The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-09-06
BY TELEGRAPH.
THE TEST OATH.
Opinion OF Attorney-General Hosr on
tho Test Oath in Virginia.

Opinion OF Attornoy-GeneraI Hosr on
tho Test Oath in Virginia.
RICHMOND. September 4.-The following is
Attorney General Hoar's opinion received this
morning by General Candy
.,-t ATIoRNEY-GENERAns OFFICE,
August %. 1859.
To Hon. John Il. Ra,oiins, Secretary Of Var ::
Sin: have the honor to acknowledge the re-
ceipt OF your letter Of July 9th, 1863, in which
you request my opinion upon so much Of the
question submitted in the letter or the Com
manding- General Of the First Military District,
dated the 10th inst, and accompanying pIpers,
copies OF which arc inciosei, ,as refers to the le
gal qualifications OF officers to be elected under
ginis. and especially upon the question whether
persons elected to Office In such State under said
constitution are required by the supplemental
and subscribe to the oath prescribed Sr roferr-
ed to in section Of said act before entering
upon the duties OF their respective Offices
with sueh distinctness as to enable me to be
fully satisfied that Its purport is apprehended,
and therefore conf3ne my answer TO that. BY
the statute of April 10th, 1859. the registered
voters OF virginia we're authorized to vote on
the question OF the adoption OF o constitution
Tor the State and at the same time to elect
officers under il. subject to the approval OF
Congress. The vote has been taken in pur-
snance OF the provisions OF the act. and the
election held; and some parts of the constitution
submitted have been adopted by the people
constitution thus adopted. il this should be
approved by Congress-. will be the Constitu-
tion OF Virginia, under which all its officers
as we'll the duties of those officers will be de-
termined by it.. When Virginia ia restored to
its proper relations to tie country, as State
be such as the Constitution OF the State pro-
yldes deriving their powers from that instru-
ment and il will clearly not bs in the power OF
Congress to impose any requirement. of addi-
those which. under the Constitution OF tho
United States, may be required in all the
States. II, therefore, any tests were to be i'm
provided by the Constitution Of Virginia, or any
restriction imposed upon tho people of tho
State IN their choice of officers not re-
BILE under the legitimate powers of Con-
gress to all the States, the Legislature and
officers would not: in my opinion, be the
constitution. I do not see that Congress can
undertake to furnish the State with suitable
Legislature to start with. or to exercise any
bo exercised over Subsequent Legislatures. 1
am, therefore, OF opinion that the oath pre-
scribed by the statute Of 1862 aud by. the
statute q July 10, 1857, chapter 80, section 9.
required to be taken by all persons elected or
appointed, TO Office in said military districts,
under any so-calied State or municipal aulhori-
", is not TO be required OF tho officers Of the
State of Virginia or members or the Legis-
nature elected under the new constitution.
1t does not seem to me that the pre-
visions. of this ninth section which are
under military authority we're intended to ap-
ply to the Legislature and Offices under whom
the State is to be- restored to its proper rela-
tions to the Union, and by whom tue govern
ment Of the State is 10 be administered after
it's restoration. This opiniou is strongly con-
frmed by reference to the second sectlon.of
the same act. which authorizes the comman-
der Of any district named in tine act to sus-
pend or remove from Office or from tho per-
formsnce of official powers any officer or per-
son holding or exercising. or protesting to
hold or exercise, any civil or military Office or
duty in said district. under any power, cleo
tion, appointment or authority derived from.
or 'anted by, or claimed under any eo-ealled
State or the goyernment 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 or q State,
could have it's members appointed by detail
from soldiers OF the aImy. The only reasona-
BILE conclusion seems to me to be that 1t was
not intended that any such Legislature should
was completed, except for the limited and quail
1hed purposes requisite TO reconstruction.
But, on the other hand, fully concur With the
view OF the general commanding in Virginia,
that under the Reconstruction acts of Con-
gress no officer or legislator is competent, or
should be permitted to exercise any Of the
functions or power OF bis Office within that
State, except go far as those acts themselves
provide, without taking the oath which is re-
ferred to in the Statute OF 1867, above quoted.
The act OF April 10th, 1869, requires the Legs-
'lature to meet at a time which 1t desgnates.
That it is to meet. implies that it is to come to-
Z gether for some purpose. It is requr-
ed under the previous law to act upon
the question Of adopting the Fourteenth
amendment to tho Constitution OF the
United States before the admission OF the
State to representation in Congress. 1 am OF
the opinion, therefore, that it may come to-
gether, organize and act upon that amend
ment; but that until Congress shalI have ap-
proved the constitution and the action under
it. and shall have restored the state to it's pro-
per place in the Union, by recognizing it's form
OF government as republican, and admitting
it to representation, the Legislature is not en-
titled and could mol, without violation OF law,
be allowed TO transact any business or pass
any act or resolve or undertake to assume apy
other function Of Legislature II the teat oath
has not been required OF it's members and
that no officer elected under the new constitu-
tion can enter upon the duties Of his office
without taking the oath while military GOV
eminent continues.
Very respectfully.
T.. II. HoAR, Attorney General.
General. Candy will issue his proclamation
Of election about the 18th instant. He ,s de-
layed by disputed returns from one county.
State officers will be installed on the assemb-
ling Of the Legislature.