Imagens das páginas

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 demurrer, should be affirmed.

with the social status, the very reverse is true That section of the constitution forever prohibits legislation of any character regulating or interfering with the social status.

It leaves social rights and status where 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


Charlotte Scott, plaintiff in error vs. The State of Geor-
gia, 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 ques-
tion 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.

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 discretion. 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 dif ferent houses or different parts of the same house; or on railroads, in different cars; or on steamThe power of the legislature over the subject-boats, in different parts of the vessel; and to matter, 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 consideration is equally so.

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.

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 sectio 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

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 legis lature from enacting laws compelling these com panies to make new social arrangements among their patrons, or to disturb those in existence. The law shall stand as it is, says the constitu tion, 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.
May 31, 1869.


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 equality 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 to dictate the terms of settlement, and have maintained in power those who demand that the people of the States lately in rebellion shall accord to the colored race equality of civil rights, including the ballot, with the same protection under the law which is offered the white race, they have neither required of us the practice of miscegenation, nor have they claimed for the colored race social equality with the white race. The fortunes of war have compelled us to yield to the freedmen the legal rights above mentioned, but we have neither authorized nor legal ized the marriage relation between the races, nor have we enacted laws or placed it in the power of the legislature hereafter to make laws regarding the social status, so as to compel our people to meet the colored race on terms of social equality. Such a state of things could never be de-a sired by the thoughtful and reflecting portion of either race. It could never promote peace, quiet, or social order in any State or community. No such laws are of force in any of the northern States, so far as I know, and it is supposed no considerable part of the people of any State desires to see them enacted. Indeed, the most absolute and despotic governments do not attempt to regulate social status by fixed laws, or to enforce social equality among races or classes without their consent.

James Weaver, a citizen of Bastrop county, in Texas, was indicted for murder in that county. By request of J. J. Thornton, district judge of the second district in Texas, made to General Reynolds, the commander of the fifth military district, accompanied by statement that a trial could not probably be had in the State courts, and asking that he may be tried by the military authorities, a military commission was organized at Austin, Texas, before which, on the 17th of September, 1868, and days following, Weaver was arraigned and tried. He was defended by counsel and found guilty, and sentenced to be hanged, and the question on which you wish my opinion seems to be this: Whether the general commanding the fifth military district had authority to take a man from a civil power and try him by military law, or, in other words, whether

military commission in Texas, in September, 1868, had jurisdiction over a citizen, not in the naval or military service, charged with the murder of another citizen, and under indictment and arrest therefor. From the letter of Judge Thornton to General Reynolds, above referred to, which is made a part of the record in this case, it appears Weaver was under indictment in the district court for the second judicial district of Texas for murder, and that the civil courts were so badly situated and managed that if left with 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 intermar- 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

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 property then existed in the rebel States therein enumerated, 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:

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 "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 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."

"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 act shall be null and void.

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;

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

tile and belligerent character (within the grasp of war) until the work of restoring the relations of peace can be accomplished; that it is for Congress, the department of the national Government to which the power to declare war is inthe war has so far ended that this work can be safely and successfully completed. The act of Congress of March 2, 1867, is, in my opinion, a legislative declaration that in Texas the war, which sprang from the rebellion, is not, to all intents and purposes, ended; and that it shall be held to continue until, in conformity with the legislative will, a State government republican in form and subordinate to the Constitution and laws of the United States, for which the act makes provision, shall have been re-established. It is true that in several acts of Congress the suppression of the rebellion and the end of the war have in express terms or by implication been recognized, but it will be found on examination that these phrases have been used in regard to special subjects, which do not seem to me inconsistent with the proposition that for some purposes the rights of war are not ended; while, in respect to captured and abandoned property, a limitation of the right to commence suits in the Court of Claims has been fixed by statute, and for the purpose of settling the question of the pay of officers in the volunteer army the date of the President's proclamation declarthe insurrection at an end has been adopted to interpret the phrase "close of the war."

perty may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors. Where all law-trusted by the Constitution, to determine when ful governments have been extinguished by the rebellion on the theatre of active military operations, where war really prevailed, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. The right to govern by military law under such circumstances was fully conceded in the opinion of the Supreme Court of the United States in ex parte Milligan, (4 Wall., p. 127.) The test is there sug. gested that the right to govern by military power depends upon the fact that the courts are actually closed, and that it is impossible to administer criminal justice according to law. But while the war continues, although military power may be the only government in territory held by force of arms, the military commander may make use of such local tribunals already existing as he may find it convenient to employ in subjection to his paramount authority. It then remains to consider: First, whether the State of Texas has been, during rebellion, so deprived of all constitutional and lawful government as a State, and so in armed hostility to the Governmenting of the United States, as to be subject to military law when possession of her territory was regained It does not seem to me inconsistent with either by the military power of the United States; and, of these enactments that Congress should declare secondly, whether the right to hold and govern that the States whose civil governments have the State by military power has terminated. To been destroyed should continue under military the first question there can be but one answer. authority until such governments could be reIn language of Chief Justice Chase, in Texas vs. stored. Every act of Congress is to be presumed White et al., decided at the present term of the to be constitutional unless the contrary plainly Supreme Court, no one has been bold enough to appears. It is to be also presumed that Congress contend that, while Texas has been controlled by will provide for the restoration, through constia government hostile to the United States and in tutional government, of the rebellious States, as affiliation with a hostile confederation waging speedily as in its judgment the public safety war upon the United States, senators chosen by will allow; but until civil authority is restored, her legislature or representatives elected by her and the rights of persons and property can be citizens, were entitled to seats in Congress, or protected in the region which has been the theathat any suit instituted in her name would be en-tre of war by organized governments, the directertained in this court. All admit that during this condition of civil war the right of the State as a member, and of her people as citizens, of the Union, was suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion. The second question is one of more importance and difficulty. Having suppressed the rebellion as far as it was maintained by an armed force, it became the duty of Congress to re-establish the broken relations of the State with the Union; and the same authority which recognized the existence of the war is, in my judgment, the only authority having the constitutional right to determine when, for all pur poses, the war has ceased. The rights of war do not necessarily terminate with the cessation of actual hostilities. I can have no doubt that it is competent for the nation to retain the territory and the people which have once assumed a hos

tion by Congress to employ a military force to give that protection and preserve the peace would seem to be the only alternative with anarchy. It appears by the papers submitted that the trial of Weaver before the military commission was fairly and carefully conducted, and that the murder of which he was convicted was wanton and cruel. A freedman who had been at work for Weaver, having chosen to leave his employment to go to work for another man, went to him in a field near his house on that morning to ask for the wages which were due him. Wea ver seized an ox-band, beat him severely with that, and then sent his hired man to his house for a double-barreled gun, loaded with buckshot, and on his return with it shot the freedman through the head, killing him instantly. There appears to have been neither provocation nor resistance; and this atrocious act was committed in the sight of the wife of the man murdered, who stood by her own door. The finding of the

commission has been approved by the military | holding his approval. The papers which were commander, and has been certified to be regular sent me are returned herewith.

and proper by the Judge Advocate General. I ind no reason in law for the President's with

Very respectfully, your obedient servant,
E. R. HOAR, Attorney General.





Republican, July 22, 1869. Resolved, That the Republican party of Caliornia gives its earnest support to the administration of President Grant, and do hereby endorse the acts and policy of his administration. We recognize the earnest effort of the Government to secure an economical administration of its affairs, to reduce expenses, to honestly pay the national debt, to prevent peculation and fraud upon the treasury, to enforce the collection of the revenue, and to cause the speedy restoration of public confidence in our financial strength and integrity.

2. That the negro question has ceased to be an element in American politics, and that the ratification of the XVth amendment to the Constitution ought to be followed by an act of universal amnesty and enfranchisement of the southern people.

the material interests of this coast, a reproach upon the intelligence of the American people, and contrary to the spirit of the age.

5. That the Republican party having ever had in its especial keeping the rights of labor and of the laborer, and removed therefrom the blighting curse of slavery, and inaugurated a new era, in which the wages of labor have greatly advanced, while the hours therefor have been correspondingly diminished, claim to have originated in this State and steadily supported what is known as the "eight-hour law," the sound policy of which has been proclaimed by a Republican Congress, and by a proclamation of a Republican President made applicable to the public works of the United States.

[ocr errors]

6. That we endorse the action of the Senate of the United States in rejecting the so-called Alabama treaty," and consider it the duty of the general Government to demand full reparation for the injuries inflicted by the British Government and her people upon our commerce during the late rebellion.

3. That we regard with pride and satisfaction the evidences of an increasing immigration to this State of industrious and intelligent people 7. That we are in favor of imposing upon from the Atlantic States and Europe, with whom all kinds and classes of taxable property in the we are anxious to share the benefits of a fruit-State an equal share of the burdens of taxation, ful soil, a genial climate, and an advancing civilization; but, while giving preference to the immigration of people of our own race, we hold that unoffending emigrants from China to this State are entitled to full protection for their lives, liberty, and property, and due process of law to enforce the same, but we are opposed to Chinese suffrage in any form, and to any change in the naturalization laws of the United States.

and to that end favor the organization of a State board of equalization or review, that the inequalities now existing under the present system of assessment and collection of the State revenues may be avoided.

8. That we are opposed to grants of State aid to railroads, and are in favor of limiting taxation to the amount of revenues absolutely requisite to pay the actual expenses of the State Government, and to maintain the financial credit of the State.

4. That we recognize the power of the general Government to restrict or prevent Chinese immigration whenever the welfare of the nation 9. That we hail with joy the return of peace, demands such a measure, by terminating our and the promising signs of an increasing decommercial relations with China, but it should velopment of the country and the permanent be considered that the adoption of a non-inter- prosperity of the whole people. We earnestly course policy in respect to China surrenders to invite the co-operation at the ballot-box of all Europe the commerce of the empire of Asia. We who agree to the foregoing declarations, regardbelieve that the general prosperity will be great-less of old party ties or previous differences ly enhanced by fostering commercial intercourse of opinion upon the now settled questions of with Asia, and that the closing of our ports at this slavery, rebellion, reconstruction, and negro time against Chinese would be most injurious to suffrage.

It is deemed inadvisable to enlarge this chapter and volume by presenting all the State platforms. Sich only are given as are of most significance and recent date.

« AnteriorContinuar »