The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1869-08-30
NORFOLK. AUGUST 26, 1869

NtKFbiIhj August ~, lchJ'
Dear Sir,-I received yesterday your let
ter, asking my opinion on the question
{" Whether the test-oath can be legally i'm
posed upon the members elect of the Vir-
gainia LEGISLATURE You refer, of course,
10 any othertcst-o than that contem pla-
ted by the third section of the fourteenth
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
"no legal State government then existed
in Virginia and in nine other States, and
"that the governments then existing in the
same were not legal State governments"
They accordingly provided that these civil
governments, so declared to be not legal
State governments, shall be " deemed pro-
yisonal only" until legal State govern
ments shall be established, and they pro-
vide the means by which legal State gov
ernments " may be constructed or, in
popular phrase, Reconstructed.
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 ez-
press object was to get rid of the latter by
authorizing the people to establish the for
mcr. They never authorized or intended
to authorize the people to construct ''pro-
Uision0l" government, or any other form
of State government that they had them
selves pronounced not to be legal. The
power was only to form legal State gov
eminent, and if that was not formed 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 legal State
government, conformed to the requirements
of the law. BY section seven of the act of
April 10, 1869, they provide " that the pro-
ceedings in any OF said States shall not be
deemed final, or operate as complete res
toration thereof, until their action respcc-
lively shall be approved by Congress" If
Congress shall decide that Virginia has
complied with the prescribed 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 original
establishment; and 1.-THE acts of such govern
ment so recognized will be as valid as if
done before, us if done after the recogni-
ton by Congress. A familiar example of
this principle will be found in the &C
acknowledgement by one nation of the indie
pendence or new formation of another.
If, on the other hand, Congress should
disapproye 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 de-
clared Or known that the government esta-
blished by Virginia is q legal State govern
ment it must be treated az an existing lille
gal government seems to me inconsistent in
itself and wholly subversive Of the objects
of Congress. 1t assumes that the people Of
Virginia, in the exercise of a power given
to them to construct legal State govern.
ment in place of that declared not to be
legal, could establish new illegal govern
ment, which must be checked and restrained
qy the same guards applied to the former
illegal government. This, indeed, would
be to make the new government illegal
from an apprehension that it might be de-
clared TO be So for it can scarcely be dis
puted that rejection, by foreign autho.
rity, of members of the Legislature, quail
fed to hold their seats both by the Federal
and State laws, would so vitiate the consti-
tuition Of the body itself Ge to render thcil
acts utterly invalid. cannot suppose that
senators chosen by such an assembly would