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 *592and sections, as the Code is arranged, (Constitution, Art. 3, sec. 28,) and for that reason it should he regarded as void, does not belong to this case, and was not prompted hy any thing contained in the petition of the appellant for the writ of mandamus.
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 *593the States in the enactment of laws. If there is, therefore, any portion of the Constitution of this State, or of the registration law passed at the last session of its Legislature, clearly obnoxious to the objection that it is in conflict with that instrument, it is the duty of this Court so to declare and adjudge. The duty is one of the gr-avest importance, and therefore should be approached and performed with the greatest deliberation and care. The people can be engaged in no act more important to their temporal welfare than in the framing of their organic law. It is the depository of the sovereign will, declaring and defining the rights of the citizen, distributing and limiting the powers of government, and so adjusting them as to be in harmony with the national will, as contained in the Constitution of the United States, and their own declared Bill of Rights.
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 *594officers of registration carefully to exclude from voting or being registered all persons so disqualified, and it is made their duty to allow no jperson to be registered until he shall have taken the oath or affirmation set out and prescribed in such case to be taken; the taking of such oath, however, should not be deemed conclusive evidence of the right of the p.erson so taking it to vote. (Article 1, sec. 4.) It further provides that the General Assembly shall pass laws for the preservation of 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. (Art. 3, sec. 41.)
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 *595the name of every person who shall apply to them to he registered, and who shall satisfy them that he is qualified to vote under the provisions of the first Article of the Constitution, and the laws of the State.
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 *596power of tlie States in their sovereign capacity, when forming or amending their State Constitutions, to restrict or enlarge it, according to their sovereign will and the exigencies of the public safety.
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 *597instance, all free white male persons over twenty-one years of age, he qualified to vote under a general provision, exceptions can he made, and generally are made, so as to exclude from the qualified class those who are aliens, idiots, insane, paupers, &c., or those who may have been convicted of crime, or those who may have hy any means, rendered themselves dangerous depositories of such a privilege. All these regulations and limitations are, in my judgment, clearly acts of sovereign power, to he exercised or not; and if exercised, to such degree or extent, as the sovereign power shall determine. The common good of the whole, is the end proposed hy every well organized society; and if a restriction of the right of suffrage he deemed necessary or expedient hy the sovereign power to attain this end, under the circumstances in which the public interests are placed, there can he no valid objection 'so to exercise this authority. A liberal exercise of the power may at one stage in the history of a people, be proper and judicious, whilst, at another, a more restrictive policy may be demanded. And what one people may regard as essential, another, at the same time and under similar circumstances, may consider injurious or prejudicial, and therefore, may make different provision to avoid the danger. These principles and views Justice Stoky deduces from all the leading authorities upon this subject — the best writers upon natural and constitutional law, both of our own country, and those countries in Europe, in which liberal institutions have in any form or at any time existed. 1 Story on Constitution, sec. 0*1*1 to 584.
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 *598Union. The Constitution of the United States does not only not restrict this right, hut expressly concedes it to the States, and, further than this, entrusts to them “the very important power of ascertaining and directing the qualifications of those who shall he entitled to elect the most numerous branch of the national-Legislature,” (2 Wil’s Lectures, 131,) for by the Constitution of the United States, (Art. 1, sec. 2,) the members of the House of Representatives, shall be chosen “by the people of the several States, and the electors in each State, shall have the qualifications' requisite for electors of the most numerous branch of the State Legislature.” The same rule applies to the election of Presidential Electors, when that body is made elective. The Constitution of the United States, does not adopt this rule, because of any supposed or prescribed uniformity, but in the very face of a conceded, and ofttimes very material diversity. The election of these Representatives to Congress, says Mr. Madison, (Federalist, No. 54,) “is to be exercised by such part of the inhabitants as the State itself,' may designate.” He adds, “ the qualifications on which the right of suffrage depends, are not perhaps the same in any two States. In some of the States, the difference is very material. In every State a certain proportion of inhabitants are deprived of this right by the Constitution of the State, who will be included in the census,, by which the Federal Constitution apportions the Representatives,” &c. How large this proportion, thus deprived of the right, is, can be estimated by adding to the female portion, (always or generally equal to one-half of the entire population of a State,) others who are disqualified, as minors, insane, aliens, without residences, &c., &c. The voting population of a State is not only largely less than one-half of its entire population, but varies in numbers, according to the disqualifications which each State imposes. (1 Story on Const., sec. 580, 582.) These differences all arise from the sovereign pleasure of each State, generously confided in by the Government of the United States, inasmuch as in this *599particular, she rests herself, as has been well said, on the Governments of the several States; her own protection, as a Republican form of Government, being in the 4th section of the 4th Article of the Federal Constitution, which provides, that “the United States shall guaranty to every State in this Union, a Republican form of Government.” Her own existence, as a Government of this form or character, therefore depends on those of the States. (2 Wil’s Led., 131, 132.)
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 *600assisted in bringing tbe war, in all its horrors, witbin ber borders, and those of them who aided and abetted the rebellion, or desired succe'ss to its arms, were to be deemed safe depositories of the right of suffrage, was a matter for the judgment and determination of the Convention of the people of the State which assembled to revise,..amend and alter the Constitution of the State, and for the people themselves when called upon to adopt the instrument itself, thus prepared and submitted by the Convention. What was done by the Convention and people in this respect, is made a matter of grave charge and complaint, and is arraigned as in conflict with the Constitution of the United States, and the inalienable rights of freemen.
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 *601who shall comply with the provisions of this Article of the Constitution, shall be entitled to vote at all elections hereafter hold in this State.” This is the general rule.
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 *602words: I do swear (or affirm) that I am a citizen of the United States, that I have never given any aid, countenance or support to those in armed hostility to the United States, that I have never expressed a desire for the triumph of said enemies over the arms of the United States, and that I will bear true faith and allegiance to the United States and support the Constitution and laws thereof as the supreme law of the land, any law or ordinance of any State to the contrary notwithstanding; that I will in all respects demean myself as a loyal citizen of the United States, and I make this oath or affirmation without any reservation or evasion, and believe it to he binding on me.”
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 *603of 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.
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 *604the case of registration as in the case of elections prior to the passage of a registration law. If, in th.e one case, it shall not be deemed, conclusive, a further examination maybe gone into ; so in the other, when the evidence of qualification of the voter is to be placed in a more permanent form, and after a fuller and more careful examination, and to make the provisions of the Constitution, disfranchising certain persons, effective, it cannot be perceived on what ground, or for what reason, the oath itself should be deemed conclusive. The 4th section of the 1st Article impliedly confers the power; but taken in connection with the 41st section of the 3rd Article, I consider the power of the Legs islature to authorize such further oath to be administered, and the consequent personal examination of the applicant himself touching his right to registration and voting, to be full. It was competent for'the Legislature, in making effective these provisions of the Constitutiop, to require such further oath and examination,
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, *605Const., sec., 1344. Of tlie'same class are ex post facto laws. They arp also prohibited by the Constitution of Maryland, (Art, IT, Declaration of Rights.) “This phrase .applies to a'cts of criminal nature only, and the prohibition reaches every law, whereby an act is declared a crime, and madepunishableas such, when it was nota crime when done; ¿or whereby the act, if a crime, is aggravated in enormity or punishment; or whereby different or less evidence is required to convict an offender, than was required when the act was committed.” “ An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. ’ ’ 2 Story on Const., sec. 1345. Colder vs. Bull, 3 Dall., 386. Fletcher vs. Peck, 6 Cranch, 138. Same case, 2 Pet. Cond. R., 308.
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 *606these received definitions and construction of the terms used. That the 4th section does not meet the definition of a hill of attainder, is very manifest. It sits in judgment on no particular person or persons for acts -done, pronouncing them crimes, applying its own rule of evidence, and inflicting punishment. Nor does it, hy way of an ex post facto law, declare certain.acts already done, as crimes, which were not so before, and hand over the offender to the public criminal tribunals for trial, conviction and punishment. But it was assumed and insisted on in the argument, that although these technical peculiarities did not appertain to the section, yet the disqualifications it imposed were a, punishment for acts declared unlawful; and that this fixed upon it the character of an esc post facto law. But the section, in no part of it, declares these acts to he crimes against the State, and directs those who had committed them to he tried, and upon conviction, adjudged to forfeit their right of suffrage. The mere use of the term unlawful, as applied to these acts of disqualification, or the provision for restoring the person disfranchised, to his full rights of citizenship hy an Act of the Legislature, are not to he construed to have the force and effect of enacting these disqualifying acts and words into crimes against the State, to he inquired into and punished hy the loss of the offender's right of suffrage or holding office. These acts are described as unlawful, because unlawful in their very nature, and as contrary to the laws of the United States, to which allegiance is a paramount duty, and so declared hy the 5th Article of the Declaration of Rights. To call them unlawful, was merely to designate them hy the name and character they hore already. The denial of the right of suffrage to such as may have engaged in them, is simply a denial of a privilege ’to those who, because of their unlawful relations to the United States, were considered not proper and safe subjects for its enjoyment. The denial of the right to those who are excluded by the 1st section, viz : to females, Africans, aliens, minors, &c., is not by way of punishment; *607nor to a lunatic or person non compos mentis, in tRe 3rd section. And so the denial of the right to those enumerated as disqualified, in the 4th section, cannot, with any greater propriety,- be regarded as a punishment. If the Constitution liad prohibited paupers or confirmed inebriates from voting, though they had enjoyed the right before,, would such exclusion be regarded as a punishment for past offences ? The negro, holding a certain amount of property, once voted in Maryland. He was deprived of the right by a subsequent change of the Constitution. Was that act of the sovereign will ever regarded as an ex post facto law ? Or, suppose the people of Maryland, in reforming their Constitution, had, for reasons of policy, chosen to withhold the right from any soldier, seaman or non-commissioned, or commissioned officer in the service of the United States, as many of the Constitutions of the States, in the Union do, would this be regarded as in contravention of their rights under the Constitution of the United States, and a punishment for crime committed ? If so, all changes of the organic law restrictive of the right, or conferring it upon conditions which did not exist before, would be regarded as conflicting with the Constitution of the United States and void.
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 *608crime, tire party privileged, shall thereafter be deprived of it< Such is the provision in the first clause of the 3rd section, in cases of conviction for larceny or other infamous' crime; and als.o the provisions in the 5th section against' bribery. By these, in addition to the other punishments prescribed by law for the offences, the party convicted,, shall also be disqualified from thereafter voting or holding office. In these' cases, the right is subject to'forfeiture, • after having been conferred. But if the Constitution had provided that all persons who had previously been convicted of crime, should not be entitled to vote, this would simply be a disqualification, and not an additional punishment. Of this latter class is the provision' in the Constitution of Virginia, which is in these words :■ “ And no person shall have' the right to vote, who is of unsound mind, or a pauper, or' a non-commissioned officer, soldier, seainan or marine, in the service of the United States, or who has been convicted of bribery in an election, or of any infamous offence." (Constitution of Virginia, of 1850, 1851, Art. 3, sec. 1.)? This is clearly a disqualification, — not a punishment. It-is found in an Article entitled :• “ Qualification of Voters," and in a section which contains both the qualifying description, and the disqualifying exceptions.
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-*609exercise enjoyed under an existing Constitution, the citizen invested with it cannot forfeit it, criminaliter, without due process of law, nor can its exercise he improperly interfered with, without a legal remedy and redress. This Court has properly laid down the law in this respect, in the recent case of Bevard vs. Hoffman, et al., 18 Md. Rep., 483, 484. That was an actión brought against the judges of election in the 8th election district of Carroll county, to recover damages for their refusal to permit the plaintiff to vote at the Presidential election of 1856.
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 *610selection and their oaths of office. In all governments power and trust must be reposed somewhere; all that can he done is to define its limits and provide means for its proper 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 Rabie 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 injuria,’ 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 in this country/'
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 *611officers appointed to ascertain and register the qualified voters are, by the law of Maryland, at tho first registration, the same in number for each election district as the judges of election. They are appointed, by the Executive of the State, with care and a just regard to their qualifications for the duties of the office. They are sworn to perform these duties to the best of their shill and judgment, diligently and faithfully, without partiality or prejudice, &c. They are to sit at times and places made known to all interested by the most public notice; and their mode of procedure is carefully marked out by the law. The judges of election are, by this means, relieved from duties which they could but imperfectly perform in the brief space of one day, at tho crowded polls of an exciting election.
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, *612when probed, that lie is in fact legally and constitutionally disqualified,
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 *613interpreted as one instrument. The former announces principles on which the government, about to he established, will be based. If they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared^ according to the subject and language employed.” Mayor, &c., of Balto., ex rel. of the Board of Police, 15 Mel. Rep., 459. If error has been committed, our admirable system of government affords the means of correction by a resort to the highest judicial tribunal in the land, the Supreme Court of the United States.
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 *614the Court, that they disfranchised two-thirds or three-fourths of the sons of Maryland, it is a matter of deep regret and mortification that so many should have been found faithless to her standard, when the call of duty and paramount allegiance summoned them to the maintenance of her cause, which-was the cause of the Union. A single one, found in the ranks or on the side of the enemy, was too many. But it is to be remembered that it is not to be taken for granted that all who did not register their votes are necessarily disfranchised by the Constitution. To register is a voluntary act. And so is a refusal to be registered. It is not more compulsory than the act to vote or not to vote. A far more favorable representation of the loyalty of the citizens, of Maryland, is found in an official document. According to the proclamation of the Governor, announcing the vote upon the adoption of the Constitution, 59,973 votes were polled for and against that instrument; and at the Presidential election of 1864, occurring soon after the adoption of the Constitution, the popular vote of Maryland was within a fraction of 70,000 votes, only 13,500 less than at the election for Governor, in 1861. The qualifications of the voters were the same then as now. They were judged of then by the judges of election, instead of, as now, by the officers of registration. But the change in the mode or means of determining the qualification of the voter, can make no change in the result.
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.