Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1869-08-31
PHE TEsT-oATH.
Hon. John S. Millson's Opinion.

The Norfolk Jownal-of Saturday last con.
tains correspondence between Col. j. R.
Lewellyn, its editor, and Hon. John s. Mill
son, on the subject eff the test-oath. We
copy Colonel Wilson's brief and comprehen-
sive letter. 1t is ununswerable
NORFOLK, August 26, 1869.
Dear Sir IL received yesterday your letter
asking my opinion on the question e Wheth-
err the test>oath can be legally imposed upon
the members elect OF the Virginia Legisla-
ture." You refer, of course, to any other
test-oath than that contemplated by the third
section of the 14th constitutional amendment
Much has been said and written upon this
subject; but it seems to me extremely simple
and admits of an easy solution.
Congress, by several acts, declared that ono
legal State government" then existed in Yir-
ginia and in nine other States, aud that the
governments then existing in the same were
not legal State governments" They accord
ingly provided that these civil governments,
SO declared to be not legal State governments,
shall be deemed provisional only" until le-
gal governments shall be established, and they
provide the means by which legal State
governments" may be constructed or, in
Here, it will be observed, the distinction is
carefully drawn by Congress between legal
State governments and those not legal and
declared to be provisional: Their express OBJ
iect was to get rid of the latter by authorizing
the people TO establish the former. They
never authorized or intended to authorize the
people to construct provisional" governs
ment, or any other form of State government
that they had themselves pronounced not to
be legal. The power was only to form legal
State government, and if that was not form
ed then there was no power to do anything
else, and the work done was simply nullity.
Congress reserved the power to determine
whether the people of any of these States, in
attempting to reconstruct a legal State gov
eminent, conformed to the requirements of
the law. BY section seven of the act of April
10, 1869, they provide " that the proceedings
in any of said States shall not be deemed final
or operate as a complete restoration thereof,
until their action respectively shall be ap-
proved by Congress-" If Congress shall de-
eide that Virginia has complied with the pre-
scribed conditions, then the government lately
| formed will be declared to be legal State
government-legal, not from the time of such
recognition only, but from the date of its ORR
| ginal establishment and the acts of such
government, SO recognized, will be as vslid as
if done before, as if done after the recognition
by Congress. A familiar example of this
principle will be found in the acknowledge
by one nation of the independence or new
formation of another.
If, on the other hand, Congress should dis
approve the proceedings of Virginia. then the
Constitution lately ratified will not go into
effect at ALL and the government provided by
it will have no existence.
TO argue that because it is not yet declared
or known that the government established by
Virginia is legal State government it must
be treated as an eristing illegal government
seems to me Inconsistent in itself and wholly
subversiye of the objects of Congress. 1t
assumes that the people Of Virginia, in the
exercise of power given to them to construct
a legal State government in the place Of that
declared not to be legal could establish a new
illegal government, which must be checked
and restrained by the same guards applied to
the former illegal government. This, indeed
would be to make the now government illegal,
from an apprehension that it might be de-
clared to be so; for it can scarcely be dispu>
ted that rejection, by foreign authority,
of members of the Legislature, qualified to
hold their seats by the Federal and State laws,
would SO vitiate the constitution of the body
itself as to render their acts utterly invalid.
l cannot suppose that senators chosen by such
an assembly, would be admitted to seats in
the Senate of the United States.
I think, then, there is no force in the OBJ
jcctions that because the constitution has not
been approved by Congress the members
elect Of the Virginia Legislature must be re-
garded and treated as members of an illegal
or provisional government. Congress, in au
thorzing elections to be held according to the
arrangements ofthe new or proposed constitu-
ton, in advance of its approval, and not under
the old constitution, designed that the pro-
ceedings of these State in their efforts to es-
tablish legal State governments should be as
sumed to be lawful aud regular, until, in the
exercise of their reserved authority, they
should, by Withholding their approval, undo
all that was done. Should they do this, there
would be surely no need for adopting precau-
tions against the admission of dangerous or in
competent Legislators, since they must either
be qualified member of legal State govern
ment or just nothing at all. 1t is impossible
that the government shall be at the same time
both legal and illegal; both State and provi-
sional.
am, very respectfully, yours,
JOHN S. MILLSoN.
Colonel j. Richard Lelcellcn, Norfolk, Va.
NTTSSTNG CTFRGyNIAS Tho NorFoIt To,,r