ซ. exclusively within their province, but also to pronounce OLIVER what is the law resulting from them, it will be next to impossible to form a system of rules by which a mer- MARY'D. chant may safely regulate his conduct. Nor will it INS. co. help the matter to consider it as a mixed question of law and fact, because that gives to the jury a right to disregard the opinion of the Court, which they will have no right to do in case it be considered exclusively as a question of law on which the Court alone has a right to decide. In civil cases every man has an interest in confining a jury as much as possible to their proper sphere, which is to decide on facts; while a Court does not encroach on their province, care should be taken not to encourage any improper encroachment on their part by unnecessarily throwing on them any exercise of what are the legitimate functions of a Court. Among these none appear to me to be better settled, than that it is the exclusive privilege and bounden duty of a Court to decide whether an act, which is to be done within a reasonable time to entitle a party to maintain his action, has been performed within such time or not. So also, where a party sets up an excuse for an act which will otherwise defeat his right to recover, it appertains exclusively to the Court to decide on the sufliciency of the matter alleged, and if a jury, after deciding on the facts, take upon themselves the further office of determining the legal effect thereof as to the case under consideration, in opposition to the declared opinion of the Court, they forget their duty and act contrary to law. But if this be a question of law, the Plaintiff still supposes that the Circuit Court erred in not thinking that the facts proved constituted a valid excuse for the last forty days' stay at Barcelona, and in not instructing the jury accordingly. This excuse was, in my opinion, properly disposed of by the judge below, but instead of stating at length why I consider the alleged apprehension of capture by the Algerines as furnishing no justification for this delay, it is sufficient to say that I entirely concur, not only in the opinion which has already been delivered on this point, but in the whole of the reasoning on which it is founded. STORY, J. Concurred with Judge Livingston. OLIVER MARSHALL, Ch. J. My own opinion was that the jury was to find the fact whether there was danger in MARY'D. passing between Barcelona and Salou; and that they INS. Co. ought to have been instructed that if there was danger it justified the delay, otherwise not. A libel for certain in all which consti An informal ERROR to the Circuit Court for the district of South Carolina, in a case of seizure for violation of the acts of Congress respecting the slave trade. The libel was in the words following: "At a special district Court for South Carolina circumstances district, Be it remembered, That on the day tute the of of in the year of our Lord one thousand eight fence. hundred and the United States of America, by Libel, or infor- Thomas Parker, their attorney for the district aforemation in rem, said, came here into Court and gave Thomas Bee, esq. may be amended by judge of the said Court, to understand and be informed leave of the that on the Court. day of they, the said United States, by their proper officers of the customs, did cause to be seized, arrested and secured, a certain brig or vessel called the Caroline, her tackle, furniture, apparel and other appurtenances, as forfeited to them, the said United States; for that the said brig or vessel since the twenty second day of March, 1794, was built, fitted, equipped, loaded, or otherwise prepared within a port or place of the said United States, or caused to sail from a port or place of the said United States, by a citizen or citizens of the said United States, or a foreigner, or other persons coming into, or residing in the same, either as master, factor, or owner of the said brig or vessel for the purpose of carrying on trade or traffic in slaves to a foreign country; and also for that the said brig or vessel since the day and year last afore said, was built, equipped, loaded or otherwise prepár BRIG บ. ed within a port or place of the said United States, or CAROLINE caused to sail from a port or place within the said United States by a citizen or citizens of the said United U.STATES. States, or a foreigner or other persons coming inte or residing within the same, either as factor, master or owner of the said brig or vessel, for the purpose of procuring from a foreign kingdom,. place or country, the inhabitants of such kingdom, place or country, to be transported into a foreign place or country, port or place to be disposed of and sold as slaves, in violation of a certain act of Congress of the said United States, passed the 22d March, 1794, entitled "An act to prohibit the carrying on the slave-trade from the United States to any foreign place or country. Also for that since the 1st day of January, 1808, the said brig or vessel was built, fitted, equipped, loaded or otherwise prepared in some port or place within the jurisdiction of the said United States, or caused to sail from some port or place within the said United States by some citizen or citizens of the said United States, or some other person for the purpose of procuring negroes, mulattoes, or persons of color from some foreign kingdom, place or country, to be transported to some port or place within the jurisdiction of the said United States to be held, sold, or disposed of as slaves, or, to be held to service or labor, in violation of a certain act of Congress of the United States, passed the second day of March, in the year of our Lord one thousand eight hundred and seven, entitled "An act to prohibit the importation of slaves into any port or place within the jurisdiction of the U. States from and after the first day of January, in the year of our Lord one thousand eight hundred and eight." Wherefore the said United States, by Thomas Parker, their attorney aforesaid, pray the advice and opinion of this honorable Court in the premises, and that on due proof of the allegations aforesaid, the said brig er vessel, her tackle, apparel, furniture and other appurtenances, may be decreed and adjudged as forfeited to them. the said United States, and that such proceedings may be had thereon as are agreeable to law and justice, and the style, usage, and practice of this honorable Court." VOL. VII "THOMAS PARKER. 64 BRIG To the transcript of the record which came up was CAROLINE annexed the following statement of facts: v. U.STATES. "The information which was filed in this case against the Caroline was founded upon an alleged violation either of the 1st section of an act of Congress, passed the 220 March, 1794, entitled "An act to prohibit the car"rying on the slave trade from the United States to any "foreign place or country," or of the 2d section of an act, passed on the 2d of March, 1807, entitled "An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States from and after the first day of January in the year of our Lord one thousand eight hundred and eight." By the act of 1794, the fitting or sailing of a ship, for the purpose of a traffic in slaves to any foreign country, subjects the ship, coneerned in such traffic, to forfeiture." "The act of 1807 enacts, that if any ship within the Jurisdiction of the United States shall be fitted out or caused to sail by any person, either as master, factor or owner, "for the purpose of procuring any negroe, mu"latto or person of color from any foreign country to be transported to any place whatsoever within the jurisdiction of the United States, to be held, sold, or dispos d of as slaves, or to be held to service or labor," he shall be forfeited to the United States. It was admitted by the Claimant, that the Caroline came into this port equipped like any common merchant vesscl, that she did, after her arrival, receive fitments and take on board articles calculated for the slave-trade only. It was satisfactorily proved that the Claimant, after receiving information that such equipments were illegal, restored the Caroline to the condition in which she was when she entered this port, but that this was not done till after her seizure; and that the wooden parts of the fitments for slaves were marked as they were taken out of the vessel. That in such condition she left Charleston, bound to the H vannah and to no other port. That she arrived at th: Havannah on the 28th of June, 1810, and that there she was sold about the 6th of August, 1810, to Spanish subjects who fitted her out for the African slave trade. His honor the Circuit Judge, upon the ground of sufficient evidence having been adduced of intention to carry on the slave trade, either abroad or at home, and a consequent violation either BRIG of the act of 1794, or of the act of 1807, decreed that CAROLINE the Caroline should be condemned as forfeited to the 2. United States. "We agree in the above statement of the case. " WILLIAM DRAYTON, U.STATES. "Proctor for Appellant. "THOMAS PARKER, "District Attorney." C. LEE, for the Appellant, contended, 1st. That the tibel was not sufficient to support the condemnation-and 2d. That the offence was not made out in point of fact. 1. The libel does not state any certain specific offence. It is altogether in the alternative. It does not state when, nor where, nor by whom the vessel was seized-nor when, nor where, nor by whom, nor in what manner the vessel was fitted out. It is altogether vague, uncertain and informal. An information in rem ought to be formal as an information in personam. requires that a libel should be certain all material circumstances. as precise and 2. The statement of facts is as imperfect as the libel. The vessel is only liable to forfeiture when she shall have been actually fitted, equipped or prepared, not while she is fitting, equipping, or preparing. The degree of equipment ought to have been stated that the Court might judge whether it were such fitting, or equipment as is contemplated by the law. Upon every information for a penalty, the offence should be fully proved-Parker, 22. This case is like that of Moodie v. ship Alfred, 3, Dall. 307, in which this Court decid |