ears, for both sons served out their full terms. Emiley Miller, September 1861, AGO Letters, Addison Files, box 48.
44. John Mummert to Edwin Stanton, October 7, 1863, AGO Letters, Addison Files, box 46. This father was not exaggerating his family's losses. Records on Ancestry show that two daughters had died in 1857 and 1860 and that two sons died in 1862 and 1863. Although the boy he wanted released was his sole surviving son, his appeal was unsuccessful.
45. According to historian James Schmidt, judicial decisions in Massachusetts during the 1840s and 1850s helped to negotiate the tension between the laws governing minority and the emerging capitalist economy that supplanted the apprenticeship system. By ruling that minors could form contracts with employers but that such contracts could not be considered binding, courts helped pave the way for children to participate in the new wage economy without overturning parental rights. This broader legal context helps to explain parents’ misplaced confidence, at least during the early phases of the Civil War, in their ability to retrieve minor sons by invalidating their military contracts. Schmidt, James D., “‘Restless Movements Characteristic of Childhood’: The Legal Construction of Child Labor in Nineteenth-Century Massachusetts,” Law and History Review 23 (2005), 315–50.
46. Correspondence relating to David Brown, AGO Letters, Addison Files, box 46.
47. General Orders No. 73, Adjutant General's Office, September 7, 1861. Orders and Circulars, 1797–1910, Entry 44, NARA. In our database of 145 cases mentioned in note 25, we have a total of 26 cases dated prior to September 7, 1861. Of these, sixteen appeals were rejected, and ten were successful. Taking the first twenty-six cases that followed September 7, 1861, twenty-three cases were rejected and only three were accepted, one of which involved a British subject.
48. Eli McCalley to President Lincoln, December 11, 1862, AGO Letters, Enlisted Branch, box 1.
49. See, for example, documents relating to Samuel Johnson, AGO Letters, Addison Files, box 47.
50. Caleb B. Smith, December 14, 1861, AGO Letters, Addison Files, box 48. Emphasis in original. Brown's compiled service record lists the date and place of his death. In the 1850 and 1860 United States censuses, his age is recorded as 3 and 13, respectively, indicating that his father was not exaggerating his youth.
51. Letter from Mary Ann Beebe, October 23, 1861, AGO Letters, Addison Files, box 46. According to the United States census, her son, Henry Hayden, was 4 years of age in 1850 and 14 in 1860.
52. Adjutant General's Office, General Orders 170, June 9, 1863, reprinted in General Orders Affecting the Volunteer Force 1863 (Washington, DC: Government Printing Office, 1864), 128.
53. Diven refers to his previous communication in N.T. Devin, October 30, 1863, AGO, Enlisted Branch, box 107.
54. Silvey to Fry, November 12, 1863, AGO Letters, Enlisted Branch, box 107.
55. William L. Gregg, February 23, 1862, AGO Letters, Addison Files, box 47. G. Oram Gregg served his entire 3 year term before being mustered out at the rank of sergeant. Census records show that at the time of his discharge in August 1864, he was still under the age of enlistment.
56. Hiram Vail to Abraham Lincoln, March 16, 1862, AGO Letters, Addison Files, box 51.
57. The 1900 census indicates that John was born in August 1844, which would have made him a few months shy of 17 when he enlisted; other census data supports this. Yet even though John was clearly underage at the time of enlistment, his parents swore in their affidavit that he was born a year later, in September 1845. They may have feared that once he actually turned 18, the military would refuse to release him. Hiram Vail to Hon. W[arren] P. Noble, February 22, 1862, AGO Letters, Main Series, File No. V43.
58. Col. S.S. Canoll to the Adjutant General, December 1863, AGO Letters, Addison Files, box 51.
59. Hiram Vail to Rep. W[arren] P. Noble, February 22, 1862, AGO Letters, Main Series, File No. V43.
60. On Nathaniel Gordon, see Soodalter, Ron, Hanging Captain Gordon: The Life and Trial of an American (New York: Atria, 2006).
61. Hiram Vail to Abraham Lincoln, AGO Letters, Addison Files, box 51.
62. This appeal to Lincoln did not work. According to his compiled service record, John Vail was arrested twice more for desertion, being mustered out in July 1864.
63. Eli M. McCalley to Hon. J.A. Cravens, December 22, 1862, AGO Letters, Enlisted Branch, box 1; and Petition of Allen Winans, December 21, 1861, AGO Letters, Addison Files, box 51. A father of a 19-year-old soldier likewise evoked the nation's historical commitment to liberty when he complained, “It is a hard thing for parents to submit to have their children kidnaped and dragged from them in this free country especially those that have had father and grandfather that fought in the revelution and in 1812 for their own rights and their childrens[.]” C.S. Barton to “Sec Stanton,” December 14, 1862, AGO Letters, Enlisted Branch, box 1.
64. Oaks, Dallin H., “Habeas Corpus in the States––1775–1865,” University of Chicago Law Review 32 (Winter 1965): 243–88 also makes this point. Regarding jurisdictional complexity, at the federal level the Judiciary Act of 1789 gave the United States Supreme, Circuit, and District Courts the power to grant writs, but by the 1830s, each state had also passed its own habeas corpus statute, defining who could apply for a writ and setting forth the procedures governing their use. These statutes show that jurisdiction over habeas corpus cases varied widely among states. In Indiana, for example, only judges sitting on the state's supreme or circuit courts were authorized to grant habeas corpus relief, whereas New York gave this power to “every court of record… for any case except a sentence for a felony.” The Revised Statutes of the State of Indiana, Adopted and Enacted by the General Assembly at their Twenty–second Session … (Indianapolis: Douglas & Noel, 1838), 326; Revised Statutes of the State of New York, as Altered by the Legislature; Including the Statutory Provisions of a General Nature, Passed from 1828 to 1835 Inclusive, 3 vols. (Albany: Packard and Van Benthuysen, 1836), 2:461–77. In Massachusetts, by contrast, petitioners had to follow a rather baroque procedure, first seeking a judge of the supreme judicial court, or, if unavailable, a judge of the court of common pleas within 10 miles of the place where the detainee was being restrained. If none of the latter could be found, they were to locate any judge of probate, or, failing this, “any two justices of the peace and of the quorum.” The Revised Statutes of the Commonwealth of Massachusetts, passed November 4, 1835 … (Boston: Dutton & Wentworth, 1836), ch. 111. More simply, legislation passed in Ohio in 1852 granted probate courts jurisdiction in a number of areas unrelated to the administration of deceased estates, including habeas corpus, according to Winkler, John F., “The Probate Court of Ohio,” University of Toledo Law Review, 28 (1996–1997): 563–604.
65. Yeazell, Stephen, “Courting Ignorance: Why We Know so Little About our Most Important Courts,” Daedalus 143 (2014): 134–35, correctly points out that “almost nothing” is known “about the workings of our local-level judicial system for any period” before the modern era.
66. By midcentury, there were many dozens of law reports in circulation. Most were published annually, and focused on cases heard at the appellate level in a single state court system. Varying in breadth, some included judicial opinions and final rulings as well as a summary of arguments made by opposing counsel, whereas others only recorded a final judgement along with the reporters’ headnotes summarizing what their authors saw as the most important legal precedents involved in the case. Scholarship charting the evolution and proliferation of law reports includes Hoeflich, Michael. H., Legal Publishing in Antebellum America (Cambridge, and New York: Cambridge University Press, 2010); Grossberg, Michael, Governing the Hearth: Law and Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985), 15–18; and Surrency, Erwin C., “Law Reports in the United States,” American Journal of Legal History 25 (1981): 48–66.
67. Neely, The Fate of Liberty, 233–34, has convincingly argued that the traditional estimate of more than 13,000 cases of civilians jailed during the war is far too low. Explaining why this volume of arrests did not lead to a violent political reaction, he points out that most detainees had little to do with politics. They “were citizens of the Confederacy, blockade-runners, foreign nationals, returning Southern sea captains, and the like”––individuals caught up by “mere incidents or friction of war.”
68. Rollin Hurd, author of the most influential pre-war legal treatise on habeas corpus, noted as much in 1858, complaining of the ignorance that supposedly pervaded all levels of the legal system, causing judges to grant habeas petitions either too freely or not freely enough. Treatise on the Right of Personal Liberty, vi. His complaints point to the underlying purpose and ideological thrust of nineteenth century legal treatises and law reports. Rather than simply reporting the law, authors made a selection of cases, ordered them in various ways, and guided readers’ interpretations by adding headnotes or extracting opinions. These texts reflect the perspective of legal reformers who were seeking to create a more rational, hierarchical, and uniform system of national law. Far from providing a definitive account of habeas corpus cases, they purposefully obscured the welter of contradictory rulings and the chaotic landscape of divergent law reports and legal practices. On this point, see also Duffy, Denis P., “Genre and Authority: The Rise of Case Reporting in the Early United States,” Chicago–Kent Law Review 74 (1998): 263–75; and Edwards, Laura, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), ch. 2.
69. The People ex. rel. Mary Ann Allen vs. Daniel H. Burtness, reported in New York Times, October 9, 1861, p. 2.
70. “Government Habeas Corpus Case,” New York Times, June 23, 1863, p. 2.
71. Barnard was elected justice of the Supreme Court of New York on a Tammany Hall ticket, according to Obituary Report of the Graduates of Yale College, Deceased during the Academical Year Ending in June, 1879 (New Haven: Tuttle, Morehouse & Taylor Press, 1880), 359.
72. United States ex rel. Turner v. Wright, Circuit Court of the United States, Western District of Pennsylvania, reported in Monthly Law Reporter, 25 (1863), 459. Judge McCandless, nominated to the United States District Court by President Buchanan in 1859, discharged a string of soldiers on claims of minority and for various other reasons, as noted in “Drafting a Minor,” Pittsburgh Daily Gazette and Advertiser (Pittsburgh, PA), October 24, 1862, p. 4; “Another Habeas Corpus,” Pittsburgh Daily Gazette and Advertiser, October 30, 1862, p. 3; and “A Writ of Habeas Corpus Issued,” Cleveland Morning Leader (Cleveland, OH), December 13, 1862, p. 3.
73. Re Higgins, 16 Wis. 351 (1863).
74. “Important Decision Respecting Recruits,” New York Times, December 10, 1862, p. 3.
75. “Before John H. McCunn, City Judge,” New York Times, December 10, 1862, p. 3.
76. “Judge McCunn and the Habeas Corpus,” New York Times, July 26, 1863, p. 2. On his political affiliations see his obituary, New York Times, July 7, 1872, p. 1.
77. “Gen. Banks is a Brick,” Boston Post (Boston, MA), December 11, 1862, p. 1.
78. On November 9, 1862, President Lincoln ordered Major General Banks to New Orleans to relieve Benjamin F. Butler of his command over the Department of the Gulf.
79. “Court of Oyer and Terminer and Quarter Sessions––Judge Allison,” Press, July 27, 1863, p. 4.
80. “Judge Ludlow––Habeas Corpus Cases,” Press, August 12, 1863, p. 4.
81. On officers releasing alleged minors after Lincoln's first nationwide suspension of habeas corpus in September 1862 see, for example, “Court of Oyer and Terminer and Quarter Sessions––Judge Ludlow,” Press, August 24, 1863, p. 3. On cheering crowds, see “The Case of F.M. Lowe,” Cincinnati Daily Press (Cincinnati, OH), January 8, 1862, p. 3. On a sheriff facing violence from soldiers as he tried to serve a writ relating to a minor, see “The Military and Civil Power in Conflict,” Daily Ohio Statesman, December 28, 1861, p. 2.
82. In “Dishon ex parte. Habeas Corpus Before Judge Perkins,” Daily State Sentinel (Indianapolis, IN), October 22, 1862, Perkins used considerable mental gymnastics to deny that Congress had repealed an earlier law stating that anyone below the age of 21 required written consent to enlist, essentially arguing that federal laws allowing for the enlistment of those above the age of 18 only applied to volunteer forces. In another case, his fellow jurists decided that the enlistment contract of anyone below the age of 18 was “void and inoperative.” “Important Decision,” Daily State Sentinel, December 3, 1862, p. 3. See also Thornbrough, Emma Lou, “Judge Perkins, the Indiana Supreme Court, and the Civil War,” Indiana Magazine of History 60 (1964): 79–96, and Klement, Frank L., The Copperheads in the Middle West (Chicago: Chicago University Press, 1960).
83. Griffin v. Wilcox, 21 Indiana 370 (1863). In this case, Perkins held that civilians could not be subjected to military orders, that the president could not institute martial law or suspend habeas corpus, and that civilians detained without charge could seek restitution through damage suits––all matters disputed by congressional legislation and executive orders.
84. “State vs. National Authority,” Daily Evansville Journal (Evansville, IN), September 5, 1863, p. 2.
85. Especially when they decided that specific circumstances militated against the discharge of a minor enlistee, judges emphasized that their decisions did not imply a blanket prohibition on their right to examine cases of a similar nature in future. See, for example, In re Barrett, 42 Barb. (N.Y.) 479 (1863); and cases described in “The National and State Authority,” and “Habeas Corpus and the State Courts,” Weekly National Intelligencer (Washington, D.C.), September 3, 1863, p. 2.
86. For example, “The Enlistment of Minors,” Daily Telegraph (Harrisburg, PA), August 15, 1863, p. 1; the case of Francis Dew, reported in Monthly Law Reporter, 25 (1863): 538; and Ex parte Anderson, 16 Iowa 595 (1863).
87. Scholarship tracing the history of habeas corpus depicts the Ableman ruling as definitive: “one of the final nails in the coffin for habeas corpus … as a decentralist check on national power,” according to Gregory, The Power of Habeas Corpus in America, 90; or, in the words of Cho, “The Transformation of the American Legal Mind,” 230, “a turning point on which the federal government established federal supremacy over the states and put an end to jurisdictional conflicts.” Although Taney's ruling had occasionally been mentioned in earlier cases involving minor enlistees, however, evidence contained in law reports and newspaper accounts suggests that it was not until late 1863 that judges begin citing Ableman repeatedly and at length.
88. On the localized nature of the antebellum legal order, see Edwards, The People and Their Peace.
89. Opinion of William Whiting, Solicitor of the War Department, printed as Circular No. 36, Provost Marshal General's Office, July 1, 1863, OR, Ser. III, Vol. III, 460–61. Because this instruction was specifically addressed to provost marshals who had been served with writs to deliver up alleged deserters, it did not speak to the question of whether officers should respond to writs in other cases involving enlisted minors. However, press reports suggest that soon after this circular was issued, at least some officers began quoting Taney's opinion in correspondence with judges to explain noncompliance with writs in such cases. See, for example, “Gen. Burnside and the Habeas Corpus,” Daily National Intelligencer (Washington, DC), August 15, 1863, p. 1; and “The Provost-Marshal's Circular No. 36,” The World (New York, NY), August 28, 1863, p. 4.
90. Examples include: “Judge Paddock,” Daily Constitutional Union (Washington, D.C.), August 15, 1863, p. 2; “Important Decision in Cincinnati,” The Daily Age (Philadelphia, PA), August 15, 1863, p. 2; and a piece under the same heading in Camden Democrat (Camden, NJ), August 22, 1863, p. 1; “the State Courts vs. The Military Authorities––Important Decision of Judge Paddack[sic],” Norwich Aurora (Norwich, CT), August 22, 1863. A similar exchange of barbed letters over the relevance of Ableman to cases of minor enlistees followed Judge E. Darwin Smith's abovementioned ruling. See untitled letters in Columbian Register (New Haven, CT), September 5, 1863, p. 3; and “The Writ of Habeas Corpus,” Albany Evening Journal (Albany, NY), August 25, 1863, p. 2.
91. Proclamation 103, “Suspending the Privileges of the Writ of Habeas Corpus Throughout the United States in Certain Specified Cases” U.S. Statutes at Large 13 (1863–65), 734.
92. Abraham Lincoln, “A Proclamation,” General Orders, No 315, War Department, Adjt. General's Office, September 7, 1863, OR, Ser. III, Vol. III, 817–18.
93. In January 1864, for example, the Vermont Supreme Court's Chief Justice, Luke P. Poland, a Unionist who would eventually become a Republican senator, granted writs to the parents of several minors who had enlisted in a state regiment, arguing that such cases fell under Vermont laws, which prohibited the enlistment of minors without parental consent. Important Decision,” Green-Mountain Freeman (Montpelier, VT), January 12, 1864. Similarly, in May 1865, Rufus Peckham, a widely respected justice on New York's Supreme Court, issued a writ for a minor enlistee, insisting that the government could not really have intended to suspend the writ in relation to Union soldiers. What if a youth had been “kidnapped” or had his name “forged [on] enlisting papers?” he asked. If citizens could not apply for a writ from a state judge, “[w]here, then, is the remedy for the oppressed citizen as against the tyranny of a general government boldly executed?” The People, ex rel. Starkweather v. Gaul, 44 Barb. 98 (1865). In general, however, even those most active in asserting judicial prerogatives desisted from issuing writs after the September 1863 proclamation. Judge Cadwalader, for example, issued an oral opinion in which he stated that he would postpone all proceedings in cases of pending applications and accept no further applications for habeas corpus relief while the president's orders were in effect. “Habeas Corpus,” Daily National Intelligencer, September 21, 1863, p. 1.
94. Neely, Lincoln and the Triumph of the Nation, 164.
95. In October 1863, the judge advocate general explained to a senior military officer that the secretary of war “uniformly” gave “a literal construction” to the law. Once a recruit had sworn that he was of age, “this declaration necessarily precludes any testimony to the contrary.” Joseph Holt to Colonel W.H. Ludlow, October 20, 1863, JAG Records, book 5.
96. “The Suspension of Habeas Corpus,” The World, September 18, 1863, p. 4.
97. “The Last Proclamation,” reprinted in East Saginaw Courier (East Saginaw, MI), September 30, 1863, p. 2. Emphasis in original.
98. A.S. Diven, Acting Asst. Provost–Marshal–General's Office, Western Division, State of New York, October 22, 1863 to Col. James B. Fry, Provost–Marshal–General, OR, Ser. III, Vol. III, 912.
99. Acts of Congress approved February 13, 1862, and February 24, 1864. Congress rejected proposed solutions that would have restored power to discharge minors to the local level. Representative Francis William Kellogg, a Republican from Michigan, proposed an amendment to allow local enrollment boards to assume responsibility for assessing claims of minority and discharging youth in credible cases, claiming that the provost marshal general wanted Congress to enact such a measure. Similarly, Representative John Ganson, a New York War Democrat, suggested that the suspension of habeas corpus be revised so as to exempt cases of alleged minor enlistees. Without such a measure, he warned, the War Department would become inundated by requests from parents, and congressmen would find themselves reduced to glorified “errand boys,” burdened with the job of ensuring that their constituents’ affidavits and supporting materials reached the Secretary of War. Congressional Globe, 38th Congress, 1st Session, 577–79.
100. A notorious micromanager, Stanton frequently concerned himself with individual inquiries, including those from parents of underage soldiers. Whereas “[c]ommon folk seeking the discharge of underage runaways met routine refusal, even if the family had already sacrificed sons in the war,” Stanton proved far more receptive to appeals from the rich and powerful. Marvel, William, Lincoln's Autocrat: The Life of Edwin Stanton (Chapel Hill: University of North Carolina Press, 2015), 318.
101. These parents ultimately succeeded in getting their children released by gaining an audience with congressional representatives who brought their cases to Lincoln's attention. Lincoln ordered discharges in virtually all cases of minority to reach his desk, although even he stipulated that bounties had first to be repaid. Hon J.B. Steele, n.d., AGO Letters, Enlisted Branch, box 220; untitled article in the Chicago Tribune (Chicago, IL), March 7, 1864, 2, reprinted from the Boston Traveller.
102. Congressional Globe, 38th Congress, 1st Session, June 30, 1864, 3379.
103. Ibid., 3381.
104. “An Act further to regulate and provide for the enrolling and calling out the National Forces, and for other Purposes,” U.S. Statutes at Large 13 (1863–65), 380.
105. Of the twenty-one cases in our database that postdate the law's passage, only three failed to be released contingent on paying back bounty money, and one of these was facing a court martial. Several of the youth, however, could not repay their bounties and, therefore. remained in service. A newspaper story that ran after Appomattox illustrates the severity with which the administration enforced its no-discharge-without-repayment policy. A pair of conniving men lured a boy into enlisting and then absconded with all his bounty money. The perpetrators were caught and sent into the army, but the boy remained in camp, as the authorities would “not give him up until the bounty money paid for him is restored.” “Extremely Hard Case,” Press, May 8, 1865, p. 4.
106. Some enlistment officers felt the crackdown even before this law's passage. In late 1863, First Lieutenant Cornelius Green was charged with enlisting a 15-year-old; because the boy swore he was 17 on his oath of enlistment, Green could not credibly claim to be unaware he was underage. According to Judge Advocate General Holt, Secretary Stanton concluded that “the widespread nature of the problem [of underage recruitment] made it necessary to ‘make an example’” of Green and another officer convicted of the same charge by dishonorably discharging them. Protesting the injustice of the decision, one of Green's former commanding officers noted that the “offense of enlisting a minor” could readily “be fastened upon every officer who has recruited men in the state of New York.” (Cornelius Green, December 3, 1863), JAG Records, book 5. The timing of this case––soon after Lincoln's sweeping suspension order––is probably not coincidental; once courts no longer provided a release valve, the need to prevent minors from entering in the first place grew more pressing.
107. “An Act further to regulate and provide for the enrolling and calling out the National Forces, and for other Purposes,” enacted July 4, 1864, U.S. Statutes at Large 13 (1863–65), 380.
108. Congressional Globe, 38th Congress, 1st Session, 3380.
110. Certainly this was the takeaway message for a Rhode Island provost marshal who established an unsavory relationship with the Providence Reform School, which funnelled boys to him while appropriating their bounties. Appearing before a Rhode Island Senate Committee formed to investigate the matter, the School Superintendent James M. Talcott was asked: “Didn't you know that a recruit, when he enlists, is obliged to swear that he is eighteen?” When Talcott denied this to be true, the now confused questioner pressed further. “Do they enlist boys under eighteen?” to which Talcott responded affirmatively: “They enlist from sixteen. The Provost Marshal said… ‘No boy under sixteen must present himself at all. After sixteen, I can receive him.’” Boys 16–18 years of age, however, had to obtain consent, which the superintendent, acting in loco parentis, readily supplied in defiance of parents’ expressed wishes. The Senate committee ultimately censured the school for engaging in a practice that “rides over the rights of parents and guardians” by depriving them of their minor children and their rightful “control of those children's earnings paid to them in advance for dangerous and distant service.” Report Made to the Senate Relative to the Enlistment of Boys from the Reform School into the Army of the United States (Providence: Hiram H. Thompson, 1865), 18.
111. “An act to amend several acts heretofore passed to provide for the enrolling and calling out of the national forces and for other purposes,” enacted March 3, 1865, reprinted in Acts and Resolutions of the Second Session of the Thirty-Eighth Congress (Washington, DC: Government Printing Office, 1865), 78.
112. “Letter from the Secretary of War relative to soldiers discharged for minority,” 37th Congress, 2nd sess., Ex. Doc. No. 113.
113. “An Act to provide that Minors shall not be enlisted in the military service of the United States without the Consent of Parents or Guardians,” May 15, 1872, U.S. Statutes at Large, 17 (1872): 117–18.
114. “Habeas Corpus—A Soldier Discharged by Order of Court,” Chicago Tribune, July 12, 1865, p. 1.
115. “The Courts—Supreme Court Chambers,” New York Herald, December 27, 1866, p. 6; Early the following year, another New York judge, this time in the Court of Common Pleas, delivered an equally firm opinion in favor of applying the Ableman ruling to cases of minority enlistment and thereby denying parents’ habeas corpus petitions. “Court of Common Pleas,” New York Tribune, March 19, 1867, p. 1. Additional cases reported in the press in this year suggest that state court judges elsewhere tended to side with parents. See, for example, “Writ of Habeas Corpus,” Daily Ohio Statesman, April 18, 1867, p. 3; and “Court of Quarter Sessions,” Evening Telegraph (Philadelphia, PA), July 20, 1867, p. 1.
116. “The Conflict of Authority: Philadelphia vs. The United States of America,” Evening Telegraph, September 28, 1867, p. 5; Details relating to the furor over the Gormley case have been pieced together from the following additional reports: “How the ‘Awful Majesty of the Law’ is Preserved,” Evening Telegraph, September 26, 1867, p. 4; “The Conflict of Authority Case––Opinion of General Holt,” Evening Telegraph, September 28, 1867, p. 8; “Conflict of Jurisdiction in Philadelphia,” The Sun (New York, NY), September 28, 1867, p. 1; “Secretary Welles and the Philadelphia Courts,” Commercial Advertiser (New York, NY), September 30, 1867, p. 3; “Inter-State Comity,” Evening Telegraph, October 3, 1867, p. 1; “The Selfridge–Gormley Case,” Evening Telegraph, October 6, 1867, p. 1; and “The Writ of Habeas Corpus,” Daily National Intelligencer, October 7, 1867, p. 2.
117. “The Conflict of Authority: Philadelphia vs. The United States of America.” Newspapers also reported that Welles had threatened to punish the city if the decision did not go his way by looking elsewhere for recruits and sending navy ships to other ports for repairs. The number of these confrontations must have been considerable: Selfridge received writs relating to Gormley and two other alleged minors a day apart, and an additional writ for another underage enlistee was delivered just a day later.
118. Diary of Gideon Welles, 3 vols. (Boston: Houghton Mifflin Company, 1911): 3:199–200, 209–21.
119. Henry Stanbery to Gideon Welles, October 4, 1867, “Gormley's Case––Habeas Corpus,” in Official Opinions of the Attorneys General of the United States, 13 vols., ed. Ashton, J. Hugley (Washington, DC: W.H. & O.H. Morrison, 1870), 12:258–75.
120. Wallace, Henry E., Philadelphia Reports Containing Decisions Published in the Legal Intelligencer during 1868, 1869, and 1870, vol. 7 (Philadelphia: J.M Power Wallace, 1875), 76–81.
121. Thomas H. Neill was a lieutenant colonel and a brevet brigadier general in the United States Army. This case is further detailed in re Neill, Case No. 10,089, 17 Fed. Cas. 82.
122. “Conflict of Jurisdiction: The Case of General Neill Taken from the State to the Federal Courts,” New York Herald, January 22, 1871, p. 4; a later edition of the same paper published an additional account under the headline “Federal and State Jurisdiction in the Courts.” See also “Gen. Neill Released,” New York Tribune, January 28, 1871, p. 10.
123. “Federal and State Jurisdiction of the Courts,” New York Herald, January 22, 1871, p. 6.
124. Asa Bird Gardner to E.D. Townsend, January 31, 1872, AGO Letters, Main Series.
125. United States v. Tarble, 80 U.S. (13 Wall.) 397. For background on this case, see Ann Woolhandler and Michael G. Collins, “The Story of Tarble's Case: State Habeas and Federal Detention (August 11, 2003),” in Federal Court Stories, ed. Vicki C. Jackson and Judith Resnik. http://ssrn.com/abstract=1447422 (accessed August 16, 2017).
126. Tarble's Case received a one line notice in the Daily National Republican (Washington DC) on March 5, 1872, p. 4, and a three line column reprinting Justice Field's opinion, “Important Decision,” Daily Patriot on April 22, 1872, p. 1. These were the only press references we were able to locate.
127. “State Courts vs. The Military,” The World, August 15, 1863, p. 2.
128. Recognizing that local law officers were far less likely than federal ones to provide justice for African Americans, especially in former Confederate states, Congress passed the Habeas Corpus Act of 1867, which gave petitioners the right to appeal directly to federal courts for writs of habeas corpus. (Prior to this time, only those jailed under federal authority could apply for habeas relief in federal courts). On the origins and implications of this shift, which helped transform habeas corpus into a vehicle used primarily to provide appellate review of state criminal convictions, see Wiecek, “The Great Writ and Reconstruction;” and Mayers, Lewis, “The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian,” University of Chicago Law Review 33 (1965): 31–59.
129. Allen Dunn, February 21, 1866, AGO Letters, Enlisted Branch, box 679.
130. See Schoulder, James, A Treatise on the Law of Domestic Relations, 3rd ed. (Boston: Little, Brown, and Company,  1882), 683–84. Recognition of the legally emancipatory nature of both marriage and military service is evident in the 1862 Homestead Act, which stipulated that individuals below the age of 21 could apply for a land grant if they were heads of household or had performed military service for at least 14 days during a time of war. U.S. Statutes at Large 12 (1861–62): 392.
131. Overall, the state played a mixed role in this period in relation to family stability and parental rights. By removing so many men from home, wartime mobilization proved extremely disruptive in many households, but as McClintock, Megan J., “Civil War Pensions and the Reconstruction of Union Families,” Journal of American History 8 (1996): 456–80, points out, the government's generous pension system also helped sustain Union families’ financial integrity. Similarly, whereas the nationalization of habeas cases sharply curtailed parental rights vis-à-vis the military, the federal government also championed the legalization of relationships between freedmen and women, and typically supported their right to control minor children against the claims of former masters. On this point see Jones, Catherine A., Intimate Reconstructions: Children in Postemancipation Virginia (Charlottesville, VA: University of Virginia Press, 2015), ch. 2.
132. Thompson, Seymour D., “Abuses of the Writ of Habeas Corpus,” American Law Review 18 (1884), 1, 4.
The authors thank the American Council of Learned Societies and the Australian Research Council (grant number DP150100424) for supporting this research. They are also indebted to Catherine A. Jones, Andy Kaladelfos, Rachel Klein, Michael Parrish, Jonathan W. White, Elizabeth Dale, and the anonymous reviewers at Law and History Review for their helpful suggestions on earlier drafts of this article, and to Danielle Thyer for research assistance.
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