The opinion
Mason, J.
(dissenting.)—By the second section of the thirteenth article of the Constitution of 1846, it is provided that at the general election in 1866, the question,
“
Shall there be a convention to revise the Constitution and amend the same ? ” shall be decided by the electors qualified to vote for members of the Legislature ; and the section then declares, that “ in case a majority of the electors so qualified, voting at such election, shall decide in favor of a convention for such purpose, the Legislature at its next session shall provide by law for the election of delegates to such convention.” The Constitution prescribes the qualifications of electors who shall vote on the question of calling the convention, but is entirely silent as to the qualifications of those who shall vote for the election of delegates to such convention, but leaves the whole question to the Legislature to provide by law for such election, and there is nothing in the Constitution restricting or limiting the power of the Legislature upon this subject.
The first section of article 2 of the Constitution has no application to the case. That section is limited in terms to the election of officers under the Constitution, and cannot, upon any just or
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reasonable construction, be extended to the election of delegates to frame a Constitution to supersede the existing one. Such delegates cannot be regarded as officers under the Constitution; neither their election, nor the authority or power of the delegates, emanates from the Constitution. The people, in whom all sovereignty of government resides, who may make and unmake Constitutions, speaking through the Constitution of 1846, have said that the Legislature shall provide for the election of delegates to such convention. This delegation of power from the people to the Legislature carries with it, by implication, upon the most familiar rules of construction, all the necessary incidents to the accomplishment of the object. The number of delegates to he chosen, the time and manner'of their election, and who shall vote, are all embraced in the authority conferred upon the Legislature.
This, all will agree, must he so, if these delegates are not to be deemed officers under the Constitution, which, to my mind, is very clear they are not. These delegates exercise no function of government under the Constitution of 1846. They are elected to make a government, to frame a new Constitution, and bring into existence new officers, new powers of government, and new duties. Their duties precede the government which they create. Their whole duties are to create a new government, and not to exercise any functions under the old or existing government.
This proposition is too plain for discussion, and is most ably sustained by the opinion of the Court below, upon which I am willing to repose without further discussion, as I regard the argument of this question, in the opinion of that Court, unanswerable.
This is the view which has always been taken of this subject. In the conventions of 1821 and 1846, delegates were elected who were disqualified to hold office under the Constitution, and their right to sit in the convention was never questioned.
The only remaining question in the case is, whether the Federal Constitution of the United States inhibits the legislation complained of, which prescribes the oath to he taken by the electors, when duly challenged, at the said election for delegates.
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The elector, when duly challenged, is required to -take -and -subscribe the following oath, to entitle him to his vote, to wit:
“
I (A. B.) do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have heen a citizen thereof; that 1 have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise, the functions of any office whatever under any authority or pretended authority in .hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto; and did not wilfully desert from the military or naval service of the United States, or leave this State to avoid the draft during the late rebellion.”
The people of the State have the sovereign right to frame their own Constitution, and to prescribe the qualifications of electors. This is a sovereign right in the States, too long conceded to them to be now surrendered. It is, to my mind, a right unquestionably belonging to-the State. This right, I concede, must be exercised in subordination to the Constitution of the United States. It cannot be exercised otherwise, while the right to regulate the' elective franchise resides in the States, as there is nothing in the Federal Constitution restricting the exercise of that right. The general government is one of limited and delegated powers, and it is provided by the tenth article of the amendments to the Constitution, that “ 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.” This power over the elective franchise in the States is certainly not delegated to the United States.
It only remains to be considered, whether the free and untrammelled exercise of this power to regulate the elective franchise is prohibited to the States by the Constitution of the United States. The Respondent’s counsel in this case claims that it is, and that the act of the Legislature prescribing this form of oath to the elector, when challenged, is prohibited by the Federal Constitu
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tian ; and the subdivision of the ninth section of the first article of the Constitution, which'declares “.that no bill of attainder, or ex post facto law, shall be passed,” is relied upon as sustaining such position. ' •
The Respondent claims and insists that the passage of this act by the Legislature which prohibited him from the exercise of his right to vote without taking this oath, is, in fact, the passage of a bill of attainder against him. This position cannot be sustained; attainder is scarcely known in American law. There were some bills of attainder passed by the States during and shortly after the Revolution, following the English jwecedents. It is to English criminal law that we are to look for a definition of this constitutional prohibition. Attainder is described in English criminal law to be, that extinction of civil rights and capacities which takes place wherever a person who has committed treason or felony receives sentence of death for his crime (Burr. Law Dic., vol. 1, p. 111; 1 Steph. Com. 408). The person so sentenced is called attaint or attainted. He is no longer of any credit or reputation. He cannot be a witness in any Court; neither is he capable of performing the functions of aúnan, for, by an anticipation of his punishment, he is already dead in law (4 Black. Com. 380; 4 Steph. Com. 446 ; 1 Burr. Law Dic. 111). The consequences of attainder are forfeiture and corruption of blood (4 Black. Com. 381; 3 id. 251; 1 Burr. Law Dic. 111). Tomlins describes attainder to be attmotura, the stain or corruption of blood which arises from being condemned for any crime (vol. 1, p. 148), and that a bill of attainder is a bill brought into Parliament for attainting persons condemned for high treason (Same, Law Dic. 145, vol. 1).
Attainder is defined by Jacobs, in liis Law Dictionary, to be the stain or corruption of the blood of a criminal capitally condemned (Jacobs’ Law Die., vol. 1, p. 163). Story says, bills of attainder, as they are technically called, are such special acts of the Legislature as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings (3 Story, Com. on the Const. 209).
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Bills of attainder had acquired an established and technical signification long before the framing and adoption of the Constitution of the United States, and were well understood by the men who framed that instrument, and no one at that day ever imagined that it had any reference to regulating the elective franchise. The disfranchising, by depriving of the right of suffrage of any portion of the citizens of a State, was never in any country regarded as passing bills of attainder against them; and no such effect can be given to this clause of the Constitution without doing violence to its language, and pushing it, by a forced construction, beyond the well-recognized and received import of the word “ employed.”
It still remains to consider whether the prohibition against the passage of ex post facto laws extends to and embraces the statute in question. It is very clear it does not. These words, “ ex post facto,” have a definite technical signification, sanctioned by long usage. They had acquired an established definite signification lone: before British law was known in America. It was never understood to extend beyond criminal matters. An ex post facto law is defined to be a law whereby an act is declared to be a crime, and made punishable as such, when it was not a crime when done, or whereby the act of a crime is aggravated in enormity or punishment. The plain and obvious meaning of this prohibition against the passage of ex post facto laws is, that the Legislature shall not pass any law after a fact done by any citizen which shall have relation to that fact, so as to punish that which was innocent when done, or to add to the punishment of that which was criminal, or to increase the malignity of a crime, or to retrench the rules of evidence so as to make conviction more easy. This is the definition laid down by the Supreme Court of the United States in Calder
v.
Bull ( 3 Dallas, 386 ), and fully approved by Chancellor Kent (1 Kent’s Com., 8th ed. 409, 450. See, also, Fletcher
v.
Peck, 6 Cranch, 138 ). Chancellor Kent adds : “ Ex. post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively ” (1 Kent’s Com., 8th
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ed. 450). Judge Story says, in delivering the opinion of the Court in Watson et al.
v.
Mercer (8 Peters’ U. S. 109,110), that it has been solemnly settled by that Court, that the phrase, “ ex post facto laws,” is not applicable to civil laws, but penal and criminal laws only, —in short, that ex post facto laws relate to penal and criminal proceedings which impose punishment or forfeitures, and not to civil proceedings which affect private rights retrospectively, citing Fletcher
v.
Peck (6 Crunch, 138), Calder
v.
Bull ( 3 Dall. 386 ), Ogden
v.
Saunders ( 12 Wheat. 266 ), Satterlee
v.
Mattheson ( 2 Peters, 380 ), all of which fully sustain this doctrine.
This clause of the Constitution of the’United States came before the Supreme Court of this State at an early day, and Judges Spencer, Kent, and Yates all expressed separate opinions, and held that this term, “ ex post facto law,” as used in the Constitution, was limited to criminal cases. Such is the construction put upon this clause of the Constitution by the author of the Federalist, whose extensive and accurate knowledge of the true theory and principles of our government was, probably, not surpassed by any jurist or statesman in this country. If the views above expressed are correct, this judgment must be reversed.
This statute under consideration is not in any sense a criminal statute. It creates no criminal offence, and does not undertake to define any. Keither does it prescribe any punishment for any existing criminal offence. It simply assumes to regulate the right of suffrage, and prescribes the qualifications of persons offering to vote for delegates to the constitutional convention. Such a law, I am confident, was never intended to be embraced by this constitutional prohibition.
The right of suffrage is a political right conferred by the Constitution or laws of the States, and has ever been regarded as exclusively under State control. It may be granted or withheld, or given subject to such restrictions as the majority of those in whom the sovereignty resides may deem most conducive to the public welfare. If we adopt the argument of the Respondent’s counsel in this case, and sustain this judgment, I am not able to perceive why all power in the State governments to ever restrict
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the right of suffrage is not struck down by this prohibition in the Federal Constitution against the passage of ex post facto laws. Uo State, under such a construction of the Federal Constitution, can ever withhold the right of suffrage from any persons who have heretofore enjoyed it, however much the public welfare or safety might demand it. If such an interference with the rights of the States is to be perpetrated by a forced and hitherto unrecognized construction of this prohibitory clause of the Federal Constitution, I prefer it should come to us as a mandate from the Federal Court, submitted to and obeyed, when it comes, by a direct decision of the very question itself. I do' not apprehend the day will ever arrive when such a decision will emanate from that Court. The two recent decisions in that Court, which the Court below felt constrained to regard as deciding this case in favor of the Plaintiff, fall far short of determining the case at bar; and no one, it seems to me, can read the dissenting opinion of the four Judges in that case, and come to any other conclusion than that the decision in those cases was wrong, and ought certainly never to be extended.
In the first of those cases (Cummings
v.
The State of Missouri, 4 Wal. 277), it is only necessary to state that the Rev. Mr. Cummings, the Appellant, a Roman Catholic priest, was indicted and convicted in the Circuit Court of Pike county, Missouri, fora crime created by the State in its new Constitution, which the Court held was an ex post facto law to punish him for what he had done before the creation of the offence for which he was convicted. If the facts of the case were as the Court assumed them, there is nothing in that case which necessarily controverts the case at bar.
The case Ex parte Garland (4 Wal. 333) is certainly much stronger .to support the Respondent’s views.
The case holds the act of Congress which excluded from-.the practice of the law in the Courts of the United States all attorneys and counsellors of that Court who would not take what is commonly called the test-oath. It was held by the majority of the Court, in the case Ex parte Garland, that the act of Congress which required the attorneys already licensed and practising in the United States
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Courts to take and subscribe the test-oath, as a condition of the right to continue to practise, was invalid, because it imposed a punishment for some of the acts specified, which were not punishable at the time they were committed, and on this ground the act was held unconstitutional. There were four of the Judges who held, to my mind, an unanswerable argument that no such effect could be attached to the act. It is very clear to my mind that the decision of the Supreme Court of the United States, in each of these cases, has given an interpretation to this clause of the Constitution of the United States never contemplated by the framers, and wholly at variance with the early expounders of that instrument, and in conflict with all the decisions of the same Court up to the time of those decisions. These cases, however, have no application to the ease at bar. The statute under consideration takes away no vested.right, even of any citizen of the State.
As the Constitution of 1846 does notin any manner prescribe the qualifications of electors in voting for delegates to the constitutional convention, but confers upon the Legislature the duty to prescribe who shall vote, and "to determine the oath which the elector shall take when challenged, no person can claim that he is unlawfully deprived of his right of suffrage by this act. Hone has the right to vote except those who have the right conferred by the statute, and then only upon the terms prescribed by the stab ute. This act of the Legislature, under consideration, is general in terms, and requires every citizen in the State who should claim the right to vote for delegates to the convention to take the same oath, if he shall be challenged, before he shall be entitled to vote. Hone of the persons who were in a condition that they could not take this oath, and were consequently deprived of the right to vote for the delegates to convention, can claim that they have been deprived of any constitutional rights, for no one had the right to vote except those prescribed by this legislative act. Hothing is taken away from them, but a right to vote is given by this act to all who will take the prescribed oath. The Court below, after holding that the Constitution did not prescribe the qualifications, of electors in voting for delegates to the convention, but that the
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duty was devolved upon the Legislature to prescribe it, seem to have overlooked entirely the clear distinction which we have pointed out between the case of Cummings
v.
The State of Missouri and the case Ex parte Garland.
In the case of Cummings, he was already an ordained and commissioned priest; and in the case of Garland, he was already a licensed practising attorney and counsellor, having been duly licensed by the Court. In the case of this Plaintiff, he was not invested with rights as an elector authorized to vote for delegates to the constitutional convention prior to the passage of the act complained of. The statute, therefore, took away no rights from him.
There are no penalties or criminal offences created by the act, and the same is not in conflict with any constitutional provision, State or Federal. These views lead to reversal of the judgment of the Supreme Court.
Hunt, Cli.J., and Woodeuet, J., concurred in this opinion of Mason, J.
Judgment affirmed.
JOEL TIFFANY, State Reporter.