To Richard Harison1
New York August 24. 1799
Attempts are making in different parts of the country to procure the enlargement of soldiers on writs of Habeas Corpus issued by and returnable before state Judges.2 As this practice will probably involve serious consequences it becomes necessary for me to avail myself of the information of those officers of the United States who are particularly charged with the consideration of legal questions. I wish therefore for your deliberate opinion, distinguishing between Courts and individual judges, on the legality of this practice, and especially on the effect of a return to the writ that the person demanded had been duly enlisted by an officer of the United States in conformity with the laws, and with his instructions. You will also be pleased to consider whether upon such a return it is necessary to produce the person who is the object of the Habeas Corpus. The charge for this opinion you will make against the department of War.
With great considn &c. &c.
Richard Harison Esqr
Df, in the handwriting of Thomas Y. How, Hamilton Papers, Library of Congress.
1. Harison was United States attorney for the District of New York.
2. H wrote this letter because of a case in Virginia involving one Edward Walker. Following Walker’s enlistment in July, 1799, in the Seventh Infantry Regiment, his father appeared before Hugh Nelson, justice of the peace, York County, Virginia, to secure his son’s release from the Army on the ground that the son was twenty years old and therefore a minor. Nelson ruled: “… The Father hath the Legal Custody of the said Infant, and hath a Right to his Services untill he shall arrive at the Age of Twenty One years” (undated and untitled copy of proceedings, Hamilton Papers, Library of Congress). This case is discussed in James Baytop to H, July 10, 1799; H to Baytop, August 15, 1799; H to William C. Bentley, August 15, 1799; Bentley to H, August 15, 1799 (all listed in the appendix to this volume).