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direct and positive declaration, that her constitution was republican in form, and not inconsistent with the constitution of the United States.
There was, then, a complete reservation by the people of the power to exclusively regulate and control the internal government and police of the state; and to alter, amend or abolish their constitution, whenever they might deem it necessary for their safety and happiness. Now, what is meant by the "people," as used in this connection? Ordinarily, it may be true, that when we speak of the people, the entire body of the inhabitants of the state is comprehended; but this cannot be so in a political sense; it can only mean that portion of the inhabitants who are entrusted with political power. Neither in this, nor in any of the American states, did the inhabitants, other than qualified voters, ever exercise political power; and it is only through the instrumentality of ballots that such power is or can be exercised. This truth is exhibited by the fact that, whilst the constitution declared that all power resided in the people, less than one-fourth of all the inhabitants exclusively exercised the political power, and more than three-fourths were always disfranchised. The people, for political purposes, must be considered synonymous with qualified voters; and their very first act, in the formation of a state government, was to exclude from the right of suffrage more than three-fourths of the whole inhabitants; the exclusion of women, children and negroes is purely arbitrary, and fixed and regulated by law. If the power to regulate the internal government and police of the state resided in the people, and was their "inherent, sole and exclusive right," the conclusion is inevitable, that it was their peculiar and exclusive province to say and determine what should constitute any inhabitant of the state a qualified voter. The power must reside somewhere, and it can only be with the people; and they have always exercised it, both negatively and affirmatively.
It is not perceived that there is any restraint over the power on this subject; certainly not in the constitution of the United States, for there is not to be found in that instrument a single sentence, paragraph or word which gives the national government* power over the qualifications of voters in any of the states. But the directly opposite is affirmed in that clause cited in the former part of this opinion, which declares 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." When the people, in 1865, formed and adopted a new constitution as their organic law, they exercised an unquestioned power, an undisputed right. They altered and abolished their constitution, and formed a new one, in which, in pursuance of their exclusive right of regulating their internal government, they prescribed certain qualifications and conditions for the exercise of the elective franchise. Of their perfect and exclusive right to do this, we do not entertain the slightest doubt. The right to vote is not vested; it is purely conventional, and may be enlarged or restricted, granted or withheld, at pleasure, and with or without fault. If a person loan another certain property gratuitously, and the possession be resumed, on account of abuse or ill-treatment, is the taking it from the borrower a penalty or punishment, within the meaning of the constitution of the United States?
But it is said, that the oath of loyalty cannot be regarded as a qualification, because it is not attainable by all. Judge Field expresses this idea in the Cummings case, but it is a sufficient answer to say, that the remark was not made on a question like the one now under considera
* The learned judge seems to have forgotten that in the draft of the federal constitution reported by the committee to the convention of 1787, which was presided over by GEORGE WASHINGTON, the word “national" was used, but the convention finally struck it out, and inserted, wherever it occurred, the word "general," as more appropriately designating the character and powers of the government they were creating.
tion. The illustrations put by Judge Miller, in the same case, are exceedingly apposite, and seem to be incontrovertible: he says, "The constitution of the United States provides, as a qualification for the office of president and vice-president, that the person elected must be a native-born citizen; is this a punishment to all those naturalized citizens who can never attain that qualification? The constitutions of nearly all the states require, as a qualification for voting, that the voter shall be a white male citizen; is this a punishment for all the blacks who can never become white? It was a qualification required by some of the state constitutions, for the office of judge, that the person should not be over sixty years of age; to a very large number of the ablest lawyers in any state this is a qualification they can never attain, for every year removes them further away from the designated age; is this a punishment? The distinguished commentator on American law, and chancellor of the state of New York, was deprived of that office by this provision of the constitution of that state; he was, just in the midst of his usefulness, not only turned out of office, but he was forever disqualified from holding it again by a law passed after he had accepted the office."
It is well known, that in the early history of this government, several of the states admitted free negroes to vote on an equality with whites, and subsequently they divested them of that right, denied them that privilege, and confined the elective franchise only to whites; they were disfranchised because they were black, and a white qualification was imposed, which it was physically impossible for them to attain; the privilege was withdrawn from them; they were disfranchised because they were black. We apprehend it will not be contended, that depriving them of the right of suffrage was a punishment, or in the nature of pains and penalties. The law-makers, we presume, owing to peculiar circumstances, thought they were not discreet persons to be entrusted with the
ballot, just as the framers of our constitution, we suppose, considered that those who had betrayed our flag, and exhibited their hostility to the government, were, for the time being, unsafe and unfit repositories of political power. The principle of the provision in the constitution is involved in the power, and flows from the duty, of the state to protect itself, that is, the welfare of the people; it proceeds upon the distinction between laws passed to punish offences, in order to prevent their repetition, and laws passed to protect the public franchises and privileges from abuse, by falling into unworthy and improper hands. The state may not pass laws in the form, or with the effect, of bills of attainder, ex post facto laws, or laws impairing the obligation of contracts; it may, and has full power to pass laws, restrictive and exclusive, for the preservation or promotion of the common interests, as political and social emergencies may, from time to time, require, though, in certain cases, disabilities may directly flow as a consequence. It should never be forgotten, that the state is organized for the public weal, as well as individual purposes; and while it may not disregard and violate the safeguards that are thrown around the citizen for his protection, by the constitution, it cannot neglect to perform and do what is demanded for the public good.
It has grown into an axiom of the law, that public grants are to be construed strictly; and in the absence of any power expressly conceded to the United States, or where its exercise is not directly denied by the federal constitution, the state is not to be presumed, in any grant, to part with any of the power inherent in it for the protection and promotion of the common welfare.* The power of the state to preserve the general good, and promote the public welfare, is inherent and supreme; deny and destroy this cardinal maxim, and the very foundation of our
*This has ever been one of the cardinal principles of the democratic party; but it looks strangely to find it in this opinion.
system is sapped, and the state is shorn of all power for self-protection.
Believing that the provision in the state constitution prescribing an oath for voters, is not in opposition to the constitution of the United States, we affirm the judgment. Judgment affirmed.
The supreme court of Missouri, in State v. Woodson, 41 Mo. 227, decided in favor of the constitutionality of the test-oath, as a qualification for office, holding that the power of the state, to declare in its constitution, or, when that is silent, by legislative enactment, what shall constitute the test of eligibility to office, is as clear and unquestionable as the power to fix the qualifications of voters. But, following the decisions of the supreme court of the United States, in Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, Ibid. 333, they held it to be unconstitutional, so far as it was required as a prerequisite for carrying on or exercising any ordinary calling, trade or profession, as that of attorney at law, State v. Glover, 41 Mo. 339, or school-teacher, State v. Heighland, Ibid. 388. And see Ingersoll v. Howard, 19 Am. L. R. 193.
Where the constitution prescribes the qualifications of voters, and declares that persons possessing them shall enjoy the right of suffrage, it is not in the power of the legislature to impose a restriction on the right in the shape of a test-oath. On the 1st of April 1778, the legislature of Pennsylvania passed an act requiring electors to take an oath of allegiance (P. L. 127); but the history of the times shows that this was strenuously resisted as unwarranted by the constitution, and within a very brief period it was swept from the statute book. McCafferty v. Guyer, 59 Penn. St. R. 112 (ante 44). And see Respublica v. Gibbs, 3 Yeates 429. But whilst this act was in force, the general assembly of Pennsylvania, on the 13th November 1778, determined that citizens who had taken the oath of allegiance, after the 1st day of June then last preceding, the time limited for taking the oath by that statute and its supplement of 10th September 1778 (P. L. 159), were not legal voters; and that persons claiming their seats as members from Chester county, by virtue of such votes, were not duly elected. Journals of Assembly 241. And see Report of the committee on the York county election. Ibid. 310–315. In Missouri, the test-oath has been sustained, because it is imposed by