23 Md. 531 | Md. | 1865
Lead Opinion
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.
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
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, 18 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,
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 ?
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.” ,
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,
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.
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
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
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.
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
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.”
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
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 mandamus prayed for by the appellant ought, for that reason, to ho refused.
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.
Concurrence Opinion
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.
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.
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
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
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
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
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
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
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;
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
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
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
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 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*
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.
Concurrence Opinion
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
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
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
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
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
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 he 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 hear arms when of the required military age and bodily coustitution. In most of the States, Africans are excluded, though they may he 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
That the right of suffrage is a very important privilege, and cannot be too highly estimated, no one will deny; and that it should bo 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
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. Iier 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
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 (Tth 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 oí 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. Hot 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.
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, cmd
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 ago; 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 toill not comply ivith 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 mate 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
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 oe the Constitution in relation to the qualifications and disqualifications of voters, and the mode of ascertaining the status of him who offers to vote. Eor 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 iñ 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
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. Ho 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 arid 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 talcing of such oath shall not be deemed conclusive evidence of the right of such person to vole. 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.
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
I proceed now to the other and main inquiry arising under the petition, and urged with great force in the argm ment, whether the -4th section of Article 1st of the Com stitution, and the Registration Law carrying out its pro-r visions, 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 punishr ments 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 judh cial 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 confonpable to the ruleg of evidence or not. % Stfíry on,
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 hill of attainder, thp 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 lato, 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; nft’mply, 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
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 malting 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 leen conferred ly the Constitution, and the Constitution also provides, that upon conviction for
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 on privilege at another.-' When the right is conferred, and its-
It was argued in that case, on behalf of the plaintiff, that the action lay as well where the citizen was deprived of his rote 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 sudiage, and at the same time relieve from unnecessary damages ruóse 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 Bautol, 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
The foregoing opinion, containing a clear enunciation of the law in the case in which it was announced, is of perti-nency 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
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 tho 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 oh 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 tho 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,
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 lcind 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 5 th seotion 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.
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 tire 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
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
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.
Concurrence Opinion
delivered the opinion of the Court, Judges GoldsboROUGKH, CocHRAN and Weisel, concurring therein :
This is, substantially, an inquiry into the power of the people of a State, in Convention assembled, to regulate the eléctive franchise, and prescribe the qualifications and disqualifications of voters.
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 get 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 oí 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 cannotbe 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 de
Unity in the great ends and objects of Government, is-the source of all political power in Republics. Eor 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. G. Bep., 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
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 tire 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
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 he evidence of their qualification at elections thereafter held, and to make effective the provisions of the Constitution, disfranchising certain classes of persons. Oonst., 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 Eederal Constitution, had unlimited
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
SroRY, 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
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 ov 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
Ashby vs. White, and Lincoln vs. Hapgood, 11 Mass., were reviewed and overruled in Bernard, 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 tho 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 al
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. Gushing’s Law and Brae, of Leg. Assemblies, 23. The jealousy of federal influence excluded those in actual service from participating in elections. It would be an anomaly ii 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 PUT, 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 80 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
Mucli 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 G eneral 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 lato,” 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. Ho other clause of the Constitution of the United States is relied on.
Bills of attainder, as they are technically called, are such
“ 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 he to the principles of sound legislation.” 1 Kent’s Corns., seo. 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 he 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, O. J., 3 fl. & MoKy., 585. If terms so broad and comprehensive as these are restrained by a consideration of the objects intended, tech-
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.
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 here
It is said tbe provisions of tbe registry law, which provide tbe mode of appointment of tbe officers of registration, and authorize them to determine tbe qualification of voters, with the test oath, are contrary to tbe Bill of Rights and the Constitution of Maryland.
The first branch of this objection, as to tbe 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 tbe 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 tbe 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 those 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.
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.
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 suGh a course, with our convictions, would be contrary to the best established principles and precedents.
To declare an act of a coordinate 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 he warranted hut ifi a clear case. 12 Q.&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., 416, 477.
These axioms were applied tq Acts of ordinary legislation.
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.
Judgment affirmed.
