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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 immuni The persons to whom belong the rights of ties of citizens are secured to them. The State citizenship and the mode of acquiring and in this country, as the crown in England, is the losing the same have been specified in a former fountain of honor and of office, and she who de- article, (referring to article 46, before cited.) sires to employ any class of her citizens in her Among the rights of citizens are the enjoyment service is the best judge of their fitness and of personal security, of personal liberty, private qualifications therefor. An officer of the State, property and the disposition thereof, the elective as we have shown, "hath to do with another's franchise, the right to hold office, to appeal to affairs against his will and without his leave," the courts, to testify as a witness, to perform and such officer must have the authority of the any civil function, and to keep and bear arms. State to perform these public duties against the All citizens are entitled to exercise all these will of the citizen and without his leave. This rights, as such, unless specially prohibited by authority must be conferred upon the citizen by law. (Sections 1647, 1648, 1649, 1650, 1651, some public law of the State from that class of 1652, 1653 of the Code.). her citizens which, in her judgment, will best It will be remembered that, at the time of promote the general welfare of the State. The the adoption of the Code, in 1863, the defendright to have and enjoy the privileges and im- ant was not a citizen of this State, and was not munities of a citizen of the State does not confer recognized by the Code as a citizen thereof. By upon him the right to serve the State in any the 1646th section the status of the defendant official capacity until that right is expressiy is defined to be that of a person of color, and granted to him by law. Mr. Justice Curtis, in not that of a citizen. his dissenting opinion in the case of Dred Scott The revised Code, adopted by the constitution v. Sanford, 19 How., pp. 3 and 5, says: "So in of 1868, includes the act of 1866, which declares all the States, numerous persons, though citi- that “all negroes, mulattoes, mestizoes, and their zens, cannot vote or cannot hold office, either on descendants, having one-eighth of negro or Afs account of their age or sex, or the want of the rican blood in their veins, shall be known in necessary legal qualifications.” (Corfield v. Cor. this State as persons of color," and especially vell, 4 Wash. C. C. Rep., 1 and 3, to the same defines their legal rights, but the right to hold point.)
office is not one of them. (Revised Code, secThe defendant, therefore, cannot legally claim tion 1661.) any right to hold office either under the XIVth It is true that since the adoption of the Code amendment of the Constitution of the United the defendant has been made a citizen, but all States or the constitution of this state, which the legal rights conferred upon citizens by the make him a citizen, and guarantee unto him the Code were conferred upon that class of persons privileges or immunities of a citizen, for he may only who are declared and recoghized by the well have and enjoy all the privileges and im- Code as citizens of the State at the time of its munities of a citizen in the State without hold adoption. When the Code declares that it shall ing any office, or exercising any public or official be the right of a citizen to hold office, such right duty under the authority of the State.
is confined to that class of persons who are The privileges and immunities of a citizen of recognized and declared therein to be citizens the State do not confer the legal right to hold of the State, and not to any other class of peroffice under the public authority of the State sons who might thereafter become citizens. So, and receive the emoluments thereof. Does the where the Code declares that "all citizens are public law of the State, recognized and adopted entitled to exercise all their rights as such, unby the constitution of 1868, (known as Irwin's less prohibited by law,” it is applicable to that Code,) confer upon the defendant the legal right class of persons only who were declared to be to hold office in this State?
citizens of the State at that time, and not to any The Code took effect as the public law of this other class of persons who might thereafter be State on the 1st day of January, 1863. By the made citizens of the State, such as Chinese, 46th section thereof it is declared, “ All white Africans, or persons of color. The truth is persons born in this State, or in any other State that the public will of the State has never been of ihis Union, who are or may become resi expressed by any legislativo enactment in favor dents of this State, with the intention of remain of the right of the colored citizen to hold office ing herein; all white persons naturalized under in this State since they became citizens thereof. the laws of the United States, and who are or Although these several classes of persons might may become residents of this state, with the be made citizens of the State, with ihe privileges intention of remaining herein; all persons who and immunities of citizens, still they could not have obtained a right to citizenship under former legally hold office under the authority of the laws; and all children wherever born whose State until that right shall be conferred upon father was a citizen of this State at the time of them by some public law of the State, subsethe birth of such children, or in case of posthu- quent to the time at which they became citizens, mons children at the time of his death, are held so as to include them in its provisions. The puband deemed citizens of this State. Persons lic will of the State, as to the legal right of that having one-eighth or more of negro or African class of her citizens to hold office, has never been blood in their veins are not white persons in affirmatively expressed; but, on the contrary, the meaning of this Code. The 1646th section when the proposition was distinctly made in the declares, that Natural persons are distinguished Iconvention wbich formed the present constitu
tion to confer the right upon colored citizens to hold office in the State, the other cannot; and hold office in this State, it was voted down by a until the State shall declare by some legislative large majority. (See Journal of Convention, p: enactment that it is her will and desire that her 312.) So far as there has been any expression of colored citizens shall hold office under her authorthe public will of the State as to the legal right ity, they cannot claim the legal right to do so, for of that class of citizens known as colored citi- we must not forget that the State is the fountain zens, and since they became such, to hold office and parent of office, and may confer or refuse to in this State, it is against that right now claimed confer the right to hold office upon any class of by the defendant.
her citizens she may think proper and expedient. The insurmountable obstacle in the way of the When a new class of persons are introduced defendant claiming a legal right to hold office in into the body politic of the State and made citithis State under the provisions of the Code is the zens thereof, who cannot claim a common-law fact that he was not a citizen of the State at the right to hold office therein, it is incumbent on time of its adoption. The class of persons to them to show affirmatively that such right has which he belongs were not recognized by it as been conferred upon them by some public law of citizens, and therefore he is not included in any the State since they were made citizens thereof, of its provisions which confer the right to hold to entitle them to have and enjoy such right. In office upon the class of citizens specified in the other words, they must show the public law of the Code. The Code makes no provision whatever State enacted since they became citizens thereof, for colored citizens to hold office in this State; which confers the legal right claimed, before they all its provisions apply exclusively to white citi can demand a judgment of the court in favor of zens and to no other class of citizens.
such legal right. 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 re
But 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 pre- it is said that colored citizens have the right scribed by law; that the defendant, having been to hold office in the State, unless specially pro-, made a citizen of the State, is entitled to hold bibited by law, it must be shown affirmatively office in the same manner as a naturalized citizen that they had previously enjoyed that right. If could do. The reply is, that naturalized citizens they cannot show their right to hold office in the were white persons, and as such had a common. State, either under the common law, the constilaw right to hold office—a right founded upon tution, or statutes of the State, the fact that they immemorial usage and custom, which has existed are not specially prohibited from exercising a so long that "the memory of man runneth not to right which they never had amounts to nothing, the contrary.”. The 1644th section of the Code so far as investing them with the right to hold simply affirms the common law as to the right of office is concerned. 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 bat 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 citizens to hold office, falls to the ground. If persons of color were not entitled to hold any there was no existing legal right to hold office civil office in this State. The naturalized white to be prohibited, the fact that there is no prohicitizen can claim his common-law right to hold bition does not confer such legal right. There office in this State; the colored citizen cannot was no legal necessity to prohibit that which did claim any such common-law right, for the rea not exist. son that he has never exercised and enjoyed it; It is not the business or duty of courts to and that constitutes the difference between the make the laws, but simply to expound and enlegal right of a naturalized white citizen to hold force existing laws which have been prescribed office in this State, and a person of color who has by the supreme power of the State. recently been made a citizen "since the adoption After the most careful examination of this of the Code, and who is not embraced within its question, I am clearly of the opinion that there provisions."
is no existing law of this State which confers the The one can claim his common-law right to right upon the colored eitizens 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 pro. duties 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 It leaves social rights and status waere it firmed.
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.
of matters properly termed social, and it also
probibits the enactment of any new laws on OPINION OF THE SUPREME COURT OF THAT STATE. that subject in future. Charlotte Scott, plaintiff in error vs. The State of Geor
As illustrations, the laws in force when the gia, defendant in error. Indictment for adultery and constitution was adopted left the churches in fornication, from Dougherty county.
this State free to regulate matters connected Brown, C. J., delivering the opinion. with social status in their congregations as
The record in tis case presents a single ques- they thought proper. They could say who tion for the consideration and adjudication of should enter their church edifices and occupy this court: Have white persons and persons of seats, and in what order they should be classicolor the right, under the constitution and laws fied or seated. They could say that females of Georgia, to intermarry, and live together in should sit in one part of the church and males this state as husband and wife? The question in another; and that persons of color should, if is distinctly made, and it is our duty to meet it they attended, occupy such seats as were set fairly and dispose it.
apart for them. In all this they were protected The Code of Georgia, as adopted by the new by the common law of this State. The new conconstitution, section 1707, forever prohibits the stitution forever guarantees this protection, by marriage relation between the two races, and denying to the legislature the power to pass declares all such marriages null and void. any law withdrawing it or regulating the social
With the policy of this law we have nothing status in such assemblages. to do. It is our duty to declare what the law And I may here remark, that precisely the is, not to make law. For myself, however, I do same protection is guaranteed to the colored not hesitate to say that it was dictated by wise churches, in the regulation of social status in statesmanship, and has a broad and solid foun- their assemblages, which is afforded the whites. dation in enlightened policy, sustained by sound Neither can ever intrude upon the other, or reason and common sense. The amalgamation interfere with social arrangements without their of the races is not only unnatural, but is always consent. productive of deplorable results. Our daily ob The same is true of railroad and steamboat servation shows us that the offspring of these companies, and hotel keepers. By the law in unnatural connections are generally sickly and existence at the time the constitution was effeminate, and that they are inferior in physical adopted, they were obliged to furnish comfortadevelopment and strength to the full blood of ble and convenient accommodations, to the either race. It is sometimes urged that such extent of their capacity to accommodate, to all marriages should be encouraged for the purpose who applied, without regard to race or color. of elevating the inferior race. The reply is, that But they were not compelled to put persons of such connections never elevate the inferior race different races or of different sexes in the same to the position of the superior, but they bring cars or in the same apartments, or seat them at dor, a the superior to that of the inferior. They the same table. This was left to their own disare productive of evil and evil only, without any crətion. They had power to regulate it accordcorresponding good.
ing to their own notions of prop.iety, and to I do not propose to enter into any elaborate dis- classify their guests or passengers according to cussion of the question of policy at this time, but race or sex; and to place them at hotels in difonly to express my opinion after mature consid- ferent houses or different parts of the same house; eration and reflection,
or on railroads, in different cars; or on steam. The power of the legislature over the subject- boats, in different parts of the vessel; and to matter, when the Code was adopted, will not, give them their meals at different tables. When I suppose, be questioned. The legislature cer- they had made public these regulations, all pertainly had as much right to regulate the marriage sons patronizing them were bound to conform to relation, by prohibiting it between persons of them, and those who did not like their reguladifferent races, as they had to prohibit it be- tions must seek accommodations elsewhere. tween persons within the levitical degrees, or There was no law to compel them to group tobetween idiots. Both are necessary and proper gether, in social connection, persons who did regulations. And the regulation now under con not recognize each other as social equals. sideration is equally so.
To avoid collisions and strife, and to preserve But it has been urged by the learned counsel peace, harmony, and good order in society, the for the plaintiff in error, that the section of the new constitution has wisely prohibited the legisCode under consideration is in conflict with the lature from enacting laws compelling these comeleventh section of the first article of the con- panies to make new social arrangements among stitution of this state, which declares that "the their patrons, or to disturb those in existence. social status of the citizen shall never be the The law shall stand as it is, says the coutu. subject of legislation."
tion, leaving cach to regulate such matters as In so far as the marriage relation is connected 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, Let the judgment of the court below be your boats, or in your hotels.
affirmed. The same remarks apply to the regulation of social status among families, and to the social Opinion of Attorney General Hoar as to the Juintercourse of society generally,
risdiction of Military Commissions in Texas. This, in my opinion, is one of the wisest pro
ATTORNEY GENERAL'S OFFICE, visions in the constitution, as it excludes from
May 31, 1869. the halls of the legislature a question which was Hon. John A. RAWLINS, likely to produce more unprofitable agitation,
Secretary of War. wrangling, and contention than any other subject SIR: Your letter of March 24, 1869, submit. within the whole range of their authority. ting for my opinion as to proper action to be had
Government has full power to regulate civil in the premises in the case of James Weaver, a and political rights, and to give to each citizen citizen of Texas, who was tried before a military of the State, as our Code has done, equal civil commission appointed by the commanding genand equal political rights, as well as equal pro- eral of the fifth military district, under authority tection of the laws. But government has no of section 3 of the act of March 2, 1867, to propower to regulate social status. Before the laws vide for the more efficient government of rebel the Code of Georgia makes all citizens equal, States, and found guilty of murder and sentenced without regard to race or color; but it does not to be hanged, the record having been forwarded create, nor does any law of the State attempt to for the action of the President, as required by enforce, moral or social equality between the dif. section 4 of said act, and returned by him to ferent races or citizens of the State. Such equal your department upon the 1st day of February ity does not in fact exist and never can. The last, without any action upon the same, was reGod of nature made it otherwise, and no human ceived on the 26th March last. 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 wxamined 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 ihat 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 banged, 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, sires 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. ExcepAs already stated, we are of the opinion that tions to the jurisdiction of the commission were the section of the Code which forbids intermars filed by Weaver, who objected, firstly, that he riages between the races is neither inconsistent was entitled to a trial by jury; secondly, that with, nor is it repealed by, the section of the con- the Constitution of the United States provides stitution now under consideration. It therefore that no person shall be twice put in jeopardy of stands upon the statute-book of the State forever life or limb for the same offence, that the offence
with which he was charged belonged entirely to and that until the people of said States should be the civil courts of the State of Texas, and that by law admitted to representation in Congress, he would be unable to plead the finding of the any civil governments which may exist therein commission in bar in the district court in Bas- shall be deemed provisional only, and in all retrop county; thirdly, that before the date of the spects subject to the paramount authority of the order convening the commission he was under United States at any time to abolish, modify, indictment in civil courts and was under arrest control, or supersede the same. As the State of to await trial therein, and that the said indict- Texas had not in September, 1868, and has not ment for the same offence was still pending against since, adopted a constitution in conformity with him; fourthly, because the district court of Bas- the provisions of the act, and has not become troy county was fully organized and prepared to entitled to representation in the Congress of the pass upon all cases brought before it; fifthly, be- United States, the act was operative in Texas at cause he, the said Weaver, was a citizen, not con- the time the military commission was organized nected with the army of the United States, and for the trial of Weaver, and the commanding deceased was also a citizen. These exceptions general exercised this discretion intrusted to him were overruled by the commission. The statute by 3d section, by deciding that it was necessary of March 2, 1867, entitled "An act to provide for for the trial of an offender to organize a military the more efficient government of the rebel States," commission for that purpose. If, therefore, this 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. valid statute, it then appears the jurisdiction of erty then existed in the rebel States therein enu military commissions was complete, and that merated, including among them the State of there is no legal obstacle to the execution of its Texas, and that it was necessary that peace and sentence. It is obvious, in the first place, that, good order should be enforced in said States until under the Coustitution, the United States Conloyal and republican State governments could gress has no right to subject any citizen of a State be legally established: it is therefore enacted, to trial and punishment by military power in that said rebel States should be made into mili- time of peace; but the power to declare war is, by tary districts, and made subject to the military the Constitution, expressly vested in Congress; it authority of the United States, as thereinafter has also power to suppress insurrection, and to prescribed; that it should be the duty of the make all laws necessary and proper for carrying President to assign to the command of each of into execution all the powers vested by the Consaid districts an officer of the army, and to detail stitution in the Government of the United States, a sufficient military force to enable such officer or in any department or office thereof. The to perform his duties and enforce his authority power to declare war undoubtedly includes not in the district to which he was assigned. The only the power to commence a war, but to 30 and 4th sections of said act are as follows: recognize its existence when commenced by
"Sec. 3. And be it further enacted. That it others; to declare that there is a war, and shall be the duty of each officer assigned as thereupon to make provision for waging war; aforesaid to protect all persons in their rights of to determine, so far as the nation can assert and
property; suppress insurrection, enforce its will, how long the war shall continue disorder, and violence, and to punish, or cause and when peace is restored. The Constitution to be punished, all disturbers of the public has made no provision in terms for a rebellion of peace and criminals; and to this end he may the magnitude of that which has occurred, inallow local civil tribunals to take jurisdiction volving destruction of all the legitimate and conof and to try offenders; or, when in his judg. stitutional governments in the States of the ment it may be necessary for the trial of offend- Union and involving a war between those States ers, he shall have power to organize military and the national Government. But the Consticommissions or tribunals for that purpose; and tution is a frame of government, and clearly all interference under the color of State author implies the endowment of that Government with ity with the exercise of military authority under all powers necessary to maintain its own existthis art shall be null and void.
ence and the vindication of its authority within "Sec. 4. And be it further enacted, That all the scope of its appropriate functions. When persons put under military arrest by virture of war was waged upon the United States by States this act shall be tried without unnecessary de- of the Union as organized communities, Conlay, and no cruel or unusual punishment shall gress could and must recognize the existence be inflicted; and no sentence of any military of that war, and apply itself, by the means becommission or tribunal hereby authorized, affect. longing to war, to the vindication of the naing the life or liberty of any person, shall be tional authority, the preservation of the national executed until it is approved by the officer in territory, and the restoration of a republican command of the district. And the laws and government, under the national Constitution, regulations for the government of the army in each of the rebellious States. As was said shall not be affected by this act except in so far by the Supreme Court in the Prize Cases. (2 as they conflict with its provisions: Provided, Black, p. 673,) it is a proposition never doubted, That no sentence of death under the provisions that the belligerent party who claims to be sovof this act shall be carried into effect without creign may exercise both belligerent and sovethe approval of the President."
reign rights. The territory possessed by the The act also provided that its provisions should rebels might lawfully and constitutionally be become inoperative when the States had adopted treated by the United States as enemies' territory: constitutions approved by Congress and senators In the language of the court, in the same case, all and representatives were admitted therefrom; 1 persons residing within this territory, whose pro