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Th.e Greorgjia, SV^ee-kly Telegraph.. THE TELEGRAPH MACON, FRIDAY, JUNE 25,' 1859. NaeonandBrannilek Railroad. A note from Mr. Ma gander, at No.C, Atlantic and Gulf Railroad, where the two roads will intersect, announces the rapid progress of the Macon and Brunswick Road. £he note is dated the 14th instant and says: “The work on. the Macon and Brunswick Railroad is progressing very favorably and rap idly. The contractors'expect to have every thing in condition for trains from this point to Brunswick by the 4th of July, and from here to Macon before the bolding of (he State Fair in November.” Night Scenes in Scriptnre. The canvassing in this city for subscriptions to the “ Night Scenes” having been delayed by the illness of the former agent, the work will now be resumed by Mr. Eaton, from Savannah, the agent for the State of Georgia, who, in the interest of his beautiful work, will call on our citizens, among whom we trust he will secure a subscription quite equal to that in Savannah, which was the rise of 300. We invite attention to the notice of this ad mirable work By Bishops Pierce and Beckwith and the clergymen of this city,to be found in our local column. ' The Macon Post Office. A Washington special, of the 14th inst., to the Louisville Courier-Journal, says the Repub lican delegation from Macon, who came on to secure the removal of Turner, the colored Post master at that place, telegraphed home that they were successful in their mission, but the under- standing is just the reverse here. The Presi dent, whatever he may have pronised, gave no order to the Postmaster General to make the change. Letters from Macon say that the feel ing against Turner is growing very strong, es pecially among the Republicans. From Lee, Worth and Dooly. Rht. -4vti.tt-, Lee Co., June 14, 1869. Editors Telegraph : I have seen crops in the counties of Lee, Worth and Dooly. They are as good os they ever were at this season of the year. Some have not suffered at all for rein. It has been raining all the day. Crops are very dean. Corn and cotton both small, but have a good appearance. I find some blooms on my cotton—fuller of forms I never saw it I have COO acres in cotton. Before the war it would have made 300 bales—200 bales will now satisfy me. Laborers doing as well or better than last year. The rain that has just fallen was one of the best I ever saw, not too hard but raining a longtime and a great deal of it. Every thing now looks fresh and promising and the hearts of the planters have been made glad. T. M. C. From Crawford Connty. Kxoxnuuc, Ga., June 15,18C9. Editors Tdegraph : This vicinity was visited yesterday by a refreshing rain, commencing about 11 o’dock, and falling slowly and beauti fully until 9 o’clock last night. Oar crops were never in better condition, and everything bids fair at present for a bounteous yield. Most of the farmers are through harvesting, and the yield is very flattering indeed. Cbawtokd. “Imperialism."—The only sensible suggestion we have seen, in connection with imperialism, comes from Illinois, to the effect that General Robert E. Lee should be the Emperor. That would, at least, put the country, for a time, un der the guardianship of a gentleman, a patriot, a scholar, a Christian, and a man of genius; but as General Lee would not accept the posi tion, and could not hold it long if he did, we had better potter on as we are, and take the chances. Christianizing the Chinamen.—The Journal of Commerce suggests the importance of im porting the Chinamen in order to christianize them. The Middle Georgian says the idea is a good one, but we are afraid they will put John Chinaman into the com and cotton field instead of sending him to a theological institution. — i Solemn Appointment.—The Cortersville Ex press says: Rev. C. W. Howard will deliver an address on the brevity and uncertainty of Human Life in it3 connection with Life Insur ance, at the Academy, Thursday, at 8 o’clock. The ladies are especially invited to attend. Atlanta is believed to bo the greatest manu facturing place on earth. The Slander Mill turns out more work and is busier than any other known establishment. The art of mixing colors is also pushed night and day with great indefatigability. Chops in Sumter.—The Americas Courier says: Since the glorious showers which re cently visited these parts we are having most delightful weather. Our farming friends look more cheerful than for some time—the un iversal report being “cotton coming out bully.” The corn is growing rapidly. Tennessee.—A dispatch from Knoxville to the Nashville Banner announces that the Knox- Tille Whig is about to change front and come out for Stokes and no enfranchisement. Thus Brownlow’s oldnewBp3per will be against him— for Blownlow is a Senter man, and in favor of a partial restoration of suffrage., Whissy too Much.—Old Hancock should shut up the doggeries on circus days. It is a pity her good name for peace and order should be sacrificed to whisky—which must have been the cause of the fight in Sparta on Wednesday. Notice to Deauheads.—The gentleman for tunate enough to receive a pass over the Pacific Railway is informed for his encouragement that it only costs $10 a day for sleeping and eating accommodations on the route. By the way what business is that railroad doing! Hon. Joshua Hill and his son-in-law, CoL J. Bowles, says the Constitutionalist, will re move to Stone Mountain as soon as their dwell ings can he erected. What is Going on in Cocbt ?—The Atlanta New Era has cut us two days in succession— mad, we reckon. We mourn the absence of the Court Journal. To Correspondents.—The pressure of the Negro Eligibility rulings of the Supreme Court forces U3 to lay aside several communications for a fnture occasion. The First Train over the Columbia and Augusta Road entered Augnsta last Tuesday. The Supreme Court on Wednesday closed with No. 6. Southwestern Circuit. " Cannot the North Georgiafpapers give us wheat quotations ? Weather and Crops in Terrell.—Since our last, says the Dawson Journal, the rains have been general and plenty, and the com is now out of the “toast,’’(as the Telegraph quotes us) and prospects for bread are good indeed. From information we have as relates to the crops of oom and cotton, we are inclined to the opinion that our section will be favored with a good crop, provided we are not visited by the worm or caterpillar. We congratulate our fanners upon their good luck. A colored man, named James Washington, has brought suit in Quincy, Illinois, against the Keokuk Packet Company, to recover damages ' in the sum of $2000—the officers of one of that company’s boat* having refused to allow him to sit at the table with white passengers. Negro Eligibility to Office. V; * Our columns, to-day, are packed with the dicta of the Supreme Bench upon the eligibility of negroes to office. We shall not add to the con flict of ratiocination, by volunteering any views of our own, but will content ourselves with a few practical suggestions upon the status which these rulings have called into existence in Geor gia. It is of rip use to inveigh against the court—to impeach its intelligence or its morals. Let us consider what it has made law and fact in Georgia, rather than what ought to be law and what ought to be fact. What, then, does this decision make as the law of Georgia? Simply this: that negroes are just as eligible to all civil offices as whites.— Most of our Georgia contemporaries, who have so "far .spoken upon this subject, frankly con cede this position; but a notion to the contrary (and we think but a notion) has been thrown out by the Augusta Constitutionalist That paper says: Let ns see what will be the effect of such decision as we have foreshadowed. It will be to put White in the office he claims and all othernegroesin the State offices to which they have been elected, except members of the Legislature. It can have no bearing upon that matter. That qnestion has been settled by the only courts having jurisdiction of it—that is by each House of the General Assembly. They alone have constitutional jurisdiction of the sub ject, so far as their respective bodies are con cerned. They have decided, so far as this Leg islature is concerned. Their decision, when rendered, was a judicial decision, which can not now be reversed by themselves. All that could come of such decision of the Supreme Court, in the future, so far as relates to holding the of fice of legislator, would be to use it as an argu ment in the next Legislature, if the question should again come up in either House. It could not bind the Legislature; for, by the Constitu tion, each House is the sole judge of the elec tion and qualifications of its members. No other court can control that judicial judgment in the matter. Similar ideas to these were frequently thrown ont in Legislative debate in Atlanta last winter; but they are not only groundless—they are mis chievous. It is in virtue of just such an arbitra ry and unwarrantable interpretation of its pow ers as this, that the United States Congress have practically assumed to unseat so many of its members of minority politics, that the common belief is that Congress means to perpetuate a Radical majority in that way. The Constitution, it is true, makes each House the judge of the qualification of its own mem bers, but only in subordination to law. The Legislature is the creature of the Constitution, and the subject of law. It is not endowed with judicial powers of any kind. The Constitution, on the contrary, vests judicial powers exclusive ly in the Courts. True, it declares that “each House shall be the judge of the election returns and qualifications of its members, and shall have power to punish them,” etc., etc., but this merely arms them with the power of self pro tection against fraud, illegality, and disorder; and it is no more intended to make the Legisla tive Department superior to law, than the Exec utive or the Judicial. All are co-ordinate, and no one of them moie independent of law than the other. All are sub ordinate to the Constitution and laws made in pursuance thereof, and if either can trample upon the rights of the citizen in defiance of law, so con all; and if one can do it in one particular, all can do it in all particulars. Any interpre tation of law which makes its creature irrespon sible and lawless, is bound to be false, and to lead to the most absurd and disorganizing con clusions. Consequently, it is plain to our minds that the Legislature of Georgia is legally and properly the subject of this decision and any attempt to assert independence of it, will be as illogical as unavailing. A word or two, next, upon the precise char acter of this decision. Negroes are declared el igible to civil office in Georgia by two of the Justices, but on different grounds. Justice Me- Cay affirms it as an original political right, com ing into existence with tho organization of an entirely new body politic in 18C8, in the forma tion of which the negroes exercised equal pow ers and privileges with the whites. Chief Jus tice Brown locates the right inferentially in the Code of Georgia, which was adopted by the Constitutional Convention, and ho admits that this right would be forfeited by the repeal of that provision of the Code, unless it should be authoritatively declared that the words “privil eges and immunities of citizens,” used in the Fourteenth Amendment, and in the Constitution of Georgia, wero intended to, and do embrace the right to hold office. Thus it will be seen that the decision itself would be void, should these provisions of the Code be modified or repealed. But we come now, in the last place, to the facts as they existed and are modified by this decision. What the Northern radicals claimed to be law in Georgia is now made so. The ex pulsion of the negroes they called a second act of rebellion against law by the Georgia rebels, and they have by no means yet abandoned the idea of punishing it by putting the State in the bands of a dictator. Indeed, Mr. Forney in one of bis lato occasional bulletins proclaims Georgia as hopelessly lost to the radicals, un less she can be again ran through the Congress ional crucible and purged by disqualification and disfranebisbment. No well-informed man can have a doubt that the Federal Government is determined to reseat the negroes in the Legislature at all hazards, and that all our opposition will be fntile. The refusal of the Legislature to respect this deci sion of the Supreme Court, will only bring about a legislative purgation by bayonets; but we should care less for that, than to see the Legis lature assume an indefensible and untenable po sition, against an authoritative, though unsatis factory, exposition of the law; or adopt any temporary expedients which would be practical ly unavailing against the the dominant despot- In the midst of all our troubles let us pre serve a respect for law. Let us arm ourselves with patience and look forward in hope to bet ter days. -| y ■ ■ ■ i >WB > — ■— Will Mann res Pay ? A well-known citizen of this place has shown us two stalks of cotton taken from his field on the edge of the city—one from a row not ma nured, and the other from a row manured with about three hundred (300) pounds of Schley’s Georgia Fertilizer per acre. He assures us that they are about the average of the field, the one of the manured, and the other of the unma nured portion. The specimens are of interest mainly in show ing the difference between cotton on the unas sisted land, and that properly fertilized. _ The manured cotton is a very fairspecimen— considering that it is the average of the field— being abont ten inches high, above the ground and having seven well developed forms on it— The nnmonured stalk is not quite half as high and has but one form. Being weighed careful ly, the manured stalk is found to weigh just four and a half times as urach as the unmanured —the one weighing nine sixteenths of an ounce and the other two-sixteenths. Should the same difference obtain in the weight of the lint, it is easy to see whether fertilizers will pay or not. [Americas Courier. “Fence or not to Fence.” The Macon Telegraph wants tho Georgia press to give expression to their views as to fencing stock in or out. It may suit the con venience and wants of Middle Georgia to fence in their cattle and hogs, but will not do for this section. If the people of Middle Georgia wish a law passed to make every man fence in his stock, let them say so; we will not say a word, but as for us, we want the benefit of our broad acres of pine land covered with rich grass.— Dawson Journal. A note was found in the pocket of a recent suicide in England, saying, “Dear friends don’t believe my wife when she says she has not got money to pay for my coffin.” CAM A NEGRO HOLD OFFICE IN y GEORGIA ? Decision and Opinions of the Justices of the Supreme Court of tht Utate. From the Atlanta Intelligencer.'] Mr. JUSTICE H. K. McOAY. The case of Richard W. 'White, plaintiff in error, against the State of Georgia on the rela tion of Wm. J. Clements, defendant in error, comes before this Court on the following state of facts : Wm. J. Clements applied to the Judge of the Superior Court of Chatham connty,alleging that at an election which had been held in that coun ty for a clerk of the Superior Court, he and Rich ard W. White were the sole candidates. That Richard W. White had got a majority of the' votes, bnt that he, Clements, had also got a good many votes and that no other persons were run ning. The petition further stated that Richard W. White had been declared elected, and had been commissioned and was in the actual per formance of the duties of the office, and that Richard W. White was a person of color, having one-eighth or more of African blood in his veins. That therefore under the laws of Georgia he was ineligible to office, and further, that under the laws of Georgia, as White, the person hav ing tho majority of votes was ineligible, he, Clements, having received the next highest number of votes was entitled to the position. Ho prayed the Court for leave to file an infor mation for a quo warranto. To that petition, of which White was notified, he (White) filed a demurrer. Subsequently, however, he with drew the demurrer to that petition, and the in formation 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, re citing in effect the facts which had been recited in Clements’ petition, and calling upon White to show cause why a mandamus absolute should not issue against him, depriving him of the of fice and putting Clements in. White, at the proper time fixedby the information for answer ing, filed a demurrer to the information and at the same time filed an answer denying that he was a person 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 tho issue. When the jury had been sworn, the defendant below—the plain tiff here—called np his demurrer to the infor mation. It is stated in the record that the plain tiff in the information made no objection to taking up the demurrer at that time, bnt con sented; and the court heard the motion as an in dependent motion before the case was sub mitted to the jury. The Court decided that in the argument upon that motion—that demurrer —Clements, the movant in the general proceed- ing.was entitled to open and conclude tho argu ment—that the matter being before the jury the general rale which gives to the party moving in a demurrer the right to open and conclude did not apply. The Court heard the argument on the demur rer and overruled the demurrer. The case then went to the jury on the issue of fact wheth er 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 testi mony. One witness testified that the defen dant, White, was reputed in the neighborhood to be a colored person. Another witness testi fied tnat he, (the witness) was a registrar of voters; that when White registered, he, the reg istrar, 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 hav ing been made to him to have that letter “O" erased or changed. It did not appear, however, that there was any notice to White that this let ter “0” had been placed opposite to his name, nor did it appear that it was*the law or the prac tice 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 officer at all to make that entry. At least it has not so been made to appear to us. This evidence was objected to by tho defense but admitted by the Court. The Court also ad mitted ns evidence the statement by a physician, an examining physician of an Insurance Com pany, that at a previous time he had examined White and had pronounced him a mulatto. There was no testimony by the physician of what his opinion was at the time of the trial The testimony was that at some previous 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 pro posed to introduce a copy of an application for a Life Insurance on the life cf 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 a black man—it gave no indication as to bis color, bnt on the back of it there was an entry by a person who purported to be an examining physician, that White was 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 whether his wife had signed it for him. Objection was made to this paper on three grounds; one, thatitwasa 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 noth ing. Another witness, also a physician, swore that he was a practicing physician, and that he had studied tire science of ethnology; that that science taught men the rales by which the race of a man was ascertained, and this witness gave his opinion npon the point The Court admitted his opinion, that White was a person of color, as being the opinion of an expert The case went to the jury on this testimony. There were 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 information. Thereupon tho Court passed judgment, depos ing White from his position as clerk of the Su perior Court, and declaring that Clements was entitled to hold that office. This case has been argued before us with a great deal of learning and ability. This Court bas agreed upon the jndgment which it will deliver in this case, bnt not upon the reasons upon which this judgment is found ed. The Court will agree that the jndgment in the court below ought to be reversed; this Court being unanimously of opinion that the Court be low erred in various of its rulings on the trial and on the question of the argument on the de murrer. A majority of the Court, the Chief Justice and myself, agree in the judgment that the Court below erred in over-ruling the demurrer, it being our opinion that under the Code of Georgia a person of color is eligible to office in Georgia. My brother, Brown, however, and myself, do not exactly agree npon the grounds npon which we base that judgment. The stat utes of the State of Georgia require that the Court shall agree in the decisions which it mokes—the principle npon which it puts the case which it decides, and as my brother, War ner—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 judg ment. Hence, under the statute, we shall each give a statement of the general principles upon which we assent to the jndgment of this Court. I will, therefore, now read the grounds upon which the whole Court bases its decision, and I shall, also, announce the principles npon which I, myself, hold that the Court below erred. As this is a case of a good deal of public im portance, involving not only the rights of the defendant, and this plaintiff in error, but of a very large portion of the people of tiiis State, and one in which there is a great deal of inter est taken, I have reduced to writing, 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 Constitu tion of the United States, the abstract trath as to the political condition and status of the peo ple of Georgia 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 np to the doctrine that the Constitution and frame of civil Government in existence in this State on the 1st of January, 1861, with all its disabilities and restrictions, was totally submerged in the great revolution which from 1862 to 1865 swept over the State. Early in June, 1865, the Gov ernor of 1860 was in prison at Washington, and there was not in the whole State a single civil officer in the exercise of the functions of his office. The whole body lately acting had been chosen under the laws of the Confederate States, and the incumbents of 1860 had all either died or resigned or renounced their positions as offioers swearing fealty to the Confederacy and repudi ating the Government of the Union. The people of the State were, in the language of the President, without civil 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, restrain ing and directing the exercise of its functions. From that time until the present State Govern ment went into operation, the government cf the State was with more or less completeness in the hands of the military authorities_ of the United States, and the entire ancient civil poli ty of the State, was totally ignored. Directly in the teeth of the old Constitution, the people of color were recognized as freemen, and as en titled to equal legtd and political rights, with the whites. The Convention of 1857 met under the laws of the United States, and was elected and composed in total disregard of all the j) to visions and presumptions, qualifications, disqualifica tions, and distinctions of the old organization. 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 theory then acted upon, they were recognized as form ing an integral part of the sovereign people, then assembled in convention to form for their common 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 constitution then framed, and sworn to support it, is, from the very nature of the case, absolutelyprohibited from recognizing as then or now, in force, either the constitution of 18G0 or 1865, or aqy of the legal or political disabilities or distinctions among the people, dependent upon them or either of them. The convention met under the laws of the United States, to form a constitution for a peo ple without civil government. 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 Convention met under entirely new ideas and new presumptions. It represented a new peo ple—a people among whom slavery had ceased, and among whom black people as well as white were recognized as forming part of the political society, and entitled to equal participation in its rights, privileges and immunities. 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. It is sufficient to state that it is true as a fact, and that the present State Government is based upon it. If, wheD the Convention met in December, |]867, the ancient Constitution of tho State, or any of its legal or political disabilities or dis qualifying distinctions upon persons of color were in force, then the Convention was itself illegal, the present State Government is illegal, this Court is illegal! His Honor, the Chief Justice, has his proper place in the Executive Chair, my respected associate and myself are private citizens, the plaintiff in error is a slave, and the whole political history of the State since the imprisonment of Governor Brown in June, 1865, a gigantic 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 bolding bis office under the present State Government, forming an essential part of its machinery, these views must be of overwhelming force. If he assumes the power to decide at all, he must, it seems to me, base bis judgment upon prin ciples which do not, if adopted in his own case, uttterly subvert bis own authority. I make these remarks with the greatest Refer ence to the integrity and to the sound legal accumen of my associates. Honest men see things in different lights, and it is as presump tuous as it is uncharitable, for one man to set up his convictions as the necessary guide of the conscience of another. These are my con victions, and, as a matter of course, I must act upon them, and accordingly, under the rales prescribed by the Statute ; I announce in 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 registered persons name with a “ C ” to denote that he was colored and had posted his lists for some time in a public place, and that no application bad been made to have the said “C” erased is no evidence that the person is a colored person, it not being shown that the person knew of the entry, and that it was the subject of correction. 2d. 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 insurance, though signed by the applicant, upon the back of wrnch was an entry by the examining physi cian that the applicant was a mulatto, is no evi dence nnless it be proven that the person signed the paper after the entry on it was made by the physician and with knowledge of 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 physi cian, 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 pres- sent opinion, and if not he must state the facts npon which he bases bis opinion. Whether or not one is a person of color, that is, bas 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—Query ? 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 proposi tions. The majority of the Court agree upon this proposition. Where a quo warranto was issued charging that a person holding an office was in eligible, when chosen, because of his having in his 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 an issne and a trial before the jury: held that by the Code of Georgia, a per son 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 overrule the demurrer and to charge the jury that if the plaintiff proved tho defendant to have one- cighth or more of African blood he was ineligi ble 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 separate from the Constitu tion—does make persons of color eligible to office, my opinion is that eligibility is guaranteed by the Constitution of the State, and I announce these propositions as the general principlesupon which my opinion is based. 1st. The Constitution of Georgia, known as the Constitution of 1868, is a new Constitution, made by, and formed for, a people who at the time were, by the facts of the case, and by the laws of the United States, without any legal civil gov ernment and as the people of Georgia, without regard to past political distinctions, and without regard to distinctions of color, participated on equal terms in the election for the Convention, and in its composition and deliberations, as well as in the finnl ratification of the Constitution it framed—in the construction of that Constitution, and in the investigation of what rights it guar antees or denies, such distinctions are equally to be ignored. 2d. The rights of the people of this State, white and black, are not granted to them by the Constitution thereof. The object and effect of that instrument is not to give, but to restrain, deny, regulate and guarantee rights; and all persons recognized by that Constitution as citi zens of the State have eqnal 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 States of the United States, and to their rights as snch citizen#, that it describes a person entitled to every right, le gal and political, enjoyed by any person of that State, nnless 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 statute, or Constitution, have their ordinary signification, unless they be words of art, when they have the sense placed upon them by those skilled in tho art, or nnless their meaning be defined and fixed by law—in which latter case the legal meaning must prevail. 5th. By the 1648th and lG49th Sections of Irwin’s Revised Code, it is expressly declared, that among the rights of citizens is the right tp hold office, and that all citizens are entitled to exercise all their rights as such, unless express- of 1868 expressly adopts said Code as the law of the State, when that Constitution uses the word “citizen,” it uses it in the sense put npon it by the express definition of the Code it adopted. 6th. Article 1st and Section 2d of the Consti tution of 1868, expressly declares that all per sons bom in the United States, or naturalized therein, resident in this State, are citizens of this State, and as the Code adopted by the Con vention, in express terms declares that among the rights of citizens is the right to hold offioe, a colored person born in the United States, and resident in this State, is by that section of the Constitution guaranteed eligibility to office, ex cept when otherwise prohibited. 7th. • Nor would the repeal of those sections of the code, or their alteration, deprive a colored person of tho right guaranteed. Since it is a settled rule that it is not in th6 power of the Legislature to divest a right or change a consti tutional 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 ex press enactment that the principal is of less dig nity or rights than the agent. 9tb. There being in the Constitution of 1868 various special disqualifications of electors for particular offices, and four separate sections de tailing disqualifications for any office, and a black skin not being mentioned as one of these disqualifications, under the rale that the ex pression, etc., of one thing is the exclusion of others, persons of cojor, electors, are not dis qualified from holding office. 10th. There never has been in this State, at any period of its history, a denial in terms of the right to vote or to hold office, to colored per sons as such. By the old law, they were either slaves or frea persons of color, and these rights wero denied them by declaring that they were not, and could not be citizens of the State, and when Article 1st, Section 2d of tho Constitution of 1868, recognized them as citizens, the right to vote and to hold office, except as otherwise provided by the Constitution, was, ex vi termini, also guaranteed to them. 11 th. Ineligibility to office involves not only the denial to the person claiming the place' the right to be chosen, bnt what is of far greater moment, the right of the selecting power to choose; and to make out a case of ineligibility there most be such a state of affairs as estab lished not only the want of power to be chosen, but a denial of power in the'selecting party to choose. ’ . 1 1 ■' 12th. The people of a State, in their collect ive 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 de nied to themselves by their Constitution ; and as the right to select a public officer is a politi cal right, the people, or that branchy of the Government clothed by the Constitution with the power to choose, may select whomsoever it will, nnless the right to* choose a particular peison or class of persons, is expressly taken away by the Constitution. OPINION OF CHIEF JUSTICE BROWN. The view which I take of the rights of the parties litigant in this case, under the Code of Georgia, renders it unnecessary for me to en ter into an investigation 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 cit izens the right to hold office. If the respond entia 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 thepnr- poses of the case at bar, and entitles him to a reversal of the judgment of the Court below, which was adverse to his right. The third paragraph of the 9th article of the Constitution of this State adopts, in subordina tion to the Constitution of the United States, and the laws and treaties made in pursuance thereof ; and in subordination to the said Con stitution 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 book known as Irwin’s Code” ‘except so much of the said several statutes, Code and laws as may be inconsistent with the supreme law herein recognized.” The Code, Section 1646, classifies natural persons into four classes: 1st. citizens ; 2d. res idents, 3d. aliens, 4th. persons of color. Section 46 of the Code declares that, All white persons bom in tbis State, or in any other State of this Union, who are or may become residents dictated by Congress in the formation of her Constitution. She has stopped nothing short, and gonenothingbeyond. The highest jndicial tribunal of the Union, will, no doubt, finally settle the meaning of the terms “privileges and immunities” of the citizen, which legislation can not abridge; and the people of Georgia, as well as those of all the other States, most conform to, and in good faith abide by, arid carry out the decision. All the rights, of all citizens, of .every State, which are included in the phrase ‘ privileges and immunities” are protected against legislative abridgement by the funda mental law of the Union. Those not so em braced, unless included within some other con stitutional guaranty are subject to legislative action. The same rights which the fourteenth amendment to the Constitution of the United States confers npon, and guarantees to, a col ored citizen of Ohio, are conferred npon and guaranteed to every colored citizen of Georgia, bv the same amendment, and by the Constitu tion of this State, made in conformity to the re construction 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 Constitutions make them citizens. And I think it very clear that the code of Georgia upon which alone I base this opinion, which is bind ing upon all her inhabitants while of force, con fer 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 prohi bition 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 JUDGE WARNER’S DISSENTING OPIN ION. Warner, J., dissenting. The defendant is a person of color, having,- as the record states, one-eighth of negro or African blood in bis veins, who claims to be law fully entitled to hold and exercise the duties of the office of Clerk of the Superior Court of Chatham county, and the question presented to our consideration and judgment is, whether a person of eolbr, of the description mentioned in the record, is legally entitled to hold office in this State, under the Constitution and laws thereof? The 14 th amendment to the Constitution of the United States declares that “Allpersons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and the Stats wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of cit izens of the United States. ” The Constitution of this State declares that “All persons bom or naturalized in the United States and resident in this State, are hereby de clared citizens of this State, and no laws shall be made or enforced which shall abridge the privil eges or immunities of citizens of the United States or of this State.” From the time of the adoption of the 14th amendment, and the adoption and ratification of the Constitution of this State, in 1868, the de fendant became, (notwithstanding his color and African blood,) a citizen of the United States, and of this State, and is entitled to have all the privileges or immunities of a citizen. Does the fact that the defendant was made a citizen of the State with all tho privileges or im munities of a citizen thereof, confer npon him the legal right'to hold office in this State as such citizen ? When yon take into consideration the deflation and object of creating an office, and by what authority it is conferred upon a citizen, the distinction between the privileges and immunities of a citizen as such, and his right to hold office will be at once apparent. It will be seen that the privileges and immunities of a citizen as such, is one thing, and that his legal right to hold office as such citizen under the authority of the State, is another and quite a different question. What is an office? “An office,” says Bacon, “is a right, to exercise a public function or employment, and to take the fees and emoluments belonging to it. An officer is one who is lawfully invested with an office. It is said that the word ofiicium principally im plies duty, and the next word place the charge of such duty; and that it is a rale that where one man hath to do with another’s affairs against his will, and without his leave, that this is an office, and he who is in it is an officer. By the ancient common jaw, officers ought to be honest men, legal and sage, ei qut mditis seiant vt pas- sint ofiicis illi intendere ; and this, says my Lord Coke, was the policy of prudent antiquity, that of this State with the intention of remaining ! officers did ever give grace to the place, and herein; all ichite persons naturalized under the not the place only to grace the officer.” 7th laws of the United States, and who are, or may become residents of this State, with the inten tion of remaining herein; all persons who have Bacons Ab. 279—title offices and officers. Black- stone says the King, in England, is the fonntain of honor and of office, and the reason obtained a right to citizenship under former given is that the law supposes that no one can under the Constitution of the United States, by ly prohibited by law; and as the Constitution laws, and all children wherever born, whose father was a citizen of this State at the time of the birth of such children ; or in case of post humous children at the time of his death, are held and deemed citizens of this State. By the Code the distinction is therefore clear ly 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” bnt white persons. Having specified the class of persons who are citizens, the Code proceeds, in section 1648, to define some of the rights of citizens, as follows: I “Among the rights of citizens are the enjoy ment of personal security, of personal liberty, private property and the disposition thereof, the elective franchise, the right to hold office, to ap- ; ieal to the courts, to testify as a witness, to per- I orm any civil function, and to keep and bear arms.” Section 1649 declares that, ‘‘All citizens are entitled to exercise all their rights as such unless speciall prohibited by law.” Section 1650 prohibits females from exercis ing the elective franchise or holding civil office. Section 1651 prohibits minors from the exer cise of civil functions, till they are of legal age. Sections 1652 and 1653 prohibits certain 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 class of natural per sons, designated as persons of color; giving them the rights to moke contracts; sue and be sued, give evidence, inherit, purchase and sell property; and to have marital rights, security of person," estate, etc., embracing the usual civil rights of citizens, but does not confer citizen ship. Thus the code stood prior to its adoption by the new constitution. As already shown, it was adopted in subor dination to the constitution, and must yield to the fundamental law, whenever in conflict with it In so far as the code had conferred rights on tho colored race there is no conflict and no repeal. The constitution took away no right then possessed by them under the code, but it enlarged their rights as defined in the code, by conferring upon them the right of citizenship. It transferred thorn from the 4th class of natural persons, nnder the above classification, who were denied citizenship by the code, to the 1st class, os citizens. The 46th Section of the Code limited citizen ship to white persons. The Constitution struck out the word white, and made all persons born or naturalized in the United States, and resident in this State, citizens, without regard to race or color. It so amended Section 46 of the Code, as greatly to enlarge the class of citizens. Bnt it repealed no part of Section 1648, which de fines the rights of citizens. It did not undertake to define the rights of a citizen. It left that to the Legislature, subject to such guarantees as are contained in the Con stitution itself, which the Legislature cannot take away. It declares expresslyj that no law shall b6 made,or enforced, which shall “abridge the privileges or immunities of citizens of the United States, or of this State.” It is not ne cessary to the decision of this case to inquire, what are the “privileges and immunities” of a citizen? which are guaranteed by the 14th Amendment to the Constitution of the United States, and by the Constitution of this State.— "Whatever they maybe they are protected against all.abridgement by legislation. This is the full extent of tho 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 Legislature. Whether the •‘‘privilege and immunities” of the citizens embrace political rights, includ ing the right to hold office, I need not inquire. If they do, tho right is guaranteed alike by the Constitution of the United States and the Con stitution of Georgia; and is beyond the control of legislation. If not, the right is subject to the con iro! of t he Legislature as the popular voice may dictate ; and in that case the Legislature would have power to grant or restrict it at pleasure, in case of white persons as well as of persons of color. The Constitution of Georgia has gone ns far as the fourteenth amendment has gone, but no farther. An authoritative construction of the fourteenth amendment by the Supreme Court of the United States upon this' point, would bo equally binding as a construction of the Constitution of the State of Georgia, which is in tho same words. be so good a judge of an officer’s merits, and services, as the King who employs him. “From the same principle also* arises the pre rogative of creating and disposing of offices; for honors and offices are in their nature con vertible and 8ynonimons. All officers under the Crown carry in the eye of the law an honor along with them; because they imply a superiority of parts, and abilities, being supposed to be always filled with those that are most able to execute them.” 1st BL Com. 271,’2. Offices (says Blackstone) are a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging, and are also incorporeal hereditaments. 2d Bl. Com. 36.— All citizens of the State, whether white, or col ored, male, or female, minors, or adults, idiots or lunatics, are entitled to have all the privileges and immunities of citizens, bnt it does not fol low that all of these different classes of citizens are entitled to hold office nnder the public au thority of the State, because the privileges and immunities of a'tzens are secured to them. The State in this conntry, as the Crown in England, is the fountain of honor, and of office, and she who desires to employ any class of her citizens inher service, is the best'judge of their fitness and qualifications therefor. An officer of the State as we have shown, “hath to do with an other’s affairs against hit will, and without his leave," and such officers must have the authori ty of the Slate to perform these public duties against the will of the citizen and without his leave. This authority must be conferred upon the citizen by some public law of the Slate, from that class of her citizens, which in her judg ment, will best promote the general welfare of the State.' The right to have and enjoy the pri vileges and immunities of a citizen of the State, doe3 not confer npon him the right to serve the State in any official capacity, until that is ex pressly granted to him by law. Mr. Justice Curtis, in his dissenting opinion in the case of Dred Scott vs. Sanford (19th Howard’s Rep. 5 and 3)says: “So in all the States, numerous persons, though citizens, can not vote, or cannot hold office, either on account of their age or sex, or the want of the necessary legal qualifications.’’ Corfieldvs. Corvell, 4th Washington0. 0. Rep. Sand 1, to the same point. The defendant, therefore, cannot legally claim any right to hold office either under the Fourteenth Amendment of the Constitution of the United States, or the Constitution of this State, which make him a citizen, and guarantee unto him the privileges and immunities of a citizen, for he may well have and enjoy all tho privileges and immunities of a citizen, in the State, without holding any office, or exercising any publio or official duty under the authority of the Stale. The privileges and immunities of a citizen of the State do not confer the legal right to hold office nnder the publio authority of the State, and receive .the emoluments thereof. Does the public law of tho State, recognized and adopted by the Constitution of 1868, (known as Irwin’s Code,) confer npon the defendant the legal right to hold office in this State ? The Code took effect, as thepnblio law of this State, on the first day of January, 1863. By the for. ty-sixth section thereof, it is declared.: “All white persons born in this State, qr in any other State of this Union, who are, or may become resi dents of tbis State, with tho intention of remato- ingherein; all white^persons naturalized nnder the laws of the United States,and who are or may be come residents of this State, with the intention of remaining hereto; all persons who have ob tained a right to citizenship nnder former laws, and all children wherever born, whose father was a citizen of this State at the time of the birth of such children, or in case of posthumous children at the time of his death, are held and deemed citizens of this State. Persons having one-eighth or more of African blood to. their veins are not “ white persons to the meaning of this Code.” The 1646th section declares, that “Natural persons are distinguished according to their rights and status, into 1st citizens, 2d residents not, citizens; 3d aliens, 4th persons of color. The persons to whom belong the rights of citizenship and the mode of acquiring and losing the same, have been specified to a former article (referring to article 46 before cited.) Among the rights of citizens are the enjoyment of personal security, of personal liberty, private property and the disposition thereof, the elec tive franchise, the right to hold office, to appeal to the courts, to testify as a witness, to perform — w — any civil function, and to keep and bear arms. Georgia has complied fully with the terms All citizens are entitled to exercise these right 1 --, as such, unless specialty prohibited hTT" Sections 1647, 1648, 164*, 1650,16 5L {ZJ*»■ j of the Code. V > 1662 .I^| It will be remembered that at the tana -j \ adoption of the Code, in 1853,the def»a.5 ^ root a citizen of this State and wasnotrecnZ.* 1, i by the Gode as a citizen thdtmf. By thav section, the status of the defendant is deffo"? be that of a person of color, and not twfj citizen. The Revised Code, adopted bv fil ? stitotioa of 1868, includes the Act of u i which declares that “All negroes, 4l mistizoes, and their descendants, bavin™ eighth of negro or African blood in their • shall be known, in this State,aspcrxonoofj^* and especially defines their legal rigWlvA' right to hold office is not' one of them ’p - Code, Section 1661. ae ™ It is true that since the adoption of the r the defendant has been made a citizen, h the legal rights conferred upon citizens h Code, were confers!? upon that class of sons only, who weajfiedared and recossi, £a the Code, ascitizenWof the Stale at itsadoption. When the Codes declares that it ■ V be the right of a citizen to hold office snch s2 is confined to that class of persons who cognized and declared thereto, to be Ht’Jf''' the State, and not to any other class of ner who might thereafter become citizens -where the Code declares that “All entided to exercise all their rights as'sni** less prohibited by law," it is applied), r’,? class of persons only, who were declared * 'V citizens of the State at that time, and not* * other class of persons who might durtJu made citizens of the State : such as fy'- Africans, or persons of color. The ' that the publio 'will of the State has neveru expressed by any Legislative enactment vor of the right of colored citizens to ta A; to this State since they became citizens Although these several classes bfpenour be made citizens of the State, with the ileges and immunities- of citizens, stilL could not legally hold office under the autlm of the State until that right shall be comvl upon them by some public la wot the State ~ sequent to the time at which they became ™- zens, so as to include them in its provision! The public will of the State, as to the jl right, of that class of her citizens to hold o~',1 has never been affirm,it icily expressed; hr, the contrary, when the proposition was dista J made to the Convention, which formed the t ent Constitution, to confer the right upoa ored citizens to hold office in this State, it , voted down by a large majority.. [Beti'-I nal of the Convention, page three hundred^ twelve.] So far as there has been any em ion of the public will of the State as to legal right of that class of citizens, knoix colored citizens, and since they became s-Jb hold office to this State, it is against tint ‘ now claimed by the defendant The j mountable obstacle to the way of the defe_. olaimtog a legal right to hold office in this j under the provisions of the Code, is the fact he was not a citizen of the State at the tin* its adoption.. The class of persons to which; belongs were not recognized by it as eiiti and therefore he is not included in any c; provisions which confer the right to hold upon the class of citizens specified in th The Code makes no provision whatever for ored citizens to hold office to this State; ij provisions apply exclusively to white cife and to no other class of citizens. The Cota tion which framed the present State Coi tion and declared persons of color to be cit could have conferred the right upon thee hold office, but declined to do so by a raj; cidedvoteof that body, and went before people claiming its ratification, upon the gr that colored citizens were mot entitled, t* ofiice under it, and there can be no doubt the people of the State voted for its ratine af the ballot-box, with that understanding, noicit is contended that the defendant,^ a colored person, is made a citizen of the Si and of the United States, and that no ei act has ever been passed to allow a natt citizen to hold office in this State—when la. sessed the other requisite qualifications a scribed bylaw; that the defendant, having' made a citizen of the State, is entitled to office in the same manner as a naturalized! zen could do. The reply is, that natal citizens were white persons, and as such, Uj common law right to hold office, a right fosri upon immemorial usage and custom^ which b existed so long that the memory of man rrnc not to the contrary. The 1644th section oi Code simply affirms the common law as to right of a ichite citizen to hold office in t State. No such common law right, however, cis claimed in this Stale, to favor of persons of i or, to hold office. They have but recently a come entitled to citizenship, and have m held ofiice in this State. In 1848, in the cas Cooper and Worsham vs. the Mayor and All men of the city of Savannah, (4th Ga. Et| 72,) it. was unanimously held and decide! this Court, that free persons of color wett entitled to hold any civil office to this State naturalized white citizen can claim his coe law right to hold office in this State. Re ored citizen cannot claim any such commx right, for the reason that he has never eier' and enjoyed it, and that constitutes the ’ ence between the legal right of a n»to ichite citizen to hold office in this State, person of color who has recently beenn citizen “since the adoption of the Cou». who is not embraced within its pr&zidm"^ one can claim his common law right to fcoBj fice in the State,- the other cannot, and ecu: State shall declare, by. some legislative a ment that it is her will and desire thath: ored citizens shall hold office under hit ■ ity, they cannot claim the legal right to & for we must not forget that the State 2 fountain and parent of office, and may ca or refuse to confer the right to hold any class of her citizens she may think F and expedient™ When a new, clctss of persons are ini into the body politic of the State and nui zens thereof who cannot claim u contra right, to hold office thereto, it is incumbs* them to show, affirmativdy, that suchng- 11 been conferred upon them by some of the State since they were made citizens-* 1 of, to entitle them to have and enjoy In other words, they must show the of the State, enacted since they became ff 1 thereof, which, confers the legal rift w before they can demand the judgmed J Court, in favor of such legal aight. All male white citizens of the State, * native bom or naturalized citizens necessary legal qualifications) have a ^ law right to hold office to this State; der to deprive them of that common a prohibitory statute is necessary.. h ff ized citizen . had the common law right. the office of President of the Unite! -, hence the prohibition to the Constituto 3 United States. But as colored oitizeLS - State who have' recently been made not claim a common law right to the State, as no prohibitory statute to deprive them of a right -which they ne under the common or statute law e* “ •’ when, therefore, it is said that have the right to hold office to the specially prohibited by law, it must be "‘■'j firmatively that they YwAprctiouf 'J ™ right If they cannot show their rl §“‘ office to the State, either under tbs law, the Constitution or statutes of ^ the fact that they are not speem f from exercising a right which they amounts to nothing, so far as inctfa'* with the right to hold office JS , < ?,irf When, and where, and by what pnbtt the State was the legal right to hold offl in conferred on the colored ^ti*®? 8 . If this question cannot be answered » j firmative, and the legal autfuority Ma the right is daitned can not be show®) argument that, inasmuch as there is J. prohibition in the law against the ng ored citizens to' hold office, they c® J falls to the ground. If there was vo legal right to hold office to be I, iff fact that there in-no prohibition Aoesf ^ such legal right. There was no leg® to prohibit that which did not exist. Itis not the business orduty of the laws, but simply to expound an .rjjht isting laws, which havo been P res . C !’ 1 supreme power of the State. careful examination of this question, , ly of the opinion that there isno e3a frr,v 1 this State which confers the right up- ored citizens there to hold office the. consequently, that the defendants® , right to hold and exercise the duties o a which he claims under her authority, j judgment of tho Court below overmin 1 * | murrer should be affirmed. “In the distress and anguish of I confess that I see no light ™ fcat** r - not one ray of light to disclose tej-r came into the world, why ^e earth with the dying and the dead, and wn far to all eternity. When I feel th* jti 1 can save them, and yet He does not a . struck dumb. Tt is all dark to my ■ cannot disguise it.”