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woman, in a territory or other place over which the United States have exclusive jurisdiction.
But there is another meaning which may be given to these words, which, we think, is the one intended by congress. In our opinion, any man is a polygamist or bigamist, in the sense of this section of the act, who, having previously married one wife, still living, and having another at the time when he presents himself to claim registration as a voter, still maintains that relation to a plurality of wives, although from the date of the passage of the act of March 22, 1882, until the day he offers to register and to vote, he may not in fact have cohabited with more than one woman. Without regard to the question whether at the time he entered into such a relation it was a prohibited and punishable offense, or whether by reason of lapse of time since its commission a prosecution for it may not be barred, if he still maintains the relation he is a bigamist or polygamist, because that is the status which the fixed habit and practice of his living has established. He has a plurality of wives, more than one woman whom he recognizes as a wife, of whose children he is the acknowledged father, and whom with their children he maintains as a family, of which he is the head. And this status as to several wives may well continue to exist, as a practical relation, although for a period he may not in fact cohabit with more than one; for that is quite consistent with the constant recognition of the same relation to many, accompanied with a possible intention to renew cohabitation with one or more of the others when it may be convenient.
*It is not, therefore, because the person has committed the offense of bigamy or polygamy, at some previous time, in violation of some existing statute, and as an additional punishment for its commission, that he is disfranchised by the act of congress of March 22, 1882; nor because he is guilty of the offense, as defined and punished by the terms of that act; but because, having at some time entered into a bigamous or polygamous relation, by a marriage with a second or third wife, while the first was living, he still maintains it, and has not dissolved it, although for the time being he restricts actual cohabitation to but one. He might in fact abstain from actual cohabitation with all, and be still as much as ever a bigamist or a polygamist. He can only cease to be such when he has finally and fully dissolved in some effective manner, which we are not called on here to point out, the very relation of husband to several wives, which constitutes the forbidden status he has previously assumed. Cohabitation is but one of many incidents to the marriage relation. It is not essential to it. One man, where such a system has been tolerated and practiced, may have several establishments, each of which may be the home of a separate family, none of which he himself may dwell in or even visit. The statute makes an express distinction between bigamists and polygamists on the one hand, and those who cohabit with more than one woman on the other; whereas, if cohabitation with several wives was essential to the description of those who are bigamists or polygamists, those words in the statute would be superfluous and unnecessary. It follows, therefore, that any person having several wives is a bigamist or polygamist in the sense of the act of March 22, 1882, although since the date of its passage he may not have cohabited with more than one of them.
Upon this construction the statute is not open to the objection that it is an ex post facto law. It does not seek in this section and by the penalty of disfranchisement to operate as a punishment upon any offense at all. The crime of bigamy or polygamy consists in entering into a bigamous or polyga mous marriage, and is complete when the relation begins. That of actual cohabitation with more than one woman is defined and the punishment prescribed in the third section. The disfranchisement operates upon the existing state and condition of the person, and not upon a past offense. It is, therefore, not retrospective. He alone is deprived of his vote who, when he
offers to register, is then in the state and condition of a bigamist or a polyga mist, or is then actually cohabiting with inore than one woman. Disfranchisement is not prescribed as a penalty for being guilty of the crime and offense of bigamy or polygamy; for, as has been said, that offense consists in the fact of unlawful marriage, and a prosecution against the offender is barred by the lapse of three years, by section 1044 of the Revised Statutes. Continuing to live in that state afterwards is not an offense, although cohabitation with more than one woman is. But as one may be living in a bigamous or polygamous state without cohabitation with more than one woman, he is in that sense a bigamist or a polygamist, and yet guilty of no criminal offense. So that, in respect to those disqualifications of a voter under the act of March 22, 1882, the objection is not well taken that represents the inquiry into the fact by the officers of registration as an unlawful mode of prosecution for crime. In respect to the fact of actual cohabitation with more than one woman the objection is equally groundless, for the inquiry into the fact, so far as the registration officers are authorized to make it, or the judges of election, on challenge of the right of the voter if registered, are required to determine it, is not in view of its character as a crime, nor for the purpose of punishment, but for the sole purpose of determining, as in case of every other condition attached to the right of suffrage, the qualification of one who alleges his right to vote. It is precisely similar to an inquiry into the fact of nativity, of age, or of any other status made necessary by law as a condition of the elective franchise. It would be quite competent for the sovereign power to declare that no one but a married person shall be entitled to vote; and in that event the election officers would be authorized to determine for that occasion, in case of question in any instance, upon the fact of marriage as a continuing status. There is no greater objection, in point of law, to a similar inquiry for the like purpose into the fact of a subsisting and continuing bigamous or polygamous relation, when it is made, as by the statute under consideration, a disqualification to vote.
The counsel for the appellants in argument seem to question the constitutional power of congress to pass the act of March 22, 1882, so far as it abridges the rights of electors in the territory under previous laws. But that question is, we think, no longer open to discussion. It has passed beyond the stage of controversy into final judgment. The people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion they are represented by the government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the constitution, or are necessarily implied in its terms, or in the purposes and objects of the power itself; for it may well be admitted in respect to this, as to every power of society over its members, that it is not absolute and unlimited. But in ordaining government for the territories, and the people who inhabit them, all the discretion which belongs to legislative power is vested in congress; and that extends, beyond all controversy, to determining by law, from time to time, the form of the local government in a particular territory, and the qualification of those who shall administer it. It rests with congress to say whether, in a given case, any of the people resident in the territory shall participate in the election of its officers or the making of its laws; and it may, therefore, take from them any right of suffrage it may previously have conferred, or at any time modify or abridge it, as it may deem expedient. The right of local selfgovernment, as known to our system as a constitutional franchise, belongs, under the constitution, to the states and to the people thereof, by whom that constitution was ordained, and to whom, by its terms, all power, not conferred by it upon the government of the United States, was expressly reserved. The personal and civil rights of the inhabitants of the territories are secured
to them, as to other citizens, by the principles of constitutional liberty, which restrain all the agencies of government, state and national; their political rights are franchises which they hold as privileges in the legislative discretion of the congress of the United States. This doctrine was fully and forcibly declared by the chief justice, delivering the opinion of the court in National Bank v. County of Yankton, 101 U. S. 129. See, also, American Ins. Co. v. Canter, 1 Pet. 511; U. S. v. Gratiot, 14 Pet. 526; Cross v. Harrison, 16 How. 164; Dred Scott v. Sandford, 19 How. 393. If we concede that this discretion in congress is limited by the obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the territories to become states in the Union, still the conclusion cannot be avoided that the act of congress here in question is clearly within that justification. For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.
It remains to be considered whether, in the two cases in which Mary Ann M. Pratt and Mildred E. Randall and husband are respectively the plaintiffs, and in which the plaintiffs have shown a title to vote, the defendants, who were registration officers, are sufficiently charged with a legal liability. As we have pointed out, they were bound, by virtue of their appointment under the ninth section of the act of March 22, 1882, to perform their duties under the existing laws of the United States and of the territory. The law of the territory then in force, being "An act providing for the registration of voters, and to further regulate the manner of conducting elections in this territory," approved February 22, 1878, made it the duty of the registration officers and their deputies "to make careful inquiry as to any or all persons entitled to vote," and ascertain in all cases upon what ground the person claims to be a voter; and it is provided that "he shall require each person entitled to vote and desiring to be registered to take and subscribe in substance the following oath," etc. The form of the oath is then set out, containing a statement of all the particulars which, according to the laws then in force, were necessary to show the qualifications of a voter. It was then provided that, upon the receipt of such affidavit, the officer "shall place the name of such voter upon the register list of the voters of the county."
The act of March 22, 1882, created the additional disqualifications which have been mentioned, and which, of course, are not met by the oath as prescribed by the territorial act of 1878, and it is not consistent with the express provisions of the act of congress that every person willing to take the oath in the form prescribed by the territorial act shall be permitted to register as a voter. Either the oath itself must be regarded merely as a model, to be modified by the operation of the act of congress, so as to meet by appropriate denials the several new disqualifications created by it, and then to be taken with the prescribed effect of entitling the person subscribing it to register as a voter without other proof; or else the effect of the act of congress is to limit the class entitled to take the oath in the form prescribed by the territorial act, with the effect thereby given to it, to those who are not subject to the disqualifications which the act of congress imposes. The existing laws of the United States and of the territory, under which the election officers are bound to perform their duties, must include the act itself, which provides for their
appointment and defines their duties, and if they have not the right to exact an oath different from that, the form of which is given in the territorial act, they must otherwise satisfy themselves that persons offering to register are free from the disqualifications defined in the act of congress. In doing so, they are of course required to exercise diligence and good faith in their inquiries, and are responsible in damages for rejections made without reasonable cause, or maliciously.
(118 U. S. 747)
In the two cases last referred to, the allegations of the complaint show, not only that the several plaintiffs were legally entitled to be registered as voters, but declare that the refusal of the registration officers to admit them to the list was wrongful and malicious. The demurrers admit the plaintiffs' case, as thus stated, and therefore ought to have been overruled. It follows that the judgments in the three cases in which Jessie J. Murphy, Ellen C. Clawson, and Hiram B. Clawson, her husband, and James M. Barlow are the respective plaintiffs, are affirmed as to all the defendants; in the two cases in which Mary Ann M. Pratt and Mildred E. Randall, and Alfred Randall, her husband, are the plaintiffs, respectively, the judgments in favor of the five defendants, Alexander Ramsey, A. S. Paddock, G. L. Godfrey, A. B. Carleton, and J. R. Pettigrew are affirmed; and as to the defendants, E. D. Hoge, John S. Lindsay, and Harmel Pratt, the judgments are reversed, and as to them the cases are remanded, with instructions to overrule the demurrers, and for further proceedings. And it is so ordered.
UNITED STATES . STEEVER.
(March 16, 1885.)
1. PRIZE ACT OF JUNE 30, 1864-SHIP-TORPEDO STEAM-LAUNCH.
A torpedo steam-launch, attached to a division of a naval squadron, though not proved to have had any books, is a ship, within the meaning of the prize act of June 30, 1864, c. 174, ? 10, rules 4 and 5; and her commander is entitled to one-tenth of prize money awarded to her, and cannot elect to take instead a share proportioned to his rate of pay; but her other officers and men are entitled to share in proportion to their rates of pay.
2. SAME DISTRIBUTION OF PRIZE MONEY.
The distribution of prize money among the subordinate officers and crew of a ship "in proportion to their respective rates of pay in the service," under the prize act of June 30, 1864, c. 174, 8 10, rule 5, is to be made according to their pay at the time of the capture, and not according to the pay of grades to which they have since been promoted as of that time.
3. SAME CLAIMS OF CAPTORS OF THE ALBEMARLE.
Under the act of August 8, 1882, c. 480, referring the claims of the captors of the ram Albemarle to the court of claims, each captor is entitled to recover such a sum as, together with the sum formerly paid him by the secretary of the navy under the prize decrees in the case of the Albemarle, will equal his lawful share of the prize money in that case.
Appeal from the Court of Claims.
Sol. Gen. Phillips, for appellant. James Fullerton, for appellee.
GRAY, J. This is an appeal from a decree of the court of claims in favor of the appellee in a suit brought by him under the act of August 8, 1882, c. 480, to recover the amount necessary to make up his lawful share of the prize money awarded for the capture of the rebel ram Albemarle. The facts of the case, as appearing in the findings and judgment of the court of claims, are as follows:
The rebel iron-clad ram Albemarle was captured and sunk at Plymouth, in the Roanoke river, in the state of North Carolina, on the night of October 27, 1864, by the United States Picket Launch No. 1, an armed torpedo launch propelled by steam, attached to a division of the North Atlantic blockading squadron, and commanded by Lieut. William B. Cushing, of the United
States navy, and having on board six inferior officers (of whom the petitioner, a third assistant engineer, was one) and eight men. Lieut. Cushing had been, by order of the secretary of the navy, detached from the command of the United States ship Monticello, and directed to report for duty to Rear Admiral Porter, commanding that squadron; and had been assigned by the admiral to the command of this launch. It does not appear that the launch had any books. The Albemarle was afterwards raised by the United States forces, and appropriated to the use of the United States, and was twice appraised by duly-appointed boards of naval officers: the first time, before she was so appropriated, at the sum of $79,944, which was forthwith deposited by the secretary of the navy with the assistant treasurer of the United States at Washington; and the second time, under the act of April 1, 1872, c. 76, (17 St. 649,) at the sum of $282,856.90, which, less the sum already deposited, was likewise so deposited, pursuant to the act of January 8, 1873, c. 18, (17 St. 405.)
Upon successive prize proceedings in 1865 and 1873, in the district court of the United States for the District of Columbia, the Albemarle was condemned as prize of war, and it was adjudged and decreed that she was of superior force to the launch, and that her appraised value, deducting costs, and amounting to $273,135.09, be paid to the captors as follows: One-twentieth part to the admiral commanding the squadron at the time of the capture, onehundredth part to the fleet captain, and one-fiftieth part to the officer commanding the division to which the launch was attached, and the remainder distributed to the other persons doing duty on board the launch, in proportion to their respective rates of pay in the service. In all the prize proceedings there was no appearance by or in behalf of any of the captors except Cushing. Before either of those decrees was made, three of the officers of the launch were promoted: Lieut. Cushing, in February, 1865, to the rank of lieutenant commar der; and Acting Master's Mates William L. Howarth and Thomas S. Gay, in *March, 1865, the one to the grade of acting master, and the other to the grade of acting ensign; and each promotion to date from October 27, 1864. The money so ordered to be distributed, amounted, after deducting the shares paid to the commander of the squadron, the fleet captain, and the division commander, to the sum of $251,284.29, which was distributed by the officers of the treasury department among all the officers and crew of the launch, or their legal representatives, in proportion to the respective rates of pay to which they were by law entitled on the day of the capture, except that Cushing, Howarth, and Gay were, by order of the secretary of the navy, paid in proportion to the rates of pay of the grades to which, after the capture, they had been promoted as aforesaid.
By the act of August 8, 1882, c. 480, congress referred the claims of the captors of the Albemarle to the court of claims, "with jurisdiction and authority to hear and determine the same, and all defenses thereto which are or may be open to the United States, and to render judgment thereon, with the right of appeal as in other cases;" and if the court should find that any of the captors had not received their full and just share of the prize money awarded for the capture of the Albemarle, according to the proportions provided in the prize laws in force at the time of the capture, and that they were entitled to claim and recover the same, then to render judgment in favor of them, or their legal representatives, for such sums as, added to the amount already paid, should make up their lawful shares; and provided that no suit should be brought under the provisions of this act after one year from the date of its passage; and that any judgment rendered by the court of claims should be paid by the secretary of the treasury out of any money in the treasury applicable to the payment of prize to captors, and, failing such money, out of any money in the treasury not otherwise appropriated. 22 St. 738.