Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-09-05
RICHMOND.
Attorney General Hoars oplnlon .,


this morning by Gen. Candy at the At
torney Generals Office:
WASHINGTON, d. c., Aug. Is, 1927
Hon ]. A. RsWlins, Secretary Of War, Sir
/ have the honor to acknowledge the re.
ceipt Of your letter of July q, 1869, in
which you request my opinion upon 90
much of the questions submitted in the
letter of the Commanding General Of the
| first military district, dated 10Th ins'- and
the accompanying papers, copies Of which
are endorsed, as refers TO legal qualifca-
tons ofoficefs to be elected under the pro-
posed constitution of the State of Virginia,
and especially upon the question whether
persons elected TO Office in such State, un-
der said constitution are required by sups
Elemental reconstruction act of July
10, 1867, to take and subscribe 10 the oath
prescribed or referred to in section second
offs aid act before entering upon the duties
Of their respective offices.
The latter question is the only one
| indicated with such distinctness as to
enable me to be fully satisfied that its pur-
purt is apprehended, and /, therefore, con-
nne my answer TO that. By statute of April
10, 1869, registered voters of Virgins
were authorized to vote on The question of
the adoption of the constitution for the
State, and at the same time to elect officers
under il, subject to the approval Of Con-
gres. The vote has been taken in pursuance
Of provisions of the act, and an election
held, and some parts of the constitution
submitted have been adopted by the
people and others rejected. The parts of
the proposed constitution thus adopted, if
they shall be approved by Congress, will
be the constitution of Virginia, under
which all its officers will be determined
by it when Virginia is restored to its
proper relation to the country as State of
the Union. It's officers and Legislature
will be such as the constitution of the Sta g
provides, deriving their powers from that
instrument, and it will clearly not be in
the power of Congress to impose any re-
quirement of additional qualifications
upon them different from those which |
under the constitution of the United States |
may be required in all the States. II, |
therefore, any test were to be imposed on
the members of the Legislature not i'm |
posed by the constitution of Virginia, or /
any restrictions imposed upon the people |
of the State in their choice of officers not |
recognized by it, and not made applicable |
under the legitimate powers of Congress to |
all the States, the Legislature and officers 4
would not, in my opinion, be the Legislas
ture and officers of Virginia under Its COM
stitution. / do not see that Congress eau
undertake TO furnish the State with a suit. |
able Legislature to start with, or 10 exer-
else any control over its compo-
sition which could not be exers
cised over subsequent Legislatures. l am,
therefore, of the opinion that the oath pre-
scribed by the statute of 1861 and by the
statute Of July 10, 1867, chapter 80, sec
tion 8, required to be taken by all per-
sons elected or appointed to Office in the
said military distric', under any so-called
State or municipal authority, is not to be
required Of the officers of the State of Vir-
ginia. or members of the Legislature,
elected under the new constitution. Ii
does not seem to me that the provisi Ils of
this section which are applicable to
the government of States under military
were intended TO apply to the
Legislature, and officers under whom The
State is to be restored to its proper rela-
tons to the Union, and by whom the gov
eminent of the State is TO be administered
after restoration. This opinion is strongly /
confirmed by a reference TO the second
section of the same act, which authorized
the commander of any district named in
the the act, to suspend or remove from
Office, or fIom the performance of official
power, any officer or person holding or
exercising or protesting to hold or exercise
any civil or military office, or duty in said |
district, under any power of election, sp- |
pointment, or authority derived from, or
granted, or claimed under the sO-called |
State government thereof, and 10 detail
competent officer or soldier Of the army |
to perform such duties. 1t would be /
impossible TO suppose that Congress |
could intend that Legislature |
under the constitution Of a State cOuli
have its members appointed by detail Of |
soldiers from the army. The reasonable |
conclusion seems to me to be that it was |
not intended any such Legislature should
be allowed 10 exist until reconstruction
was completed, except for the limited and
qualified purposes requisite TO reconstruc.
ton. But on the other hand fully con-
cur with the view of the General COM
handing in Virginia, that under the recor-
struction acts of Congress no officer or
Legislature is competent or should be per-
W SAS4StbC tuO ANoSeAShb VI lONCtS
of his Office within that State, except so
far asthese acts provide, without taking the
oath which is referred to in the statute
of 1867 above quoted. The act Of April
10, 1863, requiring the Legislature to meet
at the time which it designates that il is 10
meet, implies that it is TO come together
for some purpose. 1t is required under
the previous law to act upon the question
of adopting the fifteenth amendment 10
the constitution Of the United States be-
fore the admission Of the State to repres-
entation ia Congress. am of opinion,
therefore, that it may come together, OF
gsnize and act upon that amendment, but
that until Congress shall have approved
the constitution and the action under i, and
shall have restored the State to its proper
place in the Union by recognizing its
form of government as republican, and ada
mitting il TO representation, the Legisla~
ture is not entitled, and could not without
violation of law be allowed to transact
any business, any act or resolve, or uu-
dertske to assume any other function of a
Legislature, if the test osth has not been
required Of its member, and that
no officer elected under the new constitu.
ton can enter upon the duties Of his office,
without taking the oath, while the militia
ry government continues. Very respect
L u HAD