Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1869-09-07
THE TEST-OATH.
Attorney General Hoar's Opinion.
ATToRNEY-GENERAL's OFFICE,
Anrust % 1860

Attorney General Hoar's Opinion.
ATToRNEY-GENERAL's OFFICE,
August %, 1862
To the Hon. John A. Rawlins, Secretary of War:
SIR: [ have the honor to acknowledge the re-
ceipt of your letter of July q, 1869, in when
you request my opinion upon SO much OF the
questions submitted in the letter of the Com
handing General of the First Military District,
dated the 10th instant, and accompanying pa
ners, copies of which are enclosed, as refers to
the legal qualifications of officers to be elected
under the proposed constitution OF the State Of
Virginia, and especially upon the question
whether persons elected to Office in such State
under said constitution are required by the
SUPPLEMENTAL reconstruction act Of July 10,
1869, to take and subscribe to the oath pre-
scribed or referred to in section g. of said act,
before entering upon the duties of their respec
tive offices.
The latter question is the only one indicated
with such distinctness as to enable me to be
fully satisfied that its purport is apprehended,
and therefore confne my answer to that.
By the statute of April 10, 1869, the regis
tered voters of Virginia were authorized to vote
on the question of the adoption ola constitution
for the State, and at the same time to elect Of
fcers under it subject to the approval of Con
gress. The vote has been taken in pursuance
of the provisions Of the act, and the election
held, and some parts of the constitution sub
mitted 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 required to act,
and the qualifications as well as the duties of
those officers will be determined by it. When
Virginia is restored to It's proper relations to
Al, Gtak of fL,o
and Legislature will be such as the constitution
of the State provides, deriving their powers
from that instrument, and it will clearly not be
in the power Of Congress 10 impose any re-
quirement of additional qualifications upon
them different from those which, under the
Constitution of the United States may be re
quired in all the States. If, therefore, any
tests were to be imposed upon members Of the
Legislature not provided by the constitution Of
Virginia. or any restriction 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 would
not, In my opinion, be the Legislature and Off
GERS Of Virginia under its constitution. | do
not see that Congress can undertake to furnish
the State with suitable Legislature to start
with, or to exercise any control over its compo-
sition which could not be exercieed over subse-
quent Legislatures. am, therefore, of opin-
ion that the oath prescribed by the statue Of
1862, aud by the statute Of July 10, 1867, chap
ter 80, section 9, required to be taken by all
persons elected or appointed to office in said
military districts, under any so-caned State Or
municipal authority" is not to be required of
the officers of the State of Virginia, or mem
bers Of the Legislature elected under its new
constitution.
1t does not seem to me that the provisions of
this ninth section, which are applicable to the
government Of the State under military author
ity, were intended to apply to the Legislature
and officers under whom the State is to be re-
stored to its proper relations to the Union, and
by whom the government Of the State is to be
administered after its restoration. This opinion
is strongly confirmed by reference to the Sc
cond section Of the same act, which authorizes
the commander Of any district named in the
act ITO suspend or remove from office, OR from
the performance of official duties and the exer-
else OF official powers, any officer or person hold
ing or exercising, or protesting to hold or exer-
else, any civil Or military Office or duty in said
district, under any power, election, appoint
ment or authority derived from or granted by,
or claimed under, any so-called State or the
government thereof and to 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 State could have its mem
bers appointed by detail from soldiers of the
army. The only reasonable conclusion seems TO
me to be, that 1t was not intended that any
such Legislature should be allowed to exist and
act, until reconstruction was completed, except
for the limited and qualified purposes requisite
to reconstruction.
But, en- the other hand, I fully concur with
the view of the General commanding in Vir-
ginia that under the Reconstruction acts of
Congress no officer or legislator is competent. or
should be permitted to exercise any of the func-
tons or powers of his Office within that State.
except SO far as those acts themselves provide.
without taking the oath which is referred to in
the statute Of 1867, above quoted The act of
April 10th, 1869, requires the Legislature to
meet at time which it designates. That it is
to meet implies that it Is to come together for
some purpose 1t is required under the pro-
visions of law to act upon the question of adopt-
ing the Fourteenth Amendment to the Consti
tuition of the United States before the admis-
I am of the opinion, therefore, that it NAV
come together, organize and act upon that
amendment, but that until Congress shall have
approved the constitution and the action under
it, and shall have restored the State to its pro-
per place in the Union by recognizing its form
Of government as Republican. and admitting it
to representation, the Legislature is not entitled
and could not, without violation of law, be al
lowed to transact any business, pass any act to
or resolve or undertake to assume any other
function of Legislature if the test oath has
not been required Of its members and that no
officer elected under the new constitution can
enter upon the duties of his office, without TAX