The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1869-09-09
THE TEST.OATH.
Attorney-General Hoar's Opinion.
ArToRNEY-G ENERAL's OFFICE, !


To the Hon. John A. Rawlins, Secretary of War:
SIR I have the honor to acknowledge the
receipt of your letter of July II, 1869, IN
which you request my opinion ''upon SO much
of the questions submitted in the letter Of
the Commanding General of the First Militia
ry District, dated the 10th Instant and &C.
companying papers, copies Of which are en-
closed, as refers to the legal qualifications of
officers to be elected under the proposed con-
stitutioh of the State of Virginia. and espe-
cially upon the question whether persons
elected to Office in such State under said con-
are required by the supplemental
reconstruction act of July 10, 1869, to take
to the oath prescribed or re-
ferred to in section 8, of said act, before en-
tering upon the duties Of their respective Of
The latter question is the only one indica-
ted with such distinctness as to enable me to
be fully satisfied that its purport is apprehen-
ded, and therefore con6ne my answer to
that
BY statute of April 10, 1869, the regis
tered voters of Virginia were authorized to
vote on the question of the adoption Of a con-
stitution for the State, aud at the same time
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 con
stitution 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 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 provides,
deriving their powers from that instrument,
and it will clearly not be in the power Of
Congress to impose any requirement of ad-
ditional qualifications upon them different
from those which, under the Constitution of
the United States, may be required in all the
States. If, therefore, any tests we're 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 rccog-
nized by it, and not made applicable under
the legitimate powers of Congress to all the
States, the Legislature and officers of Vir-
giuia 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 subsequent
Legislatures. am, therefore, of opinion that
the oatk prescribed by the statut of 1862,
and by the statnte of July 49, 1867, chap
ter 40. section 9, required to be taken by all
persons selected or appointed to Office in said
military districts, 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 its
new constitution.
| It does notsecm that the provisions of this
ninth section, which are applicable to the
government of the State under military au-
|thority, we're intended to apply to the Legis-
laturc and officers under whom the State is to
be restored to its proper relations to the I'm
ion, and by whom the government Of the
State is to be administered after its restora-
ton. This opinion is strongly confirmed by
reference to the second section Of the same
act, which authorizes the commander Of any
district named in the act " to suspend or re-
move from Office, or from the performance Of
official duties and the exercise of official pow
ers, any officer or person holding or exercis-
ing. or protesting to hold or exercise, any
civil or military Office or duty in said district
under any power, election, appointment OF
authority derived from or granted BY OF
claimed under, any so-caned State or the 60
vcrnment thereof" and to detail competent
oficer>o 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 members appointed by a detail from sol
| diers Of the army. The only reasonable con-
clusion seems to me to be, that it was not in,
tended that any such Legislature should be
allowed to exist and act, until reconstruction
was completed, except tor the limited and
qualified purposes requisite to reconstruction
But. CD the other hand, fully concur with
the view Of the General commanding in Vir-
GINA, that under the Reconstruction acts OF
Congress no officer or legislator is competent,
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 re-
ferred to in the statute Of 1867 above quot
ed. 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 provisions Of law to act
upon the question of adopting the Fourteenth
Amendment to the Constitution of the Uni
ted States before the admission of the State
to representation in Congress am of the
opinion, therefore, that it may 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 proper place in
the Union by recognizing its form of govern.
mentsas Republican, and admitting it to rep
resentation, the Legislature is not entitled
and could not, without violation of law, be al
lowed to transact any business, pass any act
or resolve or undertake to: assume any other
function of a Legislature if the tcst-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. with
out taking the oath, while military govern.
| ment continues. asa
Very respectfully,
= (Signed) E. R. HoAR,