306 



GEORGIA. 



which from 1861 to 1865 swept over the State. 



. . . The convention of 1607 met under the 

 laws of the United States, and was elected and 

 composed in total disregard of all the pro- 

 visions and presumptions, qualifications, dis- 

 qualifications, and distinctions, of the old organ- 

 ization. The black people participated in its 

 election and 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 conven- 

 tion to form for their common benefit a con- 

 stitution and frame of civil government. Such 

 being the facts of the case, it appears to me 

 that this court, deriving its 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 or now in force, either the constitution 

 of 1860 or 1865, or any of the legal or political 

 disabilities or distinctions among the people, 

 dependent upon them or either of them." 



lie then announced his opinion that the right 

 of the negro to hold office was guaranteed by 

 the new constitution of the State, and laid 

 down the following as the "general principles" 

 on which that opinion was based : 



1. The constitution of Georgia, known as the con- 

 stitution 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 peo- 

 ple of Georgia, without regard to past political dis- 

 tinctions, 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 m 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. 



2. 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 guar- 

 antee rights ; and all persons recognized by that con- 

 stitution as citizens of the State have equal legal and 

 political rights, except as otherwise expressly de- 

 clared. 



3. It is the settled and uniform sense of the word 

 " citizen," when used in reference to the citizens of 

 the separate States of the United States, and to their 

 rights as such citizens, that it describes a person en- 

 titled to every right, legal and political, enjoyed by 

 any person in that State, unless there be some ex- 

 press exception, made by positive law, covering the 

 particular person, or class of persons, whose rights 

 are inquestion. 



4. Words used in a statute, or constitution, have 

 their ordinary signification, unless they be words of 

 art, when they have the sense placed upon them by 

 those skilled in the art, or unless their meaning be 

 defined and fixed by law in which latter case the 

 legal meaning must prevail. 



5. By the 1648th and 1649th sections of Irwin'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 adopted 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, 



6 Article 1st and section 2d 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 adopt- 

 ed 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 resi- 

 dent in this State is, by that section of the constitu- 

 tion, guaranteed eligibility to office, except when 

 otherwise prohibited. 



V. Nor would the repeal of those sections of the 

 code, or their alteration, deprive a colored person of 

 the right thus guaranteed. Since it is a settled rule 

 that it is not in the power of the legislature to divest 

 a right or change a constitutional guarantee by alter- 

 ing the legal meaning of the word by which that 

 guarantee was made. 



8. 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. 



9. There being in the constitution of 1868 various 

 special disqualifications of electors for particular of- 

 fices, and four separate sections detailing disqualifi- 

 cations for any office, and a black skin not being 

 mentioned as one of these disqualifications, under the 

 rule that the expression, etc., of one thing, is the ex- 

 clusion of others, persons of color, electors, are not 

 disqualified from holding office. 



10. There never has been in this State, at any pe- 

 riod 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 per- 

 sons of color, and these rights were denied them by 

 declaring that they were not and could not be citi- 

 zens of the State ; and when article 1st, section 2d of 

 the constitution of 1868, recognized them as citizens, 

 the right to vote and to hold office, except as other- 

 wise provided by the constitution, was, ex vi termini, 

 also guaranteed to them. 



11. Ineligibility to office involves not only the de- 

 nial 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 ineligibihty, there must be such a state of af- 

 fairs as established not only the want of power to be 

 chosen, but a denial of power in the selecting power 

 to choose. 



12. The people of a State, in their collective capa- 

 city, have every right a political society can have, 

 except such as they have conferred upon the United 

 States, or some department of the State government, 

 or have expressly denied to themselves by their con- 

 stitution ; and as the right to select a public officer is 

 a political right, the people of that branch of the 

 government clothed by the constitution with the 

 power to choose, may select whomsoever it will, un- 

 less the right to choose a particular person, or class 

 of persons, is expressly taken away by the constitu- 

 tion. 



Chief^ Justice Brown based his opinion en- 

 tirely on the body of laws known as Irwin's 

 Code, which had been adopted as the law of 

 the State, so far as it was not inconsistent* 

 with the constitution of Georgia, or that of 

 the United States. That code had divided the 

 inhabitants of the State into four classes : citi- 

 zens, residents, aliens, and colored persons; 

 and on citizens only had it conferred the right 

 to hold office. It had provided that "all citi- 

 zens are entitled to exercise all their rights as 

 such unless specially prohibited by law," and 

 among those rights, that of holding office was 

 enumerated. The judge then argued that the 

 fourteenth amendment of the Federal Consti- 

 tution and the section of the State constitution 



