The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-09-09
OPINION OF ATTORNEY GENERAL HOAR ON
THE TEST OATH IN VIRGINIA.

OPINION OF ATTORNEY GENERAL H0AR ON
- THE TEST OATH IN VIRGINIA.
RICHMOND, September 4.-The following is At
torney General Hoars opinion received this morn
ing by General Candy:
ATTORNEY GENERALS OFFICE,
August 20, 1869.
To Hon. John A. RasOlns, Secretary Of War
SIR: 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 Of the Command
ing General of the First Military District, dated
the 10th instant, and accompanying papers, copies
of which are nclosed, refers to the legal quail
fcations of officers to be elected under the pro-
posed Constitution of the State of Virginia, and
especially upon the question whether persons
elected to Office in such State under said Consttu-
tion are required by the supplemental reconstruc-
tion Act of July 18th, 1867, to take and subscribe
to the oath prescribed or referred to In Section
of said Act before entering upon the duties OF
their respective offices. The latter question is the
only one indicated with such distincness as to en-
able me to be fully satisfied that purport is ap-
pretended, and l therefore conhne my answer 10
that Blythe statute of April 10Th, 1859, the reg
istered voters of Virginia were authorized to vote
on the question of the adoption of Constitution
for the State and at the same time 10 elect officers
under it, subject to the approval of Congress-
The vote has been taken in pursuance OF tie pro-
visions of the Act, and the election held and
some parts of the Constitution submitted have
been adopted by the people and others rejected.
The parts of the proposed Constitution thus adop-
ted, if this should be approved by Congress, will
be the Constitution of Virginia. under which all
it's officers will be required to act, and the quaf-
cations 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, rs State
Of the Union, its officers and Legislature will be
such as the Constitution Of the State provides, de-
irving their powers from that instrument, and it
will clearly not be in the power of Congress TO
impose any requirement Of additional qualifca-
tions upon them, different from those which under
the Constitution of the United States may be re-
ouired in all the States. If. therefore, any tests
were to be imposed upon members of the Legisa-
ture not provided by the Constitution of Virginia,
or approximation imposed upon the people OF the
Stale in their choice of officers not recognized BY
it and not made applicable under the legitimate
powers of Congress TO all the States, the Legisla-
ture and officers would not, in my opinion, be the
Legislature and officers of Virginia under its Con-
stitution. do not see that Congress can under
take to furnish the State with suitable Legisla-
ture to start with, or to exercise any control over
its composition which could not be exercised over
subsequent Legislatures. am, therefore, OF opin-
ion that the oath prescribed by the statute OF
1862, and by the statute of July ]9, 1867, chap
ter 3O section 9, required to be taken by oil per-
sons elected or appointed to Office in said mililsry
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 Legisa-
ture elected under the new Constitution. 1t does
not seem to me that the provisions of this ninth
section which are applicable to the Government of
the State under military authority were intended
to apply to the Legislature and ofhces under whom
the State is 10 be restored tc its proper relations
to the Union, and by whom the government OF the
State is to be administered after its restoration.
This opinion is strongly confirmed by reference
to the second section of the same act, which au-
thorizes the commander of any District named in
the Act to suspend or remove from office or from
the performance of official powers any officer or
person holding exercising or protesting TO hold
or exercise, any civil or military office or duty in
said District, under any power, election, appoint
ment or authority derived from, or granted by, or
claimed under any socalled State or the govern.
ment thereof and to detail competent officer or
soldier of the. army TO perform such duties 1t
would be impossible to suppose that Congress could
ntend that a Legislature, under the Constitution
of State, could have its members appointed by n
detail from soldiers of the army. The only rea-
sonable conclusion seems 10 ME TO be that 1t was
not intended that any such Legislature should be
allowed to exist and act until reconstruction was
completed, except for the limited and qualified
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 Congress no officer or leg
islator is competent, or should be permitted 10 e1
ercise any Of the functions or power of his office
within that Stale, except so far as those Acts
themselves provide, without taking the oath which
is referred to in the Statute Of 1867, above quo
ted. The Act of April 10Th, 1869, requires the
Legislature 10 meet at a time which it designatcs.
That it is to meet, implies that it is to come to-
gether for some purpose 1t is required under
the previous law to ac upon the question of adop
ting the Fifteenth Amendment to the Consitu-
tion of the United States before the admission Of
the State to representation in Congress. | 'm OF
the opinion. therefore that it may come together,
organize and act upon that amendment; but that
until Congress shall have approved the Consttu-
tion and the action under it, and shall have re-
stored the State to its proper place in the Union,
by recognizing its form of government as Repub-
lca, and admitting it to representation, the Leg
slaure is not entitled and could not, without yio
laton of law be allowed 10 transact any business
or pass any act or resolve or undertake 10 assume
any other function cf Legislature if the test
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 without
taking the oath while military government con-
tnues
Very respectfully,
E. r. HoAR Attorney General.