GEORGIA. 



307 



which declared that all persons born or natu- 

 ralized in the United States, and resident in 

 the State, were citizens of the State and en- 

 titled to all the privileges and immunities of 

 citizens, simply transferred negroes to the cate- 

 gory of citizens in the classification of the code, 

 and clothed them with all the incidents of that 

 new position. It was not necessary, he said, 

 to inquire whether the privileges and immuni- 

 ties guaranteed to the colored race by the con- 

 stitution of the State as well as that of the United 

 States included political rights ; " it cannot be 

 questioned that both constitutions make them 

 citizens. And I think," he concluded, " that it 

 is very clear that the Code of Georgia upon 

 which alone I base this opinion, which is bind- 

 ing upon all her inhabitants while of force, 

 confers upon all her citizens the right to hold 

 office, unless they are prohibited by some pro- 

 vision found in the code itself. I find no such 

 prohibition in the code affecting the rights of 

 this respondent. I am, therefore, of the opin- 

 ion that the judgment of the court below is 

 erroneous, and I concur in the judgment of 

 reversal." 



Mr. Justice "Warner, in dissenting from the 

 decision of the court, contended that the fact 

 that the defendant had been made a citizen of 

 the State, and invested with all the privileges 

 and immunities of a citizen, did not give him the 

 right to hold office. " The privileges and im- 

 munities of a citizen as such," he said, "are 

 one thing, and his legal right to hold office as 

 such citizen under the authority of the State 

 is another and quite a different question." 

 The authority to hold office must be conferred 

 upon the citizen by some public law of the 

 State, selecting those persons for that dignity 

 "from that class of her citizens which in her 

 judgment will best promote the general wel- 

 fare of the State." He therefore concludes 

 that the provisions of the State and Federal 

 Constitutions guaranteeing to persons of color 

 the privileges and immunities of citizens does 

 not confer upon them the right to hold office. 

 He then takes up the Code of Georgia and 

 shows that it specifies certain classes of per- 

 sons whom it declares to be citizens and cer- 

 tain other classes of persons whom it declares 

 not to be citizens, among the latter all persons 

 of color. The right to hold office is conferred 

 upon all citizens as defined in the code itself, and 

 therefore accrues to all those persons included 

 in the classes enumerated as citizens and to no 

 others. Since the adoption of the code, the de- 

 fendant had been made a citizen entitled to the 

 privileges and immunities of a citizen ; but, in 

 order to have the right to hold office, it must be 

 conferred upon him by some affirmative enact- 

 ment. He differed from a naturalized citi- 

 zen, in this respect, from the fact that a nat- 

 uralized citizen being a white man had a com- 

 mon-law right to hold office founded on imme- 

 morial usage, while no such right can be 

 claimed for persons of color, they having but 

 recently become entitled to citizenship and 



never having held office. "When a-new class 

 of persons are introduced into the body politic 

 of the State," he said, " 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." 

 The conclusion of the opinion is in the follow- 

 ing language : 



All male white citizens of the State, whether native- 

 Lorn or naturalized citizens (havin the necessa 



le^al qualifications), have a common-law right to hold 

 office in this State ; and, in order to deprive them of 

 that common-law rigjht, a prohibitory statute is ne- 

 cessary. A naturalized citizen had a common-law 

 right to hold the office of President of the United 

 States ; hence, the prohibition in the Constitution 

 of the United States. But, as colored citizens of the 

 State, who. have recently been made such, cannot 

 claim a common-law right to hold office in the State, 

 as no prohibitory statute is necessary to deprive them 

 of a right which they never had under the common 

 or statute law of the State, when, therefore, 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 tnats they had previously en- 

 joyed 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. When, and where, and by what public 

 law of the State, was the legal right to hold office 

 therein conferred on the colored citizens thereof? 

 If this question cannot be answered in the affirma- 

 tive, and the legal authority under which the right 

 is claimed cannot be shown, then the argument, that 

 inasmuch as there is no special prohibition in the 

 law against the right of colored 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, hut simply to expound and enforce existing 

 laws, w r hich have been prescribed by the supreme 

 power of the State. After the most careful examina- 

 tion 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 there to hold office 

 therein ; and, consequently, that the defendant has 

 no legal right to hold and exercise the duties of the 

 office which. he claims under her authority ; and that 

 the judgment of the court below overruling the de- 

 murrer should be affirmed. 



The question of the validity of marriages 

 between white and colored persons came up at 

 the same session of the Supreme Court, and 

 was decided in the negative, Chief -Justice 

 Brown delivering the opinion of the court. 

 Section 1707 of the Code of Georgia forever 

 prohibits such marriages, and declares them 

 null and void, and the constitution declares 

 that "the social status of the citizen shall 

 never be the subject of legislation." The 

 effect of this provision of the constitution, in 

 the opinion of Judge Brown, is to leave the 

 social rights of the citizens just where it finds 

 them, and to prohibit the repeal of existing 

 laws on the subject. He believed it to be " one 



