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The persons to whom belong the rights of citizenship and the mode of acquiring and losing the same have been specified in a former article, (referring to article 46, before cited.) 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 appeal to the courts, to testify as a witness, to perform any civil function, and to keep and bear arms. All citizens are entitled to exercise all these rights, as such, unless specially prohibited by law. (Sections 1647, 1648, 1649, 1650, 1651, 1652, 1653 of the Code.)

and immunities of citizens, but it does not follow | according to their rights and status, into, 1st, that all of these different classes of citizens are citizens; 2d, residents, not citizens; 3d, aliens; entitled to hold office under the public authority 4th, persons of color." of the State because the privileges and immunities of citizens are secured to them. The State in this country, as the crown in England, is the fountain of honor and of office, and she who desires to employ any class of her citizens in her service is the best judge of their fitness and qualifications therefor. An officer of the State, as we have shown, "hath to do with another's affairs against his will and without his leave," and such officer must have the authority of the State to perform these public duties against the will of the citizen and without his leave. This authority must be conferred upon the citizen by some public law of the State from that class of her citizens which, in her judgment, will best promote the general welfare of the State. The right to have and enjoy the privileges and immunities of a citizen of the State does not confer upon him the right to serve the State in any official capacity until that right is expressly granted to him by law. Mr. Justice Curtis, in his dissenting opinion in the case of Dred Scott v. Sanford, 19 How., pp. 3 and 5, says: "So in all the States, numerous persons, though citizens, cannot vote or cannot hold office, either on account of their age or sex, or the want of the necessary legal qualifications." (Corfield v. Corvell, 4 Wash. C. C. Rep., 1 and 3, to the same point.)

The defendant, therefore, cannot legally claim any right to hold office either under the XIVth amendment of the Constitution of the United States or the constitution of this State, which make him a citizen, and guarantee unto him the privileges or immunities of a citizen, for he may well have and enjoy all the privileges and immunities of a citizen in the State without holding any office, or exercising any public or official duty under the authority of the State.

The privileges and immunities of a citizen of the State do not confer the legal right to hold office under the public authority of the State and receive the emoluments thereof. Does the public law of the State, recognized and adopted by the constitution of 1868, (known as Irwin's Code,) confer upon the defendant the legal right to hold office in this State?

The Code took effect as the public law of this State on the 1st day of January, 1863. By the 46th section thereof it is declared, "All white persons born in this State, or in any other State of this Union, who are or may become resi dents of this State, with the intention of remain ing herein; all white persons naturalized under the laws of the United States, and who are or may become residents of this State, with the intention of remaining herein; all persons who have obtained a right to citizenship under former laws; and all children wherever born whose father was a citizen of this State at the time of the birth of such children, or in case of posthumons children at the time of his death, are held and deemed citizens of this State. Persons having one-eighth or more of negro or African blood in their veins are not white persons in the meaning of this Code. The 1646th section declares, that 'Natural persons are distinguished

It will be remembered that, at the time of the adoption of the Code, in 1863, the defendant was not a citizen of this State, and was not recognized by the Code as a citizen thereof. By the 1646th section the status of the defendant is defined to be that of a person of color, and

not that of a citizen.

The revised Code, adopted by the constitution of 1868, includes the act of 1866, which declares that "all negroes, mulattoes, mestizoes, and their descendants, having one-eighth of negro or African blood in their veins, shall be known in this State as persons of color," and especially defines their legal rights, but the right to hold office is not one of them. (Revised Code, section 1661.)

It is true that since the adoption of the Code the defendant has been made a citizen, but all the legal rights conferred upon citizens by the Code were conferred upon that class of persons only who are declared and recognized by the Code as citizens of the State at the time of its adoption. When the Code declares that it shall be the right of a citizen to hold office, such right is confined to that class of persons who are recognized and declared therein to be citizens of the State, and not to any other class of persons who might thereafter become citizens. So, where the Code declares that "all citizens are entitled to exercise all their rights as such, unless prohibited by law," it is applicable to that class of persons only who were declared to be citizens of the State at that time, and not to any other class of persons who might thereafter be made citizens of the State, such as Chinese, Africans, or persons of color. The truth is that the public will of the State has never been expressed by any legislative enactment in favor of the right of the colored citizen to hold office in this State since they became citizens thereof.

Although these several classes of persons might be made citizens of the State, with the privileges and immunities of citizens, still they could not legally hold office under the authority of the State until that right shall be conferred upon them by some public law of the State, subsequent to the time at which they became citizens, so as to include them in its provisions. The public will of the State, as to the legal right of that class of her citizens to hold office, has never been affirmatively expressed; but, on the contrary, when the proposition was distinctly made in the convention which formed the present constitu

tion to confer the right upon colored citizens to hold office in this State, it was voted down by a large majority. (See Journal of Convention, p. 312.) So far as there has been any expression of the public will of the State as to the legal right of that class of citizens known as colored citizens, and since they became such, to hold office in this State, it is against that right now claimed by the defendant.

The insurmountable obstacle in the way of the defendant claiming a legal right to hold office in this State under the provisions of the Code is the fact that he was not a citizen of the State at the time of its adoption. The class of persons to which he belongs were not recognized by it as citizens, and therefore he is not included in any of its provisions which confer the right to hold office upon the class of citizens specified in the Code. The Code makes no provision whatever for colored citizens to hold office in this State; all its provisions apply exclusively to white citizens and to no other class of citizens.

hold office in the State, the other cannot; and until the State shall declare by some legislative enactment that it is her will and desire that her colored citizens shall hold office under her authority, they cannot claim the legal right to do so, for we must not forget that the State is the fountain and parent of office, and may confer or refuse to confer the right to hold office upon any class of her citizens she may think proper and expedient.

When a new class of persons are introduced into the body politic of the State and made citizens thereof, who cannot claim a common-law right to hold office therein, it is incumbent on them to show affirmatively that such right has been conferred upon them by some public law of the State since they were made citizens thereof, to entitle them to have and enjoy such right. In other words, they must show the public law of the State enacted since they became citizens thereof, which confers the legal right claimed, before they can demand a judgment of the court in favor of such legal right.

it is said that colored citizens have the right to hold office in the State, unless specially prohibited by law, it must be shown affirmatively that they had previously enjoyed that right. If they cannot show their right to hold office in the State, either under the common law, the constitution, or statutes of the State, the fact that they are not specially prohibited from exercising a right which they never had amounts to nothing, so far as investing them with the right to hold office is concerned.

The convention which framed the present All male white citizens of the State, whether State constitution, and declared persons of color native born or naturalized citizens, (having the to be citizens, could have conferred the right upon necessary legal qualifications,) have a commonthem to hold office, but declined to do so by a law right to hold office in this State; and, in orvery decided vote of that body, and went before der to deprive them of that common law right, a the people claiming its ratification upon the prohibitory statute is necessary. A naturalized ground that colored citizens were not entitled to citizen had a common-law right to hold the office hold office under it; and there can be no doubt of President of the United States; hence the prothat the people of the State voted for its ratifi-hibition in the Constitution of the United States. cation at the ballot-box with that understanding. But colored citizens of the State, who have reBut now it is contended that the defendant, cently been made such, cannot claim a commonthough a colored person, is made a citizen of the law right to hold office in the State, as no proState and of the United States, and that no en-hibitory statute is necessary to deprive them of abling act has ever been passed to allow a natu- a right which they never had under the common ralized citizen to hold office in this State when he or statute law of the State. When, therefore, possessed the other requisite qualifications prescribed by law; that the defendant, having been made a citizen of the State, is entitled to hold office in the same manner as a naturalized citizen could do. The reply is, that naturalized citizens were white persons, and as such had a commonlaw right to hold office-a right founded upon immemorial usage and custom, which has existed so long that "the memory of man runneth not to the contrary." The 1644th section of the Code simply affirms the common law as to the right of a white citizen to hold office in this State. No When and where and by what public law of such common-law right, however, can be claimed the State was the legal right to hold office therein this State in favor of persons of color to hold in conferred on the colored citizens thereof? If office. They have but recently become entitled this question cannot be answered in the affirmato citizenship, and have never held office in this tive, and the legal authority under which the State. In 1848, in the case of Cooper and Wor- right is claimed cannot be shown, then the argusham against The Mayor and Aldermen of the ment, that inasmuch as there is no special proCity of Savannah. (4 Ga. Reps, 72,) it was unani-hibition in the law against the right of colored mously held and decided by this court, that free persons of color were not entitled to hold any civil office in this State. The naturalized white citizen can claim his common-law right to hold office in this State; the colored citizen cannot claim any such common-law right, for the reason that he has never exercised and enjoyed it; and that constitutes the difference between the legal right of a naturalized white citizen to hold office in this State, and a person of color who has recently been made a citizen "since the adoption of the Code, and who is not embraced within its provisions."

The one can claim his common-law right to

citizens to hold office, falls to the ground. If there was no existing legal right to hold office to be prohibited, the fact that there is no prohibition does not confer such legal right. There was no legal necessity to prohibit that which did not exist.

It is not the business or duty of courts to make the laws, but simply to expound and enforce existing laws which have been prescribed by the supreme power of the State.

After the most careful examination of this question, I am clearly of the opinion that there is no existing law of this State which confers the right upon the colored citizens thereof to hold

office therein, and, consequently, that the defend- | with the social status, the very reverse is true. ant has no legal right to hold and exercise the That section of the constitution forever produties of the office which he claims under her hibits legislation of any character regulating authority, and that the judgment of the court or interfering with the social status. below, overruling the demurrer, should be af

firmed.

It leaves social rights and status waere it finds them It prohibits the legislature from repealing any laws in existence which protect

Intermarriage of White and Colored Persons in persons in the free regulation among themselves

Georgia.

OPINION OF THE SUPREME COURT OF THAT STATE. Charlotte Scott, plaintiff in error vs. The State of Georgia, defendant in error. Indictment for adultery and fornication, from Dougherty county. Brown, C. J., delivering the opinion. The record in this case presents a single question for the consideration and adjudication of this court: Have white persons and persons of color the right, under the constitution and laws of Georgia, to intermarry, and live together in this State as husband and wife? The question is distinctly made, and it is our duty to meet it fairly and dispose of it.

The Code of Georgia, as adopted by the new constitution, section 1707, forever prohibits the marriage relation between the two races, and declares all such marriages null and void.

With the policy of this law we have nothing to do. It is our duty to declare what the law is, not to make law. For myself, however, I do | not hesitate to say that it was dictated by wise statesmanship, and has a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full blood of either race. It is sometimes urged that such marriages should be encouraged for the purpose of elevating the inferior race. The reply is, that such connections never elevate the inferior race to the position of the superior, but they bring dov a the superior to that of the inferior. They are productive of evil and evil only, without any corresponding good.

I do not propose to enter into any elaborate discussion of the question of policy at this time, but only to express my opinion after mature consideration and reflection.

The power of the legislature over the subjectmatter, when the Code was adopted, will not, I suppose, be questioned. The legislature certainly had as much right to regulate the marriage relation, by prohibiting it between persons of different races, as they had to prohibit it between persons within the levitical degrees, or between idiots. Both are necessary and proper regulations. And the regulation now under con sideration is equally so.

But it has been urged by the learned counsel for the plaintiff in error, that the section of the Code under consideration is in conflict with the eleventh section of the first article of the constitution of this State, which declares that "the social status of the citizen shall never be the subject of legislation."

In so far as the marriage relation is connected

of matters properly termed social, and it also prohibits the enactment of any new laws on that subject in future.

As illustrations, the laws in force when the constitution was adopted left the churches in this State free to regulate matters connected with social status in their congregations as they thought proper. They could say who should enter their church edifices and occupy seats, and in what order they should be classified or seated. They could say that females should sit in one part of the church and males in another; and that persons of color should, if they attended, occupy such seats as were set apart for them. In all this they were protected by the common law of this State. The new constitution forever guarantees this protection, by denying to the legislature the power to pass any law withdrawing it or regulating the social status in such assemblages.

And I may here remark, that precisely the same protection is guaranteed to the colored churches, in the regulation of social status in their assemblages, which is afforded the whites. Neither can ever intrude upon the other, or interfere with social arrangements without their consent.

The same is true of railroad and steamboat companies and hotel keepers. By the law in existence at the time the constitution was adopted, they were obliged to furnish comfortable and convenient accommodations, to the extent of their capacity to accommodate, to all who applied, without regard to race or color. But they were not compelled to put persons of

different races or of different sexes in the same cars or in the same apartments, or seat them at the same table. This was left to their own discration. They had power to regulate it according to their own notions of prop.iety, and to classify their guests or passengers according to race or sex; and to place them at hotels in different houses or different parts of the same house; or on railroads, in different cars; or on steamboats, in different parts of the vessel; and to give them their meals at different tables. When they had made public these regulations, all persons patronizing them were bound to conform to them, and those who did not like their regulations must seek accommodations elsewhere. There was no law to compel them to group together, in social connection, persons who did not recognize each other as social equals.

To avoid collisions and strife, and to preserve peace, harmony, and good order in society, the new constitution has wisely prohibited the legislature from enacting laws compelling these companies to make new social arrangements among their patrons, or to disturb those in existence. The law shall stand as it is, says the cotution, leaving each to regulate such matters as they think best, and there shall be no legislative

interference. All shall be comfortably accom- | prohibiting all such marriages, and declaring modated, but you shall not be compelled by law them to be null and void. to force social equality, either upon your trains, your boats, or in your hotels.

The same remarks apply to the regulation of social status among families, and to the social intercourse of society generally.

This, in my opinion, is one of the wisest provisions in the constitution, as it excludes from the halls of the legislature a question which was likely to produce more unprofitable agitation, wrangling, and contention than any other subject within the whole range of their authority.

Let the judgment of the court below be affirmed.

Opinion of Attorney General Hoar as to the Ju-
risdiction of Military Commissions in Texas.
ATTORNEY GENERAL'S OFFICE,
May 31, 1869.

Hon. JOHN A. RAWLINS,

Secretary of War.

SIR: Your letter of March 24, 1869, submitting for my opinion as to proper action to be had in the premises in the case of James Weaver, a citizen of Texas, who was tried before a military commission appointed by the commanding general of the fifth military district, under authority of section 3 of the act of March 2, 1867, to provide for the more efficient government of rebel States, and found guilty of murder and sentenced to be hanged, the record having been forwarded for the action of the President, as required by section 4 of said act, and returned by him to your department upon the 1st day of February last, without any action upon the same, was received on the 26th March last.

Government has full power to regulate civil and political rights, and to give to each citizen of the State, as our Code has done, equal civil and equal political rights, as well as equal protection of the laws. But government has no power to regulate social status. Before the laws the Code of Georgia makes all citizens equal, without regard to race or color; but it does not create, nor does any law of the State attempt to enforce, moral or social equality between the different races or citizens of the State. Such equal ity does not in fact exist and never can. The God of nature made it otherwise, and no human law can produce it, and no human tribunal can The grave importance of the questions inenforce it. There are gradations and classes volved required such careful and deliberate conthroughout the universe. From the tallest arch-sideration, that, under the pressure of other angel in heaven down to the meanest reptile official duties, I have not been able, until this on earth moral and social inequalities exist, and time, to give it sufficient attention. Having must continue to exist throughout all eternity. now carefully examined it, I proceed to state the While the great mass of the conquering people conclusions to which I have arrived from the paof the States which adhered to the Union dur-pers accompanying your letter. It appears that ing the late civil strife have claimed the right James Weaver, a citizen of Bastrop county, in to dictate the terms of settlement, and have Texas, was indicted for murder in that county. maintained in power those who demand that the By request of J. J. Thornton, district judge of people of the States lately in rebellion shall ac- the second district in Texas, made to General cord to the colored race equality of civil rights, Reynolds, the commander of the fifth military including the ballot, with the same protection district, accompanied by statement that a trial under the law which is offered the white race, could not probably be had in the State courts, they have neither required of us the practice of and asking that he may be tried by the military miscegenation, nor have they claimed for the authorities, a military commission was organcolored race social equality with the white race. ized at Austin, Texas, before which, on the 17th The fortunes of war have compelled us to yield of September, 1868, and days following, Weaver to the freedmen the legal rights above men- was arraigned and tried. He was defended by tioned, but we have neither authorized nor legal counsel and found guilty, and sentenced to be ized the marriage relation between the races, nor hanged, and the question on which you wish my have we enacted laws or placed it in the power opinion seems to be this: Whether the general of the legislature hereafter to make laws regard-commanding the fifth military district had auing the social status, so as to compel our people thority to take a man from a civil power and try to meet the colored race on terms of social equal-him by military law, or, in other words, whether ity Such a state of things could never be de- a military commission in Texas, in September, sired by the thoughtful and reflecting portion of 1868, had jurisdiction over a citizen, not in the either race. It could never promote peace, quiet, naval or military service, charged with the muror social order in any State or community. No der of another citizen, and under indictment and such laws are of force in any of the northern arrest therefor. From the letter of Judge ThornStates, so far as I know, and it is supposed no ton to General Reynolds, above referred to, which considerable part of the people of any State de- is made a part of the record in this case, it apsires to see them enacted. Indeed, the most abso- pears Weaver was under indictment in the dislute and despotic governments do not attempt trict court for the second judicial district of to regulate social status by fixed laws, or to Texas for murder, and that the civil courts were enforce social equality among races or classes so badly situated and managed that if left with without their consent. them no trial could probably be had. Exceptions to the jurisdiction of the commission were filed by Weaver, who objected, firstly, that he was entitled to a trial by jury; secondly, that the Constitution of the United States provides that no person shall be twice put in jeopardy of life or limb for the same offence, that the offence

As already stated, we are of the opinion that the section of the Code which forbids intermars riages between the races is neither inconsistent with, nor is it repealed by, the section of the constitution now under consideration. It therefore stands upon the statute-book of the State forever

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and that until the people of said States should be by law admitted to representation in Congress, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same. As the State of Texas had not in September, 1868, and has not since, adopted a constitution in conformity with the provisions of the act, and has not become entitled to representation in the Congress of the United States, the act was operative in Texas at the time the military commission was organized for the trial of Weaver, and the commanding general exercised this discretion intrusted to him by 3d section, by deciding that it was necessary for the trial of an offender to organize a military commission for that purpose. If, therefore, this

with which he was charged belonged entirely to the civil courts of the State of Texas, and that he would be unable to plead the finding of the commission in bar in the district court in Bastrop county; thirdly, that before the date of the order convening the commission he was under indictment in civil courts and was under arrest to await trial therein, and that the said indictment for the same offence was still pending against him; fourthly, because the district court of Bastroy county was fully organized and prepared to pass upon all cases brought before it; fifthly, because he, the said Weaver, was a citizen, not connected with the army of the United States, and deceased was also a citizen. These exceptions were overruled by the commission. The statute of March 2, 1867, entitled "An act to provide for the more efficient government of the rebel States," declares in its preamble that no legal State gov-statute of March 2, 1867, is a constitutional and ernments or adequate protection for life or prop. erty then existed in the rebel States therein enu merated, including among them the State of Texas, and that it was necessary that peace and good order should be enforced in said States until loyal and republican State governments could be legally established: it is therefore enacted, that said rebel States should be made into military districts, and made subject to the military authority of the United States, as thereinafter prescribed; that it should be the duty of the President to assign to the command of each of said districts an officer of the army, and to detail a sufficient military force to enable such officer to perform his duties and enforce his authority in the district to which he was assigned. The 3d and 4th sections of said act are as follows:

"SEC. 3. And be it further enacted. That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of person and property; to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to try offenders; or, when in his judgment it may be necessary for the trial of offenders, he shall have power to organize military commissions or tribunals for that purpose; and all interference under the color of State author ity with the exercise of military authority under this art shall be null and void.

"SEC. 4. And be it further enacted, That all persons put under military arrest by virture of this act shall be tried without unnecessary delay, and no cruel or unusual punishment shall be inflicted; and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is approved by the officer in command of the district. And the laws and regulations for the government of the army shall not be affected by this act except in so far as they conflict with its provisions: Provided, That no sentence of death under the provisions of this act shall be carried into effect without the approval of the President."

The act also provided that its provisions should become inoperative when the States had adopted constitutions approved by Congress and senators and representatives were admitted therefrom;

valid statute, it then appears the jurisdiction of military commissions was complete, and that there is no legal obstacle to the execution of its sentence. It is obvious, in the first place, that, under the Constitution, the United States Congress has no right to subject any citizen of a State to trial and punishment by military power in time of peace; but the power to declare war is, by the Constitution, expressly vested in Congress; it has also power to suppress insurrection, and to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or in any department or office thereof. The power to declare war undoubtedly includes not only the power to commence a war, but to recognize its existence when commenced by others; to declare that there is a war, and thereupon to make provision for waging war; to determine. so far as the nation can assert and enforce its will, how long the war shall continue and when peace is restored. The Constitution has made no provision in terms for a rebellion of the magnitude of that which has occurred, involving destruction of all the legitimate and constitutional governments in the States of the Union and involving a war between those States and the national Government. But the Constitution is a frame of government, and clearly implies the endowment of that Government with all powers necessary to maintain its own existence and the vindication of its authority within the scope of its appropriate functions. When war was waged upon the United States by States of the Union as organized communities, Congress could and must recognize the existence of that war, and apply itself, by the means belonging to war, to the vindication of the national authority, the preservation of the national territory, and the restoration of a republican government, under the national Constitution, in each of the rebellious States. As was said by the Supreme Court in the Prize Cases. (2 Black, p. 673,) it is a proposition never doubted, that the belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights. The territory possessed by the rebels might lawfully and constitutionally be treated by the United States as enemies' territory. In the language of the court, in the same case, all persons residing within this territory, whose pro

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