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(States' rights to regulate the elective franchise.)

to persons applying for registration, as a condition of the right to be registered, were ex post facto laws, within the meaning of the tenth section of the first article of the federal constitution, and therefore void.

Brent, Pratt and Reverdy Johnson, for the appellant.

Randall, Attorney-General, and Williams, for the appellees.

BOWIE, C. J., delivered the opinion of the court. This is, substantially, an inquiry into the power of the people of a state, in convention assembled, to regulate the elective franchise, and prescribe the qualifications and disqualifications of voters. It is not to be determined by the passions or the prejudices of the hour, but upon principles which lie at the base of all government. Not only Maryland, but all the states of the union, and those which may be admitted, are deeply interested in the principles in question.

It is the first instance in which the acts of a convention have been sought to be restrained by judicial interposition, upon the ground of their inconsistency with the federal constitution. The novelty, as well as the importance of the questions, dictate the utmost caution in arriving at conclusions which may prejudice, not individuals only, but communities of men. It is the highest exercise of judicial authority to set aside legislative acts, because of their violation of the fundamental law; how transcendent the power which annuls the organic law of the state, from which it derives its being! " All judicial authority presupposes 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

(States' rights to regulate the elective franchise.)

incapable of revision: "thus, in measures exclusively of a political, legislative or executive character, as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere." 1 Story Const. § 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 nowhere defined. It is the right of the people to alter or abolish, or institute a new government, "laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." The convention is the depository of the resi duary or reserved sovereignty of the people, unlimited, except so far as restrained by the constitution of the United States and the moral law; whether their action is dependent upon the subsequent ratification of the people or not, is not clearly established; but when ratified and adopted, or acquiesced in, their acts are unquestionable, within the limits prescribed; the wisdom or wantonness of the act, its effect upon majorities or minorities, are not subjects of judicial cognisance; these are determined by their adoption. The courts are not to inquire how many will be affected by their decision, or to look to the multitude for their vindication; the rights of a single citizen are as valuable, in the eye of the law, as those of thousands.

Unity in the great ends and objects of government, is the source of all political power in republics; for the promotion of these objects, the people of the United States ordained and established a constitution which was the

(States' rights to regulate the elective franchise.)

supreme law, and erected a national* government to which they owed paramount allegiance. 2 Hill 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 in 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 proclaimed, the old government was superseded and a new one inaugurated. The executive, legislative and judicial departments have all sworn to support and maintain it as such. This constitution, it is conceded, must be assumed and recognised as the organic law of the state.

The chief characteristics which distinguish it from former instruments of the kind are, the declaration of the fundamental principle, that "every citizen of this state owes paramount allegiance to the constitution and government of the United States, and is not bound by any law or ordinance of this state in contravention or subversion thereof;" its incorporation with the right of suffrage; and the abolition of involuntary servitude, except for crime. It is manifest, that a leading object of the convention was, to repudiate the doctrine, that any state could, by law or ordinance, absolve its citizens from the obligation of obedience to the constitution and government of the United States, and to render the union indissoluble, by excluding from the polls and offices of the state, all who

*The constitution terms it the general government; the word "national" was stricken out by the convention of 1787.

(States' rights to regulate the elective franchise.)

had actively participated in promoting the rebellion, or giving it aid and comfort. "Allegiance is the ligature that binds the citizen to the government which protects him." It is the very antipodes of treason, which, according to the common law definition, is a violation of the contract of allegiance. The Confederate States had attempted to dissolve the bond of the 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 defence. Without some such provision, citizens of Maryland in arms against the United States, would have been qualified voters at the ensuing elections; the soldiers of Stuart and Early, should the war have continued, might have claimed the right of suffrage unchallenged, under a constitution professing paramount allegiance to the United States; such an absurdity would have been too glaring to contemplate.

In promotion of this general purpose, the general assembly were required to provide by law for a uniform registration of the names of voters, which should be evidence of their qualification, at elections thereafter held; and to make effective the provisions of the constitution, disfranchised certain classes of persons. Const., Art. I., sect. 2; Art. III., sect. 41. In pursuance of these express constitutional commands, the act of the 24th of March 1865, was passed.

It is insisted, that this law is null and void, because it violates the constitution of the United States, and the

(States' rights to regulate the elective franchise.)

constitution of the state, in execution of which it was enacted; and further, that the 4th section of the first article 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: 1. The franchise of voting is an inalienable right of property, sui generis: 2. The 4th section of the 1st article 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: 3. The disqualifications, including the test oath, declared by the 4th section of the 1st article, and the provisions of the registration act, are violations of the 10th section of the 1st article of the constitution of the United States, declaring that "no state shall pass any bill of attainder or ex post facto law.

It is conceded by the argument of the senior counsel for the relator, that sovereign conventions of the people, prior to the adoption of the federal constitution, had unlimited power to fix, change or modify the qualifications of voters, but that since its adoption, they are restrained by the 10th section of the 1st article of that instrument. This, we apprehend, is a petitio principii; it is the question before us, whether, properly construed, there is any limitation of the power the people of the states previously possessed and exercised in that respect. There is no allusion to any such purpose in the contemporaneous expositions or subsequent commentaries on the federal constitution, by its friends or its adversaries; on the contrary, the inference is almost irresistible, that no such limitation would have been tolerated. Rawle Const. ch. 4, p. 41; 1 Story Const. § 548.

Among the absolute, unqualified rights of the states, 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 third article of the declaration of rights affirms, "that the people of this state ought to have the sole and exclusive

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