delivered the opinion of the Court, Judges GoldsboROUGKH, CocHRAN and Weisel, concurring therein :
This is, substantially, an inquiry into the power of the people of a State, in Convention assembled, to regulate the eléctive franchise, and prescribe the qualifications and disqualifications of voters.
*615It is not to be determined lby the passions or the prejudices of the hour, hut upon principles which lie at the base of all Government. Hot only Maryland, but all the Slates 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 get 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 pre-supposes 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-incapable oí 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 cannotbe re-examined elsewhere.” 1 Story on the Const., sec. 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 no where de*616fined. It is the right of the people to alter or abolish, or institute a new Government, “laying its foundations 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 there siduary or reserved sovereignty of the people, unlimited,. excej>t 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 unquestionably within the limits prescribed. The wisdom or wantonness of the act-, its effect upon majorities or minorities-, are not subjects of judicial cognizance. These are determined by their adoption. The Courts are not to inquire how many will be affected by their decision, or 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. Eor the promotion of these objects, the people of the United States-ordained and established a Constitution, which was the supreme law, and erected a national Government, to which they owed paramount allegiance. 2 Hill S. G. Bep., 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 on 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 *617proclaimed, tlie 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 he assumed and recognized as the organic law of the State. The chief characteristics which distinguish it from former instruments of the kind, arc, the declaration of the fundamental principle, that “ every citizen of this State, owes paramount allegiance to the Gonslilution and Government of the United States, and is not hound hy any law or ordinance of this Slate, 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 had actively participated in promoting the rebellion, or giving them 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 tire obligation of allegiance. The Confederate States had attempted to dissolve the bond of 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 *618defence. Without some such provision, citizens of Maryland, inarms against the United States, would have heen qualified voters at the ensuing elections. The soldiers of Stuart and Early, should the war have continued, might have claim edthe 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 he evidence of their qualification at elections thereafter held, and to make effective the provisions of the Constitution, disfranchising certain classes of persons. Oonst., Art. 1, sec. 2. Art. 3, sec. 41.
In pursuance of these express constitutional commands, the Act of the 24th of March 1865, was passed.
It is insisted this law is null and void, because it violates the Constitution of the United States, and the Constitution of the State, in execution of which it was enacted; and further, that the 4th section of Article 1 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 :
1st. “The franchise of voting is an inalienable right of property sui generis.”
2nd. “Section 4 of Article 1 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.”
3rd. “The disqualifications, including the test oath, declared by section 4, Article 1, and the provisions of the Registration Act, are violations of section 10, Article 1 of the Constitution of the United States, declaring: 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 Eederal Constitution, had unlimited *619power to fix, change or modify the qualifications of voters, hut since its adoption, they are restrained hy the 10th section of Article 1 of that instrument. This, we apprehend, is a “peiitio prineipii;’ ’ it is the question before us, whether, properly construed, there is any limitation upon the power the people of the States previously possessed and exercised in that respect. There is no allusion to any such purpose in the cotemporaneous expositions or subsequent commentaries on the Eederal Constitution by its friends or its adversaries. On the contrary, the inference is almost irresistible, no such limitation would have been tolerated. Raiole on the Constitution, ch. 4, p. 40. Story on Constitution, vol. 1, sec. 548.
Among the absolute, unqualified rights of the State, 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 3rd Article of the Declaration of Rights affirms, “that the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof. ’ ’
Whilst “the right of the people to participate in the Legislature is the best security of liberty and foundation of all free government,” yet it is subordinate to the higher power of regulating the qualifications of the electors and the elected. The original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper, for the safety of the Commonwealth, hence the right is limited to “every free white male citizen having the qualifications prescribed by the Constitution.” Citizenship and suffrage are by no means inseparable; the latter is not one of the universal inalienable rights with which men are endowed by their Creator, but is altogether conventional
SroRY, treating of this subject, says: “Every Constitution of government in these United States has assumed, as a fundamental principle, the right of the people of the State to *620alter, abolish, and modify the form of its own government, according to the sovereign pleasure of the people. In fact, the people of each State have gone much further, and settled a far more critical question, by deciding who shall be the voters entitled to approve and reject the Constitution framed by a delegated body under their direction.” 1 Story on Const., ch. 9, sec. 581. * * * * “From this it will be seen how little, even in the most free of republican governments, any abstract right of suffrage, or any original and indefeasible privilege has been recognized in practice.” Id. * * * * “In no two of these State Constitutions will it be found that the qualifications of the voters are settled upon the same uniform basis, so that we have the most abundant proofs that among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of "their own voters, the question as to the due regulation of the qualifications, has been deemed a matter of mere State policy, and varied to meet the wants, to suit the prejudices, and to foster the interests of the majority. An absolute, indefensable right to elect or be elected, seems never to have been asserted on one side, or denied on the other; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis as the majority may deem expedient, with reference to the moral, physical and intellectual condition of the particular State.” Id., sec. 582.
None of the elementary writers include the right of suffrage among the rights of property or person. It is not an absolute, unqualified, personal right. Lord Holt, in Ashby vs. White, placed it upon the ground that it was incident to the freehold which the voter owned, or to the burgh or corporation to which he belonged; that it was a part of the Constitution of England, that these boroughs should elect members to serve in Parliament, whether they be boroughs corporate ov not corporate; in the one case, the right of election is a privilege annexed to the land, and may be properly called a real privilege; the second sort is, where a *621corporation is created Toy charter or prescription, and tho members of tho corporation, as such, choose members to serve in Parliament. Tho first sort have a right of choosing as a real right, hut here in this last case, it is a personal right, and not a real one, and is exercised in such manner as the charter or custom prescribes, and the inheritance of this right is in the whole body politic, but the exercise and enjoyment of this right is in the particular members. 2 Ld. Raymond, 950, 951. The cases relied on by the appellant, have not been recognized as law in this State.
Ashby vs. White, and Lincoln vs. Hapgood, 11 Mass., were reviewed and overruled in Bernard, vs. Hoffman, 18 Md. Rep., 483, In that case this Court said: “The decisions in those cases assert the principle, that a party who, like the plaintiffs, has been deprived of a right, is thereby injured, and must have his remedy. It seems to us, that the error of the application of that principle to this case, consists in misapprehension of what is the right of a citizen under our election laws. In one sense, if he is a legal voter, he has the right to vote, and is injured if deprived of it; but the law has appointed a means whereby his right to vote is decided, and for that purpose has provided judges to determine that question, and has also provided the most careful guarantees for a proper discharge of duty by the judges, by the mode of their selection and their oaths of office. In all governments, power and trust must be reposed somewhere, all that can be done is to define its limits, and provide means for its exercise; when the act in question is that of a judicial officer, all that the law can secure is, a guarantee that they shall not with impunity do wrong willfully, fraudulently or corruptly. If they do so act, they are liable both civilly and criminally; but for an error of judgment, they are not liable either civilly or criminally. If tho 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 al*622though 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 he found supported by the weight of authority both in England and in this country.” Bevard vs. Hoffman, 18 Md. Rep., 483, 484. In the case of injury to property, however unintentional the act, the party injured has his action for damages; even in cases of extreme necessity, all perfect rights have their remedy, but'imperfect rights have none.
In New Jersey, Delaware, Virginia, Florida, Louisiana, •Indiana, Illinois, Arkansas, Texas, Iowa, Missouri, and Alabama, persons in the naval and military service of the United States, were disqualified as voters. Gushing’s Law and Brae, of Leg. Assemblies, 23. The jealousy of federal influence excluded those in actual service from participating in elections. It would be an anomaly ii the foes of the Government, its sworn enemies, should be preferred to its friends.
If the right of suffrage is a right of property, by what authority, is it taken from one class and given to another, at the option of the Conventions of the several States? The Constitution of Maryland of PUT, authorised all free men above twenty-one years, having a freehold of fifty acres in the county in which they offered to vote, and residing therein, and all free men having property in this State, above the value of 80 lbs. currency, and residing in the county, to vote. By the amendments of 1801, ch. 90. Every free white male citizen above twenty-one years, and no other, was entitled to the right of suffrage. Thus a large class who previously enjoyed the right were disfranchised.
The appellant’s position, if tenable, would render the amendment of the Constitution of 1809, and all subsequent, excluding that class, inconsistent with the Constitution of the' United States, and void. • The same power which disqualified free colored men in 1801, enabled the *623Convention of 1864, to disqualify “all who had been in armed hostility to the United States.”
Mucli reliance was placed upon the case of Killam vs. Ward, and Gardner’s case, cited in the note, 2 Mass., 236, 244. These cases 'turned mainly upon the construction of an Act of the State of Massachusetts, entitled, “ An Act to confiscate the estates of certain persons called absentees,” who had levied war or conspired to levy war, or who, since April the 19th, 1775, had withdrawn without the permission of the Legislature, &c., and who were declared to be aliens. The power of the Legislature to pass such laws was not denied, but it was held, in Killam’s case, he did not come within the intention of the law, and in Gardner’s, that the Act pointed out the mode of prosecution, which had not been followed, “ modo et forma,” vide, 249, 264, 266.
“ Every Government ought to contain in itself the means of its own preservation.” Federalist, No. 58. For this reason, the regulation of the right of suffrage has been reserved by the States, to themselves, and was not delegated to the G eneral Government by the Federal Constitution. The qualifications of electors by that instrument, are expressly confined to the qualifications requisite for electors of the most numerous branch of the State Legislature. Art. 1, sec. 2, Const. U. S. 2 Scammon, 395, 396. Federalist, No. 52.
It has become a political axiom that every State should control its domestic relations. The most ultra advocate of Federal power would not deny this right to the States in the Union. It is therefore a question of the utmost consequence, whether the brief prohibition, “no State shall pass any bill of attainder or ex post facto lato,” was designed to restrain the political power of the people over their fundamental law, or rather the civil power of the legislative branch of State Governments. Ho other clause of the Constitution of the United States is relied on.
Bills of attainder, as they are technically called, are such *624special Acts of Legislation, as inflict capital punishments ( or pains or penalties,) upon persons supposed to be guilty of high offences, without any conviction in the ordinary course of judicial proceedings. Story’s Const., seo. 1844.
“ Ex post facto laws are technical «expressions, which, include every law which renders an act punishable in a manner in which it was not punishable when committed. They relate to penal and criminal proceedings which impose punishments and forfeitures, and not to civil proceedings which effect private rights retrospectively. Retrospective laws, divesting vested rights, unless ex post facto/ do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may he to the principles of sound legislation.” 1 Kent’s Corns., seo. 19, pp. 409, 410, and authorities there cited.
Prohibitions on the States, are not to be enlarged ,by construction. To do so, would violate the spirit and object of the 9th and 10th amendments to the Constitution of the United States, viz : “ The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” These were intended to prevent argumentative implications of power not delegated; to exclude any interpretation by which other powers should he assumed beyond those which are granted. The 2nd section of Article 4th of the" Constitution of the United States, declares: The citizens of each State, shall be entitled to all privileges and immunities of citizens in the several States;” yet it has been held, a particular and limited operation is to be given to the words “ privileges and immunities,” not a full and comprehensive one. ‘‘They do not mean the right of election, the right of holding offices or being elected.” Per Chase, O. J., 3 fl. & MoKy., 585. If terms so broad and comprehensive as these are restrained by a consideration of the objects intended, tech-*625Aieai terms are not to be enlarged to an extent which will Jmpair the jurisdiction of the States. It is obvious the distinctive and obnoxious feature of ex post facto laws, is the exercise of a judicial function by the Legislature; punishing thereby as crimes, acts not before forbidden, or aggravating their punishment. The object and intention of the Act, fixes its character; that which is preventive, is not necessarily punitive, although it may be accompanied by the withdrawal of privileges previously enjoyed. The political powers' of a State, its preventive means, are not to be confounded with the assumption of judicial powers by a Convention or Legislature. The former must exist for the safety of the State, the latter is prohibited for the protection of the citizen. Vindictive motives are not to be imputed to the State; if they existed, perversion of a power does not make it unconstitutional. The right of suffrage being the creature of the organic laAV, may be modified or withdrawn by the sovereign authority which conferred it, without indicting any punishment on those who are disqualified.
The 4th section of Article 1st of the Constitution of Maryland, does not declare any act criminal which was not previously so, or add to, alter or change the criminal Code of the State.- The Acts referred to, are generally such as come within the legal definition of treason, ‘ levying war against the United States, or adhering to their enemies,giving them aid and comfort.” — “ If war be levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who- perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” 4 Cranch, 126. 2 Story’s Const., 1800. But these acts are not defined as crimes; they could not be prosecuted as such in any Court of the State, or any judgment or conviction be had under the section referred to. The actors are described by their deeds, and a civil disability imposed upon.' them from considerations of public policy.
*626The power thus conferred on the registrars by the Act of Assembly, carrying into execution the provisions of the» Constitution, is a police or political power, closely analogous to that previously committed to th°e judges of election; a power, on the due exercise of which, the inauguration and succession of the several departments of the government depend.
Under the old system, the judges determined the qualifications of the voter at the polls; under the new, the registrars ascertain and enroll before hand, those who are qualified and those who are disqualified, subject alike to liability in damages, if they willfully, corruptly or maliciously, exclude any who are entitled. — The inquisitorial and offensive manner in which these duties are said to have been in some instances discharged, is a ‘just cause for public indignation, and speedy correction by the proper authority, but not sufficient to warrant a judgment annulling the law as unconstitutional.
It has been argued that, because the 3d and 5th sections of Article 1, disqualify persons convicted of larceny and bribery, as voters, in addition to the penalties now or hereafter to be imposed by law, the disqualifications of the 4th section are to be regarded as “in pari materia” and penal inflictions, upon the principle of “noscitur a sociis.”
This is not a necessary deduction. Bribery and larceny were made disqualifications by the Constitution of 1851. The clauses of the Constitution of 1864, are nearly recapitulations of the provisions in” the former instrument, referring to those crimes, except that the 5th section of the Constitution of 1864 relates to the 4th of July 1851, (when the Constitution of that year took effect,) and covers all cases of bribery occurring in the mean time, not altering or changing in any manner the offence or its punishment. In section 3rd, the disqualification is dissociated from any reference to penalty, and made the consequence of conviction, in the same connection with lunacy or persons non compos; in section 5, it is, in addition to the penalties now or here*627after to be imposed by law,” a form of expression not materially differing from tbe former, or sufficiently so to justify tbe conclusion contended for.
It is said tbe provisions of tbe registry law, which provide tbe mode of appointment of tbe officers of registration, and authorize them to determine tbe qualification of voters, with the test oath, are contrary to tbe Bill of Rights and the Constitution of Maryland.
The first branch of this objection, as to tbe mode of appointment, was not pressed. It is sufficient to say, there does not appear to the Court any infringement in this respect of the 13th section of Article 2nd of the Constitution, defining tbe appointing power of the Governor, viz: “He shall nominate, and by and with the advice and consent of the Senate, appoint all civil and military officers of tbe State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office. ’ ’ The Act in question, creating the office, does prescribe a different mode of appointment. Where the office is of legislative creation, the Legislature can modify, control or abolish it, and within those powers is embraced the right to change the mode of appointment. Davis vs. The State, 7 Md. Rep., 161.
As to the supposed conflict between the Constitution of Maryland and the Bill of Rights, as it is called, such a collision can scarcely occur, according to the accepted theory of the relation between these instruments. In representative constitutional governments, they are understood to be parts of a whole, constituting an entirety, and to be interpreted as one instrument. The Declaration of Rights is an enumeration of abstract principles, (or designed to be so,) and the Constitution the practical application of those principles, modified by the exigencies of the time or circumstances of the country. “If they differ, the Constitution must be taken as a limitation of the principle previously declared, according to the subject and the language employed.” Mayor & C. C. of Balto. vs. The State, 15 Md. Rep., 459.
*628The Declaration of Rights is a guide to the several der partments of government, in questions of doubt as to the meaning of the Constitution, and “a guard against any .extravagant or undue extension of power,” but does not control the Constitution itself, when it is clear and unambiguous. As far then as the registration law is a legislative enactment of the 1st, 2pd, 3rd, 4th and 6th sections of Article 1 of the Constitution, it is not restrained by the Declaration of Rights, becaus.e it proceeds from the same authority, that of the Convention.
The perpetual and irrevocable character of these disqualifications has been dwelt upon; we have said that such considerations are beyond our reach, but, happily, the duration of such clauses is more nominal than real $ provisions equally perpetual in terms, have passed away with the exigency that dictated them. There is a redeeming sense of justice in the people, which may well be trusted, to remove, in the mode prescribed by the Constitution, all traces of temporary excitement, which prejudice their fellow citizens.
We are reminded of our solemn obligations to support the Federal Constitution, and yet urged to come to conclusions which would prevent all further' deliberation and investigation in the Court of last resort. To adopt suGh a course, with our convictions, would be contrary to the best established principles and precedents.
To declare an act of a coordinate department of the govment an unwarrantable assumption, or usurpation of power, because it is a violation of a constitutional prohibition, is an exercise of the judicial office of a grave and delicate nature, which never can he warranted hut ifi a clear case. 12 Q.&J., 438.
‘■‘The presumption must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.” Per Washington, Justice. “It must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.” 15 Md. Rep., 416, 477.
These axioms were applied tq Acts of ordinary legislation. *629The ultimate object of this appeal is, to annul the organic law of the State, the Act of a sovereign Convention, under which its present government ⅛ organised, and from which it derives its existence and authority. Our province is not to make or unmake Constitutions, hut to interpret them; not by the light of reason and common sense alone, or that higher law which has been invoked, but which has no oracle, but by the text of the Constitution of the United States, as construed by its authorized expounders.
(Decided November 2nd, 1865.)If we err in our conclusions, we congratulate ourselves there is a Supreme Court erected expressly for the final adjudication of such questions, where our judgment may be reviewed and corrected, and the rights of the citizen vindicated. To this we cheerfully defer, confident that none will more cordially concur in the result.
Judgment affirmed.