The Daily state journal. [volume] (Alexandria, Va.) 1868-1874, 1871-11-28
Yours, very respectfully,
THOs. ii. TuTwILER.
ABINGDON. November 2Otb. 1871.

7Y,omos H. Tutwiler, Esq
My Dear Sir--The questions suggested
by your letter of the 18th instant are sub.
stantially presented to me in letters that
come by almost every mail; and j will
reply with some care to your inquiries, and
will take the liberty of sending what l say
to the press, as the best means of meeting
the general and public desire to know the
official view on these very mooted and very
important topics.
l.sWas commissioner in chancery
before the war an 'obicer" of court, who,
as such, was required to take an oath to
support the constitution of the United
! States &
II. Did the holding of such position
during the war bring a commissioner in
chancery within the meaning of the phrase
-egiving aid or comfort to the enemies of
the United States?"
III. Is member Of the General Assem-
bly, of Virginia a legislatice officer of the
State, within the meaning Of the third clause
of the fourteenth amendment of the
national constitution-which provides,
amongst other things, that ''no person
shall hold any office, civil or military,
under any State, who, having previously
taken an oath as an executive or judicial
obicei of any State, to support the constitu
ton of the United States, shall have en-
gagged in insurrection or rebellion against
the same, or given aid or comfort to the
enemies thereof?o
There has been no adjudication of the
first two questions. can only state what
believe will be held by the Federal courts
when they shall come to be adjudicated.
As to the first, my belief is, that a COM
missioner in chancery is an "o6icero of
court. Matthews says "a commissioner in
chancery is an officer of the court of chan
cery." Chapter 175, section I'd of the code
OF Virginia, provides that there shall not
be more than three such commissioners IN
office at the same time for the same COURT
Thus the law specially deslgnates the'conl-
missioner's place as an office, and makes
the commissioner an officer.
Being such, did commissioner III cham
Gerry before the war take an oath to sup
port the constitution of the United States
Va Chapter XII OF the Code, section lst,
speaks of persons " elected or appointed to
or holding office or post of profit, trust or
emolument, civil or military, legislative,
executive, or judicial, under the government
of this Commonwealth"
Chapter XIII, in sections first, second
and third, requires every person elected or
appointed to any post or Office referred to
IN the preceding chapter to take certain
oaths. s
And section llth, OF the same chapter,
provides that If person elected or appoint
eel to any such office or post shall act in
said office or post before taking the oath
prescribed by the second section, and also
The oath TO support tie Consultation Of the
lfufed STATES, the oath OF fidelity to the
'yommonweaitn, ana an oath OF Office, or
before giving such bonds as are required by
law, he shall forfeit not less than one hum
dred nor more than one thousand dollars.
lt seems PLAIN, therefore, that commits
sloner IN chancery IS an officer within the
contemplation OF the third clause of the
Aistn amendment ana mat, as such, he
was, was, before t,ie war, pouha py the laws OF
Virginia 70 take an oath 70 support the
constitution OF the'United States.
being SO pound, the Federal courts III
this distflct VIII presume that he took such
an oath, without proof; and believe they
will go, when necessary, to the extent Of
refusing TO receive evidence that the oath
was not actually taken VIII refuse to re-
celve Gel evidence OF the violation of the law OF
Virginia. E9MAf4 s4
II: on the second question, whether the
holding OF the Office OF Commissioner in
ohancery, under the state, during the war,
involved the holder IN completely with the
ooqthern Coniederacy, and IN giving aid
ana comfort 10 the enemies OF the United
states, suppose no one will deny that, in
legal contemplation, dtd. And in point
OF lac', am sure that very few OF us will