The Emily and the Caroline Broadfoot

APPEAL from the Circuit Court of South Carolina.

In each of these two cases, a libel of information was filed in the District Court of South Carolina, against the ship Emily and the brig Caroline, under the 1st section of the act of the 22d of March, 1794, c. 187. [xi.] prohibiting the carrying on the slave trade, from the United States to any foreign place or country; and on the 2d section of the act of the 2d of March, 1807, c. 77. [lxvii.] to prohibit the importation of slaves into the United States, after the 1st day of January, 1808. Each libel contained three counts, two upon the act of 1794, and one upon tha of 1807, which are the same in their provisions, so far as respects this case; and the libels described the offence in the alternative, pursuing the words of the law, 'that the said vessel was fitted out within a port or place of the United States, to wit, the port of Charleston, OR caused to be sailed from a port or place within the United States, to wit, the said port of Charleston, &c. for the purpose of carrying on trade or traffic in slaves,' &c. A decree of condemnation was pronounced, in each case, in the District Court, which was affirmed in the Circuit Court, and the causes were brought by appeal to this Court. Feb. 7th.

The causes were argued by Mr. Harper, for the appellant, and by the Attorney-General and Mr. M'Duffie, for the respondent.

On the part of the appellant it was contended, (1.) That the informations were fatally defective; inasmuch as in all the counts, they charge alternatively, the commission of one or the other of two distinct and separate acts, each of which constitutes, under the statute of Congress, a distinct substantive offence; thus leaving it wholly uncertain to which of the charges the claimant was to direct his defence and proof. (2.) That the proof did not sustain any of the counts, because it showed that neither of the vessels was actually sent from the port of Charleston, before the seizure; and did not show that either of them was so fitted out there, previous to the seizure, as to be in a condition to be sent. That the offence of fitting out, was not complete when the seizure took place, and that a mere inceptive fitting out, or an attempt to fit out, did not constitute the offence created by the acts of Congress.

For the respondents, it was argued, (1.) That the charge, with the alternative, was sufficient, both of the alternatives being illegal. The note of the reporter, correcting the account of the decision, when one of these cases (the Caroline) was formerly before this Court, was referred to, in order to show that the Court did not mean to decide in that case, that stating the charge in the alternative, would not have been sufficient, if each alternative had constituted an offence, for which the vessel would have been forfeited by the law. The informations had been amended, and studiously avoided the difficulty heretofore made on account of the alternativeness of the charges. As they now stand, they are in conformity with the language of the statute which creates the forfeiture, and though still alternative in form, they are not so in substance; since both the facts charged are equally penal, and the latter part of the section merely makes either of the facts evidence of the illegal intention. The Legislature has thought fit to depart, in this instance, from the general principle of penal enactments; it aims at punishing the intention, and makes either of the two facts evidence of the illegal intention. Both, then, being illegal, the information has correctly charged the offence. (2.) The law requires nothing more to consummate the offence, than distinct acts, showing the quo animo. The offence is complete, when there is any overt act clearly indicative of the attempt to commit it. If this were not the case, and the crime were not to be considered as consummated until the preparations were complete, it would be impossible to define what was a complete preparation. Many articles might be purposely left unfinished, and completed at sea; so that the construction contended for, would furnish an effectual recipe for a fraudulent evasion of this part of the law. Feb. 24th.

Mr. Justice THOMPSON delivered the opinion of the Court.