The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1869-09-07
THE TEST OATH.
Opinion of Attorney Gen.
eral Hoar.
Ii is not Required of Mem
bers OF the Legislature.
RICHMOND, September 4.-The follow.
ing is Attorney General Hoar's opinion,
received this morning by Gen. Candy:
ATTORNEY GENERALS OFFICE, y.
WASHINGTON, d. c.,
20 Arnn.+ % 1890 l

~ "o"' JUN" IL huUUHS, ccCTt"y ~
War:
SIR:-I have the honor to acknowl-
edge the receipt of yoar letter of July
9th, 1869, in which you request my
opinion upon so much of the questions
submitted in the letter of the Com
mauding General of the First Military
District, dated 10th instant, and accom-
panying papers, copies of which are
enclosed, as refer to the legal qualitica-
tops of officers to be elected under the
proposed constitution of the State OF
Virginia, and especially upon the ques-
tiOn whether persons elected to office in
such State under said constitution are
required 10y the supplemental recon
struction act of July 19, 1867, to take
and subscribe to the oath prescribed or
referred to in section second of said act
before entering upon the duties of their
respective offices. The latter question
is the only one indicated with such dis
uinctn ess as to enable Ule to be fully
satisfied that its purport is apprehend-
ed, and therefore confne my answer to
that.
By the statute of April 10, 1869, the
registered voters of Virginia were au-
thorized to vote on the question of the
adoptisn of Constitution for the
State, and at the same time to elect Of
ficers under it, subject to the approval
of Congress. The vote has been taken
in pursuance of the provisions of the
act, aud an election held, and some
parts of the Constitution submitted
have been adopted by the people, and
others rejected. The parts of the pro.
posed 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
duties of these officers will be deter
mined by it. When Virginia is restored
TO rs proper relation to the country, as
a State of the Union, its officers and
legislature will be such as the Constitu-
tIsa of the State provides, deriving
their power from that instrument, and
it will clearly Lot he in the power of
Congress to impose any requirements or
additional qualifications upon them
different from those which under the
Constitution of the United States may
be required in ell States. If,
therefore, any test were TO be i'm
posed on 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
States, the Legislature and officers
wouid not, in my opinion, be the Legls-
latu.l and officers of Virginia under the
new constitution. l do not see tdat
I .uugress can undertake to furnish the
ate with a suitable Legislature to
START with, or to exercise any control
on r its composition which could not be
exerci sed over subsequent Legislatures.
| am, therefore, Of option that the oath
prescribed by the statute of 1862 and by
the statute of July -, 1867, chapter 80,
section 9, required TO be taken by all
persons elected or appointed to office IN
the said Military District under any So
called State or municipal authority, Is
not to be required of the officers OF the
State OF Virginia or members OF the
Legislature elected under the new con-
stitution. 1t does not seem TO me that
the provisions of this ninth section,
which are applicable TO the government
of States under military authority, were
intended to apply to the Legislature
and officers under whom the State Is to
be restored to its proper relation to the
Union, and by whom the Government OF
the State is to be administered after res.
toration.
This opinion is strongly confirmed by
a 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 oi
from the performance of official powers
any officer or person holding or exer-
cising or protesting to hold or exercise
anv civil or military officer or duty in
said district, under any power, election,
appointmen. or authority derived from
or granted or claimed under the SO.
called State 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 leglsla'
turc under the Constitution OF State
could have its members appointed by a
detail from soldiers of the army. The
reasonable conclusion seems to me TO
be that it was not intended any such
Legislature should be allowed TO exist,
and until reconstruction was completed,
except for the limited and qualified pur-
poses requisite to reconstruction; but
on the other hand l fully concur with
the view of the General commanding In
1atn hot .lAr h..
acts of Congress no officer or legislator
is competent OF should be permitted to
exercise any functions or power of bis
office within that State, except so far as
these acts themselves provide, without
taking the oath which is referred to in
the statute of 1867 above quoted.
The act of April 10, 1869, requires the
Legislature to meet at time which 1t
eeslgnates; that il is to meet implies
that 1t Is TO come together for some pur-
pose. 1t is required under the previous
law to act upon the question Of adopt
| ing the Fifteenth Amendment 10 the
Constitution of the United States be-
fore the admission of the State TO rep
resentarion in Congress. am of
opinion, therefore, that it may come to-
SelueT, oTSanlEe anu act upon that
amendment, but that until Congress
shall have approved the Constitution
aud the action under it, and shall have
restored the State TO its proper place in
the Union by recognizing its form of
government as. republican, aud admit
ting it TO representation, the Legisla-
ture is not entitled and could not with
out violation of law be allowed to trans.
act any business, pass any act or resolve
or undertake 10 assume any other fuuc-
tions of legislature, if the test oath
has not been required of its members,
and that no offices elected under the new
constitution can enter upon the duties
OF his office without taking the oath
while the military government contin-
ues. Very respectfully,
- 4 ~.