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Tilt: KHIKIvTON UAXETTK
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rumY, *aiut:so nx* » i**»
S. N. CATWEimit, Ev'vUot
Vh* Stv advertisement *d IV \ Hmivcr
in another pohttuw Krttw wnst K» wade 1
l\ the so-t V«m4\y in next mouth,
th* *mu,
fYww wwm oaw-v the wv.vils Lave wiseur- |
rind 6vr tta Lst Vv\\ day-. wo have ro j
reived v«l WJ sow afVv'K'"*' There |
tvV W U perfect dearth est anything
lAc WOWr* alfovVt, and We «K forced so give
out readera the foutelift of the ojdoiow el
the ‘SttprvWc Court of the Si do oft Georgia |
upon the eligibility question
««► «
ft* V(»>
IK- accident ty hajqvwed to step info the
Yin ?*h"jv el Mi' due S Grown a few
day- since, and was agtevol'y sw(«iW to
ree -neb * qVrutity el excellent nnwrv
ntndo up and ready for 'ale Ho turn enough,
in owe ejsiniow, te supply' tKo wants oft tk
whole country, which he proposes to sell
VOVJ cheap tot Cash This is AU eXwlfofttt
ejrjviUdwwity' to jitvwtv a supply ol such
fo**!*-
sM*xio f'ft.'OtttVgv
\J, V.) a \\ ov, vV i\v ft a VS' rcteOYcd
tVit pIA'Y i'll fousiwOS* to the ist'gO U«d V'lo
,vtd tootw- owt she Store rd S Frunkliu
vV t\v. where they aiv jurepatYd to tVtrnish
all Linds eh Gent lenten V dtvv- goods, u;vu
the Wrest tymmaWt founts.. It ts only
iwsv-saty that. the jethlie should knew tftat
Mi W a's. iiiaii has givvu ftis js-rsowd ntton
tiCU is (W seWthUt V't tftv'it stvvft ot' osssts,
to iii iiiV tftviii tW Jsiiiwas'' sU tfto
VOiiiVs iiiv'ii iii tftv' vV.iiitj W hvi V\i»ft SvOUv'-
iii\V tv' WOi;- J'ft.'J iivit Oiiij Itvjv aU
ftiavjv of 0-.v',t' wftioft tV'J \\;U itufto U(V
to si>ft'i N at'ft.'vi n«Mi»v ftwt tftoy kwp a
?iijijA\ v'ft ivo'Vi i«oft wftioftv
Mtijs ioavft' iiji iii tftvit vitii Sftojv is far sii
jw'vft i io aiiy'vf tfto itv.ii.io wj> at
tfto X'.viift i ativi tfto\ sft'ty vviojwtiiiou in
j'ii\s'A >it M J Matvttx so vvcii anti
tvivii'aftiy VftiiWii to ifto javj'io ot this sot'',
tioii ~a a t'toivfttttU attiia yvattivioai* oi' ov
tiaoiMiOnii ji'.svi tastv atoi
vt\v)vviiixiO s Wiii aiii i\- W fiittiitl iii iVif.tiv
iios' to siijvjviy ftis tiioiivi' attii sifti atstvwuv'is
Xiitft swoft aHioftai as tftoy i»aj aisft hou*
tftis ostaiiiisftiiioiit ft'ot twitftxt jiavtii'iibts,
a«a' axiwttWtttt'tit iii attotiiOt ooittiiiiiv xxftioft
i* iftv to. i iioft a to tfto oftataotot ait4 ijitai
itvaiiotv* ot' a toivioosv wait
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IWOOiX ftxo n'.ftit o ’ sis xxftioft wo ftoiv
otioftv'O was iwwfta tfto j'iiijwxo k »J‘ us
Ot iiiiJ'iViVi tfto vV.'V.iitiott oft tfto
Mi'tftvwi 1 ! m t'ftitu ft yatvi oft tftis jviaoo < attvi
wo wotv ajxjX'viiitv 5 a vaviwiiniitva' tv» ftaitxft tfto
saixi atiWiiiiit oxvt to wti a< tfto j'tv*>of jw'r»
tWitt* tv' isas'ixo ativi iitafto tt'v' ot tfto satuo;
att.l ftavv' it tt'vsi ftot tfto aftovo s'atovl j'm'-
javwx, i'it wft itv'Xv'i iiiiiii'v'i' yottv a«vi tfto
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tft'ii, JstV'l ifou 'ht\' 'Nt'Wiiv; tvv,. vvty fj.v
iMUwk » 'hmsticu h\ "4 he Vaneth.-*'" for
llie p'lip*.*"' "J w Imploring tin
Mrih'Vilrit rifoiivh y vd oft iVi- pftwv.
\\\ Under I" yani v Gwl-lle Sovlcfy. the
Ufoiuh hero, for «**
'iynevwiis n rsMttriihwlfow ; nud will endeavor
that it msy foe v.'iuv.l that it -hall prow
so Ifo living ft' nanfov noil *s *
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Cjv* a N*(io Mold Office is Ocorgia t
Uaaustos ani> OftNioxs or the Josti-
CKS Os Tilt. Si MtEMK Col'KT Os THE
State
IVOS'KvS-VVUH'.VU.V a*'K'*TSt> VOR >'OK TIIS *T
IVNt* IJiTßttierSvKK.
Tfto oase of Kieftarvl VV. White, j>laiutifT
|iu error. aj;aiw»t the State oft tieorvia. on
I tfto rr’.atioa of ftVilliaui S. (.'lorwouls, doiVml
i ant in error, come* before this Court on the
1 ftottowiT j; state of taets :
William J. Clements applied to the Jndgc
| of the Supertoi i'ourt of Chatham county,
i a!ft'oi"o that at an election which had been
i ftv'lvi in tftat county for a Clerk oft the Supe
| rior Court, lie and Ivioftsfrvl M . \\ Kite were
■ ihe sole candidates. That Kichard IV.
| White had a majority oft the votes, but
! that he. Clements, had got a gvX'd niauy
| votes, and no other persons were running.—
j The petition timber stated that Kichard W.
j VV Kite had been declared elected, and had
beeu commissioned and was in the actual
performance ot the duties oft the office, and
that Kichard \Y. White was a person of
! color, having oue'eighth or more of African
I ftftssl in ftis veins. Tftat therefore under
i the laws oft Georgia, he was ineligible to
: ,'rtiev ; and further tftat under tfto laws of
' Georgia as White t!Te person having the
I majority of votes, was iueligible, he, Clem
'tils, having received the next highest num
! her oft vote's, was entitled to the position.—
1 He prawd the Court for leave to tile an iu
t ftormati xi. for ay to tpummto. To tftat pe
j tit ion, vt which White was uotiiied he
| v \V!ute) fried a demurrer. Subsequently,
! however, he withdrew the demurrer to that
: petitietr, arid tire information issued iu the
: name of the State oft* Georgia. ’lhe Court
I passed an order directing the Solicitor Ueit
| oral for tftat Circuit to make out an infor
| uuttion iu the name of the State, reciting in
| effect the facts which had been recited in
| Clements’ petition, aud calling upon Vi hite
i tv' show why a Httttuhtntus absolute should
j tmt issue against him of the office aud put'
j ting Clements in. White, at the proper
; time Sled a demurrer to the information at
| the same time tiled aud answer denying that
j he was a person of color, or that lie had one
j eighth or more ot African blood in his
i veins.
j V>u this the Court summoned a jury for
; the purpose of trying the issue. When the
jury ft ad been sworn, tbe defendant below—
the plaintiff here —called up his demurrer
jto the information. It is stated iu the rc
! eotd that the plaintiff in the information
made no objection to taking up the demur,
■ tvv at that time, but consented; aud the
Court beard the luotiou as an independent
i motion before the ease was submitted to the
jury. The Court decided that in the argu
ment upou tftat rnotiv'U —that demurrer—
! Clements, the movant iu the general pro
ceedings, was entitled to open and conclude
! the argument —that the matter being before
the jury tbe general rule which gives to the
party moving iu a demurrer the right to
open and conclude did not apply.
The Court heard the argument on the de
! wuvrer ami overruled the demurrer. The
ease then went to the jury on the oft
J tael vvftvithei' ov nor held eighth
! er more oft AlViean ftftvid in ftis veins. On
the trial there wen various questions made
is to the testimony. One witness testified
tftat the defendant. White, was reputed in
I the neighborhood te he a eoh red person.
Another witness testified that lie (the wit
ness) was a register ot' voter's ; that when
White registered he, the registrar, had af
fixed ep' ixsite VV bite's name tbe letter “C,”
to denote tftat he was a person est color ; that
he subsequently posted the lists in a public
place, and that they had remained there two
j or three weeks without any application hav
! iug been made to him to have letter “C"
erased or changed. It did not appear, how
ever, tftat there was any notice to White
l that this letter "C" had bee . pine and eppo
j site to Ids name, nor did it appear that it
i was tbe law or the practice that if he had
( applied to have it corrected, that they would
have eureeU'd it; in other wauls that it
was the ; art r the duty ot the officer at all
: to make that entry. At least it has not so
| been made to appear to us
; This evidence "is objected to by the lies
; fence, but admitted by the Court. The
V' 'urt st-o admitted as evidence the state
i moot bv a ph'riekui, an examining physi
cian oft an Immanec Company, that at a
previous t'me‘ ho had examined White and
bad pKmie.tuot.d him a mulatto. There was
i no tcsUin my by the phy.-ioian of what ft's
j opinion was at the tun ■ of the trial. The
testimony was • Hut at -one previous time
i he had examined hint and was at that pre
; vious time, of opinion that lie was amul.'.Uo.
tu the further progress of the trial they
j proposed to introduce a copy of au appliea
j tion for a Life Aisuruneo on the* life of
i White iu favor of his wife, which applies
; ttou purported to be signed by White. The
! application doe- not seem to have had a
I word in it as to whether White was a white
tnan er Mack a; :e ; it gave no iudicatfoa as
to Ins color, hut on the huh of it there was
au entry by n person who purported to be
an examining physician, that White was a
ufulutio. The witness swore at first that lie
thought White signed the paper, but sware
afterward- that he didn't know whether
White had signed it or whether bis
wife had signed for him. Objection
was made to tin-paper on three grounds;
one, that it was a eopy paper, though it was
provost that the original was in New York;
i tbe other that there was r > proof that the
j ji'ginat had been executed; and third that
iu any event the paper amounted to nothing
Af'ther witness, also a physician, swore
! that he was a practicing physician, and that
i he had studied the science of ethnology;
i shat that science taught meu the rules by
j which the wee of a tuan was ascertained,
laud his witness gave his opinion upon the
; point. The Court admitted his opinion,
, that White was a person ot color, as being
! the opinion ol an expert. The ease went
itu the jju>y n this testimony. There were
some objections to the charge of the Court
1 which we, however, have not noticed, be
e:l use we didn't think the point very mate
rial. The jury found for the pkiutifi'in the
to lor mat ion. T hereupon the Court passed
judgment, deponing White from his position j
as Clerk of the Superior Court, and do- i
o' wirg that-Clements was entitled to hold
that office, I
This oise has been argued before us with j
a rat deal ot {earning and ability.
'Phi- Court La* agreed upon the judgment
which it will deliver iu this ease, but not,
upon the reasons upon which this judgment
is founded. The Court all agree that the
judgment in the Court I>eiow ought to be
reversed; this Court being unsnimously of
opiuiou that the Court below orred in vari
ous ot its rulings on the trial aud on the
question of their argument on the demurrer.
A majority of the Court, the Chief Jus
tice, :'.uvi myself, agree in the judgment
that the Court below erred in overruling the
demurrer, it being our opinion thin under
the Code ot Georgia a person ot color is
eligible to office in Georgia. My brother
Brown, however, 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 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 1 put mine upou a
third, we are unable to agree upon a state
ment of the general principles upon which
we put our judgment. lienee, under the
statute, we shall each give a statement of
the grouud upon which we assent to the
judgment of this Court.
I will, therefore, now read the grounds
upon which the whole Court bases its de
cision; the ground upon which the majority
ot the Court bases its decision, aod 1 -.bjjll
also announce the principles upon widely /
myself, hold that the Court below erred. *■
As this is a case of a good deal of public
importance, involving not only the rights of
the defendant and this plaintiff in error, but
■of a very large portion of the people of this
State, and one iu whicn there is a great deal
ol interest taken, L have reduced to writing,
iu detail, my opinion : aud I will preface
the reading of the judgment of the whole
Court, with some written remarks —prefer-
ring to do that rather than make a parole
introduction.
Whatever may have been under thqjCjm
st'tutiou of the United States, the abstract
truth n? lo the political condition and status
of the people of Georgia at the close of the
latoffrar, from the standpoint of a mere ob
server, 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
I eruuicnt iu existence in the State ou the
Ist of January, 1861, with all its disabilities
and restrictions, was totally submerged in
the great revolution which from 1861 to
11865 swept over the State. Early ir Juno,
1865, the Governor of 1860 was in prison
at Washington, and there was uot, in the
whole State, a single civil officer in the ex
ercise 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 rcnouncfd their
positions as officers under the Constitution
of the United States, by swearing fealty to
the Confederacy and repudiating
ernment of the Union
The people of tho States were, in the
language of the President, without civil
government ot any kind—iu anarchy. The
State, as a State of the /'Vdeval bnUp!,stiH
existed, but with ait any ifratno fff iiji gov
j eminent regulating, restraining and ureet
| iug the exercise of its functions. Prom
j that time until the present State govern
| ment went into operation, the govefnincnt
of the Statu w » with more or less complete
[ 111 vs in the builds of the military authorities
j of the U. S., au 1 entire ancient civil polity of
j ;be State was totally ignored, l'irectiy in
j the teeth of the old constitution, the people
| ol color were recognized as freemen and as
J entitled to equal legal and political rights
j with the whites. The Convention of 1867
| met under the laws off the United States,
I and was elect'd and composed in total dis
i regard of all the provisions and pvesump
! tions, qualifications, disqualifications and
t distinctions ot the old organization,
j The black people participated in its elec-
I tion, and in its composition, on equal terms,
i in theory at least, with the white, and no
tfting can to my mind ho plainer than that
by the whole theory then-acted upon, they
were recognized as forming an itegral part
of the sovereign people, then assembled in
convention tu form for their common benefit
a constitution and frame of civil government.
Such bcitiu the facts of the ease, 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, absolutely prohibited
from recognizing as then or now, in force,
either the constitution of 1860 or 1865, or
any of the legal or political disabilities ov
distinction amoug the people, dependent
: u r ""’ 11 >:t or cither of them.
; The < ’iu'volition met under tire laws of
! the t nitefi States to form a constitution for
! a people without civil government.
It had nothing to repeal, nothing to mod
ify, nothin? to grant. None of tlicold con
stitutions of the Slate were at the time in
operation—the Convention met under en
tirely new ideas anil new pvcSUntptioDs. It
a new people—a people a.oong
whom slavery had ceased, and among whom
black people as well as white were recog
nized as forming part of the political society
and entitled to equal participation iu its
rights, privileges and immunities.
It is not necessary, for the purposes of
this argument, that this theory shall ho
proven to have been a legal onp under, the
Constitution of the United States. «lt is
sufficient to state, that it is true as a fact,
and that the present State goverment is
based upon it.
If when the Convention met in Decem
ber, 1867, the ancient constitution of the
State, or any of its legal or political disa
bilities ov disqualifying distinctions upon
persons of color were of force, then the
convention was itself illegal, the present
government is illegal, this Court is illegal '!
His Honor, the Chief Justice, has his prop
er place in the Executive Chair, my respect-,
ed associate and myself are private citizens,
the plaintiff in error is a slave 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 j
not directed : but it seems to me, that to a |
Judge holding his office under the present
State government forming an essential part ;
of i's machinery, these views must he of;
overwhelming force. If ho ns-umes the
power to decide at all, ho must it seems to
me. base his judgment upon principles which I
do not, it adopted in his own case, utterrly
subvert his own authority.
I make these remarks with the greatest
deference to the integrity and to the sound
legal acumen of my associates. Honest
men sec things in different fights, and it is
as presumptuous as it is uncharitable, for
one man to set up his convictions as the
necessary^ideof the conscience of anoth
er. These are my convictions, and as a
matter of course, I must act upon them,
and accordingly, under the rules prescribed
by the Statute, I announce, as the general
principles, controlling my judgment in this
case, the following:
BY TIIE WHOLE COEItT.
Ist. The statement of a registrar of
voters that he had marked a registered
person’s name with a “0” to denote
that he was colored and had posted
hip list lor some time in a public place
and that no application had been made to
have the said “C” erased, is no evidence
that the person is a colored person, it uot
being shown that the person knew ot the
entry, and that it was the subject of correc
tion .
2d Although a copy of a paper proven
to be beyond the jurisdiction of the Court
in good secondary evidence of its contents,
yet it must be shown that the original was
duly executed.
Sd. An application for a life insurance,
though signed by the applicant, upon the
back of which was an entry by the examin
ing physician that the applicant was a mu
latto, is no evidence unless 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 in
tent 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 examing
physician, that he had at a certain time ex
amined a person aud had been of the opin
ion that the person was a mulatto, is not
evidence. If the phys’eian is an expert he
lintst 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 wit
ness may give his opinion if he state the
facts upon whicli it is based. But whether
the fact that he has one eighth or more of
such blood, bo matter of opinion or not —
Query 'i
sth. One who testifies that he has stud
ied 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 ot reputation among
those who know the person whoso pedigree
or race is iu question.
The whole Court agree upon those prop
ositions.
The majority of the Court agree upon
this proposition. Where a quo warranto
was issued charging that a person holding
an office was ineligible, when chosen, be
cause of bis having in his veins one-eighth
or more of African blood, and there was a
demurrer to the information as wolf as an
answer denying the fact upon wliicji denial
there was au isaue and a trial before the
jury : held that ly the Code of Georgia, a
person having one-eighth or more of Afri
can blood in bis veins is uot ineligible to
office in this State, and it was error in the
Court to overrule the demurrer aud to
charge the jury that if the plaintiff proved
the defendant to have one-eighth or more
of Afiieau blood he was ineligible te office
iu this State.
DECISION OE COURT AS RENDERED BY
JUSTICE M'CAY.
Whilst / agree that the Code of Georgia
—the law of Georgia, as separate from the
constitution—does make persons of color
eligible to office, my opinion is that clegi
bility is guaranteed by the constitution of
the State, and l announce these propositions
as the general principles upou which soy
opinion is based :
Ist. The Constitution of Georgia known
as the constitution of 1868 is anew consti
tution, made by and formed for a people
who at that time were by the facts 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 without re
gard to distinctions of color, participated on
equal terms in the election for the Conven
tion, and in its composition aud delibera
tions, us well ns in the final ratificatiop of
tbe constitution it framed—in the construc
tion of that constitution, and in the investi
gation of what rights it guarantees or de
nies, such distinctions are equally to be ig
nored.
2d. The rights of the people of this
State, white and black, are uot granted to
them by the constitution thereof. The ob
ject 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 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 refer
ence to the citizens of the separate States
of the United States and in their rights as
such citizens, that it describes a person en
titled to every right, legal and political, en
joyed 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 ques
tion.
4th. Words used in a statute, or constitu
tion have their ordinary signification, unless
they be words of art, when they have the
sense placed upon them by those skilled in
tbe art, or unless their meaning be defined
and fixed by law—in which latter case the
legal meaning must prevail.
•sth. By the 1618th and 1649th sections
of Irwin’s Devise Code, it is expressly de
clared that among the rights of citizens is
the right to hold office, and that ail citizens
are entitled to exercise all rights ns such,
unless expressly prohibited by law;
and as tbe constitution of 1868 ex
pressly adopts said Code as the law of the
.State, when that constitution uses the word
“citizen,” it uses it. in tbe sense put upon it
by tbe express definition of the Code it
adopted.
6th. Article Ist and section 2d of the
constitution of 1868 expressly declares that
all persons born iu the United States, or
naturalized therein, resident in this State,
are citizens of this State, and as the Code
adopted by the Convention, in express terms
declares that among the rights of citizens
is the right to hold office, a colored person
born in the United States, and resident in
this State, is by that section of the constitu
tion guaranteed eligibility to office, except j
when otherwise prohibited.
7th. Nor would the repeal of those sec- j
tions of the Code, or their alteration, dc- ;
prive a colored person of the right thus j
guaranteed. Since it is a settled rule ;
it is not in the power of the Legislature to
divest a right or change a constitutional \
guarantee by altering tbe legal meaning of ,
the word by which that guarantee was made, j
Bth. The right to vote involves the right
to be voted for unless otherwise expressly
provided since it is not to be presumed with
out an express enactment that the principal
is of less dignity or rights than the agents.
9th. There being in the constitution of
1868 various special disqualifications of
electors for particular offices, and four sepa
rate sections detailing disqualifications for
any office, and a black skin not being men
tioned as one of these disqualifications, un
der the rule that the expression, &e., of odc
thing is the exclusion ol others, persons of
color, electors, are not disqualified from
holding office.
10th. There never has been in this State,
at any period ot 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
be citizens of the htate, aud when article Ist
sectiou 2d of the constitution of 1868, re
cognized them as citizens, the right to vote
and to hold office, except as otherwise pro
vided by the constitution, was, ex vi ter
termini, also guaranteed to them.
lltli. Ineligibility to office involves not
only the denial to the person claiming the
place the right to be chosen, but, what is of
far greater moment, the right of the select
ing power to choose ; and to make out a case
of ineligibility there must be such a state
of affairs as established uot only the want
of power to be chosen, but a deuial of pow
er in the selecting party to choose.
12th. The people of a State, iii their
collective capacity, have every right a politi
cal society can have, except such as they
have conferred upon the Ouited States, or
on some department of the State govern®
ment, or have expressly denied to themselves
by their constitution; and as the right to
select a public officer is a political right, the
people or that branch of the government
clothed by the constitution, with the power
to choose, may select whomsoever it will,
unless the right to choose a particiular per
_son or class of persons, is expressly taken
away by the constitution.
OPINION OF CHIEF JUSTICE BROWN.
The view which 1 take of the rights of
the parties litigant in this case, under the
Code of Georgia, renders it necessary for
me to enter into an investigation of the ques
tion, whether tfto Fourteenth Amend,ment
of the Constitution of the United States, or
second section of the first article of the Con
stitution of Georgia, which in substance is
identical with the Fourteenth Amendment,
confers upon colored citizens the right to
liokl office, /f the respondent in this case
acquires the right by grant found ;ti either
of the said constitutions, or iu the Code of
this State it is sufficient for all the purposes
of the case at bar, and entitles him to a re
versal of the judgment of the Court below,
which was adverse to his right.
The third paragraph of the 9th article of
the constitution of the United States, and
the laws and treaties made in pursuance
thereof, and in surbordiuation to, the said
cou.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
knowu as Irwiu’s Code” “except so much
of the said several statutes, Code, and laws
as may be Inconsistent with the supreme law,
herein recognis&d.”
The Code, section 1640, classifies natural
'persons into four classes : Ist citizens ; 2d,
residents ; 3d, aliens ; persons of color.
Section 46. of the Code declares that : All
white persons born in this State or in any
State of this Union, who are or may be
come residents of this State, with the inten
tion of remaining herein ; all white persons
naturlized under the laws of the United
States, and who are, or may become, resi
dents of this State, with the intention of
reinaing herein ; all white persons natura
lized under the laws of the United States,
and who are, or may become residents of th s
State with the intention of remaining here
in ; all persons who have obtained a right to
citizenship under former laws, aud all chil
dren wherever born, whose father was a citi
zen of this State at the time of the birth of
such children ; or in case of posthumous chil
dren at the time of his death, arc held aud
deemed citizens of this State.
* By the Code the distinction is therefore
clearly drawn between citizens who arc
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 arc citizens, the Code
proceeds, in Section 1848, to define some
of the rights of citizens, as follows:
“Among the rights of citizens arc the
•enjoyment of persona! security, of personal
liberty, private property and the disposition
thereof, and elective franchise, the right to
hold office, to appeal to the Courts, to testi
fy as a witness, to perform any civil func
tion, and to keep and bear arms.”
Section 1649 declares that, “All citizens
are entitled to exercise all their rights as
-uch unless spec'ally prohibited by law'.”
Section 1650 prohibits females from ex
ercising tbe elective franchise, or boldiug
civil office.
Section 1651 prohibits minors from the
exercise of civil functions, till they arc of
legal age.
Sections 1652 and 1653 prohibit certain
criminals, aud persons non compos mentis,
from exercisiug certain rights of citizens.
Article 3, chapter 1, part 2, of the Code
defines the rights of the fourth class of na
tural persons, designated as persons of color;
giving them the right to make contracts;
sue and be sued, give evidence, inherit, pur
chase and sell property ; aud to have mari
tal rights security of person, estate, <f e.,
embracing the usual civil rights ot citizens,
but dues not confer citizenship. Thus the
Code stood prior to its adoption by the new
constitution.
As already shown, it was adopted, in
subordination to the constitution, and must
yieid to the fundamental law whenever iu
conflict with it. In so far as tbe Code had
conferred rights on the colored race there
is no repeat. The constitution took away
no right then possessed by them under the
Code, but it enlarged their rights as defined
it in the Code, by conferring upon them the
right of citizenship. It transferred them
from the fourth class of natural persons, .ol
der the above classification, who were <ten .
ied citizenship by the Code, to the first class,
as citzeus.
The 46th sectiou of the Code limited
citizenship to white persons. The constitu
tion struck out the Y’ord white, and made
all persons born or naturalized in the United
States, aud residents in this State, citizens,
without regaru.to race or color. 7t so amend
ed section 46 of the Code as greatly to en
large the class of citizens. But it repealed
no part of section 1848, which defines the
rights of citizens.
it did uot undertake to define,the right of
a citizen. It left that to the Legislature, sub
ject to such guarautces as are contained
in the constitution itself, which the Legis
lature cunnnot take away. It declares ex
pressly that no law shall be made or enfor
ced which shall “abridge the privileges or
immunities 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 Jand immunities” of a citizeu ?
which tiro guaranted by the Fourteenth
Amendment to the Constitution of the Unit
ed States and by the constitution of this
State, Whatever they may be, they
are protected against all abridgement by leg
islation. This is the full extent of the con
stitutional guarantee. All rights of the
the citizen not embraced within these, if
they do not embrace all, arc subject to the
control of the Legislature.,
Whether the “privileges and immunities”
of the citizen embrace political rights, in
eluding the right to hold office, I need not
now inquire. If they do, that right is guar
anteed alike by the Constitution of the
United States, and the Constitution of
Georgia, and is beyond the control of le
gislation. If not, that right is subject to
the control of the Legislature as the popu
lar voice may dictate ; and in the Legslaturc
would have power to grant or restrict it at
pleasure, iu case of white persons, as well as
of persons of color. Tbe Constitution ot
Georgia has gone as far as the Fourteenth
Amendment liasgone, but no further. An au
thoritative construction of the Fourteenth
Amendment by the Supreme Court of the
United States upon this point, would be
equally binding as a eousttuction of the
Constitution of the State of Georgia, which
is in the same words.
Georgia has complied fully with the terms
dictated by Congress in the formation of
her constituttion. She has stopped nothing
beyond. 'The highest judical tribunal of
the Union will no doubt finally settle the
meaning of the terms “privileges and inis
munities” oftbo citizen, which legislation
cauuot abridge ; mod the peoplo-of Georgia,
as well as those of all the other .Mtnt.es. must
conform to. and in good faith abide by, and
carry out the decision. AU the rights,. *4
all the citizens, of cvcty State, v.hitlv litte
included in the phrase “against legislatix.-*'
abridgment by the fundamental law or the
Union. Those not so embraced, unless in
cluded within some other constitutional
guaranty are subject lo legislative artier.
The same rights Which the /'buriernth
Amendment to the Constitution of the
United States eotilcrs upon, aud guaranties
to, a colored citizen of Ohio, are conferred
upon and guaranteed to cvcty colored citi
zeu of Georgia, by the saint- amcndinc.nl,
and by the Constitution of this State, made
in comfurmity to the Reconstruct;nus acts
of’ Congress.
Whatever may or may not be tlie privile
ges and immunities guaranteed to the color
ed race, by the Constitution of the United
States, and of this State ; it cannot be ques
tioned that both constitutions make them
citizens. And I think it very clear that
tiie Code of Georgia, upon which alone I
base, this opinion, which is binding upon all
her habitants while of force, confers upon
all her citizens the right to hold office, un
less they are prohibited by some provision
found in the Code itself. I find no such
prohibition in tbe Code affecting, the rights
of this respondent, f am, therefore, of the
opinion that the judgment of the Court be
low is erroneous, and 1 concur in the judg
ment of reversal.
(The able dissenting opinion of Mr. Jus«
tice Warner is this morning crowded out,
but will appear to morrow.]
Political Martyr—Gov. Scott, of
South Carolina, Explains Why he is
Governor.—Being introduced, while in
Cincinnati, to the gentleman who signs him
self as above, and being impressed with his
tine appearance and pleasant manners, we
wondered why a man who comported Himself’
so agreeably could find the amount of pure
brass necessary to fit him for tiie position
of carpet-bag Governor. To satisfy our
curiosity on this point we approached the
subject as delicately as possible, and after
politely explaining the favorable impression
tie had made upon our mind, we said to
him :
“Now, Governor., T would really like to
know how you, a native of Pennsylvania and
a citizen of Ohio, can have the cheek—ex
cuse the slang phrase, but it is expressive,
aud not intended to offend—to set yourself
up as Governor of the proud, aristocratic
Btate of South Carolina and wear the honors
and emoluments of the office without bli’sh
ing.”
“Well,” was the answer, “I have no doubt
that from your stand-point I must appear in
an unenviable light-very much like a fcouii
drcl, in fact. But this is my side of the
story ; 1 was taken to South Carolina against
my will, having been captured during the
war. I liked the State, and at the close of
the war I invested largely in real estate
and settled among tbe Carolinians. 7 did
not desire the position ol'Governor, and was
induced to take it only by the earnest en
treaty of many of the native citizens, who
merely preferred me to other carpet-baggers.
1 am now a bona fide citizen of (he State,
and am hereto advance her interests by se
curing, if possible, another railroad conuee
i tion with the North and West.” — Pm-is. free
' Kentuckian, 26 ih.