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No Minor Matter: Underage Soldiers, Parents, and the Nationalization of Habeas Corpus in Civil War America

  • Author(s): Clarke, Frances M
  • Plant, Rebecca Jo
  • et al.
Abstract

 

In the aftermath of the Civil War, state judges lost their long-held right to inquire into the legality of federal detentions. 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. Whereas scholarship on the use of habeas corpus at this time generally concentrates on cases involving freedom of speech or political association, thousands of parents and guardians also petitioned Union authorities and state courts to retrieve children who had enlisted without their consent. Parents, who understood their control over the personhood and labor of minors as one of the bedrocks of American liberty, angrily protested the state’s abrogation of their rights, while state court judges fought to retain their jurisdiction over such cases. We illuminate these conflicts by drawing on a rich array of sources that capture the perspectives of federal and state court judges, Lincoln Administration officials, elected representatives, military officers and parents, and minors themselves. In the process, we show the halting, contested nature of debates over 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.

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