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(States' rights to regulate the elective franchise.)

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.

Story, treating of this subject, says, "every constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the state to alter, abolish and modify the form of its own government, according to the sovereign pleasure of the people; in fact, the people of each state have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the constitution framed by a delegated body under their direction." 1 Story Const. ch. 9, § 581. "From this it will be seen, how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege, has been recognised in practice." Ibid. "In no two of these state constitutions will it be found, that the qualifications of the voters are settled upon the same uniform basis, so that we have the most abundant proofs that, among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of their own voters, the question as to the due regulation of the qualifications, has been deemed a matter of mere state policy, and varied to meet the wants, to suit the prejudices and to foster the interests of the majority. An absolute, indefeasible right to elect or be

(States' rights to regulate the elective franchise.)

elected, seems never to have been asserted on one side, or denied on the other; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis as the majority may deem expedient, with reference to the moral, physical and intellectual condition of the particular state." Ibid. § 582.

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

The cases relied on by the appellant, have not been recognised as law in this state. Ashby v. White and Lincoln v. Hapgood, 11 Mass. 350, were reviewed and overruled in Bevard v. Hoffman, 18 Md. 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

(States' rights to regulate the elective franchise.)

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 wilfully, fraudulently or corruptly; if they do so act, they are liable both civilly and criminally; but for an error of judgment, they are not liable either civilly or criminally. If the citizen has had a fair and honest exercise of judgment by a judicial officer in his case, it is all the law entitles him to, and although the judgment may be erroneous, and the party injured, it is damnum absque injuriâ, for which no action lies; this, in our opinion, is the most reasonable rule, and it will be found supported by the weight of authority both in England and this country." Bevard v. Hoffman, 18 Md. 483, 484. In the case of injury to property, however unintentional the act, the party injured has his action for damages; even in cases of extreme necessity. All perfect rights have their remedy; but imperfect rights have none.*

In New Jersey, Delaware, Virginia, Florida, Louisiana, Indiana, Illinois, Arkansas, Texas, Iowa, Missouri and Alabama, persons in the naval and military service of the United States were disqualified as voters (Cushing's Lex Parl. Am. § 23); the jealousy of federal influence excluding those in actual service from participating in elections. It would be an anomaly, if the foes of the government, its sworn enemies, should be preferred to its friends.

In State v. Staten, 6 Cold. 233, it was held by the supreme court of Tennessee, that the elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands.

(States' rights to regulate the elective franchise.)

If the right of suffrage is a right of property, by what authority is it taken from one class and given to another, at the option of the conventions of the several states? The constitution of Maryland of 1777, authorized all free men, above twenty-one years, having a freehold of fifty acres in the county in which they offered to vote, and residing therein, and all free men, having property in this state above the value of £30 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 convention of 1864 to disqualify "all who had been in armed hostility to the United States."

Much reliance has been placed upon the case of Kilham v. Ward and Gardner's case, cited in the note to 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 the 19th April 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 Kilham's case, that he did not come within the intention of the law, and in Gardner's case, that the act pointed out the mode of prosecution, which had not been followed, modo et forma. Ibid. 249, 264, 266.

"Every government ought to contain, in itself, the

*Not so; a negro was never considered a freeman, within the meaning of the election laws, nor a component part of our political system. Hobbs v. Fogg, 6 Watts 553.

(States' rights to regulate the elective franchise.)

means of its own preservation." Fed. No. 58. For this reason, the regulation of the right of suffrage has been reserved by the states to themselves, and was not delegated to the general government, by the federal constitution. The qualifications of electors, by that instrument, are expressly confined to the qualifications for electors of the most numerous branch of the state legislature. Const. U. S., Art. I., sect. 2; 3 Ill. 395-6; Fed. No. 51. It has become a political axiom, that every state should control its domestic relations; the most ultra advocate of federal power would not deny this right to the states in the union. It is, therefore, a question of the utmost consequence, whether the brief prohibition, "no state shall pass any bill of attainder or ex post facto law," was designed to restrain the political power of the people over their fundamental law, or rather the civil power of the legislative branch of state governments. No other clause of the constitution of the United States is relied on.

Bills of attainder, as they are technically called, are such special acts of legislation as inflict capital punishments (or pains or penalties), upon persons supposed to be guilty of high offences, without any conviction in the ordinary course of judicial proceedings. 2 Story Const. § 1344. "Ex post facto laws are technical expressions, which include every law which renders an act punishable in a manner in which it was not punishable when committed; they relate to penal and criminal proceedings which impose punishments and forfeitures, and not to civil proceedings which affect private rights retrospectively; retrospective laws, divesting vested rights, unless ex post facto, do not fall within the prohibition contained in the constitution of the United States, however repugnant they may be to the principles of sound legislation." 1 Kent Com. 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

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