The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-09-06
BY TELEGRAPH.

BY TELEGRAPH.
THE TEST OATH.
Opinion OF Atxorney-General Aoar on
the Test Oath in Virginia.
RICHMOND. September 4-The following Is
Acknowledgement Hoar's opinion received this
morning by General Candy
ArIoRNEY-GENERAL's OFFICE,
August %, 1869.
To Hon. John 4. Raaolins, Secretary Of War ::
Sm: have the honor t. knowledge the re-
ceipt Of your letter Of July 9th, 1869, IN whicn
Won request my opinion upon 80 much OF the
question submitted in the letter OF the Com
lnsnding. General Of the First Military District,
dated the 18th inst, and accompanying papers,
copies OF which are inclosed, refers to the ie-
gal qualifications Of officers to be elected unoer
the proposed Constitution of the State OF vlr'
Sinia, and especially upon the question whether
persons elected to Office in such State under SAID
Constitution are required by the supplemental
Reconstruction act Of July 18th, 1857, to take
and subscribe to the oath prescribed or referr-
ed to in section Of said act before entering
upon the duties OF their respective omces
The latter question is the only one indicated
fully satisfied that it's purport is apprehended,
and therefore confine my answer to that, by
the statute Of April 10th, 1859. the registered
voters of Virginis were authorized to vote on
the question Of the adoption OF constltutlon
for the State and at the same time to elect
officers under it, subject to the approval OF
Congress. The vote has been taken IN pur-
suance of the provisions Of the act, and the
election held; and some parts ofthe constitution
submitted have been adopted by the people
and others rejected. The parts OF the proposed
constitution thus adopted, If this should De
approved by Congress, will be the Constltu-
tion of Virginia, under which all its officers
will be required to act and the quallhcatlons
as well as the duties OF those officers will be de-
termiIed by it.. When Virginia ls restored 20
its proper relations to tie country, as State
of the Union, its officers and Legislature will
be siIch as the Constitution of the State pro-
vides, deriving their powers from that lnsuu.
ment, and it will clearly not be in the power OF
Congress 70 impose any requirement OF addl-
tonal qualifications upon them, different from
those which, under the Constitution OF tine
United States, may be required In all the
states. H therefore, any tests were 70 be i'm
posed 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 re-
cognized by it, and not made apphca'
BILE under the legitimate powers OF Con,
officers would not. in my opinion, be the
Legislature and officers OF Virginia under Its
constitution. / do not see that Congress can
undertake to furnish the State with suitable
Legislature to start with, or to exercise any
control over its composition which could not
be exercised over subsequent Legislatures. l
ga, therefore, Of opinion that the oath pre-
scribed by the statute Of 1852, and by the
statute Of July 10, 1857, chapter 80, section 8,
required to be taken by all persons elected or
appointed to Office IN said military districts,
under any so-called State or municipal auihorl-
ty, Is not to be required OF the othcers OF the
State Of Virginia or members OF the Legls-
lature elected under the new constitution.
1t does not seem to me that the pre-
visions of this ninth section which are
applicable to the government OF the State
under military authority were intended to ap-
ply to the Legislature and offices under wnom
the State is to be restored to its proper rela-
tions to the Union, and by whom the govern
ment of the State is to be administered after
its restoration. This opinion is strongly con-
frmed by reference to the second section OF
the same act, which authorizes the commsn-
der of any district named in the act TO sus-
pend or remove from Office or from the per-
formance Of official powers any officer or per-
con holding or exercising, or processing to
hold or exercise, any civil or military office or
duty In said district, under any power, cleo
ton, appointment or authority derived nom,
or e anted by, or claimed under any so-called
State or the government tnereol, ana 70 oetal
perform such duties. It would be impossible
10 suppose that Congress could intend that
Legislature under the constitution OF State,
could have its members appointed by detail
from soldiers OF the army. The only reasona-
BILE conclusion seems to 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 quail
fled 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 or Con-
gress DO officer or legislator is competent, or
should be permitted TO exercise any OF tne
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, 1859, requires the Legis-
lature to meet OF a time which 1t designates.
That it is to meet, implies that it IS to come TO-
gether for some purpose. 1t Is requr-
ed under the previous law to act upon
the question OF adopting the Fourteenth
amendment to the Constitution OF the
United States before the admission OF the
State to representation in Congress. am OF
the opinion, therefore. that it may come TO-
gether, organize and act upon that amend
ment; out that until Congress shall have ap-
proved the constitution and the action under
Il. and shall have restored the state to its pro-
Der place in the Union, by recognizing its form
Of government as republican, and admitting
it to representation, the Legislature is not en-
titled and could not, without violation OF lay,
Be allowed to transact any business or pass
any act or resolve or undertake to assume any
other function Of Z Legislature if the test oath
has not been required OF it's members, and
that no officer elected under the new constitu-
ton can enter upon the duties Of his Office
without taking the oath while military gov
ernment continues.
Very respectfully,
E. r. HoAR, Attorney-G General.
General. Candy will issue his proclamation
Of election about the 18th instant. he ,s de-
,sve6 nv disnnted retrrps from one county.