Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1869-09-10
The Test=Oath.
THE OPINION OF ATTORNEY GENERAL HoAR
ATTORNEY GENERALS OFFICF. J
August %, 1869.


the receipt Of your letter Of July 27. 1869
in which you request my opinion "upon SO
much Of the questions submitted in the let
ter of the commanding General of the First
Military District, dated the 10th instant,
and accompanying papers, copies Of which
are enclosed, as refers to the legal auahfca-
tons Of officers 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 under
said constitution are required by the sup
Elemental reconstruction act of July 10,
1867, to take and subscribe to the oath pre-
scribed or referred to III section nine of said
act before entering upon the duties of their
respective Offices" ID -E.e.-f Is.
The latter question is tbs only one indi-
Gated with such distinctness as to enable me
to be fully satisfied that its purport is ap-
pretended, and [ therefore confnc my an
swer to that.
By the statute of April 10, 1869, the reg
istered voters of Virginia were authorized to
vote on the question of the adoption of
constitution for the State, and at the same
time to elect officers under it, subject to the
approval of Congress. The vote has been
taken in pursuance of the provisions of the
act, and the 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 he the constitution of Virgin
la under which all its officers will be required
to act, and the qualifications as we'll as the
duties of those officers will be determined by
it. When Virginia is restored to its proper
relations to the country as State of the
Union, its officers and Legislature will be
such as the constitution of the State provi-
dcs, deriving their powers from that instru-
ment, and it will clearly not be in the power
of Congress to impose any requirements of
additional qualifications upon them different
from those which, under the Constitution of
the United States, may be required in all
the States If, therefore, any test were to
imposed upon members for 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 re-
cognized by it, and not made applicable I'M
der the legitimate powers of Congress to all
the States, the Legislature and officers would
not, in my opinion, be the Legislature and
officers of Virginia under its constitution. I
do not see that Congress can undertake to
furnish the State with suitable Legislature
to start with, OR to exercise any control over
its composition which could not be exercised
over subsequent Legislatures I am there
fore of opinion that the oath prescribed by
the statute of 1862, and by the statute Of
July 10, 1867, chapter 80, section 9, re-
quired to be taken by all persons elected
or appointed to Office in said military dis
tricts, under any so-called State Or NUM-
cipal authority" is not to be required of the
officers Of the State of Virginia or members
of the Legislature elected under its new con-
stitution.
1t does not seem to me that the provisions
of this ninth section, which are applicable to
the government of the State under military
authority, were intended to apply to the
Legislature and officers, under whom the
State is to be restored 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 con-
firmed by reference to the second section
of the same act, which authorizes the COM
mander Of any district named in the act ''to
suspend or remove from office, Or from the
performance of official duties and the exer.
else Of official powers, 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, cleo
ton, appointment, or authority, derived,
from, or granted by, or claimed under any
so-called State or the government thereof"
and to detail a competent officer OF soldier Of
the army to perform such duties. 1t would
be impossible to suppose that Congress could
intend that Legislature under the constitu-
ton of State could have its members APP
pointed by detail from soldiers of the army
The only reasonable conclusion seems to me
to be that it was not intended that any such
Legislature should be allowed to exist and
act until reconstruction was completed, ex-
cept for the limited and qualified purposes
requisite to reconstruction. III
But, on the other hand, I fully concur
with the view of the General commanding in
Virginia that under the reconstruction acts
of Congress no officer or legislator is COM
petent or should be permitted to exercise
any Of the functions 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 Arpil 10, 1869,
requires the Legislature to meet at a time
which it designates. That it is to meet i'm
plies that IL Is 10 come together for some pur-
pose. 1t is required under the previous law
to act upon the question of adopting the If
teenth amendment to the Constitution of the
United States before the admission of the
State to representation in Congress 1 am
of opinion, therefore, that it may come to-
gether, organize, and act upon the amend
ment, but that until Congress sha!I have ap-
proved the Constitution and the action IN
der it, and shall have restored the State to
its proper place in the Union by recognizing
its form Of government as republican, and
and admitting it to representation, the Leg
islature is not entitled, and could not, With
out violation of law. be allowed to transact
any business, paes any act or resolve, Or I'M
dertake to assume any other function of
Legislature, if the test oath has not been re-
quired Of its members; and that no officer
elected under the new Constitution can en-
ter upon the duties of his office, without tax
ing TIE oath, while military government
continues.
Very respectfully,
[Signed] E. R. HoAR,
Attorney General
A true copy:
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