CAN A NEGRO HOLD OFFICE IN GEORGIA?
DKCIDED IN SUPREME COL-RT or GEORGIA, JUNE TERM, 1SG9.

ARGUMENTS OF COUNSEL-,

WITH THE OPINIONS OF THE JUDGES. A!ND

THE DECISION OF COURT

Di THE CASE OF

RICHARD W: WHITE,
CLXRK OF 3UPKIHOR COURT OF CHATHAM CO., .
Plaintiff in. Er.ror'}
VERSUS
THE FTATB OF GEORGIA, f
WM. J. CLEMENTS,
Defendant in Error.

QUO WAKHANTO. CHATHAM.

J PHOTOGRAPHICALLY REPORTED
BY

t DAELY

ATLANTA, GA.:
CB BOOK AND JOB OFFICE.
1869.

SUPREME COURT OF GEORGIA,
TERM:, i860

HON. JOSEPH E. BROWN. CHIEF JUSTICE. HHOoNx.. HH.IRKA. MMcWCAAYR,NER, [) A. SSOCIATE JUSTICES.

RICHARD W. WHITE,

-^

Clerk of Superior Court of Chatham County.

I

Plaintiff in Error. \

VS.

U

The State of Georeia. Ex Relatione

WM. J. CLEMENTS,

Defendant in Error, j

Quo Warranto. C7iatham.

SUPREME COURT CHAMBERS, ATLANTA, GA., June 9, 1869.
COL. A. W. STONE, in opening the case on behalf of the plaintiff in error, read the record of the Court below, which is as follows:

GEORGIA,

)

CHATHAM COUNTY, j

To the Honorable the Judge of the Superior Court, of said-
County :
The Petition of William J. Clements, a free white citizen of the said Countj of Chatham, respectfully shows, that he is above the age of twenty-one years, and in every other respect eligible to, and qualified to hold the office of Clerk of the Superior Court of the said County of Chatham, ac cording to the laws of Georgia; that at an election held in said County of Chatham on the 21st, 22d, 23d and 24th days of April, eighteen hundred and sixty-eight, for a Clerk of the Superior Court of said County of Chatham, pursuant to law, one Richard W. White, a person of color, and your petitioner, were the only persons voted for by the Electors; that the said Richard W. White, a person of color, received the highest number of votes, and was rnrnrnjagirnnrijtjyiTirh Clerk, and is in the discharge of the
LIBRARIES'

the rights and powers, and receiving the emoluments inci dent and attached to said office. And your Petitioner fur ther shows, that the said Richard W. White is a person of color, and has in his veins one-eighth of negro, or African, blood, and was consequent]y ineligible to the office of Clerk of said Court, and was. and still is, incompetent and unable, under the laws of Georgia, to hold said office.
And your Petitioner further shows, that by Section 121 of the Code ol Georgia, it is enacted "that if at any popu lar election to fill any office the person elected is ineligible, the person having the next highest number of votes, who is eligible, whenever a plurality elects, shall be declared elected, and be duly qualified and commissioned to such office; that your Petitioner was at the time of said election eligible to said office, and that a plurality elects in such election.
Wherefore your Petitioner prays the leave of your Honor to file an information in the name of the State, in the nature of a quo warranto, calling upon the said Richard W. White to show by virtue of what right or law he holds the above mentioned office, and why he should not be amoved therefrom and your Petitioner duly declared elected, and be qualified and commissioned as Clerk of the Superior Court of the County of Chatham for the term, for which said Richard W.
White has been commissioned. And your Petitioner will ever pray, &c. WM. J. CLEMENTS. T. E. LLOYD, Attorney.

Personally came before me, William J. Clements, who, f

being duly sworn, deposes and says that the facts set forth

in the above Petition are true.

Sworn to before me this January 22d, 1869.

HENRY S. WETMOKE,

WM. J. CLEMENTS.

Ordinary Chatham Co., Ga.

GEORGIA,

}

CHATHAM CCUNTY. \ >

On reading the above Petition and Affidavit it is ordered that the said Richard W. White, now acting as Clerk of the Superior Court of Chatham County, do show cause before me, at the Court House, at Savannah, in said County, at eleven o'clock, A. M., on the 26th day of January, 1869, Why go information in the nature of a quo warranto should ndt be filed against him as prayed for in said Petition, and

5
that a copy of the Petition Affidavit and this order be served on the said Eichard "W". White at least three days before said last mentioned day.
W. SCHLEY,
Judge Superior Court East. Dist. Ga. January 22, 1869.
Filed this January 22, 1869. GEO. WASHINGTON WILSON, Deputy Clerk S. C. 0. C.

SHERIFF'S OFFICE, ) CHATHAM COUNTY, January 22,1869. j

I have this day served a copy of the within Petition, Affi

davit and Order, personally, upon Richard W. White, the

within named Defendant.

The return of

ISAAC RUSSELL,

Deputy Clerk C. C.

CHATHAM COUKTY SUPERIOR COURT,

JANUARY TERM, 1869.

In Re, The Application of

' WM. J. CLEMENTS,

For Leave to File Quo Warranto,

vs.

I

R. W. WHITE.

J

In the above matter it is declared that the Petition be granted, and that the Solicitor General of the Eastern Dis trict of Georgia do file an information in the nature of a Quo Warranto at the relation of Win. J. Clements, calling on the said Richard W. White, acting as Clerk of the Supe rior Court of Chatham County, who is alleged to be a per son of color, having in his veins one-eighth or more of African or negro blood, to show, twenty days after the ser vice on him of a copy of said Quo -Warranto, before the Judge of said Superior Court, at the Court House, at Sa vannah, at 10 A. M., by what warrant or right of law, he holds said office and discharges its duties and receives the
emoluments thereof. Order granted February 4rtb, 1869.

CHATHAM SUPERIOR COURT,

Y TERM, 1869.

STATE OF GEORGIA,

Ex liel. Wm. J. Clements,' Is

rt/Oc*

1I

RICHARD W . WHITE. J

^Quo AWTr arrant,o. **

In the above cause the Respondent having filed an answer

raising an issue of facts, it is ordered that the same be tried

bv a Jury on the twenty-second day of March, 1869.

*

7i, 1869.

GEORGIA,

\

CHATHAM COUNTY, j

SUPERIOR COURT, JANUARY TERM, 1869.

Alfred B. Smith, Solicitor General of the Eastern Judicial District of Georgia, who sues for the State of Georgia, in this behalf, comes here into the Superior Court of Chatham County, in said Eastern Judicial District, before the Judge thereof, on the Fourth day of February, 1869, being in the January Term of said Court; and for the said State of Georgia, at the relation of William J. Clements, Esq., of said County and State, according to the law in such case made and provided, gives the Court here to understand and be informed, that at an election held in said County of
Chatham, on the 21st, 22d, 23d and 24th days of April, 1868. for a Clerk of the Superior Court of the said County
of Chatham, the said William J. Clements was the only eligible and qualified candidate who was voted for; that one Richard W. White, a person of color, having in his veins one-eighth or more of negro or African blood, received more votes than said Clements, but that White was and is ineli gible to, and disqualified from holding, said office by reason of his being, as aforesaid, a person of color, having in his veins one-eighth or more of African or negro blood; and consequently, said Clements, being a white citizen, over the age of Twenty-one years, and eligible to, and qualified to hold, said office, is entitled to discharge its duties, exercise its powers and rights, receive the fees and emoluments arising from it, and to the occupation ., custody and control

of the offices, rooms, books, papers, and all other things connected with, or belonging to, said office; but that the said White for four months and more last past lias used and exercised the said office of Clerk, discharged its duties, and received its fees and emoluments, to wit, in said County of Chatham, at the Court House, in the City of Savannah, and that the said White, a person of color, for and during all the time last above mentioned, without any legal warrant, grant or right whatsoever, at the City of Savannah, and in said County of Chatham, has claimed, and still does claim, to be the Clerk of the Superior Court of said County of Chatham, and to have, use and enjoy all the liberties, privi leges and franchises to the office of said Clerk belonging and appertaining: which said office, with its liberties, privi leges and franchises, he, the said Richard W. White, a per son of color, has usurped and still doth usurp, at Savannah, in said County of Chatham, in contempt of said State of Georgia, and the people thereof, and to the damage and prejudices of said State, and also against its dignity.
ALFKED B. SMITH, Solicitor General, Eastern Circuit of Georgia. Filed February 12th, 1869.
Whereupon the Sheriff of Chatham County is commanded that he cause to come the said Richard W. White, acting as Clerk of said Superior Court of Chatham County, to answer by what warrant or authority he exercises the said office of Clerk of the Superior Court of Chatham County, at the Court House in Savannah, before the Judge of said Superior Court, twenty days after the service of a copy of this infor mation and writ on him,
Witness the Honorable William Schley, Judge of said Superior Court of Chatham County, this February 12,1869.
GEORGE WASHINGTON WILSON, Deputy Clerk, S. C. C. C.
SHERIFF'S OFFICE, ) CHATHAM COUNTY, February 12,1869. ) I have this day served a copy of the within paper person ally upon Richard W. White. The return of
JAMBS DOONEE, Sheriff Chatham County, Ga

8

THE SUPERIOR COURT OF CHATHAM COUXTY.

JANUARY TERM, 1869.

THE STATE OF GEORGIA,")

Ex Relation e,

|

WM. J. CLEMENTS, }-

vs.

|

RICHARD W. WHITE. J

Information, Quo Warranto.

And now comes the said VYhite, and not confessing or

admitting anv of the allegations in the said Information to

C2

9f

^3

be true, savs that the matters and things contained are not

sufficien' t in** law, and that this Respond^*ent is not bound to

answer the same, and of this he prays the judgment of the

Court.

A. W. STONE,

J. JOHNSON,

Attorneys for Respondent.

Demurrer filed March 4th, 1869.

GEORGE WASHINGTON WILSON,

Deputy Clerk, S. C. C. C.

The foregoing demurrer was withdrawn on the day it was filed. Xo argument was ever had upon it. The Defendant moved for a continuance upon the demurrer, because of the absence of associate counsel. The Court refused the con tinuance, because leading counsel was present; whereupon Defendant withdrew the demurrer and filed an issnable plea or answer, upon which he did obtain the continuance. A Jury was then drawn to try the issue.
W. SCHLET,
Judge Superior Court East. Dist. Ga.

STATE OF GEORGIA,
Ex Relatione, WM. J. CLEMENTS,
vs. RICHARD W. WHITE, Clerk of Superior Court of Chatham Co.

Quo Warranto. Chatham Su
perior Court.

The Writ of Quo Warranto alleges that the Respondent,

9
Richard W. White, is a person of color, having one-eighth of negro or African blood in his veins, and that he is, for that reason, disqualified to hold the office of Clerk of the Superior Court, the functions of which he is now dis charging.
The Respondent demurs to the sufficiency of this ground in law, and I am called upon to decide the question of Re spondent's eligibility to office in Georgia. In other words, the question is, can a negro hold office in Georgia ?
It is admitted by Counsel for the Respondent that previ ous to the adoption of the negro by our State and Federal Governments as a citizen, he was ineligible to office. This proposition is so clear that it does not admit of argument. But it may be well to consider the status of the negro up to the adoption of our present State Constitution, in order to assist us in ascertaining his present condition. The negro, excepting the few free persons of color in Georgia up to the close of the late war, was that of a chattel. He had no State relations the master was the citizen the negro was his subject. The law recognized him by protecting his life and limb, but no further. He had no political right of any imaginable nature. The State and Federal Constitutions treated him as a slave. He was neither citizen, denizen, nor alien, but bore in his name and race every political disabil ity. And such he remained at the time of general emancipa tion. The first step taken for his relief was to give him freedom by an Ordinance of this State in Convention assem bled in 1865. The next step was to enable him to sue, testify, and acquire and hold property and money. And these were all the privileges conferred upon him until the adoption of our present State Constitution, and of the 14th Amendment to the Federal Constitution. And as the lan guage of the 14th Amendment, and of our Constitution, in conferring citizenship on the negro is the same, the grant in the latter, if differing at all, being broader than the former, I shall consider them both together.
And first, I will say so far as the rights conferred by citi zenship are concerned, the Mth Amendment was as ample as the 2d Section of the 1st Article of our State Constitution. Both declare all persons born in the United States and resi dent in Georgia to be citizens of Georgia, and both guarantee "all the privileges and immunities of citizens of the United States,7' and ot this State. If, therefore, citizenship ipso facto or ex vi termini does not confer the right to hold office, as the Federal Constitution grants nothing more than the privileges and immunities of citizenship, we will have to

10

look further into our State Constitution to see whether the

rights of office is therein given to this class of citizens. It

must be borne in mind that we are now considering only the.

privileges and immunities of citizenship, which are conferred

alike by the Federal and State Constitutions. And to esti

mate properly the effect of this grant, let us suppose that

the 2d Section, 1st Article of our State Constitution had

been omitted. Would not every privilege and immunity

conferred by our Constitution in said 2d Section have been

as complete as they are now ? Certainly, because the 14th

Amendment being a part of the Federal Constitution, which

is the snpreme law, not only becomes a part of onr State

Constitution so to speak, but it controls it, so that it was as

unnecessary to repeat the language of the 14th Amendment

in our Constitution as to have said that no law should be

passed impairing the obligation of a contract, or that no ew

post facto law should be enacted.

This being settled, we are now prepared to inquire into

the extent of the privileges and immunities of citizenship in

Georgia, as conferred by the 14th amendment. In other

words, we must inquire what privileges and immunities the

Federal Constitution and Government can confer on a citi

zen of Georgia, I answer, considering the question nega

tively, that the power to confer the elective franchise and

eligibility to a State office is not vested in the Federal Gov

ernment, or embraced in the Federal Constitution. These

are reserved State's rights; the elective franchise is con

trolled by each State. Any State can confer it on its citi

zens, or on denizens or temporary inhabitants, or on aliens.

Any State can establish a property qualification, or an intel

ligence qualification, or a qualification based on class or

race. Again : any State can make eligible to office certain

of her citizens, and exclude all others, or can give office to

aliens, minors, women, negroes, or Indians. Over these

questions the Federal Government has no control. Hence,

we see the effort being made now to so amend the Federal

Constitution as to confer on all citizens the right to vote. If

[\

the Federal Government, under the Constitution, could not

before or since the adoption of the 14th amendment, confer

on the citizens of any State the elective franchise and the

right to hold a State office, or either, it must follow that

neither of these rights has been conferred on the citizens of

Georgia, white or colored, unless they are included in the

meaning of the words " privileges and immunities of citi

zenship of the United States, or of this State." This brings

us to consider, first, whether the right to vote and eligibility

11
to office are, or either is, embraced in the privileges and im munities of a citizen of a State; and if not, then, secondly, whether those rights, by the laws of Georgia in force at the adoption of our present Constitution, were incidents to citi zenship in Georgia. On the first point we are fortified by abundant authority, to the effect that citizenship embraces neither of these two rights. The question is settled beyond a doubt by the State and Federal Courts. In Dred Scott vs. Sandford, 19 How. 422, Chief Justice Taney savs, with emphasis, " undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no show of the political power, and is incapacitated from holding particular offices; women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary quali fication cannot vote orhold the office, yet they are citi zens."
Again: in a very recent case decided by Justice Swayne, of the United States Supreme Court, as Circuit Judge in. Kentucky, and reported in full in the Law Register of Feb ruary last, that Judge says : " Citizenship has no necessary connection with the franchise of voting, eligibility to office, or, indeed, with any other right, civil or political; women, minors, and persons non-compos, are citizens, and not the less so on account of their disabilities." Again : " The fact that one is a subject or citizen determines nothing as to his rights as such ; they vary in different localities, and accord ing to circumstances." In the State vs. Manuel, 4: Dev. & Batt. 26, Judge Gaston says : " The term citizen, as under stood in our law, is precisely analagous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of the JZing^ is now a citizen of the State" Again: Mr. Justice Curtis, in his dissenting opinion delivered in the Dred Scott case, page 583, says : " So in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age or sex, or the want of the necessary legal qual ifications.^ The truth is that citizenship, under the Consti tution of the United States, is not dependent on the posses sion of any particular political, or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State, in accordance with its own

12
views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whe ther all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way." Again: in Wash. C. C. Keps., vol. 4, page 381, Corfield vs. Coryell, Judge Washington says: "The inquiry is, what are the privileges and immunities of citizens in the several States ? YYe feel no hesitation in confining these expressions to those privileges and immunities which are in their nature funda mental^ which belong right to the citizens of all free Gov ernment, and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent and sov ereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government, the enjoy ment of life and liberty, with the right to acquire and pos sess property of every kind, and to pursue and obtain hap piness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole.
"The right of a citizen of one State to pass through or to re side in any other State, for purposes of trade, agriculture, pro fessional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus ; to institute and maintain actions of any kind in the courts of the State, to take hold of and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citi zens of the State, may be mentioned as some of the particu lar privileges and immunities of citizens, which are clearly embraced by the general description ot privileges deemed to be fundamental, to which may be added the elective fran chise, as regulated and established by the laws or Constitu tion of the State in which it is to be exercised."
If, then, as we have thus seen, the right to vote and to hold office are not included in the grant of citizenship, if they are not necessarily among the privileges and immuni ties, which belong to every citizen, and which cannot be abridged, but. as Justice Washington, Swayne, Curtis, and Chief Justice Taney declare, to be regulated by the laws or Constitution of the State in which they are to be exercised; we must look to our State Constitution and State laws for the true solution of this question ; by them, and them only, we must be governed.
I have already said that the 14th amendment would have

been as effectual in securing the rights of a citizen of Geor gia as the 2d section of the first article of our State Consti tution ; I mean by that to say that if the elective franchise or eligibility to office in Georgia depended on the said sec tion alone that is, if the remainder of the Constitution and the State laws were silent as to either of these rights the said second section could have been omitted without detri ment to any citizen's rights in Georgia; and I have stated that the 14th amendment did not confer either the right to vote or eligibility to office. This conclusion may be doubted, and I will therefore notice that point still further. Let us compare the two and see if they vary in meaning. The 1-ith amendment is : "All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. ISTo State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of. the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protec tion of the laws," The State Constitution reads: "All per sons born and naturalized in the United States, and resident in this State, are hereby declared citizens of this State, and no laws shall be made or enforced which shall abridge the
privileges or immunities of citizens of the United States or of this State, or deny to any person within its jurisdiction the equal protection of its laws. And it shall be the duty of the General Assembly, by appropriate legislation, to pro tect every person in the due enjoyment of the rights, priv ileges and immunities guaranteed in this section." The clause in the amendment about life, liberty, c., is surplus age, as it was already in the Constitution. The ouly imag inable difference is in the fact that the amendment forbids the abridgement of the privileges or immunities of " citi zens of the United States," while our Constitution says of ki citizens of the United States, or of this State" But the lan guage in both relates, as we have seen, upon authority not to political, but to personal rights of citizens. But the re spondent insists that the right to vote and eligibility to office are included in those words. I will concede that if before and at the time of the adoption of our Constitution all citi zens had the right to vote and to hold office, there would be much force in this position ; for all persons born and natu ralized in the United States, and resident in Georgia at that time, were declared to be citizens, and the privileges and immunities of all such citizens are thereby guaranteed, and

14

cannot be abridged. But just here the onus lies upon the

respondent to show that all citizens of Georgia could, before

and at that time, vote and hold office. The position cannot

be evaded. The privileges and immunities referred to be

long to ^2

all

citizens

of

this

State.

They were such as were /

common to each and every citizen. If the respondent deny

this position, his right to office, so far as it depends in this

second section of the Constitution, has no foundation. If

he admits it, then he must take its logical consequences; for

by that section all persons (white and colored, male and fe-

male.) were declared to be citizens of Georgia, and it is

" the rights, privileges and immunities of all citizens"

which are guaranteed, and which cannot be abridged. Then

it follows, as a necessary consequence, that either the right

to vote and eligibility to office were not conferred on any

persons or class of persons by that section, or that they were

conferred on all persons and classes who were thereby de

clared to be citizens. But this section makes women and

children citizens, and if the right to vote and hold office was

thereby given to any persons, women and children have the

right to vote and are eligible to office. This conclusion is

inevitable if it once be granted that the Convention in

tended to confer, and did confer, the franchise of voting and

of office by the use of the words " rights, privileges and im

munities." But we must now see if any other portion of

our Constitution gives to colored citizens the right to hold

office. It is urged that this right is given by the 2d clause,

2d section. Article III, which is in these words: u The Sen-

ators shall be citizens of the United States who have attained

the age of twenty-five years, and who, after the first elec-

tion under this Constitution, shall have been citizens of this

State for two years, and for one year resident of the Dis-

trict from which elected." It is insisted that no other qual-

ification is required for one to be a Senator. This proceeds

upon the assumption that the Convention intended that

every citizen having those qualifications could be a Senator.

This, it seems to me. is strange logic, that the effect would |

have been to make voters of women,' white and colored,> as well as of males. But it would not have followed that every

woman, white and colored, would thereby have been eligi

ble to office. The former does not include the latter. The

latter is a higher political right. It presupposes qualifica

tions superior to those fitting a person to vote, just as it re

quires other and higher qualifications to be a voter than to

be a citizen- There is a gradation in these relations to the

State, and while eligibility to office presupposes the right to

15
vote, and voting presupposes citizenship as the one ordina rily precedes the other on the other hand, citizenship does not include the elective franchise, nor the elective franchise the right to hold office, any more than the less includes the greater. Eligibility to office for the male negro is not, therefore, to be inferred from the clause which clothes him with the elective franchise. That I am right in this, not only on principle, but on the letter of the clause itself, will appear more clearly when we consider the fact, that if that clause conferred the further right to hold office on th*1- male negro, it also conferred the same right on aliens. For it reads, "Every male person born in the United States, and every male person who has been naturalized, w who has le gally declared his intention to become a citizen of the United States, twenty-one years old, &c., shall be deemed an elec tor." Certainly, the Convention did not intend to throw the offices of the State into the hands of aliens.
But if the male negro citizen is, by the above clause, ad vanced to the highest political rights, to wit: eligibility to office, the male person who simply declares his intention to become a citizen, (and who may never carry out that inten tion,) is also clothed with the same right. This is an infer ence not to be lightly made. We should and must require unmistakable language in this case likewise, to justify such a construction as would place our State offices in the hands of aliens. This would, however, bG the effect, because there is no provision in our Constitution requiring citizenship as a qualification to eligibility to office in one out of ten of the many State offices.
And if the Constitution thus confers the right to office on an alien, it must be borne in mind that the Legislature is powerless to prescribe citizenship as a qualification. And hence it would follow that any alien, a Congo, an Ebo, a Hottentot, fresh from his jungles, who should declare his intention to become a citizen, would be clothed with the highest political right known to our people, after six months residence in Georgia.
This disposes of the provisions of the Constitution bearing upon this question, and we are brought, finally, to the stat ute laws of Georgia; do they confer on the colored citizen the right to hold office ? The Code which was adopted by the Constitution as law, divides the natural persons of Geor gia into four classes citizens, residents not citizens, aliens, and persons of color. It says that among the rights of citi zens are the elective franchise and the right to hold office. And as the Constitution has made persons of color citizens,

16

it is insisted, as a necessary consequence, that they have all

the rights which were given to citizens as they were defined

when the Code was passed, and afterward adopted by the

Convention. But we have seen that persons of color, before

the adoption of the Code, had no political rights. We have

seen, also, that political rights are not conferred by implica

tion of law, and that the removal of one disability does not

include the removal of any other, unless the one removed

be the greater. Citizenship was first conferred; that did

not remove necessarily the disability as to the elective Iran-

/

-

chise, for if it did so for the person of color, who, by the clas

sification iriven above, ranks lower in the State than white

<_^

X

females, who are citizens, it must a fortiori^ have removed the

disability from all females. If declaring the negro to be a cit

izen made him a citizen in the sense intended in the Code, all

females and all minors are likewise clothed with the elective

franchise and the right to hold office. If they are not, then

the Constitution, by making persons of color citizens, eleva

ted them above white females and minors. But will it be

pretended that females can vote and hold office in Georgia?

Can the conclusion be avoided, however, if the monstrous con

struction be put upon the Code, whereby the lowest class of

natural persons, and who rested under every disability before

the Constitution was adopted, are relieved of all disabilities

by the grant of mere citizenship, the want of which was the

least of his disabilities. If the Convention intended to give

this construction, why did they by positive enactment go

one step further and confer the right to vote on persons of

color? If citizenship gave the right, why confer it in ex

press terms '. If the Constitution considered that the right

to hold office was conferred by the Code as incident to citi

zenship, why was not the right to vote also so considered ?

And if so. why expressly confer the less right, and remain

silent as to the greater ri^ht > If the Convention had given

<-S

I----3

.

CI3

in express terms the right to hold office, the silence as to the

elective franchise would have been proper, not to say logi

cal, because the right to hold office necessarily comes with

it the right to vote. I can put no other construction on this

action of the Convention than that they meant to give only

such rights as are given in express terms. And this conclu

sion is made certain by the record of their proceedings,

which shows that they by solemn vote rejected the amend

ment which was offered to give the right to hold office to

persons of color. If, then, we are to be controlled by the

express grant of political rights in our Constitution to per-

VI
sons of color, the right to hold office in Georgia does not belong to any person of color.
The Demurrer is therefore overruled.
WM. SCHLEY,
Judge Superior Court, Eastern Circuit Georgia.
CHATHAM SUPERIOR COURT,
JANUARY TEEM, 1869.
THE STATE, ex Relatione, vs.
R. W. WHITE.
And now at this Term comes the said Defendant, and for answer to the complaint aforesaid, says : That at the election held in said County, on the 21st, 22d, 23d and 24th of April, 1868, for Clerk of the Superior Court of said County, he was a candidate, and that at said election he received a ma jority of all the votes cast or polled ; that he was then, had been, and now is a citizen of the.United States and of "the State of Georgia, and County of Chatham ; that he was and is eligible and qualified by law for said office, and being so eligible and qualified and elected as aforesaid afterwards, to-wit, on the seventh day of August, 1868, he was duly commissioned as Clerk of said Court by the Governor of the State of Georgia, and thereupon entered upon the dis charge of the duties or said office, and has in his possession as su.ch Clerk the books and papers pertaining to said office. And this Defendant for further answer says that he is not a person of color, nor does he have in his veins one-eighth or more of negro or African blood.
Wherefore this Defendant says that he is not guiltyof usurping said office, as thereof alleged against him, and prays the judgment of the Court.
A. W. ST03TE and J. JOmsTSOT, Respondents Attorneys.
Personally appeared before me, Richard W. White, who.

18

being duly sworn, says the facts stated in the foregoing an swer are true.
RICHARD W. WHITE.

Subscribed and sworn to before me )

March 4th, 1869.

J

W. SCHLEY,

Judge Superior Court Eastern Circuit Ga.

Answer filed March 4th, 1869. GEOBGE WASHINGTON WILSON,
Deputy Clerk S. C. C. C.

VERDICT.
We, the Jury, find that the Defendant has one-eighth Af rican blood in his veins, and is a colored man under the laws of Georgia.
ISAAC D. LAROCHE, Foreman.

The foregoing answer had been filed before the argument

was had upon which I based my decision for the conclu

sion given to counsel for Relator, and was the only papers

filed by Defendant in the case, the original demurrer hav

ing been withdrawn.

W. SCHLEY,

Judge Superior Court Eastern Circuit, Ga.

STATE OF GEOEGIA, ")

Ex Eelatione, | W. J. CLEMENTS, }-

V8.

|

RICHABD WHITE. J

Quo Warrants.

And hereupon all and singular the premises being seen and fully understood by the Court here, and the said Court having considered and adjudged the Exceptions and De murrer of the said Respondent to be insufficient in law, and all and particular the matters above put in issue having been tried by the country; and the Jury having determined by the verdict as follows: " We, the Jury, find the Defend-

19

ant has one-eighth of African blood in his veins, and is a colored man under the laws of Georgia." And it appear
ing to the Court by its said decision on the law, and the said verdict of the Jury on the facts put in issue, that the said Respondent, Richard "W. White, hath usurped, and still doth usurp, the place, office liberties, privileges and fran
chises of Clerk of the Superior Court of the County of
Chatham, in manner and form, as in and by the above in formation is charged against him; therefore, it is consid ered and ordered by the said Court here, that the said Rich ard W. White, a person of color, do not in any manner in termeddle with or concern himself in and about the office, liberties, privileges and franchises aforesaid, but that he be absolutely forejudged and excluded from ever exercising or using the same or any of them for the future; and that the said William J. Clements, the Relator above mentioned in this behalf do recover against the said Richard W. White
the sum of six dollars and fifty cents for his costs by him laid out and expended in carrying on his suit in this behalf
according to the law in such case made and provided. W. SCKLEY,
Judge Superior Court Eastern Circuit Ga.
April 1st, 1869.

A. B. SMITH, Solicitor General.

J. HARTKDDGE,

T. E. LLOYD, J- Attorneys for Relator. W. B. FLEMING,

. it!

Judgment entered up and signed and filed this April 1st,
1869.
GEOEGE WASHINGTON WILSON, Deputy Clerk S. C. C. C.

20
THE SUPEEME COTJET OF GEOEGIA.
JUSTE TEEM, 1869.
BILL OF EXCEPTIONS
Georgia Chatham County.
THE STATE OF ^ Ex Eelatione,
"W. J. CLEMENTS, vs.
RICH A TED "W. WHITE, j
Be it remembered that said cause came on to be tried in gaid County on the twenty-second day of March, 1869, un der an order of said Court; that on said day said Defend ant appeared and filed a Demurrer and Answer to said Infor mation, and also filed a written Affidavit, and upon said affidavit moved the Court for a continuance of said cause. The said Court, upon consideration, overruled the motion to continue the case, and thereupon the Defendant then and now excepts to said ruling of the Court, and assigns the same for Error. A copy of said affidavit is annexed and marked (A). The Defendant then presented said Demurrer or Exception filed by him, a copy of which is annexed marked (B), and insisted he had the right to open and con clude the argument on the Demurrer. The Court, upon consideration, ruled that the Plaintiff had the right to open and conclude said argument and so allowed said Plaintiff ; and thereupon the Defendant then and now excepts and assigns said ruling for Error. The reason was this: tne Counsel for the Defendant had already put in a Demurrer to the application for Quo "Warranto, and withdrawn it. He had filed an Answer and prayed an issue; he had moved for a continuance upon the issue made by his Answer, which continuance was refused. Defendant's Counsel then called up his Demurrer or Exception, which would properly have been heard after the verdict upon the issue, as the Answer suspended, if it did not overrule the Demurrer. The Coun sel for the Kelator whilst not objecting to the argument of the legal point at that time insisted that as the Demurrer

21
had been originally withdrawn and an Answer had been filed, and that the argument asked for by Counsel for the Defendant was to settle all the legal questions in the case that the Relator as the promovent in the case was entitled to the conclusion of the argument.
The argument on the Demurrer having been concluded the Court overruled the Demurrer, deciding that under the Constitution and Laws of Georgia a person of color was in eligible to office. To which decision of the Court overrul ing the Demurrer, the Defendant then and now excepts and assigns the same tor Error.
A j ury then caine to try the issue between the parties, and the .Plaintiff introduced several witnesses, whose names and testimony are hereto annexed, marked (D). To so mnch of the testimony of Albert Jackson as related to his acts as Register, and to so much as related to the reputation of Delendant being a man of color, the Defendant objected. The Court overruled the objections and allowed the testi mony to be submitted to the Jury. To which ruling of the Court last aforesaid said Defendant then and now excepts and assigns the same for Error.
To so much of the testimony of Dr. Young, as is founded on Ms medical knowledge, and his opinion as such, the De fendant objected. The,Court overruled the objection and allowed the same to be submitted to the Jury. To which said ruling the Defendant then and now excepts and assigns the same lor Error.
The Plaintiff introduced the witness, Howard, who testi fied that a certain book was a .Record JBook of an Insurance Company, that had recorded in it an application for a Policy from K. W. White; that the original application had, after record, been sent to New York where it then was ; that the original was truly copied in said book; that he did not know who presented said application; that he did not see Defendant sign it, nor did he know Defendant's hand writ ing. The .Plaintiff offered to read said copy in said Insur ance Book in evidence, and the Defendant objected. The Court overruled the objection and allowed said copy in said book to be read in evidence, and thereupon the Defendant then and now excepts and assigns the same for Error. A copy of the copy is annexed, marked E.
Tne Plaintiff nere closed; the Defendant offered no testi mony, and alter argument had the Defendant requested the Court to charge the Jury that the Defendant being in the exercise of the functions of the office, the presumption of the law ia that he is entitled to it, and it is incumbent on the

22
Plaintiff to rebut such presumption by legal proof, and if Plaintiff should fail to make out every point in his case they must find for the Defendant; which charge the Court refused to give, but charged the Jury that
First The Law says any person having one-eighth or more of negro or African blood in his veins is ineligible to office; I have, therefore, decided on the Demurrer that a negro or person of color cannot hold office in Georgia.
Second The legal question then having been disposed of by the Court, the issue of fact is now submitted for your consideration, whether or not the Defendant has one-eighth of negro or African blood in his veins.
Third You must now look to the testimony and see if the Plaintiff has legally proven to your satisfaction, that the Defendant has one-eighth of negro or African blood in his veins. If he has not, then, you must find for the De fendant, but if it is proven to your satisfaction that the Defendant has the one-eighth or more of negro or African blood in his veins, then you cannot but find for the Plain tiff.
Fourth In this case the Respondent dwells upon the in sufficiency of the E-elator's proof, and asks at your hands a verdict in his favor.
Fifth 1 am requested to charge yofc on the character of the testimony that where blood, race, &e., is the subject that you can take general hearsay, or the reputation of the person in his community, that is what he says of himself what others say of him his associates, and his general repu tation as such in the community in which he resides, &c., in order to determine as to his being a white man, or a per son of color. Under slavery no records were kept of Births or Marriages among slaves, and hence the rule as to general reputation and hearsay was more applicable to blacks than to whites. Now you must look to the testimony and be sat isfied in your minds that the facts disclose one-eighth or more of negro or African blood in the veins of the Respon dent before you can find for the Relator. I am further re quested by the Defendant to charge you " that the Defend ant being in the exercise of the functions of the office, the
presumption of the law is that he is entitled to the office, and it is incumbent on the Plaintiff to rebut such presump tion by legal proof, and if the Plaintiff should fail to make out every point in his case, you must find for the Defend ant." I cannot charge you in the language asked for, but I do charge you as a general principle of law, that any .per son holding an office, the law presumes him eligible and

23

competent to hold the same, but that presumption refers to his acts as such officer where the rights of others were
affected, such as attestation, and other acts in the line of his office. But where, as in this case, the issue had no reference to any official act, but as to the race or blood of the Defend ant, disqualifying him from holding office, there was not such a presumption of law as contemplated by the language contained in the request to charge. But that the law, in this issue, did not make the presumption as contended for by Defendant's Counsel that the Jury must look to the testi
mony submitted to them and determine the case from the proofs. I am further requested to charge you, that if the
Plaintiff fails to make out his case in every point they must find for the Defendant. I cannot charge you in these words, but I do charge that you must be satisfied, from the testi mony before you, that the Defendant has one-eighth or more
of negro or African blood in his veins, before you can find for the Plaintiff.

To the refusal of the Court to charge as requested, and to the charge as given, the Defendant then and now excepts
and assigns the same for Error.

For as much as the matters and things aforesaid do not

appear of record, the said Defendant within thirty days

from the time of making said decisions, presents this his

Bill of Exceptions, and prays the same may be signed and

certified and made a part of the Record in said Cause.

A. W. STONE,

JAMES JOHNSON,

April 2,1869.

Respondent's Attorneys.

SAYANNAH, GEORGIA, Chatham County,) April 12th, 1869. J

We acknowledge due and legal service of this Bill of Ex
ceptions and the receipt of a copy thereof. ALFRED B. SMITH', Solicitor General. ' THOS. E. LLOYD, Sol. for Relator.
JULIAN HARTRUKJE, Sol. for Relator.

(A)

THE STATE, ex Relation e,

J. CLEMENTS,

Quo Warranto, in the Superior

vs.

Court ot Chatham. County.

K. W. WHITE.

The Defendant, Richard TP. "White, moves the Court for

a continuance in the above stated cause, and for cause of

continuance says: That on the 6th day of March, 1869, he,

by his counsel, A. W. Stone, prepared a set of interrogato

ries to be propounded to Charles Green, a material witness

for.the Respondent, and who resides in San Francisco, Cali

fornia ; that on the same day he was informed by his said

counsel that the said interrogatories had been handed to or

left at the office of Hartridge & Chisholm, counsel for Re-

lator; that on the Monday following the interrogatories

were returned crossed to his said counsel, and by him depo

sited, properly stamped, in the post office, in Savannah,

directed to Edward Everett, one of the commissioners named

in the commission, to be executed and returned. That the

said interrogatories have not been returned; that the witness

resides in San Francisco, California, and over five hundred

miles from Savannah ; that the testimony of the said witness

is material to his defense; that by said witness he expects

to prove his race and nationality, and that there is no negro

or African blood in his veins. That deponent expects the

said interrogatories will be executed and returned to said

Court within the time limited by the rules of Court for the

return of commissions of a witness more than five hundred

miles from the place of trial, and that he will be able to

procure such testimony by the next term of said Court.

That the said cause was assigned on the fourth of March

for trial on the twenty-second; that the interrogatories were

made out and banded to counsel for Eelator on the sixth,

and mailed on the eighth of March. Deponent submits to

the Court if he has not shown due diligence in sueing out

and having had said interrogatories executed.

Sworn to and subscribed before J

me this, the twenty-second day of > RICHARD W. WHITE.

March, A. D., 1869.

)

PHILIP M. RUSSELL, JE.,

Notary Public and ex-officio Justice of the Peace, Chatham

County, State of Georgia.

25
IN THE SUPEEIOE COTJET OF CHATHAM COUNTY.
JANUARY TERM, 1869.
THE STATE OF GEORGIA, " Ex Eelatione, vs.
EICHARD W. WHITE.
Information, Quo Warranto.
And now conies the said White, and not confessing or admitting any of the allegations in the said information to be true, says : That the matters and things therein contained are not sufficient in law, and that this .Respondent is not bound to answer the same, and of this he prays the judg ment of the Court.
A. W. STONE, J. JOHNSON, Attorneys for Kespondent.
Eichard Mimms, p. c., sworn, and says: " I met Eichard W. White some time since in Captain Doyle's store, either last summer or the summer before last; he told me that he, White, came from Barnwell District before the war; he made his escape from a master or a guardian. I do not recollect the language White used. I do not know the dis tance from Barnwell District. I was never there. I am from Edgefield, South Carolina, myself. White and. I had a difficulty some time ago; we have not spoke, but I have nothing against him at this time. That he, White, came from South Carolina originally."
A.N.Wilson sworn, and says: "iknow this Eespondent. The first time I ever saw him was in October or No vember, 1867, in a meeting which was held for the purpose of nominating candidates for the State Constitutional Con vention. White made a speech (the first, I think,) in favor of nominating an equal number of whites and blacks ; that is, in behalf of the colored part of the Convention, when I inquired and found out his name."

26
Albert Jackson sworn, and says : " I was one of the isters in the year 1867. There was a check put after Whit&s name to designate him as a colored man. A list designa ting persons which had been arranged by the Board was posted up at the Court House. I do not know whether or not it was there all the time during the election. From these facts, and seeing him several times in the company of colored persons. I took him to be one. I have seen Span iards and Italians as dark as White. I believe White is re puted a person of color. That the list of the registered vo ters was put up in the Court House for two or three weeks before the election. That against the name of the defend ant the letter C. was marked, indicating colored. The Reg isters left the list open for correction for three weeks before the election, and that White did not ask any correction."
Dr. Easton Yonge sworn, and says : " I have been a prac ticing physician for twenty years ; examined the respondent and gave a certificate to the Knickerbocker Insurance Com pany as a mulatto. I have studied the science of Ethnol ogy, but not a great deal. This study leads one to inquire the difference of races. I came to the conclusion, however, that respondent was a mulatto from external indications. I think any intelligent person could tell as well as I could, (if much among the negroes.) the difference between a white man and a person of color, from observation."
J. S. Howard sworn, and says : " This book in Court con tains copies of all applications for life insurance to the Knickerbocker Life Insurance Company. The originals are all sent on to ^ew York. This application, which is signed with the name of respondent, I think was signed by himself for his wife. I do not know his hand-writing ; don't know whether he or his wife signed the name."

GEORGIA,

)

CHATHAM COUNTY, j

I do certify that the foregoing Bill of Exceptions is true, and contains all the evidence material to a clear understand ing of the errors complained of, and the Deputy Clerk of the Superior Court of the county of Chatham, is hereby re quired and ordered to make out a complete copy of the record of said case, and certify the same as such, and cause the same to be transmitted to the Supreme Court at the June
Term, on the first Monday thereof at Atlanta, in the year

1869, that the errors alleged to have been committed may

be considered and corrected.

Given under my hand and seal this the sixth day of April,

A. D., 1869, and within thirty days of the making said de

cisions.

I respectfully refer the Court to' W. SCHLET, [L. s.]

my explanation at bottom of page

containing Demurrer, and bottom - Judge Sup. Court,

of page containing the Answer or

East'n Circuit, Ga.

issuable plea.

GEORGIA,

\

CHATHAM COUNTY, j"

I, Georgia W. Wilson, Deputy Clerk of the Superior Court of the county of Chatham, in the State aforesaid, do hereby certify that the foregoing is a true and complete transcript of the record in the case of " The State of Geor-
fia ere relations William J. Clements versus Richard W. Vhite, Clerk Superior Court, Chatham County," Quo Warranto, and the original Bill of Exceptions, a copy of which
is on file in this office. And I do further certify that the
Respondent has paid all costs, and filed his bond, with good security, in terms of the law.
In testimony whereof, I have hereunto set my official sig nature and seal of office, at Savannah, this the seventh day of April, Anno Domini, One Thousand Eight Hun
dred and Sixty-nine. GEO. WASHINGTON WILSON, Dep. Clerk S. C. C. C.

At the conclusion of the reading of the record, the hour of six o'clock, P. M., having arrived, the Court adjourned until ten o'clock to-morrow morning, the 10th instant.

28
ATLANTA, GA., June 10,1869.
The Court opened at 10 o'clock, A. M. His Honor the Chief Justice, presiding.
ARGUMENT OF COL. STOXE.
COL. A. "W. STONE opened the argument for the Plaintiff in Error. He said:
MAT rr PLEASE THE COURT : Before entering into the argu ment upon the merits of this case, I desire to remark how unnecessary and, to my mind, reprehensible, is the practice adopted in our Circuit, by our Judge, of sending up to this Court, as part of the record of the Court below, a lengthy decision, like that which is attached to this ease.
I have no objection to a Judge of the Superior Court making an argument in this Court on any case he pleases, but 1 should prefer his doing so at his own expense, rather than at that of my client or myself.
I just make this remark for the ear of the Court, as it will be seen that the argument of the learned Judge below, in this case, occupies more of the record brought before this Court than the Bill of Exceptions and the balance of the record.
The Court will have observed that there are several points made in this Bill of Exceptions to which I shall briefly call your Honors' attention.
It seems to me that the Errors of the Judge below are so plain that no arguments are necessary to convince this Court of the fact. And I only introduce them, and use them here, for the purpose of showing what surrounded us in the trial of this case in the Court below with the feelings and pre judices of the whole community opposed to us. ,N~ot a sin gle point that was raised by the learned counsel for the Detendant in Error here the tlaintiff below was ruled in our favor.
The first question is on the motion for continuance the overruling of that motion.
It will be borne in mind that we filed a demurrer, and also an answer, denying that Mr. White was a person of color. That raising an issue of fact, when the case was called for a hearing we moved for a continuance, and the affidavit I will read to the Court:

STATE, ex Relatione,

WM. J. CLEMENTS,

Quo Warranto, in the Superior

vs.

Court of Chatham County.

R. W. WHITE.

The Defendant, Richard W. White, moves the Court for

a continuance in the above stated cause, and for cause of

continuance says : That on the 6th day of March, 1869, he,

by his counsel, A. W. Stone, prepared a set of interrogato

ries to be propounded to Charles Green, a material witness

for the Respondent, and who resides in San Francisco, Cali

fornia ; that on the same day he was informed by his said

counsel that the said interrogatories had been handed to, or

left at the office of, Hartridge & Chisholm, counsel for Re-

lator; that on the Monday following the interrogatories

were returned crossed to his said counsel, and by him depo

sited, properly stamped, in the post office, in Savannah,

directed to Edward Everett, one of the commissioners named

in the commission, to be executed and returned. That the

said interrogatories have not been returned; that the wit

ness resides in San Francisco, California, and over five hun

dred miles from Savannah ; that the testimony of the said

witness is material to his defense; that by said witness he

expects to prove his race and nationality, and that there is

no negro or African blood in his veins. That deponent ex

pects the said interrogatories will be executed and returned to

said Court within the time limited by the rules of Court for

the return of commissions of a witness more than five hundred

miles from the place of trial, and that he will be able to

procure such testimony by the next term of said Court.

That the said cause was assigned on the fourth of March,

for trial on the twenty-second; that the interrogatories were

made out and handed to counsel for Relator on the sixth,

and mailed on the eighth of March. Deponent submits to

the Court if he has not shown due diligence in sueing out

and having had said interrogatories executed.

Sworn to and subscribed before )

me this, the twenty-second day of > RICHARD W. WHITE.

March, A. D., 1869.

)

PHILIP M. RUSSELL, JK.,

Notary Public and ex-offieio Justice of the Peace, Chatham

County, Georgia."

The case was assigned on the 4th of March for trial on the 22d of the same month. Interrogatories were made out the next day and forwarded to the proper parties in due

30

course of mail; and only eighteen days Lad elapsed from

the time of suing out the commission until the time of

trial. The time had not expired for the return of the com

mission of a witness residing more than five hundred miles

from the city of Savannah.

I call your Honors' attention to the 3478th Section of the

Code, in connection with the 3471st:

" 3478. When a commission issues to examine a wit

ness, it not having been returned shall be no cause of a con

tinuance unless the party seeking the continuance will make

the same oath of the materiality of the testimony as in the

case of an absent witness; and the party must show due

diligence in suing out and having the same executed."

lour Honors will observe that the Code only prescribes

that we shall make the same oath as to the materiality of

the testimonv as in the case of an absent witness, and show

v

j

due diligence. What is the rule in this connection in regard

to an absent witness ? I will read the 3471st Section of the

Code on that subject:

"In all applications for continuances upon the ground of

the absence of a witness, it must be shown to the Court that

that the witness is absent; that he has been subpoenaed;

that he resides in the county where the case is pending; that

his testimony is material; that such witness is not absent by

the permission, directly or indirectly, of such applicant; that

he expects he will be able to procure the testimony of such

absent witness at the next term of the Court; and that such

application is not made for the purpose of delay, but to en

able the party to procure the testimony of such absent wit

ness, and must state the facts expected to be proven by such

absent witness."

The materiality of the testimony exists in the statement

of facts which we expected to prove by the absent witness.

Wh'at were these facts? That the defendant, White, was

not a person of color that he had no negro or African blood

in his veios. We so stated in our affidavit; we so stated to

the Court. Yet the motion for a continuance was overruled.

If that affidavit is held insufficient I am at a loss to conceive

how a party asking a continuance on account of the absence

of interrogatories, can ever make a showing. We had liter

ally and fully complied with the language of the Code, and

yet our motion for a continuance was peremptorilly and

absolutely refused.

The next Error, may it please your Honors, is upon the ml ing of the Court in regard to the demurrer. The Court

tuled in this case that the Relator had the right to open and conclude the argument on the demurrer. This is, in my opinion, the first time in the history of the jurisprudence of Georgia when a Judge has held that the party moving a de murrer has not the right to open and conclude upon that demurrer. He is the promovent he moves the demurrer he opens the argument; counsel for respondent replies; coun sel for demurrer concludes the argument. When we take into consideration the rules of practice of the State of Geor gia, this view must be admitted to be perfectly correct. These rules are too well settled by this Court, and all other Courts, to need argument here.
The explanation of the Judge in regard to this matter does not seem to me to throw much light on it; but even admitting his explanation to be correct, how does that help ? We moved the demurrer; we filed it; and we were entitled to the advantage of the conclusion, if any advantage were in it. Yet we were overruled.
What does the Judge say on this subject? " The defendant then presented said demurrer, or excep tion, filed by him, copy of which is hereto annexed, marked (B), and insisted he had the right to open and .conclude the argument on the demurrer. The Court, upon consideration, ruled that the plaintiff had the right to open and conclude said argument, and so allowed said plaintiff; and thereupon the defendant then and now excepts and assigns said ruling for error." That was all that was put into the original bill of excep tions. The Judge interpolates the bill of exceptions with this : " The counsel for the defendant had already put in a demurrer to the application for quo warranto and withdrawn it. He had filed an answer and prayed an issue. He had moved a continuance upon the issue made by his answer, which continuance was refused," all of which we had a right to do without prejudicing the demurrer. We had a perfect right to put in an answer raising an issue of fact, and to move a continuance upon that answer; and, as stated before, without prejudicing our rights upon the demurrer. Defend ant's counsel then called up his demurrer, after the continu ance had been refused, " which," the Judge says, " would properly have been heard after the verdict upon the issue." After the case had been tried, and the verdict of the Jury rendered, then we might have the benefit of the argument on the demurrer! The reason why we could not have the conclnsion, it is stated, was because the defendant called up

32
his demurrer, " which would properly have been heard after the verdict upon the issne, as the answer suspended, if it did not overrule the demurrer!" That is the first time I have ever heard of a demurrer being " suspended," if it was not " overruled !" The case to be first heard and tried, and the verdict of the jury rendered, and then we should have a right to argue tie demurrer!
" The counsel for the Relator whilst not objecting to the argument of the legal point at the time insisted that as the demurrer had been originally withdrawn and an answer had been filed, and the argument asked for by counsel for the defendant was to settle all the legal questions in the case, that the Ivelator, as the prornovent in the case, was entitled to the conclusion of the argument." In that I con tend that the Judge erred. On page 10 of the papers in this case [page 18 of this Book] he says that the demurrer had been withdrawn, but his explanations here show that it had not been withdrawn. The petition we did demur to, on the 26th of January, and that demurrer was withdrawn ; the information was issued, and we then filed our demurrer, and filed an answer. The demurrer filed on the 4th of March, at the same time with the filing of the answer, never was with drawn.
JUDGE McCAY. Is that demurrer a part of the record ?
COL. STONE. Yes, sir; both demurrers are part of the re cord. You will find the demurrer to which he alludes, but which never was withdrawn, on page 5 of the record, [page 8 of this book.] That is the demurrer that was put in with the answer; but the demurrer to the application you will find on page 16 of the Record, [page 25 of this book.] The demurrer and answer filed on the 4th of March are the demurrer and answer that were filed to the information--not the demurrer filed to the petition; that had been with drawn. Counsel on the other side will not argue that fact, I think.
COL. HAETRIDGE. I think we will.
COL. STONE. "Very well, sir; I think it clearly proven by the record itself. I was not present at the time, but such I understand to be the explanation given by the learned Judge in the Bill of Exceptions the reason being, he says, that " the counsel for the defendant had already put in a demur rer to the application for a quo warranto, and withdrawn

S3
it," while the fact is that the memorandum attached here to the demurrer which had not been withdrawn, and which is dated 4th of March, should have been attached by the Judge to the demurrer which was first filed to the application for the writ.
Further on, the Bill of Exceptions states: "The argument on the demurrer having been concluded, the Court overruled the demurrer, deciding that under the Constitution and laws of Georgia a person of color was in eligible to office. To which decision of the Court over ruling the demurrer, the defendant then and now excepts and assigns the same for error."
That, may it please the Court, brings us to the main ques tion of the case; and although it is next in order, in my brief, I desire first to present the other grounds of error.
I shall refer now to the testimony in the case. The testi mony of Albert Jackson has reference to his acts as Regis ter ; and to so much as relates to the defendant being a man. of color, the defendant objected. I will read it:
Albert Jackson sworn, and says: " I was one of the Reg isters in the year 1867. There was a check put after White's name to designate him as a colored man. A list designa ting persons which had been arranged by the Board was posted up at the Court House. I do not know whether or not it was there all the time during the election. From these facts, and seeing him several times in the company of colored persons, I took him to be one. I have seen Span iards and Italians as dark as White. I believe White is re puted a person of color. That the list of the registered vo ters was put up in the Court House for two or three weeks before the election. That against the name of the defend ant the letter C. was marked, indicating colored. The Reg isters left the list open for correction for three weeks before the election, and that White did not ask any correction."
There is no proof that White ever saw the register, or knew that the letters "p. c." or <%c." had been put opposite his name. It is testimony that cannot affect him, and was calculated to mislead the jury. It is irrelevant and imma terial "res inter olios acta"
The next objection is found in the testimony of Dr. Yonge. The Court overruled that objection also. The doctor says :
3

34

"I have been a practicing physician for twenty years; ex amined the respondent, and gave a certificate to the Knick erbocker Insurance Company as a mulatto. I have studied
the science of Ethnology, but not a great deal; this study leads one to inquire the difference of races. I came to the conclusion, however, that respondent was a mulatto from, external indications. I think any intelligent person could tell as well as I could, (if much among the negroes,) the difference between a white man and a person of color, from observation."*

The defendant also objected to the testimony of J. S. Howard. He states that
%i This book in Court contains copies of all applications for life insurance to the Knickerbocker Life Insurance Com pany. The originals are all sent on to Xew .York. This application, which is signed witi; the name of respondent, I think was signed by himself for his wife. I do not know his hand-writing : don't know whether he or his wife signed the name."

In this case, as in the others, the Court overruled the ob

jection.

They offered this copy of a record of an Insurance Com

pany. It was proven to be a copy of an original document

which had been sent to !New York. They did not prove any

diligence towards procuring the original, nor did they prove

the loss of that original. They introduced this secondary

evidence without proving any necessity therefor. In any

view that may be taken of the law, I think that the admis

sion of this copy, without accounting for the original record,

was

wrong1 *--

was

error

in

the

Court.

I desire here to call the attention of the Court briefly to
the charge of the Court below. The Bill of Exceptions of the plaintiff in error states that

"The plaintiff here closed. The defendant offered no
testimony, and after argument had, the defendant requested the Court to charge the jury that the defendant, being in tli- exercise of the functions of the office, the presumption
of the law is that he is entitled to it; and it is incumbent on the plaintiff to rebut such presumption by legal proof,
and if plaintiff should fail to make out every point in his
case, they must find for the defendant; which charge the Court refased to give."

35
I merely call the attention of the Court to that point, and will allow my associate counsel to argue it, as it was he who argued it in the Court below.
The main question of this case, may it please the Court, is this: Whether, under the Constitution and laws of Geor gia, a person of color is ineligible to office?
Eligibility, in its legal sense, I understand to mean " qual ified to be chosen the legal right to be elected." And my first proposition is, that under the amended Constitution of the United States and the Constitution and laws of the State of Georgia, all citizens of this State, without regard to race or color subject only to certain express restrictions named in the Constitution and laws of Georgia are eligible to hold office.
Mr. Bouvier, in defining the word "citizen," says: "In American law : one who, under the Constitution and laws of the United States has a right to vote for representatives in Congress, and other public officers, and who is qualified to fill offices in the gift of the people."
I will admit, may it please the Court, that anterior to the adoption of the Constitutional amendment, the Constitution and laws were understood to refer only to white citizens; and it was presumed that only white persons were citizens: but since the adoption of the amendment the word citizens includes nil persons born or naturalized in the United States.
I will first read, your Honors, the Constitutional amend ment known as the 14th article:
" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. Ko State shall make or inforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law ; nor deny to any per son within its jurisdiction the equal protection of its laws."
I will now read the second section of the first article of the Constitution of the State of Georgia:
" All persons born or naturalized in the United States and resident in this State, are'hereby declared citizens of this State, and no law shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States or of this State, or deny to any person within its juris diction the equal protection of its laws; and it shall be the

36
duty of the General Assembly, by appropriate legislation, to protect every person in the due enjoyment of the rights, privileges and immunities guaranteed in this Constution."
The language as said by Judge Schley of these two sections,j the first section of the 14th Constitutional amendment. and the second section of article first of the Constitu tion of Georg*~~*ia,* is almost identical. The third section of the 14th amendment goes on to recite some exceptions, as that " no person shall be a Senator or Representative in Congress, or elector of President and Tice President, or hold any office, civil or military, under the United States or under any State, who. having previously taken an oath as a mem ber of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an Executive or Judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or re-
t_^ *T_J
bellion against the earne, or given aid or comfort to the enemies thereof; but Congress may, by a vote of two-thirds of each House, remove sueh disability." That is the only disability mentioned in the 14th amendment to the Consti tution of the United States. Certain persons are by that amendment made ineligible to certain offices, but color is not one of the features of ineligibility. I will also read sections 1 and 2,> article 2 of the Constitution of this State:
" SECTION I. In all elections, by the People, the Electors shall vote by ballot.
" SECTION II. Every male person, born in the United States, and every male person who has been naturalized, or who has lesrallv declared his intention to become a citizen of the U-vnimt^ ed *States, twenty-one years old, or upward, who shall have resided in this State six months next preceding the election, and shall have resided thirty days in the county in which he offers to vote, and shall have paid all taxes which may have been required of him, and which he may have had an opportunity of paying, agreeably to law, for the year next preceding the election, (except as hereinafter provided) shall be deemed an Elector ; and every male citi zen of the United States, of the age aforesaid, (except as hereinafter provided) who may be a resident of the State at the time of the adoption of this Constitution, shall be deemed an Elector, and shall have all the rights of an Elector, as aforesaid. * * *"
I am clearly of opinion that this last provision refers to

3?
all citizens. That negroes are citizens no one will dispute. They were made so by the 14th amendment to the Constitu tion of the United States, and by the Constitution of the State of Georgia.
Judge Schley's argument is that citizenship in its broadest sense includes everybody men, women and children; and that if we contend that citizenship carries with it the right to vote and hold office, it grants these privileges also to women and children. But speaking of "Electors," this sec ond section, which I have j ust quoted, says that they shall be composed of "every male person born in the United States, and every male person who has been naturalized, or who has legally declared his intention, &c." A negro man is certainly a " male person." The plaintiff in error was "born in the United States." He is therefore an "Elector." The right of all qualified electors to hold office, is expressly conferred by the Code, as I shall now show.
By turning to section 1648 of the Code, it will be ob served that "among the rights of citizens are the enjoyment of personal security, personal liberty, private property, and the disposition thereof, the elective franchise " what else ? "the right to hold office, to testify as a witness, to perform any civil function, and to keep and bear arms."
It seems to me that if the sovereign people of the State, in convention assembled, have declared the negro to be a citizen, and the Code of this State declares that " among the rights of citizens shall be * ~* the right to hold office * * " the conclusion is inevitable that the plain tiff in error is entitled to hold office and to exercise the functions of Clerk of the Superior Court. The next section of the Code makes our case the stronger, for it says that "All citizens are entitled to exercise all their rights as such, unless specially prohibited by law.77 (Sec. 1649.)
Now, let us see if he has been " prohibited " from holding office. What class of persons are excluded from the right to hold office in Georgia ? Sections 3, 4 and 5, of Article two, of our State Constitution, say :
"SEC. III. No person convicted of felony or larceny before any court of this State, or of, or in the United States, shall be eligible to any office or appintment of honor or trust within this State, unless he shall have been pardoned.
"SEC. IY. No person who is the holder of any public mo-

38

neys shall be eligible to any office in this State, until the

same is accounted for and paid into the Treasury.

"SEC. Y. Ko person who, after the adoption of this Con

stitution, being a resident of this State, shall engage in a

duel in this State, or elsewhere, or shall send or accept a

challenge, ^ >

or be aider

or

abettor to such

duel, 7

shall

vote or

hold office in this State; and every such person shall also

be subject to such punishment as the law may prescribe."

And section 6, of the same article, says:
" The General Assembly may provide, from time to time, for the registration of all electors ; but the following classes of persons shall not be permitted to register, vote, or hold office: First. Those who shall have been convicted of trea son, embezzlement of public funds, malfeasance in office, crime punishable by law with imprisonment in the Peniten tiary, or bribery. Second. Idiots or insane persons."

A negro is not embraced in either of these sections, un

less he comes specially under one or the other of the enum

erated offeases. If the convention which framed this Con

stitution desired to exclude the negro, as such, from holding

office, why did they not, when making these exceptions, de

clare that

although ^j _

a colored

man was

a

citizen, he should j

not hold office ? Clearly, the Constitution never had any

such design. They thought, as everybody thought, and as

the law distinctlvi laid down,j that " citizens" having^j the right to hold office, and the negro being a " citizen," it ne

cessarily and incontrovertibly followed that he had the right

to hold office.

Let us glance at that ordinance of our Constitutional

Convention which defined the conditions for eligibility to

membership of the General Assembly at its first session. It

reads as follows:

"Be it ordained by the people of Georgia, in Convention assembled. That the persons eligible as members of the Gen eral Assembly at the first election held under the Constitu tion framed by this Convention, shall be citizens of the
United States who shall have been inhabitants of this State for six months, and of the District or County for which they shall be elected for three months next preceding such elec
tion, and who, in the case of Senators, shall have attained the age of twenty-five years, and in the case of 'Representa utimve.s", the age of twenty-one years, at the time of such elec-

39
The Constitution, article 4, section 3, says:
u I^o person shall be eligible to the office of Governor who shall not have been a citizen of the United States fifteen years and a citizen of this State six years, and who shall not have attained the age of thirty years."
Section 1050 of the Code says : " Females are not enti tled to the privilege of the elective franchise, nor can they hold any civiJ office * * ." Section 120 paragraph one of the Code says that " all holders and receivers of pub lie money of this State, or any county thereof, who have refused when called upon, or failed after reasonable oppor tunity to account for and pay over the same to the proper officers,-' shall be deemed ineligible to office. So, also, ac cording to paragraph 3 of the same section, is " any person convicted or sentenced finally for any felony under the laws of this or any other State, involving moral turpitude, the offense being also a felony in this, unless restored by pardon from the proper Executive, under the great seal of the State, to all the rights of citizenship." Paragraph 6 says: " Per sons of unsound mind, and those who from, advanced age or bodily infirmity are unable to discharge the duties of the office to which they are chosen or appointed," shall also be deemed ineligible to office. These are not all the prohibi tions that may be found, but they are nearly all; and in none of them, and in none of those that I have not read, is any distinction made as to color, nor any disqualification based on it.
L admit that a person may be a citizen in one sense, with out having the right to vote to exercise the elective fran chise ; but all persons allowed to exercise the elective fran chise must l>e citizens. If they participate in the government they are citizens. The naturalization of an alien is a grant of citizenship, and carries with it the right to hold office. The enfranchisement of the negro is a grant of citizenship and carries with it the same right to hold office. It must have been considered by the makers of our Constitution that the process of naturalization carries with it the right to hold office. Hence they specially declared that a natural ized citizen could not be President of the United States, nor a Senator until after the lapse of nine years, nor a Repre sentative until after the lapse of seven years, after his na turalization. If naturalization, therefore, did not carry with it the right to hold office, why this special Constitutional prohibition? I have seen no statute distinctly authorizing

40
a naturalized citizen to hold office conferring upon him that right. He was, before naturalization, a foreigner to all intents and purposes. When made a citizen of the United States he is a citizen for all purposes. Hence we see naturalized foreigners in the Congress of the United States, and filling various important offices of trust, as well in this State as elsewhere. And yet there is no law declaring that a naturalized citizen may hold office. Why? Because when he is made a citizen he acquires the right to hold office, independent of any statutory provision on the sub ject.
It seams to me too clear for dispute that the Congress that framed and adopted the 14th amendment to the Federal Constitution, and the Convention which framed the present Constitution of Georgia, intended the word "citizen," and the words "privileges and immunities of citizens," to be in terpreted in thsir broadest and most comprehensive political sense, granting to the native born colored man all the rights, privileges and immunities belonging to the native born white man, or naturalized foreigner, not only the right to vote, but to hold office.
It should be borne in mind, too, that at the time this Con stitutional Convention assembled, the people of the State of Georgia were legislating more particularly, perhaps, for the colored man than for any other class of the people of the State. There was greater necessity for it. For, as under the old law, in the language of Chief Justice Taney, that class of persons "had no rights which a white man was bound to respect," the intention clearly was to give them ample rights as ample as any naturalized foreigner in this State had.
It was argued in the Court below that if the Constitu tional Convention had intended to confer the right to hold office on persons of color, they would have done it in ex press terms, and not have left it to be inferred as an incident of citizenship, i^ot having done so, and having rejected what was then known as the 10th section of article 2 on Franchise and Elections, the conclusion is drawn that the Convention did not intend to confer the right to hold office on persons of color. It was in no wise necessary to place in the Constitution any such express provision. Article 11, section 3, of the new Constitution adopts, in subordination only to the Constitution of the United States and that of Georgia, the Code of laws known as "Irwin's Code." That Code, as I have shown, confers upon the citizen, by express provision, the right to hold office. Here, then, is an express

41
grant, of the right to hold office, in the Code, and the Code is recognized as the law of the land by an express constitu tional provision. The Constitution made the colored man a citizen and an elector, and if anything more was necessary to entitle him to hold office, the adoption of the Code fixed that. It would have been a work of supererogation to re affirm what already was enacted and made certain by a positive provision of the Code. Therefore, there was no necessity for the said 10th section which was so often refer red to by the Judge below in rendering his decision.
I shall not comment much on the argument of Judge Sehley, but will leave that to my associate counsel, if he chooses to do so. I will quote one remark, however, from the learned Judge's decision. He says : "If the Convention had given in express terms the right to hold office, the silence as to the elective franchise would be proper, not to say logical, because the right to hold office necessarily car ries with it the right to vote. I can put no other construc tion on this action of the convention than that they meant to give only such rights as are given in express terms ;" and he says further, "this conclusion is made certain by the re cord of their proceedings, which shows that they, by solemn vote, rejected the amendment which was offered to give the right to hold office to persons of color." ISTow, may it please the Court, I will read that "amendment" to which the Judge refers; and you will see that the word "color" never once occurs in it:
"SEC. 10. All qualified electors, and none others, shall be eligible to any office in this State, unless disqualified by the Constitution of this State, or by the Constitution of the United States."
I should like Judge Sehley, or some other learned Judge, to show me where the Convention rejected any "amend ment" or anything else "which was offered to give the right to hold office to persons of color," as such.
I did not have the honor to be a member of the Conven tion, but in looking through the history ot that body, the subsequent action that was taken on that section convinces me that there is some little unwritten history connected with that celebrated 10th section, and by referring to the old Constitution of the State, it may, perhaps, throw some light on the matter, at least inferentially. At the time that sec tion was adopted, the Constitution was in embryo; it had not been adopted as a whole. The committees were at work

42
adopting certain sections, and there were certain members who had. perhaps, some ambition to become members of the General Assembly. So I should Judge, at least, from some of the names attached to that section when reported from the committee, and from the subsequent votes taken upon the section.
By the Constitution of Georgia, adopted on the Tth of November, 1885, it will be seen that six months' residence in the county and two years' in the State, were among the qualifications for an elector. And by the same Constitution a three years* residence in the State and one year in the county were among the necessary qualifications for a Sena tor or Representative. I submit whether the inference is not strong if not conclusive that the said tenth section did
^>
not refer to colored men at all, but was moved to remove certain disabilities that were hanging over the heads of some of the members of that Convention, who were ambitious to become members of the General Assembly. They were qualified as electors and desired to remove any doubt that might arise as to their eligibility to office. I may be wrong in my surmises, but that is the view 1 take of it, and this view is supported by the subsequent action of the Conven tion. For Mr. Martin, (of Habershain,) offered, on the 13th of February, 1868, as a substitute for the 10th section, the
*/
foliowin'so:
" Xo person who is a disqualified elector, or who is dis franchised by the Constitution of Georgia, shall be eligible to any office in this State.7'"
This however, was not adopted. Then Mr. Crane, (of Towns,) proposed to amend said sec tion by inserting after the word " electors," in the first line thereof the words,> " who have been citizens of the United States for seven years.'1 That, on being put to a vote, was re jected yeas 33, nays 89. Here then, was a good oppor tunity to have fixed the status of the colored man, and to render him ineligible to office for seven years. It provided in express terms for such a result; and yet it was defeated by a majority of 56. And when the Convention came to a vote on the 10th section, the motion to strike it out was carred by a majority of 114. I ask then, how it can be said that " the Convention re jected, by a solemn vote, the amendment intending to conier, by express terms, the right to hold office, upon the colored man." Xo class is mentioned. The whole action

43
of the Convention refutes the assertion. Colored men, among others, voted to strike out; and who can suppose that they would vote to disfranchise themselves ?
An officer, may it please the Court, is but the servant of the people. He has to do their will. By no reasonable argument can it be shown that the Constitutional Conven tion intended to disfranchise ninety thousand legal voters in the State of Georgia, that is to say, render them ineligible to office. The last registration which we have of this State shows, I believe, about 100,000 white voters, and some 90,000 black. Are these latter ninety thousand, who are liable to taxation, road duty, rnilita duty, &c., to be excluded from official position if their friends of their own color and kindred choose to vote for and elect them ? In that case you would soon hear a revival of the crv of " taxation without
t/
representation." Open the doors to all; the ignorant will not get office often, if they get it at all. Let all men have an opportunity of at least showing what they can do for themselves. Do not tell a man that he must go to the polls and vote at another man's bidding. Let him vote for whom soever he chooses; and if the candidate for whom he votes is of his own kin or color, who shall blame him ? Let not the color of the skin, nor the character of the hair be the guide of action. Kather let competence and worth, intelli gence and ability, be the standard a standard that will work well alike for all.
"What I have intended to show in the preceding argument is
First. That the Constitution of the State makes colored persons citizens.
Second. That it adopts the Code, known as Irwin's Code of Georgia, as embracing the Statutes of force in Georgia.
Third. The Code provides that among the rights of citi zens is the Elective Franchise and the right to hold office.
Fourth. That all the citizens of Georgia are entitled to exercise all their rights as such, unless specially prohibited by law.
" Fifth. That colored citizens are not excepted, much less " specially prohibited by law," from holding office in Geor gia.
If I have established those propositions, it follows that the Respondent in the Court below is entitled to hold his office as Clerk of the Superior Court of the County of Chat ham, and that the Court erred in overruling the Demurrer.

44
ARGUMENT OF COL. EABTPJDGE.
COL. JULIAN HARTRIDGE, opening for the Defendant in
Error, said:
MAT IT PLEASE THE COTTRT :
There are certain preliminary, or outside, questions in volved in this case, to which it is necessary that I should first call your Honors' attention. When I say outside questions, 1 mean outside the great questions or points in volved in this case the verdict of the jury and the decision of the Court below.
I shall make no comments on the course of the Judge be low, in requesting or requiring whichever it might have been the counsel for the Plaintiff in Error to incorporate his Decision in the Bill of Exceptions, or the record: that is a matter which cannot affect the decision in this case one way or the other; but the Plaintiff in Error complains of the Court below, in the first place, because he refused to grant the motion for the continuance asked for, and referred to in the Bill of Exceptions.
That motion, may it please the Court, occurred in this way. Upon the tiling of a Demurrer by the Plaintiff in Error, to the original Application for leave to file a Quo Warranto, a continuance was moved upon the ground of the absence ot Counsel, which motion the Court overruled be cause leading counsel was present. That Demurrer was then withdrawn, and an issue of fact was filed. Upon the filing of the issue ot fact the continuance was granted, and the case was put down for trial on the 22d day of March.
I may as well say here that we are to go by the record in this case, and nothing else. I am not disposed and if I were disposed this Court would not permit me to enter into a controversy with the counsel for the Plaintiff in Error as to what were the precise facts in the Court below. This Court must go by the Record. Upon that alone, therefore, I shall predicate my argument.
Upon the 22d day of March, at the time when the case was assigned for trial, and for which time the jury had been drawn, under a special Act of the Legislature of Georgia in contemplation of the trial of cases of quo warranto at that time the counsel then reported. The Plaintiff in Error moved for a continnance on the ground that his commissions

45
had not been returned; that the testimony which he expected to elicit by the witnesses to be examined by commission, was material setting forth the facts. But, in that affidavit, it was nowhere sworn or stated that the affidavit or motion was made not for the purpose of delay but for the pnrpose of being able to obtain this testimony, nor was it stated in that affidavit or motion for a continuance that there was no other witness present by whom he, the party, could prove the facts as in the other case. The Court refused on these two grounds; and I respectfully submit that the Court was right.
Counsel for the Plaintiff in Error sav that the Court was /
wrong, because of an express statute which declares that whenever a motion is made for the continuance of a cause, in consequence of the non-return of a commission which has been sued out, it shall be governed by the same rules as the affidavit in reference to the materiality of testimony in the case of an absent witness where a party moves for a continuance on account of the absence of a living witness. Kow, he contends that the fact of the statute simply men tioning that the affidavit shall contain a statement in refer ence to the materiality of the testimony, excludes the necessity for any other statement to be made in that affi davit. To what a consequence would such a conclusion bring this Court ? If his position be correct, a party who moves a continuance in his case because his commission has not been returned, has only to swear that the testimony is material, and set forth the facts, and that is all! Term after term that testimony may fail to come. At the very first term the affidavit may be made for the purpose of delaying over. There may be truth in the fact alleged, that there w such a witness, whether in Alaska, San Francisco, or else where. There may be no truth in a witness living within the strict borders of the United States or the strict limit allowed. There may be no truth that that witness could prove the facts alleged. It may be true that an affidavit is made sometimes for delay. It may be true that there are other witnesses pres'ent who can prove the. same facts; and yet upon such an affidavit, containing this single, solitary, isolated fact, unsupported by any evidence that it is being sought in good faith, the Court is com/petted by the position taken by counsel to grant the continuance. I respectfully submit that such is not law, and that such has been declared to be not law by the Supreme Court of Georgia.
It was the rule upon which continuances were granted, before the adoption of this Code, that the applications were

controlled or governed by the requisitions, or rather the re quirements of the rules of Court. There was no statute ppon the subject, but the rule of Court became a statute by virtue of the law which authorized the adoption of these rules of Court.
Kow, these rules of Court bearing upon the absence of living witnesses, declare that certain things shall be stated in these affidavits; but it was no where said that the party should be compelled to swear that he had no witnesses pre
sent by whom he intended to prove the facts specially to be proven by the absent witness. It was then not a portion of the statute of the State, any more than it is now a portion of
the statute, in reference to witnesses to be examined under commission. And yet the Supreme Court of Georgia, in just snch a case, made the following decision. I read from 10th
Georgia Reports, page 19:

"But to the affidavit. An affidavit for a continuance

should be full, satisfactory, and direct as to the material

allegations necessary for a continuance." There are material

allegations necessary for a continuance, outside of any rule

of Court outside of any statute. The rule of Court says

certain things must be sworn to ; the statute says certain

other things must be sworn to, but they no where state that

it is not necessarv that other things should be sworn to. Iso

t'

O

Court is bound to grant a continuance unless it is convinced

that it is asked for in good faith, and absolutely necessary for

the attainment of justice upon the part of the applicant. If

the Courr sees that it is not done in good faith if the party

is not willing to swear that he does not make his affidavit

for delay only, or is not willing to swear that he has no

other witness by whom he can prove the same facts, the

Court is not bound to continue. "This affidavit," says the

Court, in the case just alluded to, " does not state whether

in fact there be any other witnesses except Hardy Bryan,

nor that the matter expected to be proved by him, could not

be established by any other witness present." There the

Supreme Court of Georgia declared that the requirements

in an application for a continuance are beyond the rule of

Court, and beyond the statute referred to by counsel. The

Court must be convinced that the party is powerless unless

this be granted. Therefore I submit that the Court below

did right in refusing to continue.

The next point, may it please the Court, is that the Court below erred in reference to allowing the opening and con-

elusion to the parties in opposition. I shall predicate my
position on the facts; I shall enter into no discussion or con troversy, but take the record as it stands, upon the statement
made by the Court below.
The [Respondent below the plaintiff in error here filed on the 4th of March a demurrer, as he called it, in writing,
and an issuable plea as to facts. Now, just there the learned counsel is mistaken with all due deference to him when he says that the law of Georgia, in common law cases,
allows pleas and demurrers, &c., to be filed at the same time. I understand no such thing in the common law of Georgia, as written demurrers, except in criminal cases.
The defendant had, however, filed a written demurrer; that is he had stated in writing that, admitting the facts, they did not show such a state of circumstances as would warrant the legal interpretation sought by the Relator's quo
warranto. But the Judge tells you that this demurrer, dated 4th of March and filed on tne same day, as was also
the answer the issuable fact which was raised, " The fore going demurrer was withdrawn on the day it was filed." In other words, the right to take oral exceptions, when he had
no other right, was withdrawn. The application for oral
exceptions was withdrawn on the same day that notice was given. The issue of fact was left alone. What was that issue'? That this man was not a negro. Upon that issue
the case was to go to the jury. The jury had been summoned on the 4th of March, and empaneled on the 22d. On that day, when moved to go to trial, the counsel for the respon
dent the plaintiff in error first asked the Court to hear
his exceptions exceptions which were the same as the writ ten demurrer, " which was withdrawn," says the Judge. What further says the Court? " Counsel for Eelator made no
objection to have it at that time." We were willing to take the question then, or during the course of the trial. We had no objection to hearing it then. It was simply a question of hearing then, the exceptions in law which could be heard
in the course of the trial. He was ruled to trial, and the Court in effect said, " I will hear your legal argument now, with the consent of counsel for the other side; but that is
all," and the Court decided that we could open and con clude. But suppose the Court erred in concluding that counsel for the Kelator had the right to open and conclude, will this Court, provided the decision of the Court below be
correct send this case back to be argued over again in a differ ent order ? If the Judge below has arrived at a correct con clusion on the great question involved in the case, will you

48
ay to him, " Yon are rigLt in jour decision, but -we want yon to Lave it argued over again in another foim. of argu ment." Tie 'RhoJe question, therefore, amounts io this: Is the Court correct in its decision ? If so it would be -waste of time for this Court to send it back to him and tell him that his dccisicn is correct, but that the case must be gone through with again. I will refer you to two cases, to show you that I am right in this. One case will be found in the 4th Georgia Reports, 360, ""Where there has been no viola tion of any rule of law, and the facts of the case have been fairly submitted to the jury by the Court, a new trial will not be granted." "We have," says the Court, "carefully examined the other grounds of error taken for a new trial, as certified by the presiding Judge, together with his charge to the jury, as contained in the record before us, and the evidence; all of which, to our minds, do not furnish any legal ground for a new trial. The law of the case, as well as the facts, appears to have been fairly submitted to the jury by the Court below, and the judgment of the Court be low is therefore affirmed."
Is ow, if the law in this case, upon the question of Demur rer, as it stood, was fairly submitted to the Court, and fairly decided by the Court, why send it back simply because the sequence or order of the argument was not correct?
In the 6th Georgia Reports I find a decision of the same Court to the same effect: " When the Court below fairly submits the facts of a case to the consideration of the jury, and there is no error in law, the Court will not disturb the verdict of that jury." There is, therefore, to my mind no reason why, if this Court holds the decision of the Court below to be correct, vour Honors should disturb that deci-
* c/
sion merely because of an error in the order of the argu ment.
The next error assigned by the respondent is as to the admission of the testimony of Jackson, relating to his acts as Register, and the reputation of White as to his being a person of color. That testimony is as follows:
"I was one of the Registers in the year 1867. There was * check put after White's name to designate him as a col ored man. A list designating persons, which had been arranged by the Board, was posted up at the Court House. I do not know whether or not it was there all the time daring the election. From these facts, and seeing him sev eral times in company with colored persons, I took him to

be one. I have seen Spaniards and Italians as dark as White. I believe White is reputed a person of color. That the list of the registered voters was put up in the Court House for two or three weeks before the election. That against the name of the Defendant the letter C was marked, indicating colored. The Registers left the list open for cor rection for three weeks before the election, and that White did not ask any correction."
It is maintained that the status of a person as a slave, or a free person of color, cannot be proved by reputation. I submit that the Supreme Court of Georgia has decided otherwise in a case found in 20th Georgia, 480. This was the case in which a question was involved whether a certain party was a free person of color or not. At page 508 will be found the following: " Was it competent for the wit nesses, Joseph Bush and Mary Rogers, to testify as to the general reputation, in the neighborhood where he resided, that Joseph !Xunez was a free person of color, and that such was their own belief? Mr. Greenleaf says: 'Upon the same principle it is considered that evidence of general reputa tion, reputed ownership, public rumor, general notoriety, and the like, though composed of the speech of third per sons, not under oath, is original evidence, and not hearsay, the subject of inquiry being of many voices to the same fact.' (1 Greenleaf Ev. 101.) As to the opinion of the witnesses, it was given in connection with, and as a mental deduction from, all the facts which come within their knowledge, and to which they had deposed."
ISTow, in this case the witness testifies as to the general reputation of this party as a person of color. He testifies as to the facts on which he based his opinion. The author ity says these are competent. It is for the jury to say whe ther the facts are properly submitted. All the declarations in the testimony of Jackson as to his acts as Register went for the same purpose. They went to show the reputation the opinion formed of this man White whether or not he was a person of color. Jackson gives no secondary testi mony, or testimony of what other people did. He gives testimony as to acts of which he was particeps. .He says that he, with other registers, put the letter "c opposite this man's name, and that he formed the opinion that he was colored from seeing him with colored people. That letter "c" was put there so that those might object who wanted to do so. White did not apply to correct it, though he was
4

rr
50
an applicant for office. Whether he saw it or not is not material.
The next error 1 find is ^ to the testimony of Dr. Yonge, founded on his medical knowledge and his opinion based on that knowledge, in his examination of White. Dr. Yonge testifies as follows:
i; I have been a practicing physician for twenty years; examined the Respondent, and gave a certificate to the Knickerbocker Insurance Company as a mulatto. I have studied the science of Ethnology, but not a great deal; this study leads one to enquire the difference of races. I came to the conclusion, however, that Respondent was a mulatto from external indications. I think any intelligent person could tell as well as I could, (if much among the negroes,) the difference between a white man and a person of color, from observation."?
It makes no difference whether a layman may be able to do the same thing as a physician or not. A physician is an expert in the eyes of the law.
Dr. J. S. Howard, sworn, says: "This book in Court con tains all applications for life insurance to the Knickerbocker Life Insurance Company. The originals are all sent on to Xew York. This application, which is signed with the name of Respondent, I think was signed by himself for his wife. I do not know his hand-writing; don't know whether he or his wife signed the name."
_i
Now. it was objected that this was secondary testimony. Secondary testimony is good testimony in some cases. The law does not always require original testimony ; if it did, it would sometimes defeat its own object justice. I need not cite to this Court in proof of this position. 1 hold that where the primary testimony is beyond the jurisdiction of the Court, secondary testimony can be admitted: and why ? Because the Court cannot force before it the original. If it has no power to compel the production of original testi mony, secondary testimony is good. If the Court had no power to compel the attendance of a witness, his testimony by commission is good.
JUDGE McCAY: Does this paper purport to be signed by White,* or b*v/ White's wife i

51
v
COL. HARTRIDGE : It is signed "R. "W. White, for his wife;" that is the rule of the insurance company; it is an insurance on his life, in favor of his wife.
GOVERNOR JOIIXSON, (of Counsel for Plaintiff in Error): 1 will take the liberty of interrupting you to say that if the original were there, it would not be evidence: there is no proof that he ever signed it.
COL. HARTKIDGE : Very well, sir. The copy was admitted in this case because the original was beyond the jurisdiction of the Court. The 21st Georgia Reports, page 219, decides this general proposition: "If the primary evidence is not attainable, secondary is admissible." The 26th Georgia, page 544, says: "When a paper is beyond the jurisdiction of the Court, verbal evidence of its contents is admissible."
The counsel says he will contend that even if the original had been in Court, it could not be admitted, because there is no testimony to show that White had signed it. I will read again the testimony of Dr. Howard:
" This book in Court contains copies of all applications for life insurance to the Knickerbocker Life Insurance Com pany. The originals are all sent on to ]^ew York. This application, which is signed with the name of respondent, I think was signed by himself for his wife. I do not know his hand-writing; don't know whether he or his wife signed the name."
The original was required to be signed by him. That original had been sent to the Insurance Company at jSTew York: this copy had been regularly made, was testified to as being a correct copy, and therefore the Court received it as the best secondary evidence of the fact, that could be ob tained.
Tne learned counsel objects also to the charge of the Judge. What was that charge? It was not specifically and technically in the language asked for by the counsel, but did it not cover the law in the case? He says, " I am requested to charge you on the character of the testimony, that where blood, race, <fec., is the subject that you can take general hearsay, or the reputation of the person in his com munity, that is, what he says of himself what others say of him. Uii associates and his general reputation as such in the COIL -Tin.litj in which he resides, &c., in order i:o deter mine as to his being a white man or a person of color."

52

And so says the Supreme Court of Georgia, in the case in

20th Georgia, to which I have already alluded. The Judge,

in the case now before this Court, says further, " Under

slavery DO records were kept of hirths or marriages among

slaves, and hence the rule as to general reputation and hear

say was more applicable to blacks than to whites. ISTow

you must look to the testimony and be satisfied in your own

minds that the facts disclose one-eighth or more of negro or

African blood in the veins of the Respondent before you

JL

V

can find for the Relator." That was the fact in issue, and

the Judge says: " You must look to the testimony and be

satisfied in your own minds that the facts disclose one-eighth

or more of negro or African blood in the veins of the Re

spondent, before you can find for the Relator."

Judge Schley continues : ' I am further requested by the

defendant to charge vou that the defendant being1 in the

_,

/

CI3

discharge of the functions of the office, the presumption of

the law is that he is entitled to the office, and it is incum

bent in the plaintiff to rebut such presumption by legal

proof, and if the plaintiff should fail to make out every point

in his case, vou must find for the defendant.' I cannot

>

9.

charge you in the language asked for, but I do charge you

as a general principle of law, that any person holding an

office the law presumes him eligible and competent to hold

the same, but that presumption refers to his acts as such

officer where the rights of others were affected, such as

attestator and other acts in the line of his office."

According to the Code, an officer de facto is a good officer,

and his acts as such are good, whether he be an officer de,

jure or not. But when the issue is made in a case in which

he is a party himself, there is no such presumption ; or in

the language of the Judge, " where, as in this case, the official

had no reference to any official act, but as to the race or

blood of the defendant disqualifying him from holding office,

there was not such presumption of law as contemplated by

the language contained in the request to charge."

Xow, what was the point ? That the Respondent had oneei*g_> hth or more of negc_>ro or African blood in his veins the only issue of fact. The Court says," You must be satisfied" of that before you can find for the Relator. While then this charge of the Judge may or may not happen to be in
precisely the proper language, if it does not violate the law, it is correct.
There is no application made to this Court for a new trial
upon the ground of a verdict contrary to the charge of tfoe

Court. The verdict of the jury is not contrary to the charge, and the evidence is presumed to have beon suffi cient. Therefore, that cannot be entertained ; but the only question is, was the Judge correct in giving the principles of the law so as to protect the respondent in his rights, and was he right in ruling in the matter as he did ? If so, that settles the matter.
Having thus disposed of the preliminary questions, I now come to the main issue in this ease. It is a question that has been so widely, and so ably, and so elaborately argued on different occasions in this State a question that has been so much the object of universal public attention that it strikes me it needs but a very brief argument on our part. It is a question to which the mind of every reasoning or thinking man has been directed, and upon which some one opinion or another has always been made. I shall, there fore, content myself with giving a brief exposition of the arguments, &c., entering into no elaboration or detail a duty which I shall leave to my associate counsel, should he deem it necessary to be done.
>
The great complaint, may it please the Court, is that the Honorable Judge of the Court below decided that a person of color, having one-eighth or more of negro blood in his veins, is not eligible to office in Georgia. He predicated that decision upon the Constitution of the United States, 'the Constitution of the State of Georgia, and the statute law of the State of Georgia. That is, he decided that nei ther the Constitution of the United States nor the Constitu tion of Georgia, nor the statute law of Georgia, having con ferred this privilege upon him, he had no right to exercise it. Why did he make that decision ?
May it please your Honor, in order to determine that matter it is necessary to go back for but a very few years to the former condition of this present applicant for the right to hold office, or rather to the condition of the race to which he belongs, as found by this jury below.
The negro population of Georgia had no rights under the law save the right of protection of the person under the criminal laws, equal with the white man. They did have that. It was the boast of the slavery institution that so far as the law was concerned, it gave the life of the slave the same protection beneath the aegis of the Constitution that it gave to the white man. The humblest slave that crawled upon the face of the State had, when he stood in the Court room, with life or limb imperilled, equal rights with the

54

proudest freeman that claimed him. as his slave. Those

were all the rights he had. The right to his person, the

right to his labor, the riorht to his services, and to the pro

duct of his labor all belonged to the white man. He had

no natural rights belonging to a freeman ; that is, no nat-

nral rights in the State recognized by the decisions of the

Supreme Court of the United States and other Courts, ex

cept this right of protection to person and life, given by the

Constitution of the State itself.

But. in the change of events by the result of war put

it, if you please, under the Emancipation proclamation, or

under the Convention of Georgia his chains fell from his

limbs: that is.t his ima<^_> inarv> chains. He became a freeman,' and was elevated to the same standard as all freemen in all

lands in the known world. That is, he became possessed of

certain inalienable personal rights, by being emancipated.

These rights were given to him by the Legislature of Geor

gia, in definite terms, bv statute. Thev gave him the right

^^

*

J

w

ts (_i



CJ

to go into the courts, to sue and be sued; the right to testify

in certain cases; the right to have his person and property

protected ; the right to pursue the path of knowledge, or of

wealth and the acquisition of the one or the other just like

a white man. They gave him these inalienable personal

rights: i?o man could thenceforward lay his hand upon him

and say, -'You are my slave.'' They gave hi w that, and

nothing more.

Then came the Fourteenth Amendment passed by the

Cong*_*ress of the United States which made him a citizen of the United States. Then came the Constitution of the

State of Georgia that gave him the same rights, he being

a "male person." These two gave him the inalienable natu

ral rights of a citizen ; but nothing else. They simply con

templated giving him the rights of a freeman, and taking

away from the legislative power the right to take them away

from him. They made him a citizen just as they made wo

men citizens, and as they made infants citizens. They gave

him the same inalienable rights that infants have nothing

more, nothing less. These were given him by the Four

teenth Amendment. There is no necessity to go back of

that, to the Civil Rights Bill. They are all merged in the

Fourteenth Amendment, which is copied, almost literally,

in the Constitution of Georgia.

The Fourteenth Amendment to the Constitution says: "SECTION 1. All persons born or naturalized in the United

55
States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. ISTo State shall make or inforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law ; nor deny to any per son within its jurisdiction the equal protection of its laws."
The Constitution of Georgia, section 2, Article 1, says:
" All persons born or naturalized in the United States and resident in this State, are hereby declared citizens of this State, and no law shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States or of this State, or deny to any person within its juris diction the equal protection of its laws; and it shall be the duty of the General Assembly, by appropriate legislation, to protect every person in the due enjoyment of the rights, privileges and immunities guaranteed in this section."
These clauses give him the rights, privileges and immuni ties of a citizen of the United States nothing more, noth ing less. What were the privileges and immunities of citi zens of this State which they conferred upon him ? They were these general, generic, natural rights inherent in all freemen.
I read from ; page 381, Washington's Circuit Court Re ports, Yol. 4:
"The inquiry is, What are the privileges and immunities ot citizens in the several States ? We feel no hesitation in confining these expressions to those privileges and immuni ties which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which at all times have been enjoyed by the citizens of the several States which compose this Union from the time of their be coming free, in dependent and sovereign. What these funda mental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following heads : protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, neverthe less, to such restraints as the government may justly pre scribe for the personal good of the whole. The right of a

56
citizen of one State to pass through or to reside in any other State for purposes of trade, agriculture, professional pur suits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citi zens of the State: may be mentioned as some of the par ticular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental:> to which mav/ be added the elective franchise, as regulated and established by the laws or Constitution of the State in which it is to be exercised."
In the Dred Scott case. 19 Howard, the same thing is de cided in the Supreme Court of the United States, from the lips of Chief Justice Taney:
" Undoubtedly.'* says he, " a person may be a citizen, that is, a member of the community who form the sover eignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Wo men and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualifications cannot vote or hold the office, yet thev$j are citizens.
" So. too. a person may be entitled to vote by the law of the State who is not a citizen even of the State itself."
The Constitution of Georgia declares that only those are citizens who are either born or naturalized citizens of the United States, and yet the same Constitution gives the right to vote to a man who is not a citizen, but who has only de clared his intention to become such.
"So, too.'' says Chief Justice Taney, in the decision just alluded to, "a person may be entitled to vote by the law of the State who is not a citizen even of the State itself. And in some of the States of the Union foreigners not natural ized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and im munities in other States does not apply to them.
"Xeither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes

subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but be long to an inferior and subject race; and may deny him the
privileges and immunities enjoyed by its citizens. " But so far as mere rights of person are concerned, the
provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State as to voting or holding office, or in any other respect."
The learned Judge below referred to a case in 4 Dev., and a decision recently made by Justice Swayne, going to show that the fact of one's being invested with the rights of
citizenship carries nothing with it but these inherent, fun damental rights common to a free people in all countries. The Constitution does not use the word "male" in connection with citizenship. It says "All persons born or naturalized,"
&c. The child that has breathed the breath of life but one hour, is a citizen as much as the man of eighty, who is trembling on the verge of the grave.
I take it, then, that the Fourteenth Amendment and the Constitution of the State of Georgia did not confer on a person of color the right to hold office. The Plaintiff in Error here was before deprived of all rights of a political character. He had but a portion of personal or fundamental rights. When, however, he was elevated to the position of a citizen, he was placed above the standard by which he had
been formerly judged. He was given all these fundamental rights; and began to enjoy all the rights given to him by
the Constitution and statutes of Georgia, and the Constitu tion of the United States; inalienable rights, which cannot now be taken from him except by sovereign act of the peo ple, by a change in the Constitution of the United States. They did not carry with them the right to hold office, be cause, as the Court below says, the same right would have been carried to women, and even to children but just born.
Now, then, if the Constitution of the United States, by this general clause, and the Constitution of the State of Georgia, by this general clause, making them citizens of the United States, and of Georgia, did not give them the power
to hold office, whence can the power be derived ? It is said the Constitution of the State of Georgia did so, by another
section, which declares that

58

" Every male person born in the United States, and every male person who has been naturalized, or who has legally declared his intention to become a citizen of the United States, twenty-one years old or upward, who shall have re
sided in this State six months next preceding the election, and shall have resided thirty days in the county in which he
offers to vote, and shall have paid all taxes which may have been required of him, and which he may have had an op portunity of payinsf agreeably to law, for the year next pre ceding the elction, (except as hereinafter provided) who may be a resident of the State at the time of the adoption of this
Constitution, shall be deemed an elector, and shall have the rights of an elector as aforesaid.' 7

Mark. now. that this clause of the Constitution conters

the rights of an elector upon a party who is not a citizen.

One clause declares that ''All persons born in the United

States or naturalized.*' <fcc., are citizens; another the one

just quoted gives to persons who are not citizens of Georgia

the "right to vote. A woman " born in the United States or

naturalized." etc., cannot vote: A male infant, though he

mav t,

be

twentv *

vears
.

and

eleven

months

old, *

with

education. *

with intelligence, with appreciation of government and of

polity, understanding the relations of governments and able

to judge well the wise from the unwise, cannot even vote,

though he is a citizen : while those who are not citizens, but

foreigners subjects of another government, who at any

time may abandon this country to return to their own gov

ernment, and who in time of war inav be claimed by that

governm* ent can vote in Georgia.

*^_
The

first

right


confer

red the fundamental right is the right of protection, in

property and in person, as the Supreme Court says. Upon

that fundamental foundation, you build up a superstructure,

and go up by degrees to the capstone. First, the funda-"

mental rights ; then the right to vote tliat is, the right to

say who shall govern and control the country who shall

direct its legislation who shall execute its laws. Then

comes the right to be one of those who shall legislate re

quiring the highest degree of intelligence the very point of

the pinnacle. That makes the privileges of the citizen full

and complete; and enables the man possessing it to stand

forth in his full proportions before the world as a full, free

and competent citizen. First, protection in his rights.

Second, investing him with the privilege of selecting who

shall govern. Tnird, with that of governing himself.

The argument of the learned counsel that the right to vote

59
carries with it the right to be voted for, gives the right to be voted for to aliens, whose allegiance may be due to some other nation or sovereign, whose affections, whose memories, whose everything may lie beyond the ocean ; while the intel ligent and active young men and women of the State can not do it.
It never was contemplated by this Constitution that the right to vote should carry with it the right to hold office. It is a principle of law that the construction of a statute is to be deduced from the language of the law itself and not from the individual declarations of legislators; when you want to judge of the intention of legislation, then the acts and sayings and doings of the body creating the law are pertinent to throw light on the subject.
The learned counsel refers to the 10th section the section afterwards stricken out. It was proposed by a committee who must have been impressed with the necessity for such a provision, otherwise they would not hwe reported it. This section declared that all duly qualified electors and none others should be eligible to office. Now the article of the Constitution conferring suffrage had made the negro man an elector; therefore the declaration in that article to the effect that all electors would be competent to hold office included the black man. There was no necessity to mention his name. This section was stricken out by the Convention themselves. Why ? We say because it was not intended to be there. The learned counsel contends that they didn't think it necessary to put it there, because they adopted the Code, and the Code declared that among the rights of citi zens should be the right to hold office. But the Code had already declared the right to vote to be among the right of citizens, and yet it was thought necessary to put it in the Constitution If it were unnecessary to put in the Constitution a section giving to colored people the right to hold office, it was equally unnecessary to put in a provision giving them the right to vote. We say the Constitution itself did not give the right to hold office. Without read ing the authorities which the learned counsel will give who will follow me, I can refer you to the acts of the United States Congress. They conferred upon electors in the District of Columbia the right to vote, as will be shown by the statute which will be read to you. They conferred upon all citizens, irrespective of color, and all citizens in the territories, the right to vote, and yet they found it necessary afterwards to pass acts declaring that the black man had the power to hold office. The very discussion on the 15th amendment will

60

speak for itself in this matter. 'Vfhen the Convention

adopted the Constitution it is clear that they were not im

pressed with the idea that the right to vote carried with it

the right to hold office. But it is said they knew the Code

of Georgia conferred the right to hold office upon black men.

Does the Code of Georgia confer that power ? I hare tried

to show,j uyour Honors,> that the Constitution of the State of

Georgia, in making them citizens, did not give them that-

right; nor did it give it to them by giving them the right to

vote. Xow, if the Constitution did not give it to them, does

the statute law of the State do so I For, unless something

gives it to them, they have it not. They had it not in the

be<__^innini^_r^ ;f the white race from time immemorial had it. The class who were slaves had been elevated by degrees,

taken out of the mud and mire,> and now it is soutg^3 ht b*v/ their friends although but four years have elapsed since

thev were submerged in the verv slouch of ignorance

to

u
elevate

them

to

C
the

very

*J
stature and

O

O

proportion

of

a

free

white, intellectual citizen. But the learned counsel says,

"open the doors!' : Open the doors for ignorance to associate

with intellect; open the doors for the eutrance of these ele

ments that are so malleable in the hands of those who seek

to use them I Open the doors for them who seek to control

this government by numerical power! I deprecate in the

name of mv fellow-citizens, and in the name of humanitv

/

^

e

nay. in the name of this very race itself I deprecate such

a result. Wait until they are fit. Wait until they have

shown that they have the capacity for government before

you place in their hands the very capstone of the edifice.

Section 1648 of the Code of Georgia says " among the rights of citizens are the enjoyment of personal security, ot personal liberty, private property, and the disposition thereof, the elective franchise, the right to hold office, to
appeal to the Courts, to.testify as a witness, to perform any civil function, and to keep and bear arms.'7

When was that passed ? It was when this country was a white man?s country when the white man alone was recog
nized as a citizen when the capacity for self-government was supposed to exist only in the white race. The very Ar ticle from which it is taken went as far as the population of the State. First, stand citizens, highest in rank; second, aliens; third, persons of color not as citizens, when this
clause was originally adopted, but in the lowest grade of the population of the State. That Code was adopted then,

61
and it declared that " all citizens were entitled to exercise all their rights, unless specially prohibited by law " mean ing what? That you could not prohibit citizens of one grade or the other the male white, the female white, the infant white, the person of color from the exercise of any rights of citizenship which belong to their particular class. It did not mean that you could not prohibit the white wo man from voting or holding office; that you could not pro hibit the white infant from voting or holding office; that every right which belonged to each class of citizens could not be taken from it, unless specially prohibited by law.
The laws state that infants and females shall not vote or hold office. The Code says they cannot do it. They were prohibited from exercising them. Now, how is it about the persons of color? This clause as to the rights of citizens be came the statute law of Georgia originally when there were no persons holding office or able to hold office but white citi zens. There were citizens of several kinds male citizens, female citizens, infant citizens. Then there were persons of color, recognized by the Code as a lower portion. Now, the Constitution of Georgia adopted this Code. And how ? It declares that in subordination only to the Constitution of the United States and of the State of Georgia shall be:
" 'All acts passed by any legislative body, sitting in this State as such since the 19th day of January, 1861, inclu ding that body of laws known as the Code of Georgia, and the acts amendatory thereof, or passed since that time, which said Code and acts are embodied in the printed book known as " Irwin's Code; " and also so much of the Common and Statute laws of England and of the Statute laws of Georgia, as were in force in this State on the 19th day of December, 1860, as are not superseded by said Code, though not embod ied therein, except so much of the said several Statutes, Code and Laws as may be inconsistent with the supreme law herein recognized, or may have been passed in aid of the late rebellion against the United States, or may be obsolete, or may refer to persons held in slavery, which excepted laws are inoperative and void. * * * "
Now let us read Section 1661 of the Code, which that ar ticle of the Constitution adopted: "All negroes, mulattoes, mestizoes, and their descendants, having one-eighth negro or African blood in their veins, shall be known in this State as persons of color." That does not come in conflict with the Constitution of the United States, nor with that part of

62

the Constitution of Georgia which says tliat persons of color

shall have the rigC?ht to make and enforce contracts,> to sue and be sued. &c. a section prescribing what shall be the

rights of persons of color nowhere giving them the right

to hold office. It was passed after they were free. So far

as it did not give them the right to vote, it came in

*-j

!_/

'

conflict with the Constitution, and therefore this section

could not take it from them. But, the Constitution giving

them nowhere the right to hold office, it does not conflict

with it. This is a portion of the great scheme adopted by

the Constitution itself which continues in force all portions

of the Code not inconsistent with the Constitution. This is

one portion of the Code. It is a portion of the matters on

which they are legislating "in pari mater-ia" It relates

to the status of the different classes of citizens. ISTow, I

maintain that these portions of the Code, of which I have

spoken, do not conflict either with the Constitution of Geor

gia or the Constitution of the United States, as I have en

deavored to show your Honors.

These sections must be considered as one Act. They were

all passed since the time of slavery. They must be recon

ciled : for the law with regard to the construction of stat

utes is. that you must make them all stand together, if you

can. These do stand in harmonv. The Legislature has

,

f^_j

adopted the Code, and with it these sections the original

law, passed at a, time when negroes were not citizens. They

have adopted another portion, passed when negroes became

freemen. One portion says that among the rights of citi

zens shall be the right to vote. The Convention did not

think that that gave it to the negro, so they gave it to him

in the Constitution. The rights of persons of color are de

finitely and specifically given, and nowhere the right to hold

office. The latter clause the causa altera is more particu

lar, and the former is more general; therefore, the latter

circumscribes the former.

I refer your Honors to Dvrarris on Statutes. He says :

' The general words in one clause of a statute may be re

strained by the particular words in the same claitse of a

statute." And, hardier, "As one part of a statute is pro

perly called in to help the construction of another part, and

is fitly so expounded as to support and give effect, if possi

ble, to the whole; so is the comparison of one law with

other laws made by the same Legislature, or upon the same

subject, or relating expressly to the same point, enjoined for

the same reason,' and attended with a like advanta-gc>e. In applying the maxims of interpretation, the object is through-

63
out first, to ascertain by legitimate means, and next, to carry into effect the object, of the frarner."
Isow. -when the Constitution adopted this Code, what did it intend ? To adopt these laws under the rules of the in terpretation of Statutes under the rule that all parts of these laws, as one or more statutes, should stand together, if possible. They were the frainers, and that was their in tention.
" It is, therefore," says Dwarris, an established rule of law that all acts inpari matcria are to be taken together as if they were one law."
Here are two about citizens of different kinds. You must take them together. Both have been adopted by the Con stitution, " and," Dwarris further says, " they are directed to be compared in the construction of statutes, because they are considered as framed upon one system and having one object in view."
u The 22 and 23 Car. 2. c. 10, for the better settling of in testates' estates, is continued, with some additional clauses, by the 1 Jac. 2 c. IT. It was holden by Lord Hardwicke, Chancellor, that for this reason the latter statute must be construed as if the former had been therein recited.
ki Where acts are in pari 7/iateria, if the same word be used in both statutes, a distinction made in the one is a leg islative exposition ot the sense in which it is to be under stood in the other."
]Srow, if you take both of these statutes as they stand : First, that the general rights of citizens are so and so, and then, that the rights of other citizens are so and so, how are you to do it unless the latter circumscribes the former? The rights of a citizen in his full superiority and capacity, the rights of a freeborn, educated, capable white citizen are one thing ; and the rights of a citizen of the lower class the class just taken from ignorance and vice, whose chains have just been stricken from their limbs the rights to which they, in the eyes of the Legislature, are competent, and to which alone they can properly aspire, form another and quite a different thing. The rights to which free born, educated white male citizens are entitled, and to which they may aspire, are those mentioned in the first section ; while those in the second are the rights to which the lower classes referred to, may aspire. You must take these two sections as a harmonious wnole. Says Dwarris : " The intent of the

64
Legislature is not to be collected from any particular expres sion, but from a general view of the whole act of parlia ment."' This Code is one whole act, made so by the adopt ing clause of the Constitution of Georgia. "Again, when in several statutes inpari -materiel, the Legislature is found sometimes" inserting and sometimes omitting a clause of re lation, it is to be presumed that their attention has leen draicn to the point, and that the omission is designed" This might be said to be such a case. We have first a section stating what shall be the rights of citizens, that is, the higher class of citizens. Further on we find legislation for another class of citizens; and the rule says, it is to be presumed that their attention has been drawn to the point, and they failed to change it.
It is not to be supposed that our legislators would elevate at one bound, without trial or experience, to the standard of the educated and capable white citizen, a class of persons just emerged from slavery. Having given them first the iundaniental rights of citizens, and next the right to vote, they concluded that they had done all that was necessary and proper for them to do.
I respectfully submit to your Honors, in conclusion, that unless you can find in the Constitution or Statutes that spe cific- or express grant to the negro, of the right to hold office, you cannot by implication clothe him with it; for all the implications are to the contrary the implications of law, of reason, of common prudence, and of humanity.

65

AKGUMEOT OF COL. AMOS T. AKEEMAK

COL. AKERMAN, for Plaintiff in Error, said:

MAY rr PLEASE YOUE HONORS :

The question is, are colored men eligible to office in Georgia?

There is nothing in the Constitution or statutes disquali

fying them expressly. But it is argued on the other side

that, having been disqualified under the ancient institutions

of the State, they remain disqualified unless qualified by

distinct and positive enactment. This argument ignores the

revolutionary deluge which has swept over the land, and as

sumes that the ancient polity of the State is still our polity,

that the present government is a continuation and not a

new creation.

This assumption is a fundamental error. The authorities

of the United States have twice declared that the war left

Georgia without civil government, and these declarations

have received the express or implied assent of all the people

of the State. President Johnson's proclamation, of June

17th, 1865, and the Keconstmction Acts of 1867, both un

dertake to provide a government for a State which has none.

The language of the proclamation is, " The rebellion in its

revolutionory progress has deprived the people of Georgia

of all civil government." The language of the'Reconstruc

tion Act of March 2d, 1867, is, "Whereas, no legal govern

ments now exist in the rebel States of Georgia," <fec. Both

these instruments establish new bases of suffrage and eligi

bility for the Conventions which they authorize.

From these two sources have sprung the only State gov

ernments which have demanded the obedience of the people

of Georgia since Mt*y, 1865, and one or the other of these

governments has received the voluntary support of every

citizen of the State. For in that warm popular conflict

which began in March, 1867, and was formally terminated

in January, 1869, by the abandonment of the suit brought

by Governor Jenkins in the Supreme Court of the United

States, every one of our citizens ranked himself among the

adherents of the government initiated by the President, or

among the adherents of the government initiated by Con

gress.

'

The Supreme Court of the United States is reported to

have decided, in a late case, that the old government of

5

66

Mississippi was destroyed by the war, and the same must be

true of Georgia. So. all the departments of the Govern

ment of the United States, and all the people of Georgia,

have concurred in recognizing the destruction of the ancient

government of the State. So complete was this destruction

in the judgment of the Convention of 1S65 and of that of

1867-S, that they thought it necessary to re-enact the body

of our common and statute laws. There is a significance 111

current terms. We do not saiv/ that the Ogovernment has been amended, repaired, or remodeled, but reconstructed

that is,> wholluv built anew. And the essential newness of the structure is not disproved by the fact that some of the

old materials have been used. This reconstructed govern

ment beinsr the authority under which this Court sits, I shall

---

&

*

confine my inquiries to its rules and principles on the mat

ter at bar. These must be sought for in the Constitution of

lS*iSj and in the conformable statute law.

Looking at the Constitution, we find citizenship, and a

certain age, residence and professional standing are required

of those who shall fill a fw specified offices; and for no

other office is any qualification specially laid down. There

are certain disqualifications for any office, to wit: unpar-

doned ielon*vj and larceuv .' holdincg_> pi ublic inonetv,' unaccounted for, dueling, treason, embezzlement, malfeasance in office,

bribery, idiocy and insanity. Neither European blood is

made a qualification, nor African blood a disqualification.

Black and white are words not found in the instrument.

Under the maxim, the expression of some is the exclusion of

others, it may be fairly argued that all are qualified who

are not expressly disqualified. But it may be asked, whom

do I mean by all 1 for no one can mean so absurd a thing

as that all persons on earth, or in the State, not of the

classes expressly disqualified, are eligible to office. I an

swer, all to whom political functions are given by the Con

stitution ; all who act in matters pertaining to the govern

ment; all who in a strict political sense we denominate the

peopk. And these are the voters. These constitute the

poEtical family. In these resides the sovereignty, if we

nave any such thing in this land. All public business' is

their business, and is done through agents only for conven

ience. These agents we style officers. These elementary

truths are no where better expressed than by Mr. Webster,

in one of his speeches in the Senate. - Government," says

he, " is an agency created for the good of the people, and

every person in office is the agent and servant of the people.

Offices are created, not for the benefit of those who are to

fill them, bnt for the public convenience." Works, Vol. VI, page 183.
IN'ow, it is unquestioned that colored men are voters in Georgia. Exercising that primary function, is it not accord ing to reason that they should be eligible to the derivative functions, when not expressly disabled ? In the absence of positive disqualifications, the right to vote includes eligibil ity to office; the capacity to select includes capacity to be selected; a capacity to be a principal includes a capacity to be an agent; a capacity to depute includes a capacity to be deputed. If colored men are part of the fountain, why are they not a part of the stream that flows from that fountain ?
Of course, the people in framing a government may con fine certain functions to a part of their body. When they have not done so, all themembers of the political corpora tion are presumed to be equal in rights and franchises. The doctrine that suffrage includes eligibility is not new. It was recognized ages ago in the composition of the English House of Commons. " The capacity to elect and to be elected were originally considered the same, and used as convertible terms." Dwarris on Statutes, 190.
The learned Judge below places eligibility to office in a higher rank than suffrage. However correct this may be in the popular view, it is not correct in the view of the law. In the republican theory, an officer is above the people only as a wave is above the sea from which it rises, and to which it returns as soon as its brief prominence is over. The servant is not above his master. His Honor's view is derived, per haps unconsciously, from European ideas. According to the monarchical theory, the sovereign gets his authority from Heaven, and all officers, being his representatives, and partaking in some sense of his superiority, are above the people among whom they officiate. Our officers derive their power not from a source above the people, but from the people themselves.
The learned Judge below argues against the doctrine that eligibility goes with suffrage that it leads to the conse quence that a foreigner who has declared his intention to become a citizen would be eligible to office; for such a for eigner can vote. The learned counsel on the other side (Mr. Hartridge) has pressed the same argument this morning with great earnestness, and pronounces such a consequence mon strous. That such is a consequence of the doctrine, I admit; but it does not frighten me. Seats in our executive and legislative chairs, and in our highest judiciary, are restricted

68
to citizens by the terms of the Constitution. And in case of the minor offices, snch as clerks, sheriffs and constables, if a man born abroad so commends himself to his neighbors here that with all their partialities for their own country men thev^/ will trust him. in office after a short residence,f I cannot believe he will endanger the State. The probability that a foreign powei would endeavor to overturn our Gov ernment througoh such agoencies is scarcel<y> sufficient to require the rejection of a sound principle in order to escape that consequence.
Equality of right under this government is to be pre sumed in favor of all who participated equally in the for mation of it 1 English (Ark.) Rep. 512. Colored men voted here on the queston whether there should be a Convention, and for delegates to the Convention ; colored men sat in the Convention; colored men voted on the ratification of the Constitution.
The old ccrovernment of Georcgia was made exclusively/ by/ white men, and might properly be termed a ;> white mail's government." Its primary franchises were restricted to white men. The present government was made by men of both races. Its primary franchise is bestowed without dis tinction of color. It was the genius of the old government that the white man should take everything by implication, and the negro nothing. It is the genius of this government that It6 implications should be without distinction of color. There, in the case of the colored man, privation of all rights, personal, civil, and political, was the rule; and possession of right was the exception. Here, participation in all rights w the rule, and privation is the exception.
The disabilities of the free negro under the old govern nieut grew out of the institution of slavery, and were a part of the bulwarks by which it was protected. Bryan vs. Walton, 14 Geo. Rep., 202. The cause ceasing, the effect, should cease. When slavery fell, there fell also all the rights, members and appurtenances thereunto belonging. Why try to preserve the incidents when the principal thing Lac perished ' Slavery has gone, with its rights of property and mastery, and its duties of protection ; with its hardships and its mitigations ; with ite relations, sometimes forbidding, but often tender and affectionate; with its practices, some times harsh, but generally kind much kinder, in fact, than a btrfcjiger would infer from the written law and why shonld not its theory of political caste go too $ If in good faith we have given it up, let us give it up totally. Having lost the substance in a fair and gallant fight, let us not cling

69

fco its appendages. Let us dismiss its jealousies, its apprekett*

sions, its prej ndices, its modes of thought, and its rules for in

terpreting constiiutions. Its doctrines and spirit are out of

place in a government based on liberty. If Georgia had

never been a slave-holding State, and were now organized

for the first time under this Constitution, this question

would never have been raised. Shall a dead institution for

ever haunt us, and be allowed the privileges of the living?

It has been said that in adopting the old law of the State,

the Constitution kept in force such of the old disabilities of

colored persons as were not distinctly repealed. It will,

however, be seen from the adopting clause, Article IX, sec

tion 3, that obsolete laws are excepted from the adoption.

This clause was not in the Constitution of 1865, and was

probably inserted with a view to the laws growing out of

slavery, though not referring directly to slaves; for the law

of slavery is repealed in the next clause. It will be ob

served, *

too, 7

that

no

such

thing O

as

the common

law

of

Geor-

gia is adopted, and many of the disablities of free colored

persons rested alone on usage, which is, in fact, a common

law. The common law adopted is that of England, which

is against slavery and all its incidents. There is also a repeal

ot all law inconsistent with the Constitution, and I have

endeavored to show that the Constitution authorizes no dis

crimination in political rights on account of race.

In the interesting argument for the defendant in error

made this morning, (by Mr. Hartridge) we were told that

among the rights now belonging to the negro, and first con

ferred by the Constitution of 1865, is the right to pursue

the path of knowledge. That right is very restricted, if the

old law in relation to free persons of color be law still where

it has not been distinctly repealed. Where will yon find a

distinct repeal of the laws that forbid the instruction of that

race ? Perhaps in the Constitution of 1868, which provides

for the education of all the children in the State. But that

provision is thought by some to have spent itself in a man

date to the first Legislature which should assemble under ^j
that Constitution a mandate which, unfortunately, has not

been obeyed. And even if that provision is still in force so

as to secure the right of receiving instruction, we remember

that there was a law on our ancient statute book making: it

penal for a free negro to teach a free negro to read. Why

is not this law still in force under the doctrine of 'the defend

ant in error that the ancient disabilities of free negroes are

yet existing where not distinctly repealed ? Under our doc

trine that the present Constitution gives them every civil

TO

and political right possessed by whites, tlie free negro can

be a teacher as well as a scholar, without hindrance from

the law, and we avoid the inhuman conclusion that a col

ored man is subject to imprisonment for instructing his own

race.

I come now to the question, What did the makers of our

Constitution understand it to mean upon the matter here in

issue? Says Chief Justice Taney, in the case of Dred Scott,

19 Howard 404 : " The Constitution must be administered

according to its true intent and meaning when it was adopt

ed." In the case of Padelfbrd & Fay vs. The Major and

Aldermen of Savannah. 14 Ga. Rep.. 454. the Supreme

Court of Georgia, through Judge Benning, says: " The Con-

Btitution. like every other instrument made bv men, is to be /
construed in the sense in which it was understood by the

makers of it at the time when they made it." To ascertain

that sense, the Court resorts to the debates in the Conven

tions and to the popular discussions of the times, quoting

both from the friends and opponents of the Constitution.

The same rules are applicable to the present inquiries.

In discussing- events so recent as the formation of the

present Constitution of Georgia, we are under the disad

vantage of touching the controversies of the hour. But we

also have the advantage of dealing with matters that have

happened within our own memory, and of access to abund

ant sources of information.

The makers of our Constitution were, first, the Conven

tion that framed it; next, and perhaps most efficiently, the

people who ratified it; and finally, the Congress of the Uni

ted States, which claimed the right of approving it before it

could become our fundamental law.

There was action on this subject in the Convention three

times. The report of the Committee on Franchise, after

prescribing who should vote and who should be disqualified

for office, contained the following provision, numbered as

the tenth section of the report: "All qualified electors, and

none others, shall be eligible to any office in this State, un

less disqualified by the Constitution of this State, or by the

Constitution ot the United States." Journal; page 150. On

the 13th of February, 1868, a motion was made to amend

this section by inserting after the word " electors," the

words "who have been citizens of tue United States for

seven years." /

It was well understood in the Convention

what was intended by this amendment. As colored persons

had just attained citizenship, it would debar them from

office for seven years. On this amendment the yeas were

i
71
thirty-three, and the nays eighty-nine. Journal, pages 308-9. By that vote the Convention refused to impose a disqualification on colored men even for the limited term of seven %yj ears.
The next day the vote was taken on a motion to strike out the section altogether, and the yeas were one hundred and twenty-six and the nays were twelve. Journal, pages 311-1*2. I will remark on this vote in a moment.
The next day, the 15th, a motion was made to reconsider this last vote, for the purpose of inserting as a substitute for the section the following :
" White men, only, shall be eligible to any office of trust, honor, or profit, or employment, whether municipal, judicial or political, in this State, and white men, only, shall serve as jurors in the Courts." On this motion the yeas were nineteen, the nays one hundred and three. Journal, pages 322-23.
So it stands upon the record thus : The Convention twice refused to deny eligibility to the colored man, and once re fused specifically to give him eligibility. And the action latest in date was against denying him eligibility. But we are asked to account for the vote on the 14th of February, striking out the tenth section. As well as one can know the minds of other men, I know that a large majority of the members who voted to strike out the tenth section, did so under a conviction that it would be superfluous if it re mained. It was not so with all; it was with the greater part, probably jnrith all but the thirty-three who had voted to deny eligibility for seven years. Some of the members believed that eligibility was a derivative from citizenship; some that it was a derivative from suffrage; and some traced it to both these sources; probably three-fourths believed that it would exist as well without as with the tenth section. There was only one speech against the motion to strike out. The speaker thought it would be better to leave no chance for dispute or litigation upon the subject, and therefore opposed the motion. Bat he emphatically stated in his remarks, a synopsis of which appears in a newspaper of the day, that 44 it was well understood that a majority of the Convention held that negroes would be eligible to office even though that section were sticken out." This statement was gainsaid by nobody. It passed unchallenged in that body as the truth of the case.
The Constitution came before the people for ratification. There was full discussion by speakers and writers. Some of

72

those who argue this case, and some of those are to decide

it. /

eng^^ agt_' ed

in

these discussions.

Your Honors understand

that I refer to those discussions with no desir^ to bring into

this forum the popular passions which then raged, but be

cause the reference is necessary in order to ascertain what

the people meant when they ratified the Constitution. Lead

ing friends and leading opponents of the Constitution gave

to the people their respective interpretations, audthese in

terpretations were accepted by their respective followers.

And this is the way the parties stood before the people upon

the subject now under discussion. The opponents of the

Constitution all represented it as giving the negro the right

to office. The large majority of the advocates of the Con

stitution gave it the same construction; a minority of its

advocates, including some gentlemen of great eminence,

held the contrary, but on every occasion candidly said to

the people that there was a difference of opinion among the

friends of the Constitution on this point; they took every

precaution to let the people know that their construction

was not unquestioned; they never denied that the majority

of the Convention held to the opposite construction.

The formal attack on the Constitution was begun in this

city of Atlanta, the day before the Convention adjourned.

A gentleman who was exceedingly conspicuous in all the

discussions upon the subject of reconstruction (Hon. Benja

min H. Hill) on that day addressed a meeting here, and, to

use the current phrase, "laid down the programme" of op

position to the Constitution. In that speech, of March 10th,

IStiS. which was published in the Atlanta Daily Intelli

gencer of March 13th, 1S6S, Mr. Hill said, "I assert, and

assert it without fear of contradiction, that this Constitution

makes the negroes politically equal in all respects. It

makes them equal as to the right of suffrage, and equal as to

the right to hold office." From this position of their ac

knowledged leader, there was not a word of dissent expressed

by the opponents of the Constitution, from that day until

the ratifying election, which began on the 20th of April,

186S. Though of course I could not have heard all that was

said, or have read all that was printed on the subject, I feel

anthorized to make this statement, from a very vivid recol

lection of the discussion preceding that election.

It may be safely assumed that the masses of the people

were divided on this question in about the same proportions

as their leaders. They would then stand as follows in round

numbers: The seventy-one thousand who voted against rati

fication (but who having voted at the election, are bound by

it) Voted with, the understanding that tlie Constitution made colored men eligible. Of the eighty-nine thousand who voted for ratification, the large majority, probably threefourths, voted with the same understanding. Thus, as near
as can ascertained, about one hundred and forty thousand voters at that election agreed to the construction that makes colored men eligible, and about twenty thousand considered them ineligible.
The action of the people in the choice of officers at the same election at which the Constitution was ratified, proves that the colored men were generally supposed to be eligi ble. They were candidates for office whenever they chose to be, and many of them were elected and peaceably entered on their offices. In the enlightened county of Chatham, the
very party who brings up this case was chosen at that elec
tion. If there had been any serious doubt of their eligibil ity, it is not at all probable that so many of them would have sought or received an election.
Thus we have, so far as such things are ascertain able, the sense of the Convention and of the people. Congress has not made any positive declaration on the subject. The Con-' stitution was approved generally by an act passed June 25, 1868. But the only difficulty in Congress with regard to the reconstructed States has occurred in the case of Georgia, and it is well known that much of that difficulty has grown
out of the exclusion of colored members from our legislative bodies. Hence it may be inferred that the Congress which
ratified the Constitution construed it in the same way as the Convention which framed it and the majority of the people who ratified it.
If the right of eligibility were not established by the fore
going considerations, it would still exist by our statute de
fining the rights of citizens, as has been well shown by my associate counsel (Col. Stone.) The Constitution adopts the Code as our statute law until repealed. The Code, para graphs 1648,1650 and 1651, declares that eligibility to office
is amongr the rigrhts of citizens of the lawful age, sex, and
other prescribed qualifications.
It is due to truth to say that these paragraphs were not adverted to in the Convention, or in the popular discussion of which I have spoken until late in the canvass. Then, at tention was drawn to them, and it is well known that some intelligent men who had supposed this right not to be given in the Constitution, became convinced that it was given in
the statute law which the Constitution adopted.
An ingenious attempt has been made to prove that

74

obvious meaning of those paragraphs is not the true mean

ing. The learned counsel (Mr. Hartridge) shows that in an

other place the Code defines persons of color and gives to

them certain civil rights whence he infers that, being thus

specially provided for, the rights enumerated as belonging

to citizens generally do not belong to them. In support of

this view,s he cites certain rules of construction from Dwarria. Such rnles are useful in ascertaining the meaning of

what is not plain. But the force of language so plain and

positive as that used in those paragraphs cannot be over

come by any such process. It will be difficult to convince

the Court that the colored man acquired no new privileges-

by becoming a citizen.

His Honor below argues that eligibility cannot be in

cluded in citizenship, because in that case women and chil

dren would be eligible. He does not see that citizens of

different descriptions may have different rights, and yet

have them all by virtue of their citizenship. I will read on

this subject from 1st LittelL's Ky. Reports, ,page 333-4:

"Xo one can therefore, in the correct sense of the term, be

a citizen of a State, who is not entitled, upon the terms pre

scribed by the institutions of the State, to all the rights and

privileges conferred by these institutions upon the highest

class of society. It is true that females and infants do not

personally possess those rights and privileges in any State in

the Union: but they are generally dependent upon adult

males, through whom they enjoy the benefits of those rights,

and privileges. And it is a rule of common law, as well a&

of common sense, that females and infants in this respect

partake of the quality of those adult males who belong to

the same class and condition in society." According to the

rule here laid down,* the act which makes new citizens mavo

clothe them with different privileges according to age, sex

and other conditions.

What are the rights of citizens ? Every mind directed to

the subject must have found this a perplexing question. I

donbt whether an accurate and exhaustive definition of the

term citizen has ever been framed. The Court below under

took to define it Degativelv, a much easier task than to define

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it positively. Counsel on the other side cited numerous au

thorities to prove that the privileges and immunities of citi

zens of each State, to be enjoyed in other States, under the-

Constitution of the United States, embrace only certain per

sonal and civil rights. But this has not been held uniformly,,

as the case I have quoted from Kentucky shows. The Court

below argues that the privileges guaranteed to citizens ia

75
the Fourteenth Amendment to the Constitution must be the same for all citizens without regard to age, sex or condition, and hence that eligibility to office cannot be one of them, because that construction would open office to women and children. This mode of reasoning would fritter to nothing the privileges secured in that instrument. Is the right of locomotion one of these privileges ? This right is abridged in the cases of children, lunatics, criminals, and in some in stances, of debtors. Is the right to contract one of them ? This right is abridged in the cases of minors, married wo men, and other incapacitated classes. It will scarcely be asserted that the States, in imposing these salutary restraints, are violating the Constitution of the United States.
We remember when it was the fashion among Southern jurists who were defending the laws forbidding the immi gration of free colored persons against constitutional objec tions, to contend that citizens were the highest class of per sons in their respective States, and as iree colored persons were under some disabilities in most Northern States, they could not be held citizens in the sense of the Constitution of the United States. This was the view taken by the Ken tucky Court, in the case in 1st Litteli. Now, in order to restrict the privileges of colored persons under their new citizenship, our learned friends place the citizen very low in the scale of privilege.
Perhaps it is the true solution of the perplexity that the word means different things in different places. There is respectable authority for limiting it, as used in the Consti tution of the United States, to personal and civil rights. There is respectable authority for saying that it sometimes embraces the rights of suffrage and eligibility to office. 1st Litt. 333 ; Bouvier, Law Diet. Art. Citizen ; 1st Bouv. Inst.
It may be profitable to inquire how the term has been understood in Georgia. Though there has been u a solution of continuity" between the former and the present govern ments of the State, the old may yet, in many particulars, afford valuable aid in understanding the new. It will be seen that men whom Georgians have been accustomed to revere believed that citizenship in Georgia carried with it the right to hold office in the absence of positive restric tions.
On the 13th of February, 1796, an act of the Legislature of Georgia was passed with, the assent of Jared Irwin, Gov-

76
fernof, freeing certain slaves of Daniel Grant and also ChaBey and her nine children. It enacts that the freed persons "are hereby emancipated, freed and enabled to take, hold and enjoy property of every kind in like manner as if they were free citizens of this State.'' At the end of the act it is " provided, nevertheless, that nothing herein contained shall extend, or be construed to extend, to entitle the said free mnlatoes and negro slaves, when liberated as aforesaid, to serve as jurors in any case whatsoever, or to render them, or either of them competent witnesses in any cause or case where the personal rights or property of any white person or persons is or are concerned, or to entitle them, or any of them,j to have or hold, directly or indirectly, any office of trust or profit, civil or military, within this State."
On the 2d of December, 1799, an act was passed with the assent of Governor Jackson, entitled " An act to admit James Stewart and Judy EItof, free persons of color, to the privileges of free citizens of this State as far as is therein expressed." Precisely the same provision is made in the case of the man James Stewart as those which 1 have quoted from the other acts. But observe how carefully these acts were drawn. The section which relates to the woman Judytj does not expressly deny her the right to hold office, because her sex would exclude her. It is in these words: " And whereas, Judy EItof, a free person of color, has petitioned this Legislature to be made a free citizen of this State ; Be^it therefore enacted. That the said Judy EItof, of the county of Richmond, be, and she is hereby vested with and entitled to all the rights, privileges and immunities belonging to a free citizen of this State, with this exception, that she shall not be a competent witness in any case where the personal rights or property of any white person may be concerned." These acts may be found in Marbury and Crawford's Digest, pages 204, etseq. The careful legislators of that day consid ered that even free negroes, when made citizens, would thereby become eligible to office unless expressly prohibited, and hence they inserted these precautipnary provisos. More recently we find oae of the most enlightened and cultivated men in the State expressing the sanie opinion. In 1848, the late R. M. Charlton, in arguing the case of Cooper & Worgfiam, vs. The Mayor, dko. 9 of /Savannah, contended that if colored persons were citizens, they might represent us in the Legislature. 4 Georgia Reports, 41.
I am, therefore, well sustained in the position that in

11
Georgia citizenship, in the cases of adult males, white or colored, has been usually understood to involve the right of eligibility to office.
I have had notice that the counsel who will follow me for the defendant in error will read the act of Congress confer ring the right to office on colored men in the District of Co lumbia, and the argument will be made that Congress did not believe that the right to office was included in the citi zenship and suffrage which had been previously bestowed. My answer is, first, this act was passed before the ratifica tion of the Fourteenth Amendment to the Constitution of the United States; second, Congress might have thought it better to cut short a controversy by an act, strictly unneces sary, than to leave open so agitating a question, especially in that District, where the old law of Maryland discrimina ting against the blacks might be still living in the prejudi ces of some of the people.
The argument has been made, and I think it a sound one, that the right to hold office not being given in the Consti tution to the white man by name any more than to the black man by name, the black man, therefore, stands on the same footing as the white. To this it has been replied that eligibility to office is the white man's birthright. I cannot comprehend the notion of a birthright to office under a government like ours, where office is not a privilege of the holder, but a trust for the benefit of others, which they may confer or withhold at pleasure. Further, I cannot see how a man can have a birthright in a government which did not come into existence until long after he was born.
Counsel on the other side draw an argument from the acts of Congress. I am at liberty, therefore, to draw an argument from the acts of other departments of the govern ment of the United States. The Constitution of the United States is as silent on the subject of race or color as the Con stitution of Georgia. Yet the late President (Johnson) and the present President (Grant) have appointed colored men to office. The United States Senate a body comprising much legal learning has confirmed nominations of colored men. If colored men can hold office under the Constitution of the United States, they can do so under the Constitution of Georgia. In either case they are our officers that is, our agents.
The learned counsel on the other side (Mr. Hartridge) hag told us that "it is not to be presumed that the Convention, without trial and without experience of the capacity of the colored man to fill office, would elevate him to that right."

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He should have remembered that colored men had trial and experience in public bnsiness as registers of voters for the Convention and as members of the Convention. And let me ask, with all respect, when will colored men have office, if they most be excluded until they are tried and experi enced in it ? One will not learn to swim by staying out of the water,
In the same strain, counsel has urged upon your Honors the improbability that the makers of the Constitution would open office to men so ignorant as most colored men are. ^o such improbability exists. The makers of the present Con stitution were no more afraid of ignorance in office than their predecessors the makers of our earlier Constitutions. ^Neither the Constitution of the United States nor the Con stitution of Georgia has ever made ignorance a disqualifica tion for the highest office. What law has there been since 1789 to prevent the most ignorant citizen in the land, of the lawful age and birth, from being President ? What has there been to prevent the greatest dunce in Georgia, of the proper age* and citizenship, from being Governor or sitting in the Legislature ? The learned counsel cannot believe that the Convention would give to " those lately submerged in the slough of ignorance those rights which the free-born, educated white man may aspire to." Aspirations to office have never been limited by law to the educated. Thev Con vention has given to colored men no rights but those which the most uneducated, most ignorant, and most stupid white man has always been at liberty to aspire to. Why is igno rance now. for the first time, so alarming ? Is it not as dan gerous under a white skin as under a black skin 2 Gentle men seem to apprehend that if the colored man has a right to office, he will certainly get it, however unfit he may be. This fear is groundless.
In the first place, it is not to be presumed, from our past history, that the incapable will aspire; and in the next place, it is not to be presumed that those who are fit to se lect will make a bad selection.
Our Presidents, Governors and Legislators have been in telligent men. though there has been no law to exclude the ignorant from those high seats. The modesty which has checked the aspirations of ignorant blacks ; or, if that should fail, the elective body will, from a sense of its own interestfc, repress incapacity into its natural place. In a republican government it must always be possible for the people to vote foolishly. Tet, republican government rests on the supposition that the people will vote wisely in the main.

That discretion may sometimes be abused, is not a sufficient reason for denying discretion altogether. It need not be feared that many colored men will get office, unless they prove themselves competent for it. The Convention proba bly thought that ignorant blacks could be risked where ignorant whites had been risked so long and so safely.
Counsel says that the Code was made when this was a white man's country. ^No matter when the Code was made. It is the law tor us now, by virtue of its adoption in the Constitution. IsTo matter whose the country wa when the Code was made. It is now the country of every citizen in it the country of the white man and of the black man to gether. They are bound together politically by a common fortune. The prosperity that visits the one will bless the other. The calamity that injures the one will afflict the other. Here they must both live. Here they must both labor. Here they may both vote. And here, if I am right in this argument, either may hold office when his fellowcitizens choose to trust him with office. As they are one in interest and one in destiny, I do not believe that the State will suffer harm from having made them one in political right.
ARGUMENT OF MR. LLOYD.
MB. THOMAS E. LLOYD, Counsel for Defendant in Error, saidi
MAY IT PLEASE THE COURT :
I desire at the outset to make some few observations in reference to the preliminary points in this case.
The first point to which I shall call your Honors' atten tion is the fact that in the Court below the opening and con clusion was given to the Relator in this case. I apprehend that the judgment, the ruling, of the Court below, on that point, was perfectly correct. The Demurrer I care not whether in the first or second instance had been with drawn, Now, having been called on to show cause, if the

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original demurrer had stood, the party may have been con-

iidered the promovent in the case; but when he had filed his

plea, when ne had joined issue, in which we had taken the

affirmative and he the negative in which 'we stated that

he had one-eighth or more of negro blood in his veins, and

he denied it. then the relative positions were changed We

were the proni&vents. The burden of proof of the whole cause

rested upon us, and therefore were we entitled to the con

clusion. The truth is. however, that if this matter had been

argued regularly, the argument on the demurrer would not

have been had until after the jury trial had been finished,

because the party had put himself on the direct issue. He

had denied having one-eighth negro blood in his veins : upon

that, issue was joined, and upon that issue a continuance

was asked for and granted, and a jury summoned to try it.

If your Honors' will recall the case (in 4th. Georgia) of The

State against Green, you will remember that there the mat

ter of fact was first tried. And whtv> ? Because," if the

party had failed in proving that the plaintiff in error in this

case had one-eighth ne^ro blood in his veins, there would

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then have been no necessitv for all this argument; and there-

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fore, where a matter of tact is set forth in return to a writ of

Quo Warranto. and issue is joined on that fact, that issue

must first be tried, and when the fact is found, whether one

wav or the other, bv the iurv. then comes the iudgementof

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the Court. That should have been the regular proceeding

in this instance. The jury should have gone on and found

the fact, whether or not the plaintiff in error, in this case,

had one-eighth or more of negro or African blood in him.

Then properly comes the argument, whether or not the Court

would grant this writ of Quo Warmnto against him, and

then, when the argument would have come on in its regular

way, we, being \\\Q jjroiiwventS) would unquestionably have

been entitled to the opening and conclusion.

Xow, the only difference is, that instead of arguing after

the issue of fact had been tried by the jury, we went on

with the argument at once. We merely tried the legal

question first; and that does not change the position which

we occupied. We were still the promovents. We could not

be anything else after the issue was joined. Up to the time

of the joining of the issue, the party might perhaps have

became the promovent by making certain objections, but

afterwards our status was fixed: we were the promovents in

the ase, and entitled to open and conclude. But, as in a

martdamus cage, we ought to have argued the issue first, and

that, if iound in favor of the party, would have decided the

81
whole matter, and there would have been an end of it. There would have been nothing for the Judge to decide. According to the statements of Counsel for the Plaintiff in Error, when the rule was granted to show cause why the writ of Quo Warranto should not issue, he filed a Demur rer. Then he was promovent in the case; but the very mo ment his Demurrer was withdrawn, and his plea tiled, denying facts which we asserted, then we became promorents, and were entitled to open and conclude.
So far as the testimony of Mr. Jackson is concerned, the Court allowed it to go to the jury for what it was worth. The status of individuals may be proved by general reputa tion. It may be very difficult, in cases of this kind, to as certain it in any other way than by general reputation.
With reference to the other testimony, as, for instance, these matters at the Court House, it appears by the testi mony that these lists were posted up three weeks before the election. It appears that during this time White was there. He was elected at that time to the office from which we seek to displace him, and from which he has been displaced by judgment of the Court below. It was therefore submitted to the jury whether or not, under these circumstances when it was proved that he was one of the candidates, and that these lists were there for four or five weeks whether it was not probable that he had seen them, and, if he had, whether it was not inference against him that he had failed to cor rect them.
The admission of the life insurance testimony is also ob jected to. Here is what the Bill of Exceptions of the Plain tiff in Error states in reference to it:
a The plaintiff introduced the witness, Howard, who tes tified that a certain book was a record book of an insurance company that had recorded in it an application for a policy from R. W. White; that the original application had, after record, been sent to Xew York, where it then was; that the original was truly copied in said book; that he did not know who presented said application ; that he did not see Defend ant sign it, nor did he know Defendant's hand-writing. The plaintiff" offered to read said copy in said insurance book^in evidence, and the Defendant objected."
Xow, counsel said he would object to this, even if we had (5

8

had the original, on the ground. I suppose, that there is no

evidence that the plaintitf in error signed it; but it' thf

thing was made for him it' a Policy for R. AV. White was

made at all -1 care not who signed it. It w;ts recorded a.t

an application for a policy from R. W. White, made upoi!

the Knickerbocker Insurance Company of jSTew York, and

we have the testimony of Dr. Yonge tlmf he did examine

White as au applicant for a policy of insurance from that

company. 1^ not that sufficient to identity the original, and

to identity the ma?i ' This was a certified copy, and it was

proved that the original was in Xew York, and out of our

jurisdiction.

The rule of law un question ably is that we must produce

the original record, if we can get it ; but what right can

the Court give us to get a paper from Xew Y ork ' We may

issue a commission and effect all that may be necessary

and I think the Supreme Court of this State decided, in a

case which I do not now recollect, where a deed came up in

Florida, that the witness was allowed to prove the handwriting

of the writer. The Court said that that would be allowed,

inasmuch as this Court did not know whether the laws of

Florida required the witness to testify. Counsel gays we

did not chow diligence towards procuring the original docu

ment. Where was the necessity of going through these

mere formalities in order to obtain it, when the clear pro

visions of the law allow of its being done without that ne-

cesoitv { I maintain that the thins: is sufficiently identifier!

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as an application for a Policy of Insurance which this man

made; that the identification is accomplished by the testi

mony of Howard, as set forth in the Bill of Exceptions.

and also by the fact that Dr. Yonge himself made an exam

ination of the plaintiff in error for the Knickerbocker In

surance Company.

One word with reference to the uhargo of the Court

The counsel on the other bide required the Court to cliargt

that the party, the Relator in the case, must make out even

point of hi& case. A charge of th.ut. kind may be calculated

to mislead the jury ; as, for instance, if we bought to prove

a fact by a witne^, and that witrr^s failed to prove it. A

charge of the kind would, therefore, mislead th jury a* to

the nature of the proof which w;i.-, required before wer.onlri

recover.

But the Court did charge in efteet exactly what the mo

tion requested. There wa^ but one i&suc, and that wan whe

ther White bad or had not one-eighth negro blood in hi*

reins. That watt all we undertook to prove, all we required

to prove, and all we could prove. The Court, in the ebarg*

to the jury, say* that we must prove that, and that the jurr

must be satisfied of it. That was exactly what the eotime?

desired, except that the Court gave it epeeifioally, The coun

sel say we should make out our eae in *rry particular.

The Court charged the jury that we must IDake it out in

</? particular, and they must so find before the*" #ive o&

verdict. When the Court did that, he did everything de

sired by the counsel, merely changing the mode of its pre

sentation.

Having thus premised. I will now proceed to examine the

main question of the case,

I must, however, take a different view of this matter to

that taken by counsel for the plaintiff in error. One of

them says we must look upon the Georgia of ante, bzttum

days as having been entirely blotted out, I am not here to

argue the very delicate question of the -stain* of Georgia

for the past few years, nor as to whether we have been

States or Territories, or whether we have or have not been

a conquered people. Whatever our position, we have been

in one wav or another at the merev of the General Govern-

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ment. Were it necessary for us to be States, we were Mates;

were it necessary for us to be Territories, we were Territo

ries ; if it were necessary to have us otherwise, we were oth

erwise. Yet I cannot agree with the learned counsel that

the Georgia of the past is gone: that her history and her

institutions were utterly and absolutely destroyed by the





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revolution which ended in lSt>5.

I am not disposed so to believe, because I do not think it

lias been so held. Indeed, the State of Georgia, before this

present Constitution was drafted or adopted, had been called

upun by the government of the United States to do acts as

a State which she could do only as a State. Her position

as a State has been recognized.

When the act was passed which abolished slavery through

out the United States, and which enacted that slavery should

not hereatter exist, it was sent to the Legislature ot the State

of Georgia for ratiMention ; ami it wax r<W{/?7 &y tAat Jxy^-

latiirei and the ratification of that Legislature was the ratifi

cation of one of the States that was ^art and parcel of the

Constitution.

There are many points indicating that the State has not

been destroyed. Keconstmcted, I grant you; ehang<*d in its

institutions I grant you; modifiedlo a great extent, I grant

you ; the rights of some of its inhabitants taken awav\ and

the right* of others increased, I grant you; but, I atiU say

84

that Georgia is Georgia except in so far as the hands of

power have ^'reconstructed" her. I do not believe that we

were blotted out of existence. I do not think" we began a

new era, and that we should blot out our history and speak

r>f this as the fourth vear of the existence of Georgia. We

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are still the State of Goorgia call it i; in rebellion" if yon

will but still the State of Georgia : a State and a coinmu-

nitv, having institutions at the time the war closed, which

institutions however the General Government had modified.

I have therefore, in arguing this question, the right to say

that the iibsimiu'ui of Georgia still exists. The United

States Government to which we must all look now the

United States Congress, which is now supreme and which

controls everything, has looked at it in the same way. I

shall therefore argue this question upon this ground. How

far has the legislation of Congress, the formation of this

Constitution, and the legislation under it, changed the status

of our people, and how far have they changed the status of

the free person of color so as to give him the right to hold

office ? I sav thev have made no such change.

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The Fourteenth Amendment to the Constitution of the United States savs:
c.

" All persons born or naturalized in the United States,

and subject to the iurisdiction thereof, are citizens of the

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United States and of the State wherein thevt. reside, Xo

State shall make or in force any law which shall abridge the

privileges or immunities of citizens of the United States :

nor shall any State deprive any person of life, liberty or

property without due process of law, nor deny to any person

within its jurisdiction, the equal protection of the laws."

The provision of our State Constitution bearing on citizen ship is in almost precisely the same words. By these sec tions persons of color were made citizens. It was not in tended to make white persons citizens, for they were already such. They were citizens by reason of their birthright their inheritance. They were such from the time the State was settled ; and they had from time immemorial exercised the privileges of citizenship. Who then were intended to be made citizens by the sections I have quoted ? The colored people, unquestionably. They had not heretofore had any rights aa such. They were not citizens, as is shown in 4th Georgia. They were, therefore, the class that were made

85
citizens. The others had always been so. The question, then is, to what extent were they so made citizens ?
In arguing this question, we must look to the condition of the country at the time; and we must see from corres ponding legislation from what has been done by the United States Government itself how they regarded this class of people. They have by their own course intimated to us and the Courts, what they think of the mode in which citizenship should be meted out to these parties.
Your Honors must consider the condition of this State, in connection with this matter ; and although 1 know very little of politics, yet, I apprehend, there must be some political consideration or rather not a political consideration, but an observation of the field of politics must be expected to enter into your decision in this case. Here were four mil lions of persons who had, up to this time, been uninstructed; they had not been allowed to acquire education. With very few exceptions they were most ignorant. The legislation in behalf of these colored persons could not, however, be said to be legislation solely for the few of them who were intelli gent ; it was rather legislation for four millions of ignorant people.
The counsel says that there are large numbers of white people who are unfit for office. This is undoubtedly true, and it is much to be deplored. Still, they have had the benefits of education, as a class; and, having so long exer cised the rights and privileges of citizenship, it is to be ex pected that they can continue to do so with ease and advan tage. Here, however, were persons who had never exercised the privileges of citizenship until flung to them by the fortunes of war. Counsel says that it is to be presumed that at the time of emancipation, in the year 1865, the whole system of the Southern States was done away with; and tnat a new community rose up in its place! That is not so. I will not impute to any Convention, or any other body of intelligent men, that they had any such object in view, as that this great mass of ignorance should at one bound be lifted up to positions of control. It is well known that there are counties in Georgia where the colored popula tion have the entire control. Was it to be expected that they, ignorant as they are and in the condition in which they were described in Mth Georgia Reports, uneducated ana incapable, should be lifted at once to the privilege of governing counties and municipalities ?
The gentlemen on the other side may know more abput the Convention of 1867-8 than I do. My knowledge is de-

rived solely from the books. I take the Journal of the Con vention and the Constitution, and I examine them, and I draw, what I deem to be, an irresistible inference, that the Convention never intended to confer on colored persons the rights here claimed for them.
The Convention makes them citizens. Counsel says it is not easy to define the word " citizen." I will give your Honors, a clear, plain and simple definition of the word. I
read from 19 Howard's Eeports, page 422 :

" Undoubtedly, a person may be a citizen, that is a mem

ber of the community who form the sovereignty, although

he exercises no share of the political power, and is incapaci-

ated from holding particular offices. Women and minors,

who form a part of the political family, cannot vote ; and

when a property qualification is required to vote or hold a

particular office, those who have not the necessary qualifica

tion cannot vote or hold office, yet they are citizens.

" So, too, a person may be entitled to vote by the laws of

the State, who is not a citizen even of the State itself ; and

in some of the States of the Union foreigners not natural

ized are allowed to vote. And the State may give the right

to free negroes and mulattoes, but that does not make them

citizens of the State, and still less of the United States ; and

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the provision in the Constitution giving them the privileges

and immunities in other States, does not apply to them."

I will now read trorn ith Washington's Circuit Court Re ports, page 361 :

*' The right of a citizen of one State to pass through, or to reside in any other State, for the purposes of trade, agri
culture, professional pursuits, or otherwise ; to claim the benefit ot the writ of habeas corpus ; to institute and main tain actions of any kind in the courts of the State ; to take, hold and dispose of property, either real or peasonal ; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental ; to which may be added the elec tive franchise, as regulated and established by the laws or Constitution of the State in which it is to be exercised,"

These are the fundamental principles, and when a man comes to be a citizen, it does not necessarily imply that lie

87

has the right to Vote or to hold office. 3?hes are not neces-

sai^y rights of citizenship. In England, by the late Reform

Bill, they have added a great deal to the number of those

who had the right to vote; and England is to-day, to all

intents and purposes, as free as our country; and yet there

are large masses there who have always been citizens, but

who, until within a year or two, never had the right to vote.

The franchise has been frequently enlarged there. In 1832

the government of England was shaken to its centre and

nearly revolutionized by the Reform Bill of that year.

Later efforts to enlarge the franchise have been successfully

made, and so it may go on until they get universal suffrage.

The fact is undeniable, however, that there are4o-day thou

sands of persons in Great Britain who cannot even vote, yet

are citizens.

Upon the matter of education, to which extended refer

ence has been made by counsel on the other side, that was

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implied in their freedom liberty of action and freedom of

thought were necessary accompaniments of their emancipa

tion.

Xow, may it please the Court, I hold that prior to the

time of the revolution these persons of color had as distinct

and specific a status in Georgia as any other class of persona.

.Neither by birthright, inheritance or otherwise did they

have any rights other than those entirely fundamental in

their character ; and never was such a thing thought of as

granting to them any such privileges as are claimed here.

VVhen they were emancipated, and were made citizens, they

were made citizens of a lower grade. Reason and justice

will bear me out in that assertion. They were given con

trol of themselves, and of their property; of the disposition

of their own time, and the protection of their person. That

is the grade of citizenship conferred by this Constitution.

The Constitution of this State says: " All persons born

or naturalized in the United States, and resident in this

State, are hereby declared citizens of this State, and no law

shall be made or enforced which shall abridge the privileges

or immunities of citizens of the United States or of this

State, or deny to any person within its jurisdiction the equal

protection of its laws.1'

After thus making colored persons citizens, it goes on to

say who shall have the right to vote; who shall be deemed

eleetors. It does not simply say that " naturalized citizens

shall have the right to vote," nor that " persons who have

declared their intention" to become such shall have the right

to vote. That might leave the right of the colored man

ss

aoubtl'ni. it ^roes OLI to sav. ho~we\er, that " JLvei-o 'male

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person born in the United States, and every male person

who has been naturalized, or who has legally declared his

intention to become a citizen of the United States, twenty"* -one years old or upwards, who shall have resided in this State

six months next preceding the election, and shall have re

sided thirty days in the county in which he offers to vote,

and shall have paid all taxes which may have been required

of him. and which he may have had an opportunity of pay

ing agreeably to law, for the year next preceding the elec

tion, (except as hereinafter provided,) who may be a resident

of the State at the time of the adoption of this Constitution

shall be deemed an elector as aforesaid.'"

Why does the Constitution come out so much in detail, so plainly, and so specifically on that point ? Evidently because the makers of it did not hold that citizenship of itself conferred the right to vote.
Let me now read the celebrated 10th section,/ which was intended to srive to the colored man the rigrht to hold office:

" All qualified electors, and none others, shall be eligible to office in this State, unless disqualified by the Constitution of this State, or by the Constitution of the United States."

That would undoubtedly have given to the colored man the right to hold office: but the Convention refused to adopt it.
Beginning with emancipation, the rights of a freeman have been gradually given to the colored man. They ought to have been given gradually, and they were so given.
If my argument on this question is correct, that the mere fact of being a citizen does not carry with it the right to vote or hold office, we will find by observation and examination of the Constitution that the class of people of whom we are speaking have had the right to vote conferred upon them in this State and in the United States; and we will find by an examination of the acts of the United States Congress, that
a special law of that body was deemed necessary in order to enable colored people to vote in the District of Columbia. I read from the United States statutes of 1866-7, page 375."

" Be it enated ~by the Senate and House of Representative* of the United States of America in Congress assembled, That from and after the passage of this act, each and every male person, excepting paupers and persons under guardianship,

89
of the age of twenty-one years and upwards, who has not been convicted of any infamous crime or offence, and accept ing persons who may have voluntarily given aid or comfort to the rebels in the late rebellion, and who shall have been born or naturalized in the United States, and who shall have resided in the said District for the period of one year, and three months in the ward or election precinct in which he offers to vote, next preceding any election therein, shall be entitled to the elective franchise, and shall be deemed an elector and entitled to vote at any election in said District, without any distiction on account of color or race."
These parties had beeu emancipated and I think made citizens. Congress had exclusive control over the District of Columbia, and Congress was evidently of opinion that the citizenship of these people did not give them the right 1;o vote. Hence, they conferred it upon them.
I will now read from another act of Congress of date 28th May, 1868, which goes further than the one just read. It is as follows:
" SEC. 2. And l>e it further enacted^ That it shall be the duty of the Mayor of the City of Washington, District of Columbia, the Board of Aldermen, and the Board of Com mon Council thereof, to assemble in joint convention at the City Hall, in said city, on the first Tuesday in July, eighteen hundred and sixty-eight, and proceed to select by ballot, all officers whose appointments, upon the nomination of the Mayor, are now authorized by the charter, or by any law of the United States, or act or ordinance of said city, or which may hereafter be authorized thereby, and who shall hold their offices respectively for one year, and until a suc cessor is appointed; and on the same day of the month in each year thereafter the joint convention shall proceed to a new selection ; Provided^ That no person shall be regarded as incompetent to hold any of said offices, or be disqualified therefor, who is a qualified elector in said District."
Your Honors will perceive that these matters have been entirely progressive; these parties having had conferred upon them first citizenship, then -the right to vote, and next, as will be seen by the quotation which I just read, the right to hold office in the District of Columbia.
1 therefore hold that the clauses in this Constitution which makes them, citizens, does not give them the right to hold office. And, although the counsel may not think that we

90

shall be overrun by foreigners holding civil appointments

among us, vet it is contrary to the genius of any country to

have parties holding office within her limits who are not her

own citizens. It is a serious matter that parties should be

allowed to hold offices of honor and profit and responsibility

who are not even citizens of the country. Was it not then

the sole object and intent of the Constitution to declare these

people electors, and nothing more ? The Convention could

certainlv not have intended anvthing else. There is noth-

tj

j

O

ing included in the word ;* citizen77 which necessarily in

volves the right of suffrage or of office holding. If that be

so, and the Constitution does not confer the right to hold

office what does? Do the statutes? I feay no. Let us

read the 3d section of article 11 of the Constitution of Geor

gia. It savs that next to, and in subordination to. the Con-

.

>

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7

stitution of the United States and of this State, the laws in

general force in this State shall be
C

" All acts passed by any Legislative body sitting in this 1 State as such, since the 19th day of January, 1361, includ ing that body of laws known as the ' Code of Georgia" and the acts amendatory thereto.7'

Your Honors will find upon examination that this Code referred to was made in I860. The section bearing upon persons of color was passed in 1866, and that, by the special provision of the Constitution which 1 have quoted, is readopted and re-affirmed by the present Constitution. The same section excepts from adoption all laws which " may re fer to persons held in slavery.''
The Code was adopted as the Legislature passed it as a whole making only a few specific exceptions. When the Legislature passed the section which says that all citizens shall be entitled to hold office, and the other section which says that all citizens are entitled to the exercise of all their rights as such unless specially prohibited by law, they also, and at the same time, passed a section which says that free persons of color are not of that class. When looking for the meaning of these sections, we must not look to the Con vention, but to the Legislature which originally passed these laws. The Convention merely re-adopted what had already been adopted,
The Legislature of 1865-6 passed the section giving cer tain rights to persons of color, and when construing all these sections you niast construe them together. They torm, as it
were, parts of one Act, and must, according to the rule of

interpretation, be made to stand together if possible.

clause of the new Constitution re-adopting " that body of

laws known as Irwin's Code," treated them as portions of

one Act. In interpreting these sections we might go back

to the history of the Legislature which first passed them,

and of the Convention which re-adopted them. But the

hest way to interpret a statute or Constitution is to place

one's self in the position of the law-makers, and endeavor

to find out what they intended. Did the law-makers of

1860, when the section relating to citizens holding office was

passed, mean that negroes should hold office? iSTot at all.

Did the act of 1S66 do so, which said that." persons of color

shall have the right to make and enforce contracts," &c. ?

It did not. It gave them the first grade only of citizenship.

It gave them the right to life, liberty and property. The

Convention adopted these laws. The Convention went fur

ther, and enacted that they shall have the right to vote; but

certainly does not give them the right to hold office ex-

pressio univ.s est ewclusio altering. All these sections har

monize. They convey their sense plainly. Citizenship, with

them, means the right to life, liberty and property, and em

braces only fundamental principles. Take the Constitution

and the Code, and refer to the Dred-Scott Decision, rendered

by the Supreme Court of the United States, and consult

Dwarris on statutes, and you will find my argument fully

sustained. Disturb neither the Constitution nor the Code;

make their provisions stand together; harmonize them ac

cording to the rule; give them such a construction as will

reconcile them, the one with the other, and this conclusion

is inevitable.

_

Dwarris says: u Where a general act of Parliament con

fers immunities which expressly exempts persons from the

effect and operations of its provisions, it excludes all ex

emptions to which the subject might have been before

entitled at common law. The introduction of the ex

emption is necessarily exclusive of all other independent

extrinsic exemptions. The.maxim. is clear, l expressum facit

cessare taciturn? Affirmative specification excludes implica

tion." The Convention has superadded the sight to vote,

but did not super add the right to hold office ; and nothing in

in the Constitution of the United States, nor in the Consti

tution or laws of this State, confers upon persons of color any

such right. If the mere fact of their becoming citizens gives

them these rights, why did Congress find it necessary to pass

special laws conferring them upon persons of color in the

District of Columbia \

In conclusion,.- then,- I

will

sa&v,*

that, -

construe

this

matter

which war we will provided we are guided by the light

surrounding us we are forced to the conclusion that the

Plaintiff in Error here, does not. by law, possess the rights

claimed for him. His race has been gradual in their ac

quirement of the rights they now possess. They first got

ireedoin citizenship : and second, the right to vote; and

when they show me, in the statute book, an enactment gi\

ing them the right to hold office, 1 will cheerfully submit.

At present, however, they ha\ e no such right in Georgia.

ATLANTA, GEORGIA, June 11, 1869.
The Court opened at 10 o'clock His Honor the Chief Justice presiding.

ARGUMENT OF GOVERNOR JOHNSON.

JAMES JOHSSOX, of Counsel for Plaintiff in Error, said:

MAY THE COUET PLEASE :

As I shall have occasion to analyze some of the rulings of

the Judge below presiding in this case, I deem it proper to

say here that I believe him to be a gentleman in his bear

ing, and that the rulings made by him in this case were

made upon conviction ot their correctness. What I have to

say therefore, in reference to them, is not intended in any

way to reflect upon him, individually; but to expose the

legal errors he mav have commited.

O

/

I call your Honors' attention first to the record in this case. By the action of the presiding Judge, the Plaintiff in Error had not only the misiortune to have this case decided ad versely to him, but, after the decision was rendered, by the
further action of that officer an additional labor was illegally imposed upon him. The Supreme Court of the United States

93
never suffers an appropriate occasion to pass without put ting their censure upon the conduct of parties in Courts be low in unnecessarily swelling the record presented to them. The law of this State provides that when exception shall be taken in the course of proceedings below, it shall be the duty of the presiding Judge to certify to the objected points ; and to certify, in that connection, only so much of the testi mony as is material to a clear understanding of the case. That is reasonable and proper, and it is the law.
The Judge in this case required that his argument, in pro
nouncing his judgment, should be made part and parcel of the Bill of Exceptions. It. was not material to a clear un derstanding of the case, and the reason given for it was that he had ordered it on the minutes, and that it thereby be came a part of the record. If that were so, that was the very reason why it should not go into the Bill of Exceptions, for, the only legitimate office of a Bill of Exceptions is to make that appear of record which would otherwise not be of
record. Here is the argument of the Judge, incorporated by his
requirement, into this Bill of Exceptions; here is a policy of insurance- the whole of it, required to be put into this Bill of Exceptions. If any of it was at all relevant to the case, one line would have done. Here, also, may be found the testimony of witnesses deposing in Court, to whose testi mony no objection or exception was made. Here, too, is the argument and the reasons of the Court below for its ruling, when the law is that good ruling consists alone offacts, and not of arguments. The question to be determined by this Court is not whether the Judge below did or did not make a tine argument. It is simply this : was the ruling correct? Elowever fallacious the reasoning may have been, the ruling will be concurred in if it be correct^ and however correct may have been the reasoning, the judgement will be re versed if it be not correct.
Here also, may it please the Court, are two Demurrers one of which is a part of the transcript in this case. The Judge has 110 right to touch that transcript by arguments of his own, yet we find the Judge in this .case, not only certifyin <r the Bill of Exceptions according to law, but actually taking occasion to put under one of these Demurrers that t this Demurrer was withdrawn." If he has any fact that he wishes to make appear in reference to the proceedings, it must be incorporated in the Bill of Exceptions, and not be shown by "amendments" to the transcript after it has the seal of the Court annexed to it. When he has signed the minutes.

94 .

they are beyond his reach and control, and he has no author

ity to touen them, any more than a private party, or one of

the parties to the proceeding. I mention these points, because,,

though it may not be material to the adjudication of this

case, it is material to the country at large, to the Bar, and

to this Court, that these records shall come up here proper

ly, and devoid of all matter except such as is material or

necessary to a clear understanding of the case.

Xow, I ask this Court to lay down a rule that Judges be

low must conform to the law, and certify a Bill of Excep

tions when presented; certify to the facts, and not tell

lawyers and others when they draw up a Bill of Exceptions^

':fc Go and see your adversary and agree to it, and I will

sign it," It is his duty to know the facts, and to certify to

them without putting such a labor on lawyers. Besides, as

a learned Judge once remarked, one's adversary is the last

man that would agree with him,

The point next in order, may it please the Court, is that

the motion fur a continuance was overruled. I shall make

no lengthy remarks on it. however ; neither shall I read the

evidence in the case. I do not propose, either, to say that

the law which fixes the requirements necessary for a contin

uance, divests the Court below of all discretion. My opin

ion is, that it is impracticable for the Legislature to divest

the Courts of some discretion in such matters. It occurs to

me that the Legislature, notwithstanding they have pre

scribed a certain rule bv the Code, still they have made it

*;

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*/

admissible on the part of Judges below to exercise a sound

legal discretion in reference to a continuance,

But whether I am right or wrong on that point, I have

the same remark to make about it that I made in regard to

certifying the proceedings below. It is important to the

country and the interests of the profession that this Court

should establish a rule, and that that rule should be a rule

of action. I would not, however, ask the Court for a rever

sal of the judgment of the Court below in this case, simply

on a refusal to continue. I present it merely that the Court

may, if it see fit, establish a uniform rule of action in that

connection.

I am glad that my friend Hartridge has taken occasion to

remark to the Court, that he holds -himself bound by the

record, and that nothing that may be said by individuals

outside of the record can properly be considered by the

Court.

This record contains two Demurrers. It shows the further

fact, that on the dav of trial the Defendant the Plaintiff in

95

Error here filed a plea and also a Demurrer; that that De murrer, so filed on the day on which the plea was filed, was heard and considered by the Court, and a regular formal judgment pronounced upon it; so that the Demurrer filed at the time of trial was not withdrawn, but was heard, con sidered and pronounced upon.

THE CHIEF JUSTICE : Let me see if I understand your point An exception was made by Counsel for Plaintiff in Error, not by parole, as is usual, but in writing. That was taken up and heard before the case was submitted to the jury, and a ruling had upon the law of the case. Your com plaint, then., is that on the hearing of that Demurrer, you
were not allowed to conclude the argument on that point ?

GOT. JOHNSOX: Yes, sir I made the motion for a De murrer is a motion to dismiss plaintiff's motion, because it was not according to law. It was upon the question of fact that we went to the jury.

THE CHIEF JUSTICE : I want you to agree as to the facts,

COL. HARTKIDGE : We cannot agree as to the facts, sir, We will have to leave that to be decided by therecord=

THE CHIEF JUSTICE : The point 1 want to get at is whether the Judge pronounced a dbcision on the Demurrer before the facts went to the jury ?

COL. HAKTKIPGE ; He did3 sir,

,

Gov. JOHSTSOX : The facts, may it please your Honors, are not at all complicated. Clements, being a private individual, could not, without the leave of the Court, file an Informa tion in the nature of a Quo Warranto, against the Defend ant. At least, that we presume to have been the under standing of Counsel; and they applied to the Court for leave to use the prerogative writ; and, in their petition which the Judge here calls an application for leave to file this information, they stated the material facts of their case as they did in the Information itself. The defendants were notified that such a petition had been presented, and they were called upon to show cause why leave should not be granted. I was absent at the time, but before leaving I drew up a Demurrer to put in to the application for leave to file a
Quo Warranto) and Mr. Stone presented it, showing cause.

96

He withdrew that Demurrer. Thereupon the Court below

ordered that the Solicitor General, in the name of the State,

should file an Information in the nature of a Quo Warranto^

against the Defendant below. It was drawn up, the De

fendant was served with a copy of it, and we were notified

to appear at a certain day. That day arrived. Mr. Stone

could not be present; but before leaving he drew up the

affidavit for a continuance. Before the day*/ of trial,* I drew up an answer, denying the facts alleged in the Information,

and drew a Demurrer.

On

the

day */

of

trial, '

I

filed

that

answer, '

as

this

Bill

of

Ex-

ceptions announces in terms too specific to be doubted. I

filed the demurrer with it. This, therefore, is the only De

murrer that was ever filed to the Information, and it never

was witftrffawn. I insisted on being heard on it. The Bill

of Exceptions will show the rest. The first Demurrer which

is filed to the Petition for leave was withdrawn, leave was

granted, and we are not now here taking exceptions to the

Judge's order granting leave to file; but taking exceptions

to his rulingt_,, and to the manner of the trial of the Information. And, if a Demurrer was filed to the application for

leave, and if, subsequently, the consent of Defendant was

given that an Information might be filed, he is certainly de

prived of none of his rights in pleading to the Information.

Here it is said that because this first Demurrer was with

drawn, therefore no exception could be taken to the Infor

mation itself when filed. I do not understand that to be the

law. So far as my observation goes, it has been the practice

in Georgia for the last thirty years that when exception is

taken to a declaration or to any proceedings on the part of

either the Defendant or the Plaintiff, the party excepting

goes on to state the grounds of his exception, and to give

Kis reasons therefor quoting such authorities as bear upon

the point. Then the party in opposition comes forward,

and sustains his declaration or his plea, and the party taking

exception is then heard in reply. In this case, however, a

negro is involved, and it seems to me that when such is the

case, our people too frequently lay aside their logic and

their reason, and work too much from passion and preju

dice. The uniform and universal rule in the argument of

Exceptions and Demurrers is here set aside, for reasons in

jected into this Bill of Exceptions, and which I am unable

to comprehend. It is important, may it please your Hon

ors, that a point involving so much of importance to the bar

and the people should be so settled here as to make it im

possible for Judges below to err in dealing with it.

97
The next point of objection is found in the testimony of Albert Jackson. It was sought to be proved by him that the Defendant was by reputation a person of color. I ob jected to that testimony at the time. The Court overruled my objection, and admitted the testimony. The gentleman [Mr. Ilartridge] says that reputation is, in certain cases, ori ginal testimony, arid may be legally admitted. I admit it. I admit that in reference to pedigree, marriage, tfoe., reputa tion as a general rule, may be received as original evidence; but I am not prepared to say for I believe the law to be otherwise that reputation is always admissable. As a gen eral rule reputation as to marriage is admissable; but I ap prehend that in a criminal suit, say for bigamy, the prior marriage cannot be established by reputation. The law says the fact must be proven by some witness cognizant of the fact. So, too, where a question of this kind is involved and the contest is between parties themselves as to the prac tice, and this question of descent comes up collaterally, then it may be proved by reputation; then such, testimony is ad missable. But, where a proceeding is against an indidividual, in personam, alleging the fact of his being of negro descent, then the fact is not to be established by reputation, but by proof. The authority which has been read to the Court by the learned Counsel [Mr. Ilartridge] from the Georgia Keports was a contest where this question of des cent came up between the parties as a collateral question. In this case, however, the entire proceeding the head and front of the offending is that the Defendant below is a person of color. That is the only charge against him. When it is the main question at issue, it can certainly not be proven by reputation.
Again, here is a physician who has studied medicine and Ethnology, and who is called as an expert to give his opin ion in this matter. I objected also to that. I did not ob ject to his certifying to any fact within his knowledge ; but to giving Ids " opinion " as an " expert." I was overruled, however, and he gave his opinion as such expert amongst other things stating that the weight of authority was that the human race was not of common origin! That was a part of his ethnological " information!" I don't think that the law is yet disposed to give him formal rank over Moses and the Prophets. I maintain that his opinion in that con nection is worth nothing.
7

98

The case was then submitted to the jury. Counsel for

Defendant requested the Court, in writing, to charge, as is

stated in the Bill of Exceptions, that the Defendant, being

in the exercise of the functions of the office, the law pre

sumed him to have the right to exercise them, and that it

was incumbent on the plaintiff to rebut that presumption

by legal proof; and that if the Plaintiff failed to make out

every material point in his case, they must find for the

Defendent. That is the nature of the request. Such charge

the Court peremptorily refused to give. The Counsel for

Defendant in Error states that the manner in which it was

put was calculated to mislead the jury, and therefore th'it

the Court was right in refusing to give it. They do not as

sail the correctness of the request; they do not say that ifc

was not proper and legal, but they insist that it was calculated

to mislead the jury. If the request is in conformity with

law. and embodies nothing but the correct principles of law

applicable to that particular case, I do not understand upon

what principle the Court should refuse to grant it because

the iurv mav not understand it. The law allows no such

**

*^

_

presumption. They say, however, that the Court gave sub

stannaliy the charge as requested, I must beg leave to dif

fer with the gentlemen, for the Court, in his charge, dis

tinctly says that the presumption sought to be drawn from

it in law was not the true one, but that there was another

to be drawn from it. Furthermore, he divides it into two

points. I presented it as a whole. Xow, when Counsel re

quests, what is the duty of the Court ? If there is anything

defective in the request, he may refuse to grant it. The

Counsel must present it to him at his peril. He must see

to it that there is no error in it, or, if there be, to put it in

as a whole. 1 did so in this case. The Judge says it is not

correct in law. The gentlemen here do not assail it for its

incorrectness; and I hold it to be a principle of law regu

lating the practice in such cases, that whenever an Attorney

presents a request to a Court and that request is law, the

Court must give it in the language in which it is "expressed.

If the Court is apprehensive that the jury or the Counsel on

the other side will not understand it, the Counsel or the jury

have a right to ask the Court to explain it to them. The

Court in this case did not ask that an explanation of this

request should be made to the jury, so that they may not

be misled by it. If any apprehension existed about it, the

learned Counsel ought to have made the request. These

points that I have presented, although they may be consid-

99
ered preliminary and inferior, yet are of much practical in terest.
But the great question involved in this case is one of mag nitude and importance far above those enumerated. That question is: Can a negro hold office in Georgia? And in the discussion of this grave question we find ourselves sur rounded by the prejudices and passions of our people, and lind these prejudices and passions arrayed against us prejudices naturally growing out of differences of race, and engendered by continued strife. I hold that the people of my race should rise higher than these prejudices and give an impartial judgment on a question of this kind, according to the law and the facts, and a judgment that shall bear the scrutiny ot all future time.
I consider this question to be na*rowed by the Constitu tion and laws of this State into very narrow limits. The Constitution of the State declares that all persons born in ihis State shall be citizens. Whatever difference of opinion may exist as to what the term citizen may include, all agrec3 i hat as used in that Constitution, negroes are citizens. What is the meaning of this word citizen 4 Why, in Kentucky it may mean one thing and in Pennsylvania another, accor ding to local law. But, standing here where it does, the term "citizen" is to be understood and interpreted in its ordinary acceptation, if that can be arrived at. Gentlemen yeem to disagree as to what it embraces. How is its proper meaning to be arrived at? By looking at the term itself, and at the subject matter with reference to which it was used.
When the Convention adopted the laws to which I refer, it had before it the Code of Georgia, which had been al ready adopted. They re-adopted it. When bo re-adopting it, they found it to contain in many places the words fck cit izen"1 and u citizens." When, therefore, they placed these words in the Constitution, they placed them there with a full knowledge of the meaning of these terms in the Code, and they undoubtedly meant them to agree in meaning in both documents. They could not have intended that they should mean one thing in the Code and another and a different thing in the Constitution. The Code clearly states in ex press terms that among the rights of citizens shall be " tho right to hold office. The word " citizen," then, meaning, as it must, the same thing in Both documents, the conclusion is inevitable that the negroes are entitled to hold office. A number of quotations have been read by Counsel for De fendant in Error, to show you that the provisions of the

100

Code and of the Constitution must be made, if possible, to

stand together. Why, they clearly and plainly stand to-

g3ther. The Constitution says the negro is a citizen; the ode savs a citizen can hold office, therefore, a negro has the

j

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'

{U

right to hold office if he be legally elected or appointed

thereto. The word u Senator'' and the word " Representa

tive' 3 has each the same meaning in the Constitution that it

has in the Code, and in both cases the ordinary meaning

attached to them. They\* do not refer to women or children,' although the Code says that Senators and Representatives

shall be " ; citizens." "Male persons1 ' only can hold these

offices. A negro is a male person, and a citizen ; hence he

has a clear right to hold these offices, if he possesses the

other necessary qualifications laid down. The Judge below

calls this k; strange logic!' 7 It may look strange, but it

seems to rue that any other interpretation would be very

strange indeed.

"What was the object intended to be accomplished in the

formation of this Constitution? To arrive at a just idea of

its object, we must glance a little at the events of the past.

The question of slavery, having agitated the public mind of the country for years, culminated in a sectional war. As the armies of the Federal Government advanced Southward and took possession of the insurgent States, at each and every point of which, as they took possession, the shackles fell from the limbs of the slaves. The proclamation of the President declaring these people free, followed in the wake of the sol diery'; and the tact accomplished by power, was then made law. The old-time slave was then a freeman, not merely in point of fact, but in law also. All men were henceforth tree in Georgia: no slave stood upon her soil. But Georgia stood without a State Government the Government estab lished bv/ the Confederac*y havingf ] been overthrown btv/ the armies of the Union. In this emergency, certain Acts, called Reconstruction Acts, were passed. They, among other things, authorized the assembling of a Convention in this State to provide a Constitution therefor; and they au thorized the registration of people to vote for members of that convention. These measures required the Convention to take a certain position on the question of slavery. The object of the Government the legislative authority was to put such expressions in this Constitution as should for ever abolish all legal and political distinctions on account of race or color. Its object was to destroy forever the distinc tions growing out of the peculiar institutions of slavery;

101
and to enable all'men to stand upon a basis of equality be fore the law.
That Convention assembled, having in view the object of conforming to these requirements. When it had completed its labors, believing that it had conformed to all the require ments of Congress, and that it had provided effectually that there should be no distinction in regard to suffrage or officeholding, on account of race or color, the Constitution was adopted. The people subsequently ratified it at the polls with that understanding, and it was submitted to Congress for approval. Congress approved it with that understand ing ordering, however, that certain portions of it not per tinent to this issue, should be expunged.
The Convention which framed that Constitution had for a portion of its personnel a number of enfranchised negroes. The Legislature elected under the new Constitution had in it also a number of emancipated slaves. The General in command refused to recognize that Legislature as a body until it should purge itself of all ineligible members. It then made a pretended purgation; and not one word was raised at that time, in reference to the eligibility of black men. They sat in each House as eligible members, and acted and voted as such. It is, therefore, too late now for gentlemen to cry out that this idea of negro office-holding is a new idea. In that regard they are estopped by the ac tion to which I have referred. The General Government, too both the Executive and Legislative branches of it have recognized the right of the black man to hold office.
Several arguments ab inconvenienti have been made to the Court, to which I do not think it necessary to reply.
It is complained, however, by one of the Counsel that it could certainly not have been the intention of the Conven tion or the Government, on account of the previous condi tion of these people and their present ignorance, to abolish ihese distinctions, as to office, which the old-time policy would seem to justify. But, may it please the Court, the wise, the crafty, and the rich of this world, need no political power. The ignorant, the simple and the poor are those who need the protection of the law. This world was not made for Caesar only: it was made for humanity. And as the ignorant and the poor who are struggling for subsistance form nine-tenths of that humanity, it is necessary that some means should be placed at their disposal by which they can protect themselves against oppression
Will gentlemen tell me what is

poor people without homes, without houses, without land,

occupation or money i Is it not at the very least the duty

ot the Government to see that they are protected in their

personal rights i--to see that they are not oppressed I And

should this protection be afforded by military power rather

than the more peaceful, but not less powerful, measure of

placing in their hands a ballot and giving them the right to

aspire, with the white race, to such offices as they can fill '*

But, it is said " we of the white race are superior," and so

we are. We are superior in education, superior in science,

superior in resources, and superior in civilization. They are

wanting in these, and such being the case, for my own part,

I have no apprehension that in a contest for superiority they

would ever outstrip us. I fear not " negro domination. 7'

They are far behind us, and we could well afford to give

them opportunity. Besides, we are thirty millions while

thev fc-

are

but

four

millions.

Our race will naturallv in/

crease, and. by immigration, will rapidly outstrip theirs, and

soon destroy even the present ratio of numbers. There is,

therefore, no need to fear that we shall ever become a negro

government.

Tnis is a white man's Government and it will continue so to

be. And I want my race to be so far superior in the sub

lime attributes of generosity, morality, and understanding,

that however inferior, ignorant, or oppressed a human being

may be. they will concede it to be their duty to extend to

him a full and liberal measure of justice, generous kindness

and liberality. By these means the white race will not be

degraded, but rather elevated to a degree still higher in the

scale of civilization, it will be made more grand, more

coble, more aspiring, than before. ^There is and can be no

danger of humiliation from the emancipation of slaves. And

I trust the day is not far distant when admiration or love for

slavery will be extincruished in each and every bosom in the

M

^^_>

9l

land; and when every Southern heart will rejoice that, by

the exigencies of war, and in the providence of God, these

unfortunate people were emancipated, even against the will

of both the belligerents. And I trust that they will further

rejoice in the confident belief that this great land of our,

shall be one of freedom for all peoples and all races and

all tongues shall be a, land of Universal Freedom now and

throngh all succeeding generations,

10B
[!N OTE *
By the Revised Code of Georgia, the Judges of the Su preme Court are required, in open Court, to read the " De cision " of the Court that is, the principles on which the judgment is based. This " Decision " forms the head notes of the " Opinion " which is afterwards written, sustaining by argument and authority the decision thus rendered. E. D.]
SUPREME COURT CHAMBERS, ATLANTA, GEORGIA, June 15, 1869. J
The Court opened at 10 o'clock, A. M. His Honor, the Chief Justice, presiding.
THE CASE STATED.
Before announcing the judgment of the Court, in the case of Richard W. White, Clerk of the Superior Court of Chatham county, Plaintiff: in Error, vs. The State of Geor gia, ex relatione Wm. J, Clements, Defendant in Error, Judge McCAT said :
The case of Richard W. White, Plaintiff in Error, against the State of Georgia on the relation of Wm. J. Clements, Defendant in Error, comes before this Court on the follow ing state of facts :
Wm. J. Clements applied to the Judge of the Superior Court of Chatham county, alleging that at an election which had been held in that county for a Clerk of the Superior Court, he and Richard W. White were the sole candidates. That Richard W. White had got a majority of the votes, but that he, Clements, had also got a good many yotes, and that no other persons were running. The petition further stated that Richard W. White had been declared elected, and had been commissioned, and was in the actual perform ance 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 Geor gia, he was ineligible to office, and further, that under the laws of Georgia, as White, the person having received the majority of votes, was ineligible, he, Clements, having re ceived the next highest number of votes, was entitled to the position. He prayed the Court tor leave to file an Informa tion for a Quo Warranto. To that petition, of which

104

T

was notified, lie. "White, filed a Demurrer. Subsequently* however, lie withdrew the Demurrer to that Petition, and the Information issued in the name of the State of Georgia.
The Court passed an order directing the Solicitor General for that Circuit to make out an Information in the name of the State, reciting, in effect, the facts which had been recited
in Clements' Petition, and calling upon White to show cause why a Judgment Absolute should not issue against him, depriving him of the office and putting Clements in. White,
at the proper time fixed by the Information for answering, 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
L^i
veins.
On this the Court summoned a jury for the purpose of trying the issue. When the jury had been sworn, the De fendant below the Plaintiff here called up his Demurrer to the Information. It is stated in the record that the Plaintiff in the Information had no objection to taking up the Demurrer at that time,* but consented:j and the Court heard the motion as an independent motion before the case was submitted to the jury. The Court decided that in the argument on that motion that Demurrer Clements, the movant in the general proceeding, was entitled to open and conclude the argument that the matter being before the jury, the general rule which gives to the party moving in a Demurrer the right to open and conclude did not apply.
The Court heard the argument on the Demurrer and over ruled the Demurrer. The case then went to the jury on the issue of fact whether or not White had one-eighth or more of African, blood in his veins. On the trial there were vari ous questions made as to the testimony. One witness tes tified that the Defendant, White, was reputed in the neigh
borhood to be a colored person. Another witness testified that he (the witness) was a registrar of voters; that when "White registered, he. the registrar, had affixed opposite White's name the letter " C," to denote that he was a per
son of color; that he subsequently posted the lists in a public place, and that they had remained there two or three weeks without any application having been made to him to have that letter "C" erased or changed. It did not appear, how ever, that there was any notice to White that this letter "C" had been placed opposite to his name, nor did it appear that it was the law or the practice that if he had applied to have it corrected, that they would have corrected it; in other words, that it was the part or the duty of the officer at all

105
to make that entry. At least, it lias not so been made to appear to us.
This evidence was objected to by the defense but admitted by the Court. The Court also admitted as evidence the statement by a physician, an examining physician of an insurance company, 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 proposed to intro duce a copy of an application for a life insurance on the life of White in favor of his wife, which application purported to be signed by White. The application does not seem to have had a word in it as to whether White was a white man or a black man; it gave no indication as to his color: but on the "back of it there was an entry by a person who pur ported to be an examining physician, that White was a mu latto. The witness swore at first that he thought White signed the paper, but swore afterwards 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, that it was a copy-paper, though it was proven that the original was in New 1 ork; another, that there was no proof that the original had been executed; and third, that in any event the paper amounted to nothing.
Another witness, also a physician, swore that he was a practicing physician, and that he had studied the science of ethnology; that that science taught men the rules by which the race of man was ascertained; and this witness gave his opinion upon 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 the Court passed judgment, depo sing White from his position as Clerk of the Superior 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 has agreed upon the judgment it will deliver in this case, but not upon the reasons upon which this judg ment is founded. The Court all agree that the judgment in the Court below ought to be reversed this Court being

x OA oA

Unanimously of opinion that the Court below erred in rah

ous of its rulings on the tria!3 and on the question of the

argument on the Demurrer.

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 upon the grounds upon which we base that

judgment. The statutes of the State of Georgia require that

the

Court shall asrree in <_^

the decision

which

it

makes the

principle upon which it puts the case which it decides ; and

as my brotner Warner, whilst he agrees to the general judg

ment, 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 state

ment of the general principles upon which we put our judg

ment. Hence, under the statute, we shall each give a state

ment of the ground upon which we assent to the judgment

of this Court.

I will, therefore, now read the grounds upon which the

whole Court bases its decision; the ground upon which the

majority of the Court bases its decision: and I shall also

announce the principles upon which 1, myself, hold that the

Court below erred.

As this is a case of a good deal of public importance, in

volving not only the rights of the Defendant, and this Plain

tiff in Error, but of a very large portion of the people of

this State, and one in whom there is a great deal ot interest

taken, I have redaced to writing, in detail, the principles of

my decision; and I will preface the reading of the judg

ment of the whole Court and of the majority of the Court,

with some written remarks preferring to do that rather

than make a parole introduction.

REMARKS OF JUDGE McCAY.

Whatever mav have been, under the Constitution of the ,
United States, the abstract truth as to the political condition and status of the people 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 up 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 disa
bilities and restrictions, was totally submerged in the great

10?
'revolution whicbj iVom 1861 to 1865* swept over the State* Early in June, 1865, the Governor 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 officers under the Constitution of the United States, by swearing fealty to the Confederacy and repudiating the gov ernment of the Union.
The people of the State were, in the language of the Pre sident, 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 Government went into opera tion, the government of the State was with more or less completeness in the hands of the military authorities of the United States, and the entire ancient civil polity of the State, was totally ignored. Directly in the teeth of the old Constitution, the people of color were recognized as freemen, and as entitled to equal, legal, and political rights, with the whites. The Convention of 1867 met under the laws of the United States, and was elected and composed in total disre gard of all the provisions and presumptions, qualifications, disqualifications, 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 that that by the whole theory then acted upon, then were recognized as forming an integral part of the sovereign people then assem bled in convention to form for their common benefit a con stitution and frame of civil government.
Such being the facts of the case, it appears to me that this Court, deriving its wjiole authority from the Constitution then framed, and sworn to support it, is, from the very na ture 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 or distinc tions 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 people without civil Govern ment.
It had nothing to repeal, nothing to modify, nothing to grant. None of the old Constitutions of the State were in

108
operation the Convention met under entirely new ideas and new presumptions. It represented a new people a people among whom slavery had ceased, tand among whom black people as well as white were recognized as forming part ot the political society, and entitled to equal participa tion 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, when the Gonvention met in December. 186T, the an cient Constitution of the State, or any of its legal or polit ical disabilities or disqualifying distinctions upon persons of color were of force, tnen 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 pri vate citizens, the Plaintiff in Error is a slave, and the whole political history of the State since the imprisonment of Governor Brown, in June. 1855, 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 holding his office under the present State Govern ment, forming an essential part of its machinery, these views must be of overwhelming foice. If he assumes the power to decide at all. he must, it seems to me, base his judgment upon principles which do not, if adopted in his own case, utterly subvert his own authority.
I make these remarks with the greatest deference to the integrity and to the sound legal accumen of my associates. Honest men see things in different lights, and it is as presump tions as it is uncharitable, for one man to set up his convic tions as the necessary guide of the conscience of another. These are my convictions, and as a matter of course, I must act upon them, and accordingly, under the rules prescribed by the statute, 1 announce, as the general principles, controlingmy judgment in this case, the following:
DECISION OF COURT.
By the whole Court, First, The statement of a registrar of voters that he had marked a registered person's name with a " C" to denote that he was colored, and had posted his lists for some time

109
in a public place, and that no application had been made to have the said U 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.
Second, Although a copy of a paper proven to be beyond the jurisdiction of the Court is good secondary evidence of its contents, yet it must be shown that the original was duly executed.
Third, An application for a life insurance, though signed by the applicant, upon the back of which was an entry by the examining physician that the applicant was a mulattp, 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 intent to adopt it, or that he used the paper after the entry was made with a knowledge that such entry was there.
Fourth, The statement by an examining physician, that he had at a certain time examined a person and had then been of the opinion that the person, was a mulatto, is not evidence. If the physician is an expert he must give his present opinion, and if not he must state the facts upon which he bases his opinion. Whether or not one is a person of color, that is, has African blood in his veins, is matter of opinion, and a witness may give his opinion if he states the facts upon which it is based. But whether the fact that he has one-eighth or more of such blood, be matter of opinion or not Query?
Fifth, 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 evi dence of reputation among those who know the person whose pedigree or race is in question.
The whole Court agree upon the propositions above given. 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, 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 issue and a trial before the jury: Held that by the Code of Georgia, a person having one-eighth or more of African blood in his veins is not ineligible to office in this State, and it was error in the Court to overrule the Demurrer and to charge the jury that if the Plaintiff proved the Defendant

110
to have one-eighth or more of African blood he was ineligi ble to office in this State.

GROUNDS OF .JUDGE }IC CAY'S OPINION.

Whilst I agree that the Code of Georgia the law of

Georgia, as separate from the Constitution does make per

sons of color eligible to office, my opinian is that eligibility

is guaranteed by the Constitution of the State, and I an

nounce these propositions as the general principles upon

which my opinion is based.

1st. The Constitution of Georgia known as the Constitu

tion 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 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 regard to distinc

tions of color, participated on equal terms in the election for

the Convention, and in its composition and deliberations, as

well as in the final ratification of the Constitution it framed

in the construction of the Constitution, and in the inves

tigation of what rights it guarantees, or denies, such dis

tinctions are equally to be ignored,

JL.

*

t~3

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 bv that Constitution as citizens of the

,1

C--

*

State have equal legal and political rights, except as other

wise expressly declared.

3d, It is the settled and uniform sense of the word "citi

zen, ** when used in reference to the citizens of the separate

States of the United States, and to their rights as such citi

zens, that it describes a person entitled to every right, legal

and political, enjoyed by any person in that State, unless

there be some express exception, made by positive law, cov

ering 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

the art, or unless their meaning be defined and fixed by law

in which latter case the legal meaning must prevail.

5th. By the 1618th and 16i9th Sections of Irwin's Ke-

vised Code, it is expressly declared, that among the rights

of citizens is the right to hold office, and that all citizens

Ill
are entitled to exercise all their rights as such, unless ex pressly prohibited by law; and as the Constitution 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 upon it by the express definition of the Code it adopted.
6th. Article 1st and section 3d of the Constitution of 1868 expressly declares that all persons born in 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 Constitution guaranteed eligibility to office, except when otherwise prohibited.
7th. Nor would the repeal of those sections of the Code, or their alteration, deprive a coioied person of the right thus guaranteed. Since it is a settler! rule that it is not in the power of the Legislature to divest a right or change a con stitutional guarantee by altering the legal meaning of the word by which that guarantee was made.
8th. The right to vote involves the right to be voted for, unless otherwise expressly provided, since it is not to be presumed, without an express enactment, that the principalis of less dignity or rights than the agent.
9th. There being in the Constitution of 186S various spe cial disqualifications of electors for particular offices, and four separate sections detailing disqualifications for any office, and a black skin not being mentioned as one of these disqualifications, tinder the rule that the expression, &c., of one thing is the exclusion of others, persons of color, elec tors, are not disqualified from holding office.
10th. There never has been in this State, at any period of its history, any denial in terms of the right to vote or to 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 State; and when Article 1, Section 2 of the Constitution of 1868 recognized them as citizens, the right to vote and to hold office, except as other wise provided by the Constitution, was, ex vi termini, also guaranteed to them.
llth. 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 selecting power to choose; and to make out a case of ineligibility

112

there must be such a state of affairs as establishes not only

the want of power to be chosen, but a denial of power in

the selecting party to choose.

12th. The people of a State, in their collective capacity,

have every right a political society can have except such as

they have conferred upon the United States, or on some de

partment of the State Government, or have expressly denied

to themselves by their Constitution ; and as the right to se

lect 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 particular person, or class of persons,

is expresalv taken awav by the Constitution.

JL

*

v

*>

OPIXIOX OF CHIEF JUSTICE BROWX.

Chief Justice Brown then read from his written opin

ion, as follows:

The view which I take of the rights of the parties litigant

in this case, under the Code of Georgia, renders it unneces-

s

CJ

*

sary for me to enter into an investigation of the question;

whether the Fourteenth Amendment of the Constitution of

the United States, or the Second Section of the First Article

of the Constitution of Georgia, which in substance is iden

tical with the Fourteenth Amendment, confers upon colored

citizens the right to hold office. If the respondent in this

case acquires the right by grant found in either of the said

Constitutions,' or in the Code of this State,j it is sufficient for all the purposes 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 ^"inth Article of the Constitu

tion of this State adopts, in subordsnation to the Constitu

tion of the United States, and the laws and treaties made in

pursuance thereof; and in subordination to the said Consti

tution of this State; the " body of lows known as the Code

of Georgia, and the acts amendatory thereof, which said

113
4
Code and acts are embodied in the printed book known as Trwin's Code,1 ' "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. Residents, 3d. Aliens, 4th. Persons of color.
Section 46 of the Code declares that, All white persons born in this State, or in any other State of the Union, who are or may become residents of this State, with the inten tion of remaining herein; all white persons naturalized under the laws of the United States, and who are, or may become, residents of this State with the intention of remain ing herein ; all persons who have obtained aright to citizen ship under 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.
By the Code the distinction is therefore clearly drawn be tween citizens who are white persons and persons of color.
In other words, none are citizens under the "printed hook known as Irwin's Code" but white persons. Having specified the class of persons who are citizens, the Code pro ceeds, in Section 1648, to define some of the rights of citiizens, as follows:
"Among the rights of citizens are the enjoyment of per sonal security, of personal liberty, private peoperty and the disposition thereof, the elective franchise, the right to hold office, to appeal to the Courts, to testify as a witness, to per form any civil function, and to keep and bear arms."
Section 1649 declars that, "All citizens are entitled to exercise all their rights as such unless specially prohibited by law."
Section 1650 prohibits females from exercising the elective franchise, or holding civil office.
Section 1651 prohibits minors from the exercise of civil functions, till theyare of legal age.
Sections 1652 and 1653 prohibit 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 Fourth class of natural persons, desig nated as persons of color; giving them the right to make contracts; sue and be sued, give evidence, inherit, purchase
8

114

and sell pr operty ; and to have material rights, security of

personal estate, &c,, embracing the usual civil rights of cit

izens, bat does 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 yield to the fundamental law, when

ever- in conflict with it. In so far as the Code had confer

red rights on the colored race there is no conflict, and no

repeal. The Constitution took away no rights then pos

sessed 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 them from the fourth class

of natural persons, under the above classification, who were

denied citizenship by the Code, to the nrst class, as citizens,

Tht46th Section of the Code limited citizenship 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 i6 of the Code, as greatly

to enlarge the class of citizens. But it repealed no part of

Section 16^8. which detines 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 Constitution itself, which the Legisla

ture cannot take awa,y. It declares expressly that no law

shall be made or enforced which shall " abridge the privi

leges or innimijitiws of citizens of the United States, or of

this State." It io not necessarj- to the decision of this case

to inquire, what are the privileges and immunities" of a

citizen \ which are ^ruaranteed bv the 14th Amendment to

f^

__

M

the Constitution of the United States, and by the Constitu

tion of this State. Whatever they may be, they are pro

tected against ail abridgement by legislation. This is the

full extent of the constitutional guarantee. All rights of

the citizen, not embraced within these terms, if they do not I

embrace *L, are su^je^t to the control ot the Legislature.

Whether the i; privileges and immunities" of the citizen

embrace political righto, including the right to hold office,

I need not now inquire. If they do, that right is guaranteed

alike by the Constitution of the United States, and the Con

stitution of Georgia; and is beyond the control of legisla

tion. If not, that right is subject to the control ol the

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 as far as

115
the 14-th Amendment has gone, and no further. An author itative construction of the 14th Amendment by the Supreme Court of the United States upon this point would be equally binding as a construction 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 Constitution- She has stopped nothing short, and gone nothing beyond. The highest judicial tribunal of the Union will no doubt finally settle the meaning of the terms "privileges and immunities*' of the citizen, which legislation cannot abridge; and the people of Georgia, as well as those of all the other States, must conform to, and in good faith abide by, and carry out, the decision. All the rights, of all the citizens, of every State, which are included in the phrase " privileges and im munities " are protected against legislative abridgement by the fundamental law of the Union, Those not so embraced, nnless included within some other constitutional guaranty are subject to legislative action, The same rights which the Fourteenth Amendment to the Constitution of the United States confers upon, and guarantees to, a colored citizen of Ohio, are conferred upon and guaranteed to every colored citizen of Georgia, by the same amendment, and by the Constitution of this State, made in conformity to the re construction acts of Congress.
Whatever may or may not be the^ privileges and immu nities guaranteed to the colored race, by the Constitution of the United States aud 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 binding upon all her inhabitants while of force, confers upon all her citizens the right to hold office, unless they are prohibited by some provision found in the Code itself. I find no such prohibition in the Code affecting the rights of this respondent. I am, therefore, of the opinion that the judgment of the Court below is errone ous, and I concur in the judgment of reversal.

116

REMABKS BY JUDGE WAKSTEE.

At this point, his Honor Judge Warner, before commenc

ing to read his written opinion, opened with the following

remarksf He said:

I dissent from so much of the judgment ot the majority

ot the Court as reverses the judgment of the Court below

overruling the Demurrer. The question involved in that

Demurrer was, Whether a colored citizen under the Con

stitution and laws of this State has the legal right to hold

office under her authority.

The State is the source and fountain of office; there can

be no dispute about that. And when a person, whether

white or colored, claims a legal right to hold an office under

her authority, he must show his legal right to do so either

under the Constitution or statutes of the State or the com-

mon law of the State. The difficulty in regard to colored

citizens in my judgment the legal difficulty in their way,

of holding office in this State under the existing law, con

sists in this:

They are a new class which has been incorporated into

the body politic in this State. It is unnecessary to inquire

bv what means, but thev have been incorporated into the

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4.

body politic of the State made a part thereof.

They cannot claim a common law right to hold office in

the State, for they had,not exercised that right so long that

" the memory of man runneth not to the contrary." They

have recently been incorporated into the body politic of the

State. They cannot claim a common law right to hold office

under the authority of the State. In my judgment the

Constitution did not confer that right upon them, nor does

the Code of Georgia confer that right upon them, for it

should be remembered that the Code of Georgia was adopted

by the Legislature prior to their being made citizens. Col

ored citizens were not in contemplation of the lawmakers

when that Code was adopted. That Code was adopted as

the law of the State on the 1st of January, 1863, and all

the provisions that are made in that Code were made for

the class of citizens which are specified and recognized in

that Code as citizens. Colored citizens were not contem

plated by the law makers thev were not in view at all.

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These provisions were not made in reference to them in any

manner whatever,j for theyt/ were not then citizens of the State; they were incorporated into the body politic subse

quently to the Code, and when the Constitution adopted

117
that Code it adopted it as a whole, as it stood, without mak ing any alterations in it.
Then colored citizens cannot claim a common law right to hold office in the State: the Constitution in my judgment did not confer the right upon them to hold office, and the Code did not confer it, because that is not the expression of the legislative will of the State since they became citizens thereof, and can have no application to them. The Code, when it speaks of the rights of citizens, speaks of that class which the Code itself recognized as citizens at that time. It did not provide for any other class who might thereafter be come citizens. It only provided for that class who were citizens at the time, and nobody else that class of citizens only were in the purview of the lawmakers when they adopted it.
The colored citizens having been incorporated into the body politic subsequently to the adoption of that Code, they must either derive their right to hold office under some public law of the State, either under the Constitution of IS68 or by the common law, or by some law that has been enacted some expression of the public will of the State since they became citizens. That is my point.
Has there been any expressed public will of the State as to their right to hold office since they became citizens thereof ? If there has, and the rights have been conferred upon them, they are entitled to exercise them. If there has not, they cannot exercise them, and it is no answer to say that because they are not prohibited from exercising office they can do so. Unless the right was conferred upon them previously they have not got it, although there may be no prohibition; for prohibition could not prohibit that which did not exist. If they have not got the right either under the Constitution or some public law of the State the fact that they are not prohibited from exercising it amounts to nothing. They must have the previous right.
The distinction between the rights of colored citizens to hold office in this State and white citizens is: The white citizen had a common law right to hold office in the State a right that has existed so long long that " the memory of man runneth not to the contrary." There was no law in this State previous to the adoption of the Code in 1863 confer ring the right upon white citizens to hold office, and that declaration in the Code is only the substance of the com mon law. When the Code says it should be one of the rights of citizens to hold office, it only affirmed what was the common law, and what was the usage the substance

us

:>f a custom so long that the memory of no man runs to the

sontrary. The white citizen, native-born and naturalized,

had a common law right to hold office, because he had ex

ercised it so long that "the memory of man runneth not to

the contrarv;?' fj

but

the

colored

citizen

when he was intro-

dneed into the body politic could not claim that right. We

all know the time was when he did not exercise it, and

therefore he cannot claim a common law right as the white

citizen can.

A naturalized citizen had the common law right to be

President of the United States. That was his common law

right, and hence there was a prohibition put into the Con

stitution to prohibit a naturalized foreigner from exercising

that common law ric. r ht. The moment he was natnralizod as a citizen he had the common law right to hold office, and

in order to restrain him they put in the prohibition that no

body should be President but a native born citizen. The

prohibition prohibited the exercise of his common law right,

as it was thought necessary to prohibit him from its ex

ercise.

The State being the source and fountain of office, she may

grant to any class of her citizens by some public law, either

common, statute or by the Constitution it does not matter

which, but the party who claim to exercise it must show the

ground the law upon which he bases that right.

As I have said, the colored citizen recently incorporated

into the body politic cannot claim it under the common law

right. He must derive it either from the Constitution or

some statute, I say there has no statute been passed since

he was made a citizen there has been no expression of the

Eablic will of the State since he was a citizen, that it was er will and desire that he should hold office. All the

declarations of the Code, all the enactments of the Code were

made prior to the time when he became a citizen, he was

not embraced or included therein, and not in the perview of

the law-makers who made that Code, and therefore that ia

no expression of the public will of the State as to his right

to hold office when he was not a citizen at that time. It

applies exclusively to that class who are recognized as

citizens-

119
DISSEKTIXG OPINION OF JUD&E WAEKER.
[Here the Judge, reading from his written opinion, said :]
The Defendant is a person of color, having, as the record states, one-eighth of negro or African blood in his veins, who claims to be lawfully entitled to hold and exercise the duties of the office of Clerk of the Cuperior Court. And the question presented for our consideration and judgment is: Whether a person of color of the description mentioned in the record is legally entitled to hold office in this State nnder the Constitution and laws thereof.
The Fourteenth Amendment to the Constitution of the United States declares that " all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. Xo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Constitution of this State declares that " all persons born or naturalized in the United States and resident in this State are hereby declared citizens of this State, and no la\v shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States or of this State."
From the time of the adoption of the Fourteenth Amend ment, and the adoption and ratification of the Constitution 01 this State in 1803, the Defendant became, notwithstand ing his color and African blood, a citizen of the United States and is entitled to all the privileges and immunities of a citizen. Does the fact that the Defendant was made a citizen of the State with all the privileges -and immunities of a citizen thereof confer upon him the legal right to hold office in this State as such citizen ? When we take into con sideration the condition and object of creating an office, and by what authority it is conferred upon a citizen, the distinc tion 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 omce? "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 qfficium principally implies a duty^ and in the

120

place the charge of such duty; and that it is a rule 'that

where one man hath to do with another's affairs against his

will, and without his leave, th:it this is an office, and he who

is in it is an officer. By the ancient common law, officers

ought to be honest men, legal and sage, et qui melius sciant

etj>ossint offiois iUi intendere : and this, says my Lord Coke,

was the policy of prudent antiquity, that officers did even

give grace to the place, and not the place only to grace the

officer." 7th Bacon Ab. 279 Title offices and officers.

Blaekstone says: "The King, in England, is the.fountain of

honor, and of office, and the reason given is that the law

snpposes that no one can 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 prerogative of

creating and disposing of offices : for honors and offices are

in their nature convertible and synonymous. All officers

under the Crown carrv in the eve of the law an honor along

/

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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. Offi

ces, says Blackstone, are a right to exercise a public or

private employment, and to take the fees and emoluments

thereto belonging, a^id are also incorporeal hereditaments.

2d. BL Com, 36.

All citizens of the State, whether white or colored, male

or female, minors or adults, idiots or lunatics, are entitled to

have all the privileges and immunities of citizens, but it

does not follow that all of these different classes of citizens

are entitled to hold office under the public authority of the

State because the privileges and immunities of citizens are

sec_ ured to them. The State, in this countrv^/ ,* as the Crown in Europe, is the fountain of honor and of office, and she

who desires to employ any class of her citizens is the best

judge of their fitness and qualifications therefor. An officer

of the State as we have shown has to do with another's

affairs *' against his will and without his leave;" and such

officer must have the authority of the State to per

form 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 State from that

class of her citizens which in her judgment will best pro

mote the general welfare of the State. The right to have

and enjoy the immunities and privileges of a citizen of

a State does not confer upon him the right to serve the

State in any official capacity until that right is expressly

granted to him by law. Mr. Justice Curtis in his dissenting

121
opinion in the case of Dred Scott vs. Sanford, says " so in all the States numerous persons, though citizens, cannot vote or cannot hold office, either on account of their age or sex, or the want of the necessary qualifications." See also case of Corfield vs. Coryell, 4 Washington's Circuit Court Reports 380 381 to the same point.
The Defendant, therefore, cannot legally claim any right to hold office either under the Fourteenth Amendment to the Constitution of the United States or the Constitution of this State, which make him a citizen and guarantee unto him the privileges or immmunities of a citizen; for he may well have and enjoy all the privileges and immu nities of a citizen in the State without holding any office or exercising any public or official duty under the authority of the State.
The privileges and immunities of a citizen of a State do not confer the legal right to hold office under the public au thority of the State. Does the public law of the State re cognized and adopted by the Constitution of 1868, and known as Irwin's Code, confer upon the Defendant the legal right to hold office in this State ?
The Code took effect as the public law of this State on the 1st day of January, 1863. By the 46th Section thereof it is laid down that " all white persons, born in this State or in any other State of this Union, who are, or may become residents of this State with the intention of remaining herein ; all white persons naturalized under the laws of the United States, and who are or may become residents of this State with the intention of remaining herein; all persons who have obtained a right to citizenship under former laws, and all children wherever born whose father was a citizen of this State at the time of the birth of such child, or in the case of postkumua children at the time of his death, are held and deemed citizens of this State." "Persons having one-eighth or more of negro or African blood in their veins are not white persons in the meaning of this Code." The 1646 Section declares that " natural persons are distinguish ed according to -their rights and status into 1st. citizens; 2d. residents, not citizens; 3d. aliens; 4th. persons of color."
Section 1647 says, "the persons to whom belong the rights of citizenship, and. the mode of acquiring and losing the same have been specified in a former article: (referring to Article 46, above cited,) " Among the rights of citizens are the enjoyment of personal security, personal liberty, pri vate property and the disposition thereof, the elective fran chise, the right to hold office, to appeal to the Courts, to

122

testify as a witness, to perform anv civil function and to

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keep and bear arms." "All citizens are entitled to exercise

all their rights as such, unless specially prohibited by law/'

See Sections 1647 1653.

It will be remembered that at the time of the adoption of

the Code in 136$,> the Defendant was not a citizen of this State and was not recognized by the Code as a citizen

thereof. By the 1646th Section the status of the Defendant

is defined to be a person of color and not that of a citizen.

The revised Code adopted by the Constitution of 1868,

includes the act of 1S66. which declares that " all negroes,

mulattoes. mestizoes and their descendants, having one-

eighth of negro or African blood in their veins, shall be

known in this State as persons of color," and specially de

fines their legal rights, but the right to hold office is not

one of them/ (Revised Code Section 1661.)

It is trne that since the adoption of the Code the Defend

ant has been made a citizen,> but the leof^jral rigi^,hts conferred upon citizens by the Code, were conferred upon that class of

persons only who are declared and recognized by the Code

as citizens of the State at the time of its adoption. When

the Code declares that it shall be the right of a citizen to

hold office, such right is confined to that class of per

sons who are recognized and declared therein to be citizens

of the State, and not to any other class of persons who

might thereafter become citizens. So when the Code de

clares that all citizens are entitled to exercise all their rights

as such, unless prohibited by law, it is applicable to that

class of persons only who were declared to be citizens of

the State at that time, and not to any other class of persons

who might thereafter be made citizens of the State, such as

Chinese, Africans, or persons of color. The truth is that

the public will of the State has never been expressed by

anv le\g_. itimate enactment in favor of the rigc?ht of colored citizens to hold office in this State since they became citi

zens thereof,

Although these several classes of persons might be made

citizens of the State with the privileges and immunities of

citizens, still they could not legally hold office under the

authority of the State until that right shall be conferred

upon them by some public law of the State subsequent to

the time at which they became citizens so as to include them

in its provisions. The public will of the State, as to the

legal right of that class of her citizens to hold office, has

never been affirmatively expressed, but on the contrary,

when the proposition vas distinctly made in the Convention

123
which formed the present Constitution to confer the right ripon colored citizens to hold office in this State, it was voted down by a large majority. (See Journal of the Convention, page 312.) So far as there has been any expression of the public will of the State as to the legal right of that class of citizens known as colored citizens, since they became such, to hold office in this State, it is against that right now claimed by the Defendant.
The insurmountable obstacle in the way of the Defendant claiming a legal right to hold office in this State under the provisions of the Oode, is the fact that he was not a citizen of the State at the time of its adoption. The class of per sons to which he belongs were not recognized by it as citi zens, and therefore he is not included in any of its provisions which conferred the right to hold office upon the class of citizens specified in the Code. The Code makes no provis ion whatever for colored citizens to hold office in this State; all its provisions apply exclusively to white citizens, and to no other class of citizens.
The Convention which framed the present State Consti tution and declared persons of color to be citizens, could have conferred the right upon them to hold office, but de clined to do so by a very decided vote of that body, and went before the people claiming its ratification upon the ground that colored citizens were not entitled to hold office under it; and there can be no doubt that the people of the State voted for its ratification at the ballot box with that understanding.
But now it is contended that the Defendant, though a colored person, is made a citizen of the State and of the United States, and that no enabling act has ever been passed to allow a naturalized citizen to hold office in this State when he possessed the other requisite qualifications pre scribed by law that the Defendant having been made a citizen of the State is entitled to hold office in the same man ner as a naturalized citizen could do. The reply is that naturalized citizens were white persons and as such had a common law right to hold office a right founded upon im memorial usage and custom, which has existed so long that "the memory of man rnnneth not to the contrary." The 1648th Section of the Code simply affirms the common law as to the right of white citizens to hold office in this State, Ko such common law right however, can be claimed in this State in favor of persons of color to hold office, They have but recently become entitled to citizenship, and have never held office in this Statec In 18483 in the case of Cooper and

124
Worshain against the Mayor and Aldermen of the city 01 Savannah 4th Georgia .Reports, 72 it was unanimously held and decided by this Court that free persons of color were not entitled to hold any civil office in this State. The naturalized white citizen can claim the common law right to hold office in this State; the colored citizen cannot claim any such common law right for the reason that he never exercised and enjoyed it; and that constitutes the difference between the legal right oi a naturalized white citizen to hold office in this State, and a person of color who has re cently been made a citizen since the adoption of the Code, and who is not embraced within its provisions.
The one can claim his common law right to hold office in the State,* the other cannot:> and until the State shall declare by some legislative enactment that it is her will and desire that her colored citizens shall hold office under her author ity, they cannot claim the legal right to do so. We must not forget that the State is the fountain and parent of office, and may confer or refuse to confer the right to hold office upon any class of her citizens as she may think proper and expedient.
\Vhen a new class of persons are introduced into the body politic of the State, and made citizens thereof, who cannot claim a common law right to hold office therein, it is incum bent on them to show affirmatively that such law has been
/
conferred upon them by some public law of the State since they were made citizens thereof, to entitle them to have and enjoy such right. In other words, they must show the pub lic law of the State,/ enacted since the*vi became citizens thereof, which confers the legal right claimed,, before they rciagnhu*td.emand a iudtnent of the Court in favor of such legal
All male white citizens of the State, whether native born or naturalized citizens, having the necessary legal qualifica tions, have a common law right to hold office in this State, and. in order to deprive them of their common law right, a prohibitory statute is necessary. A naturalized citizen had a common law right to hold the office of President of the United States. Hence the prohibition in the Constitution of the United States. Bat, as colored citizens of the State, who have recently been made such, cannot claim a common law right to hold office in the State, no prohibitory statute is necessary to deprive them of a right which they never had under the common law or statute laws of the State. When, therefore, it is said that colored citizens have the right to hold office in the State, unless specially prohibited

125
by law, it must be shown affirmatively that they had previ ously enjoyed that right. Tf they cannot show their right to hold office in the State, either under the common law, the Constitution, or statutes of the State, the fact that they are not specially prohibited from exercising a right which they never had, amounts to nothing so far as investing them with the right to hold office is concerned.
When and where, and by what public law of the State was the legal right to hold office therein conferred on the colored citizens thereof ? If this question cannot be an swered in the affirmative, and the leejal authorities under which the right is claimed cannot be shown, then the argu ment that inasmuch as there is no'special prohibition in the law against the right of colored citizens to hold office, falls to the ground. If there was no existing legal right to hold office to be prohibited, the fact that there is no prohibition does not confer such legal right. There was no legal neces sity to prohibit that which did not exist.
It is not the business or the duty of courts to make the law but simply to expound and enforce existing laws which have been prescribed by the supreme power of the State.
After the most careful examination of this question I am clearly of opinion that there is no existing law of this State which confers the right upon the colored citizens thereof to hold office therein, and consequently that the Defendant has no legal right to hold or exercise the duties of the office which he claims under her authority, and that the judgment of the Court below overruling the Demurrer should be
confirmed.

3P

TD X

CONTAINING- THE MESSAGES OF

HIS EXCELLENCY,
RUFUS B. BULLOCK,
GOVERNOR OF GEORGIA,

To the Legislature of that State on the Occasion of the Expulsion of the Colored Members:
ALSO,
Hie Opinions of Distinguished Legal Gentlemen of Georgia, upon the Decision of the Supreme Court Declaring JSegroes Eligible to Office.

A. IP I? E N- DI

In order that the hi,4ory of the question of the eligibility

of colored citizens to office in Georgia may be complete, the

argument of His Excellency C4ovcrnor Bullock, presented

in Messages to the House and Senate previous to the expul

sion of the colored members, is here reprinted; as also the

Message of His Excellency the Governor returning to the

House the joint resolution referred to in the appended opin

ions of legal gentlemen. It is a notorious fact that a resolu

tion pledging the Senate to abide by the decision of the Su

preme Court was voted down by that body, on the 8th

of February, 1860, by a vote of 12 to 20, and that the

House refused to entertain a similar resolution. Hence

there is no foundation for the charge that the Governor

vetoed a resolution plecknne? the Legislature to abide by the

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decision of the Court.

\)

TO THE
HOUSE OF REPRESENTATIVES.
EXECUTIVE DEPARTMENT, ATLANTA, GEORGIA, September 9, 186$.
Tt> llte JJvnst of Jiepresentalives:
Your committee to whom was referred the subject of the i: election and eligibility of persons claiming seats" in your body, in the place of the twenty-five members by you de clared ineligible upon account of color, called upon me and presented me with a report of the action of your body 011 the subject of such alleged ineligibility ; setting -forth that certain "free persons of color," therein named, from the counties mentioned, "are, under the Constitution of the State of Georgia, ineligible to seats on the floor" of your House, and further appointing a committee "to whom shall be referred the election and eligibility of persons claiming seats from the aforesaid counties." This report is as follows:
" WHEREAS, Abram Smith, of the county of Muscogee, lias been declared ineligible to a seat on this floor; and whereas, Thomas W. Grimes, Jr., of said county, received the next highest number of votes cast in said county at the late election for "Representatives in the General Assembly of this State, be it,
"Resolved, That the said Thomas "W. Grimes, Jr., be de clared a member of this body, and that the proper officer proceed immediately to swear him in.
MoDotiGALD, of Chattahoochee.

132

* The above resolution was amended by Mr. Tumlin, of Randolph, as follows:

1. WHEREAS, T. M. Alien, of Jasper county;

2. E. Barnes. of Hancock county;

3. T. G. Campbell, of Mclntosh county :

i. G. II. Glower, of Monroe county ;

r>. A. Colbvt, .* of Greene couiitv- ; 6. J. T. Costin, of Talbot county ;

7. Mondav Fiovd, of Warren conntv:

.

*

'



8. S. Gardner, of Warren county/ :

9. W. A. Golden,' of Liberty*/ c-uvmt/y;

1". "VV. H. Harrison. of Hancock counly :

11. U. L. Houston, of Brvan countv:

12.

"*
Pliilip Joiner, of

Douc gherty

-
couniy;

Y<?>. Geonre Linder. of Laurens countv :

^^

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*'

1-i. II. Lumpkin. of ilacon cuunty ;

15. Romulus Moore, of Columbia county ;

16. Peter O'Xeal. of Baldwin countv :

'

C

IT. James Porter, of Chatham county ;

IS. A. Kichardson, of Clarke county:

19. J. M. Sinims. of Chatham county:

2<J. Abrarn Smith, of Muscc^ee county ;

f

^-

9.

*

"21. Alexander Stone, of Jefferson county:

22. H. 31. Turner, of Bibb county :

23. J. Warren, of Burke county :

24. Samuel Williams, of Harris county:

25. M. Claiborne. of Bnrke county ;

tree persons of color, heretofore occupying seats on the

floor of this House, are. under the Constitution of the State

of Georgia, ineligible to seats on the iioor of this House:

and whereas, they have been so declared by said House; be

it therefore.

" Resolved* That the persons in each of the counties

aforesaid having the next highest number of votes, who are

free from Constitutional ineli^ibilitv, are declared eligible

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^5

and entitled to seats on the floor of this House.

" TUMLTX, of Randolph.

;i On motion, a committee of three was appointed, to whom shall be referred the election and eligibility of per sons claiming seats from the aforesaid counties.
"The Chair appointed the following as the committee au thorized as above:
Messrs. Drake, of Upson: Lee. of Newton; Bethune, of Talbot.

133

"J certify the above to be a correct list of the committee

appointed by the Chair, to whom shall be referred the mat*

ter above recited.

(Signed)

"M. A. HABDIN,

" Clerk Ilonse of Representatives.

" ATLANTA, GA., September -i, 1868."

Your committee requested of me the names of the parties who, in the respective counties named, received the number of votes next highest to the persons so declared ineligible.
I immediately caused the necessary examination of the election returns to be made by two competent persons, sworn
to the due and faithful performance of that duty, and here with submit the names of the parties ascertained to ha\re
received in the respective counties named, the next highest number of votes, namely:

Samuel McComb, of the county of Baldwin, vice Peter McXeal;
O. G. Sparks, of the county of Bibb, vice H. M. Turner; W. W. Greiger, of the county of Bryan, vice U. L. Hous ton ;
J. S. Byne, of the county of Burke, vice M. Claiborne ; T. J. Burton, of the county of Burke, vice John Warren; J. B. Saussy, of the county of Chatham, vice James Porter;
J. J. Kelley, of the county of Chatham, vice J. M. Simms; J. H. Scott, of the county of Columbia, vice K. Moore; Henry Morgan, of the county of Dougherty, vice Philip Joiner;
J. B. Park, of the county of Greene, vice Abraham Colby ; T. F. Brewster, of the county of Harris, vice S. Williams; S. E. Pearson, of the county of Hancock, vice W. H. Harrison ;
G. C. Carpenter, of the county of Hancock, vice E. Barnes;
Eli S. Glover, of the county of Jasper, vice F. M. Alien ; James Stapleton, of the county of Jeiferson. vice A. Stone; E. D. Barrett. of the county of Laurens. vice George LT i ndJ er;
B. H. Zellner, of the county of Monroe, vice G. W. Clower;
W. L. Hitchcock, of the county of Morgan, vice Monday Floyd;
Thomas W. Grimes, of the county of Muscogee, vice Abram Smith;

1S4

J. R. Kinbroucorh.- of the count*y/ of Talbot,7 vice J. T. Costin;

T. S. Hindlv, of the county of Warren, vice S. Gardner,

a, >

v

-

Of the counties of Clarke. Liberty, Maeon and Mclntosh,

the returns being incomplete, the committee are unable to

report at present.

While thus participating in your action by complying

with the request of your committee, 1 deem it to be my duty

to say, that when inaugurated as Governor of this State, in

presence ot the General Assembly. I took a solemn oath

that, to the best of my ability, I would preserve, protect and

defend the Constitution, and though I am only able on this

occasion to defend the Constitution by expressing a respect

ful objection to the action already taken, as well as that

about to be taken, by the House of Representatives in con

nection with the report above given, a due regard for my

<official oath will not permit me to remain a silent spectator

<>f the attempt thus made, to deprive electors of many coun

ties in the State of their constitutional right to the voice and

vote in your deliberations of their chosen Representatives,

and the placing in their stead of persons who did not and

cannot receive a majority ot the votes in those counties.

It must be apparent to the mind of every person not

blinded by prejudice, after fairly viewing our situation in the

late past, and our present condition under civil government,

that such action is a violation of the Constitution, which

you and I have sworn to support.

When the armies of the confederated rebellion surren

dered to the military power of the Government of the

nation, and the persons composing the civil establishment of

the insurrectionary States became either prisoners or fugi

tives, we were left a community composed of non-combat

ants, paroled prisoners of war, and persons formerly slaves

who had been set free. We were totally without political

rights and privileges. Those which we have since acquired

are such as have from time to time been granted us by Con

gress.

Under the provisions of the Congressional law, all male

inhabitants of the State, except such as were specially exclu

ded by law, are permitted, alter framing a Constitution ac

ceptable to the General Government, to establish a govern

ment for the State.

All the rights, privileges and immunities enjoyed to-day

by any citizen of this State, are so enjoyed under and by

virtue of this Constitution, and are derived through the

clemency of Congress in permitting us to organize a civil government under that instrument.
The attempt is now made to exclude electors who are not of Anglo-Saxon blood from the right of representing the voters by whom they were legally and constitutionally elected.
Whence does the elected Representative of one county derive authority to become a judge and decide that the Representative duly elected from another county shall not be seated ?
If such authority is not found in this Constitution, it can only be derived from the unlawful exercise of power.
The only limitation upon the eligibility of an elector to office, or to membership of the General Assembly, is foutfd in the following provisions of the Constitution of this State, and of the United States, namely:
CONSTITUTION OF GEORGIA.
Article L " SEC. 3. No person convicted of felony or larceny before any Court of this State, or of, or in the United States, shall be eligible to any office or appointment of honor or trust within this State, unless he shall have been pardoned." " SEC. - . No person who is the holder of any public mon eys shall be eligible to any office in this State, until the same is accounted for and paid into the Treasury." " SEC. 5. No person who, alter the adoption of this Con stitution, being a resident of this State, shall engage in a duel in this State, or elsewhere, or shall send or accept a challenge, or be aider or abettor to such duel, shall vote or hold office in this State; and every such person shall, also, be subject to such punishment as the law may prescribe." k* SEC. 6. The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold office : First. Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, crime punishable by law with imprisonment in the Penitentiary, or bribery. Second. Idiots or insane persons."
Article I.
" SEC. 1, PAR. 4. No person holding a Military Commis sion, or other appointment or office, having any emolument

136

or compensation annexed thereto, under this State or the Cnited States, or either of them, except Justices of the Peace and officers of the militia, nor any defaulter for pub lic money, or for any legal taxes required of him, shall have a seat in either House ; nor shall any Senator or Represen tative, after his qualification as such, be elected by the Gen eral Assembly or appointed by the Governor, either with or without the advice and consent of the Senate, to any office* or appointment, having any emolument thereto, during the time for which he shall have been elected.
i{ PAR. 5. The seat of a member of either House shall be vacated on his removal from the district from which he was elected. 7 '
" SEC. 3. PAR. 3. The Representatives shall he citizens of the United States who have attained the age of twenty-one years, and who, after the first election under this Constitution, shall have been citizens of this State for one year, and for six months residents of the counties from which elected. 5 '

Article IV.

SEC. 1. PAR. 3. Xo person shall be eligible to the office of

Governor who shall not have been a citizen of the United

States fifteen vears. ancl who shall not have attained the a^e

*/

-

C^

of thirtv vears/'

/

I/

i; SEC. 2, PAR. 5. A person once rejected by the Senate

shall not be re-appointed by the Governor to the same office

during*_* the same session or the recess thereafter."

Article V.
" SEC. 10, PAR. 3. Xo person shall be Judge of the Su preme or Superior Courts, or Attorney General, unless at the time of his appointment he shall have attained the age of thirty years, and shall have been a citizen of this State three years, and have practiced law for seven years."

CONSTITUTION OF THE UNITED STATES.
Article XIV.
"SEC. 3. Xo person shall be a Senator or Representative in Congress, or Elector of President and Yice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as any officer of the United States, or as a member of any State Legislature, or as an Executive or Judicial officer of any State, to support the

13?
Constitution of the United States, shall have engaged in in^ surrection or rebellion against the same,,or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability."
CONSTITUTION OF GEORGIA.
Article XI.
"SEC. 1. As the Supreme law: The Constitution of the United States, the laws of the United States in pursuance thereof, and all treaties made under the authority of the United States."
" SEC. 2. As next in authority thereto, this Constitution"
From the foregoing it must be freely admitted that no person is made ineligible under our Constitution on account of race or color.
That negroes are citizens and electors of the State, and, therefore, entitled to all the privileges enjoyed by other citi zens and electors, and subject only to the same restrictions, is further demonstrated by Article I, Section 2, and Article II, Section 2 of the Constitution, as follows:
Article I.
" SEC. 2. All persons born, or naturalized, in the United States, and resident in this State, are hereby declared citi zens of this State, and no laws shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States, or of this State, or deny to any person within its jurisdiction the equal protection ot its laws. And it shall be the duty of the General Assembly, by appropri ate legislation, to protect every person in the due enjoyment of the rights, privileges and immunities guaranteed in this section."
Article II.
"Src. 2. Every male person, horn in the United States, and every male person who has been naturalized, or has legally declared his intention to become a citizen of the United States, twenty-one years old, or upward,who shall have resided in this State six months next preceding the election, and shall have resided thirty days in the county in which he offers to vote, and shall have paid all taxes which may have been required oi him, and which he may have had an opportunity of pay ing, agreeable to law, for the year next preceding the elec tion, except as hereinafter provided, shaU be deemed an elector^ and every male citizen in the United States, of the

138

age aforesaid, except as hereinafter provided, who may be a

resident of the State at the time of the adoption of this Con

stitution. shall be deemed an elector, and shall have all the

rights of an elector, as aforesaid : Provided, That no soldier,

sailor or marine in the military or naval service .f the Uni

ted States, shall acquire the rights of an elector, by reason

of being stationed on duty in this State ; and no person shall

vote who, if challenged, shall refuse to take the following

oath: I do swear that I have not given, or received, nor

do I expect to give, or receive, any money, treat or other

thiDsr of value, bv which mv vote, or anv vote is affected.

C

&



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7

or expected to be aftected at this election, nor have I given

01* .pi romised anvt/ reward,- or made anv/ threat,> bvj which to prevent any person from voting at this election."

I am aware that gentlemen argue that the eligibility of

the colored elector to office should have been affirmatively

stated by specific enactment in the Constitution, in order to

vest in him that privilege.

It might, with more propriety, be argued, that a Consti

tution framed by delegates who were voted for by eighty-

live thousand black men and twenty-live thousand white

men. '

and

ratified

bv the /

votes

of

seventv t,

thousand

black

men and thirty-five thousand white men, did not carry with

it that privilege to the white elector, because it was not

stated.

Admitting, however, that this privilege ought to have been so granted, we find that, by Paragraph 3 of Arti cle XI of the Constitution, the Code of laws, known as Irwin's Code, continues of force, when not inconsistent with the Constitution.
Section lt54S of the Code is as follows : " Among the rights of citizens are the enjoyment of personal security, of per sonal liberty, private property, and the disposition thereof, the elective franchise, the right to hold office, to appeal to the Courts, to testify as a witness, to perform any civil function, and to keep and bear arms."
Section 1549 of the Code states that "all citizens are en titled to exercise all their rights as such, unless specially prohibited by law."
Sections 1850 and 1851 specially prohibit females and in fants both of which classes are citizens from exercising certain of the rights of citizens.
Will any one declare that these sections are inconsistent with the Constitution ?
Will any one deny that a negro is a citizen ?

139
In the Constitutional Convention which framed the Con stitution under which we act, on the 15th day of February, 1868, Mr. Wad dell of Polk, moved a reconsideration of so much of the journal as related to the striking out of the 10th Section of the report of the Committee on Franchise, for the purpose of offering the following as a substitute for said section, namely: " White men only shall be eligible to office of trust, honor or profit, or employment, whether municipal, judicial or political, in this State, and white men only shall serve as ju-i ors in the Courts/' This motion was voted down by a vote of 103 to 19. If the Convention intended that white men only should hold office, why did they not adopt Mr. Waddell's motion ?
Again, is it reasonable to suppose that a class of citizens, who had been recognized and commissioned as officers to execute the Reconstruction acts, by holding the elections, and who had been qualified as members and officers of the Convention which framed our Constitution, should be now any the less eligible under the Constitution which they par ticipated in framing, unless the right they then enjoyed had been curtailed, or entirely withdrawn by express enactment ?
Ko, gentlemen, the framers of the Constitution made no distinction between electors, or citizens, on account of race or color, and neither can you without violating it.
It is argued that this can be done under Paragraph 1, Section 4, Article III: " Each House shall be the j udge of the election returns and qualifications of its members, and shall have power to punish them for disorderly behavior or misconduct by censure, fine, imprisonment or' expulsion; but no member shall be expelled except by a vote of twothirds of the House from which he is expelled."
Each House is the judge only as to whether its meiribers are qualified according to the provisions of the Constitution and the laws made in pursuance thereof; but the House cer tainly shall not "judge" members to be ineligible or dis qualified, because their political sentiments or the color of their skin is not acceptable to the majority; nor shall they, in case there should be a doubt as to the legitimacy of such an act, place the weight of that doubt against the person on trial.
*
Having first silenced, en masse, the votes of twenty-five of your members, and then by resolution, in defiance of the Constitution, declared them ineligible; you now propose to fill their places by citizens who failed to receive a majority of the votes in their respective counties.

140

Is that a Republican form of Government, where a mi nority of electors rule ( Are not the privileges of a citizen " abridged ?? by your action * Does not the Constitution of the United States guarantee to each State a Republican form

of Government, and to the citizens all their privileges and immunities ?
Is it not the duty of Congress, by appropriate legislation,

to enforce that Constitution ? Have we, from our past experience, any reason to believe
that Congress will fail in its duty I

But, reasoning from motives of policy alone, the denial

of the right of colored men to office will but stimulate a

desire on their part, which has not heretofore existed, to

press themselves forward into official positions.

As the result of an election for delegates to the Constitu

tional Convention, when none participated except the ne

groes and the few white friends of self-government who were

not overawed by the opponents of Reconstruction, we find

an assemblage of one hundred and sixtv-nine members, of

c^

>

*

whom only thirty-three were persons of color; and in the

late election, when every possible means were used to pre

vent white persons from becoming candidates on the popu

lar side of the question, out of OXE THOUSAND TWO HUXDBED

AND EJ&HTY-THJtEE pei'SOUS elected to office, Only FORTY-FIVE
of that number are colored. Add to these facts that, with a General Assembly of two
hundred and seventeen members, but thirty-one are colored, and it must be apparent to the unprejudiced mind that the colored men have not acquired that insatiable thirst for office which is so characteristic of our own race. The de

nial, however, of a well-established right will beget conten

tion for the enjoyment of it. In conclusion, I most respectfully and earnestly call upon
you, as lovers of our common country and well-wishers of

the peace and good order of the State, to pause in the suici dal course upon which you have entered, urged on as you are by bold, bad men outside your body, whose wicked

counsels have once drenched our land in blood, and whose ambition now is to ruin that which they cannot rule.
RITFUS B. BULLOCK, Governor.

[The following extract from the published proceedings of
the House of Representatives, is appended :]
"During the reading of the above Message, Mr. Burtz said it was disrespectful to the House. We had declared

141

negroes ineligible, and let us stick to it. Let us vindicate

<u

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our dignity and return me same to his Excellency.

" When the reading of the Message was concluded Mr.

Duncan offered the following:

" Resolved* That the portion of the communication of his

Excellency reflecting upon the action of this House in de

ciding upon the eligibility of free persons of color, under

the Constitution, be returned to his Excellency, with the

followinir resolution : t^T1 w4 Resolved, That said communication is not warranted by

the resolution upon which his Excellency was requested to

act, and that the Constitution declares that the members of

each House are the judges of the qualifications of its own

members, and not the Governor; they are the keepers of

their own consciences, and not his Excellency.

"On the adoption of the resolution, the ayes were 71,

nays 32.

u Mr. Bryant offered a protest against the seating of the

white members vice negroes unseated. ]STot in order.

" Mr. Tumlin moved to swear in the members declared

elected vice the negroes declared ineligible.

" Mr. Rawls moved to amend by saying: Provided they are not men or- co-lor. AA greed1 to.

" Mr. Shumate moved to amend further: Provided they

are not ineligible under the 3d Section, 14th Article Con

stitutional Amendment. Agreed to, and the resolution, as

amended, was adopted.

" Mr. Shumate moved that Messrs. Harper of Terrell,

Lee and O'JSTeal, be appointed a committee to examine into

the eligibility of the new members under the Constitutional

Amendment. Not ayreed to.

" The following members appeared, were sworn and took

their seats. 77 [Here follow the names of the new members

who were at once admitted and sworn, without reference to

their eligibility or ineligibility under Article XIV of the

Constitution of the United States.]

The following extracts are taken from the proceedings of the Constitutional Convention of Georgia, held in the city of Atlanta in the months of December, 1867, and January, February and March, 1868.
" FEBKUAEY 24, 1868. **********
" On motion of Mr. Blodgett the Kule was suspended for the introduction, by Mr. Whiteley, of the following resolu tion, which was taken up, to-wit:

142

" Resolved, That the Judiciary Committee be, and they

are hereby instructed to report to the Convention, at an

early day. an Ordinance declaratory of the qualifications of

members of the General Assembly, at the first session

thereof under the Constitution being adopted by this body,

and that the qualification aforesaid shall be as follows:

" The Senators and Representatives shall be citizens of

the United States who have attained, in the case of the for

mer, to twenty-five years of age, and in the latter, to twenty-

one years of age. and who have been inhabitants of the

State of Georgia for a period of six months, and residents of

the district or countvt> Irorn which elected three months immediately preceding the election.

" Mr. Bell of Banks, moved to amend by striking out

the word 'inhabitants' and inserting 'citizens.'

"Mr. Blodgett moved to amend by inserting before the

word 'citizens' the word 'male.* The motion was withdrawn

by the mover.

" Mr. Trammell moved to amend by striking out all after

the first clause.

" This motion was lost.

" On the question of adopting the amendment of Mr.

Bell of Banks, the yeas and nays were required to be re

corded.

' There were veas 44. navs 63. So the motion to strike

/

'

*J

out the word 'inhabitants' and insert "citizens' was lost.

" The resolution was adopted without amendment."

' FEBRUARY 25, 1868.

Mr. Akerman. from the Judiciary/ Committee,/ made the following report, to-wit :
" Under instructions from the Convention, the Committee on the Judiciary report the following Ordinance :
" A.-> Ordinance declaratory of the qualification of members of the General Assembly, to be chosen at the first election held under the Constitution framed by this Convention. " JBe it ordained by the people of Georgia in Convention
assembled, That the persons eligible as members of the Gen eral Assembly, at the first election held under the Constitu tion framed by this Convention, shall be citizens of the United States who shall have been inhabitants of this State for six months, and of the district or county for which they shall be elected for three monthg next preceding such

143
election, and who, in the case of Senators, shall have attained the age of twenty-five years, at the time of such election.
" The foregoing Ordinance is not reported as the recom mendation of the Committee, but simply in execution of the instructions of the Convention in. the resolution passed yes terday. For the Committee.
"A. T. AKERMAN, Chairman."
MARCH 3, 1868.
3f
" On motion of Mr/Akerman, the report of the Judiciary Committee on the subject of the qualifications of members of the first General Assembly, under this Constitution, was taken up.
"The previous question was called for and sustained. " The main question was put, and the Ordinance reported by said Committee adopted without amendment. " The same has been spread in full on the Journals of the Convention of a previous day." [From the above extracts it will be seen that an Ordinance was passed by the Constitutional Convention specially stat ing that persons who are citizens of the United States, and inhabitants of this State for six months, are eligible to seats in the General Assembly.]

MESSAGE TO THE SENATE.

[Extract from the published Proceedings of tlie Senate]

THUESDAT, September 17, 1368.

Tlie following Message was received from hit Excellency

the Governor, through Mr. Eugene Davis, bin Secretarv :

-"

<--

Cj

'

tj

EXECUTIVE DEPARTMENT, )

ATLANTA, GA., September 15, 1S6S. f

To the Senate:

Your Secretary has presented to me the following :

"WHEREAS, The Seriate having declared that T. G. Campbell who has held a seat as Senator from the Second Senatorial
District, is ineligible to his seat; and that George Wallace, who has held a seat as Senator from the Twentieth Senato rial District, is ineligible to his seat as such : therefore
" Resolved* That the two persons in said Senatorial Dis
tricts, respectively, who received the next highest number of votes to the persons declared ineligible by the Senate, if eligible, are entitled to their seats as Senators from the Sec ond and Twentieth Senatorial Districts.

2. t; JZesolved, That his Excellency the Governor be re

spectfully requested to transmit to the Senate a statement of

the election returns for Senators in the Second and Twen

tieth Senatorial Districts of this State.*7

Being, by the above resolution, requested to participate

in an act which I conscientiouslv f

believe

to

be unconstitu-

tional, it is due to my convictions of responsibility, under

my oath of office, either to decline complying with that re

quest, or. upon a compliance, to make known that I do so

only in deference to the voice of the Senate, and to respect

fully present the reasons which lesid me to a conclusion op

posite to that entertained by your body.

Some of these reasons were presented in a communication
to the House of Representatives a few days since, and to
this I desire to add but a few words.
It has been argued that the members of the Convention who framed the Constitution intended that colored men should "be excluded from the privilege of holding office, and that the majority of the members understood that the Con-

145

sh'tution did not expressly confer that privilege, and that,

therefore, it did not exist.

Having been myself a member of that Convention, famil

iar with its organization- and action, I feel at liberty to say

that the argument above alluded to is not well founded, and

that it is not sustained by the records of the Convention.

The great question that presented itself to the members of

the Constitutional Convention, when assembled, was, " How

can we best establish a Government for the State, under the

spirit and letter of the laws by which we are assembled, that

shall insure its being and remaining in full accord with thy

Constitution and Government of the United States, and at

the same time secure for our State internal tranquility and

prosperity ? "

This could only be done by disqualifying and disfranchis

ing, for official positions and from the franchise, the

large class of persons who had exhibited opposition to the

Government, first by armed rebellion, and later by refusing

propositions which had been made, looking to. restoration,

by declining for themselves, and by urging others to abstain

from, participation in the election of Delegates; and re-

L'tricting privileges of office and of the franchise exclusively

to those who had evinced a desire for restoration to harmo

nious relations to the General Government; or, by adopting

the more liberal and Republican policy of giving the ballot

freely to all men, and with but few limitations, leaving the

electors to be the judge of the qualifications of the person

whom they might see tit to select by their votes to represent

them.

Assuming that if all the male inhabitants of the State had

a free voice and place in the new State Government, the

majority would keep it in harmony with the National ad

ministration ; that where all enjoyed equal civil and polit

ical rights, none could have just cause for dissatisfaction,

the latter course was very properly adopted.

That this was done in good faith and with a full under

standing by a majority of the members of- the Convention,

that colored men were no less eligible than white men, is

clearly demonstrated by the journal of their proceedings.

Confining the argument simply to the eligibility to mem

bership of the General Assembly, we find that by Section 3,

Paragraph 3, of Article 1.

u Representatives shall be citizens of the United States, *

-;:- -H- * wnc>5 after the first election under this Constitu

tion, shall have leen citizens of this State for one year" *

***

"10

146
This section declared who should he eligible after the first election, and that there should be no doubt left as to who were eligible at the first election, the Convention, on the 24th of February, instructed the Judiciary Committee to report " an Ordinance declaratory of the qualification of members of the General Assemblvgj at the tffirst session thereof.j * * * and that Senators and Representatives shall be citizens of the United States, * * * who have been inhabitants of the State of Georgia for a period of six months." -* * '" ":-
The word "inhabitant"' was purposely used, believing that sticklers for ''State Rights" doctrine would hold that the colored man did not become a citizen of Georgia until made so by our Constitution, and that, therefore, if required to be a citizen six months precious to the election, that require ment would exclude the negro.
The statement that this Belief was well founded is sus tained by the fact that a motion was made to strike out of the Ordinance the word "inhabitant''" and insert "citizen."
On this motion the yeas and nays were called, resulting in 44 yeas and 63 nays.
It waa. therefore, clearly the opinion of \kaforty-fowr that the use of the word "inhabitant" made colored men eligible to membership, and in this they were correct.
This Ordinance above referred to was reported by the Ju diciary Committee, and adopted by the Convention without division, on the 25th of February.
While arguing the question, we should consider only the law and the facts, leaving out of view our preferences and personal judgment of the propriety or impropriety of col ored men holding seats in the General Assembly.
For the reasons heretofore presented to the House of Representatives, and those herewith presented, I most re spectfully object to the action heretofore taken, and that about to be taken by the Senate on this subject, as being at variance with, and violative of, the Constitution which we have sworn to support, and of the right of Senators who have been duly elected.
I herewith transmit the names of W. R. Gignilliat, of the 2d Senatorial District, and of Thomas J. Adams, of the 20th Senatorial Disteict, as the persons who received the number of votes in their respective Districts, next highest to the number which elected T. G. Campbell, in the 2d, and Geo. Wallace in the 20th Senatorial Districts, as follows:
T. G. Campbell, Sen., received 1,256 votes, and W. R. GignilHat, received 539 votes in the Second District; and

147
George Wallace received 2,654 votes, Thomas J. Adams re ceived 1,263 votes, and Z. B. Roughton received 1,072 votes in the 20th District.
E.TJFUS B. BULLOCK, Governor.
Mr. Candler offered a resolution that inasmuch as the Senate was the sole judge of the qualifications of its own members, and that a simple request had been made to the Governor, as the custodian of the election returns, to furnish the names of those elected in the place of those claiming the highest number of votes; therefore, that the portion of the message only giving the desired information be entered upon the journal, and the balance expunged.
Mr. Candler claimed that the Governor had, under cover of the Executive Department, insulted the dignity of this body. He publishes to the world that this body, no matter by what vote, has violated the Constitution, and also our oaths.
Mr. Brock rose and replied that he would vote against the resolution, as it was unjust to the Governor.
Mr. Merrell also spoke against the resolution. Mr. Wooten advocated its adoption. His appeal to the twenty-four members who voted for the exclusion of colored men was a strong one, and by the forcible manner in which Mr. W. promulgated his reasons furnished evidence sufficient that he was in dead earnest. Mr. Adkins followed in opposition, assuming the ground that we had no right to split the message, and if we did, the crime was committed, and the best way to get out of it was to make redress. On the passage of the resolution, the yeas and nays were called for. Those voting in the affirmative are: Messrs. Anderson, Burns, Candler, Collier, Fain, Griffin of the 21st, Hinton, Holcombe, Lester, Me Arthur, MeCutchen, Moore, Msbet, Wellborn, Winn, Wooten. Those voting in the negative are: Messrs. Adkins, Bowers, Brock, Colman, Corbitt, Dickey, Griffin of the 6th, Harris, Higbee, Jones, Merrell, MeWhorter, Richardson, Sherman, Smith of the 36th, Speer, Stringer, Welch. So theanotion was lost, and the Message of the Governor will be recorded on the journal. The Senator from the Second Senatorial District, Mr. Gignilliat, appeared, was qualified and took his seat.

MESSAGE
OF
GOVEMOB K B. BULLOCK.

EXECUTIVE DEFAKTMENI , ) ATLANTA. GEORGIA, February 153 1869.

To the Hov.t*. of Riipre
The following joint resolution, adopted by your honorable body on the 4th day, and concurred in by the Senate on the 8th day of February, instant, has been presented to me for approval :

'* A RESOLUTION.

4 ' WHEKEA-J, It is believed that a judicial decision of the

question of the colored man's right to hold office in Georgia.,

under the Constitution now of force, would restore the State

to her proper position in the Union, and give quiet through

out the State; and whereas, said question is one which the

Courts of the State can properly take cognizance of; and

whereas, we, the Representatives of the people of Georgia,

are unwilling that any effort should be spared on our part

to bring about a state of peace and happiness to the people,

and a settlement of that important question ; be it therefore

' Resolved* Ijy the Senate and Hovse of Representatives of

the State of Georgia, in General Assembly convened, That a

case involving the ri^ht of colored men to bold office shall.

C^

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'

as soon as the same can be properly brought before the Su

preme Court of the State, be heard and determined by said

Court, and we believe that the people of the State will, as

they have heretofore always done, in good iaith, abide the

decision of the highest judicial tribunal of the State when

ever so declared."

It is with great regret that I find the resolution to be of such a character as to force upon me the unpleasant duty of returning it to your honorable body without my assent.
The desire which, it is believed, actuates both the Legis lative and Executive branches of our State Government is
so to shape our coarse that we may insure harmony between

149
the two, and at the same time command the approval of Congress, and thereby obtain a recognition of our State Government as an integral portion of the American Union.
The Joint Resolution referred to does not, in my judg ment, recommend itself as tending to bring about that very desirable result.
The Resolution does not settle, nor does it even touch upon, either of the two leading points at issue, viz: The organization of the Legislature under the law, and its sub sequent action in excluding a large portion of its members on account of color.
The most prominent objection urged against the legisla tive branch is, that the original organization of the body was not made in accordance with the letter or the spirit of the laws of Congress which provided for its existence ; and, next, that as a sequence to the non-execution of laws which were specially enacted to prevent such a result, the Legisla ture has assumed to expel a large number of its members, all of whom were known to be earnest and faithful adhe rents to, and supporters of, the Congressional policy, because of their tfc color," or "race," and seating in their stead, with out an election by the people, of an equal number of citi zens, all of whom were known to be opponents of that policy.
There cannot be a doubt resting upon the mind of any intelligent citizen as to the correctness of the presentment here made, of the obstacles which stand in the way of har mony among ourselves, and of our recognition by Congress as a State entitled to representation in the Union.
The evil results which have visited our people, growing out of our anomalous condition; the absence of proper re straints to insure the due protection of life and property, and the free and unrestricted expression of political opinion, are but the natural effects to be expected from the absence of properly organized civil government, and do not, there fore, enter into the question at issue.
First, then, let us consider whether the law covering the organization of the Legislature has been complied with. For the sake of reducing, as much as possible, the number of objections urged to the manner of organization, we will not discuss the requirements of any act of Congress prior to that of June 25th, 18(38.
By that law, it is specifically enacted that " no person prohibited from holding office under the United States, or under any State, by section three of the proposed ameiid-

150

ment to the Constitution of the United States, known as Article XIV. shall be, deemed eligible to any office in either of MI id State*."
It will not be admitted that a resolution adopted br a majority of your honorable body, to the effect that all sit ting members were eligible under that law, was of sufficient force to decide in the affirmative a question which, it is al leged, would be, and is, negatived by the facts in the case of many of your member?.
Can it be demonstrated that there are not now. and that there have not been since the organization of the General Assembly, many members participating in legislation who
took an official oath to support the Constitution of the United
States, and afterwards gave aid or comfort to the enemies thereof? If this cannot be done successfully, the legislative branch is clearly liable to the charge of not having* in good
faith, executed the law. So far as any action has been taken by Congress touching
the status of Georgia, this position has been adhered to, and the result is that the action by the legislative branch upon the Constitutional Amendment and portions of the State Constitution necessary to our admission, is not yet recog nized b*y* Concg>ress as valid.

The second point of objection made is upon the expulsion

of members on account of "'race," or ; * color;'" members,

too. who favored the svstem of government that was estab-

t>

^^

lished under the authority of Congress; and the seating in

their places of citizens who were opposed to that system,

and who had been defeated at the polls by large majorities,

thus, to that extent, practically subverting the government

and silencing the voice of the people.

The views of the Executive as to the constitutionality or

propriety of that course were, at the time of its adoption,

communicated to your honorable body, and will not now be

repeated.

As before stated, these are the more prominent obstacles

which block the way to harmony and peace. The question

which, as patriots and lovers of our country and our State,

and advocates of their prosperity, we should unitedly and

earnestly consider is, how shall these obstacles be overcome

or removed i

The resolution under consideration ignores the question of original organization, and proposes action simply in the di rection of asking a judicial decision upon the eligibility of colored citizens to office, without either pledging the body

151
adopting the resolution to abide by such decision in regard to their own membership, or even indicating a disposition so to do. In fact, it may be urged with force that a judicial decision cannot be made eflective upon the question of eligi bility to membership in the General Assembly.
The laws at present in force are ample, and under them any citizen, since the adoption of our present Constitution, could have had the question tested before the Courts. Such a case is now pending before the Superior Court of Chatham County, and u the same will be properly brought before the Supreme Court of the State, and be heard and determined by said Court" without the intervention of a joint resolution of the General Assembly, which, were it mandatory, might be construed as being an improper interference by the legis lative with the judicial branch of the Government,
The query naturally presents itself, why adept .*, resolu tion ^\\\z\i practically means nothing, and cannot e.lect any thing ?
I am unwilling to believe that your honorable body, in adopting this resolution, intended to submit it to Congress as the deliberate and. final action of the General Assembly toward the establishment of harmony among ourselves, and with the Xational Government!
Are well-worded "resolves," which do not touch upon one of the vital points at issue, and which have no binding force as to the other, likely to satisfy a body of men, whose firm ness, wisdom and patriotism conducted the country success fully through the great rebellion ?
May we not expect that Congress will ask stronger guar antees for the " rights, privileges and immunities of over five hundred thousand American citizens of the black race who are among us, than the fallible judgment of three citi zens of the white race?
After a careful examination of the whole subject, with the aid of the light which has been shed upon it by the action of Congress and of your honorable body since the opening of your session, I feel constrained to renew the recommen dation then made:
" It is, therefore, respectfully recommended that we, our selves, take the initiative in the consummation of the policy of Congress, and acting upon our own sense of the obliga tion we owe to the authority from which we derive all we now have or may expect to enjoy, of civil self-government, undo what has been done."
" Restore the colored members to their seats, and exclude.

152
every person from participation in your Legislature who took an official oath to support the Government of the Uni ted States, and afterwards gave aid or comfort to its ene mies, until such person shallTiave been relieved by Congress of the disability thus incurred bearing in mind that the only relief from such disability is found in the action of two thirds of each House of Congress, and cannot be accom plished by the individual opinion of the person affected, that tae aid or comfort was not voluntarily afforded. 7'
The adoption and execution of this course by ourselves, will. I am quite confident, secure for us full and complete recognition as a State in the Union.
Burrs B. BULLOCK, Governor.

LETTER OF HOX. W. B. FLEMING.

A, JL WrlgJtt. E&j_:

SAVANNAH, June 23d, 1S69.

My BEAK SIR Yours of the 21st instant, requesting me to gise for publication in the (JJtMnide and St/iline!, my opinion upon the effect of the decision lately made by the Supreme Court of Georgia, upon the status ot the expelled negro members of the present Legislature, is received.
1 have no idea that my opinion will have, or indeed ought to have, any weight in ''moulding public opinion,"1 but as you desire it, and only because you de-sire it, 1 will give it, I can see no reason why this decision should have au effect different from other decisions. The decision of a Court, de
cides the ease in which the decision is made, and of course becomes a precedent for the decisioa of other cases in which the same question arises. But who ever heard that the de rision of any one case, decided every case involving the same question. There must be a separate decision in every case as it comes up. The case decided by the Supreme Court settles the question that White, although a negro, may hold
the office of Clerk, it can have no other effect beyond the retaining of White in office, except as authority to control the decision of other cases as they arise involving the same

153
question. But the decision will have to be made in every case. It cannot possibly have the effect to put in or out of office others who are strangers to the judgment. Is it not a well settled principle that a judgment binds only the parties to it if There are some cases in this county (Chatham), where white persons have been installed into office by the Ordi nary, who, I think, very properly felt his duty to do so, un der the decision of Judge Schley. Can it be that the effect of the decision in the case of White is to put them out and put the negroes in ? Could a judgment of ouster be entered up against them on the judgment of the Supreme Court in favor of White ? Can these negroes be put into office ex cept by proceedings regularly instituted for the purpose ? I think not.
The same, I suppose, is true of the negroes who were elected to the Legislature. The decision in the case of White cannot put them in, or the white men out, and for the sim ple reason they were not parties to that act.
And now comes the question, can the negroes elected to the Legislature make a case before the judicial tribunals of the State ? I have no difficulty in saying they cannot. There is but one tribunal with jurisdiction to decide this question, and from the decision of that tribunal there is no appeal; it is final and conclusive, there being no other tribunal before which the decision can be reviewed or reversed. That tribu nal is the Legislature itself. "Each. House shall be the judge of the election returns and qualifications of its members, &C. 1 ' Constitution Article 3, Section -i.
Respectfully, vtc., W. B. FLEMING.
LETTER OF HOIST. M. J. CRAWFORD.
COLUMBUS, GA., June 2ith, 1869. Geneva! A. R. Wright \
DEAK SIR Yours of the 21st instant, in which you ask /
my opinion upon the effect of the decision of the Supreme Court touching the eligibility of negroes ,to office, has been

154

received. In reply, 1 have to say, that to the extent of their

jurisdiction over the question, their decision will be binding

and obligatory upon the people of the State. The trial and

correction oi' errors from the Superior Courts of the State is

the limit by the Constitution to that jurisdiction.

The efteet. then, will be, in ail cases where that tribunal

has the legal authority to enforce their decision, to require

that it be observed, and that negroes be installed into such

offices as thev */

mav w

be elected to fill.

But

so far as the status

of the negroes elected to the Legislature is concerned, that

is not in the slightest degree altered or changed, because

by the Constitution the qualification of members is exclu

sively given to the two Houses respectively, and from their

judgment there is no appeal. Xo power is lodged anywhere

bv the organic law to review errors if thev be committed in

If

*^

U

this respect by either of the Houses composing the General

Assembly.

Their action in the premises, threefore, is final unless

they should consent to reopen the question of the eligibility

of the negro to their respective Houses, and upon argument

had reversed their own decisions and adjudge him compe

tent and qualified. To the extent that the members have

respect for the judgment pronounced by the concurring

Judges, thev would give it consideration, and if sufficient to

change their views, tliey would no doubt act in conformity

therewith. But the whole matter rests necessarily in foro

tj

-j

conscience*, and muse be decided according to the individual

opinion of members themselves. Xo man can, therefore,

speak for another in such a matter, and whilst a majority of

the present Legislature may be of opinion that the negro is

ineligible, the very next mav think and decide otherwise.

C

f

*j

v

The whole power over this subject is vested by the Consti

tution permanently in each House. It was not a provision

made for a da*v or a case, but for all time, and therefore
written in the organic law.

It has been thus in all Constitutions of all the States as

well as in the Constitution of the United States from the be

ginning, and must of necessity be there so long as the pres

ent form of government stands.

But whilst I suppose this will be admitted, still the im

portant question remains, what is the proper course to be

pursued by the Legislature and the people? In my judg

ment, it is to render obedience to the law and the officers

thereof, giving to the Legislature, the Executive and Judi

cial, each in its own sphere, all the rights, powers and priv

ileges thereunto belonging, and in no case contravening

155
them. By so doing the harmony of our governmental sys tem will be preserved and the will of the people, where they are permitted, carried out. This necessarily throws upon the members of the Legislature the duty of disposing of this question of negro eligibility, and were 1 a member of either branch thereof, with my views upon the subject, I should vote unhesitatingly against it, and let consequences take care of themsel^fes. This I should do conscientiously and in conformity to my opinion of the law, at all times, and in every form in which the subject might be presented.
But another and very important form in which this ques
tion may arise, is, in cases made before the Judges who are under the supervisory power of the Supreme Court, and whose decisions must conform under the law to those made by the higher tribunal. Over this class of officers the de cision operates, and will be executed as the law until the same shall be changed by a reversal in the Supreme Court itself, or by the people in the manner prescribed by law.
I look upon the opinion of Judge Brown, even admitting his premises, as the clearest case of non sequiter that ever was written; in fact, illustrations, if such were ever collected, none could be fcnnd so apt as that pronounced by the Chief Justice in this case.
As to Judge McCayX before he can make up his judg ment he has to put us outside of all constitutions and laws, and take his start from that point. And with his theory he makes the negro a consistent element in the formation of the present State government, and, therefore, he has all the rights and privileges appertaining to any citizen of the Commonwealth. 1 confess that the negro constituted about ninety per cent, ot the elements which made up the present Constitution of this State, the Federal soldiers with the bay onet about seven, and the remaining three per cent, was com posed of native and imported whites.
The white element was, however, increased in the ratifi cation of the Constitution, but this was due in a great de gree to the clear and convincing argument of Judge Brown against the constitutional right of the negro to hold office.
But, taking Judge McCay's view, that we were outside, leaves me great difficulties to overcome. I cannot see how one from his standpoint can come to the conclusion that the Constitution of the United States had even become void or inoperative in these States, when the whole war was waged by the federal Government upon the ground that it was impossible for us to get from under its authority, and that it extended throughout the States and Territories of the whoU

156
I7nion. We were conquered into obedience thereto, and then for the first time it was discovered that it was not of force in these States; in its name we were denied its rights and privileges, and in its name the sword a'nd not the judge declares the law. The inconsistency of coercing a State into subjection to the Constitution is only equalled by the enor mity of the proposition that when she is coerced that the Constitution does not extend over it at all.
But to conclude our hastily written .letter, we say that our dutv is to obev the law as it is made and decided by each dep**artment of'' the government, according to its power and authority to decide, and make no effort to "disrupt the ties'" tire., because the President prefers a "colored"' to a "plain" Republican. With me a spade?s a spade, and the "plain" will be for disrupting the party unless the thing is stopped.
Respectfully yours, itc., J. CRAWFURD.

LETTER OF HOX. JUXILS HILLYER.

General A. Jtt. Wright:

ATHENS, June 24th, 1

MY DEAE SIR I received by yesterday's mail your letter

referring to " the recent decision of the Supreme Court of

this State, in relation to the elisjibilitv of negroes to hold

O

,

O

office, and asking my opinion upon the effect of this decision

upon the status of the expelled negro members ot the pre

sent Legislature.

At your request, General, I willingly give you my opinion

upon the question stated. In doing so, I think it best not to

crowd the columns of your paper by an elaborate argument,

but to content myself with a simple statement of my opinion,

with such reasons and remarks as may be necessary to make

it clear and intellig<^^ible.

I

have

all

mv /

life

been

a

law-abiding^5

man. *

and

have

made

the principle of obedience to the laws of rny country a part

of my religion and a matter of conscience; and while I re

gard the Supreme Court of the State as the proper final ar-

biter of all questions which corne within its exclusive juris

diction, yet 1 am clear and decided in the opinion that the

decision referred to in your letter does not affect the power

and duty of each House of the General Assembly to deter

mine the right of the negro to seats in their respective

bodies.

There is no Court in this world which is clothed with

power or jurisdiction to judge of the election returns and

qualifications of the members of the General Assembly of

the State of Georgia.

The Constitution expressly devolves that high duty upon

each House to determine for itself. And when the Consti

tution declares that " each House shall judge of the election

returns and qualifications of its members,-' it means that

each House shall pass its own judgment according to the

view taken by it of the law of the case before it. It does

not mean that each House shall endeavor to make its views

conform to the supposed opinions ot other departments of

the Government, but, like every other judicial tribunal, each

House is bound by the Constitution to announce its own

judgment according Lo its opinion of the law. And this

judgment, when announced, is final. From it there is no

appeal. The power is not given to reverse their own deci

sions, and in the case before us, in my judgment, the ne

groes expelled bv the two Houses of the General Assembly

^

M.

'

/

cannot be re seated according to law. With them the case

is vv>- adjudicator and no tribunal has jurisdiction further to

act upon it.

It may bo said that the Legislature ought to follow the

decision of the Supreme Court, as a high authoritative pre

cedent. 1 don't think so. The question of precedent don't

apply in this case. It is expressly excluded. For the Con

stitution declares that the jurisdiction of the two Houses

shall be exclusive over the election returns and qualifications

of the members of each.

Each for itself independent of each other, and indepen

dent of every other tribunal. It would be equivalent to

abrogating that salutary clause of the Constitution to adopt

the rule that the two Houses of the General Assembly ought

to follow the rulings of the Supreme Court in cases supposed

to be analagous. It would reduce that clear, comprehensive

clause to this absurdity, that " the two Houses shall judge

of the election returns and qualifications of their members

except where they have reason to suppose that the Supreme

Court would differ from them, and in all such cases they

shall decide according to what they think would probably

158

be the opinion of the Supreme Court." For it will be re

membered that the Supreme Court have not decided that

negroes are eligible to seats in the Legislature, and never

can so decide, for the question never can be brought be

fore it.

It has simply decided that a negro was eligible to be

Clerk of the Superior Court of Chatham county, and it is

inferred that two members of the Court are of opinion that

negroes are eligible to the Legislature. And this is the au

thority which we are called upon to respect, when it is

urged that every cautious judicial tribunal will always re

spect the adjudications of the same questions by other tri

bunals. When we come to view this decision in the light

as authoritv *

and to consider how

much

weight ^2

should

be

given to it then we meet the important fact that it was

made bvv a divided court that the two Houses of the General Assembly may well inquire, and they ought to inquire

(if they refer to the decision at all as authority), whether

Judge Warner, the dissenting Jndire, is not entitled to

^^

-

C1

4_,

>

more weight, and his opinion, as a mere matter of legal au

thority, entitled to more respect by all careful, conscientious

tribunals than both the other members of the Court together.

In making this point I mean no disrespect to Judges Brown

and McCay. it is a fact well known that in Georgia, on a

point of law. Judge TTarner's opinion would weigh down

naif the Bench and Bar of the State.

If precedent is to govern this question we may well in

quire why the Supreme Court ventured to disregard the

High authority of the two Houses of the General Assembly

who were clothed in the Constitution with the jurisdiction

to try and determine the question before them ? Why did

not the Supreme Court infer that the Senate and House

were of opinion that under the laws of Georgia a negro

could not hold office, and give effect to what they supposed

to be an authority in point ?

Here we have two decisions made upon what most per

sons consider analagous cases by two uistinct tribunals, in

dependent of each other, and both having iurisdiction to

try the question made in the case before each. And strange

to sav the tribunal which rendered the first decision is V
called upon to reverse its own deliberate judgment and

adopt the decision of the other tribunal. Can they do this

without a virtual admission of their own intellectual infe

riority ?

I am aware that I have gone somewhat beyond the pre

cise point made in your letter, which is confined to the

159
status of the expelled negro members of the present Legis lature. I am of opinion that as to them the decision of the two Houses is final and irrevocable, and they cannot be re seated without a violation of the law. I am further of opin ion that in all future cases the Constitution makes it the duty of each House of the General Assembly to judge for itself of the election returns and qualifications of its mem bers. They are bound to pass their own judgment. They are not permitted to adopt the judgment of other depart ments of the government.
General, there are questions of policy and political results involved in the contemplated action of the Senate and House of Representatives that I do not wish to discuss. I greatly regret that there is reason to fear that our cruel conquerors, after compelling the members of the Legislature to swear that they will judge of the election returns and qualifica tions of their members, will then punish the people of Geor gia because they will not violate their oaths by making a decision contrary to their judgment. Let the Legislature do what they believe to be right and let us all cheerfully abide the consequences.
HlLLYEE.

LETTER OF HOIST. A. M. SPEER.

General A. H. Wrighi :

GRIFFIN, GA., June 24, 1869.

DEAK SIR Yours of the 21st instant, inviting an opinion
from me " upon the effect of the decision of the Supreme
Court upon the status of the expelled negro members of the present Legislature," has been received.
Permit me to preface my reply with the remark that con siderations alone, personal to you, has induced me to make one. I have no desire to express, through the press, any po
litical opinion; neither do I suppose that I could influence to any extent the action of the Legislature upon the ques tion you propound by anything I might write.
Still, courtesy to you and a common desire with you to

160
eethis question settled upon the basis of justice arid law, brbids me remaining silent under the call you have made ipon me.
Whether the recent decision made upon 1 his subject ac ?ords with our own views, should not, in my judgment, inluence the course we ought to desire adopted by the Le gislature.
I am candid to say that my own opinion has been that the Constitution adopted recently for the State, conferred the right to hold office upon the negro. Such were the views entertained by most of the Democratic press by the leaders and organs of the party, and it was made in the canvass one of the most prominent objections to the adoption of that Constitution by the people. Were- we sincere then, or wf-re we making an objection to a Constitution we did not think well founded I I cannot believe those who entertained those views thfn were acting insincerely with the people in u?*gin ;cr an obij.1ection thev did not believe existed. If thev were our opinions then and we so expressed them- I cannot rce with what consistency or propriety we can now coinplain, that the decision sustains our opinions heretofore expressed. A majority of the Legislature, however, upon the question being made and discussed, entertained different views, and by resolution declared the colored members ineligible their seats were vacated and the white members admitted.
As might have been anticipated, this course aroused the indigCTnation of a lar^rre pi ortion of the Kadical jp. artv ,' and it has been made the excuse of groundwork for a determined and persistent effort to place the State again under military rule have her civil government declared provisional and subject to the future action of Congress.
It has been the means of excluding us from a voice in the United States Senate, and has left some of our members of the Lower House dancing attendance as lobby members vainly seeking admission to seats for which they had been
elected. To break the force of this storm the action of the Legisla
ture had raised against our State, they, by joint resolution, agreed to submit the question of the eligibility of the negro to the Supreme Court and abide its decision. This resolu tion passed both branches, and notwithstanding it met Ex ecutive opposition, and is not now a " legislative act," yet morally speaking, the Legislature are bound to abide by their own pledge.
Honesty and self-respect, in my judgment, leaves them no other alternative.

161
It is claimed that the decision of the Legislature as to these members is <; / /*.* arijnttiwtta"
I do .not understand that the rule of " res adjudiccdct" ap plies to legislative action.
The rule applies with all its vigor and force to the Courts of the country for the policy of the law has been from time immemorial to settle and quiet controversies between its citizens by the application of this-rule.
But not so with the Legislature. The same session can review, modify, change or abrogate entire its former action. J-Iow often have we known agai?t and again resolutions agrrcd to. modified subsequently, and finally rescinded.
There is a provision in the Constitution which forbids the :-Hine Legislature (at the same session) "from proposing (un less with consent of two-thirds) any bill, ordinance or reso lution, intended to have the efleet of law, which shall have been /r/Yr/V'/ 1>\- either House/' Hut this docs not extend to lulls, ordinances or re,>olii!iono which have been passed or rr.fii'ccd' to by either House/'
The whole question, then, in subject to the action of the Legislature, and the rule of "res adjudicate'" does not apply/ 3
And such has been the uniform action of legislative
It ha.-? ari;-en in e\ery case where a member has been seat ed, and afterward, upon investigation, declared ineligible. In r U':h c;i:-es the Journals show the member has been found qualified and sworn. Subsequent investigation shows him ineligible, and ho is removed. And yet, I have never heard then* IT-I action claimed as res adjudicata, and plead as bar to investigation and removal.
These negro members of the first organization were allowed t.o be sworn in. The Journals show (I presume) they were declared qualified and sworn as members. It was not claimed that the question was res adjudica when they were put upon trial, why, then, claim it in behalf of those who took their places I
One other view and I am done. The Legislature are the law-making power, but they are not superior to law. As a body, they are bound by the Constitution and laws, as every other body or citizen, until modified or repealed. The Con stitution established a tribunal for the construction of laws, where a controversy arises, "The Supreme Court. To its mandate we all bow and give obedience. Shall it be said
11

16 uoi

that this bodv raav obev or not as thev choose \ I hope not.

is

*J

it'



I

It is not a proper example to establish for oar people. If

thev have erred on a question of law, and it has been so pro

nounced, let them show their perfect obedience to law by

retracing their steps and conforming to the law as ex

pounded. It is true, obedience to law in their case may bring evil
upon us in one sense it may foist into office tome utterly

unlit, and displace fas in this case) others who arc of price

less value to our councils. Let us accord in a spirit of jus

tice and of obedience to law,* evervt rigt_jht the Constitution confers upon the colored race: it will be a moral triumph

over onr feelings and prejudices that will elevate the char

acter of the Georgia Legislature for political and personal

integrity, that in due time will bear the fruit of peace and

stability, and go far toward crushing out the slanders upon

us as a people.

Let not the Legislature reit upon a quibble that belongs

to the Courts to justify a departure from the broad path of justice and right. If reckless legislation and unwise results follow this decision and its legal consequences, the ^reat

majority of the white citizens of Georgia arc not responsi

ble, and in due time, intelligence and worth and propriety

will claim and take control. And we may then point with

pride to this period in our history when, amid the clamor j of the thoughtless the prejudices of race, and the evil

results that threatened our State, the Legislature dared to

do right. I am, very truly, your friend,

A LEX. AL SPKLE,

LETTER OF HOX. J. W. H. UXDEEWOOD.

General A. It. Wrigrd:

EOME, GA., June 28, 1869.

DEAR SIR Yours of the 21st instant, asking my " opin ion upon the effect of the decision of the Supreme Court, relative to the eligibility of colored citizens to office upon

163
the status of the expelled negro members of the present Legislature, has been received, and for answer I have the honor to say that the decision refer ed to of the Supreme Court cannot possibly affect the status of those members in any degree whatever. By the first paragraph of the itli Section of the 3d Article of the Constitution of C4eorgia, it is provided that "Each House shall be the judge of the election, returns, and qualifications of its members, &c."
By the 31st paragraph of the 3d Article of the same Constitution it is declared that./ ik Thc Letgiislative./ Executive and Judicial Ocpartments shall be distinct; and each de partment shall be confided to a separate body of magistracy. TsT o person, or collection of persons, being of one Depart ment, shall exercise any power properly attached to either of the others, &e.
it seems, therefore, to be exceedingly clear that the Sen ate and House of Representatives, each House separately for itself, has the sole right and power to judge of the quali fications of its members, and the power to interfere is ex pressly denied to the judiciary department.
The question of the eligibility of the colored members of the General Assembly lias been fully considered and decided by the two Houses, the proper tribunal having original, ex clusive and final jurisdiction over the question; the decision has been rendered and the judgment executed. There can be no appeal or writ of error to any other Court, and no provision is made for a new trial, and the question is closed forever.
Xo precedent is remembered by me of a rehearing in such a case either in the State Legislature, the Congress of the United States or the British Parliament, l^or is it believed that there is one. There is nothing peculiar in this case to render it an exception to an unvarying rule of law, and the usage and practice of centuries.
The decision of the Legislature was made in a case where the jurisdiction is undeniable, and with which all inter ference is expressly forbidden, and other persons whose eli gibility is unquestioned, hold the seats and hold them le gally, by the judgment of the only department having a right to judge, and cannot be disturbed in the exercise of their rights. The balance of the term of the present Legis lature is short, and no reason is perceived for any change.
With very high respect,
Your obedient servant,
J. W. H. UNDERWOOD.

164 LETTER OF J CDGE . G. CABIKESS,

G-tn?/al A. R. W/i'j!d:

FoKoYTH. JlUlC-4, l?fv.

>

X

MT .DtAR SIR - \ ou request me "* to v;ive YOU, for pnhlicahori in th^ C/// -/W'V'; //>/>7 StniiricL mv npi^i^-n upon the r-ffp, : t ( >t' the; decision of the Supreme f 'oirrt. of thi.i State in relation to the eligibility of ncgroe?, to hold ofh'ee- upon the _:tntui of the expelled ueuru jnciubcro oJ' the present Lt---
^ri-Uture."
Bv the Constitution k * ca-li IIon.Tt: io maslc tiir jud^>; oi' fin-' olf'ti'.'n rrfurns ami '{nHlitif.'Htioi'o of if- mrinl.xTo/' M,n<i
tr>m il'uj <\v<:\ rion m;irlc tv\" P)t]n:r ]{ou.>; t^erc ir M<;t M|>ji<:;iL
>,'<> trihiinai har> hpcn creatc'1 with power h ^uj-iTvi^c tiiv;
rueiit nf the t\vo JL.>iK-f %s in regard to Heel ion retnrni
l' qnalitiea.tion.7 of tlieir respective meiuher.:;, and \vhen a. fici.sioii i-s niade on.-tinpf a niemher iVoiu \^ rcat in eitherHoiu-e. tlte derision i.-? eourlusi\'e ^o far a. that th<- nif?m!'>erousted can take no aj>peal from it and no other tribunal iuuiumdietioo of the ea^r-. The efTf;t, tlien, ot the decid"n of tlf- SnpiPine O'iirt liolrlin" nccrrot^ to be e'.i^ibie to hold ofnY.'j d r> c/ not n6 ( :e. earilv restore to their ^ent: Hie ne^roe> *.vho worf remo-.-ed lor want, in the opinion oi both Houce:, of cJi^'ibilirv to
office. The deci=i'>n rf the Supreme C'>nrt f-an?tot act npoii tin;
ind^mcnt of the Le^i.-laturc and rever.-c1 ?t. That jud;.',nient mu.-t stand unlfs^ it ;.honjrj be reversed by the bodie>. which rendered it, And that j., n>w the practical '{ULotii.'it winch the Legislature iim^t meet when it rea-rHmbleo. Shall the ne^'roe? wlio were removed from their seato be rpoired 4 and can the two Houses of the Legislature reverse their action.
In my opinion, they can, and policy requires that it should be done.
No judgment has been passed by either Llouse upon the nffkt ot the successors of the removed negroes to the scat^ they occupy. L pon the removal of the negroes, those who claimed their seats were held prima Jade entitled to them, and were seated accordingly. Xo question as to their right to t.he: r seats was raised, and never has been decided.
If their rli*-r ht to the seats thev*j hold should be contested upon the ground that other persons eligible to office, re ceived a higher number of votes than they did respectively.

165
would it not be competent for each House to declare them not entitled to the seats they occupy, and would it not fol low, as a matter of course, that the persons eligible to office, (and it must now be considered a settled question that ne groes are), would it not necessarily follow that such persons having received the highest number of votes should be ad mitted to their seats ? lieeollect that no decision has been made, and no judgment rendered, tixing the successors of the negroes in their seats. There is no res adjudicata as to their rights to seats. Let the question be raised whether they are legally entitled to membership, and in the present aspect of matters and the present state of the law, and what we must receive and recognize as law, it would be compe tent for each Jlonse to declare them not entitled to seats, and readmit those who received the highest number of votes. And policy requires that this should be done. \Ve must s-'iibimt to whatever it is not in our power to correct. If we had control of this question of negro suffrage and negro eli gibility to office, we would give it a different direction, and would soon lay it at rest, jtfut it is not under our control. A power which we cannot resist is giving and will give it direction, whether rightfully or not, it matters not now to .-ay. Jt is sufficient lor us to know that this power is in aclive exercise, and will be until this question is finally settled, a:; ''the. powers that be" desire it.
Let us raise no more questions with it. All the issues which we may make with the United States, upon the terms of Reconstruction will be decided according 10 their will, and not ours. And they have the power to enforce their decisions. Let us submit to inevitable necessity, however
V
bitter the pill, and make no more issues with power.
it id related of the Eniperor Adrian, who reigned in the decline of the Unman Empire, that one day he foaud fault on a point of *>rammar with a learned man of the name of Favorinas. Ka-vorinas could have defended himself and justilied hit, language, but continued silent, flis friends s>aid to him, "why didn't YOU answer the Emperor's objections ( " kV Do you think/' said the grammarian, * that i am going to enter into dispute with a man who commands thirty legions ?"
Is it wise to continue to raise questions with a power which can command as many legions as may be necessary to enforce its will i
Kot only the peace but the good of the whole country re quires that all questions connected with Reconstruction should be settled as speedily as possible, It is JReconstruc-

166

tion and the issues growing: dut

v.

^

of

it, .

which
_

"preserve
j.

the

unity of the Republican party. In Reconstruction they

t;live and move and have a being/' Strip them of the sup

port which this question gives them, and their dissolution

will speedily follow. Ton "take their life when you take

the means whereby they live."

Thonsrh negro suffrage and ne^ro eligibility to office mav

v,

u-'

i^>

C_7

T^

*

/

be distasteful to us, let us submit to them without further

opposition, if by so doing we can put a stop to these ques

tions, and

thus

destrov t,'

the

bond

of nnitv t

which

holds

the Republican party together.

Very respectfully.

E. G.

LFTTER OF BOX. WARREN AKIX.

l A. II. TiVj-i'jJti'.

CAKTKK>VILLE. June 29, 1S69.-

JLJKAR SIK Yours of the 21st instant, asking my opinion as to the eifect of tlie de<jlftion of the Supreme Court of this State in relation to the eligibility of negroes io hold office, npoii the status of the expelled negro members of the pres ent Legislature, is received and considered.
I do not see how it ic? possible ibr the decision of the Su preme Court rightfully to have any effect on the action of
the Senate or House of Representathes any more than the decision of each House could rightlully ettect the decisions of the Court. The State Constitution declares that, "'each House shall be the judge of the election returns and qualiticatious of its members.'' Each House, in passing upon the quantisations of a member, decides for itself; and nei ther the Executive nor Judiciary department of the Govern ment can review, or call in question the correctness of the decision when made, When the Senate or House has de cided that a member is not entitled to the seat he occupies,
and that another person is, the decision is tinal and couclu-

167

sive. The House itself, after deciding that a member is not

constitutionally qualified to hold a seat in the House, and

turns out the sitting member, and decides that another is

qualified and entitled to the seat, cannot legally reverse its

decision, and put back the expelled member. Each House

is "the judge of the qualifications" of its members, and

when judgment has been pronounced, and the time for re

consideration is passed, the right to the seat is settled, and

cannot again be reviewed or reversed. The Supreme Court

sometimes makes mistakes, and when discovered, reverses

former decisions, but the rights of the parties as settled by

the erroneous decision, remain unchanged. Suppose at

the December term of the Supreme Court another case

should come before it, involving the same question recently

decided, and after full argument and mature consideration,

the Court should reverse its decision, and hold that a negro

is not eligible to office in Georgia, would this decision have

the effect to turn out of office the negro in Chatham county,

who now holds office under the decision and judgment of

the Court? Every lawyer knows it would not. If it would

not have that effect when the Supreme Court makes both,

decisions, much less could it do so when the former decis

ion was made by a distinct tribunal, the judgmentof which

cannot be reviewed by the Court.

The decision of the Supreme Court should have great

weight with either branch of the General Assembly; and

if after the next meeting of the Legislature, each House

should pass a resolution acknowledging its error, and the

members now occupying tne seats formerly held by the ne

groes should resign, (and I have heard it said that they

ought to do so,) this would not reseat the expelled negro

members. The resignations would create vacancies, which C^
alone could be filled by election. JSTeither House can elect

or appoint a member to fill a vacancy. The people must do

that, and expelled members have sometimes been re-elected

by the people.

J do not wish you to understand that, in anything I have

said, the correctness or incorrectness of the decision of the

Supreme Court is called in question. My opinion as to the

right of the negro to hold office under the State Constitution

is generally known in this section of Georgia. I did not

hesitate to express it, more than a year ago, and I have not

changed it.

I have written hurriedly, and have not time to elaborate

the views expressed. They are at your service, while I re

main, very truly yours.

WARREN AKIN.

168

LETTER OF GEX. LAWTOX. JUDGE HAKDEX AXD HOX. THOMAS E. LLOYD.

General A. It, Wriyht :

SAVANNAH, July 1, I860.

DEAK SIR We severally and duly received your circular

letter of the 21st nit., requesting of each of us an opinion

upon the effect of the recent decision of the Supreme Court

of this State "upon the status of the expelled negro mem-

Lers of the present Legislature/' Presuming it will be equal

ly agreeable to yon to receive our "united opinion, we pre

sent the following unanimous answer to vour inquiry:

*--^

,,

,_*.>'

Bv the Constitution of Georgia it is declared that "each

>

^3

House shall be the judge of the election returns and quali

fications of its members." etc. It is apparent, therefore,

that the decision, of either House on the question of eligibil

ity of a member of that House is the iudirment of the onlv

i-

i-'

C

/

tribunal to which the C mstitution has entrusted the ques

tion. The slat''* of the expelled neorro, as to eligibility to

j.

_-

*

**_j

/

the Legislature, cannot, therefore, be affected by any decis

ion of the Supreme Court.

You will not understand us as at all denying the right of

another body of Senators or ^Representatives to determine

'liriereatly as to the qualifications of a negro to sit in the

General Assembly. All we mean is to express our opinion

''upon the zii.ttuz of the expelled negro members of the

-fji'il Legislature.

\\V are. \\-\-\ trnlv, v^nr obedient servants.

-

i, ' i,

T^

T7

JOD\\Alil) J.

TIJOMAS E.

A. Jl. J^AW

LETTER OF BOX. ALEXAXDKft H. STEPHENS.

LlBKtcTY IIAIX.

I

CH A'xV FO RD VILLF. G A., ,J 1111G if !>, J S C 9. jj

General A. R, \\i-ljht, (Jhrmil'l* cfc &>nttnel 'Orfice, Augmta, G<.i *

DEAR SIR Your letter of the 21st instant was duly re ceived, but it found me in worse condition physically than 1 have been for several weeks. This, with other pressing correspondence, has prevented me irorn gis^iiig you my opin ion upon the question propounded, sooner.

169
I must now be brief. Indeed there is n,o necessity for any extended views. The argument is already exhausted by you, your neighbor of the Constitutionalist, the Constitution at Atlanta, the letter of Judge Fleming, and the communica tion of Tally in your paper, some days ago, to say nothing of the labors and productions of others. But in what I have to say, it is proper to premise by stating that I believe the decision of the Supreme Court on the question of negro eligibility to office in this State to be in accordance with the law and Constitution which were their guide. Had I been on the Bench I should have come to the same conclu sion under the same law and Constitution, that a majority of the Court did, though not exactly by the same process ot reasoning pursued by these learned Judges. The result of my judgment, however, would have been the same.
I thought the two Houses of our General Assembly com mitted an error in deciding that those members who had been elected, and returned to their respective bodies with an eighth or more of African blood, were thereby disquali fied to hold seats in the Legislature under the laws and Con stitution of the State as they now stand. But it was a ques tion which they alone each House for itself had the right and power under the Constitution to adjudicate and deter mine. By the Constitution of the State, each House is made the sole judge to decide upon election returns and qualifications ot its members. This question of eligibility and qualification to hold otiice on the part of this class of persons, who are elevated to \\iQstatus of citizenship by the present Constitution of the state, i knew was one not free I'ruiii doubt, one on which able and true men might and did diifer. Therefore, while I thought the decision to be erro neous, 1 also thought that all charges against these Legisla tive bodies upon the grounds that their judgment had been made from captious and 1 actions motives were altogether
unjust.
This now clearly appears from the able dissentient opinion of Judge Warner, an eminent jurist of the KepuDlicaii Party, who still maintains, after all the discussion since had, that the decision of the Houses was right. Men on both, sides, therefore, should learn to be more charitable in their opinions of the motives of men in the discharge of public
duties.
But your queotipu to me is, what effect this decision of the Supreme Court now rendered, can have upon the cases of those members, who were decided by tne respective

170

Houses of the Legislature, not to be qualified to hold seatr

therein ? Will it be to reseat these excluded members, or

are they legally entitled to le reseated thereby f To this there

can be but one legal and judicial answer. That is, no !

These cases have been decided by the only tribunal having

constitutional jurisdiction over them, and having been de

cided thev cannot again be opened even bv the Houses who

decided cannot

th**" em.

rTT* heir

-judgment

\)

TM

after

bein**g O

be again taken up or reversed by

finally rendered tj
thqmselves, any

more than the Supreme Court itself can go back to the

docket of last session and reverse any of its own judgments

then rendered to the unsettling of the rights of parties

therein adjudicated. Much less can this judgment of the

Suprt3ine Court legally affect in any way the action of the

two Houses in the premises. It can have no binding or ob

ligatory effect whatever upon the past or future action of

the houses of the General Assembly upon the question in

volved, for by the Constitution, as stated above, each House

is the sole and exclusive judge of this question so far as

membership of their respective bodies is concerned for all

time to come, or so long as the Constitution shall remain

as it is on that point. Xo change, it is presumed, will ever

be made in it in this particular, for it is in strict conformity

with that universal law in all representative governments

whenever and wherever established, either civil or ecclesias

tical, by which the sole power to decide absolutely upon the

qualifications of the members of the Legislative bodies is

and has been, without exception I believe, vested in those

bodies themselves. From their decision there is no appeal

to any other tribunal; and from the very nature of the sub

ject there cannot properly be. This power, like all other

delegated powers, has often been verv grossly abused in

^2

*

'

this as well as in other countries.

*.'

C1

c<

It has been grossly abused

^>

/

repeatedly, perhaps, by one House or the other of the Legis

lature, in every State of the L'nion, as it has unquestionably

often abases

bienenthemBosrittiO sghroPssalrKyliaambuesnetdarebtv/weClloknnO gorewsns.

Its gross O
by students

of history. Still this arrangement in the distribution of the

powers of Government is the only one, or the best one, yet

discovered for keeping separate, distinct and perfectly inde

pendent of each other the three great Departments, to wit :

the Executive, Judiciary and Legislative. Monstrous as the

doctrine seems to some, yet it has come down to us stamped

with the wisdom of our ancestors after fhe experience of

centuries.

171
This sole power to decide upon the election returns and qualifications of the members of each House which is vested in it by the Constitution, is however, by no means an un limited power. Because there is no appeal from its exercise, this by no means justifies a capricious or illegal decision under it. It is a power of great trust to be exercised as all other judicial powers are. Each House is constituted a judge for the purpose this Court so constituted is to hear and decide both the law and the facts in each case as it comes before them. First, to hear the facts and then apply the law to them. In forming their judgment upon the law and the facts, they are to be governed by the same general principles which govern all other courts in arriving at truth, right and justice. Their decisions when made in any case stand as the decision of all other courts, from which no ap^ peal or writ of error lies. This is the law of the case.
But how far members of the Legislature might very prop erly be influedced (in deciding doubtful questions of law involved in the legal qualifications of those elected and re turned to the respective Houses) by the judgment of the highest judicial tribunal in the State upon the same ques tions in all other offices of the State, is a very different ques tion. My opinion is that in all doubtful questions, or where their own convictions are not both clear and strong, they should be influenced, but not otherwise. The two Houses of our General Assembly at the last session, I have been in formed, concurred in a resolution submitting this question as one on which they had doubts, to the Supreme Court, with a pledge to conform to the decision of that Court in their action. How this is, I do not know, but if my infor mation is correct, it certainly relieves them of all imputa tion of improper or factious motives in their first action. The effect of the decision now rendered under that resolu tion, would be a requirement of them in all future like cases which may come before them to decide, in accordance with the principles established by the judgment of the Supreme Court. This is all the fulfillment of the pledge that they can legally and constitutionally render. This, I think, the same Judges who made the decision would, if inquired of, pronounce to be the right view of the subject.
Yours most respectfully, ALEXANDER H. STEPHENS,

1T2
LETTER OF A COKRESPOXDENT IX THE MACOX
, TELEGKAPli.

THE DOCTBDTE OF ' ; EES AL'J CDICATA " IX ITS APPLICATION TO LEGIS LATIVE BODIES.

Editors Telegraph: Since the decision of tlie Supreme

Court, in White's case, declaring negroes eligible to office

7

>

D

c-*

O

there has been considerable discussion with regard to it^

O

effect upon the '"legal status oi' the expelled negro members,

and of ikejjower and duty of the Legislature to reseat them."

Thus far the discussion has been confined principally to

the question, " Has the Legislature the jjoiver to reseat the

expeiled negro members ' "

Ihe majority of the writers support the negative of the

question, upon the ground that the proceedings of the Legis

lature under that ciause of the Constitution which makes it

"the judge of the election returns and qualifications of lit

meuioers are judicial in their nature, and that a resolution

declaring anv member ineligible is /(:& adjudicata" and,

<^>

*

C

>J

'

therefore, a bar to aii future action upon that case.

As no precedents have yet been cited on either side, the

writer desires,' thro.ug*-^h *v- our columns, to call attention to a
notable and essential parallel case, as well as to the rules of

a law applicable to and supporting the aliirmative ot thi.s

question.

The^ttv/'of the Legislature to ''judge of the election

returns and qualifications of its members: ' is one given it

'" Lo i^uard its o\vn >

rights and privileges iVom

^s

1

^)

iulriniJ-eiiieaL, ^^

to purify and vindicate its cJiaracter, aud to preserve the

ri^nts and sustain tne free choice ol its constituents."1 iv ibt

*^S

N

btory on the Constitution. Paragraph ^-j'^,j and posseSMng

the /t> ij.'t'r it hits the rigid to bo regulate its rules of proceed

ings that the ulytcts foj- wiiich the po\ver \\'as given, may be

attained. Thib ritfht na,s been exercised by legislative bodies

^



O

both in the L nited States and Great .Britain, from time im

memorial, and is one concerning which there can be no con

troversy, lor no one believes thai our people have been guilty

ol the great absurdity of jjrojjv&iny an e/id and denying the

ilie<.tn# to aittnii it,

Jdav ing tliis right, the only question which requires to be

answered, in determining its ^ULUtr to reseat the expelled

members, is, has the Legtsiatui^ adojjtud t/t? rule of **res ad-

judwata, as a part oj ite code oj graced are in contested

cases * Ihe journals do not tjhow that this, rule has

ever been before, or acted upon by, the Legislature; it cer t-am ly was not pleaded in bar to the resolution passed last oosion, submitting the negro eligibility question to the ar bitration oft lie Supreme Court, nor was it urged by the (Georgia delegation, when before Congress, as a defence of the action ol the Legislature in not reseating these mem ber,-. And therefore, in the absence of any evidence tend ing 1<> prove the adoyttion of this rule, it is fair to say that it never has received Legislative sanction. As it has not brrn /./y/r.W// ifrfnjf/b.fl by the Legislature, it cannot be ap
plicable to and binding npofi it, for the reason that it is a rule originating with and established by courts of law, for tht- purpose of protecting the rights of persons as settled by judicial decision;-. Without this rule courts could never make an end of liligation between parties, give credit and lability jo their decisions, or in any way accomplish the end. for which the judiciary is designed.
The. Legislature, on the contrary, can best protect itself and the rights" of its constituents, by inquiring into the "election return,? and qualifications" of its members, when ever, and au often, as the circumstances ot each case may
require.
A ca~e involving the same principle arose in Congress in 1S37, known an the "Micsissippi Contested Election" Case," The fact,- are a? follows: The President of the United States onvened an extra session of Congress in September, 1837. Thi : - wa,-, the tirrtf^e.ssion of the Twenty-Fifth Congress. As the regular congressional election in Mississippi did not oc-
( nr till the "November following, the Governor of the State i^.iied a proclamation fixing a day for an election of mem bers for fin- t.<ir<t. sfzaitm. The election was held, and J\le.=?ro. f-rholson ond Claiborne were returned. When their names were called at the organization of the House, objec tions were made, but were overruled, and the subject was referred to the Committee of Elections, with the instructions contained in the following resolution :
" ; JRcsoluea', That the Committee of Elections be instructed to report upon the certificates of election of Messrs. Claiborne and Gholson, the members elect from Mississippi, whether they are members of the Twenty-fifth Congress or not. And that said committee take into their consideration the proclamation of his Excellency Charles Lynch, Gover nor of said State, and the writ of election issued in. accor dance with said proclamation on the 13th day of June, 1837; and, also, the act of the Legislature of Mississippi en-

174

titled ' An act to regulate elections,' approved March 2, 1833."

The matter received thorough investigation, and upon the evidence adduced, Messrs. Gholson and Claiborne, by a writ ten argument submitted to the committee and subsequently
furnished to the members of the House, claimed their seats in the House during the Twenty-fifth Congress; and a ma jority of the committee thereupon made a, report to the House which concluded with the following resolution :

* Resolved* That Samuel J. Gholson and John F. II. Clai borne are duly elected members of the Twenty-fifth Con gress, and as such are entitled to their seats.'7
This resolution was reported on the 25th of September, and after a lengthy discussion was adopted on the 3d of Oc

tober.

In November the regular Congressional election was held

in Mississippi. Messrs. Prentice and "Word were the only

candidates, and received a majority ot the votes cast for

members of Congress, but less than half of the votes polled

C?

-

/ t/

_/.

at that election. At the next session these gentlemen ap

peared as contestants for the seats of Messrs. Gholson and

Claiborne. The whole matter was again referred to the Com

mittee of Elections, and, after thorough investigation, which

elicited no neOh facts, a majority of the Committee reported

the following resolution, viz :

41 Resolved, That the resolution of this House of the 3d of October last, declaring that Samuel J. Gholson and John F. H. Claiborne were duly elected members of the Twentyfifth Congress, be rescinded, and that Messrs. Gholson and Claiborne are not duly elected members of the Twenty-fifth Congress.
This was reported on the 12th of January, and on the 16th "made the special order of the day for this day, and of each scuidcecde.e'*ding day, at one o'clock, until the same shall be de

Mr. Claiborne submitted a written argument setting forth their claims to their seats. He claimed that although the House had the right to unseat them, yet to make its action consistent it ought to abide by its former decision.
The question was discussed daily until the 31st of Janu ary, when the above resolution was adopted.
Among those who voted to seat and then to unseat these members, appears the name of that able constitutional law yer, the Hon. James M. Mason, of Yirginia.
By Article 1, Section o, of the Federal Constitution, it is

115
provided that -each House may determine the rules of its proceedings ; " and acting under this authority Congress has always adhered to the ancient rule and reconsidered its ac tion in cases of contested elections, whenever the circum stances ot any case seemed to demand it. Although this power which is given Congress in express terms, is, under our Constitution, an implied one; yet, it has always been exercised by our Legislature, and considered as essential to preserve its independence and freedom of action, as its power to judge of the election or qualifications of its members; for neither without the other would be of any practical utility.
The results, then, of our inquiries may be summed up as follows :
1. The Legislature has the power to "determine the rules of its proceedings."
2. In 'determining these, it has adhered to the jincient par liamentary rule of reconsidering its action whenever, and as often as the circumstances of each case may render it necessary.
3. Therefore, the Legislature As, under the rules of- its proceedings, the -power to reseat the expelled negro members.
Since so much lias been said about the rule of lmres adjudi.w.itiC'* a few words with regard to its applicability to the case in question, may not be out of place here.
" fics afljitdivata" (thing decided) a term adopted from the civil law is defined to be a "legal or equitable issue which has been decided by a court of competent jurisdic tion." The "rule" is that the issue then decided is binding upon the parties, and a bar to all further proceedings, on their part, concerning the subject matter thereof. But to make a matter "res adjudicata" there must be a concur rence of the four conditions following, namely :
1. "Identity in the thing sued for : " 3 East, 3 6. 2 "Identity of the cause of action : " 6 Wheat, 109. 3. "Identity of persons and parties to ike action:" 7 Cranch, 271. 1 Wheat, 6, etc. 4. "Identity of the quality in the persons for or against whom the claim is made : " \ Term, 490, etc. The Le^gjislature,/ in reconsidering^:j its action in the. case of the expelled members, will doubtless first inquire into the eligibility of those who now occupy their seats. To this action, then, must we apply the test of "res adjudicata" By the 3d condition, above stated, there must be an "identity of persons and parties to the action" But these new members were not parties to the action of the

ire

Legislature when the negroes were expelled; therefore, the

'rule of "res adjudicate'}' cannot be pleaded in bar to these

proceedings.

This new investigation would .-how that the nepjrot-b, and

not the new members, were legally elected.

The new members, to sustain their claims, would, then

plead

f

.

the

ineliVibilitv

~

9

of

the

negroes <

lv

reason

of

"color.'

This would briu^ in issue tho whole question of nei^ro eli^S-

bbeilrist,v. ,s- owtihthaot uetveannv? ifatchteionruloen

the part of 'V1 '-s1 /

or' tlio expelled //////////-//////I' w*to

membind

ing upon Legislative action, it would not be applicable to

the case in question.

But, as we have seen, tho Legislature ha-s the power to re

seat these members a power founded on reason, dictated

by the sriindest ]>olicy. and by a !on;_c series <_>!' ]'reeedr:Mf.'..

HOW, then, nnle^c this ]x.>wer be, ext-r'-i-^fl, cnn it, nnd*-.r

all the circumstances of the ca.-e, "purify uud vin^licatc it:,

own character, n?)d ]>re;ervc the ri^lito and ^u^tain the tree:

choice of its constituent.;?"

B.

,E OF CONTENTS.
. Page 103 contains a brief statement of the case, as made by Judge McCay when delivering the judgment of the Supreme Court. For ready access to the facts it will be found particularly useful.
The Record of the Court below is printed in the order of arrangement in which it was presented to the Supreme Court. For greater convenience of reference, however, a somewhat different order is observed in the following analy sis. E. D.]
RECORD OF COURT BELOW:
Petition of Relator, Win. J. Clement?, to the Superior Court of Chatham County for leave to file an Information in the nature oi r. Q Warmnfo. in the name of the State of Geor gia, calling upon Richard W. White, to show by what right of law helioids the office of Clerk of the Superior Court of
. Chatham county he being a person of color.............. 3 Notice to Respondent, White, of such Petition, and order to
show cause why it should nxt be granted.................. 4 Demurrer of Respondent to the Petition..................... 25Order of Court granting leave to file an Information........... 5 Information in the nature of a Quo Warmnto................. 6 Demurrer of Respondent, White, to the Information.......... 8 Opinion of the Court overruling the Demurrer................ 8 Answer of Respondent to the Information........ .......... 17 Motion of Respondent f<>r a continuance..................... 24 Testirnouv of Richard Mimms.............................. 25 Testimony of A. X. Wilson................................. 25 Testimony of Albert Jackson................ .............. 26 Testimony of Dr. East on Youge............................. 26 Testimony of J. S. Howard............................. ... 26 Verdict. .*..................... ............................ 18 Judgment of Court below declaring Respondent, White, ineli
gible to office............................................ 18 Bill of Exceptions of Respondent, W bite.................... 20

ITS

TABLE OF CONTEXTS,

AKG-UMENTS OF COUNSEL BEFORE SUPREME COURT:
Arsr.im-nt of Col. A.. "VV. S one. of eo-.nisei for Plaintiff in Error, White..,.. . ........................................... 28
Arg'-.Tne-ii 1- of Col. Jaliau HattriJg : . of c-.>un?c-I f;r Defendant in Error. Clements.............~ ............................ 44
Argument of Col. Amos T. Akerm-iu. of counsel for PiaiutifF in Error................................................. 65
Argument of Thos. E. L'oyd. Es^.. of counsel for Defendant in Error............... ~............ .................... 79
Ar;rumen* of Ex-Govern-r James Johnson, of counsel for Plaintiff in Error........................................ 02

OPINIONS OF THE JUDGES AND DECISION OF COURT:

The case stated.................................... ..... 103 Remarks bv. Jurts^r_ e McC. ar................................ 106 Decision of Cou r t, declaring negroes el'qible to office in Geor
gia, and reversing the judgment of the Court below........ 108
Grounds of Judge Me Cay's opinion........................ 110 Opininn > >f Chief Justice Brown............................ 112 Remarks of Judge "Warner................. ............. 116
Opinion of Ju^lge "Warner. Dissenting...................... 119

Me~i^g- -f Governor Tiufu= B. B:-,i: ,: > to the House of Repre sent-.tives of G'.joriiia, o^i tiie occasion of the Expulsion of the Colored Mem1, i-rs. pr .lesting ag--'tiri .st such Exi uls'.on. de claring it unconstitutional and rev.-;".u f ion-"try. and sustaining his argument by quotations. fr< m the Constitution of the United'S'ates and the Consritntir,:; and laws of Georgia.... 131
iNames of Expelled 3Iembers of Ho r.;je (in Governor's Message) 132
ZS"ames of persons admired in their s'e^d......... .......... 133
Extract from published r roceeninjs of the House of Represen tatives on the reading of the Me.-sai.-e '"^ * "\Veare the keep ers of our own consciences, and not his Excellency"....... 140
Extract from the proceedings of the Constitutional Conrention of Georgi-t, of d tte 24th February. 1S6S, Cuntainiug an Ordi nance stating- who should be eligible to membership of the first General Assembly after the adoption of the new Consti tution ..............".. .......... ....................... 141
Message of Governor Bul'ock to the Senate on the Expulsion of the Colored Senators.................................. 144

TABLE OF CONTEXTS.

179

Sanies of expelled members of the Senate........ ......... 146 Extract from published proceedings of the Senate, on the read
ing of the Message........../."................,......... 147 Rc"=otut; on of Senator Candler that only certain portions there
of he entered on the minutes. Lost....................... 147 Me age of Governor Bullock returning to the House of Rep
resentatives fi Joint Resolrtion, on the ground th.it*"the reso lution under consideration ignore* the qiifstion of original organization, and proposes action simply in the direction of asking a judicial decision upon the Eligibility of Colored citizens to office, without either pledging'the body adopting tiie resolution to abide by such decision in regard to their :u-u membership, or even indicating a disposition so to do"- 148

LETTERS.
LETTER* of distina'rr'shed legal gentlemen of Georgia as to the etfect of the deci-ion ot the Supreme Court, upon the itatu* of the expelled colored members.
L-rtvi-r of lion. W. B. Fleming.............................. 152 Letter of Hon. M. J. Crawford......... ................... 153 Le'ier of Hon. Tunius Hillyer..... .............. ......... 156 Letter of Hon. A. M. Speer.. ............................. 159 Letter of Hon. J. W. H. Underwood ....................... 163 Letter of Hon. E. G. Cabiness ............................. 164 Letter of TL m. \Varren Akin ... .......................... 166 Letter of General Lawtou, Judge Harden, and Hon. Thos.
E. Lloyd....................T........................... 168 Letter of H< >n. Alexander II. Stephens ...................... 168 Le'.:-?r of v> B." a correspondent in the Macon Telegraph ..... 172