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 overruled 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 various questions made as to the testimony. One witness testified that the defendant, White, was reputed in the neighborhood 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 person of color; that he subsequently posted the lists in a public place, and that they had remained there two or three weeks, without any application having been made to him to have that letter "C" erased or changed. It did not appear, however, 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, they would have corrected it; in other words, that it was the part or the duty of the officer at all to make that entry. At least it has not so been made to appear to us. This evidence was objected to by the defence, 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 introduce 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 a word in it as to whether White was a white man or black man, it gave no indication as to his color; but on the back of it there was an entry, by a person who purported to be an examining physician, that White was a mulatto. The witness swore at first that he thought White signed the paper, but swore 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 York; the other 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 practicing physician, and that he had studied the science of ethnology; that that science taught men the rules by which the race of a man was ascertained, and this witness gave his opinion upon the point. The court admitted his opinion, that White was a person of color, he was 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, deposing 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 which it will deliver in this case, but not upon the reasons upon which this judgment is founded. The court all agree that the judgment in the court below ought to be reversed, this court being unanimously of opinion that the court below erred in various of its rulings on the trial 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 overruling 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 agree in the decision which it makes the principle upon which it puts the case which it decides; and as my brother Warner, whilst he agrees to the general judgment, puts his opinion upon one set of grounds, and my brother the chief justice puts his upon another, while I put mine upon a third, we are unable to agree upon a statement of the general principles upon which we put our judgment. Hence, under the statute, we shall each give a statement 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 I myself hold that the court below erred. As this is a case of a good deal of public importance, involving not only the rights of the defendant and this plaintiff in error, but of a very large portion of the people of this State, and one in which there is a great deal of interest taken, I have reduced to writing, in detail, my opinion; and I will preface the reading of the judgment of the whole court and of the majority of the court with some written remarks, preferring to do that rather than make a parol introduction. Whatever may 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 in the doctrine that the constitution and frame of civil government in existence in this State on the 1st of January, 1861, with all its disabilities and restrictions, was totally submerged in the great revolution which from 1861 to 1865 swept over the State. Early in June, 1865, the gov- | 1867, the ancient constitution of the State or ernor of 1860 was in prison at Washington, and any of its legal or political disabilities or disthere was not in the whole State a single civil qualifying distinctions upon persons of color, officer in the exercise of the functions of his were of force, then the convention itself was iloffice. legal, the present state government is illegal, The whole body lately acting had been chosen this court is illegal? His honor the chief justice under the laws of the Confederate States, and the has his proper place in the executive chair, my incumbents of 1860 had all either died or resign-respected associate and myself are private citied or renounced their positions as officers under the Consitution of the United States, by swearing fealty to the confederacy and repudiating the Government of the Union. zens, the plaintiff in error is a slave, and the whole political history of the State, since the imprisonment of Governor Brown, in June, 1865, a gigantic illegality. The people of the State were, in the language I am aware that a very large class of our of the President, without civil government of any most intelligent people so at this moment honkind-in anarchy. The State, as a State of the estly believe: to them this argument is not difederal Union, still existed, but without any rected. But it seems to me that to a judge, holdframe of civil government regulating, restraining his office under the present State government, ing, and directing the exercise of its functions. forming an essential part of its machinery, these From that time until the present State govern- views must be of overwhelming force. If he ment went into operation, the government of the assumes the power to decide at all, he must, it State was, with more or less completeness, in the seems to me, base his judgment upon principles hands of the military authorities of the United which do not, if adopted in his own case, utStates, and the entire ancient civil polity of the terly subvert his own authority. State was totally ignored. Directly in the teeth I make these remarks with the greatest defof the old constitution, the people of color were erence to the integrity and to the sound legal recognized as freemen, and as entitled to equal acumen of my associates. Honest men see legal and political rights with the whites. The things in different lights, and it is as presumpconvention of 1867 met under the laws of the tuous as it is uncharitable for one man to set up United States, and was elected and composed in his convictions as the necessary guide of the contotal disregard of all the provisions and pre-science of another. These are my convictions, sumptions, 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, than that by the whole theory then acted upon they were recognized as forming an integral part of the sovereign people then assembled in convention to form for their common benefit a constitution and frame of civil government. and as a matter of course I must act upon them, and accordingly, under the rules prescribed by the statute, I announce, as the general principles controlling my judgment in this case, the following: By the whole court: 1. 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 in a public place, and that no application had been made to have the said "C" erased, is no evidence that the person is a colored person, it not being shown that the person knew of the entry and that it was the subject of correction. Such being the facts of the case, it appears to me that this court, deriving its whole authority from the constitution then framed, and sworn to support it, is, from the very nature of the case, absolutely prohibited from recognizing, as then 2. Although a copy of a paper proven to be or now in force, either the constitution of 1860 beyond the jurisdiction of the court is good or 1865, or any of the legal or political disabili-secondary evidence of its contents, yet it must ties or distinctions among the people dependent upon them or either of them. The convention met under the laws of the United States to form a constitution for a people without civil government. be shown that the original was duly executed. 3. 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 mulatto, is no evidence, unIt had nothing to repeal, nothing to modify, less it be proven that the person signed the nothing to grant. None of the old constitutions paper after the entry on it was made by the of the State were at the time in operation-the physician, and with knowledge of the entry and convention met under entirely new ideas and with intent to adopt it, or that he used the paper new presumptions. It represented a new peo-after the entry was made with a knowledge that ple-a people among whom slavery had ceased, such entry was there. and among whom black people as well as white were recognized as forming part of the political society, and entitled to equal participation in its rights, privileges, and immunities. 4. 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 It is not necessary, for the purposes of this ar- physician is an expert, he must give his present gument, that this theory shall be proven to have opinion, and if not, he must state the facts upon been a legal one under the Constitution of the which he bases his opinion. Whether or not United States. It is sufficient to state that it is one is a person of color, that is, has African true as a fact, and that the present state govern-blood in his veins, is matter of opinion, and a ment is based upon it. witness may give his opinion, if he states the If, when the convention met in December, facts upon which it is based. But whether the fact that he has one-eighth or more of such blood be matt of opinion or not, query? 5. One who testifies that he has studied the science of ethnolo'y may give his opinion as an expert on the question of race. Its weight is for the jury. Pedigree, relationship, and race may be proven by evidence of reputation among those who know the person whose pedigree or race is in question. The whole court agree upon those propositions. 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 face, 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 to have oneeighth or more of African blood he was ineligible to office in this State. 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 mearing must prevail. 5th. By the 1648th and 1649th sections oi Trwin's Revised Code, it is expressly declared, that among the rights of citizens is the right to hold office, and that all citizens are entitled to exercise all their rights as such, unless expressly 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 1 and section 2 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 colored Whilst I agree that the Code of Georgia-the person of the right thus guaranteed, since it is law of Georgia, as separate from the constitu- a settled rule that it is not in the power of the tion does make persons of color eligible to legislature to divest a right or change a constioffice, my opinion is that eligibility is guaran-tutional guaranty by altering the legal meaning teed by the constitution of the State; and I announce these propositions as the general principles upon which my opinion is based: 1st. The constitution of Georgia, known as the constitution of 1868, is a new constitution, made by and formed for a people who at the time were by the facts of the case and by the laws of the United States without any legal civil government; and as the people of Georgia, without regard to past political distinctions, and without regard to distinctions of color, participated on equal terms in the election for the convention and in its composition and deliberations, as well as in the final ratification of the constitution it framed, in the construction of that constitution, and in the investigation of what rights it guarantees or denies, such distinctions are equally to be ignored. of the word by which that guaranty 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 principal is of less dignity or rights than the agent. 9th. There being in the constitution of 1868 various special 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, under the rule that the expression, &c., of one thing is the exclusion of others, persons of color electors 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 constitu 2d. The rights of the people of this State, white and black, are not granted to them by the constitution thereof. The object and effect of that instrument is not to give, but to restrain, deny, regulate, and guarantee rights; and all persons recognized by that constitution as citi-tion of 1868 recognized them as citizens, the zens of the State have equal legal and political rights, except as otherwise expressly declared. 3d. It is the settled and uniform sense of the word "citizen," when used in reference to the citizens of the several States of the United States and to their rights as such citizens, 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, covering the particular person, or class of persons, whose rights are in question. 4th. Words used in a statute or constitution have their ordinary signification, unless they be right to vote and to hold office, except as otherwise provided by the constitution, was, ex vi termini, also guaranteed to them. 11th. 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 there must be such a state of affairs as established 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 Section 1649 declares that "All citizens are entitled to exercise all their rights as such unless specially prohibited by law." can have, except such as they have conferred | appeal to the courts, to testify as a witness, to upon the United States, or on some department perform any civil function, and to keep and of the State government, or have expressly de- bear arms.' nied to themselves by their constitution; and as the right to select a public officer is a political right, the people, or that branch of the government clothed by the constitution with the power to choose, may select whomsoever it will, unless the right to choose a particular person or class of persons is expressly taken away by the constitution. Chief Justice Brown then read from his writ-nals, and persons non compos mentis, from exerten opinion, as follows: Section 1650 prohibits females from exercising the elective franchise or holding civil office. Section 1651 prohibits minors from the exercise of civil functions till they are of legal age. Sections 1652 and 1653 prohibit certain crimi cising certain rights of citizens. The view which I take of the rights of the Article 3, chapter 1, title 1, part 2, of the Code, parties litigant in this case, under the Code of defines the rights of the 4th class of natural perGeorgia, renders it unnecessary for me to enter sons, designated as persons of color, giving them into an investigation of the question, whether the right to make contracts; sue and be sued, the XIVth amendment of the Constitution of give evidence, inherit, purchase and sell properthe Uni ed States, or the second section of the ty; and to have marital rights, security of perfirst article of the constitution of Georgia, which son, estate, &c., embracing the usual civil rights in substance is identical with the XIVth amend-of citizens, but does not confer citizenship. Thus ment, confers upon colored citizens the right to the Code stood prior to its adoption by the new hold office. If the respondent in this case acquires constitution. the right by grant found in either of the said Constitutions, or in the Code of this State, 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 9th article of the constitution of this State adopts, in subordination to the Constitution of the United States and the laws and treaties made in pursuance thereof, and in subordination to the said constitution of this State, the "body of laws known as the Code of Georgia, and the acts amendatory thereof, which said Code and acts are embodied in the printed book known as Irwin's Code," 'except so much of the said several statutes, Code, and laws, as may be inconsistent with the supreme law herein recognized." The Code, section 1646, classifies natural persons into four classes: 1st, citizens; 2d, residents; 3d, aliens; 4th, persons of color. As already shown, it was adopted in subordination to the constitution, and must yield to the fundamental law whenever in conflict with it. In so far as the Code had conferred rights on the colored race, there is no conflict and no repeal. The constitution took away no right then possessed by them under the Code, bt it enlarged their rights, as defined in the Code, by conferring upon them the right of citizenship. It transferred them from the 4th class of natural persons, under the above classification, who were denied citizenship by the Code, to the 1st class, as citizens. The 46th 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 46 of the Code as greatly to enlarge the class of citizens; but it repealed no part of section 1648, which defines the rights of citizens. Section 46 of the Code declares that all white persons born in this State, or in any other State of this Union, who are or may become residents It did not undertake to define the rights of a of this State with the intention of remaining citizen. It left that to the legislature, subject herein; all white persons naturalized under the to such guarantees as are contained in the conlaws of the United States, and who are or may stitution itself, which the legislature cannot take become residents of this State with the inten-away. It declares expressly that no law shall tion of remaining herein; all persons who have be made or enforced which shall "abridge the obtained a right to citizenship under former privileges or immunities of citizens of the Unilaws, and all children, wherever born, whose ted States or of this State." It is not necessary father was a citizen of this State at the time of to the decision of this case to inquire what are the birth of such children, or in case of posthu- the "privileges and immunities" of a citizen mous children at the time of his death, are held which are guaranteed by the XIVth amendment and deemed citizens of this State. to the Constitution of the United States and by the constitution of this State. Whatever they may be, they are protected against all abridg ment by legislation. This is the full extent of the constitutional guaranty. All rights of the citizen not embraced within these terms, if they do not embrace all, are subject to the control of the legislature. By the Code the distinction is therefore clearly drawn between citizens who are white persons and persons of color. In other words, none are citizens under the "printed book known as Irwin's Code" but white persons. Having specified the class of persons who are citizens, the Code proceeds, in section 1648, to define some of the rights of citizens, as follows: "Among the rights of citizens are the enjoyment of personal security, of personal liberty, private property and the disposition thereof, the elective franchise, the right to hold office, to Whether the "privileges and immunities" of the citizen embrace political rights, 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 constitution of Georgia, and is beyond the control of legislation. If not, that right is subject to the | reside. No State shall make or enforce any law control of the legislature, as the popular voice which shall abridge the privileges or immunities may dictate; and in that case the legislature of citizens of the United States.' 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 the XIVth amendment has gone, but no further. An authoritative construction of the XIVth 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 immunities," are protected against legislative abridgment by the fundamental law of the Union. Those not so embraced, unless included within some other constitutional guarantee, are subject to legislative action. These same rights which the XIVth 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 the State, made in conformity to the reconstruction acts of Congress. Whatever may or may not be the privileges and immunities guaranteed to the colored race by the Constitution of the United States and of this State, it cannot be questioned that both Constitutions make them citizens. And I think it very clear that the Code of Georgia, upon which alone I base this opinion, which is 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 erroneous, and I concur in the judgment of reversal. DISSENTING OPINION OF JUDGE HIRAM WARNER. 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 superior court of Chatham county, 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, under the constitution and laws thereof? The XIVth 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 | 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 laws 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 XIVth amendment and the adoption and ratification of the constitution of this State in 1868, the defendant became (notwithstanding his color and African blood) a citizen of the United States and of this State, and is entitled to have all the privileges and immunities of a citizen. Does the fact that the defendant was made a citizen of the State, with all the privileges or immunities of a citizen thereof, confer upon him the legal right to hold office in this State as such citizen? When we take into consideration the definition and object of creating an office, and by what authority it is conferred upon a citizen, the distinction between the privileges and immunities of a citizen, as such, and his right to hold office, will be at once apparent. It will be seen that the privileges and immunities of a citizen, as such, is one thing, and that his legal right to hold office as such citizen, under the authority of the State, is another and quite a different question. What is an office? "An office," says Bacon, "is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it. An officer is one who is lawfully invested with an office. It is said that the word officium principally implies a duty, and in the next 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, that 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 et possint officis in intendre, 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's Ab., 270, title Offices and Officers.) Blackstone says, the king, in England, is the fountain of honor and of office, and the reason given is, that the law supposes 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 carry, in the eye of the law, an honor along with them, because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them." (1 Bl. Com., 271, 272.) Officers, says Blackstone, have a right to exercise a public. or private employment, and to take the fees and emoluments thereunto belonging, and are also incorporeal hereditaments. (2 Bl. Com., 36.) All citizens of the State, whether white or colored, male or female, minors or adults, idiot or lunatic, are entitled to have all the privileges |