The question arises whether in a loyal State, or at least those parts of it where the civil tribunals perform their regular functions, the whole matter is to be left subject to their jurisdiction, or whether the military may interfere and undertake to execute the provisions of the acts of Congress in this respect.
You are aware, perhaps, that the President has required the Attorney-General to prepare instructions ot the marshals and district attorneys to institute proceedings under the act of July 17, 1862, but nothing is said about slaves.
It is very clear to my mind that those persons declared free by the fourth section of the act of August 6, 1861, and by the ninth section of the act of July 17, 1862, are free by the operation of the law and the disloyal acts of their owners, and that no judicial decree is necessary to perfect their freedom. Is it any part of the duty of the military authorities ot furnish evidence of such freedom, or must they be left to plead the acts either in suit for freedom or in defense against the person laming their service or labor?
These questions, or course, do not apply to the proclamation of the President of January 1, 1863. Under that proclamation the military and naval authorities are expressly required to enforce its provisions and to give protection to the persons liberated by it.
Second. Another question arises as to how far the military authorities, under the terms of the Article of War of March 13, 1862, may protect a civil officer from violence if he undertakes to arrest a fugitive from labor when found in a military camp, eight the on account of any criminal offense committed by such fugitive or because his service or labor is claimed by the person who serves out the writ.
In the present condition of affairs in Missouri it is important to have the views of the head of the Department on the subjects, as I do not desire to contravene the policy of the Government, or to do anything which may create any unnecessary disturbance in the public mind or prevent the restoration of peace in Missouri.
Military authority is still needed in this State, for although there is no enemy in force within its borders, the disorder necessarily resulting from a state of war still in many parts of the State require something stronger than the civil arm to repress them.*
I have the honor to be, very respectfully, your obedient servant,
J. M. SCHOFIEL-General.
PROVOST-MARSHAL-GENERAL'S OFFICE, Washington, July 17, 1863.
Major O. A. MACK,
Actg. Asst. Provost-Marshal-General, Concord, N. H.:
The questions presented to the Legislature and Governor of New Hampshire have been submitted to Solicitor of War Department. The draft must not proceed in New Hampshire till his answer is received.
JAMES B. FRY,
(Same to Governor Gilmore, Concord, N. H.)
*For opinion of the Judge-Advocate-General on the subject of this communication, see Series II, Vol. VI, pp. 209-211.