Legally considered, the question had two sides, each supported by eminent lawyers. For the negroes it was argued that Irwin's Code, which was made part of the law of the state by the constitution,[162] enumerated among the rights of citizens the right to hold office.[163] Negroes were made citizens of equal rights with all other citizens by the new constitution.[164] Therefore they had the right to hold office. It was true that the constitution did not grant the right to hold office to the negroes expressly, as it granted the right to vote; but in view of the fact that the convention which made the constitution was elected by 25,000 white and 85,000 colored men, and that that constitution was adopted by 35,000 white and 70,000 colored men, it would be absurd to suppose that the intent of that instrument was to withhold office from the negroes.[165] On the other side, it was argued that the right to hold office did not belong to every citizen, but only to such citizens as the law specially designated, or to such as possessed it by common law or custom. Irwin's Code could not be cited to prove that negroes had the right, because that law had been enacted before the negroes had been made citizens, and the word _citizens_ in it referred to those who were citizens at that time. As the negro had no right to hold office because he was a citizen, and as he could not claim the right from common law or custom, he could obtain it only by specific grant of law. There was no such grant. The argument for the negro was made by the Supreme Court of the state in 1869, the opposing argument by one of the justices of that court in a dissenting opinion.[166] Such were the legal aspects of the question, which were of course less important than the political and the emotional aspects. The legislature passed upon the issue in the early part of September, 1868, by declaring all the colored members ineligible, and admitting to the vacated seats the candidates who had received respectively the next highest number of votes.[167] If there was some legal ground for unseating the negroes, there was none for seating the minority candidates. It was done on the authority of the clause in Irwin's Code which said: If at any popular election to fill any office the person elected is ineligible, ... the person having the next highest number of votes, who is eligible, whenever a plurality elects, shall be declared elected.[168] But this clause is found under the title "Of the Executive Department," and under the sub-head "Regulations as to All Executive Offices and Officers." Under the next title "Of the Legislative Department," there is no such provision.