White v. Clements , 39 Ga. 232 ( 1869 )

McCay, J.

Clements filed an information before Judge Schley, suggesting that at a recent election in Chatham county for Clerk of the Superior Court, he and White had been the only persons voted for; that White had received a majority of the votes, he himself getting a large number, and that White had been commissioned and was then in performance of the duties of the office; that, in fact, White was ineligible under the Constitution and laws, by reason of his having in his veins one-eighth or more of African blood ; that he, Clements, was eligible, and praying that a quo warranto might issue, inquiring by what right White held the office, and if found ineligiblej that he be compelled to vacate the office, and that he, Clements, be installed therein.

White was notified of this application, and filed a demurrer to it. Subsequently, however, that demurrer was withdrawn, and the quo warranto issued in the usual form, in the name of the State, calling upon White- to show by what warrant he held the office. White filed a demurrer to this warrant, on the ground, in substance, that the fact of one having one-eighth or more of African blood, was not, according to the laws of Georgia, a disqualification for office, and also filed an issue denying the fact, as stated in the warrant, that he had such blood.

Under the Act of 1868, a jury was drawn and summoned and impannelled, to try the issue. When the parties announced themselves ready, the counsel for White called up the demurrer, and proposed to argue it then. No objection was made to its being then heard, and it was set down for argument instanter. The counsel for the State, however, insisted that as they were before the jury they had a right to open and’conclude, and so the Court determined, and the argument was had, the demurrer was overruled, a judgment was entered, and the Court proceeded to the trial of the issue.

On the trial, over the objection of White’s counsel, the Court permitted the introduction of the following, amongst other evidence set forth in the Reporter’s statement of facts:

First — that of the Register. Second, the copy of the life insurance application, and the various witnesses.

This case has been argued with great earnestness, ability and learning, and its high importance, as well as the strong personal feeling involved in its consideration, makes it a matter of deep interest. Involving, as it does, the status of a large portion of the acknowledged citizens of the State, and controlling, as it must do, to a great extent, the principles upon which hereafter our civil organization is to exist, we have come to its consideration with great seriousness.

Upon several of the questions made in the bill of exceptions, the Court is unanimous, and the judgment granting a rehearing is therefore equally so. Upon the question arising on the demurrer — the real vital question at issue, t-o-wit: the right of persons of color to hold office in this State, our brother Warner dissents from the conclusion at which the majority of the Court has arrived, and will doubtless furnish to the Reporter the reasons for his dissent.

1. The fact that the Register of voters had placed a “C” to indicate “colored” after the name of White, is not original evidence. It is mere hearsay, and may have been the simple opinion of the Register. It has not even the dignity of reputation, since it is but the statement of one man. It does not appear that this entry was one required by law to be made, nor that White knew of it, or was affected in his rights by it, or that he could have had it corrected, had it been wrdng. It is wholly worthless as evidence, being in fact, nothing but the opinion of one man, who is not, as far as appears, an expert.

2. The contents of a paper, beyond the jurisdiction of the Court, and not in the power of the party wishing to use it, may, without doubt, be proven by a proven copy. - But it must be proven that such an original paper does or did in fact exist, and was duly executed. Here was no proof of the execution. The witness did not know whether White or his wife signed it.

3. We do not see that the paper was any evidence in this case, even if properly, in evidence. There is not a. word in the paper showing that White is colored ; nothing in the nature of an admission to that effect. Indeed, in the paper there is not word on the subject. On the back of the paper it is stated that White is a mulatto, but this seems to be a mere memorandum of the company, not signed by White, nor does it appear that it was even made with White’s knowledge.

4. We think there was no error in permitting the race of the defendant below, to be proven by reputation. Such is the law as laid down in the books, and the evidence is good for what it is worth. As a matter of course, it is worth hardly anything in a doubtful case.

5. An expert is one who by his habits of life and business has a peculiar skill in forming an opinion on the subject matter in dispute, and, without doubt, a physician who has studied the science of Ethnology, is better prepared than ordinary men to judge'of the race of one presented for examination. And wre think the Court did right in permitting the doctor to give his opinion as an expert. What it was worth was for the jury. Dependent on his intelligence and character, and the nature of the case, etc., we wmuld think it worth’ very little in a doubtful case, as whether one had one-eighth or little less or more of a particular blood. All of the testimony in this case was very inconclusive. In ordinary parlance, one is called a person of color who has any visible admixture of negro blood, and it does not appear but that this was all any of the witnesses meant. - The law under which it is claimed White was ineligible, did not disqualify one unless he had one-eighth ór more negro blood. The whole Court is of the opinion that there ought to be a new trial, because of the error of the Court in admitting the statement of the Register, and in admitting the copy application for insurance.

6. Wc have no doubt but that the Court erred in permitting the council for Clements to open and conclude the argument in the demurrer. Perhaps, under this peculiar statute, which requires a jury specially to be summoned to try any issue of fact that has arisen between the parties, there might be some question whether the demurrer ought not to have been disposed of before the jury were summoned. But the demurrer was duly filed, it was called up by its mover, and no objection was made to the hearing of it at that time, and it was heard as a separate and distinct motion. The rule of Court is-plain and positive. “ In all special matters springing out of a cause the party submitting the point shall open. Rule 45. Why should this be different from another case ? It was a distinct motion, made to the Court, with which the jury had nothing to do. For the purposes of the demurrer it admitted the facts set forth in the Avrit, and the- jury had, so long as the demurrer was pending, nothing to do with the case. In what does this differ from- a demurrer to a declaration, or to a bill in equity, filed at the first term, and not argued until the case is called for trial? Yet the practice is uniform, and so the rule of Court requires that the party making the demurrer shall open and conclude. In the argument the movant holds the affirmative. He says, you have -no case in Court. If the-Court agrees with him it sustains the demurrer. If the contrary, it overrules it. We would not however, grant a new trial, for this error. It is mere matter of practice, and had we thought the Court right in overruling the demurrer, we would not disturb the judgment.

7. Whatever may be the Constitution, the Code of Georgia, section 1648, provides that the right to hold office is one of the rights of a citizen of this State, and section 164& provides that all citizens are entitled to exercise all their rights as such, unless specially prohibited by law. No body denies that persons of color are citizens, nor does any body claim that there is any law specially prohibiting colored persons from exercising that right. It follows therefore that by the laws of this State, persons of color may hold office.

But I am not myself satisfied to put my judgment in this case upon this ground. I am well convinced that the fundamental law — the Constitution of the State — guarantees to men of color the right to be chosen to an office, and I put my own judgment upon that ground.

If the general principles, or any one of them, which I have placed at the head of this opinion, be true, this right is undoubtedly a fundamental one — one guaranteed by the Constitution, and not only exists, but exists entirely beyond the power of legislation.

'Very much of the argument advanced at the hearing was based upon what, as I believe, is an utterly mistaken conception of the source from which rights in this country are derived. It has been assumed that rights exist here by grant, and that the citizen has no rights save such as he is able to. show are granted to him by the Constitution, or by some statute, or as has been (very strangely to my mind) suggested, by Common Law.

Unless I have been mistaken all my life as to the nature of our State governments they are based upon the fundamental idea that the people of a State have all rights that are not expressly taken away. The object of constitutions is not to give to the makers of those constitutions rights, but to provide against the infringement of rights given by God. For greater security and certainty, constitutions sometimes formally set forth certain rights, often in human history infringed, and guarantee them, but it is a new doctrine to me that the people get their rights from these solemn assertions of them.

The Constitution of 1861 was the first in this State that contained a bill of rights, and its accomplished author, Mr. T. R. R. Cobb, now in his grave, would be- startled at the suggestion that, in his condensed but explicit enumeration of rights, he was framing a grant to the people of Georgia.

A convention of gentlemen, elected by the people, and acting solely as their agents, met together to frame for that people a constitution, and it is gravely insisted that these agents, chosen and paid by their masters, the people, to suggest to that people a form of government, are the grantors of the rights which that constitution guarantees to the people. Such ideas are anti-American — the relics of that theory which is exploded now even in England, that rights come from the king as the divine repository of power.

The men who founded this government had different ideas They conceived of sovereignty as vested in the people, and their intent in framing constitutions was to build up safeguards against the encroachments of the governments they set up. If they mentioned any special rights, it was not to grant them, but to guarantee them; not to confer them, but to secure them. All our governments are the mere creations of the people, subject, at their pleasure, to be changed or abolished, and there is a species of .absurdity in speaking of rights granted to that people by themselves.

There is, I am aware, a class of men in this country whose minds are still running in the groove, in which they were set by Coke and Blackstone, the great expounders of the origin, progress, and principles of English liberty. This class of men conceive all rights as derived from Magna Chan-ta, the Act of settlement, the Constitution, the Statutes of the State, or from the well established rules of the common law. Their theory is founded on the fact that the Kings of England had .ursurped the rights of the people, and at various periods, they had compelled the usurpers to restore them, and as a salvo to his vanity, they had received them as grants from him, and now hold them, not by virtue of the great doctrine of our fathers, that human rights are the gift of God, but by virtue of the written grants which they are able to show from their - soverign lord and master, by .the grace of God, king and depository of the rights of men, or from an imaginary power they call the State, which they have set up in his stead.

By this theory, a free born American citizen has no rights save such as he is able to trace up to some old parchment, having the X mark of 'some one of these divinely appointed masters of the people, or can show is one of the few privileges that have always been allowed to the subject by the king. He must make out his case by Magna Charta, or some other grant from the sovereign or by the common law. And though this is a republic where the name of a king is unknown, yet not a right exists that cannot be traced back to some black letter grant, from some such august potentate, or can be traced from his successor, the State, who has been inaugurated in his stead.

It was very well for our fathers in making up their account against George the III, still to use this fiction in their enumeration of their causes for resistance. They were still at the time British subjects, and might well use that form of speech, by which such subjects assume that the gentleman or lady, whom for the nonce they have agreed to call king or queen, is the source of those rights which, in fact, they have Avon by their own right hands, from that king’s or queen’s predecessor, after he had by force or guile, taken them from those to Avhom God gave them. But Avhen the Avar was over, and these colonies Avere declared independent of the mother country, and they came to set up governments for themselves, the fictions of the monarchy disappeared. If Magna Oharta and habeas corpus, and the common law Avere of force, it Avas because the people adopted them of their own will, not as grants from the king, nor yet, as gifts from the State, but as convenient modes of expressing that these rights were especially to be secured, even against the thoughtless infringements of the people themselves, or what was the same thing, the new government which they set up. The theory of the origin of rights was changed, and men were now entitled to all rights Avhich they had not denied to themselves, since it was the essence of absurdity, to say that a people under no contract but their oavii sovereign will, could meet and grant to themselves any rights. Hence, under the American idea, constitutions and charters are not to give, but to secure, rights, not to grant but to guarantee rights, not to give to the people this or that privilege, but to restrain individuals from using rights not convenient for the public good, and to preserve against the encroachments of the government those rights inherent in the people which experience thought it was wise, specially, to guard. •

But whilst But very few persons at this day, and in this country, will insist upon this idea as a general proposition, it is still said that the case of the negro stands upon a different footing, and that however it may be true, that the rights of a white American citizen came from God, yet a black American citizen cannot 'claim this presumption; that the rights of the negro have a different derivation, they come from the State, and he can have none, except such as he can show chapter and verse for. As I understand it, this is the very sheet-anchor of the argument for the defendant in error.

The negro, they say, was, as all admit, a slave, without any rights, save such as were specially pointed out by law, and that having none, became free by special grant, he does not stand like a white man, with every right, that is not expressly denied, but with only such as are specially granted. In other words, that hereafter in this State, we are to have two classes of citizens, one holding their rights by divine gift from the God of nature, in favor of whom there always exists the presumption that any particular right contended for, whether it be legal or political, and in reference to whom, the burden of proof is always against the party denying the right; and another class, whose rights come not from God, but from society, and Avho, in every contest respecting a right, must be able to show by special enactment, that the right has been granted. At the close of our late civil AArar, when the defeated party, under the pressure of the circumstances then existing, recognized the freedom of the late slaves, some such idea was doubtless a common theory. The Constitution of 1865, and the Legislatures, Avhich for a year or tAvo met under it, adopted a constitutional provision and enacted various laws based upon this idea. Con., 1865, Art. 1, sec., 21, Art. 2, sec., 5, par. 5. These people,' under that Constitution^ and under the laws enacted thereunder, were called “persons of color;” the rights of that class, as they existed under the old system were enlarged and defined and protected, and a very evident design was manifested to keep up in the State, the destination to which we have referred. The colored population of the State, had no part in the Convention of 1865. That body, though elected and organized and dictated to by the President of the United States, was a convention of the white people of the State, and without doubt met and acted on the theory, that colored men were not a portion of the people for whom the government was organized, but an anomalous class called “ persons of color,” who existed within our borders, but whose rights depended solely on the legislation of that class whose rights came from God.

And did this case arise under that Constitution, were the government of Georgia now guided by the theories and principles then acted upon, it would undoubtedly be true, that a “person of color” must always, in the assertion of a* right, be able to point to the written law by which that right was granted. It happens, however, that the Constitution of 1865, and the government organized thereunder, never went into practical effect, as the Government of this State, as one of the States of the United States.

The Act of Congress, of March 1867, passed nearly two years after the inauguration of Governor Jenkins, formally enacted that there existed no legal civil government in the State, placed its government in the hands' of the military authorities, with permission to those authoritiés to use as their discretion, and as a provisional civil government, such organization as they might find in existence. It is not pertinent to the present argument to go into the question of the power of Congress to pass that law.

My own opinion is that its power to do so, turns entirely upon the question of the right of the State to secede from the Union. If that right did not exist, then, the govern-meat set up in 1861, was illegal, and when the result of the war annihilated it, the State was without any legal civil government at all It was in anarchy without any government, and consequently, without any republican government, and the case arose provided for by Art.,4, section 4, of the Constitution of the United States, whereby, it is made the duty of the United States to guarantee to each State a republican form of government. In what mode this shall be done is not pointed out. It is left to the discretion of the lawmaking power, restrained and controlled by the general principles of the Constitution. One of the very first requisites for the exercise of such a power, was the preservation of the peace, and the protection of life and property, until such a government could be organized, nay, it was one of the necessities of the process of such an organization, and as the Government of 1861 had been overturned by military power, and that military power, with more or less directness, had since May, 1865, performed, in its way, these duties, there was perhaps no constitutional objection to authorizing, by statute, such a jurisdiction over civil affairs, as ever since May, 1865, -had in fact been exercised under the orders of the President.

If a Convention might in 1865 have been called by the President; if the Executive power of the United States, might, as a means of guaranteeing to the State a republican government, by his proclamation appoint a provisional governor, and by the military áuthorities preserve the peace and protect life and property, during the process of organization; if by his proclamation he might lawfully call a Convention, fix the number of its delegates, and the basis of representation therein; if he might fix a day for the election, determine the qualification of the voters, excluding unpardoned rebels and negroes; if he might, in other words, lawfully do, as was in fact done, in 1865, by Mr. Johnson, surely it was no great stretch of constitutional power, if Congress, dissatisfied with the result of that Convention, and unwilling to accept its work as a performance of the duty of the United States to guarantee to the State a republican government, should itself, by formal law, provide for the calling of another Convention, and authorize, as the President had done, the preservation of public order by the military authorities until this could be done. As I have said, the rightfulness of this exercise of power, turns, in my judgment, upon the right of the United States to prevent, by force of arms, the secession of a State from the Union.

If that right exists, if, in the late war, the United States was not the aggressor, and if the government set up in 1861 was an attempt at revolution, if the nomenclature by which the late war is called a rebellion be correct, then at the close of that war, when the late Governor of the State, was a prisoner at Washington, and in the whole civil organization there was not a single officer capable, under the Constitution of the United States, of performing an official act, it seems to me to follow, that though the State, as one of the States of the Union, still existed, she was wholly without civil government, not as some suppose, without law or rights as a State, but without any civil machinery to put those laws in force, or to exercise those rights, and there arose an absolute necessity to appeal to the people in their sovereign capacity, in order that a new civil organization might be effected.

Obviously, under the circumstances, this appeal could only be made by the United States. By the Constitution, the State had formally provided that if such a case should arise, if by any trick of ambition, a monarchy should be set up, or an aristocracy inaugurated, or, if — as I suspect was, at the making of the Constitution, the danger most feared — faction should breed anarchy, in either of these eases, it was not only a granted right, but it was made the solemn duty of the United States to guarantee to the State a republican government. An appeal to the sovereignty of the people was clearly the mode most in harmony with American ideas for the performance of this duty, and just here, in my judgment, is the point of the argument bearing upon the case before the Court.

The complaint made by the United States against the Convention of 1865, was thatii did not represent the people of the State, that it was a Convention only of the white people, and that the whole theory upon which it was called, elected and organized, and upon which it acted, was wrong; that it was an appeal, not to the people, but to the white people, and that the government it set up, was not a republican one, for the reason that it proceeded upon the very idea now set up by the argument here insisted on by the defendant in error, to-wit: that the negro was not one of the people, for the protection of whose rights, the government was set up ; that it was based upon the very idea here 'contended for, that ‘white men’s rights came from God, and the guarantees of the Constitution do not grant, but protect them, but that the negro’s rights came from society, and he has only such as society has been pleased to give him.

It cannot, I think, be doubted that the very object and intent of the reconstruction laws, was to repudiate this idea, to consider the colored people of the State as a part of the people, for the protection and guarding of the sovereign people — having rights given, not by men, but by God — that gave birth to, and formed the whole warp and woof of the Congressional scheme of reconstruction.

And, accordingly, and under those laws, the colored men of the State participated equally with the whites in electing the Convention, men of color sat in it as members, and whites and blacks met equally at the polls to vote upon its ratification or rejection. The people of Georgia, without distinction of color, came together at Atlanta, in December, 1867, by their delegates, to form for themselves a Constitution and frame a government, men of both colors sat as delegates in the Convention, and in April, 1868, the work of that Convention was submitted to, and ratified by that people, and yet it is contended that the rights guaranteed by that Constitution, stand, as to the two colors, on a different footing, that as to the white man, they are mere securities, but, as to the negro, they are grants ; that now, and hereafter, one portion of the sovereign people have all rights which that Constitution does not take away, and another portion have only such as are expressly given.

Nearly three-fourths of those who voted for delegates to the Convention, were blacks; the white people generally refusing to vote, and on the question of its ratification, three-fourths of those who voted “yea,” were blacks. How could these black people, voters for delegates, grant rights to themselves? What a perfect contradiction of terms, does the whole nomenclature result in. The delegates of the people, without distinotion of color, meet in Convention, and grant to men of color, certain rights, and the people, without distinction of color, ratify the grant. The men who get the grant are the very men who select the delegates to frame its terms, and who ratify it as the final judges of its wisdom and propriety. The whole thing is absurd, a perfect contradiction of terms.

By the theory of the Reconstruction Acts, people of color were recognized as free, as having the rights of freemen, as forming a part of the sovereign people whose right it was to join in framing for their common government, a Constitution, and as entitled by the laws of nations to every right which the people, themselves included, should see fit not to take away, and it is a direct stultification of the whole 'basis of those laws, of the fundamental idea upon which the Constitution of 1868 was elected, organized and acted, to apply to its provisions, the presumptions and theories of a Constitution which called them “men of color,” and explicitly recognized them, not as a part of the people, the body politic, but as subjects of the governing and controlling whites.

If this doctrine be true, if the negro’s rights lie in grant, if he have only such as vest in some formal declaration of the State, which in this theory stands in the place of the king, from whom, as from a fountain, all rights flow, then the appeal of the United States to the negroes as a portion of the body politic, was illegal and void. He had at that time no political rights to be protected by a government. He formed no part of the sovereign people, in whom rests the power to form and alter political organizations. He had no rights to grant to anybody, and the whole proceeding was as though one should attempt to raise himself to a height by pulling at the straps of his boots.

In my judgment, the Convention of 1868 met as the representatives of all the people of this State, white and black, and met upon the basis that they all had equal rights. The white people had, most of them, long enjoyed the rights of freemen. They too had once felt the clank of the chain of a master, but, in the providence of God, they had, many a day-since, felt it no more. The colored people had but lately been slaves, but both classes were now free, not by grant, but by that “ultima ratio regum,” the law of arms, which cares but little for parchments and statutes, and they met as free men, as all forming together the body politic, the State, to form a government for the guarantee and security of those rights, which by the fundamental theories of American society, have, been given by the God of nature to his creatures.

Without doubt, many of our wisest and best men indignantly deny that in this proceeding there was the least legality. There is hardly any language too strong, by which, as they think, it ought to be characterized ; illegality, tyranny, usurpation, oppression, are the words which they daily apply to it. .But it is none the less a fact, a patent, active, incontestible fact, upon which, whether rightly or wrongfully, the present State government is founded, and the denial of which strikes at the very root of the authority by which this Court takes jurisdiction of the case before us. Nay, if the negro was not at the calling of the Convention'of 1868 a portion of the body politic, a part of that people, in whom rests the sovereignty of the State, if it was necessary that the right to participate on equal terms with white men should be granted to them; if, in other words, the presumption contended for, be true, then the defendant in error, has, himself, no status in this Court, since he is seeking to hold an office created by those very colored people, in utter violation of the presumption he sets up.

If the negro in 1868, before the Convention met, was not clothed with equal political rights with the white man; if it required the grants of the State to clothe him with those rights; if, as to him, the enumeration of rights in that instrument are grants, whilst as to the white man, they are mere securities then, since the Convention of 1868 was elected almost entirely by negroes, and since negroes participated equally in its organization and deliberations, and since they were a portion of the people who were appealed to for its ratification, the whole thing was itself illegal and void, this government is a usurpation, this Court is illegal, the - Chief Justic ought to be in his seat as the Governor of the State, my Brother Warner and myself are private citizens, the plaintiff in error is a slave, and the defendant in error is seeking to hold office under an outrageous and gigantic usurpation.

I am not disposed so to stultify myself. I do not feel inclined to put my judgment on a ground, which, if true, makes my own position on this bench illegal, nor am I able to see how any man who insists upon the presumption contended for, can accept office under a government whose very existence is based upon exactly the opposite theory.

I have dwelt somewhat lengthily on this point, because in my judgment, it is important that we should thoroughly understand to what future results this rule of construction would lead us. He who adopts this presumption; he whose theories derives the white man’s rights from God, or from nature, or from custom, and the black man’s from grants and Constitutions, and who, therefore, presumes that the former has all rights that are not denied, and the latter only such as are expressly given, not only sets afloat; for agitation at home, and for national interference, questions which it was tiie intent of the reconstruction policy to settle, but he appeals to a Court organized upon a principle directly the opposite, and asks it to uproot the very foundation on which' it rests.

This whole government exists, as at present organized, by virtue of the presumption that colored men were by the laws of nature, a portion of the sovereign people. This Court, as the other departments of the State government, gets its powers from them, the rights of all colors are restrained, protected, and controlled by a Constitution they have made, and shall it be said that under that Constitution they have only such rights as they have seen fit to grant to themselves, that the authors of the grant are to be presumed as dependent upon the grant for the rights and privileges specified in its terms. It seems to me that this is folly, an acceptance of reconstruction and a repudiation of its terms. As one of our new States, though it comes into being by virtue of an Act of Congress, as an organization, as one of the States of this Union does, yet as soon as it dons the robes of State sovereignty, immediately become a coequal sovereign, under the fundamental basis, with the States existing before it, and from whom it derives its power, and as a subject of the imperial Czar of all the Russias, when, by the laws of the United States, he becomes a citizen, forthwith is recognized as having derived from God rights equal with the native, and as entitled in every investigation to equal presumptions with his other fellow citizens, so the negro, slave though he' has been, when the national government recognized him as part of the sovereign people of the State, and called upon him to join in the making a Constitution, and appealed to him after that Constitution was made as one of the judges of its wisdom, and for the purpose of getting his consent, is entitled to the same presumptions as are his other fellow-citizens, and the adoption of the theory contended for — that one class of our people have rights derived from the God of nature, which Constituions and laws only protect, and another class have rights derived only from society, which must always be proven by the production of the grant — is fatal to the very existence of the Government of Georgia as now organized.

There is some show of logic in one who refuses to admit that the present government is a legal one, thus adopting the fundamental ideas of that organization, upon the ruins of which the present one stands, but an officer of the present government, one who, as does the defendant in error, proposes to become, by taking office, a part and parcel of this organization, based, as it is, upon the theory that negroes are part of the sovereign people of the State, as it seems to me, makes a fatal stab in the very vitals of the institutions of which he proposes to become an officer.

The whole argument of the plaintiff in error is founded on a false theory, and however true it might be ten years ago, or in Great Britain, or even in Georgia, under the Constitution of 1865, it is wholly untrue now under this Government, and to hold it true is to strike at the very root of the principle on which the government of Georgia, under the Beconstruction Acts, is based. And if the rights of the negro are, as are the rights of the white man, under the present Constitution, which was made equally by and for both colors, presumed to exist, unless they be formally taken away, then the' conclusion is irresistible that the plaintiff in error is eligible, since it is not. pretended that in the Constitution of 1868 there is any denial of his eligibility. The argument against him being wholly negative, and the true rule requiring a positive argument, his eligibility remains, simply because there is nothing produced which denies it. If the negro cannot hold office because there is nothing in the Constitution granting him that right, neither can the white man, since there is nothing granting it to him. If, however, the true theory of the source of rights be, that every citizen has equal rights, unless there be some denial in the Constitution of special rights, then in this State negroes may hold office, since the Constitution does not make color or race a disqualification.

It has been very seriously argued that the rights of a white man to hold office, though not granted in the Constist-itution, exists by Common Law, and did not need a grant. If, by common law is meant the usage of the State, I would enquire of them, was any such usage at the origin of the State — at the foundation of the Government? "When the colony of Georgia became independent of the mother country, when a republican government was set up here, nothing is better settled than that white men were understood to be eligible t'o office, except as otherwise expressly provided. This included all citizens, naturalized citizens as well as others.

One of the qualifications of President of the United States is that he must be a native born citizen, and incontestibly were it not for this provision a naturalized citizen might, if elected, hold that high position. It is absurd to say that there was a usage in a government not yet set up. Nor is there in fact in this State any such authority for a right as usage or custom. Our Constitution specifies our laws. They are the Constitution of the United States and its laws, our own Constitution, and the Statutes of the State, and the Common Law of England. Usage, custom, is not in this State a source of law, and a right dependent on that has no legal dependence. By the “common law” must therefore be meant the law of England. Though it is very strange how the common law of England could make a naturalized citizen eligible tQ the office of President of the United States if the exception requiring him to be a native born citizen had not been introduced into the Constitution. By the law of England all native born citizens were eligible to any office, unless there was by law a special disqualification. Even the very highest office — sovereign—might be filled by a woman or an infant. — Blackstone.

But, by the common law it was a well settled rule that a naturalized citizen, even though naturalized by Act of Parliament, was ineligible to any office. He could not hold even the humble place of constable, and so it has been solemnly determined by the Courts of England. — Burr. Where then does the naturalized citizen get his right to hold office ? He was not born to it, for he is not & native. It did not exist at “ common law,” because the common law was directly the other way; it affirmatively denied to him the right. He does not have it until he is naturalized. Whence, then, is it derived, and why was it necessary specially to provide in the Constitution of the United States that the President must be a native born citizen ? And why, too, the frequent provision in our State Constitution requiring a specified residence as a qualification for office ?

Is not the answer an obvious one ? A naturalized citizen stands upon the footing of other citizens, and he has all the rights that anybody has — unless it is otherwise specially provided by law. By the grant of the State, he has become one of the people, and, ipso facto, his rights stand upon preeisely the same foundation as do theirs. He is one of them for whose use and protection the government is made; and he, like them, has every right which the people have not by some affirmative law denied. Why is not this also true of a person of color ? True, he was born a slave; it is equally true that a Eussian was born a subject. True, even when free, the negro in this State had only such rights as the law gave; but the Eussian, before naturalization, was in the same position — his rights were dependent upon the comity of the State, and he had only such as that comity bestowed upon him. But when, by the will of the people, the Eussian subject becomes a citizen, ipso facto, his relations change, and he, like other citizens, has every right that is not denied him by affirmative provision.

I cannot, for the life of me, see vffiy this same thing is not true of the negro. Having become one of the sovereign people, he is presumed to have, as have they, all rights not specifically denied.

Thus far, we have discussed this question on the idea, that the Convention of 1868, being composed of the agents of the black as well as the white people of the State, the Constitution which it formed must, in the very nature of the case, be construed on the theory that it grants no rights to men of either color, but only specifies, and protects, and guarantees against encroachment, those inherent rights of self-government which, by the fundamental principles of American society, are inherent in the sovereign -people, by whom, and for whqm, the Government is made.

But assuming, for the purposes of the argument, the strange theory, that the Convention of 1868, representing, as it did, the black as well as white people of the State, granted to the black people certain rights, it is very plain to my mind, that the Constitution of 1868 guarantees and secures to persons of color the right to hold office. Article 1st, section 2d, of that instrument is in these words: “ All persons born or 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 and 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 protect every person in the due enjoyment of the rights, privileges and immunities guaranteed in this section.” It may be observed in passing, that there is no pretence here of granting rights to anybody; the language used is, “ are declared to be citizens,” and “rights guaranteed.”

But assuming that, as to the negro, these words are to be understood in the sense of grant, and given, let us inquire what is their proper and legitimate meaning. Without doubt by this article, they are citizens, and “ citizens ” of this State. Under this theory, having been _ slaves, they acquired, by revolution and military power, freedom. By the Act of 1866, which is almost word for word, the Act of Congress, known as the Civil Rights Bill, they acquired equal civil rights with white persons. They had still no political rights. The Fourteenth Amendment was not, at the time this Constitution was made, ratified and adopted. They were yet only “ persons of color.” This section of the Constitution of 1868, takes another step — they becopie citizens — they grant to themselves the character of citizens.

What is its effect ? What is the meaning of this word ? Our English law books rarely, if ever, use it to describe the relation of the people to the State. Englishmen are subjects, not citizens, and we must seek from other sources than from Coke and Blackstone, the meaning of this term so frequently uttered and written in America. The word is derived from the Latin civis, and meant in Rome one vested with the freedom and privileges of the city. Rees’ Encyclopedia tit. citizen.

Butler, in his Hora Judicice, says, “ Citizens were the highest class of subjects at Rome, to whom jus civitatis belonged, and those who had it possessed all rights and privileges — civil, political and religious.” Hora Judióme, 26th and 27th.

The Dietionaire L’Aoademie les Oitoyen defines it thus: “ In its strict and rigorous sense, an inhabitant of a city, who, by right, may vote in the public assembly, and is a part of the sovereign power.” Johnson defines it, “a freeman of a city.” Webster: “The native of a city, or an inhabitant who enjoys the freedom and privileges of a city in which he resides — a freeman of a city distinguished from a foreigner, or one not entitled to its franchises.”

The word is never used of the people in a monarchy, since it involves an idea not enjoyed by subjects, to-wit: the inherent right to partake in the government. The republics of the old world were cities, and the word citizen has been usually in human history only applied to inhabitants of cities. As, however, States have, in modern times arisen, and Republics have been established, in which the word subjects could not be properly applied, the people of those Republics have been called citizens, for the simple and obvious reason that their relation to the State was such as was the relation of citizens to the city. They were a part of its sovereighty— they were entitled to its privileges, its rights, immunities and franchises. As this word was used of -mere municipal corporations, it meant strictly one who -possessed inalienably all the rights, civil, political and religious, enjoyed by any one in the city. The city, itself, being only a corporation, could not by its by-laws infringe or qualify those rights, since they were given by the charter.

When, however, the word came to be used of the people of a State, who are themselves the sovereign, this perfect equality in the rights of citizens ceased. The people themselves are bound by no charter, and they may, by affirmative enactment, qualify, restrain, and restrict the rights of citizens, and perhaps none of the definitions in the books are precisely applicable to\the condition of citizens in the United States. Nothing is more common in this country, even in our most solemn public papers, than to apply the word to persons who are not in fact in the enjoymont of equal rights, either civil or political, with other citizens.

Infants and women are citizens, and they have, in none of our States, the right to vote; nay, they are denied by law many civil rights. Infants cannot contract, nor make wills, neither can married women. And there is hardly a State of the United States in which male citizens of full age, are not denied various political as well as civil rights.

The right to vote is often restricted by a property qualification, and even the civil right of making contracts and being a witness in the Courts, is denied, by reason of crime, interest, or want of capacity. Has, then, the word citizen no definite meaning at all, in this country ? It is very clear, that all citizens have not the same political rights, it is eqally clear that they not all equal civil rights.

Chief Justice Taney, in the case of Dred Scott, says that: “It is synonymous in the United States with the word people. A citizen is one of the “people.” He is a part of the sovereign power, and is entitled to every right, civil and political, which the sovereign power has not in some affirmative way denied to him.

This denial must be affimative. If the right referred to, be one protected by the Constitution of the United States, then even the sovereign people of the State, in convention met, cannot deny it. As to other rights, civil or political, the people, the citizens, the State, may restrain and qualify them at pleasure. If they be protected by the Constitution of the State, they are free from legislative interference; But unless this be done, they may be regulated, restrained, qualified or denied, at the pleasure of the law-making power. The definition we have suggested covers all this. A citizen of a State is one who is entitled to every right enjoyed by any one, unless there be some affirmative declaration to the contrary, by some authority clothed with the power, under our form of -government, to make the exception.

And this the definition of the Code of Georgia. Section 1648 of that Code enacts: “Among the rights of citizens are the enjoyment of personal security, of personal liberty, of 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.” And section 1849 enacts, “All citizens are entitled to exercise all their rights as such, unless specifically prohibited by law.”

Here is a clear, definite specification of certain rights, which belong to citizens as such, and then a solemn declaration, that all citizens are entitled to exercise all their rights, unless specially prohibited by law. Those clear-headed lawyers and polished scholars, Mr. T. R. R. Cobb, Judge R. H. Clark, and Judge Irwin, the authors of the Code, have given exactly the definition of this word, that covers the state, of the rights of citizens in this country, and the Convention of 1868 had this definition before it.

Here is a solemn law of the State, defining the meaning of the word citizen. Is not this Court bound to presume, that the Convention of 1868 used the word exactly in the sense of that definition? Admit that the word has a different sense, as used by lexicographers, or as used by writers upon public law, is not the conclusion irresistible,,that the Georgia Convention used it precisely in the sense given to it by express definition in the Code, which they adopted as the law of the State? Let it be remembered, too, that this definition of the word is one that harmonizes completely with the exact state of the actual rights of citizens, as they are enjoyed, and always have been enjoyed, in America.

It does not say that all these enumerated rights are enjoyed by all citizens, that every citizen has them, and that every citizen has a guaranteed right to their enjoyment.' It takes up the matter as it in fact exists, and draws from the known, settled usages and practices of the country, a definition which exactly expresses the true state of the case.

A citizen is one who, unless it is otherwise expressly provided by law, is entitled to the rights mentioned. As a matter of course, the word law is to be taken in its .known signification. If the right in question be one guaranteed in the Constitution of the State, then an Act of the Legislature cannot deny it. If it be guaranteed by the Constitution of the United States against even the State, then even the people in Convention met cannot infringe it.

I conclude, therefore, that when the Convention of 1868 declared that all persons born in the United States, resident in this State, were citizens of this State, they intended to say that the persons enumerated were declared to possess among their rights, “the right to hold office,” and that each of them was entitled to exercise the right, unless “specially-prohibited bp law.”

Very absurdly, in my judgment, is it replied to this argument, that the Convention could not have had this meaning, because they, in a subsequent part of the Constitution, conferred upon persons of color the right to vote, and they would not have done this, if the right was covered by the word “citizen.” I say, this is absurd, because it assumes what is directly contrary to the fact. Had there been no suffrage clause in the Constitution, the right to vote would have stood on the same footing with black men as it did with white men. The objects of the suffrage clause is not to grant, but to protect the right.

Assuming, therefore, as I think it has been clearly shown we must do, that the Convention of 1868, by declaring persons of color “ citizens,” recognized them, as belonging to that class of persons who are presumed to have all rights not specifically denied by the proper power in whom is lodged, under our system, the right to restrain them, it remains but to inquire if there is any affirmative provision denying to persons of color the right to hold office ? Nobody pretends this. It is true that under our old system negroes could not hold office, but it was not by virtue of a provision of law denying to them that specific' right, for it is a significant fact that there never has been, at any time any law in this State denying to persons of color any specific right. They were not and could not be citizens — they were persons of color, and in the denial to them of the right to be citizens was included the denial of every right not specifically, and by name, by law conferred upon them. And when they were recognized as citizens, ex vi termini, they became entitled to the exercise of every right not specifically by law denied to them, since it was formerly true that they had not these rights, not by virtue of any specific denial, but by virtue of the fact that they were not and could not be citizens. If the denial to them of the right of citizenship, ex vi termini, denied to them every right not specifically granted, surely it necessarily follows that when this bar is removed, and the right of citizenship distinctly recognized, or even conferred, they become entitled, as other citizens, to every right not specifically by law denied.

We come now to the inquiry : Is this right protected in the Constitution from infringement? We have admitted that it does not necessarily follow that one who ds a citizen has a right to exercise all the rights exercised by any citizens. We have admitted that it is in the power of the people, by proper methods, to deny to any citizen or class of citizens, any right. But that denial must be made by the proper authority.

Certain rights of citizens, the State, the people, the sovereign power, has contracted with the United States, shall be beyond their power. Such rights can only be denied after a change of the Constitution of the United States. Other rights of citizens, the people, the sovereign power, the State, has solemnly provided in the fundamental law shall be sacred from infringement by ordinary legislation, and these rights can only be denied after the Constitution of the State shall have been altered. Other rights of citizens are subject to denial by the ordinary law-making power, since the people, in their Legislature, have all rights not denied to them by the Constitution of the United States, or of the State.

Constitutional guarantees are either expressed or implied. Art. 1, Sec. 8, of the Constitution of the State, which declares that no person shall be put in jeopardy of life or limb more than once for the same offence, is an instance of an express guarantee. But there are implied guarantees which are just as inviolable as are those expressly enacted. The Constitution does not, for instance, in express terms, forbid the Legislature from adding new classes to the class of electors. It says that every male citizen twenty-one years of age, etc., shall be deemed an elector, but it does not say that none others shall be made such.

The very fact, however, that the Constitution declares certain persons entitled to vote, .is, by implication, a denial of that right to all others, and when it declares that certain things shall disqualify a citizen from exercising the right to voté, it by necessary implication, prohibits the Legislature from adding new disqualifications. So, too, if the Constitution prescribes a qualification for an officer, it by necessary implication denies to the Legislature the power to fix new and other qualifications.

“ The expression of one thing is the exclusion of others,” is a settled and sensible rule for the construction of Statutes and Constitutions.

The Constitution of 1868 provides, that no person convicted of treason, embezzlement of the public funds, malfeasance in office, crime punishable by law in the penitentiary, or bribery, shall be permitted to vote. Would it be competent for the Legislature to provide any other disqualifications ? Could it, for instance, provide, that one convicted of a mere misdemeanor shall not vote ? The same clause provides, that idiots and insane persons shall not vote. Could the Legislature provide that persons who cannot read shall not vote ? "Very clearly not. And yet there is no express provision denying to the Legislature this power, nor is there any express guarantee of this right to those who cannot read. The exercise of such a power is forbidden to the Legislature, by the very fact that the framers of the Constitution, by entering upon the subject of the qualifications of voters, by declaring that certain persons shall vote, and certain others shall not vote, have expressed the sovereign will upon the whole subject, and though there is no express denial to the Legislature of the right to add new classes, or to fix new disqualifications, yet by necessary implication the right is denied.

Precisely the same thing is true as to the right to hold office. Piad the Constitution said nothing about it, it might fairly be presumed that it was a matter of legislative discretion. But this not the case. There are special disqualifications for various officers. The Governor must have been a citizen of the United States fifteen years, of the State six years, and be thirty years of age. The Judges and the Attorney General must have been three years citizens of the State, be thirty years of age, and have practised law three years. Senators must have been citizens of the State two years, and one year a resident of the district. Now, can it be for a moment pretended, that it would be in the ¡sower of the Legislature to add more qualifications to those fixed by the Constitution. Could it, for instance, require a property qualification for either of these offices ? The bare fact, that the Constitution enters upon the subject,.and fixes any qualifications or disqualifications, is an implied prohibition to any legislative interference.

So, too, when .by section 3, article 2, of the Constitution, it is provided generally, that no person convicted of felony or larceny, before any Court of this State or the United States, shall hold office;, and when, by section 4, that no-person who is the holder of public money shall be elgible to office; and by sections 5 and 6, that no person, engaging in a duel, or who has been convicted of treason, embezzlement of the public funds, malfeasance in office, crime punishable by law with imprisonment in the penitentiary, or bribery, or who is an idiot, or insane, shall hold office, it is irresistibly implied, as it is in relation to the right of voting, that the mention of certain qualifications and disqualifications excludes all others, and it is not in the power of the Legislature to enlarge the list. All citizens, not by the Constitution prohibited, may vote; and all citizens, not by the Constitution prohibited, may hold office.

I am aware, that it is replied to this, that there are some offices, which the Constitution does not prohibit to women or to infants. For most offices, where special qualifications are used, the masculine gender is the term used to express the office; and perhaps every officer mentioned by the Constitution is expressed by a term masculine in its nature; and for most offices, it is expressly required that the holder of it shall be twenty-one years of age.

But I doubt not, there are offices which the Constitution does not deny to infants and women; and in my judgment, if the people see fit to choose them for such positions, it is not in the power of the General Assembly to prohibit it.

Nothing is more absurd, to my mind, than the idea so prevalent, and so often and so zealously insisted on, that, because the Constitution does not declare a person ineligible to an office, it follows, as a matter of course, that the offices are to be filled by that class. One must be chosen to an office before he can hold it; and the only effect of a constitutional prohibition is, that thereby - the people have restrained themselves from choosing the ineligible person.

Women are elibible to office' in the Government of the United States, except in those cases where the term describing the office is masculine, for the simple reason that sex is not made a disqualification. Yet, how rarely have women held office.

It is not required by the Constitution of this State that the Governor or Judges shall be able to read and write; yet, no great evil results from the omission. The great, and the best, protection against improper officers, is not constitutional instructions upon the right to choose particular persons, but upon the wisdom and good sense of the choosing persons.

But, to my own mind, there is a stronger argument in favor of the plaintiff in error, than any we have yet insisted on. Ineligibility to office involves, not so much the denial of a right in the individual to hold the office, as the right of the choosing power to select him. The object of constitutional restrictions is, not so much to put the individual under a ban, as to restrain the choosing power. Indeed, the very word used, “ eligible,” refers as well to the chooser as ot the chosen.

The Governor of the State is clothed by the Constitution with the power to appoint to certain offices — it is an Executive power — one the Legislature has no power to interfere with'. He is required to appoint Judges, etc. The Constitution restricts him in his appointments to certain classes. It says he shall not choose such and such persons. Is there any other limit upon his powers than the Constitution ? He, under the Constitution, has a right to appoint. Would not an Act of the Legislature, declaring he shall not appoint this or that class of persons, be an infringement of his rights ? Within the limits of the Constitution, he has a right to appoint any one he sees fit. Would not a law restricting him in his choice to a certain class, violate his rights, infringe on the Executive powers solemnly confided by the Constitution, and solemnly protected in the Constitution against legislative interference? So, too, where is the limit to the right of the people to select ? Nothing is better settled than that the people have all rights they have not denied themselves. Within the limits of the Constitution they may choose anybody. It may be a bad choice, but it is legal. There is no restraint upon them, unless it be by positive law.

The exercise of the duties of an office is not in this country as it often was in England, a privilege of the office-holder. Our theory is that offices exist for the public good, and it is the duty of one called upon to choose, to select such as all the facts show to be the most fitted. Every restriction on this power is a restriction on the rights, the natural rights, of the voter or chooser, and to make out a case of ineligibility, you restrict, not only the rights of an individual to be chosen, but of the chooser to select. If you admit that all white men have every right that is not denied them, the white voter has a right to choose anybody whom the Constitution does not declare ineligible.

One word in conclusion upon the general subject. The right of the people, if they please to choose a colored man for an office, is a necessary incident to the right to vote. The right to vote is worth but little to the colored man if he is restricted in the exercise of that right, so that ho can only vote for men of a white color. Suppose the white men in his county are all opposed to such measures as he deems necessary for the public good, the limitation of his vote to persons only of a white skin, is not only an infringement of his right to vote, solemnly guaranteed in the Constitution, but dangerous to his liberties. What is his right to vote worth if he can only cast it for those ready to legislate against him ? It is a mistaken view of human nature to suppose that, because ignorant men are not ineligible to office, that they will be elected to office. Intelligence and influence necessarily controls ignorance and dependence. There is no need for any law to aid in this control. All experience show that the strong will control the weak, no matter what is the law. True wisdom consists in adding to the power of the weak, and restraining the strong. They, the strong, the independent, the rich, are in no danger. Under all circumstances the danger is to the poor, the ignorant, the weak, and if under any system of laws, they get anything like a fair chance, they will have better luck than the poor and ignorant ever yet have experienced. It is better, even for the strong, that they shall be restrained in the exercise of power over the weak, since human selfishness is very grasping, and even a worm will at last resist.

■ We have in this State, a large class of colored people; true, they are almost universally poor and ignorant, but they form a portion of the body politic, they are subject to the laws and can only be controlled by the laws. In the end, if those laws are unfair, unjust, unequal, they will breed discontent and disorder, and it is better for the peace and good order of society that all shall have equal rights. Even then the strong, the rich and intelligent, will have incalculable advantages over the poor and the ignorant, and need have no fears.