¶1concurring.
¶2The view which I take of the rights of the parties litigant in this case, under the Code of Georgia, renders it unnecessary -for me to enter into an investigation of the question: whether the Fourteenth Amendment of the Constitution of the United States, or the second section of the first article of the Constitution of Georgia, which, in substance, is identical with the Fourteenth Amendment, confers upon colored citizens the right to hold office. • If the respondent in this case acquires 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 *270reversal of the judgment of the Court bélow, which was adverse to his right.
¶3The third paragraph of the ninth 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.”
¶4The Code, section 164*6, classifies natural persons into four classes: 1st. citizens, 2d. residents, 3d. aliens, 4th. persons of color. Section 46 of the Code declares that, all white persons born in this State, or in any other State of the Union, who are or may become residents of this State, with the intention of remaining 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 posthumous children ■ at the time of his death, are held and deemed citizens of this State. 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” b'ut 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:
¶5“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.”
¶6Section’ 1649 declares that, “ all citizens are entitled to *271exercise all their rights as such, unless specially prohibited by law.”.
¶7Section 1650 prohibits females from exercising the elective franchise, or holding civil office.
¶8Section 1651 prohibits minors from the exercise of civil functions, till they are of legal age.
¶9Sections 1652 and 1653 prohibit certain criminals, and persons non compos mentis, from exercising certain rights of citizens.
¶10Article 3, chapter 1, title 1, part 2, of the Code defines the rights of'the fourth class of natural persons, designated as persons’ of color: giving them the right to make contracts, sue and be sued, give evidence, inherit, purchase and sell property, and to have material rights, security of personal estate, etc., embracing the usual civil rights of citizens, but does not confer citizenship. Thus the Code stood prior to its adoption by the new Constitution.
¶11As 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 rights then possessed by them under the Code, but it enlarged their rights as defined in the Code, by conferring upon them the right of citizenship. It transferred them from the fourth class of natural persons, under the above classification, who were denied citizenship by the Code, to the first class, as citizens.
¶12The 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.
¶13It did not undertake to define the rights of a citizen. It left. that to the Legislature, subject to such guarantees as are contained in the Constitution itself, which the Legislature cannot take away. It declares expressly that no law shall *272be made or enforced which shall “ abridge the privileges or immunities of citizens of the United States, or of this State.” It is not necessary to the decision of this case to inquire, what are the “privileges and immunities” of a citizen which are guaranteed by the Fourteenth Amendment to the Constitution of the United. States, and by .the Constitution of this State. Whatever they may be, they are protected against all abridgment by legislation. This is the full extent of the constitutional guarantee. All rights of the citizen, not embraced within these terms, if they do not embrace all, are subject to the control of the Legislature.
¶14Whether 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 control of the Legislature as the popular voice may dictate; and in that case the Legislature 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 Fourteenth Amendment has gone, and no further. An authoritative construction of the Fourteenth 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.
¶15Georgia 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 abridgement by the fundamental law of the Union. Those not so embraced, *273unless included within some other constitutional guaranty-are subject to legislative action. The same rights which the Fourteenth 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 this State, made in conformity to the Reconstruction Acts of Congress.
¶16Whatever 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.
¶17dissenting.
¶18The defendant in the Court below 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 the present existing laws thereof. The Fourteenth Amendment of 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 reside. No State shall make or enforce any law which, shall abridge the privileges or immunities of citizens of the United States.” The Constitu*274tion 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 Fourteenth Amendment of the Constitution of the United States, and the adoption and ratification of the Constitution of this State, in 1868, the defendant became (nothwithstanding his color and African blood) a citizen of the United States, and of this State5 and is entitled to have all the privileges or immunities of a citizen. Does the fact that the defendant was made a citizen of the State, with all the privileges and 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 questio'n. "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 officio illi intendere: and this, says my Lord Coke, was the policy of prudent antiquity, that officers did ever give grace to the place, and not the place only, to grace the officer7 Bacon’s Ab., 279, 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 *275supposes 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 offices 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 them1 Bl. Com., 271-2. Offices, (says Blackstone,) are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, and are also incorporeal heriditaments: 2 Bl. Com., 36. By the Code, the Governor is required to keep a book of commissions, showing the dates when issued, for all officers, civil and military, in this State: Code, section 72. The Governor of the State is also required to grant commissions to all such ■officers as are required to hold them: Section 63. All citizens of the State, whether white or colored, male or female, minors or adults, idiots or lunatics, are entitled to have all the privileges and immunities of citizens, but it does not follow that all these different classes of citizens are entitled to hold office under the public authority 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.” This authority of' one citizen to interfere with the affairs of another citizen against his will, and without his leave, must be conferred 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 legal right to serve the State in any official capacity, and thus to interfere with the affairs of other citizens of the State, without their leave, and against their will, until that *276right is expressly granted to him by law. In Dred Scott, vs. Sandford, (19 Howard’s Rep., .422) Chief Justice Taney, in delivering the opinion of the Court in that case, said : “Undoubtedly a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices: women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification, cannot vote or hold office, yet they are citizens.’' Mr. Justice Curtis, in his dissenting opinion in that same case, page 583, said: “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. The truth is, that citizenship under the Constitution of the United States, is not dependent on the possession of any particular political, or even of all civil rights, and any attempt so to define it, must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained, or both, are to be determined in the same way, But whether native born women, or persons under age, or under guardianship, because insane or spendthrifts, be exluded from voting, or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States.” See Corfield vs. Coryell, 4 Washington’s C. C. Rep., 381, to the same point. The defendant, therefore, cannot legally claim any right to hold office, either under the Fourteenth 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 and immunities of a citizen, for he may well have and enjoy all the privileges and immunities of a citizen in the State, without the legal right to hold any office, or to exercise any public or official duty under the authority of the State. The privileges *277and immunities of a citizen of the State, as secured by the Constitution, do not confer the legal right to hold office under the public authority of the State, and receive the emoluments thereof.
¶19Does 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 f The Code took effect as the public law of the State, on the first 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 residents of this State, with the intention of remaining 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 posthumous 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 according to their rights and status, into 1st. citizens, 2d. residents not citizens, 3d. aliens, 4th. persons of color. 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 functions, and to heep and bear arms:” Sections 1647, 1648, 1649, 1650, 1651, 1652, 1653, of the Code.
¶20It 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 *278to 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, mustizoes, 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 specially defines their legal rights; but the right to hold office is not one of them: Revised Code, section 1661.
¶21It is true, that since the Code was adopted as the public law of the State, 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 were 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 were recognized and declared therein to be citizens of the State at that time, and not to any other class of persons who might thereafter become citizens. So, when 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 Slate has never been expressed by any legislative enactment in favor of the right of her colored citizens 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 were made citizens, so as to embrace them within 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 *279present Constitution, 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, page 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, 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’s 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.
¶22Persons of color were not in the contemplation or purview of the law-makers when they declared and defined the rights of citizens in the Code with respect to holding office, and to he&p and bear arms, as therein expressed. 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. The Convention which framed the State Constitution, and declared persons of color to be citizens, could have conferred the right upon them to hold office, but declined to do so by a very decided vote of that body, and went before the people, claiming its ratification upon the ground that colored citizens were not entitled to hold office under it, and there can be no doubt that the people of the State voted for its ratification at the ballot-box with that understanding. But now it is contended that the defendant, though a person of color, whose status was fixed by the Code, has been made a citizen of the State and of the United States,'and that no enabling act has ever been passed, to allow a naturalized citizen to hold office in this State where he 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 *280citizens were white persons, and as such had a common law right to hold office in this State, a right founded upon immemorial usage and custom, which has existed so long that the memory of man runneth not to the contrary: 1st BI. Com., 76. This principle of the common law is recognized and adopted by the Code as being of force in this State. Until the adoption of the Code in 1863, there was no statute law declaring that it should be one of the rights of a white citizen to hold office in this State. The Code, when it declares that one of the rights of that class of citizens specified, therein, shall be the right to hold office, did nothing more than affirm a common law right which the native-born and naturalized white citizen had always enjoyed in this State by immemorial usage and custom. The legal right of the white citizen to hold office in this State was just as perfect and complete under the rule of the common law before stated, anterior to the adoption of the Code in 1863, as it is now since the adoption of the Code. The Court simply affirmed the common law, as the same had always existed in this State, in relation to the right of a white citizen to hold office. No such common law right, however, can be claimed in this State, in behalf of persons of color, to hold office. They had but recently been made citizens of the State, and have not heretofore enjoyed the right, either to vote, or to hold office. They can claim nothing by usage and custom, under the rule of the common law, either as it regards their right to vote, or to hold, office. Before they can claim the legal right to vote, or to hold office in this State, they must show the positive enactment conferring that right, either in the Constitution of the State, or in some statute of the State, passed since they became citizens thereof. In 1848, in the case of Cooper and Worsham vs. the Mayor and Aldermen of the City of Savannah, (4 Ga. Rep., 72,) it was unanimously held, and decided by this Court, that free persons of color, were not entitled to vote, or to hold any civil office in this State. Thus stood the law in this State, up to the time persons of color were made citizens thereof. The native-born or naturalized white citizen can claim his common law right to hold office in this *281State. The colored citizen cannot claim any such common law right, for the reason that he has never exercised and enjoyed it heretofore, 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 a common law right to hold office in the State, by immemorial usage and custom, 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 neto 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, by immemorial usage and custom, it is encumbent 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 the judgment of the Court in favor of such legal right.
¶23All male white citizens of the State, whether native-born or naturalized citizens (having the necessary legal qualifications), have a common law right, by immemorial usage and custom, to hold office therein, under her authority; and in order to deprive them of that, common law right, a prohibitory statute is necessary. A naturalized citizen could claim this common law right to hold the office of President of the United States; hence the prohibition in the Constitution thereof. But as colored citizens of the State, who have recently been made such, cannot claim any common law right to hold office therein under her authority, no prohibitory statute is necessary to deprive them of a right which they never *282had, either under the common or statute laws of the State. When, therefore, it is said, that colored citizens have the legal 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 provisions of the Constitution, the statutes thereof, or by the common law, 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 legal right to hold office is concerned.
¶24When, and where, and by what public law of the State, was the legal right to hold office therein, conferred on the colored tcitizens thereof? If this question cannot be answered, if the legal authority under which the right is claimed cannot be shown, then the argumen, that, inasmuch as there is no special prohibition in the laws of the State against the right of colored citizens to hold office, they may 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.
¶25But it is insisted in this case, that inasmuch as the Constitution of 1868 made persons of color citizens, and adopted the Code which defined the rights of citizens in 1863, as citizenship then existed in this State, therefore, colored citizens are entitled to hold office under the provisions of the Code, which was enacted by the Legislature five years before colored persons were made citizens by the Constitution. It is true, that the Constitution enlarged the class of citizens in the State, by the introduction of a new class of citizens, which were not known as such, to the law-makers in 1863, and were not contemplated by them when they defined the rights of citizens at that time. The Constitution expressly confers the right to vote upon this new class of citizens, but does not *283confer the right to hold office; but on the contrary, the Convention pointedly refused to confer that right. With what legal propriety, then, can it be said that the framers of the Constitution intend,ed to confer upon colored citizens the right to hold office by adopting the Code, which fixed their status as persons of color, when they expressly refused to do so in the Constitution ; they cannot legally be presumed to have intended to do that indirectly which they positively declined to do directly. It may be conceded that the Constitution made persons of color citizens of the State, but it does not, by any means, follow that the Code which had been enacted by the Legislature, five years before, defined and regulated their legal rights as such citizens. That section of the Code which defines the rights of white citizens (the only class of citizens recognized by it) is not repugnant to the Constitution of 1868, the only legal difficulty in the way, is that it does not include colored citizens; they were not in the contemplation of the law-makers at that time, for the simple reason that they were not made citizens of the State until five years afterwards. It is a cardinal rule in the construction of statutes, that the words thereof are always to be understood in regard to the subject matter; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end: 1 Bl. Com., 60. What class of citizens were the legislators providing for in 1863 ? What class of citizens did the legislators of 1863 declare should hold office in this State ? What class of citizens constituted the subject matter of citizenship about which they were legislating at that time ? Loes any sane man believe that the legislators of this State, in 1863, when they declared in the Code, “that among the rights of citizens, are the right to hold office, and to keep and bear arms,” intended to confer these rights upon that class of persons who now claim them under the Code, as colored citizens ? The Constitution of 1868 adopted the Code as a body of laws enacted by the Legislature of the State, just as they stood upon •that statute book, when not inconsistent with that Constitution. As before suggested, that portion of the Code, which defined and declared the rights of white citizens to hold of*284fice in this State, is not repugnant to, nor inconsistent with the Constitution of 1868, but the legal obstacle in the way is, that the Code makes no provision for colored citizens to hold office, confers no such right upon them, unless, indeed, it can be maintained as a sound legal proposition, that an Act passed five years before they became citizens of the State, defining and declaring the rights of white citizens, necessarily includes colored citizens, who have been made such since the passage of that Act. If the Code, when it was adopted by the Legislature, in 1863, did not confer the right to hold office upon persons of color, now declared citizens, then, it does not do so now, for it was adopted by the Constitution of 1868 as it then stood, so far as this question is concerned, and all attempts to inject into the Code any words, or provisions, not contained therein at the time of its adoption by the Legislature, is an assumption wholly unauthorized by law. After persons of color were made citizens of the United States, by the Fourteenth Amendment of the Constitution of the United States, Congress thought it necessary to pass two special Acts, to confer upon them the right to vote, and to hold office, in the District of Columbia. See Acts of Congress of 1866 and 1868. They were citizens of the United States, but they could not claim a common law right, by immemorial usage and custom, either to vote or to hold office as such citizens in the District of Columbia, hence the legal necessity for Congress to pass the two Acts referred to, specially conferring upon that class of citizens the right to vote and to hold office.
¶26By the laws of this State, as declared by the unanimous judgment of this Court, in the case of Cooper & Worsham vs. the Mayor and Aldermen of the City of Savannah, free persons of color were not entitled to vote, or to hold any civil office in this State; and thus the law stood at the time of the adoption of the Code in 1863 by the Legislature. The Constitution of 1868 made them citizens, and conferred upon them the right to vote ; but the Convention that framed that Constitution expressly refused to confer upon them the right to hold office, as the Journal of that Convention most clearly shows. The Code does not confer upon the colored citizens *285of this State the right to hold office, for the reason that it was adopted by the Legislature five years before they became citizens, and they were not contemplated or embraced within any of the provisions thereof, which declared and defined the rights of that class of citizens specified therein. They cannot claim a common law right, by immemorial usage and custom, to hold office in this State; and until such right shall be conferred upon them, by some public law of the State, they cannot claim any legal right to its enjoyment, under the present existing laws thereof.
¶27After 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, 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 demurrer, should be affirmed.