The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-08-06

Twas recognized by all the political de-
paFtments of the Government of the
United States as the legal government
of Virginia. The declaration made by
1.-The convention at Wheeling, on the 18th
OF June, 1861, before the ordinance was
passed that re-orRanized and restored
the government OF Virginia, declared
that the Offices of all who adhered to the
Convention at Richmond, whether
legislative, executive or judicial, are
vacated" This declaration did not
ioperate to vacate the offices of those
i who adhered to the Richmond Conven-
1-tion, but it simply declared fact that
already existed, that is, that such per-
sons, by repudiating the constitution
and laws OF the United States, and
claiming to exercise the functions oi
their offices in the interest of the pre-
tended new government, had by spch
acts, already vacated their offices; but
was an authoritative declaration that
such offices were vacated. Whether or
not any particular Office was vacant
depended upon whether or not the
| officer attempted to exercise the func-
tions of his office in hostility to the
| Government of the United States, and
| in the interest of the pretended new
\ government. Itwould have been with
In the power of the Wheeling Con ven-
ton to have declared that every othce
| in the State was vacant whethsr the
incumbent adhered to the Richmond
| Convention or not; but II did not do so.
On the 18th day of June, 1851, the
convention passed the Ordinance for
the reorganization OF the State govern
ment." This ordinance provided for
! the appointment by the convention OF q
Governor and some other officers, and
provided that the Governor, Lteuten-
ant Governor, Attorney General, mem
bers of the legislature, and all officers
4 now in the service of the State or OF
any county, city or town thereof, or
hereafter TO be elected or appointed for
such SERVICE" &C., should each take
what is known us the oath to support
| the restored government, before pro-
ceeding in the discharge of their several
duties.
And further provided that "if any
elective officer, who is required by the
preceding section TO take such oath or
affirmation, fail or refuse SO to do, 1t
shall be the duty of the Governor, upon
satisfactory evidence of the fact,
to issue his writ declaring the office
to be vacant, and providing for a
special election to fill such vacancy at
some convenient and early day, to be
designated in said writ; of which due
publication shall be made for the In
| formation of the persons entitled to
vote at such election" &c. The effect
of this ordinance was to go one step fur
ther, in one paI ticniRr, than had been
done before and declare the offices to
be vacant of all who failed or refused
to take the oath prescribed. An ofhcer
may not have vacated his office by
claiming to adhere TO the Richmond
convention, yet this ordinance declared
| II to be vacant If he failed to take the
oath prescribed. On the other hand,
an officer who had vacated his office for
disloyal acts was In effect restored 10
his Office If he should in fact take the
oath prescribed in the ordinance, but
not without doing so. On the 10th
day of August following, the Conven-
ton passed another ordinance on the
subject of offices, the effect of which
was nothing further than TO take away
! from those who had forfeited ana va
Gated their offices for disloyal acts, and
| had not been restored before that time
| by taking the cath under the last named
ordinance, the privilege of being re-
stored by taking the oath after that
time. E pG
On the 26th day OF July, 1861, the Gen
eral Assembly, organized under the re-
stored government, passed an act en-
titled can Act to provide for declaring
certain offices vacant" This was an
act making il the duty of the Governor
| to enforce the ordinance restoring the
Government, so that all officers should
take the oaths therein prescribed. The
act authorizes the Governor oissue his
proclamation requiring all officers in
any county or judicial district to take
the oatn specified in the ordinance
aforesaid, and file the proper evidence
OF their having taken the same in the
Office OF the Secretary of the Common
wealth, within the time named in the
proclamation If any officer failed to
take the req uired oath and file the evil
depce thereof in the time required, the
Governor was authorized to daclare the
Office vacant and cause the vacancy TO
he filled. This act did notvacate any
office in the State, nor did 1t restore to
office any one who had forfeited and
vacated his office. 1t simply provided
the mode in which the Governor should
ascertain and declare what offices were
vacant. If the Governor, under this
act, declared any particular office to be
vacant, his declaration was conclusive
OF the fact. And though the Governor
did not ascertain and declare any par
ticular office to be vacant, the fact that
il was vacant may be ascertalnedi in any
other competent way. From, the fore
going brief review of the declaration
and ordinances ofthe Convention which
restored the government ol the Com
monweaIth of Virginia, it is plain
the.prlnciple is fully recognized that all
persons holding office, who repudiated
the Constitution and laws of the United
States, and attempted to exercise the
functions OF their Offices in the interest
of the inSurgent government. thereby
vacated them, Ihis court must take
notice judicially OF all the political acts
of the Governor, and 1t does not appear
that the Governor had up to the time
the process issued in this cause, de
clared the Office of the Clerk OF the Cir
cult Court of Greenbrier county to be
vacant. Can this Court ascertain the
fact of vacancy in any other way? The
most convenient and appropriate mode
of asOertaining the fact would, perhaps,
have been upon an issue of fact in the
Court below, but that has not been
done. As i have before stated, an In
surrection existed, formidable in char
acter in certain parts of the United
States, against its Constitution and
laws, for the purpose of setting
up new and other government
in the room, and independent OF, the
government OF the United States, which
new and pretended government at
tempting 10 be set up consisted oil legis-
lative, executive and Judicial depart
ments, corresponding to the various
idepartmentso of the regular government.
The insurrection had become 80 for
midabie that the laws OF the United
States could not be executed in the in
ksurrectionary district by the ordinary
course of judicial proceedings, and the
military power OF the general govern
ment was being used to suppress it,
and civil war was In fact exist
| ing. The President of the United
States, by a PROCLAMATION Issued by him
on the 1st day of July, 1862, in con-
formity to an act of Congress passed
on the 7th day of June, 1862, declared
"that the States of South Carolina,
Florida. Georgia, Alabama, Louisiana,
Il ~ At