^'. ^^ y' 'J' A o o « o - V>^ A O H O ' "(J,^ V ^ * • " ?■ ..^' ^•^ ,^^ ^^ ^. -^ < 5 '^O ^^. 'J^^ .1 'iA 11 1-1,' ■• ^V ■^ ' o „ y .40 ^f V', * r\ '^z/M*' -^ "^9" A^-^. •y ^ "-l;-"*^^-' .*'^' t'*.' \ .\:i^ ^1.'' «<>' .^ ^^ ^^ ' =^ ' qV ^ « o . '>,' -J' -^ ^^. 7i/^ ■^ .0- 1 * -I o ^, 41st Congress. ) HOUSE OF EEPEESENTATIVES. i Mis. Doc. 2d Session. | ' ) No. 8. TEST OATH IN VIEGINIA. PAPERS REL.A.T1VP: TO THE TEST OATH IN VIRCtIIIA. Deckmber 11, 1883. — Referred to tlie Committee on Reconstruction and ordered to be printed. The Committee on Reconstruction aslc leave of the Souse to cause thefolloic- incj ]X(pers, tchich ivere laid before the committee in the matter of the admission of Virginia to reiyresentation in Congress^ &c., to Tje printed for the use of the House : 1. General Cauby's report to tlie Secretary of War, relative to the election in Virginia in July, 1SG9. [Copy not fnrnisbed tHe Printer,] 2. The address of the republican central committee, iiresented to the Senate by C. H. Porter, chairman. 3. The statement of Mr. Hnghes, indorsed by Mr. Witcher. 4. The statement of Governor Wells. 5. The memorial of the committee of the Virginia legislature, pre- sented by Hon. Z. Turner, speaker. C. Statement of Governor Walker before the committee. 7. Opinion of Attorney General Hoar on the affairs. There were also about fifty affidavits before the committee from per- sons in various parts of the State, charging, in some instances, a failure on the part of the registering officers to register, and a refusal in others to permit the affiants to vote when registered; and that in other instances threats from persons on the conservative side, and intimidation, were resorted to to prevent persons from voting the republican ticket, and that they were prevented from so doing. Address of the rcind)lican State convention held in Richmond^ Virginia, on the 24:th and 2oth of November^ 18G9, relative to the election in that State on the Gth of July last. To the President of the Senate: -'^ The following address to the Congress of the United States was adopted by the rei)ublican State convention held in Kichmond, Vir- ginia, on the 24th and 25th of November, 18G9, and, in pursuance of a resolution passed by the convention, I respectfully request that it may now be i)reseuted to yoiu' honorable body. ) CHAELES H. POETEE, ' ' President of Convention. 2 TEST OATH IN VIRGINIA. In Kkpl'ulican State Convi':ntion, Jlkhmond, Virginia, November 25, 1889. To the Congress of the Unilcd States : The ropuljlicau party of Virginia, iu full delegated State convention assembled, rc- speetfully represent tliat the election held in this State on the 6th day of July last resulted in a confederate triumph, which we unhesitatingly assert was achieved by art- ifice, intimidation, and fraud. Threats of violence prevented the exercise of free dis- cussion during the canijiaign ; in some instances our meetings were broken up by mobs, the leaders of which have, as yet, gone unpunished. The colored people, dependent upon their labor for supj)ort, were threatened with loss of labor; and a war of exter- minaticm, even, was not unfrec|uently held out before them incase they voted the sepa- rate chniscs and the republican ticket. We believe that the secret of our defeat can be found in the unfortunate submission to a separate vote of the test-oath and disfranchising clauses of the St;ite constitution, in direct conflict with the uctiou of our constitutional convention and in opposition to the deliberate and unanimous opinion of the rank and tile of the rcpuldicau party of Virginia. Whih; we have the greatest confidence in the statesmanship and re])ublieanism of the President and a majority of Congress, we believe that tliey were deceived as to the true situation of affairs in our State; and that no one, however superior otherwise may be his opjiortunities, can rightly understand our situation except by experience ; and wo further believe that in expressing the truth as Ave know it, we shall not be considered faciious, but as doing cur plain and simple duty, and our Avholeduty, to the State and the nati( n Under the system of intimidation resorted to iu 1837, when a vote was taken for and against a convention, 12,(587 colored voters abstained from voting out of a registered colored vote of 105,832 ; while in the late election out of a registered coloi-ed vote of 120,103, 22,198 failed to vote — a proportionate increase of 8,500 over the number which did not vote in 18(57. Out of the 93,145 colored voters wiio were not intimidated in 1867, all of them except 638 voted "for a convention," while 61,249 white votes were cast " against a convention" out of the 76,084 votes polled at that election. These figures show who iire the friends of the reconstruction policy inaugurated by Congress. In the light of these facts woidd it be, just to yourselves or the nation to permit the men who but yesterday were fighting to destroy our republican institutions, to assume political control in Virginia, when it is an absolute certainty that they will defeat the recon- struction policy of Congress and the spirit of tlie constitution lately so unanimously adopted with the same unanimity Avith which they spurned the fourteenth consti- tutional amendment in 18661 We ask that it ]iass into the history of our nation, and be recorded to our honor, that, despite blandishments and threats, 84,000 nuui in the Old Dominion did in the year 1869 declare by their votes that treason was a crime and slionld hc2>iniisjied hij disfran- chisement and exclusion from office. Our constitution, from which the test-oath and disfranchising clauses have been stricken, was framed by a convention of the loyal people of Virginia. Tlu>y believed that the spirit of the reconstruction acts required them to insert those clauses in the constitution, and that in so doing they were but following the example of your honor- aide body, as given us in those acts and the fourteenth amendment. We still believe that those restraints should not have been removed before the rights of the loyal Union men of Virginia had been secured. We submit further that if the so-called conservative party is permitted, in opposi- tion to the laws of Congress, to gain the control of the State, the fifteenth auu'udment to the Constitution of the United States will probably fail. There is no i)robal)ility, from the political comidexion of the legislature, that it Avould ever re -ratify tluxt amendment, and there are at. least grave doubts whether the ratification of that body (illegally constituted and organized as we believe it to have been) was of any force Avhat<'A er. Even if the fifteenth amendment should be adopted, an educational or proiierty ([ualification prescribed by the legislature of Virginia Avould destroy the entire iniluence of colored suft'rage, and they would enact that not a single man of the 120,000 colored voters wlio reside in Virginia should either hold otfiee or sit in the jury- box. We would most respectfully ask that your honorable body guarantee a republican form of governnu'ut. to Virginia, either by ordering a new election and by submitting the Avhole constitution to a vote of tlie people, or by requiring the test oath of the members of Ihe legislature, and awarding the seats of those who cannot take it to those eligible oi)poneuts who received the next highest vote, where the circumstances show that the electors must have known that they were casting their votes for ineligi- ble candidates. In the event of a new election, we Avould ask for a military force sufficient to protect us in tuir political and civil rights. The so-called legislifure which recently assembled in Richmond Avas not only an illegal body according to the laws of Congress, but also according to the opinion of the TEST OATH IN VIRGINIA. 6 Attorney General of the Uuite\l States, which says : " The k^gishxtnro is not entithxT, and conhl not without violation of law be allowed to transact uivj hndricss, pass any act or resolve, or niulertake to assume any other functions of a le<>islature if the test oatli has ;_ not been required of its members ;" in fact that it could do notliing except to organize, ^and ratify tlie fourteenth and fifteenth amendments without taking the oath. ^ The legislature did, liowevei-, pass resolve after resolve, but strangely omitted to pass ^ the resolutions ottered congratulating the nation on the republican victories in the ,^ northern and western elections, and pledging themselves to carry out the new constitu- tion. They fZ/fZ /ra»srtc., Chairman Committee. EO. L. OWEN, Senator. J. B. cep:nshaw, R. of D. J. W. WALKEE, H. of J). E. W. MAHOOD, H. of D. E. C. BUEKHOLDEE, H. of D. W. N. wood, H. of ]). JOHN W. ASH BY, H. of I). Jno. a. McCaull, H. of JJ., Secretary. Statement of Governor G. C. Walker.i of Virginia, before the Reconstruc- tion Cominittee, December 9, 1S69. Governor Walker said : Gentlemen of the committee, I intended to be here at the opening of the session of the committee, when I supposed the members of the legislature who were appointed upon that committee were present, in order that I might hear the paper read. (The paper signed by Zeph. Turner and others.) I heard that paper read at the rooms of the committee, and I believe it expresses the views and intentions of a large majority of the people of the State of Virginia. We believe that we have comi)lied fully — at least we have tried to do so — with every provision of the reconstruction laws of Congress from beginning to end. We have adopted a constitution which was framed by a convention com- posed of delegates elected under the reconstruction laws. The constitu- tion, I believe, is republican in form in every i^articular, as adopted by the people. We have adopted that constitution by an almost unanimous vote of the State, and I believe it t^) be the firm intention of the people to accept that constitution entirely, fully, and in good faith. There are some i)rovisions of that constitution wliich 1 did not apjn^ove of and which I do not now, because I do not think they are adapted to our pecu- liar condition. Our territory is large; it is sparsely populated; and while the system of county organization would be well for New York, it would not be well for Virginia. But, from an inspection of the con- stitution, I an\ inclined to think that the evil would be in its mode of execution rather than in the article itself, and I think it can be applied TEST OATH IN VIRGINIA. 7 to our state; and when the ])eoi)le come to understand it they will be satisfied with it. Every other provision of the constitution has been ratified by the people cheerfully, and, I believe, ^•oluntarily, in every resiiect; and I believe they will execute that constitution in the utmost good faith. You, I suppose, gentlemen of the committee, know that I spoke in various sections of the State during the canvass, and I stated to the people everywhere that these were the rules laid down for us to abide by, and that, when w^e conformed to them faithfully, I had no sort of doubt of our prompt admission to the Union. I believe we have com- plied in every respect — at least we have intended to — and we are here to ask for prompt admission. The necessity of prompt admission may not be so apparent to you as to us. The affairs of the State for the last eight or nine years have been in the utmost confusion, and for the greater x^art of the last four years the laws have been executed by the military commander ; and under the circumstances, as you will find by the reports of the various commanders, it has been next to an impossi- bility to find men who could take the iron-clad oath to fill the offices of the State. But even if there liad been plenty to fill every position in our State, still its government is unsettled; its financial condition today is that of dishonor, and it cannot be restored until we have a legislature and can support ourselves as a civil government. We need capital, we need emigration, and neither of those wiR come to our State until we have a settled civil government. I do not desire to detain you, but I wish to say that I agree with the language of that address, because it ex- presses my idea, and the ideas and intentions of our people. I desire it known not only here, but everywhere, to Congress and to our friends here of the committee, that the people of the State are in earnest about this matter ; that they are sincere, and have adopted this constitution, and approved the acts of the legislature under this constitution, hon- estly and sincerely, and that they will accept this constitution in entire good faith in every particular. By Mr. Butler. Will you allow me the single question ? Some of us have been told that there is an intention on the part of the legisla- ture, or some portion of the people of Virginia, as soon as the State is admitted into the Union, to have the legislature call a new convention, or that the people will call a new ccmvention, and alter the constitution, taking out the features of equality of rights, equality of education, and equality of taxes, which are in the present constitution, as soon as they can get the power under such circumstances that they cannot be con- trolled by Congress. Do you know or believe that any such intention exists; and if so, to what extent? Governor Walker. I have never heard of any such intention, and I do not believe there is such an intention. There are a great many rea- sons why there should not be any such serious design. In the first place, we are too anxious to be a settled State government without tur- moil and confusion. In the next place, Ave have no power to hold a convention. But we have been in a canvass, and it was said to the colored people that we would accej^t this constitution and abide by it, and stand by their rights, and show at all times that they should be de- fended in them. And when our people pledge themselves to do a thing they are very sure to do it. I have no sort of doubt about the result, as there are a great many reasons operating why they should not change this constitution. There are some questions of geograiihical positions which would control in that resjiect, if no other considerations did. 8 TEST OATH IN VIRGINIA. There are here gentleiiieu from the north side of the James, and also from the south side of it; and I had just as lief state my views upon this question here as not. The colored vote of the State controls the south side of the river and tide-water, and the white vote controls tlie north side and western portion of the State, and they are determined to main- tain and retain that strength which they now hold. 1 have heard this determination expressed by large numbers of gentle- men from those sections of the State, and if there are no other reasons this would be sufticient. But, gentlemen, the peoi)le of A^irginia have solemnly pledged themselves to maintain the civil and jiolitical rights of the colored men, and in my opinion there is not the slightest doubt but that they will faithfully fulfill their jiledges. They have said it, and they wdl abide by it. So far as the system of common schools is concerned, tnere is also no doubt in my mind of its faithful execution. The real objection to colored suflrage was the ignorance of the colored people. ]3ut now, having conceded the right of suffrage to the colored people, they feel that they should be educated in order that they may ])ro])erly appre- ciate the elective franchise. I advocated upon the stump the necessity of a thorough system of common schools open to all the children of the State, and solar as myintluence should extend such a system should be established. Mr. Charles II. Porter made a statement to the committee to the ef- fect that (Tfoveruor Walker had stated, in a speech made at Liberty, Bedford County, during the late canvass, that if he were elected the section of the constitution relating to county organizations never would be administeied. In rej)ly to this statement, Governor Walker was called upon, and spoke as follows : It is true that the reported speech was precisely as the gentleman states it. It is also true that those reports were taken down brielly, never revised by me, and I never saw them until I saw them in the newspapers. I was in another part of the State when this speech was published, and sent to me from Eichmond. I saitl to the people Avhat I have said here, that 1 did not approve of this county organization clause. It was expected that this clause would be submitted by the President, together with the test oath and disfranchising clauses, to a separate vote, and the people were greatly disappointed that it was not. In dis- cussing the subject, at first but little was said upon this question, not with a view to concealment or any thing of the kind ; l)ut subsequentlj' that clause was discussed. What I said was this, that it did not matter so much about the organization as it did the manner in which it was administered, and that if I were elected, and a legislature in accord with me, it never would be executed in a manner detrimental to the people. Mr. Porter. I would state that the chairman of the State central committee of the white man's or democratic party, after the deliAery of that Liberty speech, came out and issued an address to the people of Virginia, and therein stated that Governor AValker had made this speech, and called on the conservative voters to support him in conse- quence of this speech. Governor AValker. That committee which issued that address were not the people who nominated me, but subsequently came in and sup ported me. TEST OATH IN VIRGIiSriA. 9 Ojmiiom of Attorneij General Hoar relative to the tal-inf) of the '■'■test oatW by persons elected to office in Virginia, and to the power of the legislature of Virginia elected^ under the act of Congress of April 10, 1800, to elect senators of the United States. Attor^s^ey Geneeal's Office, Angust 28, 18G9. Sir : I have tlie honor to acknowledge the receipt of yonr letter of July 27, 1809, in which you request my opinion "ui>ou so much of the questions submitted in the letter of the commanding general of the first military district, dated the 10th instant, and accoujpanying papers, copies of which are inclosed, as refers to the legal qualifications of ofiflcers to be elected under the proposed constitution of the State of Virginia, and especially upon the question whether persons elected to ofitice in such State, under said constitution, are required, by the supple- mental reconstruction act of Jidy 19, 1807, to take and subscribe to the oath prescribed or referred to in section 9 of said act, before entering ujion the duties of their respective offices." The latter question is the only oiie indicated with such distinctness as to enable me to be fully satisfied that its purport is apprehended, and I therefore confine my answer to that. By the statute of April 10, 1809, the registered voters of Virginia were authorized to vote on the question of the adoption of a constitu- tion 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 pursuance of the provisions of the act, and the election held, and some parts of the con- stitution submitted have been adopted by the people, and others rejected. The parts of the proposed constitution thus adopted, if they shall be approved by Congress, will be the constitution of Virginia, under which all its officers will be required to act; and the qualifications, as well as the duties, of those officers will be determined by it. When Virginia is restored to its proper relations to the country as a State of the Union, its officers and legislature will be sucli as the constitution of the State provides, deriving their powers from that instrument, and it will clearly not be in the power of Congress to impose any requirement of additional qualifications upon them different from those which, under the Constitu- tion of the United States, may be required in all the States. If, there- fore, any tests were to be imposed upon members of the legislature not provided by the constitution of Virginia, or any restriction imi^osed upon the people of the State in their choice of officers not recognized by it, and not made applicable under the legitimate power of Congress to all the States, the legislature and officers would not, in my ox)inion, be the legislature and officers of Virginia under its constitution. I do not see that Congress can nndertake to furnish the State with a suitable legislature to start with, or to exercise any control over its composition which could not be exercised over subsequent legislatures. lam, there- fore, of oi)inion that the oath prescribed by the statute of 1802, and by the statute of July 19, 1807, chapter 30, section 9, required to be taken by all persons " elected or appointed to office in said military districts, under any so-called State or municipal authority," is not to be required of ihe officers of the State of Virginia, or members of the legislature elected under its new constitution. It 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 officers under whom the State is to be restored to its proper relations to the Union, and by whom H. Mis. Doc. 8 2 10 TEST OATH IX VIRGINIA. the g'ovornuiont of the State is to be administered after its restoration. This opinion is stron<;ly eontirmed by a reference to the second section of the same act, vrliich anthorizes the commander of any district named in the act " to snspend or remove from office, or the i)erformance of official (Uities, and the exercise of ofticial powers, any officer or person holding or exercising', or professing to hold or exercise, any civil or military office or dnty in said district, nnder any power, election, appointment, or anthority derived from, or granted by, or claimed nnder, any so called State or the go"\'ernment thereof," and to detail a competent officer or soldier of the army to perform such duties. It would be im})ossible to sui)pose that Congress could intend that a legislature, nnder the constitntion of a State, could have its members appointed by a detail from soldiers of the army. The only reasonable conclusion seems to me to be, that it was not intended that any such legislature should be allowed to exist and act until reconstruction was completed, excei)t for the limited and qualiiied purposes requisite to r(K'onstrnction. But, on the other hand, 1 fully concur with the view of the general commanding in Virginia, that, under the reconstruction acts of Congress, no officer or legislator is competent, or should be permitted, to exercise any of the functions or power of his office within that State, except so far as those acts themselves provide, without taking the oath which is referred to in the statute of 1867, above quoted. Tlie act of April 10, 18G9, requires the legislature to meet at a time which it designates. That it is to meet implies that it is to come together for some purpose. It is required, under the previous law, to act upon the question of adopt- ing the fourteenth amenclment to the Constitution of the United States before the admission of the State to representation in Congress. I am of opinion, therefore, that it may come together, organize, and act upon that amendment ; but that, until Congress shall have approved the con- stitution and the action nnder it, and shall have restored the State to its ])roper [)lace in t\m Union by recognizing its form of government as re- publican, and admitting it to representation, the legislature is not enti- tled, and could not, without violation of law, be allowed to transact any business, i)ass any act, or resolve, or undertake to assume any other function of a legislatuie, 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 mili- tary government continues. Yerv respectfully, E. E. HOAE, Attorney General. Hon. John A. Eawlins, ISecretary of War. Attorney General's Office, September 25, 18G9. Sir : I have the honor to acknowledge the receipt of your letter ot this date, referring to me for my opinion a letter addressed to the Sec- retary of War by General Canby, dated September 24, 1860, which asks whether the legislature of the State of Virginia is authorized to elect senators of the United States at the session which commences on the tifth of next month, and desires that that question may be submitted to the Attorney General for his opinion. TEST OATH IN VIRGINIA. 11 The n^eiieral views wliicli I entertain of the functions of the legishiture of Virginia, elected in pursuance of tlie provisions of the act of Congress of April 10, 1809, have already been fully indicated in an opinion trans- mitted to the Secretary of War, under date of August 28, 1869. I came to the conclusion that the members of the legislature were not required to take the oath referred to in section nine of the statute of July 19, 1807, in order to qualify them to act as such members; that it was com- petent under the law for the legislature to meet, organize, and do what- ever was required or allowed by the acts of Congress as preliminary to the reconstruction of the State, but that it was not comijetent for them to undertake to enact laws, or otherwise to assume any of the functions of the government of the State, if organized without taking the oath above referred to, or if any of its members could not or did not take that oath. Upon a careful consideration, I am now of opinion that the election of senators, like voting upon the fourteenth and fifteenth amendments to the Constitution of the United States, is a part of the action contem- plated by Congress as preliminary to a restoration of the State to its full relation to the government of the United States as one of the States of the Union. The senators thus elected would have no poAver or authority until the Senate of the United States should have passed upon the validity of their election, and admitted them as members of that body. Under the act of April 10, 1809, the election of members of the House of Eepresentatives was permitted, and has taken place ; and when Congress comes to act upon the whole question of the recon- struction of the State, it would seem equally proper that members^ elected to both branches of the national legislature should present themselves, and be ready for admission to seats in the respective houses. The election of senators does not seem to me to trauvscend the action which comes within the limited and qualified purposes requisite to reconstruction, but rather to be essential to the completeness of that action, and I think that the military commander should not interefere with or prevent it. Very respectfully, E. E. HOAE, Attorney General, The President. War Department, Washington City, May 17, 1869. General : I have the honor to transmit herewith a certified copy of a proclamation of the President of the United States, issued in pursu- ance of the act of Congress approved April 10, 1809, designating the sixth day of Jul}', 1809, as the time for submitting the constitution passed by the convention which met in Eichmond, Virginia, on Tues- day, the third day of December, 1867, to the voters of said State regis- tered at the date of such submission — viz., July 6, 1809 — for ratification or rejection ; and submitting to a sex>arate vote the fourth clause of section 1 of article 3 and the seventh section of article 3 of said consti- tution, and directing the manner the vote is to be taken upon eac^h of said provisions and upon the other portions of the said constitution; which you will please cause to be transmitted to Brevet Major General E. E. S. Canby, commanding first military district, (district of Vir- ginia,) to carry into effect as provided b,\ said act and by the acts of Congress commonly called the reconstruction acts. At the same elec- H. Mis. Doc. 8 3 12 TEST OATH IN VIRGINIA. tion the voters of said State may vote for and elect members of tlie general assembly of said State and all the ofiQcers of said State pro- ^•ided for by the said constitution, and members of Congress. By order of the President. JNO. A. RAWLINS, Secretary of War. General W. T. SnEE:MAN, Commanding United States Army. Headquarters First Military District, State of Yirginiaj Richmond, Va., June 4, 18G9. Sir : 1 am instructed by the major general commanding to state, in reply to your letter of May liO, that the constitution to be submitted at tiie election of July does not become the organic law untd after it has been ratified by the people of the State, and approved by the Congress of the United States, and that the government of the State ■continues to be i)rovisional until the conditions imposed by the fifth section of the law of March 2, 18(37, and the sixth section of the law •of April 10, 18G8, have been complied with. During this period of provisional government, all persons elected or appointed to ottice must take the oath of office prescribed by the law of .July 2, 18G2, or (in the case of persons whose political disabilities have been removed by Congress) the oath prescribed by the law of July 11, 18GS, unless these oaths should have been previously dispensed with by Congress. It has been held heretofore that the approval of a constitu- tion that had been duly ratified by the people of a State dispenses with these oaths so far as State offices are aftected, and substitutes therefor the oath of office prescribed by the constitution itself. In the case pre- sented by you, the ratification of the constitution, with the " disfran- chising" and " test oath" struck out, a person who is unable to take the oath prescribed by the laws of the United States cannot enter upon the duties of the office to which he may be elected until the constitu- tion becomes the controlling law by reason of its approval by Congress. All elections held under the authority of the reconstruction laws must be conducted in conformity with the requirements of those laws. Verv respectfully, your obedient servant, LOUIS Y. CAZIAEC, A. D. a, A. A. A. G. Mr. W. C. EiCE, Burgess's Store, Virginia. Official copy : Louis Y. Caziarc, A. D. C, A. A. A. G. Headquarters First Military District, State of Virginia, Bichmond, Va., July 22, 1869. Sir : I have the honor to report, for the information of the General of the Army, the results of the election in this State, so far as they have been verified by the examination of the returns in this office : First. For constitution 210, 577 Against constitution 9, 136 219, 713 Majority for 201, 411 TEST OATH IN VIRGINIA. 13 Second. For clause 4, section 1, article 3 84, 410 Agaiust clause 4, section 1, article 3 124, 300 208, 770 Majority against 39, 950 Third. For section 7, article 3 83, 458 Against section 7, article 3 124, 715 208, 173 Majority against , : 41, 257 Fourth. For governor: G. C. Walker 119, 535 H. H. Wells 101, 204 220, 739 Majority for Walker 18, 331 Scattering 14 Fifth, For lieutenant governor : Jobn F. Le^\ is 120, 0G8 J. I). Harris 99, 400 219, GGS Majority for Lewis 20, 408 Scattering 25 Sixth. For attorney general: James C. Taylor 119^ 44G Thomas E. Bowden 101, 029 220, 475 Majority for Taylor 18, 417 Scattering 35 The registered vote of the State (except five precincts not yet re- ceived) was 2G9, 518. The number not voting upon the constitution was 49,722; upon clause 4, section 1, article 3, was 00,788; and upon section 7, article 3, 01,345. This includes the rejected ballots, which were respectively 308, 425, and 427. Tlie result with regard to members of the House of Representatives of the Congress of the United States and members of the general as- sembly of the State has not yet been reached. The above results are given from the registration and canvass returns, and a comparison of these indicates that the numbers not voting were very evenly in the ratio of white and colored voters, but the exact pro- portion can only be determined by a close examination of the poll lists, and will be given hereafter. In some of the counties, where the regis- tration was nearly equal, the falling off in the vote is comparatively small, and not greater than is usual iu other States. The converse'^of this appears to be true with regard to a number of counties where the pre- ponderance of one or the other class of voters was so large as to leave no doubt of the result, and thus divest the election of the interest that usually attaches to a close contest. The gTeatest falling off was in 14 TEST OATH IN VIRGINIA. counties where the majority of white registered voters was greatest, but iu these (mountain) counties the unfinished harvest Avork no doubt had its intiuence in reducing the vote. In some of the counties the vote appears to have been greatly influenced, both as to numbers and direc- tion, by the personal influence and exertions of the local candidates. In two counties, where considerable majorities were given for Governor Wells, but two votes iu each were cast in favor of the test-oath and dis- franchising clauses. There are a number of complaints of fraudulent voting, but the regis- tration and election records furnish the means of determining, within very narrow limits, the extent of such frauds, and are now being exam- ined for that purjiose. The military commissioners or suijerintendents of election for eighty-six counties report that the election was impar- tially and fairly conducted in the counties under their sujiervisiou. In five counties they report that the vote was influenced by intimidation and fraud, and are now engaged in the investigation of the subject, and eleven have not yet reported. The most numerous complaints and most diflicult of investigation are those Avhich relate to intimidation and fraud in keeping voters away from the ])olls, or in constraining them to vote otherwise than as they wished. These complaints come from both parties, and in many instances are no doubt well-founded, but the evi- dence is not such as to induce the belief that they have influenced the result, except possibly iu a few cases where the local vote was verj- close. The charges of misconduct against the election officers are very few; remarkably so, when it is considered that the ballot is a novelty in this State, and that the great majority of the election officers were entirely without exiierience. The number of infornuil or rejected ballots, when considered in the same light, is also ver;^' small. Many votes were no doubt lost by the failure of voters to establish their oiiginal registration ; by appearing at precincts where they were not entitled to vote ; or by errors or omissions in copying the registra- tion lists. In a few instances it is charged that these omissions were intentional and for the purpose of fraud ; but in the great majority of cases the failure ai)pears to be due to the inexijerience of the voters, both white and black, themselves. There are also charges that many persons were admitted to register who were not entitled to, and that others who were entitled were denied. An examination of the reports required by paragraphs 28 and 29 of General Orders No. 01 will determine how far these complaints are well founded. Very respectfullv, vour obedient servant, E. E. S. CAXBY, Brevet Major General United States Army, Commanding. Adjutant General U. S. Akmy, Washington, B. C. nrroRTANT letter from general canby in reference to the TEST oath — legislators AND STATE OFFICERS REQUIRED TO SUBSCRIBE TO IT. Richmond, Virginia, June 23, 1869. General : It is credibly stated that you have, when addressed by other persons on the subject, given an interpretation of the act of July TEST OATH IN VIRGINIA. 15 19, 18G7, as to the test oath, which is of material importance in the election abont to be held in this State. It is represented that yon liold that members abont to be elected to the legislature will not be entitled to take their seats nnless they take the oath known as the iron-clad test oath. Will yon allow me to ask whether this statement be true, and, if con- sistent with your sense of propriety, to ask also an explanation of the reasons on which you base the interpretation ascribed to you. I am, very respectfully, your obedient servant, B. W. GILLIS. Brevet Major General E. E. S. Canby, Commanding First Military Bistrict. Headquakters First Military District, (State of Virginia,) Eichmond, Virginia, June 26, 1809. Sir : I have received your note of the 2.3d instant, and wiU state in reply to the inquiries therein made — First. That I have nniformly held that members of the general assembly and State officers, to be elected on the Oth proximo, would be required to take, before entering ujion the dnties of their offices, the oath prescribed by the law of July 2, 18G2, unless the constitution should first be approved by Congress, or the oath be otherwise dispensed with by law. Second. That this decision is in conformity with the action heretofore taken upon the same subject in another district, and was based npon a careful consideration of all the laws bearing upon the question now pre- sented. The sixth section of the law of March 2, 1867, provides " That until the people of the said rebel States shall be by law admitted to representa- tion in the Congress of the United States, any government which may exist therein shall be deemed provisional only, and in all respects sub- ject to the paramount authority of the United States to abolish, modify, control, or supersede the same." The conditions that must precede this admission to representation are prescribed by the fifth section of the same law, the fifth section of the law of March 23, 1867, and the sixth sec- tion of the law of Ai)ril 10, 1869. The same section prescribes the qualifications of voters in all elections to office, and the qualifications (eligibility) of officers under such i^rovisional governments. The sup- plementary law of March 23, 1867, modified the qualifications of voters by prescribing registration, and determiuing the conditions essential to registration, and the amendatory law of March 13, 1868, section 2, applied the same qualifications (registered voters) to the voters for members of the House of Representatives of the United States, and all elective offices provided for by those constitutions, at the elections to be held upon the questions of ratifying or rejecting the proposed constitutions; and the ninth section of the law of July 19, 1867, imposes an additional qualification upon the officers, by requiring that they shall take the oath of office prescribed by the law of July 2, 1862. Under the original law of March 2, 1867, (section 5,) it was in the power of the district commander to prescribe an oath of office, conform- ing to the conditions of eligibility i^rescribed by that section, and this in fact was done by several of the district commanders — in this district by General Orders No. 9, of April 5, 1867 — and these oaths continued in 16 TEST OATH IN VIRGINIA. force until they were superseded by the oath recjiiired by the la\r of July 19, 1807. That hiw phiced the subject l)eyoiid the discretion and control of the district commander, and he cannot now jirescribe or adopt any difterent oath without disregarding or annulling a positive and control- ling law. I have heretofore held and do now hold that the api)roval by Congress of any proposed constitution makes it a part of the reconstruc- tion laws, and, to the extent that Congress directs or authorizes any action under it in advance of the admission of the State, dispenses with the provisions of any previous laws that conflict with it. In all other respects the constitutions and the governments organized under them remained inoperative until all the conditions of restoration were satisfied. It has been suggested recently that this decision is in conflict with a decision made by the General of the Army in relation to the State of Georgia, on the 2d of ]\f arch, 1SG8. The only decision of that date which I have been able to find relates to the State of Florida, and is in reply to a specific inquiry as to the qualifications of voters for offices under the constitution, "and to take office on the adoption of the constitution," and the answer is to be interpreted by the decision of January 13, 1808, that " the g^overnments elected cannot assume authority except under the orders of the district commander, or after action of Congress on their constitutions." The decision in relation to Georgia is dated on the 29tli of Apvil, 1808. It is similar in import, and refers to the dispatch of March 2, and this has probably led to the confusion of dates. It is in answer to a communication from the commander of the third military district, and applies directly and ai)parently exclusively to the second liaragraph of General Orders No. 01, third military district, of May 15, 1808, which provides that '■' inasmuch as said general assembly, should the constitution now submitted to the people of the State be ratified by them and be approved by Congress, is required to convene and adopt the proposed amendment to the Constitution designated as Article XIV before the State can be admitted to representation in Congress, it may be decided that the members of the said general assembly are, while taking this preliminary action, officers of a i)rovisional government, and as such required under the ninth section of the act of Congress of July 19, 1807, to take the test oath. This decision must also be interpreted by the decision of January 13, and this I apprehend to be the proper rule of interpretation of all the correspondence upon this subject, as I have been nnable to find any case in which the inquiry and answer did not relate to the status of these officers after the approval by Congress of the constitution under which they were elected. The law of June 25, 1808, approving the constitu- tions of several States, and authorizing specific action under them, was regarded by me as dispensing- with the oath of office prescribed by the law of July 2, 1802, first as to the members of the general assembly, and, after the ratification of the constitutional amendment, to the other State officers duly elected and qualified under those constitutions. This construction, in its first application, did not include the governor and lieutenant governor, but as the organization of the legislature would have been incomplete without the lieutenant governor, and as the legis- lative action required by the law might have been embarrassed by the action of the old incumbents, the General of the Army directed that they should be removed and the governor and lieutenant governor elect should be appointed in their places. They were so appointed in North and South Carolina, qualified under their military appointment, and, after the ratification of the constitutional amendment, again qualified under the constitutions of their States. TEST OATH IN VIRGINIA. 17 The action taton in tlie first case was approved, and in the second directed by the General of the Army. It has also been suggested that the reconstruction laAvs are silent as to the qualification of officers to be elected under the proposed constitutions and of voters at such elections, and that the laws under which the decision has been made are in conflict with the recent legislation of Congress (act of April 10, 18G0) and with the fourteenth article of the amendments to the Constitution of the United States. The question with regard to the qualification of voters was raised iu the case of the (then) proposed constitution of the State of Florida, aud was settled by the second vsection of the law of March 13, 1868, which provides " That the constitutional conventions of any of the States named iu the acts to which this is amendatory, may provide that, at the time of voting upon the ratification of the constitution, the registered voters may vote also for members of the House of liepresenta- tives of the United States, and for all elective oflBcers provided by said constitution." The " voters" at the election to be held in this State for " members of the general assembly," '^ State officers," and " members of Congress," under the authority of the second section of the law of April 10, 18G9, are determined by the first section of that law to be the " voters of said State registered at the date of said submission (of the constitu- tion) for ratification or rejection." The qualification of the officers rests upon the same basis, and must be governed by the reconstruction laws until the constitution becomes the controlling law, aud this does not ob- tain until it has been approved by Congress. Over the remaining sug- gestions the district commander has no control, and the question, whether the laws are or are not in conflict with the constitution, must be deter- mined by the Supreme Court of the United States. Very respectfully, your obedient servant, ED. E. S. CANBY, Brevet Major General Commanding. Mr. B. W. GiLLis, Richmond, Virginia. Headquarters First Military District, Juhj 3, 1869. No. 1378— official copy: LOUIS Y. CAZIAEC, Aide-de- Camp and Acting Assistant Adjutant General. [General Orders No. 104.] Headquarters First Military District, (State of Virginia,) Richmond, Yirginia, September 8, 1869. At the election held in the State of Yirginia on the 6th day of July, ]869, pursuant to General Orders Ko. 61, headquarters first military district, dated May 21, 1869, and under the authority of the law of the United States of March 2, 1867, and the laws supplementary thereto and amendatory thereof, and of the proclamation issued by the Presi- dent of the United States on the 11th day of May, 1869, the question of ratifying or rejecting the constitution framed by the convention elected for that purpose, under the authority of tlie above-cited laws, was submitted to the qualified electors of said State registered at the date of said submission ; and at which election, under the authority of 18 TEST OATH IN VIRGINIA. the second section of the law of the United States, of April 10, 1869, (Public No. 13,) the election of " members of the general assembly of said State, and all the officers of said State provided for by said con- stitution, and members of Congress," was also snbmitted to the quali- fied electors of said State : And the election officers having made the returns required by law, it is hereby declared : 1. That the constitution framed by the convention which assembled in the City of Kichmond, Virginia, on Tuesday, the 3d day of Decem- ber, 1807, and adjourned' on Friday, the 17th day of April, 1808, save tbe parts submitted to a separate vote under the authority of the law and proclamation above cited, has received a majority of the votes cast by the qualified electors of said State, and has been duly ratified. 2. That the fourth clause of Section 1, Article III, of said constitu- tion, which was submitted to a separate vote under the authority of the law and proclamation above cited, has received a minority of the votes cast by the qualified electors of said State upon the question of ratifi- cation or rejection, and has been duly rejectee!. 3. Tlmt Section 7, Article III, of the said constitution which was also submitted to a separate vote under the authority of the law and procla- mation above cited, has received a minority of the votes cast by the qualified electors of said State upon the question of ratification or re- jection, and has been duly rejected. 4. That the following named persons have received a majority of the votes cast by the qualified electors of the State for the executive offices hereinafter specified : Governor — Gilbert C. Walker. Lieutenant governor — John F. Lewis. Attorney general — James C. Taylor. 5. That the following-named persons have received a majority (or plurality) of the votes cast by the qualified electors of of their respect- ive senatorial and representative districts for members of the general assembly of the State of Virginia, as hereinafter specified : SENATE. First senatorial district — Counties of Alexandria, Fairfax, and Lou- doun ; Edgar Snowden, jr., and Thomas E. Taylor. Second senatorial district — Counties of Fauquier, Prince William, and Eappahannock ; T. N. Latham. Third senatorial district — Counties of Culpeper, Madison, and Orange; D. A. Grimsley. Fourth senatorial district — Counties of Louisa, Spottsylvania, and Stafford ; Charles Herudou. Fifth senatorial district — Counties of Fluvanna, Goochland, and Pow- hatan ; William P. INIoseley. Sixth senatorial district — Counties of Albemarle and Greene ; E. S. Beazley. Seventh senatorial district — Counties of Appomattox and Bucking- ham ; Frank Moss. Eighth senatorial district — Counties ef Amherst and Nelson ; Thomas P. Fitzpatrick. Ninth senatorial district — Counties of Franldin and Henry ; James Patterson. Tenth senatorial district— County of Pittsylvania ; Abner Anderson. Eleventh senatorial district — County of Campbell ; Kobert L. Owen. Twelfth senatorial district— County of Bedford ; William 11. Terry. Thirteenth senatorial district — County of Halifax 5 Marcus A. Harris. TEST OATH IN VIRGINIA. 19 Fourteentli senatorial district — Coimties of Charlotte and Prince Ed- ward ; J. W. D. Bland. Fifteentk senatorial district — County of Mecklenburg: F. W. Has- kell. Sixteeutk senatorial district — Counties of King George, Lancaster, Northumberland, Ilichiuond, and Westmoreland ; Meriwether Lewis. Seventeenth senatorial district — Counties of Caroline, Essex, and King William ; E. W. Massie. Eighteenth senatorial district — Gloucester, King and Queen, Matthews and Middlesex ; W. K. Perrin. Nineteenth senatorial district — County of Henrico and City of E.ich- mond ; Normand Smith, A. E. Courtney, and Charles Campbell. Twentieth senatorial district — City of Norfolk and County of Princess Anne ; W. H. Taylor. Twenty-first senatorial district — County of Norfolk ; George Teamoh. Twenty-second senatorial district — Counties of Isle of Wight, Nanse- mond, and Southampton ; Washington L. Eiddick. Twenty-third senatorial district — Counties of Dinwiddle, Greenesville and Sussex ; David G. Carr. Twenty-fourth senatorial district — Counties of Elizabeth City, Surry, Warwick, and York ; Isaiah L. Lyons. Twenty-fifth senatorial district — Counties of Brunswick and Lunen- burg ; William P. Austin. Twenty- sixth senatorial district — Counties of Chesterfield and Prince George ; William T. Martin. Twenty-seventh senatorial district — City of Petersburg: Franklin Wood. Twenty-eighth senatorial district — Counties of Accomack and North- ampton ; Abel T. Johnson. Twenty-ninth senatorial district — Counties of Charles City, Hanover, James City, and New Kent ; J. Ambler Smith. Thirtieth senatorial district — Counties of Amelia, Cumberland, and Nottoway ; John Eobiuson. Thirty-first senatorial district — Counties of Clarke, Frederick, and Shenandoah ; William D. Smith. Thirty-second senatorial district — Counties of Page, Eockingham, and Warren ; John E. Eoller. Thirty-third senatorial district — Counties of Augusta and Highland ; Joseph Waddell. Thirty-fourth senatorial district — Counties of Alleghany, Bath, and Eockbridge ; William A. Anderson. Thirty-fifth senatorial district — Counties of Botetourt, Craig, Giles, and Eoanoke ; Edmund Pendleton. Thirty-sixth senatorial district — Counties of Floyd, Montgomery, and Patrick ; John E. Penn. Thirty-seventh senatorial district — Counties of Carroll, Grayson, and Wythe ; A. M. Davis. Thirty-eighth senatorial district — Counties of Bland, Pulaski, Eussell, and Tazewell ; James Milton French. Thirty-ninth senatorial district — Counties of Buchanan, Lee, Scott, and Wise ; George H. Kindrick. Fortieth senatorial district — Counties of Smyth and Washington ; James S. Greever. HOUSE OF DELEGATES. County of Accomack — Edmund E. Bagwell and Thomas C. Parramore. County of Albemarle— S. Y. Southall, J. C. HiU and James D. Jones. 20 TEST OATH IN VIRGINIA. County of Alexandria — George L. Seaton, * . County of Amelia — John E. Moss. County of Amherst — J. E. Adams and Joseph H. Massie. County of Appomattox — Robert B. Poore. Counties of Alleghany and Craig — B. L. Woodson, County of Augusta^ — H. M. Bell, A. B. Cochrane, and Marshall Hanger. Counties of Bath and Highland — John E. Popham. County of Bedford — Benjamin H. Moulton, John E. Thurman, and James O. Hensley. County of Bland — Addison Davis. County of Botetourt — Cary Breckinridge. County of Brunswick — John Dugger. County of Buckingham — J. H. Noble and C?esar Perkins. Counties of Buchanan and Wise — J. T. Chase. County of Campbell — Eufus A. Murrell, John W. Daniel, and Eobert C. Burkholder. County of Caroline — Eobert O. Peatross and John M. Hudgin. County of Carroll — Frank W. Lindsey. County of Charles City — R. G. W. Jones. County of Charlotte — George W. Graham and William H. Eagsdale. Counties of Chesterfield and Powhatan — Samuel F. Maddox, B. T. Edwards, and Henry Cox. County of Cumberland — James Lipscomb. County of Cnlpeper — John E. vStrother. County of Clarke— W. W. Arnett. County of Dinwiddle — Ellis Wilson. Counties of Elizabeth City and Warwick — William Bartlett and D. B. White. County of Essex — Watson E. Wentworth. County of Fauquier — James Keith and F. L. Marshall. County of Fairfax — Job Hawxhurst. County of Floyd — George Young. County of Franklin — Benjamin X. Hatcher and George H. T. Greer. County of Fluvanna — John Henson. County of Frederick — David J. Miller. County of Giles— F. W. Mahood. County of Goochland — J. B. Miller, jr. County of Greenesville — Peter K. Jones. County of Greene — Thomas M. Shearman. County of Gloucester — James K. Stubbs. County of Grayson — Lewis H. Bryant. County of Halifax — Alexander Owen, Isaac Edmundson, and W. W. Wood. County of Hanover — W. E. Winn and C. E. Thompson. County of Henrico and city of Eichmond — Augustus Bodeker, A. M. Keiley, L. H. Frayser, Jacob S. Atlee, John B. Crenshaw, William Lovenstein, George K. Gilmer, and Stephen Mason. County of Henry — C. Y. Thomas. County of Isle of Wight — George E. Atkinson. County of James City — F. S. IS^orton. County of King and Queen — John W. Bulman. County of King William — B. F. Jones. County of King George — W. A. J. Potts. * Hon. James T. Close, elected as a delegate to tlio liouse of delegates for the county of Alexandria, died ou the 1st day of Seiitember, 1869. A new election has been called to fill the vacancy. TEST OATH IN VIRGINIA. 21 County of Lancaster — Josiah Tatiun. C'Ounty of Lee— William McDonald. County of Louisa — Bernard McCracken and F. M. Perkins. County qf Lunenburg — Stitli Boiling. County of Loudoun — Isaac D. Budd and William Matliew. County of ]^Iattlle^YS — Henry Bell. County of INIadison — James W. Walker, jr. County of Mecklenburg — S. M. Dodge and John Watson. County of IVIiddlesex — L. C. Bristow. County of Montgomery — Robert A. Miller. County of jSTansemond — David Thayer. County of New Kent — William H. Brisby. City of Norfolk — Henry M. Bowden and Arthur S. Segar. County of Norfolk — Luther Lee, jr., A. L. Woodworth, and Charles E. Hodges. County of Nelson — William L. Williams. County of Nottoway — George H. Southall. County of Northampton — James C. Toy. County of Northumberland — B. G. Haynie. County of Orange — Da\id Pannill. County of Patrick— William F. B. Taylor. County of Page — John W. Asliby. County of Pittsylyania— M. H. Clark, W. J. Fulton, Walter Coles, and T. H. Gosney. City of Petersburg — Peter G. Morgan and George Fayerman. County of Prince Edward — Thomas P. Jackson. County of Prince George — A. N. Fretz. County of Prince William — William A. Bryant. County of Pulaski— William J. Wall. County of Princess Anne — John Q. Hodges. County of Rappahannock — Zepli Turner. County of Richmond — L. R. Stewart. County of Rockingham — Philo Bradley and Henry B. Harnsberger. County of Rockbridge — William McLaughlin and Samuel B. JVIor- rison. County of Roanoke — J. A. McCauU. County of Russell — John H. A. Smith. County of Shenandoah — Josiah L. Campbell. County of Smyth — John A. Kelly. County of Southampton — Richard U. Burgess. County of Scott— E. F. Tiller. County of Surry — William H. Andrews. County of Staftbrd— J. C. Shelton. County of Sussex — William N. Stephens. County of Spottsylvania — J. H. Kelly. County of Tazewell — Henry Bowen. Count}" of Washington — George Graham and John F. Teriy. County of Warren — Smith S. Turner. County of Westmoreland — George Walker. County of Wythe— John H. Fulton. County of York — Robert Norton. 6. No persons ineligible to office under the provisions of the third sec- tion of Article XIV of the Amendments to the Constitution of the United States, hereinafter published for the information and govern- ment of those whom it may concern, will be allowed to enter upon the 22 TEST OATH IN VIRGINIA. duties of the offices to which they may have been chosen unless their disabilities have been removed by Congress : "Article XIV. " Section 3. No person shall be a senator or representative in Con- gress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an offi- cer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such dis- ability." 7. That the folloT\ing named persons have received a; majority (or plu- rality) of the votes cast by the qualified electors of their respective con- gressional districts, as established by an ordinance of the convention adopted April 14, 18G8, and are entitled to certificates of election as members of the House of Eepresentatives of the Congress of the United States for the said districts, as hereinafter specified: First congressional district — Richard S. Ayer. Second cougressional district — James H. Piatt, jr. Third congressional district — Charles H. Porter. Fourth congressional district — George W. Booker. Fifth congressional district — Robert Ridgway. Sixtli congressional district — William Milnes, jr. Seventh congressional district — Lewis McKenzie. Eighth congressional district — James K. Gibson. 8. Tlie following named person has received a majority of the votes cast by the qualified electors of the State vesting at large throughout the State for member of Congress at large, as prescribed by the ordinance of the convention, April 14, 18G8, and is entitled to certificate of election: State at large — Joseph Segar. 9. An abstract of the election returns will be prepared and deposited in the office of the secretary of the Comnuinwealth. 10. The certificates of election of the executive officers of the State, and of the representatives in the Congress of the United States, will be sent direct to their post office address. Those for the members of the general assembly will be deposited in the office of the secretary of the Commonwealth for delivery, upon application, to the persons entitled to receive them, and a copy of this order will be sent to the post office ad- dress of each. 11. The 5th section of the act of Congress approved April 10, 1869, (Public No. 13,) provides that the legislature elected, as provided for in said act, shall assemble at the capital of the State on the fourth Tues- day after the official promulgation of the ratification of the constitution ; and to prepare for and facilitate the organization of the legislature under the aforecited law, the following appointments are hereby made : 1. Gilbert C. Walker, to be governor of Virginia, vice H. H. Wells, resigned, to take effect Tuesday, September 21, 1809. 2. John F. Lewis, to be lieutenant governor of Virginia, to fill a va- cancy, to take effect on the assembling of the legislature, Tuesday, Oc- tober 5, 18()9. By command of Brevet Major General Canby: LOUIS V. CAZIARC, Aide-de-Cann), Acting Assistant Adjutant General. TEST OATH IN VIEGINIA. 23 Summary of the mtmher of rajhtcrcd roler.s, the uiimher of votes polled, and the result of the election on the question of the acceptance or rejection of a proposed constitution for the State of Virginia, held on the sixth {6th) day of July, 1869. County or city. Accomac Albemarle ...... Alexandria Alleghany Amelia Amherst Appomattox Anjjusta Bath Bedford Bland Botetourt Brunswick Buchanan Buckingham ... Campbell Caroline Carroll Charles City Charlotte . .' Chesterfield . . . . Clarke Craig Culpeper Cumberland Dinwiddle Elizabeth City.. Essex Fairfax Fauquier Floyd Fluvanna Franklin Frederick Giles Gloucp.ster Goochland Grayson Greene Greonosville Halifax Hanover Henrico Henry Highland Isle of Wight . . . James City King and Queen King (icorge . . . . King William... Lancaster Lee Loudoun Louisa Lunenberg Madison Mai hews Mecklenburg ... Middlesex iI(iiitgo)iiery Nanscmond Nelson New Kent Norfolk Northampton . . . North nm berland Nottoway Orange .' Piise Batrick Pittsylvania Number of registered votes. White. Col'd. 1,715 3,107 2,240 117 1, G95 1,603 988 1, 582 139 2,351 CO 721 1,926 5 1,890 3, 523 1,645 72 841 2,26' 2,289 488 47 1,086 1,503 1,766 1,754 1, 256 1,100 1,550 188 1, 023 1,158 746 146 1,060 1,641 131 273 853 3,686 1,711 2,133 1,062 75 743 605 948 600 803 572 128 1,209 1,910 1,439 658 387 3,181 507 654 1, 325 1,466 592 3,767 1,216 538 1,566 1,177 199 378 3,971 Number of votes cast. White. Col'd 2,349 2,839 1,821 505 612 1,673 868 3, 982 456 2,858 562 1,219 894 204 1,083 2,987 1,509 1,036 388 986 2,218 745 336 1,195 594 832 405 741 1,440 2,182 1,059 989 1,765 1,956 682 977 82; 924 544 381 2, 190 1,794 1, 712 842 581 1,008 269 804 543 608 415 1,324 2,746 1, 283 928 924 671 1,432 478 1,435 1, 139 1,541 495 2,493 589 732 537 1,068 965 834 2, 771 ! 1,433 2,303 1,69 68 1,435 1,327 805 1, 0:<4 70 1,883 24 530 1,704 1, 527 2, 721 1,35 47 627 1,808 2,107 413 22 912 1, 177 1,549 1, 463 1, 059 833 1 228 'l03 771 796 523 54 924 1,411 99 169 750 2,760 1,381 1, 54 86; 44 614 528 864 519 685 511 40 987 1, 549 987 434 316 2, 786 453 510 1,148 1, 172 540 3, 236 1,054 495 1, 335 929 136 260 2,974 ^ 2, 825: 5, 0991 3,510 475 2,033 2,869 1,614 4,715 469 4, 432 562 1,386 2,488 192 2,592 5,5' 2, 825 1,076 1,004 2,767 4,259 907 249 1,743 1,748 1,936 1,821 1,793 2, 223 3,382 1,053 1, 725 2, 256 2, 264 71 1, 854 1, 980 1, 020 624 840 4,894 3, 125 3,243 1,678 470 1,460 707 1,607 1,006 1,287 785 1,346 3,408 2, 805 l,83i 1, 264 936 4, 151 909 1,845 2,211 2, 650 1, 023 5,547 1,583 988 1,813 1,969 1,086 1,007 5,717 910 25 7 85 14 131 59 175 53 309 24 353 110 4 14 98 34 7 4 19 12 200 102 55 13 364 46 7 13 n 88 22 303 135 19 47 72 265 34 50 13 32 96 159 6 1 53 2 117 18 106 12 71 64 51 67 22 49 61 41 11 182 54 234 53 21 8 70 28 438 2,187 1,674 15 610 1,284 693 314 1,885 82 548 1, 623 30 1, 342 2,536 1,337 385 613 1,499 1,779 431 63 882 1,112 1,471 1,504 1, 05 983 1,1 389 28 812 861 93 867 1,379 184 13 735 1,489 1,256 1,534 95 90 539 409 833 508 522 496 136 1,303 1,445 814 360 361 2,668 442 613 1,160 1,066 500 3,447 2 487 1,146 211 99 240 1,412 ^ 2, 324 2,954 1,729 547 970 1,716 980 4,071 523 2,83 490 1,169 948 171 1,149 3, 12S 1, 525 703 398 1,144 2,217 682 293 1,187 631 836 356 726 1,247 2,221 729 1, 102 1,73. 1,578 612 987 838 815 571 354 2,809 1, 1,718 1,000 511 1, 080 275 829 5,54 613 424 1, 228 2, 055 1, 344 1,063 998 616 1, 526 485 1,306 1,118 1, 569 532 2,097 570 714 568 1, 023 941 826 3,219 31 438 2,19' 1,663 17 610 1,284 689 253 1,785 82 552 1, 623 30 1,337 2,536 1, 337 383 609 1,500 1,76 432 65 880 1, 112 1,473 1, 505 1,057 981 1,1 400 29 812 862 93 867 1,381 184 13' 737 1,489 1,256 1,540 95 93 541 404 833 .')08 522 496 138 1,188 1, 433 392 203 3( 2, 666 442 607 1,161 1, 064 500 3, 451 487 1,150 211 89 240 1,410 2,312 2,924 1,728 552 970 1,716 984 4,059 520 2,839 498 1,163 948 174 1,195 3,122 1,523 692 398 1,143 2, 216 695 293 1,191 631 836 356 726 1,254 2, 221 731 1, 103 1, 7.35 1, 582 61 986 835 812 521 354 2,809 1,867 1,723 1,000 513 1,0' 273 829 554 613 424 1,226 2,136 1,341 1,489 1,046 618 1, 528 485 1, 308 1, 118 1,574 532 2,098 570 715 568 1, 024 947 585 3, 232 Not voting Wh'e. Col'd 262 224 324 142 33 184 89 571 110 221 204 385 10' 287 133 379 73 537 29 119 354 210 178 110 80 197 78 2 288 318 448 18 681 731 274 109 2 493 78 25 245 114 170 31.= 142 63 32 44 42 13 77 515 590 14' 305 46 116 176 48 374 134 85 38 627 112 120 44 86 471 529 701 24 TEST OATH IN VIRGINIA. Summary of fhc itumhcr of registered voters, cjc. — Coutiuued. Coimty or city- Powliatan Priiict' Edward . . . Priiu'f (iiMiri;!.- Priiu'c ^\'illiaIU . .. Priucess Auue Piilaski Kappaliaiinock . . . Eichiiionil Eoanoke Kockbridge Eockingliani Eussell Scott Shenandoah Smytli- Sonthampton Spotsylvania Stafford Siirry Sussex Tazewell AVarren AVarwick AVashiiigton Westmoreland. ... Wise Wythe York Korldlk Citv Petirsluiriii'ity... KichiuoDd City Total Number of registered voters. White. Col'd 1,300 1,836 1, 329 356 983 416 552 726 1,141 518 244 120 213 352 1,448 1,138 286 695 1,248 340 211 336 689 769 11 559 1,350 2, 213 3,186 7,259 120, 103 Number of votes east. White. Col'd. 523 831 575 948 762 745 974 656 933 2, 237 2, 980 1, 217 1, 322 1, 948 1,170 1,210 1,409 934 555 616 1,158 713 134 2,316 736 541 1,545 1,151 1, 545 1,146 224 795 335 403 508 608 893 395 159 42 156 253 1, 262 875 184 61 1,144 264 138 261 389 670 8 386 435i 1,189 2,0271 2,034 1, 863' 2, 764 6, 362l 5,998 125,144 97,205 210,577 1,667 2,367 1,536 1,159 1,327 1, 002 1, 320 1,156 1,443 2, 288 3,055 1,305 1, 319 1,561 1,399 2,411 2,196 1,030 1,117 1,701 1,402 594 385 2,539 1, 332 531 1,890 1,612 3,871 4,489 12, 265 fH 7 9 176 13 214 65 20 8 98 788 118 19 31 474 24 54 78 75 55 42 15 250 10 35 74 18 18 10 168 119 54 1,149 2 1,066 346 806 330 368 52 658 946 58 419 500 323 286 498 836 124 64: 856 310 4 260 491 11 9G 425 1,15' 1,996 2,70 5,996 9, 136 84, 410 O p X 523 1,734 555 814 739 691 989 603 831 2,141 2,841 924 844 1,696 1,125 1,449 1,409 937 548 889 1,106 831 133 2,109 738 440 1,455 459 2,016 1,858 6,271 124, 360 1,149 2 1,065 348 808 329 368 52 658 94' 60 418 499 323 286 498 834 124 505 856 295 4 260 492 11 95 434 1,152 1,999 2,70' 6, 0.32 83, 458 5- "^ s bJCf— ( 523 1,737 555 814 738 695 989 603 834 2,156 2,839 951 850 1,696 1,128 1,449 1,405 936 548 889 1,124 831 133 2,118 715 439 1,454 465 2,013 1,858 6,252 Not voting. Wh'e. Col'd, 48 110 73 233 156 140 169 73 271 410 900 497 761 768 331 78 190 100 29 83 442 140 9 805 105 184 284 101 92 252 1,189 124, 715 24, 637 149 291 183 132 188 81 125 44 118 248 123 85 78 57 99 186 263 102 78 104 76 73 75 300 99 3 173 161 179 422 1,261 22, 898 Headquarters First Military District, State of Virginia^ June 16, 1869. Sir : I have received your commiimcation of the 12th iiist., and the inclosed statement of reasons why the oath of office prescribed by the act of July 2, 1862, " should not be exacted from members of the gen- eral assembly and State officers to be elected at the same time the con- stitution is voted on." I have carefully considered these reasons, but can tiiid in thein no grounds for changing the opinion expressed to a member of your committee some days since, or for reversing the action that 1 have heretofore taken upon precisely the same point. In my judgment the reasons presented in this statement do not and cannot be made to apply to this question until the constitution becomes the controlling law by reason of its ratification by the people of the State, and its approval by the Congress of the United States. Both of these conditions must first be satisfied, and, until they are, the laws which control the district commander in the execution of the duties committed to him cannot be superseded or modified by a law which does not become effective until it shall have been examined and approved by Congress. I have never doubted that this approval AAonhl have the effect of dispensing with the reipiirements of the l>th section of the law of July 19, 1867, and substituting the oath prescribed by the constitu- tion for the officers elected or appointed under it, for that prescribed by the law of July 2, 1862; but the district commander has no authority to dispense with this oath, or to modify in any other way the laws of TEST OATH IN VIRGINIA. 25 the United States, wliicli control his action ; and the exercise of such authority woukl not in any proper sense be an interpretation or con- struction of the hiw, but would be the assumption of a ])ower which Congress has expressly and very explicitly reserved to itself. The dispatch from General Grant to General Meade, which is cited in your statement, does not, I think, conflict with this view. Without being- familiar with the circumstances under which it was given, I have no donbt it related to the constitution after its approval by Congress: Upon the passage of the law of June 25, 18G8, to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Congress, I assumed that the approval of the State convention by the preamble of that law dispensed with the oath of ofiice prescribed by the laws of the United States, and ujion re- porting- this action to the General of the Army, it was approved by him. Although the dates, March 2 and June, 1808, of the dispatches to command- ers of the second and third military districts are different, the action taken appears to relate to the same'phase of the question, and to be en- tirely consistent. I have delayed this answer until 1 could receive copies of the dispatches above referred to, but, as they have not reached me, I send it now, and will transmit the dispatches as soon as they are received. I send with this, however, a copy of General Orders No. 120, issued in the second military district. The action taken in that case so far as it relates to this question had been approved by the General of the Army. Very respectfully, sir, your obedient servant, E. R. S. CANBY, Brevet^ Major General TJ. 8. A., Commanding. E. T. Daniel, Esq., Eichniond, Virginia. Official copy : LOUIS Y. CAZIAEO, A. D. C. and A. A. A. G. Headquarters First Military District, 8tate of Virginia, Richmond, Va., July 31, 1869. General : I have the honor to acknowledge the receipt of your con- fidential communication of yesterday in relation to the test oath in Virginia. Very resijectfully, your obedient servant, ED. E. S. CANBY, Brevet Major General Commanding. General W. T. Sherman, Commanding the Army, &c., Washington, D. C. Headquarters Army, Adjutant General's Office, Washington, ^eptemher 3, 1869. Sir : By direction of the Secretary of War I have ihc honor to trans- mit herewith, for your guidance, a copy of the opinion of the Attorney Genera], of the 28th of August, 1869, with the suggestion of the Presi- dent that you immediately promulgate the result of the election in 26 TEST OATH IN VIRGINIA. Virginia, and inangiirate both the governor and lieutenant governor under military authority, provided they can take the required oath. By command of General Sherman : E. D. TOWNSEND, Adjutant General. Brevet ]\Iajor General E. E. S. Canby, U. S. A., Commanding First Military District^ Richmond, Yirgima. [Coiifideutial.] Headqitaeters Army of the United States, Washington, B. C, July 30, 1869. General : The President has submitted the whole question as to whether the members of the legislature elected for Virginia are required to take the test oath, upon being qualified to take their seats. He wishes you to defer the pronudgation of the results of the recent elec- tion till you have the decision of the Attorney General, and in case his opinion be that the test oath is necessary, then to defer the promulga- tion about one month before the meeting of the national Congress, so that the law may be modified tliat members elect of the State legisla- ture may take their seats and proceed to business. Yours, &.Q., W. T. S. General E. E. S. Cabny. War Departivient, ^Yas}iington City, (no date.) General E. B. To^vnsend: The Secretary of War directs that you transmit a copy of the inclosed opiuion of the Attorney General to Gen- eral Caid)y for his guidance, with the suggestion of the President that he immediately promulgate the result of the election in Virginia, and that he inaugurate both the governor and lieutenant governor elect under military authority, provided they can take the required oath. JNO. E. SMITH, Colonel and Brevet Major General U. 8. A. Headquarters First Military District, State of Virginia, Richmond, Va., Septemher 10, 1869. Sir : I have the honor to transmit a copy of General Orders ISTo. 101, promulgating the results of the election in this State of July 6, 1869, and to report, for the information of the General of the Army, that I have fixed upon the twenty-first instant for the inauguration of the governor elect, in order to give Governor Wells sufticient time to close up the busi- ness of his ofiice, and at the same time allow Governor AYalker to make any necessary arrangements before the meeting of the legislature. Verv respectfullv, vour ol)edient servant, ' ^ ED. E. s. oa:j^by. Brevet Major General U. IS. A., Commanding. The Adjutant General of the Army, Washingto)!, D. C. TEST OATH IN VIRGINIA. 27 Headquarters First Military District, State of Virginia, Richmond, Va., July 10, 1869. Sir : I have the lioiior to transmit, for the information of the General of the Army, a copy of the correspondence with different persons in tliis State in relation to the qnalitications of voters upon, and officers to be elected under, the proposed constitution for the State of Virginia. But two material points are involved in these questions : 1. The alleged conflict between certain provisions of these laws as they apply both to voters and officers, and the Constitution (article 14 of the amendments) of the United States. 2. Tlie legal effect of the ratification of the proposed constitution by the people of the State, and the action required by the 5th section of the act approved April 10, 1809. Upon the first I have held that, even if there be such conflict, and this may be seriously questioned as to the States not represented in the Congress of the United States, the question is one over which the dis- trict commander has no control, and must be left for appropriate legisla- tive action or judicial determination ; and upon the second, that the ap- proval by Congress of any proposed constitution is a fundamental con- dition of the reconstruction laws, and until that condition is satisfied the constitution remains inoperative, and wholly subordinate to the provisions of the laws under which it was framed ; that these laws de- termine the qualifications of officers, and until they are dispensed with by law, or cease to operate in pursuance of law, they nuist he enforced. The le'tters marked A 1, 2, 3, and 4, are given as examples of the deci- sions upon the first question, and those marked B 1, 2, 3, 4, 5, and 6, of the decisions upon the second. I have no disposition to enlarge upon the subject, but as these decisions have been criticised as after thoughts, and as being in conflict with previous decisions upon the same ques- tions by the General of the Army, I have thought it proper to invite at- tention to tlie action heretofore taken upon those questions. It will be seen, by General Orders Nos. 79 and 83, headquarters second military district, dated respectively May 2 and May 12, 1808, that the same decision was made more than a year ago, and that the membei s of the legislature and other elective officers under the constitution of the State, embraced in that district, who were unable to take the oath of office prescribed by law, would not be allowed to discharge any ofil- cial functions " until the disability has been removed by Congress, or unless the oath of office prescribed by the above-cited law (of July 19, 1807) shall have previously been dispensed with by law, or unless the said ninth section shall have become inoperative by the fact that the people of the State have been declared by law to be entitled to repre- sentation in the Congress of the United States;" and by General Orders No. 117, of June 20, and No. 120, of June 30, 1808, that the laws of June 25, 1808, approving the constitutions of several States and authorizing certain action under them, was held to supersede or dispense with the oath of office prescribed by the law of July 2, 1802, and recpnred by the ninth section of the law of July 19, 1808. It was held then, that the recoustruction or i)olitical restoration of the States embraced in the operation of the reconstruction laws was wholly under the control of the political or legislative department of the government, and con- tingent in its successive steps upon the previous action of that depart- ment, and compliance with the c;onditions expressed by that action. General Orders No. 120, of July 3, No. 131, of July 0, and No. 141, of July 20, exhibit the action taken, as the successive steps in the H. Mis. De^ 8 4 28 TEST OATH IN VIRGINIA. reconstruction of the States incliKknl in the second military district were completed. It was held then, that the ()))ligation imi)osed by the Constitution and the third section of the law of June 1st, 178!), could be satisfied only by an oath or affirmation prescribed by the laws of the United States, and that until the oath prescribed by the proposed State constitutions were approved by Congress, they were not the prescribed oaths, and did not legally imi)ose obligations or involve penalties. I have been unable to find anything in the subsequent legislation of Congress to warrant any ditfereut conclusion as respects this State. On the contrary, the joint resolution of February G-18, 18()9, and the passage of the law of April 10, 1809, before the approval of the constitution by Congress, and without dispensing with the requirement of the ninth section of the law of July 19, 1807, or prescribing another form of oath, ai)])ears to ex- press very clearly the intention of Congress that this requirement should be enforced until the constitution had been examined and approved by tluit body. Eligibility to office does not necessarily include the qualifi- cations that precede the discharge of the duties of the office ; on the contrary, there are ^'ery few inqtortant offices where additional (jualifica- tions are not required. The oath ])rescribed by the law of July 2, 1802, is such an additional qualification, and its ai>plication to the seceded States before they were represented in Congress appears to be the natural result of their political relation to the tlnion, independent of the requirements of the ninth section of the law of July 19, 1807. With two exceptions all the decisions of the General of the Army relating to the (]ualifications of voters or officers that I have been able to find were made subsequent to the i)assi)ge of the law of June 25, 1808, and ap- plied to the constitutions ichich had already been approved hij Congress. The first of the exceptions is the decision of March 2, 1808, in rela- tion to Florida, and is in answer to a specific inquiry as to the qualifi- cations of voters and officers imder, "and to take office after, the adop- tion of the constitution." The second is that of Ajuil 29, 1808, in rela- tion to Georgia, and also a])])lies to the qualifications of officers and the enforcement of the test oath after the approval by Congress of the i)ro- liosed constitution. See General Orders No. (51, headquarters second military district, dated A])ril IT), 1808. This decision is in effect that, after Congress had ap])roved any ])roposed constitution and authorized action under it, tlui test oath could not be enforced. Substantially the sanu^ decision was subsequently made by me in the second district, and ujxm being reported to the General of the Army was ap])rov(Ml by him. Next in pertinence is the correspondence in relation to the condition of the governments (U'ganized iinder the proposed constitutions, if they were allowed to go into operation before Congress had acted on them. On the loth of January he decided that the Alabama convention, in pro- ])osing to elect officers under her new constitution, had only followed an established precedent, but added, "the governments elected cannot assume authority except under orders from the district commander, or after action of Congress upon their constitutions." On the 10th of March, 1808, he decided that "voters on the ratification of the con- stitution cannot, under the law, be required to take the oath i)rescribed by the convention," as it would be in contravention of the acts of Con- gress. On the 9th day of May he asked the commander of the third district, " Do you think it advisable to appoint civil officers elected at the late election in Georgia to relieve all army officers heretofore appointed by you?" To this General IVIeade answered: "It was not my intention to put in office any of the civil officers recently elected until Congress TEST OATH IN VIRGINIA. 29 bad acted on the constitution. ***** The governor, if put in office, couhl not appoint auy one, and woukl have to appoint every one through me. * * * Again, all appointees would have to take the test oath, and I question whether many of the elected can do this. * * * * When the constitution is sent to Congress, if they author- ized the civil government going into ofiice in advance of the admission of the State, and on the same terms as if the State liad been admitted, that is, without requiring the test oath, I think this would be well." The same considerations applied to the meeting of the Florida legis- lature before Congress had acted on the constitution. In the second military district I held that if the legislature of a State assembled before its constitution had been approved by Congress, it must do so under the conditions imposed by the reconstruction laws ; and, to avoid the embarassments resulting from this complication, the meeting of the legislature of South Carolina, as appointed by the con- vention, was postponed by General Orders No. 82, of May 12, 1868,- " until after the Congress of the United States shall have approved the constitution under which it was elected." The decisions, June 30 and July 8, 18G8, although applying to the qualifications of officers after the approval of the constitution under which they were elected, are decided as to the character of the governments, until the conditions of recon- struction are fully complied with. The alleged anomaly of requiring the oath of office prescribed by the law of July 2, 1867, after article fourteeu became a part of the Constitu- tion of the'United States, is a matter over which the district commander has no control. The law has not been repealed, and has been modi- fied by the law of July 11, 1808, only so far as it aflects persons whose disabilities have been removed by Congress, and it is still enforced against all, including those who have never incurred any disabilities, who may be ai^pointed to office under the government of the United States. Until the proposed constitution for Virginia has been approved, there are no other oaths or affirmatious prescribed by law for persons ap- pointed or elected to office in that State, and I do not see how the obli- gation imposed by the Constitution of the United States, and the law of June 1, 1789, can be satisfied without taking the oath prescribed by the law of July 2, 1862, or in the case of persons whose disabilities have been removed, that of July 11, 186S. Very respectfullv, vour obedient servant, ED. R. S. CANJ3Y, Brevet Major General, Commanding. The Adjutant General, Washington, D. C. 1 p D ' 2. 6 81 : -^^0^ ; ^op^ ^^-^^ •n^o^ A ^. "'^ .V^ % " o V b^^ A ^0^^. ^ \V ^ ^^^ ■^ .0' A V iO -TV * ^ o o -^^ ■^q. "°. A-^ .V -^^^^ ■a? **■ ■^*- *-„./ .-i^fA'. \/ .'^fe'v \/ ''A%iA'. u c, \r .^^-^^^ ..' •0? >i>- o"'l av 'v'j. .Vv?;^^ o_^^ j^ ^., : ''>'o^ . '0^ 'n- <'^ <^' '^ ^\ ^>'^^-^,-. % y^''%. ''X A^ ^^' A A^ -S^, .^^ %o *0 ^^ u D0B6SBR0S. , ,. LIBRARY BINDING ^ . ST. 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