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.
*576This proposition, with others of a subordinate character'? going to the consistency of the Registration Act with the Bill of Rights and Constitution of the State, were fully and ably discussed in the argument of the case; and it must he’ conceded that they present «questions of the utmost delicacy and importance. Involving, as they do, the right of a considerable portion of our citizens to the continuance of a privilege heretofore enjoyed, and consequently tending to excite the public mind, it is, perhaps, to be regretted, that their adjudication is required at a time when the judgment to be pronounced may fail to command impartial consideration. This, however, is a result with which we have nothing to do. Our duty in the premises is a plain one, and that is, to declare, without fear or favor, the law as we find it.
That the question as to the conflict of the State Constitution with that of the United States, is wholly judicial in its nature, and one that this Court has jurisdiction and power to decide, is scarcely the subject of a doubt. It was not contended, nor does it appear to be distinguishable in principle from the like question of repugnancy on a legislative Act, which the State Courts are required to hear and determine. The Constitution -of the United States, as the Supreme law of the land, is binding on the governmental power, as well as on the people of the several States; and the 10th section of Article 1, declaring that no State “shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts/’ is an inhibition operating as directly and with as much force upon the original lawmaking power of the States residing in the people, as upon that power when delegated to the Legislative Department of a State government. In this view the State Constitution, although an organic Act of the people, is none the less a law within the meaning and restrictive jrarpose of this section of the Federal Constitution. To hold otherwise, would be to strike down a bulwark interposed for the protection of the citizen by the supreme law of the land. *577and open a door to the very mischiefs it was intended to guard against and prevent.
Treating, then, the important question here presented as one properly within our jurisdiction, some of the principles recognized as elemental in our system of State government, must he taken into consideration. That the States are sovereign within the limitations imposed by the Federal Constitution, and that this sovereignty resides in the body of the people of the several States, is not denied; nor is their power to reform or abolish their existing State governments and establish new ones, within the above mentioned limitation, open to question. In the exercise of this power, they may ordain and establish the form of government in their judgment best adapted to their wants, condition and interests; they may prescribe the offices necessary to its administration, and declare the qualifications of the officers, as well as define the nature and extent of their authority and duty; and to the end that the government ordained may he permanent, and still admit of administration with the force and according to the varying condition and sense of the people, they can provide for vacating and filling the offices at stated intervals by elections, and, as a necessary incident of this power, clothe the citizens, or any class of them, with the elective franchise. In brief, the people, in their original sovereign character, are the fountain head of governmental authority, and all the powers necessary to he exercised in the continued administration of a representative government, originate in and are delegated by an exertion of their sovereign will. These propositions, founded in necessity, and illustrated by long continued practice, have become the received doctrines of the American people, — in ■fact, axioms in the civil polity of the several States; and as doctrines firmly and finally established by universal consent, they are thus generally stated, that we may proceed with a more definite understanding of the nature of the right in question. It will he necessary, however, to show that the conclusions we have reached are consistent, with *578these fundamental principles, that a closer examination of this right should he had.
As we have seen, the right of suffrage is-bestowed on the citizens as a necessary element in every representative Government, to the end, that the Government ordained, may he perpetual and permanent, and the purposes contemplated hy its establishment, more effectually accomplished. “ The right of voting,” says Story, in his- Commentaries on the Constitution, sec. 580, “like many other rights, which, whether it has any fixed foundation in natural law or not, has always been treated in. the practice of nations, as a strictly civil right, derived from and regulated- hy each society according to its own circumstances and interests.” With us, the privilege appears to he altogether conventional and derivative, and not original or inherent in the citizens. Prescribed hy the people in the exercise of their organic power, for the purpose of giving effect to their expressed will, it is impossible, in the nature of things, that it should exist, or have an existence independent of that will. It is held to he a privilege, conferable hy the people for sovereign purposes on a greater or less number of citizens, and the power to confer it for purposes that they may change at pleasure, necessarily implies power to withdraw or suspend it. But this is not all. The people, in clothing a citizen with the elective franchise, for the purpose of securing a consistent and perpetual administration of the Government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect, constitute him a representative of the whole people. This duty requires that the privilege thus bestowed, should he exercised, not exclusively for the benefit of the citizen, or class of citizens professing it, hut in good faith, and with an intelligent zeal for the general benefit and welfare of the State. It is on that ground that the corruption of the privilege by bribery, is denounced as a crime; and that adherents to a public enemy, conspirators against established authority, and felons are held to be *579unfit, and unsafe depositaries of a privilege, the disinterested, honest and faithful exercise of which is so vital to the preservation of public justice and tranquility. In no case, so far as we have learned, has the right of suffrage ever been conferred on all the citizens of any State. In many of them, the qualifications prescribed for its exercise, are such, that large numbers of the citizens are altogether excluded from its enjoyment, while in others, the privilege, where once conferred, has been withdrawn and bestowed on citizens not before possessed of it. By the first Constitution of this State, adopted in 1716, the right of suffrage was limited to all free men, without regard to color, above the age of twenty-one years, having a freehold of fifty acres in the county of the voter’s residence, and to all freemen having property in the State, above the value of thirty pounds current money.”
In 1802, a radical change was made in this provision of the organic law by an amendment, which declared, “ that every white male citizen of this State, and no other, above the age of twenty-one years,” having resided, &c., should “have a right of suffrage.” It is unnecessary, however, to multiply illustrations of this exercise of the sovereign power of the States. In this particular it is sufficient, for our present purpose, to show that the elective franchise, as a privilege of the citizen, is a matter, of which, the people of the State have the absolute control. That this right or power of the people of the several States, is neither abridged nor interfered with by the Constitution of the United States, seems never to havé been questioned, hut, on the contrary, to have been affirmed by a necessary implication from the provision in the 2nd sec. of Art. 1, declaring that the electors of representatives in each State, “ shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” To recapitulate then, the substance of what has already been said, for the purpose' of concluding on this branch of the present inquiry, I find : 1st. That the elective franchise, within the purview of *580this case, is a privilege conferred on the citizen hy the sovereign power of the State to subserve a general public purpose, and not for private or' individual advantage; that, as against the power conferring it, the citizen acquires no in-defeasable right to its continuance or enjoyment; and that the people of the State, in ' the exercise of their sovereign power, may qualify, suspend, or. entirely withdraw it from any citizen or class of them, providing always, that representation of the people, the essential characteristic of a Republican Government, he not disregarded nor abandoned; and, 2nd. That the right and power of the people to qualify, suspend, or entirely withdraw this privilege, is an inherent condition of its enjoyment, impressed upon, and following it from the time of its bestowal on the citizen.
Let us now examine the provisions of the State-Constitution, upon which the main question here is raised.
The 7th gee. of the Bill of Rights declares, that “every free white male citizen, having the qualifications prescribed in the Constitution, ought to have the right to vote,” and the 1st, 3rd, 4th and 5th secs, of Art. 1 of the Constitution prescribe these qualifications, ■
The 1st of these secs, provides, that every free white male citizen above the age of twenty-one years, who shall have resided one year in the State, and six months in any county or election district of Baltimore city, and who shall comply with the provisions of this Art., shall have the right to vote; the 3rd declares, that no person, lunatic or non compos mentis, or person convicted of any infamous crime, unless pardoned by the Governor, shall have the right to vote; the 4th, that no person who has been in armed hostility to the United States, or who has been in the service of the so called Confederate States, or who has in any manner by word, act or deed, given them aid, comfort or countenance, or declared his adhesion to them, or expressed a desire for their triumph, shall have the right to vote; and the 5th, that no person who, since the 4th of July 1851, has-been or shall be convicted in a Court of Law of *581bribery, or of resorting to force, fraud, or surprise, to corrupt or defeat the exercise of the right of suffrage, shall thereafter he entitled to vote, or hold any office of profit or trust.
To ascertain the class of persons to whom the privilege .of voting is extended by these provisions, it is necessary to .consider and construe them as a whole, according to the ordinary meaning and sense of the terms used, and so as to effect their intended purpose. The rule of construction in such cases, is well stated in Manly vs. State, 7 Md. Rep., 135, where it was said, that “ Constitutions are not to he construed according to words used in particular clauses, but the whole must he considered,”
We find, then, by the true construction of these provisions, that the right of suffrage is bestowed upon such persons only, as are within the description of the 1st sec., and not within the exceptions contained in the 3rd, 4th and 5th sections; and by necessary implication, that the right has been withdrawn from, and denied to all persons within these .exceptions, and not within the description of the 1st sec.
The question to be considered is raised upon the 4th sec., which suspends or withdraws the right or privilege of voting from a portion of the citizens for deeds done, and words spoken before the Constitution was adopted, and it is objected to on that ground as retrospective and ex post facto, within the meaning of see. 10, Art, 1 of the Federal Constitution,
In my opinion, there are two replies to this objection, either of which is conclusive. The first requires that we should ascertain the true force and meaning of the term.ecu post facto, as used in the Constitution of the United States, We have carefully examined the cases in which this term has been considered, and its scope and purpose limited and defined, In Calder & Wife vs. Bull, 3 Dall., 386, where the question here was pressed upon the Court, Chase, Justice, defined an ex post facto law to be:
1st, Every law that makes an action done before the *582passing of the law, and which, was innocent when done, criminal.
2nd. Every law that aggravates a crime, or makes it greater than it was when committed.
3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed.
4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender.
He says, further, that “every ex post facto law must he retrospective, hut that every retrospective law is not ex post facto.” In Fletcher vs. Peck, 6 Cranch, 138, MARSHALL, Chief Justice, said, than an ex post facto law is one which renders an act punishable in a manner in which it was not punishable when committed; and Chancellor Kent, in Vol. let of his Gom.,p. 451, in reviewing these cases, says, that the definition of an ex post facto law, given in Fletcher vs. Feck,, “is distinguished for its comprehensive brevity and precision,'and it extends to laws passed after the act, and affecting a person by way of punishment of that act, "either in his person or estate. Ex post facto laws relate to criminal and penal proceedings, which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively. Retrospective laws and State laws, divesting vested rights, unless ex post facto or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation.”
Accepting then, as we are bound to do, this exposition of the character and office of the term ex post facto, as used in the Federal Constitution, we have next to inquire whether the suspension of the right to vote for the reasons stated in the 4th section of Article 1, is a punishment, within the meaning of that term, inflicted upon the persons whose *583right or privilege of voting is suspended. To he a punishment, as contradistinguished from a mere personal inconvenience or loss of a privilege, it must be found that it was so intended; hut if it be found, on the other hand, that the distinctive purpose of the section in question was altogether foreign to the criminal status of the citizen, and that the privilege of voting was qualified or withdrawn as an incident only of that purpose, then the provisions therein contained cannot be construed as penal, or he held open to any objection on that ground. In ascertaining, therefore, the purpose of the provision, we shall answer the inquiry propounded here.
The sections of Article 1, to which we have referred, all relate to the right of suffrage, and were intended to fix, limit and qualify, the possession and exercise of it. As a part of the Constitution, they vest and regulate the exercise of a privilege essential in its nature to the permanency and consistent administration of the government it establishes; and that this privilege was dealt with in these sections with express reference to that purpose, and no other, would scarcely seem to be the subject of a doubt. The end proposed by the Constitution, was the establishment of a new government, and the class and qualifications of the citizens who, by the right of suffrage, were to be clothed with the power of controlling and administering it, were, as they now stand in the Constitution, the first and most important of the matters for consideration. It must be presumed, from the nature of the subject, that the framers of the Constitution, as well as the people who adopted it, intended, by the several provisions contained in these sections, to secure not only the stability of the government, but to guard against an inconsistent or perverted administration of it. With that view, and in furtherance of that purpose, the privilege of voting was withheld from a class of citizens presumptively unfitted to exercise it. It is denied to the lunatic or person non compos mentis, because of his incapacity to understand or perform the duties pf a citizen; it is withdrawn; *584from the? person convicted of infamous crime, for want of the integrity necessary to guard’ against a fraudulent uso or' abuse of it; and from the person rVlia has been in armed hostility to the United States-, or has adhered to- their enemies, on the ground of hostility to the State, as an integral part of the Union. Even the 5th section, which may be said to contemplate in some' qualified sense, an increase or addition to the penalties of bribery, looks more to the limU tation of the privilege to proper persons, than to the pun" ishment of the offender. No such doubt arises, however,, in regard to the scope and meaning of the 4th section, which discloses a purpose so far disconnected from and foreign to' the criminal status of the citizen affected, as to bar any inference that punishment, as such, was intended.
But, as I have intimated, there is another reason why the* objection made to this section cannot be maintained. Wo have found that the elective franchise is conferred on the citizen by the sovereign power of the State, to- su-bserve a public general purpose; that, as against the sovereign powder, the citizen acquires no indefeasable right, and that the' right of the people to qualify,, suspend or entirely with-" draw the privilege, is one of its inherent conditions, im--pressed upon and following it from the people to the citizen. If this exposition of the nature of the privilege be the true one, it is impossible for this section tó be ex' post facto• or' retrospective,, in the strict sense- of those terms. The sus--pension of the privilege, no matter upon what pretext, is'authorized hy this inherent condition, subject to which the’ citizen holds' it; and' if it can be suspended without regard’ to the conduct of the citizen, certainly no deed or word-done or spoken by hint, could subject that power to any limitation or restriction. The condition of the privilege,, as between the people and the citizen', takes it altogether out of the range of ex' post facto legislation; and it is not too much to add that the constitutional inhibition against ex post facto laws, if it could he successfully invoked in aid' of the citizen in such a case as .this, .would become., an 'im *585rstrumcnt for converting a conditional privilege into a vested right, as 'well as for disarming the people of a power essential to the safe management and control of their domestic affairs. Upon this expression of my views, I conclude that the 4th section of Article 1 of the State Constitution does not conflict with the provisions of section 10 of Article 1 of the Constitution of the United States.
In the course of the argument, other propositions were (discussed, which do not appear to have been specifically presented in the appellant’s petition, as reasons for granting his prayer. Two of them have a material hearing upon the final disposition of the case, and for that reason should he decided here. One is, that the Act of 1865, ch. 114, was not enacted in articles and sections, according to the requirements of section 28, Article 8 of the Constitution; and the other, that even if consistent with the Constitution, it is still invalid, on the ground that it conflicts with the 22nd and 23rd sections of the Declaration of Rights. Neither of these propositions requires an extended notice. This Act is to he read in connection with another, passed at the same session, ch. 159, which provides for the incorporation of a new Article in the Code, under the title “Registration;” and an inspection of them both has gone far to satisfy me that the requirements of the Constitution have been fully complied with. But assuming, without however so deciding, that the Act was not passed in strict conformity with those requirements, still the failure to comply with them would not he a sufficient reason for declaring the Act void. Amongst other things, the 28th section of Article 3 provides, whenever any general public law shall be passed, not amendatory of any section or Article of the Code, “that it shall bo the duty of the General Assembly to enact the same in Articles and sections, in the same manner as the said Code is arranged.” This provision is plainly not mandatory, hut directory, — a mere instruction to the Legislature as to the form in which laws should he passed, and having reference only to the public convenience. It relates *586altogether to a matter of form, and not to substance, and a failure to pursue the directions as to form, would scarcely have the effect of defeating a solemn legislative Act, otherwise free from objection. This section was in the Constitution of 1851, and the question is not presented now for the first time. The effect upon a legislative Act of not strictly complying with the requirements of another clause like in character to the one before us, was considered in Davis vs. State, 1 Md. Rep., 159, 160; Keller vs. State, 11 Md. Rep., 531; and in Parkinson vs. State, 14 Md. Rep., ‘193 ; in all of which views were expressed confirming the conclusion stated here.
The remaining proposition presents a more complex, though not more difficult, question. The General Assembly is required, by section 2, Article 1 of the Constitution, to provide by law for a uniform registration of the voters, which registration it declares shall be evidence of their qualification to vote; reserving to the citizen however, otherwise qualified, the right of voting until such law should be passed and carried into effect. The 4th section requires the judges of election and officers of registration carefully to exclude all disqualified persons from voting and registration ; it then provides for the administration by them of an oath, the form of which is therein prescribed, to persons offering to vote or presenting themselves for registration, and directs them to exclude from voting or registration, as the case may be, any person declining to take this oath. Section 41, of Article 3, also requires the General Assembly “to pass laws for preserving the purity of elections by the registration of voters, and by such other means as may be deemed expedient, and to make effective the provisions of the Constitution disfranchising certain persons, or disqualifying them from holding office,” "
It is necessary, in this connection, to repeat in more exact terms what has already been said in substance, and that is, that by the 1st, 3rd, 4th and 5th sections of this Article, the privilege of voting is given only to white male citizens, pos*587sessed of legal capacity, and above twenty-one years of age, who have resided twelve months in the State and six months in any election district or precinct, and have not, hy word or deed, adhered to the enemies of the United States, nor been convicted of bribery or infamous crime. To the citizens so described, and to them alone, is the right of suffrage given. The privilege, however, is still further qualified, as we have seen, by another limitation, and that is, that the citizen shall take the oath prescribed in the 4th section, which further declares that the person declining to take it, shall be excluded from voting and from registration, and that registration, after a law for registration has been passed and carried into effect, shall be the evidence of the right to vote, and without which no citizen is to be allowed to vote. It is also said in this section, that taking the oath shall not be deemed conclusive evidence of the right to vote. These provisions are specific and affirmative, and their purpose is too clear, direct and positive to admit of misapprehension or doubt. They require the General Assembly to pass such laws for the registration of voters as they may deem expedient to carry into effect these disfranchising clauses; and in declaring it to be the duty of the officers of registration carefully to exclude from registration all disqualified persons, they create the agency and confer upon it exclusive jurisdiction and power to determine finally and in full all questions as to qualification and right to registration. The duty of carefully excluding all disqualified persons from registration, is a special, limited and exclusive duty, involving an exercise of judgment and discretion altogether beyond the supervisory and restraining power of any other tribunal or department of the government. Whether it was consistent with sound public policy to clothe the officers of registration with a power thus beyond judicial control, is altogether foreign to the present inquiry; it is enough to find that the people have expressly conferred it by the terms of their organic law.
*588This view of' these provisions, and of the powers they confer, leads ns to the question of their conflict with the Declaration of Rights. That instrument is to he taken as a part of the Constitution. It declares not only doctrines' relating to and confirmatory of personal rights, hut principles to he regarded in administering the Government; like' the Constitution, it was the immediate work of the people acting in their sovereign capacity, and, with the Constituí tion, was intended to prescribe the form and powers of the Government. Each has its office; one is general, the other is particular; and taken- together, resort may he had to either, to ascertain the meaning and effect of the other. That the Declaration of Rights furnishes a guide for the construction of ambiguous provisions of the Constitution, as well as a test of the validity of laws not specifically required by the Constitution, and otherwise free from objection, is conceded; hut if the Constitution differs in any of its provisions with the general doctrines or principles set forth in the Declaration of Rights, such provisions a¡re to he regarded as limitations or qualifications of those general doctrines or principles, and allowed to have effect accordingly. Crane vs. Meginnis, 1 G. & J., 476. Police case, 15 Md. Rep., 376. And so here, if the constitutional provisions, to which we have referred, are found to be inconsistent with any doctrine or principle contained in the Declaration of Rights, they are not to he defeated and pronounced void on that ground, hut taken as exceptions to, or qualifications oí, those doctrines or principles. If, then, the provisions contained in that portion of the organic law, have no effect in the way of limiting or qualifying any express provision of the Constitution, it is clear that they cannot he invoked for the purpose of setting aside any portion of the Act of 1865, unless, indeed, it be found that the Legislature, in passing it, has exceeded the express or necessarily implied requirements of the Constitution. It is insisted, however, that this was done, and the specific objections made to the Act in that connection, are, that it *589Imposes on the citizen, offering himself for registration, the duty of taking an oath to answer interrogatories by which he may criminate himself; that it allows convictions of infamous crimes to be proved, not alone by the record of the conviction, but by witnesses; and that it authorises the' disseizin of the voting privilege, otherwise than by due course of law. The second of these objections, seems to me to be wholly destitute of foundation. It relates to the meas-' ure of proof required by the Act, to show the fact of conviction. According to the established rules of evidence, the record of the conviction would undoubtedly be the best, and, therefore, the only admissible evidence of that fact; but it is impossible to maintain the doctrine in cases where the purpose is not to punish an antecedent crime, that the Legislature was without power to change the rule and prescribe a different one. In this- case, the fact of conviction is treated by the Legislature, as one- to be proved by witnesses, as well as b'y the record; and that they had the discretion and power so to treat it, I do n’ot entertain a doubt. The soundness of the other objection's must be tested by the-express and necessarily implied requirements of the Constitution in regard to registration.
The officers of registration are directed by the 4th sec. of Art. 1st, 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* *590with a well defined requirement of the Constitution, hut it is strictly consistent with the nature of the duty which it declares the officers of registration should perform. No citizen is compelled to undergo the examination thus proposed; the administration of the oath is made a condition of his right to registration, and, hy the Constitution, he could not acquire the right to he registered as a voter, even if then, without subjecting himself to this condition. If crimination, either as to crime or disloyalty, be the result of answering questions touching the right to registration it is clear, that in such cases the right to vote is denied by the Constitution, and that no wrong is done by the provisions of the Act. But this is not all. The proposition in the Bill of Rights, by which this objection was sought to be supported, is, “ that no man ought to be compelled to give evidence against himself in a criminal case.” The proceedings authorised by the Registration Act, are not criminal in their nature or purpose. The citizen is not arraigned nor called to answer, except at his own election, and then, only to enable the officers of registration to ascertain, whether he has the qualifications, made necessary by the Constitution, to his registration as a legal voter. The oath provided for here, certainly does not fall within the inhibition of the Bill of Rights, whether required by th*e Constitution or not. The answer to the remaining objection has already been substantially presented. Assuming that the privilege of voting was contemplated by the 23rd section of the Declaration of Eights, as one of which the citizen should not be disseized, otherwise than by due course of law, still we have found that the Constitution provided for ascertaining by a registration of the voters, to whom the privilege of voting was extended, and that it clothed the officers, charged with this duty, to the exclusion of Courts and juries, with full power and jurisdiction to hear and finally determine all questions as to the right of voting and registration. To this extent, and that is as far as the objection can go here, the voting privilege was withdrawn *591or excepted from the operation and protection of this section of the Declaration of Rights, by the express provisions of the Constitution.
This seems to me to be a sufficient review of the material questions raised upon this record, and, for the reasons here stated, I conclude, without further comment, that the order of the Court below should be affirmed, with costs to the appellees.