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Four Soldiers in the Courtroom The Union enjoyed the luxury of a great advantage in manpower in the Civil War. We can see the effects of that advantage almost as much on the homefront as on the battlefields of the war. The Union authorities hoped for voluntarism . They encouraged voluntarism. When that failed they threatened conscription and occasionally actually used it, but as it turned out the draft was notoriously easy to evade3—3on appeal for health reasons, particularly.1 But once a man was in the ranks, the attitude of the Union authorities was completely different. They fought tooth and nail to keep him there. Lincoln went to what many regarded as dangerous lengths in suspending traditional civil liberties mostly to make desertion and encouraging desertion more difficult. As is often the case, such presidential policies are taken as a green light for men in lower positions of authority to exert force well beyond what the law allows. The army, in its zeal to stop the hemorrhage from its ranks by desertion, resorted to torture. The commonest practice, used in the Central Guard House in Washington, D.C., in 1864, fell short of what is called “water boarding” today, but it did involve the application of water to extract confessions. Naked prisoners, suspected of desertion, were sprayed with a stream of water from a small rubber hose to the point, in at least one well-documented case, where the skin broke. The prison authorities referred to the procedure as a “shower bath.” As some of the prisoners were men from Ireland and thus British subjects, British authorities in Washington protested the euphemistic explanation of the shower baths, in one case observing: “This explanation does not show that the cold water was applied . . . in conformity with any law or regulations as a punishment for a known and proved offense: on the contrary it ten[d]s to confirm the statement that it is used . . . for the purpose of extorting, by the infliction of bodily pain, confessions from persons suspected of being Deserters.”2 164 The Courts and the Nation Horace Binney, though a defender of the president’s power to suspend the writ of habeas corpus, was shocked even at practices of the authorities that stopped well short of the application of torture to suspected deserters. He had never contemplated the use of suspension of the writ to prevent a soldier or his parents from going to court when the boy was unlawfully enlisted.3 Binney valued the heritage of individual liberty and trusted the judiciary too much to countenance such uses of the Constitution. Here he could hardly have found himself further from the government’s attitude. The administration proved largely indifferent to individual rights on that point and so distrustful of the judiciary that it came close to provoking a constitutional crisis in 1863. When youths, who may have been plied with liquor and impressed into service, appealed to courts of justice to get out, the government sent in its attorneys to fight the appeal. Nationalism proved victorious in courts faced with such questions. It thus triumphed over the value of the family. That was true in three respects. First, despite a two-year struggle in which many disillusioned (or, in some cases, disillusioning) youths escaped the ranks by habeas corpus, in the end the army put an end to the hemorrhage. Second, although family members3—3 usually fathers but sometimes also mothers, especially widowed ones3—3 made appeals for their sons, and the judges answered them and routinely freed the boys from the ranks, in fact, the judges never affirmed family values in doing so. The judges made decisions based entirely on considerations of power3—3namely, whether the judiciary had the power to remove a person from the clutches of the military. They never3—3not a single time in all the cases I have found3—3mentioned the rightful claims of the family to these unfortunate individuals. They never mentioned the role of the family in creating national feeling and inculcating national obligation. Third, the cases betrayed the surprisingly callous attitude toward youth embraced by a nation before the era of child labor laws and other welfare legislation. If the boys were too young for military service, it was generally explained in terms of their want of usefulness for military campaigning: they simply were not durable enough yet. There was no other tenderness of conscience about the decision. After all, the culture readily accepted sending boys as young...

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