The next assertion concerns the test oath; and on this point I desire to be precise.
General Canby, the military commander in Virginia, thought that the test oath, or “iron-clad,” should be required in the organization of the Virginia Legislature. This opinion was given after careful examination of the statutes, and was reaffirmed by him at different times. According to him, the test oath must be applied until the Constitution has been approved by Congress; and in one of his letters the commander says, “Its application to the seceded States before they were represented in Congress appears to be the natural result of their political relation to the Union, independent of the requirements of the ninth section of the law of July 19, 1867.”[195] To my mind this opinion is unanswerable, and it is reinforced by the reason assigned. Nothing could be more natural than that the test oath, which was expressly required of the Boards of Registration and of other functionaries, should be required of the Legislature, so long as the same was within the power of Congress. The reason for it in one case was equally applicable in the other case; nay, it was stronger, if possible, in the case of the Legislature, inasmuch as the powers of the latter are the most vital. It is this Legislature which is to begin the new State government. Two essential parts of the system depend upon it,—the courts of justice, which are to be reorganized, and the common schools. To my mind it is contrary to reason that the establishment and control of these two great agencies should be committed to a disloyal Legislature,—in other words, to a Legislature that cannot take the test oath. The requirement of this oath is only a natural and reasonable precaution, without harshness or proscription. It is simply for the sake of security. Therefore is General Canby clearly right on grounds of reason.
Looking at the text of the Reconstruction Acts, the conclusion of reason is confirmed by a positive requirement. By the ninth section of the Act of July 19, 1867,[196] it is provided,—
“That all members of said Boards of Registration, and all persons hereafter elected or appointed to office in said military districts, under any so-called State or municipal authority, … shall be required to take and to subscribe the oath of office prescribed by law for officers of the United States.”
Senators find ambiguity in the terms “under any so-called State or municipal authority”; but I submit, Sir, that this is because they do not sufficiently regard the whole series of Reconstruction Acts and construe these words in their light. If there be any ambiguity, it is removed by other words, which furnish a precise and unassailable definition of the term “so-called State authority.” By the Reconstruction Act of March 2, 1867, it is provided, “that, until the people of said Rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States.”[197] This is clear and precise. Until the people are admitted to representation, the State government is “provisional only,”—or, in other words, it is a “so-called State authority.” Now the Legislature was elected under “so-called State authority,”—that is, under a State constitution which was “provisional only.” Therefore, according to the very text of the Reconstruction Acts, one interpreting another, must this test oath be required.
If it be insisted that the Legislature was not elected under “so-called State authority,” pray under what authority was it elected? Perhaps it will be said, of the United States. Then surely it would fall under the general requirement of the Act of July 2, 1862,[198] prescribing the test oath to all officers of the United States. But I insist upon this application of the statute only in reply to those who would exclude the Legislature from the requirement of the Reconstruction Act. I cannot doubt that it comes precisely and specifically within this requirement.
This conclusion is enforced by three additional arguments.
1. By a resolution of Congress bearing date February 6, 1869, “respecting the provisional governments of Virginia and Texas,”[199] it is declared “that the persons now holding civil offices in the provisional governments of Virginia and Texas, who cannot take and subscribe the oath prescribed by the Act entitled ‘An Act to prescribe an Oath of Office, and for other Purposes,’ approved July 2, 1862, shall, on the passage of this Resolution, be removed therefrom.” By these plain words is the purpose of Congress manifest. The test oath is prescribed for all persons “holding civil offices in the provisional government of Virginia.” But, by requirement in the first Reconstruction Act, the provisional government lasts until the State is admitted to representation.
2. Then comes a well-known rule of interpretation, requiring that words shall be construed ut res magis valeat quam pereat,—in other words, so that the object shall prevail rather than perish. But the very object of the Reconstruction Act on which this question arises was to keep Rebels from the State government. This object is apparent from beginning to end. But this object is defeated by any interpretation disallowing the test oath.