The New York herald., 1869-09-05
VIRGINIA..
Tho Test Oath Question-Opiniou Of Attorney
General HOur.


The Test Oath Question-Opinion Of Attorney
General HOnr.
RICHMOND, Sept. t. 1859.
The following is Attorney General Hoar's opinion,
received this morning by General Canby:-
ATTORNEY GENERALS OFFICE,
WASHINGTON, August 2S, 1869.
To the Hon. JOHN A. RAwLINs, Secretary Of War;
OF your letter OF July 81 1882 In which you request
my opinion upon 80 much OF the questions sub
mltted 10 the letter OF the Commanding General
OF the First Military District, dated the 10th
inst, and accompanying papers, copies OF
which are enclosed, AZ refers to the legal
qualifications Of officers TO be elected under the pro-
especially upon the question whether persons elected
TO Office in such State under said constitution. are
July 49, 1887 to take and subscribe to the oath pre-
scribed referred to IN section two OF said act be-
fore entering upon the duties OF their respective
Offices"
The latter question Is the only one indicated with
such distnctness as to enable me to be fully satis
fed tnat its purport Is apprehended, and there
fore connne my answer to that.
BY the statute OF April 10, 1889, the registered
voters OF Virginia were authorized to vote on the
State, and at the same time to elect officers under
1t, 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 const
tuition submitted have been adopted by the people
and others rejected. The parts OF the proposed con-
stltutOn thus adopted, If they shall be approved by
Congress, Will be the constitution Of Virginia under
which all Its officers will be required
to aa1es 'ne tSsss aSess as win ws Se
determined by 1t. When Virginia Is restored to 1t
proper rel atloDs to the country as State OF the
Union its officers 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 s ne p0Ss amy reaue
ferent from those, which. under the constitution
of the United States, may be required In all
be imposed upon members OF the Legislature
not provided by the constitution OF Virginia. or any
restriction imposed upon the people OF the STATE III
made applicable under the legitimate powers OF Con-
gress to all the States, the Legislature and officers
officers OF Virginia under its constitution. do not
see that Congress undertake TO furnish the State
with suitable Legislature TO start with, or to exer-
else any control over Its composition which could
not be exercised over subsequent Legislatures
am therefore OF opinion that the oath prescribed
by the statute OF 1852, ana by the statute OF
July 10, 1867 chapter 80. section O. re-
CURED to be taken by all persons "eected or ap-
pointed TO office In the said military districts, under
any sO-caed State or municipal authority" Is not
to be required OF the officers OF the State OF Vir
gina, or members OF the Legislature elected under
the new constitution. IL does not seem TO me that
the proyisons of ts ninth section which are appli
cable to the government Of the State under military
authority were intended TO apply TO the Legislature
and Ofcers under whom the state Is to be restored
to its proper relations TO the UhiOn and by whom
the government OF the State u to be administered
after its restoration.
This opinion is strongly confirmed by reference
to the second section or the same act, which atho
rizes the commander Of any district named In the
performance Of Ofcial powers any officer or person
holding exercising or protesting to hold or exer-
else any civil military office or duty in said dis
trict under any power, election appointments or
authority derived from or granted Dy or claimed
under tho sOcalled State or the government thereof
and to detail competent officer or soldier OF the
army to perform such duties. 1t would he impossible
to suppose that Congress could intend that Legls-
lature under the constitution OF state could have
Its members appointed by detail from soldiers OF
the army. The reasonable conclusion seems TO me
to be that II not intended that any such Legsla
ture should be allowed to exist and act until recon-
struction was completed, except for the limited and
qualified purposes requisite TO reconstruction;
with the view of the General Commanding
IN Virginia; that under the reconstruction acts or
Congress no otficer or legislator IL competent or
should be permitted to exercise any OF the functions
far those acts themselves provide without taking
the oath which s referred to IN the statute OF 1857
above quoted. The act Of April TO- 1889, requires
mates. That II is to meet implies that 1t Is to
come together for some purpose 1t is required
under the previous law to act upon the question OF
adopting the fifteenth Amendment to the cOnstitu-
on Of the United States before the admission OF the
'i.Dte " representation In Congress.
am of opinion, therefore, that 1t may come to.
gether, organize and act upon that amendment but
that until Congress shall have approved the cOnst1
tuition and the action under It, and shall have re
stored tho state to It's proper place IN the Union by
recognising Its form OF government as republican
and admitted It to representation the Legislature Is
not entitled and could not, without violation OF
law. be allowed to transact any business pass any
act or resolve or undertake to assume any other
function Of Legislature II the test oath has not
been required OF It's members; and that no 0lilcei
elected under the new constitution can enter upOr
the duties of his office without taking the oath while
the military government continues. Very respect
fully, e. Il. HOAR, Attorney General.