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Tilt: KHIKIvTON UAXETTK ■n m ■ J 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 .. wv 'V i» iiii'O iv\ I St*tt Mi t i \t : \ v a ftv iit M»SWKv Kmj' ft' .vet \t a iiivvtiit.' oi tfto ftK ivitoti \ .Oiv iix's ii't a ft'iuvioit ot 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 t'ftiiivft .'liitftoiitiv's yoiiv't'ait\'\ Htij tftittk is 't \v t\ i\\\sjwa'thi!t>i\ \ viii'S it \V HKAHW\ t ft!Uv) JJ \ HttKHftt ft' - tV» M K G\KJM\U!L \ NmWW>B\ G v . HiiW tß''U V \\V hiW the J'h tVUiV to S' kii"\\h and 'v 'A.' iv .V'pt ot'y.'Wf ».‘»i»iwi«e:v 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 * ivajn'vl G' ih. I maud dv-tnl Wv tkiV yvnifS, Wry Kv^jw'ifolly„ J K AUUV iMiftlft. ÜBSTKK. IV \fo t' G VV iMAIiyVXVAiG U* A I ’ . ' \ U-n ♦ •**> * IV- - -sa tl'-v (Ww £tx-.\* tV iuivU tiiiaal JXtftma Xv4*ti\V' ttv» X.hv «kW»U'Sjt»l teWttoa at tW i * Uw«« fvav. .5 tsvs,t aa atUvV, wjttM K j tw*tw> m xW }x'a&i»-.x!| Tlwaurv «* (Kv v vw- I'd' XV x4iVXkv:\ V«5 |W vVM* i >**X a sfcVjjaXt."* X* ibc j-iv- i I'H*' !M*4 silt' -.5 tl-WS ■'*.*? ',.' Jktt.uk \x-.'«M wji.sv YW I'ojwtWwsa j»jw» svxu'ty.% fUch sVltll tfcv WS<VX« tv tkl' WoX. X'ttf HaVC Wvt a XV.-'V-S vdl v-.ifeta*«MW« tW i*v'\» XV. I\>k- W»\X\ X>,ti.•■»' fci&MaV ' : ''\v vkj'J . ('-> tv> thtf »u>- XU'tN' Wuiv. HSU ki ;ii;v' Jtnsuo XXMKW* Hi' tW tii.'X-v A**V*« Xfc-.' X' attffiWa . ‘s-vtxsl i» :a. ' Mwl 1 ■ I- ;alt f»wxl« tXu : .tiai xis xta xvaatirjj »' tic Kosul | IVAIM' *1 <W \»5UM|' kH H iM sUk t t'.v t.-utvr ' at Willamf' XX** .if »*•-.' v '..o:\ tt’wJ j ,\).fc nav* a xrar iw t*.> >« v »•* a W«t< i »«** <X\ Dut Tinst X»v\. Rwlta V ;,. ...st tir-; j jirsTat* a«uiw*s % a'-ssU **4 uusM‘*sp.-<tv ti» • iW ’yWi." t«.x *<*w* V'.' Xwixi tV> ?V«-tls j sif»Xa\y **xt. Vt t\*t ns.v'iu. W w»!t k-st- ; i|,aTi'ttiiW»s.' nWK'ljs-.ifj vx it* I civt Os 4 tV:.- 5 \:sl i ■»■•:'■'. v v ••' ' '•.' *•' ' ' a ; »U * .. ' 'IVY ♦ v - * V"*> AV -x . 1 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.