Anderson v. Baker

Bartol, J., dissented, and filed the following opinion: The first question presented by the record in this case is, whether the provisions contained in the fourth section of the first Article of our State Constitution are in conflict with the provisions of the Constitution of the United States ? Before proceeding to examine that question, it is necessary to determine whether it is one which this Court has the jurisdiction and power to decide. Looking to the structure and organization of our Government, and to the whole current of authorities, this point seems to me to be free from all possible doubt or difficulty. The cases that have heretofore arisen, involving the constitutionality of Acts of Congress, or laws of a State, have been decided upon principles and reasons too firmly established to be now disturbed, and are plainly applicable..

See Kent’s Commentaries, vol. 1, 449 to 454, where the cases are collected. On page 453, the author says: “In Marbury vs. ⁵⁶³ Madison, 1 Cranch, 137 , the subject was brought under the consideration of the Supreme Court of the United States, and received a clear and elaborate discussion'. The power and duty of the judiciary to disregard an unconstitutional Act of Congress, or of any State Legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration.” The principles established by that groat case, have been ever since universally recognized and adopted. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; so if a law be in opposition to the Constitution, if both the Constitution and the law apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case.

This is of the very essence of judicial duty.” 1 Cranch, 177 . How it requires no argument to show that the same principle must govern Courts of Justice, when they are compelled to decide whether anj*- provision in a State Constitution is repugnant to the Constitution of the United States. This last being the paramount law, if they are repugnant to each other, must prevail. This, in the language of Chief Justice MARSHALL, is “emphatically a judicial question,” to be decided by the Courtsit cannot in any sense be called a political question, to be finally determined by the Legislative or Executive Department.

Uor is it concluded by the adoption of the Constitution, and the organization under it of the State Gfovernment. So to maintain would render nugatory and worthless the limitations upon the powers of the States found in the Constitution of the United States. Those limitations are imposed, not only upon the State Legislatures, but upon the States themselves, and can ⁵⁶⁴ no more be transcended or violated by tbe organic law of a State, tban by a law enacted by tbe Legislature. To illustrate this, let us suppose that a State were to adopt a Constitution, containing a clause repealing a private charter, or impairing tbe obligation of any other valid and subsisting contract made either by tbe State, or between its citizens; would it be for a moment contended, that such a provision would be valid, in the face of tbe express prohibition contained in tbe Constitution of tbe United States, declaring that no State shall pass any law impairing tbe obligation of a contract.

Tbis point was expressly decided by the Supreme Court in Dodge vs. Woolsey, 1 8 Sow., 331. Tbe same principle must apply'where tbe case is within any of tbe other inhibitions upon State legislation, contained in the Constitution of the. United States. That Constitution, Art. 1, sec. 10, declares that “no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” The only part of this section which can apply to the present •case, is that which inhibits the passage'of any ex post fac-to law.

Are the provisions of the 4th section of the 1st Article of the State Constitution ex post facto, in the sense in which those words are used in the Constitution of the United States ? This is a most grave and important question, none more so, has ever been presented to the Appellate Court of our State for decision. I have given it as full and careful examination as it has been in my power, and shall proceed to express my opinion upon it, adopting as my guide, the language of Chief Justice Buchanan, when dealing with a kindred subject: “It has been said, that a legislative Act should not be pronounced unconstitutional or invalid in a doubtful case; nor should it, where the doubt is bona fide and well founded, and not the result of a disinclination to deny the authority of the Legislature, which all must feel, but none should yield to, in violation of a solemn duty. But where a Judge is satisfied, upon full consideration, ⁵⁶⁵ that an Act of the Legislature is contrary to the Constitution of the United States, the supreme law, which he is hound to ohoy, and which must prevail over any Act that -comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left him, is honestly and fearlessly to do his duty; from the faithful discharge of which, however unpleasant the task, no upright Judge can shrink if he would.

On the other hand, a Judge should not suffer himself to he betrayed to pronounce an Act unconstitutional or invalid on insufficient grounds by a morbid apprehension that a contrary decision might be ascribed to the want of a proper sense of judicial duty.” Regent’s case, 9 Gill, 383 . It was suggested in the argument, that the Court ought to construe the 4th section, Art. 1 of our Constitution, as operating prospectively from the time of its adoption, and thus avoid the difficulty. Such, no doubt, is the general rule of construction. In Baugher vs. Nelson, 9 Gill, 303 , which was a case involving the construction of the Act of 1845, ch. 352, the Court, after stating the general rule, said : “But this general principle, salutary and well established as it is, as an element of jurisprudence, can have no application to a case, when the Legislature have declared in language too express and plain to be mistaken, that they designed to give to the Statute in question, a retroactive operation.” Here, as in that case, the words are “too plain for dispute, there is no room for construction.” It is impossible, therefore, to adopt the construction of this section, suggested in argument, and declare that it is not retroactive in its operation.

But all retroactive laws are not ex post facto, in the meaning of the Constitution of the United States. Those words have been declared to have a technical meaning more restricted than their ordinary and common signification. This leads me to inquire what is the true meaning of the term ex post facto law, in the Constitution of the United States ? ⁵⁶⁶ The cases in the Supreme Court, in;which they have come under consideration, are : Calder & Wife, vs. Bull, 3 Dall., 386 . Fletcher vs. Peck, 6 Cranch, 87 .

Satterlee vs. Matthews, 2 Peters, 413 . Watson vs. Mercer, 8 Id., 88. Charles River Bridge vs. Warren Bridge, 11 Id., 423. Carpenter vs. Com. of Pa., 17 How., 456.

They have also been considered in many cases arising in the Courts of the different States; among those I have examined are: Strong vs. Nash, 1 Blackf. Ind. Rep., 193. Lock vs. Dane, 9 Mass.

Rep., 362 . Ross’s case, 2 Pick., 169 . Baugher vs. Nelson, 9 Gill, 229 . These cases do not appear to be in conflict, although different Judges have used different language, in defining the terms ex post facto, as used in the Constitution.

In Calder vs. Bull, Judge Chase defined an ex post facto law to be; 1st. “Every law that mates an action done before the passing of the law, and which was innocent when done criminal; aud punishes such action.” 2nd. “Every law that aggravates a crime, or mates 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 l.aw 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; all these and similar laws, are manifestly unjust and oppressive.” The other Judges who delivered separate opinions, concurred substantially in the same views; and the subsequent cases have affirmed the same rule of interpretation. In Fletcher vs. Peck, 6 Cranch, 138 , Chief Justice MARSHALL, defined an ex post facto law, as one “which renders an act punishable in a manner in which it was not punishable when committed.” He adds, “Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public Treasury.” , ⁵⁶⁷ Chancellor Kent, 1 Com., 409, after giving Chief Justice MARSHALL’S definition, says : This definition is distinguished for its comprehensive brevity and precision, and extends to laws passed after the act, and affecting the person by way of punishment of that act, either in his person, or estate. Ex post facto laws relate to penal and criminal proceedings, which impose punishment' or forfeiture, 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 tlxe United States, however repugnant they may be to the principles of sound legislation.

I have quoted thus at length from Chancellor Kent, because I believe he states correctly the result of the various decisions upon this subject. The same construction is adopted by Judge Stoet, 3 Com. on Const., sec. 1339. It is argued that the provision of our State Constitution under consideration, cannot fall within the definition of an ex post facto law, because it relates to the elective franchise, and is intended to fix the qualification of voters; and that being a subject belonging exclusively to the people of the State; the Courts of the United States, have nothing to do with it.” There can be no doubt of the soundness of the position, that the States have the sole and exclusive power of regulating the right of suffrage, and of fixing the qualification of voters, and that the Federal Government cannot constitutionally control or interfere with the State in the legitimate exercise of that power; but it by no means follows that the State can, in the exercise of that power, or of any other of her reserved powers, so legislate as to inflict upon the citizen by way of punishment, pains, penalties or forfeiture by law enacted, ex post facto, within the prohibition of the 10th section, Art. 1st, of the Constitution of the United States. As well might it be said that, her-. cause the State has exclusive jurisdiction over contracts, ⁵⁶⁸ between her citizens and the remedies for their enforcement,, that she can by iaw or Constitution, deprive the citizen of the protection thrown over him by the Constitution of the United States, which maintains the obligation of thé contract inviolate and beyond the power of the States to impair it.

The provision which protects his person and his property from the unjust operation of ex post facto laws, is equally comprehensive, and, where it applies, is alike inviolate by the State, no matter by what form of legislation. By this construction alone, will those provisions in the Constitution of the United States prove, as they were designed, ‘‘ a bulwark in favor of personal security and private rights ?” If then, the provisions of the 4th section, are within the meaning of the Constitution of the United States, an ex post facto law, they are not protected from its operation; because they form part of the organic law relating -to the right of suffrage. Are they ex post facto in the sense and meaning of the Constitution of the United States ? They are retroactive, and relate, to acts done and words spoken antecedently, before the adoption of the Constitution, and declare that no person who has at any time done the acts or made the declarations therein enumerated,, “shall ever be entitled to vote at any election to be held in this State, or to hold any office of honor, profit or trust under the laws of this State, unless, since such unlawful acts, he shall have voluntarily entered into the military service of the United States, and been honorably discharged therefrom, or shall be on the day of election, actually and voluntarily in such service, or unless he shall be restored to his full rights of citizenship by an Act of the General Assembly, passed by two-thirds of all the members elected to each house.” To ascertain the true construction and effect of these provisions, it is necessary to examine the first, third and fifth sections of the same Article, and the seventh Article of the Declaration of Rights, which must be construed with them. ⁵⁶⁹ This Article declares, “that the right of the people to participate in the Legislature, is the host security of liberty, and the foundation of all free Government; for this purpose elections ought to he free and frequent, and every free ■white male citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage.” The qualifications of a voter are prescribed in the first section, they are: “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 legislative district of Baltimore city, and 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.” The 3rd, 4th and 5th sections, declare the causes of disqualification, or causes for which the citizen forfeits the right of suffrage.

With the exception of lunatics, or persons noli compos mentis, who are incapable of doing any valid civil Act, and are therefore excluded, all the causes of disqualification named in the 3rd, 4th and 5th sections, are either for offences before known to the law, or so declared by the Constitution. By the 3rd section, persons convicted of larceny or other infamous crime, unless pardoned by the Governor, are disqualified. Here, disfranchisement is a punishment consequent upon conviction; this provision is prospective only in its operation. By the 5th section, persons convicted of bribery at elections and other offences therein enumerated, are in addition to the penalties imposed by law, disqualified from voting of holding office.

By the 4th section, persons who have at any time done the acts, or made the declarations therein enumerated,— some of them being offences against the United States, and some of them, to wit: words spoken and desires expressed,— not offences known to the law before the adoption of the Constitution, and which are therein for the first time, declared ⁵⁷⁰ to be unlawful, are punished with disfranchisement. It is said, that disfranchisement, under the 4th section, is not intended as punishment. But in the Constitution itself, in the 5th section, disfranchisement is expressly declared to he punishment. How then, can it he said, that in the 4th section, where the same consequence is denounced against the persons who have committed the unlawful acts therein enumerated, can the disfranchisement he construed, not to be punishment.

This, then, is in the nature of a criminal enactment, for it declares certain acts to he unla-wful, and provides, as a consequence of their commission, that the offender shall he disfranchised. The criminal character . of the provision would scarcely he disputed, if the Constitution provided in terms that the offence should he evidenced as the case of larceny and bribery, by conviction in a Court of justice. But it cannot change the penal character of the enactment, if the law-making power fails to secure to the accused the safeguard and protection of a trial according to the law of the land. If I am right in this construction, then the 4th section is an ex post facto law, within the strictest definition of those terms; and therefore within the inhibition of the Constitution of the United States.

The next question to he examined is, whether the provisions of the Act of 1865, ch. 174, entitled, an Act for the registration of the voters of the State, are in conformity with the Bill of Rights and Constitution of Maryland? This question will he considered apart from any objections to the provisions of the Constitution, and assuming them to he in all respects valid. It is contended that the Act is null and void, because it is not ‘ Enacted in articles and sections, in the same manner as the Code is arranged,” as directed by section 28 of Art. 3 of the Constitution. It is plain, upon an inspection of the Act, that this direction has not been complied with; it is passed in the ancient form used and practiced before the ⁵⁷¹ Code was adopted.

The 28th section of the 3rd Article contemplates and directs that the law, in its body and form, shall he codified by the Legislature in passing it; such has been the uniform construction of that section, and the practice under it since the Code was adopted. The provision is the same as was contained in the Constitution of 1851. In this respect the Legislature have failed to observe the directions of the Constitution. The Act passed at the same session, ch. 159, does not, in my opinion, remove the objection.

That Act does no more than declare the purpose of the Legislature with regard to laws thereafter to be enacted on the subject of registration, but does not in fact codify them. I do not think, however, that this omission renders the Act void. The provision of the Constitution, in this respect, is-directory merely; and although a compliance with it would promote the public convenience, and carry out the policy of the State, by maintaining uniformity in the Code embodying the general statute law; yet, looking upon the words of the Constitution as directory only, and relating to form rather than substance, a failure to comply with the form prescribed, would not, either upon reason or authority, render the Act null. Ear more grave and serious, and, in my opinion, fatal objections to the Registration Act now under consideration, present themselves when its several provisions are examined and brought to the test of those vital and fundamental principles embodied in our Declaration of Rights, which form part of our organic law, and are designed as restraints upon the powers of the Legislature, as well as of the other departments of the Government, and which are, in the language of Chancellor Kent, “part of the muniments of freemen, showing their title to protection.” 2 Kent, 8.

The provisions of the Registration Law are, in my opinion, repugnant to the Declaration of Eights of 1864, aiid are not authorized or sanctioned by the Constitution of Maryland. The Bill of Rights and the Constitution form one instrument, and are to be construed together. So far as this question is concerned, they are not in conflict. ⁵⁷² The plain, construction of the 1st, 2nd, 3rd, 4th and 5th sections of the 1st Article of the Constitution, and the tth Article of the Bill of Rights, is, that the right of suffrage is secured to every white male citizen of the United States, of the age of twenty-one years or upwards, and having the requisite residence, unless for some of the causes enumerated in the 3rd, 4th or 5th sections, he is disqualified, or that right has been forfeited. Of course I do not hold that the right of suffrage is a natural or inherent right, existing independently of the organic law.

Eor the purposes of this question, I treat it as a right to he exercised only in conformity with the organic law ; but where it exists, it is a most valuable right, entitled to the same protection as the right to any property or franchise. Where the qualifications enumerated in the 1st section, exist, the right of suffrage is conferred upon the citizen, and to deprive him of that right, the cause of disqualification must be shown. By the 2nd section of the 1st Article, and the 41st section of the 3rd Article, it is made the duty of the Legislature to pass laws for the registration of voters. How is that power to be exeroisod?

The Constitution does not prescribe the mode, further than to require that it shall be done by law. Here the subject is left to be dealt with by the Legislature in the same manner as they may deal with any other subjeot confided by the Constitution to their authority, and to be regulated by law, passed, in subordination to the restraints upon the legislative will, imposed by the Declaration of Rights, and in suoh manner as that the citizen shall not be deprived of those securities for his protection, guaranteed to him by the organic law, and of which the Legislature cannot constitutionally deprive him. By the Registration Act, the Legislature has conferred upon the officers of registration the most extraordinary and despotic powers, which are thus briefly but oorreotly stated in the appellant’s brief: 1. They have the power of summoning witnesses to prove the qualification of voters, and are invested with judicial ⁵⁷³ functions, the same as a Judge of a Circuit Court, for the purpose of issuing summons, attachments and commitments. 2.

They are authorized to pronounce judgment against any citizen for acts committed within or without the jurisdiction of Maryland, which amounts to a forfeiture of his right to vote. 3. They are not required to give any notice of the charges to tho accused party, or to confront him with witnesses, or to try him hy jury, or to keep any written record of the trial. 4. They are only required to record his conviction in these words, “disqualified for disloyalty under Article 1 of the Constitution.” 5. The ordinary rules of evidence are disregarded; tho guilt of parties accused of treason and bribery, is permitted to he proved without trial or conviction by a competent Court; a party is required to testify against himself, particularly hy section five, wherein the registrars are directed to exact an oath from the citizen to answer any questions touching his right of voting, and this even when his oath may be discredited. 6.

The judgment of the registrars disfranchises tho citizen forever, unless discharged by a two-thirds vote of the General Assembly. It seems to me that the Act is in plain conflict with the 2nd Article of the Bill of Rights, by depriving tho citizen of the benefit of “the common law, and tho trial by jury, according to the course of that law.” 2nd, With Article 20, which declares that the trial of facts when they arise, is one of the greatest securities of the lives, liberties and estate of the people. And especially with Article 23, which declares “that no man ought to be taken or imprisoned, or disseised of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, hut by the judgment of his peers, or by the law of the land.” ⁵⁷⁴ These words, “law of the land,” first used in Magna Charta, have been universally interpreted to mean “law in its regular course of administration through Courts of Justice.” See Coke’s Inst., 45, 50. 2 Kent, 13. Story on Const., 661.

In 9 G. & J., 412 , Chief Justice Buchanan said these provisions in the Bill of Rights “were intended as restraints upon the legislative power, by means of Courts of Justice, in which the laws were to he administered, and where all would be entitled to he heard, and have an opportunity afforded them of asserting and defending their rights against any attempted invasion.” See 2 Md. .Rep., 452. 1 Md. Ch. Dec., 252. 3 Kern., (N. Y.,) 394, &c. In 4 Hill, 145 , Chief Justice Bhonson, speaking of the provision in the Constitution of New York, said: “The words law of the land, as here used, do not mean a statute passed’for the purpose of working the wrong;” and again, “the meaning of the section then seems to he, that no member of the State shall he disfranchised of any of his rights and privileges, unless the matter he adjudged agamst him upon trial had according to the course of the common' law.” The Registration Act, by making the decision of the registrars final, and failing to provide any appeal or other mode by which the right of the citizen to his franchise might he tried and determined in due course of law, deprives him of the protection of this great provision in our Bill of Rights. The powers conferred by this Act upon the registrars, are wholly dissimilar from those heretofore held and exercised by judges of election in this State, and no analogy can properly he drawn between them; nor, does it seem to me, is any precedent furnished by our past legislation for conferring upon subordinate tribunals, created by the Legislature, such extraordinary and absolute judicial powers.

The provisions of the Constitution do not, in express terms, authorize the Legislature to confer such powers on the registrars, and such authority cannot be implied in ⁵⁷⁵ the face of the express prohibitions of the Declaration of Rights. Believing the provisions of the Registration Act to he plainly repugnant to the Declaration of Rights, I thinh it ought to be declared inoperative, and that the writ of man damus prayed for by the appellant ought, for that reason, to ho refused. Goldsborough, J. Without expressing my views seriatim upon the important questions involved in this case, I am content to unite with the majority of the Court in affirming the order of the Court below, for the reasons assigned by my brothers, Bowie, Cocheas and Weisel, in their respective opinions. CociiRAH, J., concurred in the decision of the majority of the Court, and tiled the following separate opinion: 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 he 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 he 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 he administered to persons applying for registration as a condition of the right to he 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 he’ 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 jrarpose 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. 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 he 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 he 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 he 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 he 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 he 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 he perpetual and permanent, and the purposes contemplated hy 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- hy each society according to its own circumstances and interests.” With us, the privilege appears to he altogether conventional and derivative, and not original or inherent in the citizens.

Prescribed hy 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 he a privilege, conferable hy 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 he exercised, not exclusively for the benefit of the citizen, or class of citizens professing it, hut 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 1716, 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.” 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 havé been questioned, hut, 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 hy 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 in-defeasable 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, he 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 gee. 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 he entitled to vote, or hold any office of profit or trust. 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 he construed according to words used in particular clauses, but the whole must he 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 see. 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.ecu 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 he retrospective, hut 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. let of his Gom.,p. 451, in reviewing these cases, says, that the definition of an ex post facto law, given in Fletcher vs. Feck,, “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.” 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 he a punishment, as contradistinguished from a mere personal inconvenience or loss of a privilege, it must be found that it was so intended; hut 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 he 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 pf a citizen; it is withdrawn; ⁵⁸⁴ from the? person convicted of infamous crime, for want of the integrity necessary to guard’ against a fraudulent uso or' abuse of it; and from the person rVlia 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 limU tation of the privilege to proper persons, than to the pun" ishment 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. But, as I have intimated, there is another reason why the* objection made to this section cannot be maintained.

Wo have found that the elective franchise is conferred on the citizen by the sovereign power of the State, to- su-bserve a public general purpose; that, as against the sovereign powder, the citizen acquires no indefeasable right, and that the' right of the people to qualify,, suspend or entirely with-" draw the privilege, is one of its inherent conditions, im--pressed 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 tó be ex' post facto• or' retrospective,, in the strict sense- of those terms. The sus--pension of the privilege, no matter upon what pretext, is'authorized hy 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 hint, 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 he successfully invoked in aid' of the citizen in such a case as .this, .would become., an 'im ⁵⁸⁵ rstrumcnt 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 hearing upon the final disposition of the case, and for that reason should he decided here. One is, that the Act of 1865, ch. 114, was not enacted in articles and sections, according to the requirements of section 28, Article 8 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 he 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 he 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 bo 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, hut directory, — a mere instruction to the Legislature as to the form in which laws should he 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, 1 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. 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, pos ⁵⁸⁷ sessed 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, hy 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. ⁵⁸⁸ This view of' these provisions, and of the powers they confer, leads ns to the question of their conflict with the Declaration of Rights. That instrument is to he taken as a part of the Constitution. It declares not only doctrines' relating to and confirmatory of personal rights, hut principles to he regarded in administering the Government; like' the Constitution, it was the immediate work of the people acting in their sovereign capacity, and, with the Constituí tion, 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 he 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; hut if the Constitution differs in any of its provisions with the general doctrines or principles set forth in the Declaration of Rights, such provisions a¡re to he regarded as limitations or qualifications of those general doctrines or principles, and allowed to have effect accordingly. Cr ane 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 he defeated and pronounced void on that ground, hut taken as exceptions to, or qualifications oí, 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 he 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 meas-' ure 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 b'y the record; and that they had the discretion and power so to treat it, I do n’ot entertain a doubt. The soundness of the other objection's must be tested by the-express and necessarily implied requirements of the Constitution in regard to registration.

The officers of registration are directed by the 4th sec. of Art. 1st, t o 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 b'e 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 propounds The mode of further examination, thus prescribed, is not only a compliance* ⁵⁹⁰ with a well defined requirement of the Constitution, hut 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, hy the Constitution, he could not acquire the right to he 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 th*e 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 Eights, 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.

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. Weisel, J., concurred in the decision of the majority of the Court, and filed the following separate opinion: 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 aiford 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. Eor 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 he regarded as void, does not belong to this case, and was not prompted hy 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 hy the principles of free government, and as in conflict with the letter and spirit of the Eederal 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. It is conceded that if there is any thing in the registration law of 1865, or of the Constitution of Maryland, au-thorising 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 gr-avest 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 he 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 jperson 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 p.erson 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.) The Legislature, at the session of January 1865, passed an Act relating to the registration of the voters of the State, (ch. 114.) 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 he 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 he 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. 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 tlie States in their sovereign capacity, when forming or amending their State Constitutions, to restrict or enlarge it, according to their sovereign will and the