this may be regarded as stating the rule in too strong language, we refer to Adams vs. Howe, 14 Mass. 345, where it is said, that the court when called upon to decide the constitutional validity of a law, will presume in its favor until the contrary clearly appears: "so that in any case substantially doubtful, the law would have its force. **And the court will never declare a statute void, unless the nullity and invalidity of the act be placed, in their judgment, beyond a reasonable doubt." So in Kentucky it is held that if it be doubtful or questionable whether the legislature has exceeded its limits, the judiciary cannot interfere, though it may not be satisfied that the act is constitutional. (2 Mon. 178.) And to the same effect are the following cases, as well as many others: City of Lexington vs. McQuillen, 9 Dana 514; Griffith et al. vs. Ohio & Ind. Railroad Co., 20 Ohio (App.) 1; Cooper vs. Telfair, 4 Dallas 14; The State ex rel. vs. County Judge, 2 Iowa 280; Telfair vs. McGin, 1 Gray 1; Tyler vs. The People, 8 Mich. 333.

In view of this well-settled rule, recognised in the foregoing cases, we feel entirely satisfied as to our duty in the present case. There is certainly a substantial doubt. It is certainly true that we cannot, with conclusive satisfaction place our finger upon the language of the constitution, which is clearly and palpably violated (5 Mich. 251)—and though we might not be satisfied of its constitutionality,—yet if not satisfied of its unconstitutionality, it is our duty to uphold the law. And this view we present, because the law, the power possessed by courts, the whole current of adjudications, the frame work of our state government, render it eminently just and sustainable, and with no disposition to shrink from the discharge of duty. As no court should fail, in a proper case, to pronounce against the validity of a law, when necessary, neither should it by metaphysical doubts and difficulties defy and overrule the public will, by showing that the power exercised by the legis lature was or might be questionable.

The foregoing considerations dispose of the body of the case. Other parts of it, or points made, are but arguments adduced to show the unconstitutionality of the act, the inexpediency of such legislation, or corollaries from the preceding or main proposition.

The length of the opinion forbids that we should examine them in detail.

Briefly we remark, however, that with the expediency of the law we have nothing to do. It is sufficient that the legislature has declared this as a part of the public policy of the state.

As to the thought that the convention framing the constitution never contemplated or "dreamed" of authorizing a ballot to be taken outside of the state, we refer to what has already been said, and to the opinion in the Wisconsin case above cited. The argument is there placed in a clear, and to our minds, satisfactory form, and we could not hope to add to its conclusiveness by further elaboration.

But it is also urged that the law has an extra-territorial operation that the laws of a state can only have operation within its limits, and that as this law provides for the organization of election boards, the holding of an election, the administering of oaths beyond the state, or within the jurisdiction of other tribunals, and for the punishment of illegal voting and false swearing in such elections, it is necessarily invalid.

We are not aware that any of the cases cited and relied upon by counsel intimate that a law of this character would be invalid for the reason stated. On the contrary, one of them at least (the Connecticut case), as we have already seen, expressly holds that if the time, place, and manner are committed to the legislature, the reception of votes out of the state may be constitutionally authorized. Not only so, but the law is intended to act upon, and give a rule for the government of the citizens, residents, or subjects of the state though they may be out of the state-upon a subject and in relation to a matter which concerns and affects them as such citizens or subjects-and which affects also the sovereignty of this state and in no manner concerns any other jurisdiction. That persons violating the law cannot be punished until they come or are brought, without violation of the rights of another sovereignty, within the territorial jurisdiction of this state, avails nothing, for, as is well said by BRONSON, J., in Adams vs. The People, 1 Comstock 178, this is no more than happens when a criminal escapes

after having committed a crime within the state. Jurisdiction, of the offence or subject-matter, is a very different thing. And upon this subject, see also Tyler vs. The People, 7 Mich. 162; 8 Id. 320; 3 Denio 190.

But suppose no penalty was provided for false swearing or illegal voting-or that those, if any, guilty in these respects cannot be punished, does it therefore follow that in a proceeding of this character, we would be justified in declaring the entire act void? If the legislature, in the general election law, should fail to provide a penalty for illegal voting, would the result be that the act should have no operation and that all the votes cast would be illegal? It seems to us most clearly not. Then again, in what does such legislation differ from those acts found in all the states, authorizing the appointment of commissioners abroad to take depositions, acknowledge deeds, and the like; as also the taking of depositions in other states to be used in our courts? Can those swearing falsely in such cases, be punished in this state? If not, is the testimony therefore to be rejected? This has never been the holding of any court, to our knowledge.

Looking therefore, in conclusion, to both the letter and spirit of the constitution-only anxious to view the question as one of legal or constitutional right-discarding all thought of expediency—all considerations touching the justice of the law-as anxious as any other tribunal, that "a free and honest suffrage" shall alone be provided for and sustained, keeping in view the great principles and even lesser rules governing our action, we feel constrained to say "in fidelity to the oath we have sworn"-that this law can be and should be upheld.

The first case is reversed. The other two are affirmed.

The above opinion of the Supreme Court of Iowa, just delivered, is yet in manuscript, and will appear in the 14th Volume of Iowa Reports. We have before published in the Register the decisions of the Supreme Court of Connecticut Pennsylvania, and New Hampshire, holding under their constitutions laws similar to the one in question to be

unconstitutional. The decision of the Supreme Court of Wisconsin, as well as that of Iowa, affirms the validity of such laws. Because different results have been reached, it does not follow that there is any real conflict in the decisions-the provisions of the state constitutions being more or less dissimilar. The act of the Iowa Legislature, a

very brief abstract of which only is above given, is very full and explicit, and contains many and most effectual safeguards against frauds and fraudulent voting. It is plain, as urged by Mr. Justice WRIGHT, that the General Assembly, unless inhibited by the organic law, may prescribe the time, place, and manner of voting, and hence may provide for the reception of votes outside of the state limits.

The great, and it is conceived, the only, material question in the foregoing

case was, whether the constitutional pro-
vision cited fixed the place of voting in
the county. Upon an examination of the
provision itself it will be seen that the
question was one of great delicacy and
nicety. It is ably discussed in the fore-
going opinion, and after some consider-
able reflection, while fully appreciating
and freely admitting the grave doubts
which surround it, the writer, if his in
dividual opinion may be ventured, is not
prepared to say that it was wrongly de-
cided.
J. F. D.

District Court of the United States-District of Massachusetts.

THE CHEROKEE.

It is the duty of the Prize Court to determine what ships shall share in the proceeds of a prize; but it is the province of the Secretary of the Navy to ascertain and decide, at least in the first instance, what persons constituted the officers and crews of such ships and the flag-officer of a squadron, and the share which each shall receive.

All prizes belong primarily to the Government, and any person claiming to participate therein must show a grant from the Government.

The English prize acts and the decisions under them examined and commented on at length.

The origin and growth of the doctrine of constructive capture stated.

The English doctrine of constructive capture by association is entirely judicial, has not been uniform, is not well defined or settled, and appears finally to have been discarded.

The statutes of the United States provide expressly for two classes of ships which shall share the proceeds of a prize:

(1). Those making the capture;

(2). Those within signal distance of the vessel making the capture.

The statutes of the United States having thus adopted only a portion of the English doctrine of constructive capture, our courts will not go beyond the limits thus assigned them.

The United States Prize Acts of 1799, 1800, and 1862 commented on.

No counsel appeared for any party, but suggestions were made in communications from some of the vessels claiming as joint cap

tors.

VOL. XII.-19

SPRAGUE, J.-The Steamer Cherokee and cargo were captured on the 8th of May last by the United States ship-of-war Canandaigua and sent into this port. They have both been condemned. The question now arises how shall the proceeds be distributed. It is the duty of this court to determine what ships shall participate in the proceeds of a prize; but it is the province of the Secretary of the Navy to ascertain and decide, at least in the first instance, what persons constituted the officers and crews of such ships and the flag officer of a squadron, and the share which each shall receive. I mention this because communications have been received, founded on the erroneous supposition that this court was to decide upon the claims of individuals as flag officers or otherwise, and it is desirable that it should be known that such claims must be presented to the Navy Department.

Applications to be allowed to share in this prize have been presented in behalf of the following vessels: New Ironsides, Stettin, Wamsutta, Flag, Paul Jones, Lodona, Marblehead, Huron, Powhatan, and Housatonic. Some of these applications are quite informal. But I shall treat them all as petitions duly presented. Since the decree of comdemnation the depositions of one or more of the officers of each of the above-mentioned ships have been taken. These have been examined with the other evidence in the case. It appears that the Canandaigua and the petitioning ships composed the blockading squadron off Charleston. All excepting the Lodona were stationed at different places immediately off the city so as to guard the more direct approaches.

The Lodona was stationed at Bull's Bay, to guard that channel of communication to Charleston, and was about sixteen miles from the rest of the squadron.

On the evening of the 5th of May last, the Cherokee ran out of the port of Charleston. She was first discovered by the steamer Flag, who fired one or more guns at her, as she was passing by, and also threw up a rocket.

She was then discovered by the Canandaigua, a steamer lying outside of the Flag, which immediately got under way in pursuit. This was about eleven o'clock at night. The pursuit was continued