image 1

image 2

April 22, 1871.

Mr. E. H. Herbert,

Haynesville, Ala.

Sir:               

In answer to your letter of the 11th instant, I have to say that I deem it unsafe for any individual who participated in the rebellion, having previously held any office which required him to take the oath to support the constitution of the United States to take an office since the Fourteenth amendment has become a part of the fundamental law of the land.

There is indeed a question what officers are included under the head of executive officers in that amendment, but upon comparing it with the original constitution, it seems probable that Congress considered all offices as divided into Legislative, Executive, and Judicial; and those which do not come under the head of Legislative and Judicial are Executive. I am aware of the decision of the House of Representatives to which you refer, but it cannot be safe for private parties to adopt that as an exposition of the law until it shall be sanctioned by the Judiciary; and without such sanction I would advise that all persons who have held such offices as those which you describe, and afterwards adhered to the rebellion, should not take office under the United States, or any State.

Very respectfully, &c,

A. T. Akerman,

Attorney General.