Anderson v. Baker | Cases | Westlaw

The appellant, in his petition for a mandamus in this case, alleges that he is, and for many years past has been, a citizen of Maryland, residing in the fourth election district of Montgomery county; that, until now, he has there possessed and exercised the right of suffrage without hindrance or question, and that he has done no act by which any of his rights as a citizen could be justly forfeited or impaired; he also alleges that, under the supposed authority of the 1st Article of the Constitution, and of the Act of 1865, ch. 174, the appellees were appointed to register the voters of his election district; that he duly appeared before them and demanded that he should be unconditionally registered as a legal voter, and that they refused so to do. He then charges, in support of his alleged right to unconditional registration, that the provisions of the Constitution and Act above mentioned, in so far as they prescribe the oath to be administered to persons applying for registration as a condition of the right to be registered, are ex post facto laws, within the meaning of the 10th section of Article 1 of the Federal Constitution, and therefore void.

*576 This proposition, with others of a subordinate character, going to the consistency of the Registration Act with the Bill of Rights and Constitution of the State, were fully and ably discussed in the argument of the case; and it must be conceded that they present questions of the utmost delicacy and importance. Involving, as they do, the right of a considerable portion of our citizens to the continuance of a privilege heretofore enjoyed, and consequently tending to excite the public mind, it is, perhaps, to be regretted, that their adjudication is required at a time when the judgment to be pronounced may fail to command impartial consideration. This, however, is a result with which we have nothing to do. Our duty in the premises is a plain one, and that is, to declare, without fear or favor, the law as we find it.

That the question as to the conflict of the State Constitution with that of the United States, is wholly judicial in its nature, and one that this Court has jurisdiction and power to decide, is scarcely the subject of a doubt. It was not contended, nor does it appear to be distinguishable in principle from the like question of repugnancy on a legislative Act, which the State Courts are required to hear and determine. The Constitution of the United States, as the Supreme law of the land, is binding on the governmental power, as well as on the people of the several States; and the 10th section of Article 1, declaring that no State “shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,” is an inhibition operating as directly and with as much force upon the original lawmaking power of the States residing in the people, as upon that power when delegated to the Legislative Department of a State government. In this view the State Constitution, although an organic Act of the people, is none the less a law within the meaning and restrictive purpose of this section of the Federal Constitution. To hold otherwise, would be to strike down a bulwark interposed for the protection of the citizen by the supreme law of the land, *577 and open a door to the very mischiefs it was intended to guard against and prevent.

**27 Treating, then, the important question here presented as one properly within our jurisdiction, some of the principles recognized as elemental in our system of State government, must be taken into consideration. That the States are sovereign within the limitations imposed by the Federal Constitution, and that this sovereignty resides in the body of the people of the several States, is not denied; nor is their power to reform or abolish their existing State governments and establish new ones, within the above mentioned limitation, open to question. In the exercise of this power, they may ordain and establish the form of government in their judgment best adapted to their wants, condition and interests; they may prescribe the offices necessary to its administration, and declare the qualifications of the officers, as well as define the nature and extent of their authority and duty; and to the end that the government ordained may be permanent, and still admit of administration with the force and according to the varying condition and sense of the people, they can provide for vacating and filling the offices at stated intervals by elections, and, as a necessary incident of this power, clothe the citizens, or any class of them, with the elective franchise. In brief, the people, in their original sovereign character, are the fountain head of governmental authority, and all the powers necessary to be exercised in the continued administration of a representative government, originate in and are delegated by an exertion of their sovereign will. These propositions, founded in necessity, and illustrated by long continued practice, have become the received doctrines of the American people,--in fact, axioms in the civil polity of the several States; and as doctrines firmly and finally established by universal consent, they are thus generally stated, that we may proceed with a more definite understanding of the nature of the right in question. It will be necessary, however, to show that the conclusions we have reached are consistent with *578 these fundamental principles, that a closer examination of this right should be had.

As we have seen, the right of suffrage is bestowed on the citizens as a necessary element in every representative Government, to the end, that the Government ordained, may be perpetual and permanent, and the purposes contemplated by its establishment, more effectually accomplished. “The right of voting,” says STORY, in his Commentaries on the Constitution, sec. 580, “like many other rights, which, whether it has any fixed foundation in natural law or not, has always been treated in the practice of nations, as a strictly civil right, derived from and regulated by each society according to its own circumstances and interests.” With us, the privilege appears to be altogether conventional and derivative, and not original or inherent in the citizens. Prescribed by the people in the exercise of their organic power, for the purpose of giving effect to their expressed will, it is impossible, in the nature of things, that it should exist, or have an existence independent of that will. It is held to be a privilege, conferable by the people for sovereign purposes on a greater or less number of citizens, and the power to confer it for purposes that they may change at pleasure, necessarily implies power to withdraw or suspend it. But this is not all. The people, in clothing a citizen with the elective franchise, for the purpose of securing a consistent and perpetual administration of the Government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect, constitute him a representative of the whole people. This duty requires that the privilege thus bestowed, should be exercised, not exclusively for the benefit of the citizen, or class of citizens professing it, but in good faith, and with an intelligent zeal for the general benefit and welfare of the State. It is on that ground that the corruption of the privilege by bribery, is denounced as a crime; and that adherents to a public enemy, conspirators against established authority, and felons are held to be *579 unfit, and unsafe depositaries of a privilege, the disinterested, honest and faithful exercise of which is so vital to the preservation of public justice and tranquility. In no case, so far as we have learned, has the right of suffrage ever been conferred on all the citizens of any State. In many of them, the qualifications prescribed for its exercise, are such, that large numbers of the citizens are altogether excluded from its enjoyment, while in others, the privilege, where once conferred, has been withdrawn and bestowed on citizens not before possessed of it. By the first Constitution of this State, adopted in 1776, the right of suffrage was limited to all free men, without regard to color, above the age of twenty-one years, having a freehold of fifty acres in the county of the voter's residence, and to all freemen having property in the State, above the value of thirty pounds current money.”

**28 In 1802, a radical change was made in this provision of the organic law by an amendment, which declared, “that every white male citizen of this State, and no other, above the age of twenty-one years,” having resided, &c., should ““have a right of suffrage.” It is unnecessary, however, to multiply illustrations of this exercise of the sovereign power of the States. In this particular it is sufficient, for our present purpose, to show that the elective franchise, as a privilege of the citizen, is a matter, of which, the people of the State have the absolute control. That this right or power of the people of the several States, is neither abridged nor interfered with by the Constitution of the United States, seems never to have been questioned, but, on the contrary, to have been affirmed by a necessary implication from the provision in the 2nd sec. of Art. 1, declaring that the electors of representatives in each State, “shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” To recapitulate then, the substance of what has already been said, for the purpose of concluding on this branch of the present inquiry, I find: 1st. That the elective franchise, within the purview of *580 this case, is a privilege conferred on the citizen by the sovereign power of the State to subserve a general public purpose, and not for private or individual advantage; that, as against the power conferring it, the citizen acquires no indefeasable right to its continuance or enjoyment; and that the people of the State, in the exercise of their sovereign power, may qualify, suspend, or entirely withdraw it from any citizen or class of them, providing always, that representation of the people, the essential characteristic of a Republican Government, be not disregarded nor abandoned; and, 2nd. That the right and power of the people to qualify, suspend, or entirely withdraw this privilege, is an inherent condition of its enjoyment, impressed upon, and following it from the time of its bestowal on the citizen.

Let us now examine the provisions of the State Constitution, upon which the main question here is raised.

The 7th sec. of the Bill of Rights declares, that “every free white male citizen, having the qualifications prescribed in the Constitution, ought to have the right to vote,” and the 1st, 3rd, 4th and 5th secs. of Art. 1 of the Constitution prescribe these qualifications.

The 1st of these secs. provides, that every free white male citizen above the age of twenty-one years, who shall have resided one year in the State, and six months in any county or election district of Baltimore city, and who shall comply with the provisions of this Art., shall have the right to vote; the 3rd declares, that no person, lunatic or non compos mentis, or person convicted of any infamous crime, unless pardoned by the Governor, shall have the right to vote; the 4th, that no person who has been in armed hostility to the United States, or who has been in the service of the so called Confederate States, or who has in any manner by word, act or deed, given them aid, comfort or countenance, or declared his adhesion to them, or expressed a desire for their triumph, shall have the right to vote; and the 5th, that no person who, since the 4th of July 1851, has been or shall be convicted in a Court of Law of *581 bribery, or of resorting to force, fraud, or surprise, to corrupt or defeat the exercise of the right of suffrage, shall thereafter be entitled to vote, or hold any office of profit or trust.

**29 To ascertain the class of persons to whom the privilege of voting is extended by these provisions, it is necessary to consider and construe them as a whole, according to the ordinary meaning and sense of the terms used, and so as to effect their intended purpose. The rule of construction in such cases, is well stated in Manly vs. State, 7 Md. Rep., 135, where it was said, that “Constitutions are not to be construed according to words used in particular clauses, but the whole must be considered.”

We find, then, by the true construction of these provisions, that the right of suffrage is bestowed upon such persons only, as are within the description of the 1st sec., and not within the exceptions contained in the 3rd, 4th and 5th sections; and, by necessary implication, that the right has been withdrawn from, and denied to all persons within these exceptions, and not within the description of the 1st sec.

The question to be considered is raised upon the 4th sec., which suspends or withdraws the right or privilege of voting from a portion of the citizens for deeds done, and words spoken before the Constitution was adopted, and it is objected to on that ground as retrospective and ex post facto, within the meaning of sec. 10, Art. 1 of the Federal Constitution.

In my opinion, there are two replies to this objection, either of which is conclusive. The first requires that we should ascertain the true force and meaning of the term ex post facto, as used in the Constitution of the United States. We have carefully examined the cases in which this term has been considered, and its scope and purpose limited and defined. In Calder & Wife vs. Bull, 3 Dall., 386, where the question here was pressed upon the Court, CHASE, Justice, defined an ex post facto law to be:

1st. Every law that makes an action done before the *582 passing of the law, and which was innocent when done, criminal.

2nd. Every law that aggravates a crime, or makes it greater than it was when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.

4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender.

He says, further, that “every ex post facto law must be retrospective, but that every retrospective law is not ex post facto.” In Fletcher vs. Peck, 6 Cranch, 138, MARSHALL, Chief Justice, said, than an ex post facto law is one which renders an act punishable in a manner in which it was not punishable when committed; and Chancellor KENT, in Vol. 1st of his Com., p. 451, in reviewing these cases, says, that the definition of an ex post facto law, given in Fletcher vs. Peck, “is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. Ex post facto laws relate to criminal and penal proceedings, which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively. Retrospective laws and State laws, divesting vested rights, unless ex post facto or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation.”

**30 Accepting then, as we are bound to do, this exposition of the character and office of the term ex post facto, as used in the Federal Constitution, we have next to inquire whether the suspension of the right to vote for the reasons stated in the 4th section of Article 1, is a punishment, within the meaning of that term, inflicted upon the persons whose *583 right or privilege of voting is suspended. To be a punishment, as contradistinguished from a mere personal inconvenience or loss of a privilege, it must be found that it was so intended; but if it be found, on the other hand, that the distinctive purpose of the section in question was altogether foreign to the criminal status of the citizen, and that the privilege of voting was qualified or withdrawn as an incident only of that purpose, then the provisions therein contained cannot be construed as penal, or be held open to any objection on that ground. In ascertaining, therefore, the purpose of the provision, we shall answer the inquiry propounded here.

The sections of Article 1, to which we have referred, all relate to the right of suffrage, and were intended to fix, limit and qualify, the possession and exercise of it. As a part of the Constitution, they vest and regulate the exercise of a privilege essential in its nature to the permanency and consistent administration of the government it establishes; and that this privilege was dealt with in these sections with express reference to that purpose, and no other, would scarcely seem to be the subject of a doubt. The end proposed by the Constitution, was the establishment of a new government, and the class and qualifications of the citizens who, by the right of suffrage, were to be clothed with the power of controlling and administering it, were, as they now stand in the Constitution, the first and most important of the matters for consideration. It must be presumed, from the nature of the subject, that the framers of the Constitution, as well as the people who adopted it, intended, by the several provisions contained in these sections, to secure not only the stability of the government, but to guard against an inconsistent or perverted administration of it. With that view, and in furtherance of that purpose, the privilege of voting was withheld from a class of citizens presumptively unfitted to exercise it. It is denied to the lunatic or person non compos mentis, because of his incapacity to understand or perform the duties of a citizen; it is withdrawn *584 from the person convicted of infamous crime, for want of the integrity necessary to guard against a fraudulent use or abuse of it; and from the person who has been in armed hostility to the United States, or has adhered to their enemies, on the ground of hostility to the State, as an integral part of the Union. Even the 5th section, which may be said to contemplate in some qualified sense, an increase or addition to the penalties of bribery, looks more to the limitation of the privilege to proper persons, than to the punishment of the offender. No such doubt arises, however, in regard to the scope and meaning of the 4th section, which discloses a purpose so far disconnected from and foreign to the criminal status of the citizen affected, as to bar any inference that punishment, as such, was intended.

**31 But, as I have intimated, there is another reason why the objection made to this section cannot be maintained. We have found that the elective franchise is conferred on the citizen by the sovereign power of the State, to subserve a public general purpose; that, as against the sovereign power, the citizen acquires no indefeasable right, and that the right of the people to qualify, suspend or entirely withdraw the privilege, is one of its inherent conditions, impressed upon and following it from the people to the citizen. If this exposition of the nature of the privilege be the true one, it is impossible for this section to be ex post facto or retrospective, in the strict sense of those terms. The suspension of the privilege, no matter upon what pretext, is authorized by this inherent condition, subject to which the citizen holds it; and if it can be suspended without regard to the conduct of the citizen, certainly no deed or word done or spoken by him, could subject that power to any limitation or restriction. The condition of the privilege, as between the people and the citizen, takes it altogether out of the range of ex post facto legislation; and it is not too much to add that the constitutional inhibition against ex post facto laws, if it could be successfully invoked in aid of the citizen in such a case as this, would become an instrument *585 for converting a conditional privilege into a vested right, as well as for disarming the people of a power essential to the safe management and control of their domestic affairs. Upon this expression of my views, I conclude that the 4th section of Article 1 of the State Constitution does not conflict with the provisions of section 10 of Article 1 of the Constitution of the United States.

In the course of the argument, other propositions were discussed, which do not appear to have been specifically presented in the appellant's petition, as reasons for granting his prayer. Two of them have a material bearing upon the final disposition of the case, and for that reason should be decided here. One is, that the Act of 1865, ch. 174, was not enacted in articles and sections, according to the requirements of section 28, Article 3 of the Constitution; and the other, that even if consistent with the Constitution, it is still invalid, on the ground that it conflicts with the 22nd and 23rd sections of the Declaration of Rights. Neither of these propositions requires an extended notice. This Act is to be read in connection with another, passed at the same session, ch. 159, which provides for the incorporation of a new Article in the Code, under the title “Registration;” and an inspection of them both has gone far to satisfy me that the requirements of the Constitution have been fully complied with. But assuming, without however so deciding, that the Act was not passed in strict conformity with those requirements, still the failure to comply with them would not be a sufficient reason for declaring the Act void. Amongst other things, the 28th section of Article 3 provides, whenever any general public law shall be passed, not amendatory of any section or Article of the Code, “that it shall be the duty of the General Assembly to enact the same in Articles and sections, in the same manner as the said Code is arranged.” This provision is plainly not mandatory, but directory,--a mere instruction to the Legislature as to the form in which laws should be passed, and having reference only to the public convenience. It relates *586 altogether to a matter of form, and not to substance, and a failure to pursue the directions as to form, would scarcely have the effect of defeating a solemn legislative Act, otherwise free from objection. This section was in the Constitution of 1851, and the question is not presented now for the first time. The effect upon a legislative Act of not strictly complying with the requirements of another clause like in character to the one before us, was considered in Davis vs, State, 7 Md. Rep., 159, 160; Keller vs. State, 11 Md. Rep., 531; and in Parkinson vs. State, 14 Md. Rep., 193; in all of which views were expressed confirming the conclusion stated here.

**32 The remaining proposition presents a more complex, though not more difficult, question. The General Assembly is required, by section 2, Article 1 of the Constitution, to provide by law for a uniform registration of the voters, which registration it declares shall be evidence of their qualification to vote; reserving to the citizen however, otherwise qualified, the right of voting until such law should be passed and carried into effect. The 4th section requires the judges of election and officers of registration carefully to exclude all disqualified persons from voting and registration; it then provides for the administration by them of an oath, the form of which is therein prescribed, to persons offering to vote or presenting themselves for registration, and directs them to exclude from voting or registration, as the case may be, any person declining to take this oath. Section 41, of Article 3, also requires the General Assembly “to pass laws for preserving the purity of elections by the registration of voters, and by such other means as may be deemed expedient, and to make effective the provisions of the Constitution disfranchising certain persons, or disqualifying them from holding office.”

It is necessary, in this connection, to repeat in more exact terms what has already been said in substance, and that is, that by the 1st, 3rd, 4th and 5th sections of this Article, the privilege of voting is given only to white male citizens, possessed *587 of legal capacity, and above twenty-one years of age, who have resided twelve months in the State and six months in any election district or precinct, and have not, by word or deed, adhered to the enemies of the United States, nor been convicted of bribery or infamous crime. To the citizens so described, and to them alone, is the right of suffrage given. The privilege, however, is still further qualified, as we have seen, by another limitation, and that is, that the citizen shall take the oath prescribed in the 4th section, which further declares that the person declining to take it, shall be excluded from voting and from registration, and that registration, after a law for registration has been passed and carried into effect, shall be the evidence of the right to vote, and without which no citizen is to be allowed to vote. It is also said in this section, that taking the oath shall not be deemed conclusive evidence of the right to vote. These provisions are specific and affirmative, and their purpose is too clear, direct and positive to admit of misapprehension or doubt. They require the General Assembly to pass such laws for the registration of voters as they may deem expedient to carry into effect these disfranchising clauses; and in declaring it to be the duty of the officers of registration carefully to exclude from registration all disqualified persons, they create the agency and confer upon it exclusive jurisdiction and power to determine finally and in full all questions as to qualification and right to registration. The duty of carefully excluding all disqualified persons from registration, is a special, limited and exclusive duty, involving an exercise of judgment and discretion altogether beyond the supervisory and restraining power of any other tribunal or department of the government. Whether it was consistent with sound public policy to clothe the officers of registration with a power thus beyond judicial control, is altogether foreign to the present inquiry; it is enough to find that the people have expressly conferred it by the terms of their organic law.

**33 *588 This view of these provisions, and of the powers they confer, leads us to the question of their conflict with the Declaration of Rights. That instrument is to be taken as a part of the Constitution. It declares not only doctrines relating to and confirmatory of personal rights, but principles to be regarded in administering the Government; like the Constitution, it was the immediate work of the people acting in their sovereign capacity, and, with the Constitution, was intended to prescribe the form and powers of the Government. Each has its office; one is general, the other is particular; and taken together, resort may be had to either, to ascertain the meaning and effect of the other. That the Declaration of Rights furnishes a guide for the construction of ambiguous provisions of the Constitution, as well as a test of the validity of laws not specifically required by the Constitution, and otherwise free from objection, is conceded; but if the Constitution differs in any of its provisions with the general doctrines or principles set forth in the Declaration of Rights, such provisions are to be regarded as limitations or qualifications of those general doctrines or principles, and allowed to have effect accordingly. Crane vs. Meginnis, 1 G. & J., 476. Police case, 15 Md. Rep., 376. And so here, if the constitutional provisions, to which we have referred, are found to be inconsistent with any doctrine or principle contained in the Declaration of Rights, they are not to be defeated and pronounced void on that ground, but taken as exceptions to, or qualifications of, those doctrines or principles. If, then, the provisions contained in that portion of the organic law, have no effect in the way of limiting or qualifying any express provision of the Constitution, it is clear that they cannot be invoked for the purpose of setting aside any portion of the Act of 1865, unless, indeed, it be found that the Legislature, in passing it, has exceeded the express or necessarily implied requirements of the Constitution. It is insisted, however, that this was done, and the specific objections made to the Act in that connection, are, that it *589 imposes on the citizen, offering himself for registration, the duty of taking an oath to answer interrogatories by which he may criminate himself; that it allows convictions of infamous crimes to be proved, not alone by the record of the conviction, but by witnesses; and that it authorises the disseizin of the voting privilege, otherwise than by due course of law. The second of these objections, seems to me to be wholly destitute of foundation. It relates to the measure of proof required by the Act, to show the fact of conviction. According to the established rules of evidence, the record of the conviction would undoubtedly be the best, and, therefore, the only admissible evidence of that fact; but it is impossible to maintain the doctrine in cases where the purpose is not to punish an antecedent crime, that the Legislature was without power to change the rule and prescribe a different one. In this case, the fact of conviction is treated by the Legislature, as one to be proved by witnesses, as well as by the record; and that they had the discretion and power so to treat it, I do not entertain a doubt. The soundness of the other objections must be tested by the express and necessarily implied requirements of the Constitution in regard to registration.

**34 The officers of registration are directed by the 4th sec. of Art. 1st, to ““carefully exclude from registration, all disqualified persons;” and, to secure a uniform performance of that duty, it was absolutely necessary to fix and prescribe, the mode by which they should be able to investigate and decide upon each case. The same section also required an oath to be administered, the taking of which, it declares, was “not to be deemed conclusive evidence of the right to vote,” thereby necessarily implying power and duty, in the officers of registration, to make further examination. To meet and satisfy this plain requirement of the Constitution, the Act of 1865 was so framed, as to authorise the administration of a further oath to answer such questions as the officers of registration should propound. The mode of further examination, thus prescribed, is not only a compliance *590 with a well defined requirement of the Constitution, but it is strictly consistent with the nature of the duty which it declares the officers of registration should perform. No citizen is compelled to undergo the examination thus proposed; the administration of the oath is made a condition of his right to registration, and, by the Constitution, he could not acquire the right to be registered as a voter, even if then, without subjecting himself to this condition: If crimination, either as to crime or disloyalty, be the result of answering questions touching the right to registration, it is clear, that in such cases the right to vote is denied by the Constitution, and that no wrong is done by the provisions of the Act. But this is not all. The proposition in the Bill of Rights, by which this objection was sought to be supported, is, “that no man ought to be compelled to give evidence against himself in a criminal case.” The proceedings authorised by the Registration Act, are not criminal in their nature or purpose. The citizen is not arraigned nor called to answer, except at his own election, and then, only to enable the officers of registration to ascertain, whether he has the qualifications, made necessary by the Constitution, to his registration as a legal voter. The oath provided for here, certainly does not fall within the inhibition of the Bill of Rights, whether required by the Constitution or not. The answer to the remaining objection has already been substantially presented. Assuming that the privilege of voting was contemplated by the 23rd section of the Declaration of Rights, as one of which the citizen should not be disseized, otherwise than by due course of law, still we have found that the Constitution provided for ascertaining by a registration of the voters, to whom the privilege of voting was extended, and that it clothed the officers, charged with this duty, to the exclusion of Courts and juries, with full power and jurisdiction to hear and finally determine all questions as to the right of voting and registration. To this extent, and that is as far as the objection can go here, the voting privilege was withdrawn *591 or excepted from the operation and protection of this section of the Declaration of Rights, by the express provisions of the Constitution.

**35 This seems to me to be a sufficient review of the material questions raised upon this record, and, for the reasons here stated, I conclude, without further comment, that the order of the Court below should be affirmed, with costs to the appellees.

The appeal in this case is from an order of the Circuit Court for Montgomery county, dismissing the petition of the appellant for the writ of mandamus, which he prayed might be directed to the appellees, officers of registration of voters for the fourth election district of said county, commanding them to register his name on the column of legal voters in said district and county.

The petition seemingly expresses doubts about the adoption of the Constitution of Maryland of 1864, but as the petitioner sought the interference of the Court below in order to afford him the benefit of a law passed under its authority, we may presume that he did not seriously question its existence as the organic law of Maryland, Such a question could not now be raised or entertained. The adoption and valid existence of the present Constitution of Maryland are settled beyond inquiry, and were so treated in the argument.

Nor is it pretended, upon this application, that the law of 1865, ch. 174, for the registration of the voters of the State, is wholly void, as being in conflict with the Constitution of the United States, or the Constitution of Maryland. If void in toto, the appellees would have no authority to register any vote, and the Court could not be invoked to order an illegal act. The petitioner, in that case, would be insisting upon an act to be done under a void law. So much therefore of the argument as was directed against the law, on the ground that it was not enacted in articles *592 and sections, as the Code is arranged, (Constitution, Art. 3, sec. 28,) and for that reason it should be regarded as void, does not belong to this case, and was not prompted by any thing contained in the petition of the appellant for the writ of mandamus.

The petitioner claimed to have his name registered in the column of qualified voters, without taking the oath prescribed by said law, or being further subjected to examination under oath touching his qualifications and right to vote. These requirements of the law he denounced, in the paper which he presented as containing his reasons for refusing to take said oath, as despotic, as usurpations, as unwarranted by the principles of free government, and as in conflict with the letter and spirit of the Federal Constitution, in certain of its provisions. He refused to comply with these requirements. The answers of the appellees also state the same fact of refusal.

The petitioner, therefore, while he admits generally the validity of the Registration Act, and seeks to register under it, alleges the unconstitutionality of so much of the 1st Article of the Constitution of Maryland, and the provisions of said Act of Assembly agreeing therewith, as require the officers of registration to exact the oath and to institute the examination aforesaid, he avowing that he is a white male citizen of the United States, above the age of twenty-one years, having the required residence, and as having heretofore, without hindrance, exercised the right of suffrage, which he has done nothing to forfeit or impair.

**36 It is conceded that if there is any thing in the registration law of 1865, or of the Constitution of Maryland, authorising its passage, violative of any provision of the Constitution of the United States, or in conflict with any of its prohibitions upon the States, such parts of the law and Constitution are void and of no effect, the Constitution of the United States being the supreme law of the land, and binding upon conventions and people in forming and adopting State Constitutions, as well as upon the Legislatures of *593 the States in the enactment of laws. If there is, therefore, any portion of the Constitution of this State, or of the registration law passed at the last session of its Legislature, clearly obnoxious to the objection that it is in conflict with that instrument, it is the duty of this Court so to declare and adjudge. The duty is one of the gravest importance, and therefore should be approached and performed with the greatest deliberation and care. The people can be engaged in no act more important to their temporal welfare than in the framing of their organic law. It is the depository of the sovereign will, declaring and defining the rights of the citizen, distributing and limiting the powers of government, and so adjusting them as to be in harmony with the national will, as contained in the Constitution of the United States, and their own declared Bill of Rights.

The will of the people thus expressed, and constituting the ground-work of all State legislation, and the protection of individual rights, is entitled to the gravest consideration and respect, and when the judicial mind is brought to act upon it, even in the construction of doubtful phraseology, a degree of anxiety is felt that is not usual in the investigation of mere legal difficulties. How much more concern must it experience when the question is one of alleged conflict with the Federal Constitution? And hence the principle, that in doubtful cases of alleged conflict, Courts will support the law or the Constitution that is assailed, leaving it to the Supreme Judicial tribunal of the Union to determine the question in the last resort.

For a more distinct understanding of the questions as they arise in the case before the Court, it may be premised that the Constitution of this State, framed and adopted in 1864, provides that the General Assembly should pass a law for a uniform registration of the names of voters in this State, which registration should be evidence of the qualification of said voters to vote at any election thereafter held. (Article 1, sec. 2.) Qualifications and disqualifications of voters are prescribed, and it is declared to be the duty of all *594 officers of registration carefully to exclude from voting or being registered all persons so disqualified, and it is made their duty to allow no person to be registered until he shall have taken the oath or affirmation set out and prescribed in such case to be taken; the taking of such oath, however, should not be deemed conclusive evidence of the right of the person so taking it to vote. (Article 1, sec. 4.) It further provides that the General Assembly shall pass laws for the preservation of the purity of elections, by the registration of voters, and by such other means as may be deemed expedient, and to make effective the provisions of the Constitution disfranchising certain persons. (Art. 3, sec. 41.)

**37 The Legislature, at the session of January 1865, passed an Act relating to the registration of the voters of the State, (ch. 174.) The 5th section of this law enacts, that the officers of registration, after recording the surname and christian name of every person described in said section, “shall administer to such person the oath of allegiance, as prescribed by the fourth section of Article first of the Constitution, and the further oath, that he will make true answers to such questions as they may propound to him, touching his right to registration and voting, and enter in the proper column the fact whether such person has or has not been sworn.” Section six provides, “that it shall be the duty of the officers of registration, before entering any name on the register of voters, to diligently inquire and ascertain that such person has not done any of the acts which are declared in the third, fourth and fifth sections of the said first Article of the Constitution, as causes of disqualification, and if the evidence brought to their knowledge shall satisfy them that he is disqualified under either of said sections, they shall not enter his name as a voter in said eighth column or register of qualified voters, but shall carefully exclude it therefrom, notwithstanding he may have taken the oath of allegiance prescribed in section four of said first Article of the Constitution.” And by section eight they are required to enter in the said register of qualified voters *595 the name of every person who shall apply to them to be registered, and who shall satisfy them that he is qualified to vote under the provisions of the first Article of the Constitution, and the laws of the State.

These are the material provisions of the law which we are called to pass upon, in connection with the fourth section of the first Article of the Constitution. That section contains or specifies certain disqualifications from voting, and prescribes the oath of allegiance which the applicant for registration must take before his name can be registered as a qualified voter, and which if he declines to take, he shall not be allowed to vote; nor will the taking of the oath absolutely and conclusively entitle him to vote. The law in the sections referred to, purports to be in conformity with these provisions of the State Constitution, and this was not denied in the argument, except in the particular that the law in section five required a further oath to make true answers to such questions as might be propounded, touching the right to registration and voting. It was contended that this further oath was not required by the State Constitution, and was therefore unauthorized and illegal.

The petitioner declined or refused to take these oaths, when he applied for registration, but demanded that his name should be registered as a qualified voter, notwithstanding such refusal, and seeks to support such claim, or demand and justify such refusal, on the ground that these provisions, both of the law and the Constitution, are in conflict with that clause of the 10th section of the 1st Article of the Constitution of the United States, which prohibits any State from passing any bill of attainder, or ex post facto law; and that they also are repugnant to various Articles of the Bill of Rights, and consequently inoperative and void.

**38 These are the questions which the Court is called upon to consider and determine, and they at once present the inquiry as to the origin and nature of the elective franchise, as understood in American constitutional law, and the *596 power of the States in their sovereign capacity, when forming or amending their State Constitutions, to restrict or enlarge it, according to their sovereign will and the exigencies of the public safety.

The right of suffrage is not an original, indefeasible right, even in the most free of Republican Governments; but every civilized society has uniformly fixed, modified and regulated it for itself, according to its own free will and pleasure, and in these United States, every Constitution of Government has assumed, as a fundamental principle, the right of the people of a State to alter, abolish and modify the form of its own Government, according to the sovereign pleasure of the people. The right to vote, like the right to hold office, being thus conferred upon the voter by the sovereign will of the people in their organic law or Constitution of Government, the question, upon whom it ought to be conferred, and what should constitute its boundaries and limits; in other words, what should qualify and what should disqualify, is one which the people themselves are to settle. So various are the circumstances, habits, wants, character, conditions, pursuits, dangers and difficulties of different people, that no fixed or certain rule can be laid down, by which the right of suffrage can be imparted. No one has ever yet pretended that the right should be universal, in the most enlarged or extended sense of that term, so as to embrace every age, sex, character and condition. In every State in the American Union, females are excluded from voting and holding office, though taxable citizens, and represented in legislative bodies; so with regard to minors, though they, of the male sex, in addition to being taxed if owners of property, and represented, are also required to bear arms when of the required military age and bodily coustitution. In most of the States, Africans are excluded, though they may be taxed, and, under certain circumstances of age, sex, &c., required to do military duty. And even in the qualified class, exceptions are made; in other words, disqualifications imposed. If, for *597 instance, all free white male persons over twenty-one years of age, be qualified to vote under a general provision, exceptions can be made, and generally are made, so as to exclude from the qualified class those who are aliens, idiots, insane, paupers, &c., or those who may have been convicted of crime, or those who may have by any means, rendered themselves dangerous depositories of such a privilege. All these regulations and limitations are, in my judgment, clearly acts of sovereign power, to be exercised or not; and if exercised, to such degree or extent, as the sovereign power shall determine. The common good of the whole, is the end proposed by every well organized society; and if a restriction of the right of suffrage be deemed necessary or expedient by the sovereign power to attain this end, under the circumstances in which the public interests are placed, there can be no valid objection so to exercise this authority. A liberal exercise of the power may at one stage in the history of a people, be proper and judicious, whilst, at another, a more restrictive policy may be demanded. And what one people may regard as essential, another, at the same time and under similar circumstances, may consider injurious or prejudicial, and therefore, may make different provision to avoid the danger. These principles and views Justice STORY deduces from all the leading authorities upon this subject--the best writers upon natural and constitutional law, both of our own country, and those countries in Europe, in which liberal institutions have in any form or at any time existed. 1 Story on Constitution, sec. 577 to 584.

**39 That the right of suffrage is a very important privilege, and cannot be too highly estimated, no one will deny; and that it should be distinctly defined, and strictly guarded, is as readily conceded. The free exercise of the right by those entrusted with it, and the purity of elections, are fundamental principles of free Government.

In our system of Government, the power to prescribe the qualification of the voter resides with each State of the *598 Union. The Constitution of the United States does not only not restrict this right, but expressly concedes it to the States, and, further than this, entrusts to them “the very important power of ascertaining and directing the qualifications of those who shall be entitled to elect the most numerous branch of the national Legislature,” (2 Wil's Lectures, 131,) for by the Constitution of the United States, (Art. 1, sec. 2,) the members of the House of Representatives, shall be chosen “by the people of the several States, and the electors in each State, shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” The same rule applies to the election of Presidential Electors, when that body is made elective. The Constitution of the United States, does not adopt this rule, because of any supposed or prescribed uniformity, but in the very face of a conceded, and ofttimes very material diversity. The election of these Representatives to Congress, says Mr. MADISON, (Federalist, No. 54,) “is to be exercised by such part of the inhabitants as the State itself, may designate.” He adds, “the qualifications on which the right of suffrage depends, are not perhaps the same in any two States. In some of the States, the difference is very material. In every State a certain proportion of inhabitants are deprived of this right by the Constitution of the State, who will be included in the census, by which the Federal Constitution apportions the Representatives,” &c. How large this proportion, thus deprived of the right, is, can be estimated by adding to the female portion, (always or generally equal to one-half of the entire population of a State,) others who are disqualified, as minors, insane, aliens, without residences, &c., &c. The voting population of a State is not only largely less than one-half of its entire population, but varies in numbers, according to the disqualifications which each State imposes. (1 Story on Const., sec. 580, 582.) These differences all arise from the sovereign pleasure of each State, generously confided in by the Government of the United States, inasmuch as in this *599 particular, she rests herself, as has been well said, on the Governments of the several States; her own protection, as a Republican form of Government, being in the 4th section of the 4th Article of the Federal Constitution, which provides, that “the United States shall guaranty to every State in this Union, a Republican form of Government.” Her own existence, as a Government of this form or character, therefore depends on those of the States. (2 Wil's Lect., 131, 132.)

**40 The right of suffrage should be defined, and its limitations expressed in the Constitution. This is justly regarded, says Mr. MADISON, as a fundamental Article of Republican Government. (Federalist, No. 52.) It peculiarly and properly belongs to the sovereign power of a State to declare and define it. The Constitution of a State is the work of the people of that State. It differs from an ordinary Act of legislation, in this, that the latter is the Act of a representative body, created by the Constitution itself, and acting within the limits prescribed to, or the powers conferred upon it by that instrument.

The Constitution of Maryland, of 1864, was framed and adopted whilst a most gigantic rebellion existed, and had been waged for three and a half years, against the authority and government of the United States. The struggle by the insurgents was to sever and dissolve the Union of the States; that of the Government of the United States, to maintain and preserve it. Maryland occupied the position of a State on the line separating the contending parties; her people divided in sentiment and action,--a considerable portion having left her soil and joined themselves to the cause of the rebellion. Her own territory had been thrice invaded by the insurgent armies in great force; her citizens despoiled of their goods; her fields devastated and crimsoned by the blood of battles; and the relation of the State to the Union, the very palladium of her security and liberties, threatened and endangered. How far those of her people who united in this effort to destroy the Union and *600 assisted in bringing the war, in all its horrors, within her borders, and those of them who aided and abetted the rebellion, or desired success to its arms, were to be deemed safe depositories of the right of suffrage, was a matter for the judgment and determination of the Convention of the people of the State which assembled to revise, amend and alter the Constitution of the State, and for the people themselves when called upon to adopt the instrument itself, thus prepared and submitted by the Convention. What was done by the Convention and people in this respect, is made a matter of grave charge and complaint, and is arraigned as in conflict with the Constitution of the United States, and the inalienable rights of freemen.

Whether this be so or not, has been very fully and ably argued by counsel, and carefully and dispassionately considered by the Court.

The Bill of Rights (7th Article) provides, that “every free white male citizen, having the qualifications prescribed by the Constitution, ought to have the right of suffrage.” This is identical with the provision in the Declaration of Rights in the Constitution of 1851, (Art. 5.)

It will scarcely be contended that the clause, “having the qualifications, ” & c., does not embrace those who are not subject to the disqualifications prescribed by the Constitution. Not to be disqualified is to be qualified. The qualification of a voter is to be determined not simply by what may be affirmatively expressed in the instrument conferring the privilege, but also by what may be negatively declared. One may be qualified by the terms of a general rule, and yet disqualified by the exceptions to the rule. This is too plain for further elucidation.

**41 The 1st section of the 1st Article of the Constitution affirmatively prescribes the qualifications of voters: “Every white male citizen of the United States, of the age of twenty-one years or upwards, who shall have resided in the State one year next preceding the election, and six months in any county or in any legislative district of Baltimore city, and *601 who shall comply with the provisions of this Article of the Constitution, shall be entitled to vote at all elections hereafter held in this State.” This is the general rule.

All not within the terms of the foregoing description are therefore disqualified. They exclude a very large portion, more than one-half of the community, namely: all females; all persons of African blood; all aliens and persons not naturalized; all white male persons under twenty-one years of age; all white male citizens who have not resided in the State one year next preceding the election, and six months in the county or in any legislative district in Baltimore; and all white male citizens of twenty-one years or upwards, &c., who will not comply with the provisions of this 1st Article of the Constitution.” These are, most generally, the persons disqualified by every other Constitution in the Union.

The Constitution, however, does not stop with the 1st section. It proceeds to make certain exceptions also from those who fall within the limits of qualified voters in the 1st section. By the 3rd section, persons above twenty-one years, convicted thereafter of larceny or other infamous crimes, and not pardoned, and persons lunatic or non compos mentis, shall not be entitled to vote. By the 4th section, persons who have been at any time in armed hostility to the United States, or the lawful authorities thereof, or who have done any of the disloyal acts, or made the declaration or expressed the disloyal desire therein specified, shall not enjoy the right of suffrage, unless the disability be removed in the manner therein provided. The 5th section refuses the right to vote to any person convicted of certain acts of bribery or corruption set forth in the section. These disqualifications constitute the exceptions to the general rule of qualification in the 1st section.

The 4th section also prescribes an oath to voters, to be administered at the first election under the Constitution, to any person offering to vote; and at any subsequent election the same oath may be administered. This oath is in these *602 words: “I do swear (or affirm) that I am a citizen of the United States, that I have never given any aid, countenance or support to those in armed hostility to the United States, that I have never expressed a desire for the triumph of said enemies over the arms of the United States, and that I will bear true faith and allegiance to the United States and support the Constitution and laws thereof as the supreme law of the land, any law or ordinance of any State to the contrary notwithstanding; that I will in all respects demean myself as a loyal citizen of the United States, and I make this oath or affirmation without any reservation or evasion, and believe it to be binding on me.”

**42 Any person declining to take this oath shall not be allowed to vote, but (it is declared) the taking of such oath shall not be deemed conclusive evidence of the right of such person to vote; and that it shall be the duty of all officers of registration and judges of election carefully to exclude from voting, or being registered, all persons so as above disqualified.

Such are the provisions OF THE CONSTITUTION in relation to the qualifications and disqualifications of voters, and the mode of ascertaining the status of him who offers to vote. For the purpose of this ascertainment, however, the Constitution further provides, that the General Assembly shall provide BY LAW for a uniform registration of the names of the voters in this State, which registration shall be evidence of the qualification of said voters to vote at any election thereafter held, and after said law shall have been passed and carried into effect, no person shall vote unless his name appears on the register. (Art. 1, sec. 2.) It is the declared duty of all officers of registration carefully to exclude from voting or being registered all persons disqualified; and they are to allow no person to be registered until he shall have taken the oath or affirmation set out in the fourth section of said Article. (Art. 1, sec. 4.) And the 41st section of Art. 3 provides, that the General Assembly shall pass laws for the preservation of the purity of elections by the registration *603 of voters, and by such other means as may be deemed expedient; and to make effective the provisions of the Constitution disfranchising certain persons, or disqualifying them from holding office.

With a view to carry out these constitutional provisions, the General Assembly, at its session in January 1865, passed the law for the registration of the voters of the State. No objection has been made to the law as not being compatible with the foregoing provisions of the State Constitution, except in the one particular, that the law requires, in section 5, the officers of registration to administer to the applicant for registration “the further oath, that he will make true answers to such questions as they may propound to him, touching his right to registration and voting.” It was insisted in the argument that such further oath is not required by the Constitution, and that therefore the registration law, so far as this further oath and the examination of applicants upon interrogatories propounded to them are concerned, is unauthorized and void.

It is true the Constitution of the State does not, in express terms, authorize such further oath to be administered to the applicant. But it does expressly require all officers of registration and judges of election carefully to exclude from voting, or being registered, all persons disqualified; and the judges of election, at the first election, were enjoined to administer to any person offering to vote, the oath or affirmation set out in terms in the 4th section of the 1st Article; and then provides that the taking of such oath shall not be deemed conclusive evidence of the right of such person to vote. The 41st section of the 3rd Article authorizes the Legislature to pass laws for the purity of elections by the registration of voters, and by such other means as may be deemed expedient, and to make effective the provisions of the Constitution disfranchising certain persons.

**43 Taking these provisions of the Constitution together, and looking to the object and purpose of the Constitution designed by them, the inconclusiveness of the oath is as apparent in *604 the case of registration as in the case of elections prior to the passage of a registration law. If, in the one case, it shall not be deemed conclusive, a further examination may be gone into; so in the other, when the evidence of qualification of the voter is to be placed in a more permanent form, and after a fuller and more careful examination, and to make the provisions of the Constitution, disfranchising certain persons, effective, it cannot be perceived on what ground, or for what reason, the oath itself should be deemed conclusive. The 4th section of the 1st Article impliedly confers the power; but taken in connection with the 41st section of the 3rd Article, I consider the power of the Legislature to authorize such further oath to be administered, and the consequent personal examination of the applicant himself touching his right to registration and voting, to be full. It was competent for the Legislature, in making effective these provisions of the Constitution, to require such further oath and examination.

I proceed now to the other and main inquiry arising under the petition, and urged with great force in the argument, whether the 4th section of Article 1st of the Constitution, and the Registration Law carrying out its provisions, are in conflict with the 10th section of the Constitution of the United States, which prohibits any State from passing any bill of attainder or ex post facto law.

Bills of attainder, which include bills of pains and penalties, are prohibited as well by the Constitution of Maryland, (18th Article of the Declaration of Rights,) as by the Constitution of the United States. They are special Acts of the Legislature, inflicting capital or other punishments upon persons supposed to be guilty of an offence, without any conviction in the ordinary course of judicial proceedings. In such cases, the Legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when within its reach, whether conformable to the rules of evidence or not. 2 Story on *605 Const., sec., 1344. Of the same class are ex post facto laws. They are also prohibited by the Constitution of Maryland, (Art. 17, Declaration of Rights.) “This phrase applies to acts of criminal nature only, and the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime when done; or whereby the act, if a crime, is aggravated in enormity or punishment; or whereby different or less evidence is required to convict an offender, than was required when the act was committed.” “An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.” 2 Story on Const., sec. 1345. Calder vs. Bull, 3 Dall., 386. Fletcher vs. Peck, 6 Cranch, 138. Same case, 2 Pet. Cond. R., 308.

**44 These enactments are for the personal security, and the protection of the private rights of the citizen, and are great constitutional bulwarks which are not to be violated. They differ only in this, that in the one case, that of a bill of attainder, the Legislature becomes the judge, and pronounces the guilt of, and the punishment upon, the offender; whilst in the other, the prior act is declared a crime, or aggravated in its enormity or punishment; or a different or less evidence prescribed for a conviction; leaving the trial with the judicial tribunals of the State. It has been well settled, that the term ex post facto law, is not applicable to civil laws, but to penal and criminal laws only. Retrospective laws generally, such as may divest antecedent vested rights of property, are not prohibited by the Constitution of the United States, but only such as are technically ex post facto; namely, such as relate to criminal matters only. Watson vs. Mercer, 8 Pet., 110.

It was gravely urged in the argument, and in support of this petition, that the acts of disqualification in the 4th section of the 1st Article of the Constitution of Maryland, and, as a consequence, so much of the Registration Law as conforms to the provisions of this section, fall within the prohibition of the Constitution of the United States, and *606 these received definitions and construction of the terms used. That the 4th section does not meet the definition of a bill of attainder, is very manifest. It sits in judgment on no particular person or persons for acts done, pronouncing them crimes, applying its own rule of evidence, and inflicting punishment. Nor does it, by way of an ex post facto law, declare certain acts already done, as crimes, which were not so before, and hand over the offender to the public criminal tribunals for trial, conviction and punishment. But it was assumed and insisted on in the argument, that although these technical peculiarities did not appertain to the section, yet the disqualifications it imposed were a punishment for acts declared unlawful; and that this fixed upon it the character of an ex post facto law. But the section, in no part of it, declares these acts to be crimes against the State, and directs those who had committed them to be tried, and upon conviction, adjudged to forfeit their right of suffrage. The mere use of the term unlawful, as applied to these acts of disqualification, or the provision for restoring the person disfranchised, to his full rights of citizenship by an Act of the Legislature, are not to be construed to have the force and effect of enacting these disqualifying acts and words into crimes against the State, to be inquired into and punished by the loss of the offender's right of suffrage or holding office. These acts are described as unlawful, because unlawful in their very nature, and as contrary to the laws of the United States, to which allegiance is a paramount duty, and so declared by the 5th Article of the Declaration of Rights. To call them unlawful, was merely to designate them by the name and character they bore already. The denial of the right of suffrage to such as may have engaged in them, is simply a denial of a privilege to those who, because of their unlawful relations to the United States, were considered not proper and safe subjects for its enjoyment. The denial of the right to those who are excluded by the 1st section, viz: to females, Africans, aliens, minors, &c., is not by way of punishment; *607 nor to a lunatic or person non compos mentis, in the 3rd section. And so the denial of the right to those enumerated as disqualified, in the 4th section, cannot, with any greater propriety, be regarded as a punishment. If the Constitution had prohibited paupers or confirmed inebriates from voting, though they had enjoyed the right before, would such exclusion be regarded as a punishment for past offences? The negro, holding a certain amount of property, once voted in Maryland. He was deprived of the right by a subsequent change of the Constitution. Was that act of the sovereign will ever regarded as an ex post facto law? Or, suppose the people of Maryland, in reforming their Constitution, had, for reasons of policy, chosen to withhold the right from any soldier, seaman or non-commissioned, or commissioned officer in the service of the United States, as many of the Constitutions of the States in the Union do, would this be regarded as in contravention of their rights under the Constitution of the United States, and a punishment for crime committed? If so, all changes of the organic law restrictive of the right, or conferring it upon conditions which did not exist before, would be regarded as conflicting with the Constitution of the United States and void.

**45 A disqualification to vote or hold office for such cause as the popular will, may declare prejudicial to the public safety, or inconsistent with sound policy--the exclusion of a class regarded as inimical to the public welfare and interests, is not by way of punishment to the individuals affected but as a protection to the body politic. All that can be said in such cases is, that the right is not conferred, for reasons of public policy deemed expedient by the Constitution making power, the people of the State in Convention assembled.

The deprivation of the right to vote or hold office, may become a penalty or punishment for crime. As in a case where the right has been conferred by the Constitution, and the Constitution also provides, that upon conviction for *608 crime, the party privileged, shall thereafter be deprived of it. Such is the provision in the first clause of the 3rd section, in cases of conviction for larceny or other infamous crime; and also the provisions in the 5th section against bribery. By these, in addition to the other punishments prescribed by law for the offences, the party convicted, shall also be disqualified from thereafter voting or holding office. In these cases, the right is subject to forfeiture, after having been conferred. But if the Constitution had provided that all persons who had previously been convicted of crime, should not be entitled to vote, this would simply be a disqualification, and not an additional punishment. Of this latter class is the provision in the Constitution of Virginia, which is in these words: “And no person shall have the right to vote, who is of unsound mind, or a pauper, or a non-commissioned officer, soldier, seaman or marine, in the service of the United States, or who has been convicted of bribery in an election, or of any infamous offence.” (Constitution of Virginia, of 1850, 1851, Art. 3, sec. 1.) This is clearly a disqualification,--not a punishment. It is found in an Article entitled: ““Qualification of Voters,” and in a section which contains both the qualifying description, and the disqualifying exceptions.

If I am right in these positions, then all the argument which has been addressed to the Court in relation to the deprivation of rights or punishment of offences, by the 4th section of the 1st Article of the Constitution and the Registry Law, made in pursuance of it, as being without due process of law, falls to the ground. The right to vote being conferred upon those qualified by the Constitution, or not subject to its disqualification, is vested only during the continuance of the popular will. A person entitled to vote, and voting during one constitutional period, may fall within a class disqualified, for public reasons, during another period of constitutional change. And so, a class disqualified at one time, may be deemed worthy of the right or privilege at another. When the right is conferred, and its *609 exercise enjoyed under an existing Constitution, the citizen invested with it cannot forfeit it, criminaliter, without due process of law, nor can its exercise be improperly interfered with, without a legal remedy and redress. This Court has properly laid down the law in this respect, in the recent case of Bevard vs. Hoffman, et al., 18 Md. Rep., 483, 484. That was an action brought against the judges of election in the 8th election district of Carroll county, to recover damages for their refusal to permit the plaintiff to vote at the Presidential election of 1856.

**46 It was argued in that case, on behalf of the plaintiff, that the action lay as well where the citizen was deprived of his vote by the mistaken judgment of the judges of election, as where he was deprived of it by their willful, corrupt or malicious action; and that the absence of fraud, corruption or malice in the judges could only be urged in mitigation of damages; and that this view of the law was best calculated to secure to the citizen the exercise of the invaluable right of suffrage, and at the same time relieve from unnecessary damages those appointed to preside at elections, who may reject a qualified voter from an honest mistake; and for this several authorities were cited, both in England and the United States. But the Court (his Honor, Judge BARTOL, pronouncing the opinion) did not adopt this view, and considered the strongest of the cases cited as not supporting it. “The decisions in these cases (say the Court) assert the principle, that a party who, like the plaintiff, has been deprived of a right, is thereby injured, and must have his remedy. It seems to us that the error of the application of that principle to this case, consists in a misapprehension of what is the right of a citizen under our election laws. In one sense, if he is a legal voter, he has the right to vote, and is injured if deprived of it; but the law has appointed a means whereby his right to vote is decided, and for that purpose has provided judges to determine that question, and has also provided the most careful guarantees for a proper discharge of duty by the judges, by the mode of their *610 selection and their oaths of office. In all governments power and trust must be reposed somewhere; all that can be done is to define its limits and provide means for its proper exercise. When the act in question is that of a judicial officer, all that the law can secure is a guarantee that they shall not with impunity do wrong willfully, fraudulently or corruptly. If they do so act, they are liable both civilly and criminally; but for an error of judgment, they are not liable, either civilly or criminally. If the citizen has had a fair and honest exercise of judgment by a judicial officer in his case, it is all the law entitles him to, and although the judgment may be erroneous, and the party injured, it is ‘damnum absque injuria,’ for which no action lies. This, in our opinion, is the most reasonable rule, and it will be found supported by the weight of authority, both in England and in this country.”

The foregoing opinion, containing a clear enunciation of the law in the case in which it was announced, is of pertinency and value in the consideration of the few remaining points in the cause before us.

The right to vote--the question of qualification or disqualification of the person offering to vote--is to be decided by the tribunals established by the law for the ascertainment of the necessary facts that enter into the inquiry. Means are appointed and judges provided to determine the question, with all the guards that the nature of the investigation admits of. This power and trust must be reposed somewhere; and in this State, and in all the States of the Union, it has been committed to judges of election, who are quasi judicial officers, clothed with the powers and discretion necessary for the performance of the duty, as delicate as it is important to the well-being of republican government. The registration of voters is but another mode for attaining the same ends, introduced into the government of some of the States, and now authorized in Maryland. It has the advantage of ascertaining, before the days of election, who are qualified to vote at the elections when they arrive. The *611 officers appointed to ascertain and register the qualified voters are, by the law of Maryland, at the first registration, the same in number for each election district as the judges of election. They are appointed, by the Executive of the State, with care and a just regard to their qualifications for the duties of the office. They are sworn to perform these duties to the best of their skill and judgment, diligently and faithfully, without partiality or prejudice, &c. They are to sit at times and places made known to all interested by the most public notice; and their mode of procedure is carefully marked out by the law. The judges of election are, by this means, relieved from duties which they could but imperfectly perform in the brief space of one day, at the crowded polls of an exciting election.

**47 It was also much insisted on, in the argument, that it was a violation of the 22nd Article of the Declaration of Rights, to require a voter to give evidence against himself. In criminal cases this could not be done, and it is only to criminal cases that the Article has application. In the view taken in this opinion, the personal examination of the voter under oath, contemplated or required by the Registration Act, can only be on such matters as touch his right to registration and voting. If the voter can be examined on oath as to age, residence or color, or as to his knowledge of facts calculated to lead the mind of the judge to a proper conclusion upon these points of qualification, so the same examination can be pursued when the matter of inquiry is any other of the disqualifications specified in the Constitution. If a party is disqualified by reason of his having been in armed hostility to the United States, his refusal to answer the question will not expose him to a criminal proceeding by the United States for treason. Nor will a negative answer. An affirmative answer might have that effect, and would be a proof of his disqualification to vote. But he is not more compelled to answer the question than he is to give an illegal vote, or to attempt to have his name registered as a legal voter, when his own conscience tells him, *612 when probed, that he is in fact legally and constitutionally disqualified.

The argument that the 23rd Article of the Bill of Rights would be violated in carrying out the 3rd section of Article 1 of the Constitution, in relation to disqualifications for larceny or other infamous crime, or the 5th section, for bribery, seems to be based upon a misapprehension of those sections. It is the conviction in both, and of course “by the law of the land,” or “by due process of law,” that disqualifies. The judges of election or the officers of registration in neither case are to try and convict, but only to determine the fact of a previous conviction. They are to determine by evidence (the kind and degree it is not for this Court now to say) the fact, whether the party has been convicted of any of the offences mentioned. In my view of these sections, the conviction spoken of is one that has taken place since the adoption of the Constitution. Since that date, and before any of the elections under it, (except the one adopting it,) or before the Act of Registration went into effect, such convictions may have taken place, which would gratify the language and provisions of the Constitution and the law, so far as those elections, or the first registration of voters, are concerned. Their application to cases arising beyond these in the future, is of course the more obvious. The punishment for bribery under the Constitution of 1851, (Art. 1, sec. 2,) was the same with that in the 5th section of the present Constitution; so that all that relates in said 5th section to convictions for Acts of bribery since the 4th of July 1851, and prescribing the punishment therefor, is not ex post facto.

**48 I therefore do not regard these provisions of the Constitution of this State, or of the Act of Registration, as obnoxious to the charge of being in conflict with the Constitution of the United States, or the Bill of Rights of Maryland. This Court has furnished a rule of construction applicable to the latter. “The Declaration of Rights and the Constitution compose our form of government, and must be *613 interpreted as one instrument. The former announces principles on which the government, about to be established, will be based. If they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared, according to the subject and language employed.” Mayor, &c., of Balto., ex rel. of the Board of Police, 15 Md. Rep., 459. If error has been committed, our admirable system of government affords the means of correction by a resort to the highest judicial tribunal in the land, the Supreme Court of the United States.

The question that has been submitted to the consideration of this Court, is purely a judicial one. We can exercise no legislative or conventional powers. The Convention and people of Maryland have incorporated into their Declaration of Rights the duty of paramount allegiance to the Constitution and Government of the United States, and have seen proper in their wisdom and in the exercise of the sovereign power of the State, to declare and enact that all those who bore arms against the United States, or have been in any manner in the service of the so-called “Confederate States of America,” or have aided the rebellion in various other ways, and manifested by open word or deed their adhesion to the cause of the enemies of the United States, or their desire for the triumph of said enemies over the arms of the United States, should not be entrusted with the right of suffrage: that they, in other words, should not participate in the elections in Maryland of State or National officers, unless their hostile acts and dispositions shall have been repudiated or changed by honorable military service since in the armies of the United States, or the right of suffrage shall be restored to them by an Act of the General Assembly, passed by a vote of two-thirds of all the members elected to each House. The wisdom of these measures rests with the people. Whether they should be altered, it is for the people to determine, in the manner and at the time provided for in the Constitution itself.

If learned counsel were right in the declarations made to *614 the Court, that they disfranchised two-thirds or three-fourths of the sons of Maryland, it is a matter of deep regret and mortification that so many should have been found faithless to her standard, when the call of duty and paramount allegiance summoned them to the maintenance of her cause, which was the cause of the Union. A single one, found in the ranks or on the side of the enemy, was too many. But it is to be remembered that it is not to be taken for granted that all who did not register their votes are necessarily disfranchised by the Constitution. To register is a voluntary act. And so is a refusal to be registered. It is not more compulsory than the act to vote or not to vote. A far more favorable representation of the loyalty of the citizens of Maryland, is found in an official document. According to the proclamation of the Governor, announcing the vote upon the adoption of the Constitution, 59, 973 votes were polled for and against that instrument; and at the Presidential election of 1864, occurring soon after the adoption of the Constitution, the popular vote of Maryland was within a fraction of 70,000 votes, only 13,500 less than at the election for Governor, in 1861. The qualifications of the voters were the same then as now. They were judged of then by the judges of election, instead of, as now, by the officers of registration. But the change in the mode or means of determining the qualification of the voter, can make no change in the result.

**49 I am therefore of the opinion that the writ of mandamus was properly refused by the Circuit Court for Montgomery county, and its judgment should be affirmed, with costs to the appellees.

This is, substantially, an inquiry into the power of the people of a State, in Convention assembled, to regulate the elective franchise, and prescribe the qualifications and disqualifications of voters.

*615 It is not to be determined by the passions or the prejudices of the hour, but upon principles which lie at the base of all Government. Not only Maryland, but all the States of the Union, and those which may be admitted, are deeply interested in the principles in question.

It is the first instance, in which the Acts of a Convention, have been sought to be restrained by judicial interposition, upon the ground of their inconsistency with the Federal Constitution. The novelty, as well as the importance of the questions, dictate the utmost caution in arriving at conclusions which may prejudice, not individuals only, but communities of men. It is the highest exercise of judicial authority, to set aside legislative Acts, because of their violation of the fundamental law; how transcendent the power, which annuls the organic law of the State, from which it derives its being! “All judicial authority pre-supposes the validity of the Constitution, under which it acts.”

In the distribution of powers among different functionaries, it often happens that each functionary, or department, must decide upon the constitutionality of the exercise of such power, and in many cases, these decisions become final and conclusive, being from their nature and character incapable of revision. “Thus in measures exclusively of a political, legislative or executive character, as the supreme authority as to these questions, belongs to the legislative and executive departments; they cannot be re-examined elsewhere.” 1 Story on the Const., sec. 374. “The remedy in such cases, is solely by an appeal to the people at the elections; or by the statutory power of amendment, provided by the Constitution itself.” Ibid. The Convention concentrated in itself all these powers, its members assumed the same oath to support the Constitution of the United States, which is taken by all officers, State and Federal, and must be presumed to have been equally observant of its obligations.

The powers of a Convention of the people of a State assembled to frame a form of Government, are no where defined. *616 It is the right of the people to alter or abolish, or institute a new Government, “laying its foundations on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” The Convention is the depository of the residuary or reserved sovereignty of the people, unlimited, except so far as restrained by the Constitution of the United States, and the moral law. Whether their action is dependent upon the subsequent ratification of the people or not, is not clearly established; but when ratified and adopted, or acquiesced in, their acts are unquestionably within the limits prescribed. The wisdom or wantonness of the act, its effect upon majorities or minorities, are not subjects of judicial cognizance. These are determined by their adoption. The Courts are not to inquire how many will be affected by their decision, or look to the multitude for their vindication; the rights of a single citizen are as valuable, in the eye of the law, as those of thousands.

**50 Unity in the great ends and objects of Government, is the source of all political power in Republics. For the promotion of these objects, the people of the United States ordained and established a Constitution, which was the supreme law, and erected a national Government, to which they owed paramount allegiance. 2 Hill S. C. Rep., 248.

This supreme Government was assailed, its authority defied, its capital invested, the Territory of Maryland, (whose people had adopted it,) invaded by armies, her towns placed under contribution, her citizens slain and imprisoned, in the name and on behalf of the Confederate States of America. A sovereign Convention of the people assembled in the midst of this civil convulsion, endeavored to strengthen and cement the Union, by removing the great causes of rebellion, the motives for its continuance, encouragement and support; and to secure themselves from anarchy, and social, as well as civil war. They framed a Declaration of Rights and Constitution, submitted them to the people for ratification, and after their adoption had been *617 proclaimed, the old Government was superseded and a new one inaugurated. The executive, legislative and judicial departments, have all sworn to support and maintain it as such. This Constitution, it is conceded, must be assumed and recognized as the organic law of the State. The chief characteristics which distinguish it from former instruments of the kind, are, the declaration of the fundamental principle, that “every citizen of this State, owes paramount allegiance to the Constitution and Government of the United States, and is not bound by any law or ordinance of this State, in contravention or subversion thereof,”--its incorporation, with the right of suffrage; and the abolition of involuntary servitude, except for crime.

It is manifest, that a leading object of the Convention was, to repudiate the doctrine, that any State could by law or ordinance, absolve its citizens from the obligation of obedience to the Constitution and Government of the United States, and to render the Union indissoluble, by excluding from the polls and offices of the State, all who had actively participated in promoting the rebellion, or giving them aid and comfort. “Allegiance is the ligature, that binds the citizen to the Government which protects him.” It is the very antipodes of treason, which, according to the common law definition, is a violation of the obligation of allegiance. The Confederate States had attempted to dissolve the bond of Union, and legalize treason, by the sophistry of secession. Some States yielded only a partial allegiance; Maryland avowed paramount allegiance as the antidote of the right of secession.

The prevalence of this political theory was urged by one of the counsel for the relator, in extenuation of those engaged in the rebellion. Its existence is not less an apology (if one is needed,) for the action of the Convention. If it so pervaded the people, that organized armies were ready to destroy the Government their fathers framed, it became the more necessary for the friends of that Government to strengthen the hands of those who were charged with its *618 defence. Without some such provision, citizens of Maryland, in arms against the United States, would have been qualified voters at the ensuing elections. The soldiers of Stuart and Early, should the war have continued, might have claim ed the right of suffrage unchallenged, under a Constitution professing paramount allegiance to the United States. Such an absurdity would have been too glaring to contemplate.

**51 In promotion of this general purpose, the General Assembly were required to provide by law for a uniform registration of the names of voters, which should be evidence of their qualification at elections thereafter held, and to make effective the provisions of the Constitution, disfranchising certain classes of persons. Const., Art. 1, sec. 2. Art. 3, sec. 41.

In pursuance of these express constitutional commands, the Act of the 24th of March 1865, was passed.

It is insisted this law is null and void, because it violates the Constitution of the United States, and the Constitution of the State, in execution of which it was enacted; and further, that the 4th section of Article 1 of the Constitution of Maryland, disqualifying certain classes, is in conflict with that of the United States, and therefore void.

Three propositions are assumed as the basis of these conclusions:

1st. “The franchise of voting is an inalienable right of property sui generis.”

2nd. “Section 4 of Article 1 of the Constitution of Maryland, and the registry law, are in the nature of a bill of attainder, which includes also bills of pains and penalties.”

3rd. “The disqualifications, including the test oath, declared by section 4, Article 1, and the provisions of the Registration Act, are violations of section 10, Article 1 of the Constitution of the United States, declaring: ‘No State shall pass any bill of attainder or ex post facto law.’ ”

It is conceded, by the argument of the senior counsel for the relator, that sovereign Conventions of the people, prior to the adoption of the Federal Constitution, had unlimited *619 power to fix, change or modify the qualifications of voters, but since its adoption, they are restrained by the 10th section of Article 1 of that instrument. This, we apprehen 1, is a “““petitio principii;” it is the question before us, whether, properly construed, there is any limitation upon the power the people of the States previously possessed and exercised in that respect. There is no allusion to any such purpose in the cotemporaneous expositions or subsequent commentaries on the Federal Constitution by its friends or its adversaries. On the contrary, the inference is almost irresistible, no such limitation would have been tolerated. Rawle on the Constitution, ch. 4, p. 40. Story on Constitution, vol. 1, sec. 548.

Among the absolute, unqualified rights of the State, is that of regulating the elective franchise. It is the foundation of State authority. The most important political function exercised by the people in their sovereign capacity. The 3rd Article of the Declaration of Rights affirms, “that the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.”

Whilst “the right of the people to participate in the Legislature is the best security of liberty and foundation of all free government,” yet it is subordinate to the higher power of regulating the qualifications of the electors and the elected. The original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper, for the safety of the Commonwealth, hence the right is limited to “every free white male citizen having the qualifications prescribed by the Constitution.” Citizenship and suffrage are by no means inseparable; the latter is not one of the universal inalienable rights with which men are endowed by their Creator, but is altogether conventional

**52 STORY, treating of this subject, says: “Every Constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to *620 alter, abolish and modify the form of its own government, according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the Constitution framed by a delegated body under their direction.” 1 Story on Const., ch. 9, sec. 581. * * * * “From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege has been recognized in practice.” Id. * * * * “In no two of these State Constitutions will it be found that the qualifications of the voters are settled upon the same uniform basis, so that we have the most abundant proofs that among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of their own voters, the question as to the due regulation of the qualifications, has been deemed a matter of mere State policy, and varied to meet the wants, to suit the prejudices, and to foster the interests of the majority. An absolute, indefeasable right to elect or be elected, seems never to have been asserted on one side, or denied on the other; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis as the majority may deem expedient, with reference to the moral, physical and intellectual condition of the particular State.” Id., sec. 582.

None of the elementary writers include the right of suffrage among the rights of property or person. It is not an absolute, unqualified, personal right. Lord HOLT, in Ashby vs. White, placed it upon the ground that it was incident to the freehold which the voter owned, or to the burgh or corporation to which he belonged; that it was a part of the Constitution of England, that these boroughs should elect members to serve in Parliament, whether they be boroughs corporate or not corporate; in the one case, the right of election is a privilege annexed to the land, and may be properly called a real privilege; the second sort is, where a *621 corporation is created by charter or prescription, and the members of the corporation, as such, choose members to serve in Parliament. The first sort have a right of choosing as a real right, but here in this last case, it is a personal right, and not a real one, and is exercised in such manner as the charter or custom prescribes, and the inheritance of this right is in the whole body politic, but the exercise and enjoyment of this right is in the particular members. 2 Ld. Raymond, 950, 951. The cases relied on by the appellant, have not been recognized as law in this State.

Ashby vs. White, and Lincoln vs. Hapgood, 11 Mass., were reviewed and overruled in Bevard vs. Hoffman, 18 Md. Rep., 483. In that case this Court said: “The decisions in those cases assert the principle, that a party who, like the plaintiffs, has been deprived of a right, is thereby injured, and must have his remedy. It seems to us, that the error of the application of that principle to this case, consists in misapprehension of what is the right of a citizen under our election laws. In one sense, if he is a legal voter, he has the right to vote, and is injured if deprived of it; but the law has appointed a means whereby his right to vote is decided, and for that purpose has provided judges to determine that question, and has also provided the most careful guarantees for a proper discharge of duty by the judges, by the mode of their selection and their oaths of office. In all governments, power and trust must be reposed somewhere, all that can be done is to define its limits, and provide means for its exercise; when the act in question is that of a judicial officer, all that the law can secure is, a guarantee that they shall not with impunity do wrong willfully, fraudulently or corruptly. If they do so act, they are liable both civilly and criminally; but for an error of judgment, they are not liable either civilly or criminally. If the citizen has had a fair and honest exercise of judgment by a judicial officer in his case, it is all the law entitles him to, and although *622 the judgment may be erroneous, and the party injured, it is damnum absque injuria, for which no action lies. This, in our opinion, is the most reasonable rule, and it will be found supported by the weight of authority both in England and in this country.” Bevard vs. Hoffman, 18 Md. Rep., 483, 484. In the case of injury to property, however unintentional the act, the party injured has his action for damages; even in cases of extreme necessity, all perfect rights have their remedy, but imperfect rights have none.

**53 In New Jersey, Delaware, Virginia, Florida, Louisiana, Indiana, Illinois, Arkansas, Texas, Iowa, Missouri, and Alabama, persons in the naval and military service of the United States, were disqualified as voters. Cushing's Law and Prac. of Leg. Assemblies, 23. The jealousy of federal influence excluded those in actual service from participating in elections. It would be an anomaly if the foes of the Government, its sworn enemies, should be preferred to its friends.

If the right of suffrage is a right of property, by what authority, is it taken from one class and given to another, at the option of the Conventions of the several States? The Constitution of Maryland of 1777, authorised all free men above twenty-one years, having a freehold of fifty acres in the county in which they offered to vote, and residing therein, and all free men having property in this State, above the value of 30 lbs. currency, and residing in the county, to vote. By the amendments of 1801, ch. 90. Every free white male citizen above twenty-one years, and no other, was entitled to the right of suffrage. Thus a large class who previously enjoyed the right were disfranchised.

The appellant's position, if tenable, would render the amendment of the Constitution of 1809, and all subsequent, excluding that class, inconsistent with the Constitution of the United States, and void. The same power which disqualified free colored men in 1801, enabled the *623 Convention of 1864, to disqualify “all who had been in armed hostility to the United States.”

Much reliance was placed upon the case of Killam vs. Ward, and Gardner's case, cited in the note, 2 Mass., 236, 244. These cases turned mainly upon the construction of an Act of the State of Massachusetts, entitled, “An Act to confiscate the estates of certain persons called absentees,” who had levied war or conspired to levy war, or who, since April the 19th, 1775, had withdrawn without the permission of the Legislature, &c., and who were declared to be aliens. The power of the Legislature to pass such laws was not denied, but it was held, in Killam's case, he did not come within the intention of the law, and in Gardner's, that the Act pointed out the mode of prosecution, which had not been followed, “modo et forma,” vide, 249, 264, 266.

“Every Government ought to contain in itself the means of its own preservation.” Federalist, No. 58. For this reason, the regulation of the right of suffrage has been reserved by the States, to themselves, and was not delegated to the General Government by the Federal Constitution. The qualifications of electors by that instrument, are expressly confined to the qualifications requisite for electors of the most numerous branch of the State Legislature. Art. 1, sec. 2, Const. U. S. 2 Scammon, 395, 396. Federalist, No. 52.

It has become a political axiom that every State should control its domestic relations. The most ultra advocate of Federal power would not deny this right to the States in the Union. It is therefore a question of the utmost consequence, whether the brief prohibition, “no State shall pass any bill of attainder or ex post facto law,” was designed to restrain the political power of the people over their fundamental law, or rather the civil power of the legislative branch of State Governments. No other clause of the Constitution of the United States is relied on.

**54 Bills of attainder, as they are technically called, are such *624 special Acts of Legislation, as inflict capital punishments (or pains or penalties,) upon persons supposed to be guilty of high offences, without any conviction in the ordinary course of judicial proceedings. Story's Const., sec. 1344.

“Ex post facto laws are technical expressions, which include every law which renders an act punishable in a manner in which it was not punishable when committed. They relate to penal and criminal proceedings which impose punishments and forfeitures, and not to civil proceedings which effect private rights retrospectively. Retrospective laws, divesting vested rights, unless ‘ex post facto,’ do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation.” 1 Kent's Coms., sec. 19, pp. 409, 410, and authorities there cited.

Prohibitions on the States, are not to be enlarged by construction. To do so, would violate the spirit and object of the 9th and 10th amendments to the Constitution of the United States, viz: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” These were intended to prevent argumentative implications of power not delegated; to exclude any interpretation by which other powers should be assumed beyond those which are granted. The 2nd section of Article 4th of the Constitution of the United States, declares: “The citizens of each State, shall be entitled to all privileges and immunities of citizens in the several States;” yet it has been held, a particular and limited operation is to be given to the words “privileges and immunities,” not a full and comprehensive one. “They do not mean the right of election, the right of holding offices or being elected.” Per CHASE, C. J., 3 H. & McHy., 535. If terms so broad and comprehensive as these are restrained by a consideration of the objects intended, technical *625 terms are not to be enlarged to an extent which will impair the jurisdiction of the States. It is obvious the distinctive and obnoxious feature of ex post facto laws, is the exercise of a judicial function by the Legislature; punishing thereby as crimes, acts not before forbidden, or aggravating their punishment. The object and intention of the Act, fixes its character; that which is preventive, is not necessarily punitive, although it may be accompanied by the withdrawal of privileges previously enjoyed. The political powers of a State, its preventive means, are not to be confounded with the assumption of judicial powers by a Convention or Legislature. The former must exist for the safety of the State, the latter is prohibited for the protection of the citizen. Vindictive motives are not to be imputed to the State; if they existed, perversion of a power does not make it unconstitutional. The right of suffrage being the creature of the organic law, may be modified or withdrawn by the sovereign authority which conferred it, without inflicting any punishment on those who are disqualified.

**55 The 4th section of Article 1st of the Constitution of Maryland, does not declare any act criminal which was not previously so, or add to, alter or change the criminal Code of the State. The Acts referred to, are generally such as come within the legal definition of treason, “levying war against the United States, or adhering to their enemies, giving them aid and comfort.”--“If war be levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” 4 Cranch, 126. 2 Story's Const., 1800. But these acts are not defined as crimes; they could not be prosecuted as such in any Court of the State, or any judgment or conviction be had under the section referred to. The actors are described by their deeds, and a civil disability imposed upon them from considerations of public policy.

*626 The power thus conferred on the registrars by the Act of Assembly, carrying into execution the provisions of the Constitution, is a police or political power, closely analogous to that previously committed to the judges of election; a power, on the due exercise of which, the inauguration and succession of the several departments of the government depend.

Under the old system, the judges determined the qualifications of the voter at the polls; under the new, the registrars ascertain and enroll before hand, those who are qualified and those who are disqualified, subject alike to liability in damages, if they willfully, corruptly or maliciously, exclude any who are entitled.--The inquisitorial and offensive manner in which these duties are said to have been in some instances discharged, is a just cause for public indignation, and speedy correction by the proper authority, but not sufficient to warrant a judgment annulling the law as unconstitutional.

It has been argued that, because the 3d and 5th sections of Article 1, disqualify persons convicted of larceny and bribery, as voters, in addition to the penalties now or hereafter to be imposed by law, the disqualifications of the 4th section are to be regarded as “in pari materia” and penal inflictions, upon the principle of “noscitur a sociis.”

This is not a necessary deduction. Bribery and larceny were made disqualifications by the Constitution of 1851. The clauses of the Constitution of 1864, are nearly recapitulations of the provisions in the former instrument, referring to those crimes, except that the 5th section of the Constitution of 1864 relates to the 4th of July 1851, (when the Constitution of that year took effect,) and covers all cases of bribery occurring in the mean time, not altering or changing in any manner the offence or its punishment. In section 3rd, the disqualification is dissociated from any reference to penalty, and made the consequence of conviction, in the same connection with lunacy or persons non compos; in section 5, it is, “in addition to the penalties now or hereafter *627 to be imposed by law,” a form of expression not materially differing from the former, or sufficiently so to justify the conclusion contended for.

**56 It is said the provisions of the registry law, which provide the mode of appointment of the officers of registration, and authorize them to determine the qualification of voters, with the test oath, are contrary to the Bill of Rights and the Constitution of Maryland.

The first branch of this objection, as to the mode of appointment, was not pressed. It is sufficient to say, there does not appear to the Court any infringement in this respect of the 13th section of Article 2nd of the Constitution, defining the appointing power of the Governor, viz: “He shall nominate, and by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office.” The Act in question, creating the office, does prescribe a different mode of appointment. Where the office is of legislative creation, the Legislature can modify, control or abolish it, and within these powers is embraced the right to change the mode of appointment. Davis vs. The State, 7 Md. Rep., 161.

As to the supposed conflict between the Constitution of Maryland and the Bill of Rights, as it is called, such a collision can scarcely occur, according to the accepted theory of the relation between these instruments. In representative constitutional governments, they are understood to be parts of a whole, constituting an entirety, and to be interpreted as one instrument. The Declaration of Rights is an enumeration of abstract principles, (or designed to be so,) and the Constitution the practical application of those principles, modified by the exigencies of the time or circumstances of the country. “If they differ, the Constitution must be taken as a limitation of the principle previously declared, according to the subject and the language employed.” Mayor & C. C. of Balto. vs. The State, 15 Md. Rep., 459.

*628 The Declaration of Rights is a guide to the several departments of government, in questions of doubt as to the meaning of the Constitution, and “a guard against any extravagant or undue extension of power,” but does not control the Constitution itself, when it is clear and unambiguous. As far then as the registration law is a legislative enactment of the 1st, 2nd, 3rd, 4th and 5th sections of Article 1 of the Constitution, it is not restrained by the Declaration of Rights, because it proceeds from the same authority, that of the Convention.

The perpetual and irrevocable character of these disqualifications has been dwelt upon; we have said that such considerations are beyond our reach, but, happily, the duration of such clauses is more nominal than real; provisions equally perpetual in terms, have passed away with the exigency that dictated them. There is a redeeming sense of justice in the people, which may well be trusted, to remove, in the mode prescribed by the Constitution, all traces of temporary excitement, which prejudice their fellow citizens.

**57 We are reminded of our solemn obligations to support the Federal Constitution, and yet urged to come to conclusions which would prevent all further deliberation and investigation in the Court of last resort. To adopt such a course, with our convictions, would be contrary to the best established principles and precedents.

To declare an act of a co-ordinate department of the govment an unwarrantable assumption, or usurpation of power, because it is a violation of a constitutional prohibition, is an exercise of the judicial office of a grave and delicate nature, which never can be warranted but in a clear case. 12 G. & J., 438.

“The presumption must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.” Per Washington, Justice. “It must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.” 15 Md. Rep., 476, 477.

These axioms were applied to Acts of ordinary legislation. *629 The ultimate object of this appeal is, to annul the organic law of the State, the Act of a sovereign Convention, under which its present government is organized, and from which it derives its existence and authority. Our province is not to make or unmake Constitutions, but to interpret them; not by the light of reason and common sense alone, or that higher law which has been invoked, but which has no oracle, but by the text of the Constitution of the United States, as construed by its authorized expounders.

If we err in our conclusions, we congratulate ourselves there is a Supreme Court erected expressly for the final adjudication of such questions, where our judgment may be reviewed and corrected, and the rights of the citizen vindicated. To this we cheerfully defer, confident that none will more cordially concur in the result.