Newspaper Page Text
MILLEDGEVILLE, GEORGIA, TUESDAY, JUNE S&, 1869.
No. £9.
K _ OPME <fe SON,
EUirOKS AND PROPRIETORS. '
Terms
S3,U0 per annum, in Advance.
kr tisixg—Persquare of ten lines, eaeh
V 1 ,mi. $ 1 no. Merchants and others foiall
' ^tj’iver $ 2o,twenty-fiveper cent.off.
legal advertising.
Can a Negro Hold Office in Georgia ?
Drciaitu* autl Opinion* of the Jimtirea
the Supreme Court o( the Slate.
.—Citatiousfor letters ol ad-
,,ruardianship ,ifcc $3 00
2 00
5 00
3 50
ior leave to sell Land 5 00
Debtors auu Creditors 3 00
00
1 50
2 50
5 00
5 00
1 00
3 00
Orimary S
,strati 011
" <tea d notice
; “ tiu „torletters of dism’n fromadm’n
\ ,',iicati
A.j.’.icati
N ’ ’ ^fVind, per square of ten lines....
M , le5 't' personal, per sq., ten days
> ; Each levy of ten lines, or less..
<l ' r !^„e sales of ten lines or less
v ’ OoFlector’s sales, persq. (2 months)
‘ lX . .foreclosure of mortgage and oth-
' ‘monthly’s, per square
tra v notices, thirty days
, teS 0 f Respect, Resolutions by Societies,
marie* -&c.,exceeding six lines,tobecharged
l^ansient advertising
' -.p.-sof Laud, by Administrators, Execu-
’vir Gruardiaus, are required by law, to beheld
tirst Tuesday in tbe mouth, between the
!’ r < of teu in the ...
’ ,ju, atthe Court-house in the county in wmch
^“property is situated. _
V ,tiee of these sales must be given in a public
-a/ette 40 days previous to the day of sale
^ Notice for tbe sale of personal property must be
ilikemanuer 10 days previous to sale day
and creditors of an estate
riven hi
Notices to debtor
mast also be published 40 days.
V itice that application will be made to the
pj.rt of Ordinary for leave to sell land, must be
. j 1)lished for two months.
'"citations for letters of Administration, Guar-
Lnsiiip, ifco., must be published 30 days—lordis-
1 ' ,. il)U from Administration, monthly six months ;
J 1 ,/dismission from guardianship, 40 days.
1 o,',s for foreclosure of Mortgages must be
■ jisheJ monthly for four months—for establisli-
' ,. r ; d<! papers, for the full spaceof three months-
nrVuOilling titles from Executors or Aamims-
./tors, where baud has been given by the de
'.^ se ,l. the full space of three months. Charge,
si 00 per square of teu lines for each insertion.
' Publications will always be continued accord
, 1? to these, tbe legal requirements, unless oth
, r *ise ordered.
Schedule of Macon & Augusta 11. R.
Leaves Camak, daily, at l--^ P M.
Milledgeville Vdm P M
Arrives at Milledgeville 4 20 P.M.
Camak 9.00 A.M.
Passeno-ersieaving Augusta or Atlanta on Day
Pisscnge'r Train of Georgia Railroad will make
JS e connection at Camakfor intermediate points
1 .he above road, and also for Macon,&c
Pas-
r,n the aD07eruau,»iiunwu»v 7 i
MUMrsleaving Milledgeville at 5.30 A. M .reach
Atlanta and Augusta same day,and w«ll make
‘lose connections at either place for principal
pointsiu adjoining States^ cQLE| ^ §upt
Augusta,January 7,1868 4
T HAVE STERN R. R. CO.
so rr
OFFICE, MACON, GA., March24th, 1868’
Columbus Train—Daily.
Leave Macon M
Arrive at Columbus A* t.‘
Leave Columbus
Arrive at Macon
.15 A. M.
.15 A. M.
... 12.45 P.M.
0.20 P. M
Eufaula Train—Daily.
■— ;;;; SS4.S:
7.20 A. M.
4.50 P. M.
Arrive at Eufaula
Leave Eufaula
Arrive at Macon
Connecting with Albany Trainat Smithville
cave Smithville --
. 1.40 P. M.
of
Arrive at Albany1 3,11 P. §}.
Leave Albany * A. M.
Arrive at Smithville 11.00 A. i».
Connecting with Fort Gaines Train at Cuthbert.
Leave Cuthbert 3..57 P- M .
Arrive at Fort Gaines ;^ 4 ^ JJ-
l.eave Fort Gaines 4 A■ M-
Arrive at Cuthbert *- 9.05 A.M.
Connecting with Central Railroad and Macon
A Western Railroad Trains at Macon, and Mont
gomery A West Point Trains at Columbus.
VIRGIL POWERS,
Engineer & Superintendent.
Schedule of the Georgia Railroad.
/ \N AND AFTER SUNDAY,. MARCH 29th
vJ 1 858, the Passenger Trains on the Georgia
Railroad will run as follows:
DAY PASSENGER TRAIN.
(Daily, Sundays excepted.)
Leave Augusta at — -• A. M.
“ Atlauta at y® A
Arrive at Augusta 3.30 P. M.
“ at Atlanta -• 6.10P.M.
NIGHT PASSENGER TRAIN-
Leave Aueusta at — ^ *
“ Atlanta at **• jj 4 -
Arrive at Augusta — b.-iO A.M.
“ Atlanta 4.00 A.M.
BERZEL1A PASSENGER TRAIN.
Leave Augusta at 4 -39 P- M-
“ Berzeliaat - — 7.00 A.M.
Arrive at Augusta — .SAo A M.
"at Berzelia P-M.
Passengers for Milledgeville,Washington and
Athens,Ga.,mubttake Day Passenger Train.from
Augusta and Atlauta.
Passengersfor West Point, Montgomery. Sel
ma, Mobile and New Orleans must leave Augusta
sn Night Passenger Train at 3.45 P. M-, to make
elose connections. T
Passengers for Nashville,Corinth,Grand Junc
tion, Memphis. Louisville and St. Louis can take
either train and make close connections.
Through Tickets and Baggage checkedtbrougfa
to the above places. •
Pullman’s Palace SlcepingCars on all Night
Passenger Trains. .
E . W. COLE, Gen’l&uperint dt.
Augusta, March 26,1868 4 t4
fitLanta &L fUfest UPoift-t
rail roal.
Day Passenger Train—Outward.
LeaveAtlanta 4 - 4 ** A. > ■
Arrive at West Point 9.50 P. M.
D.ay Passenger Train—Inward.
Leave West Point 1.30 P. M.
Arrive at Atlanta 6.20 P. M.
Sight Freight and Passenger—Outward.
Leave Atlanta 4 - **•
Arrive at West Point 11.40 P. M.
Sight Freightand Passenger Train—Inward.
Leave West Point •A*
Arrive at Atlanta *-- 1L30 A. M.
JpluLtiQ.e. of £'PcJuedu.le.
OFFICE SOUTH CAROLINA R. R. CO., L
Augusta, Ga., March 25, 1868. )
O N AND AFTER SUNDAY, 29th March,
1868, the Mai and Passenger Trains of this
Road will leave and arrive at through Central
Lepet,Georgia Railroad, as follows:
Morning Mail and Passenger Tram
4 ar Charleston, connecting Train for Columbia,
^outh Carolina, Charlotte Road, and Wilming
ton and Manchester Railroad.
Leave Central Depot at 5.50 A.M.
Arrive at Central Depot ....... 3.30 P. M.
i^nght Passenger 8f Accommodation Train
Por Charleston, connecting with Train for Co
lumbia,and with Greenville andColumbia Rail
road:
Leave Central Depot at 3.50 P. M.
Arrive at Central Depot at - 7.00 A. M.
H. T. PEAKE,
General Superintendent
PHONOGRAPHICALLY REPORTED FOR THE
ATLANTA INTELLIGENCER.
The case of Richard W. White,
plaintiff in error, against the State of
Georgia on the relation of Wm. J.
Clements, defendant in error, conies
before this Court on the following state
of facts :
Wm. J. Clements applied to the
Judge of the Superior Court of Chat
ham county alleging that at an election
which had been held in that county
for a Clerk of the Superior Court, he
and Richard W. White were the sole
candidates. That Richard W. White
had got a majority ol the votes, but
that he, Clements, had also got a good
many votes, and that no other persons
were running. The petition further
stated that Richard W. White had been
declared elected, and had been com
missioned and was in the actual per
formance of the duties of the office,
and that Richard W. White was a per
son of color, having oue-eighth or
more of African blood in his veins.—
That therefore under the laws of Geor
gia he was ineligible to office, and
further that under the laws of Georgia
as White the person having the majori
ty of votes was ineligible he, Clem
ents, having received the next highest
number of votes was entitled to the
position. He prayed the Court for
leave to file an information for a quo
warranto. To that petition, of which
White was notified he (White) filed a
demurrer. Subsequently. however, he
withdrew the demurrer to that petition
and the information issued in the name
of the State of Georgia. The Court
passed an order directing the Solicitor
General for that Circuit to make out
an information in the name of the State,
reciting in effect the facts which had
been recited in Clements’ petition, and
calling on White to show cause why a
mandamus absolute should not issue
against him, depriving him of the office
and putting Clements in. White at the
proper time fixed by the information
lor answering, filed a demurrer to the
information, and at the same time filed
au answer denying that he was a per
son of color, or that he had one-eighth
or more of African blood in his veins.
On this the Court summoned a jury
for the purpose of trying the issue.—
When the jury had been sworn, the
defendant below—the plaintiff here—
call up his demurrer to the information.
It is stated in the record that the plain
tiff in the information made no objec
tion to taking up the demurrer at that
time, but consented; and the court
heard the motion as an independent
motion before the case was submitted
to the jury. The Court decided that
in the argument upon that motion—
that demurrer—Clements, the movant
in the general proceeding was entitled
to open and conclude the argument—
that the matter being before the jury
the general rule which gives to the
party moving in a demurrer the right
to open arid conclude did not apply.
The court heard the argument on the
demurrer and overruled the demurrer.
The case went to the jury on the.issue
of fact whether or not White had one-
eighth or more of African blood in his
veins. On the trial there were various
questions made as to the testimony.—
One witness testified that the defendant
White, was reputed in the neighbor
hood to_ be a colored person. Another
witness testified that he, (the witness,)
was a registrar of voters ; that when
White was registered he, the registrar,
had affixed opposite White’s name the
letter “ C, ” to denote that he was a
person of color ; that he subsequently
posted the lists in a public place, and
that they had remained there two or
three weeks without any application
having been made to him to have the
letter “ C ’* erased or changed. It did
appear, however, that there was any
notice to White that this letter “ C ’’
had been placed opposite to his name,
nor did it appear that it was the law
or the practice that if he had applied
to have it corrected, that they would
have corrected it; in other words that
it was the part or the duty of the offi
cer at all to make that entry. At least
it has not so been made to appear to
us.
This evidence was objected to by the
defense but admitted by the Court.—
The Court also admitted as evidence
the statement by a physician, an exam
ining physician of an Insurance Com
pany, that at a previous time he had
examined White and had pronounced
him a mulatto. There was no testi
mony by the physician of what his
opinion was at the time of the trial.
The testimony was that at some pre
vious time he had examined him and
.was at that previous time, of opinion
that he was a mulatto.
In the further progress of the trial
they proposed to introduce a copy of
an* application for a Life Insurance on
the life of White in favor of his wife,
which application purported to be
signed by White. The application
does not seem to have had a word in
it as to whether White was a white
man or black man, it gave no indica
tion as to his color, but on the back of
it there was an entry by a person who
purported to be an examining physi
cian, that White a mulatto. The
witness swore at first that he thought
White signed the paper, but swore af
terwards that he didn’t know whether
White had signed it or his wife had
signed it for him. Objections was made
to this paper on three grounds; one,
that it was a copy-paper, though it
was proven that the original was in
New York; the other that there was
no proof that the original had been
executed ; and third that in any event
the paper amounted to nothing.
Another witness, also a physician,
swore that he was a practicing physi
cian, and that he had studied the sci
ence of ethnology ; that that science
taught men the rules by which the
race of a man was ascertained, and this
witness gave his opinion upon the
point. The Court admitted his opin
ion, that White wa&qi person of color,
as being the opinion of an expert. The
case went to the jury on this testimo
ny. There some objections to the
charge of the Court which we however
have not noticed, because we didn’t
think the point very material. The
jury found for the plaintiff in the infor
mation. Thereupon the Court passed
judgment, deposing White from his
position as Clerk of the Superior Court,
and declaring that Clements was entit
led to hold that office.
This case has been argued before us
with a great deal of learning and abili
ty-
This Court has agreed upon the
judgment which it will deliver in this
case, but not upon the reasons upon
which this judgment is founded. The
Court all agree that the judgment in
the court below ought to be reversed ;
this court being unanimously of opin
ion that the court below erred in va
rious of its rulings on the trial and on
the question of the argument on the
demurrer.
A majority of the court, the Chief
Justice, and myself, agree in the judg
ment that the court below erred in
overruling the demurrer, it being our
opinion that under the Code of Geor
gia a person of color is eligible to office
in Georgia. My brother Brown, how
ever, and myself do not exactly agree
upon the grounds upon which we base
that judgment. The statutes of the
State of Georgia require that the court
shall agree in the decision which it
makes—the principle upon which it
puts the case which it decides, and as
my brother Warner—whilst he agrees
to the general judgment—puts his
opinion upon one set of grounds, and
my brother, the Chief Justice, puts his
upon another, while I put mine upon
a third,* we are unable to agree upon a
statement of the general principles
upon which we put our judgment.—
Hence, under the statute, we shall
each give a statement of the ground
upon which we assent to the judgment
of this court.
I will, therefore, now read the grounds
upon which the whole Court bases its
decision ; the grounds upon which the
majority of the Court bases its decis
ion, and I shall also announce the prin
ciples upon which I, myself, hold that
the Court below erred.
As this is a case of a good deal of
importance, involving not only the
rights of the defendant, and this plain
tiff in error, hut of a very large por
tion of the people of this State, and
one in which there is a great deal of
interest taken, I have reduced to writ
ing, in detail, my opinion ; and I will
preface the reading of the judgment of
the whole Court and of the majority
of the Court, with some written re
marks—preferring to do that rather than
make a parole introduction.
Whatever may have been under the
Constitution of the United States, the
abstract truth as to the political con
dition and status of the people of Geor
gia at the close of the late war, from
the stand-point of a mere observer, it
seems to me perfectly conclusive that
the several branches of the present
State Government are shut up to the
doctrine that the Constitution and
frame of civil Government in existence
in this State on the 1st of January,
1S61, with all its disabilities and re
strictions, was totally submerged in
the great revolution which from 1S61
to 1S65 swept over the State. Early in
June, 18(55, the Governor of 1S(50 was
in prison at Washington, and there
was not in the whole State, a single
civil officer in the exercise of the func
tions of his office.
The -whole body lately acting had
been chosen under the laws cf the Con
federate States, and the incumbents of
1860 had all either died or resigned or
renounced their positions as officers
under the Constitution of the United
States, by swearing fealty to the Con
federacy and repudiating the Govern
ment of the Union.
The people of the State were, in the
language of the President, without civ
il government of any kind—in anarchy.
The State, as a State of the Federal
Union, still existed, but without any
frame of civil government regulating,
restraining and directing the exercise
of its funefions. From that time un
til the present State Government went
into operation, the government of the
State was with more or less complete
ness in the hands of the military au
thorities of the United States, and the
entire ancient civil policy of the State,
was totally ignored. Directly in the
teeth of the old Constitution, the-peo-
ple of color were recoguized as free
men, and as entitled to equal, legal,
and political rights, with the whites.
The Convention of 1867 met under
the laws of the United States, and
was elected and composed in total dis
regard of all the provisions and pre
sumptions, qualifications, disqualifica
tions, aud distinctions of the old or
ganization.
The black people participated in its
election, and in its composition, on
equal terms, in theory at least, with
the white, and nothing can to my mind
be plainer than that by the whole theo
ry then acted upon, they were recog
nized as forming an integral part of
the sovereign people, then assembled
iu convention to form for their com
mon benefit a constitution and frame
of civil government.
Such being the facts of the case, it
appears to me that this court, deriving
its whole authority from the constitu
tion then framed, aud sworn to sup
port it, is, from the very nature of the
case absolutely prohibited from recog
nizing as then or now, in force, ejther
the Constitution of 1860 or ]865, or
auy of the legal or political disabilities
or distinctions among the people, de
pendent upon them or either of them.
The convention met under the laws
of the United States, to form a consti
tution for a people without civil gov
ernment.
It had nothing to repeal, nothing to
modify, nothing to grant. None of the
old Constitutions of the State, were
at the time in operation—the Conven
tion met under entirely new ideas and
new presumptions. It represented a
new people—a people among whom
slavery had ceased, and among whom
black people as well as white were rec
ognized as forming part of the political
society, and entitled to equal partici
pation in its rights, privileges and iin-.
m unities.'
It is not necessary, for the purposes
of this argument, that this theory shall
be proven to have been a legal one
under the Constitution of the United
States. Ifc is sufficient to state, that
it is -true as a fact, and that the pres
ent State Government is based upon
it.
If, when the Convention met in De
cember, 1S67, the ancient Constitution
of the State, or any of its legal or po
litical disabilities or disqualifying dis-
tictions upon persons of color were of
force, then the Convention was itself
illegal, the present State Government
is illegal, this Court is'illegal ? His
Honor the Chief Justice, has his prop
er place in the Executive Chair, my
respected associate and myself are pri
vate citizens, the plaintiff" in error is a
slave, and the whole political history
of the State since the imprisonment ot
Governor Brown in June, 1865 a gi
gantic illegality.
I am aware that a very large class of
our most intelligent people, so, at this
moment, honestly, believe: to them
this argument is not directed : but it
seems to me, that to a Judge holding
his office under the present State gov
ernment, forming an essential part of
its machinery, these views must
be of overwhelming force. If he as
sumes the power to decide at all, he
must, it seems to me, base his judgment
upon principles which do not, if adop
ted in his own eftse, utterly subvert his
his own authority.
I make these remarks with the great
est deference to the integrity and to
the sound legal accumen of my asso
ciates. Houest men see things in dif
ferent lights, and it is as presumptuous
as it is uncharitable, for one man to
set up his convictions as the necessary
guide of the conscience of another.—
These are my convictions, and as a
matter of course, I mustact upon them,
and accordingly, under the rules pre
scribed by the Statute; I announce, as
the general principles, controlling my
judgment in this case, the following:
By the whole Court:
First, The statement of a registrar
of voters that he had marked a regis
tered person’s name with a “ C ” to
denote that he was colored, and had
posted his lists for some time in a pub
lic place, and that jio application had
been made to have said “ C ’’.erased
is no evidence that the person is a col
ored person, it being shown that the
person knew of the entry, and that it
was the subject of correction.
Second, Although a copy of a paper
proven to be beyond the jurisdiction-of
the court is good secondary evidence of
its contents, yet it must be shown
that the original was duly executed.
3d. An application for a life insu
rance, though signed by the applicant,
upon the hack of which was an entry
by the examining physician that the
applicant was a mulatto, is no evi
dence unless it be proven that the per
son signed the paper after the entry
on it was made^by the physician and
with knowledge ot the entry and with
intent to adopt it, or that he used the
paper after the entry was made with a
knowledge that such entry was there.
4th. The statement by an examining
physician, that he had at a certain
time examined a person and had then
been of the opinion that the person
was a mulatto, is no evidence. If the
physician is an expert he must give his
present opinion, and if not he must
state the facts upon which he bases
his opinion. Whether or not one is a
person of color, that is, has African
blood in his veins, is matter of opinion,
and a witness may give his opinion if
he states the facts upon which it is
based. But whether the fact that he
has one-eighth or more of such blood,
be matter of opinion or not—Q.uerry '?
5th. One who testifies that he has
studied the science of ethnology may
give his opinion as an expert on the
question of race. Its weight is for the
jury- .
Pedigree, relationship and race may
be proven by evidence of reputation
among those who know the person
whose pedigree or race is in question.
The whole Court agree upon those
propositions.
The majority of the Court agree up
on this proposition: Where a quo
warranto was issued charging that a
person holding an office was ineligible,
when chosen, because of his having iu
liis veins one-eighth or more of African
blood, and there was a demurrer to
the information as well as an answer
denying the fact, upon which denial
there was no issue and a trial before
the jury : held that by the Code of
Georgia, a person having one-eighth
or more of African blood in his veins
is not ineligible to office in this State,
and it was error in the Court to over
rule the demurrer and to charge the
jury that if the plaintiff proved the
defendant to have one-eighth or more
of African blood he was ineligible to
office in this State.
DECISION OF COURT AS RENDERED BY
JUSTICE MCCAY.
Whilst I agree that the Code of
Georgia—the law of Georgia, as sepa
rate from the Constitution—does not
make persons of color eligible to office,
my opinion is that eligibility is guar
anteed by the Constitution of the State,
and I announce these propositions as
the general principles upon which my
opinion is based.
1st. The Constitution of Georgia
known as the Constitution of 186S is
a new Constitution, made by and
formed for a people who at the time
were, by the faets of the case, and by
the laws of the United States, without
any legal civil’ government: and as
the people of Georgia, without regard
to past political distinctions, and with
out regard to distinctions of color, par-
tipated on equal terms in the'election
for the Convention, and in its composi
tion and deliberations, as well as in
the final ratification of the Constitu
tion it framed—in the (construction of
that Constitution, and iu'the investiga
tion of what rights it guarantees, or
denies, such distinctions are equally
to be ignored.
2d. The rights of the people of this
State, white and black, are not grant
ed to them by the Constitution thereof.
The object and effect of that instru
ment is not to give but to restrain, de
ny, regulate, anti guarantee rights;—
and all persons recognized by that Con
stitution as citizens of the State, have
equal legal and political rights, except
as otherwise expressly declared.
3d. It is the settled and uniform
sense of the word “citizen,” when
used in reference to the citizens of the
separate Slates of the United States,
and to their rights as such citizens,that
it describes a person entitled to every
right, legal and political, enjoyed by
any person in that State, unless there
be some express exception, made by
positive law, covering the particular
person, or class of persons, whose
rights are in question.
4th. Words used in a Constitution,
have there ordinary signification, un
less they be woods ol art, when they
have the sense placed upon them by
those skilled in the art, or unless their
meaning be defined and fixed by law—
in which latter case the legal meaning
must prevail.
5th By the l64St'u and 1649th Sec
tions of Irwin’s Revised Code, it is ex
pressly declared, that among the rights
of citizens is the right to hold office,
and that all citizens are entitled to ex
ercise all their rights as such, unless
expressly prohibited by law ; and as
the Constitution of 1868 expressly
adopts said Code us the law of the
State, when that Constitution uses the
word “citizen,” it uses it in the sense
put upon it by the express definition of
the Code it adopted.
6th. Article 1st and section 2d of
the Constitution oflS68, expressly de
clares that all persons born in the Unit
ed States, or naturalized therein, resi
dent in this Stale, are citizens of this
State, and as the code adopted by the
the Convention, in express terms de
clares that among the rights of citizens
is the right to hold office, a colored per
son born in the United States, and res
ident in this State, is by that section of
the Constitution, guaranteed eligibility
to office, .except when otherwise pro
hibited.
7th. Nor would the repeal of those
sections of the Code, or their alteration,
deprive a colored person of the right
thus guaranteed. Since it is a settled
rule that it is not in the power of the
Legislature to divest a right or change
a constitutional guarantee by altering
the legal meaning of the word by which
that guarantee was made.
8th. The right to vote involves the
•right to be voted for, unless otherwise
expressly provided, since it is not to be
presumed without an express enact
ment that the principle is of less dig
nity or rights than the agent.
9th. There being in the Constitution
of 1868 various special disqualifications
of electors for particular offices, aud
Tour separate sections detailing dis
qualifications for any office, and a black
skin not being mentioned as qne of
these disqualifications, under the - rule
that the expression, &c., of one thing
is the exclusion of others, persons of
color, electors, are not disqualified from
holding office.
10th. There never has been in this
State, at any period of its history, any
denial in terms of the right to vote or
hold office, to colored persons as such.
By the old law, they were either slaves
or free persons of color,and these rights
were denied them by declaring that
they were not, and could not he citi
zens of the State, and when Article 1st,
Section 2d of the Constitution of 1868,
recognized them as citizens, the right
to vote and to hold office, except as
otherwise provided by the Constitution,
was ex pi termini, also guaranteed lo
them.
11th. Ineligibility to office, involves
not only the denial to the person claim
ing the place the right to be chosen,
but what is of far greater moment, the
right of the selecting power to choose ;
and to make out a case of ineligibility
there must he such a state of affairs as
established not only the want of power
to he chosen, but a denial of power in
the selecting parl^ to choose.
12th. The people ofa State, in their
collective capacity, have every right a
political society can have, except such
as they have conferred upon the United
States, or on some department of the
State Government, or have expressly
denied to themselves by their Consti
tution ; and as the right to select a
public officer is a political right, the
people or that branch of the Govern
ment clothed by the Constitution with
the power to choose, may select whom
soever it will, unless the right to choose
a particular person or class of persons,
is expressly taken away by the Con
stitution.
OPINION OF CHIEF JUSTICE BROWN.
The view which I lake of the rights
of the parlies litigant in this case, un
der the Code of Geotgia, renders it un
necessary for me to enter into an in
vestigation of the question ; whether
the Fourteenth Amendment of the Con
stitution of the United States, or the
Second Section of the First Article of
the Constitution of Georgia, which in
substance is identical with the 14th
Amendment ; confers upon colored
citizens the right to hold office, if the
respondent in this case acquires the
right by grant found in either of the
said Constitutions or in the Code of this
State, it is sufficient for all the purpos
es of the case at bar, and entitled him
lo a reversal of the judgment of the
Court below, which was adverse to his
right.
The third paragraph of the 9th Ar
ticle of ihe Constitution ot this State
adopts, in subordination to the Consti
tution of the United States, and the
laws and treaties made in pursuance
thereof; and in subordination lo the
said Constitution of this State ; the
‘body of laws known as the Code of
Georgia, and the acts amendatory
thereof, which said Code and acts are
embodied in the printed hook known
as Irwin’s Code” “except so much of
the said several statutes, Cole and
laws, as may be inconsistent with the
Supreme law herein recognized.”
The Code, Section 1646, classifies
natural persons into tour classes; 1st,
citizens, 2d, residents, 3d, aliens, 4lh,
persons of color.
Section 46th of the Code declares that
“All while persons born in this Slate,
or in any other Stale of this Union,who
are or may become residents of this
late, with the intention of remaining
herein ; all white persons naturalized
under the laws of the United Slates,
and who are, or may become residents
oflhis State with the intention of re
maining herein ; all persons who have
obtained a right to citizenship under
former laws, and all children wherever
born, whose father was a citizen of this
Stale at the lime of the birth of such
children; or in case of posthumous
children at the time of this death, are
held and deemed citizen of this Slate.
By the Code the distinction is there
fore clearly drawn between citizens
who are white persons and persons of
color.
In other words, none are citizens
under the “printed book known as
Irwin’s Code” but white persons.—
Having specified the class of persons
who are citizens, the Code proceeds,
in Section 164S, to define some of the
rights of citizens, as follows:
‘Among the rights of citizens are the
enjoyment of personal security, of per
sonal liberty, private property arid the
disposition thereof, the elective fran
chise, the right to hold office, to appeal
to the Courts, to testify a? a witness,
to perform any civil function, and ta
keep and bear arms.”
Section 1649 declares that, “All cit
izens are entitled to exercise all their
rights as such unless specially prohib
ited by law.”
Section 1650 prohibits females from
exercising the elective franchise, or
holding civil office.
Section 1651 prohibits minors from
the exercise of civil functions, till they
are of legal age.
Sections 1652 and 1653 prohibit cer
tain criminals, and persons non compos
mentis, from exercising certain rights of
citizens.
Article 3, chapter 1, title 1, part 2,
of the Code defines the rights of the
4th cldss of natural persons, designated
as persons of color; giving them the
right to make contracts; sue and be
sued, give evidence, inherit, purchase
and sell properly ; and to have martial
rights, security ot person, estate, &c\,
embracing the usual civil rights of citi
zens, but does not confer citizenship.
Thus the code stood prior to its adopt-
tion by the new constitution.
As already shown, it was adopted,
in subordination to the constitution, and
must yield to the fundamental law,
udienever in conflict with it. In so far
as the code had conterred rights on the
colored race there is no conflict and
no repeal. The constitution look away
no right then possessed by them under
the code, but it enlarged their rights as
defined in ihecode, by conferring upon
them the right of citizenship. It trans
ferred them from the 4th class of nat
ural persons under the above classifica
tion who were denied citizenship by
the code, to the 1st class as citizens.
The 46th Section of the Code limited
citizenship to white persons. The
Constitution struck out the word white,
and made all persons born or natural
ized in the United States, and resident
in this State, citizens without regard lo
race or color. It so amended Section
46 of the Code, as greatly to enlarge
the class of citizens. But it repealed
r,o part of Section 1648, which defines
the rights of citizens.
It did not undertake to define the
rights of a citizen. It left that to the
Legislature, subject lo such guarantees
as are contained in the Constitution it
self, which the Legislature cannot take
away. It declares expressly, that no
law shall be made, or enforced, which
shall “abridge the privileges or immu
nities of citizens of the United States
or of this State.” It is not necessary
to the decision of this case to inquire,
what are the “privileges and immuni
ties” of a citizen ? which are guaran
teed by the 14th Amendment to the
Constitution of the United States, anti
by the Constitution of this State.—
Whatever they may be, they are pro
tected against all abridgment by leg
islation. This is the full extent of the
Constitutional guarantee. All rights
of the citizen, not embraced within
these terms, if they do not embrace all,
are subject to the control of the Legis
lature.
Whether the “privileges and immu
nities” of the citizen embrace political
rights, including the right lo hold office,
I need not now inquire. If they do,
that right is guaranteed alike by the
Constitution of the United States, and
the Constitution of Georgia, and is be
yond the control of legislation. If not,
that right is subject to the conLrol of
the legislature as the popular voice
may dictate; and in that case the leg
islature would have power to grant or
restrict it at pleasure, in case of w hile
persons, as well as of persons of color.
The Constitution of Georgia has gone
as far as the fourteenth amendment has
gone, but no further. An authoritative
construction of the 14th amendment bv
the Supreme Court of the United Slates
upon this point, w r ouid be equally bind
ing as a construction of the Constitu
tion of the State of Georgia which is in
the same words.
Georgia has complied fully with the
terms dictated by Congress in the form
ation of her Constitution. She has
stopped nothing short, and gone nothing
beyond. Thq highest judicial tribunal
of the Union, will no doubt finally set
tle the meaning of the terms “privileges
and immunities” of the citizen, which
legislation can hot abridge; and the
people of Georgia, as well as those of
all the other Slates, must conform to,
and in good faith abide by, and carrv
out the decision. All the rights, of all
the citizens, of every Stale, which are
included in the phrase “privileges arid
immunities” are protected against any
legislative abridgment by the funda
mental law’of the’Union. Those not
so embraced unless included within
sotne other constitutional guaranty are
subject to legislative action. The same
rights which the fourteenth amend
ment to the Constitution of the United
States confers upon, and guarantees to,
a colored citizen of Ohio, are conferred
upon and guaranteed to every colored
citizen of Georgia by the same amend
ment, and by the Constitution of this
Slate, made in conformity to the recon
struction acts of Congress.
Whatever may or may not be the
privileges and immunities guaranteed to
the colored race, by the Constitution of
the United States, and of this State ;
it cannot be questioned that both Con
stitutions make them citizens. And 1
think it very clear that the code of
Georgia upon winch alone I base this
opinion, which is binding upon all her
inhabitants while of force, confers upon
all her citizens the right to hold office,
unless they are prohibited by some
provision found in the code itself. I
find no such prohibition in the code,
affecting the rights of this respondent.
I am, therefore, of the opinion that the
judgment of the Court below is errone
ous, and I concur in the judgment of
reversal.
DISSENTING OPINION OF JUDGE HIRAM
WARNER.
[The Opinion as Printed from the Judge's
Manuscript.]
Warner, J., Dissenting.
The defendant is a person of color,
having as the records states, one-eighth
of negro or African blood in his veins,
who claims to be laufully entitled to
hold and exercise the duties of the of
fice of Clerk of the Superior Court of
Chatham county, and the question pre-
sented tor our consideration and judg-