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(States' rights to regulate the elective franchise.)

of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." These were intended to prevent argumentative implications of power not delegated; to exclude any interpretation by which other powers should be assumed beyond those which are granted. The second section of the fourth article of the constitution of the United States, declares, that "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." Chase, J., 3 H. & McH. 554. If terms so broad and comprehensive as these are restrained by a consideration of the objects intended, technical terms are not to be enlarged to an extent which will impair the jurisdiction of the states. It is obvious, the distinctive and obnoxious feature of ex post facto laws, is, the exercise of a judicial function by the legislature; punishing thereby as crimes, acts not before forbidden, or aggravating their punishment. The object and intention of the act fix its character; that which is preventive, is not necessarily punitive, although it may be accompanied by the withdrawal of privileges previously enjoyed. The political powers of a state, its preventive means, are not to be confounded with the assumption of judicial powers by a convention or legislature; the former must exist, for the safety of the state; the latter is prohibited, for the protection of the citizen. Vindictive motives are not to be imputed to the state; if they existed, perversion of a power does not make it unconstitutional.

The right of suffrage, being the creature of the organic law, may be modified or withdrawn by the sovereign authority which conferred it, without inflicting any pun ishment on those who are disqualified. The fourth section

(States' rights to regulate the elective franchise.)

of the first article of the constitution of Maryland, does not declare any act criminal which was not previously so, nor 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 Const. § 1801. But these acts are not defined as crimes; they could not be prosecuted as such in any court of the state, nor 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, for considerations of public policy.

The power thus conferred on the registrars, by the act of assembly, carrying into execution the provisions of the constitution, is a police or political power, closely analogous to that previously committed to the judges of election; a power, on the due execution of which, the inauguration and succession of the several departments of the government depend. Under the old system, the judges determined the qualifications of the voter at the polls; under the new, the registrars ascertain and enroll beforehand, subject alike to liability in damages, if they wilfully, 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 the 1st article 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

(States' rights to regulate the elective franchise.)

4th section are to be regarded as in pari materiâ, and penal inflictions, upon the principle of noscitur à 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 of 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 meantime, not altering or changing in any manner the offence or its punishment. In section 3d, 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 five, it is, "in addition to the penalties now or hereafter to be imposed by law," a form of expression not materially differing from the former, or sufficiently so to justify the conclusion contended for.

It is said, the provisions of the registry law which provide the mode of appointment of the officers of registration, and authorize them to determine the qualifications of voters, with the test oath, are contrary to the bill of rights and the constitution of Maryland. The first branch of this objection, as to the mode of appointment, was not pressed. It is sufficient to say, there does not appear to the court any infringement in this respect of the 13th section. of the 2d article of the constitution, defining the appointing power of the governor, namely, "he shall nominate, and by and with the advice and consent of the senate, appoint all civil and military officers of the state, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office." The act in question, creating the office, does prescribe a different mode of appointment. Where the office is of legislative creation, the legislature can modify, control or abolish it, and within these powers is embraced the right to change the mode of appointment. Davis v. State, 7 Md. 161.

(States' rights to regulate the elective franchise.)

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 and Common Council of Baltimore v. State, 15 Md. 459. The declaration of rights is a guide to the several departments of government, in questions of doubt as to the meaning of the constitution, and "a guard against any extravagant or undue extension of power," but does not control the constitution itself, when it is clear and unambiguous. As far then as the registration law is a legislative enactment of the 1st, 2d, 3d, 4th and 5th sections of the first article of the constitution, it is not restrained by the declaration of rights, because it proceeds from the same authority, that of the convention.

The perpetual and irrevocable character of these disqualifications has been dwelt upon; we have said that such consideration is 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

(States' rights to regulate the elective franchise.) investigation in the court of last resort. To adopt such a course, with our convictions, would be contrary to the best-established principles and precedents. To declare an act of a co-ordinate department of the government 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 can never be warranted but in a clear case. 12 Gill & Johns. 438. "The presumption must always be in favor of the validity of laws, if the contrary is not clearly demonstrated." Washington, J. "It must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication." 15 Md. 476-7. These axioms were applied to acts of ordinary legislation; the ultimate object of this appeal is, to annul the organic law of the state, the act of a sovereign convention, under which its present government is organized, and from which it derives its existence and authority. Our province is not to make or unmake constitutions, but to interpret them; not by the light of reason and common sense alone, or that higher law which has been invoked, but which has no oracle, but by the text of the constitution of the United States, as construed by its authorized expounders.

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

Judgment affirmed.

BARTOL, J., dissented.

The exclusive right of the several states to regulate the exercise of the elective franchise and to prescribe the qualifications of voters, was never questioned, nor attempted to be interfered with, until the 15th amendment to the constitution of the United States was forced upon unwilling communities (the states then lately in rebellion), by the military power of the general government, and thus made a part of our organic law; a

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