
    Matthew J. Payne, ads. Robert Robinson.
    
      Trover. After the execution of the treaty ceding Florida to the United States, and its ratification by the government uf the United Stats, but before its ratification by Spain, the plaintiff, a British subject, introduced slaves into Florida and put them into the possession of one II The slaves broke into insurrection and committed various outrages. An officer of the United Stoics’ army, at Amelia Island, at the request af the wife of II. (who voas absent) and by permission of the Spanish governor to enter Florida for the protection of the i. ha-bitants, sent a party who seized the slaves, and they were detained m the custody of defendant till ordered to be given up by the government. While m custody one of the slaves, attempting to escape, was shot by a sentinel. Held that the ■seizure and detention were excusable and tiefendant not liable.
    
    This was an action of trover, against an officer of the United States’ army, to recover damages for the detention of ten negroes.
    It appears from the evidence, that in the spring of 1820, a British schooner called the Springbird, from Jamaica, came into the river St. John’s, in East-Flonda, with seventeen negro slaves; that they were of bad character, and understood to be convicts, who had been shipped for their crimes; what became of seven of them, no body knew or would give any evidence; that the other ten were either sold to Mr. Houston, on Talbot Island, or were engaged to be sold to him, and were in March, 1820, working on his plantation and under his control; that while .on Talbot Island, the slaves rose one night, broke open a storeroom and plundered from it provisions; arms and ammunition; that Mrs. Houston (Mr. Houston being absent) requested a gentleman present to apply for assistance at Amelia Island, where there ivas then aUuited States’ garrison; that he went the next day to Femandina and requested C ’ol. Bankhead, then in command; to send a force to take charge of the negroes on Talbot Island; that Col. Bankhead had before this been applied to by settlers in Florida, to the north of the Si. John’s, to afford them protection, and particularly by Judge Low, who enclosed a letter from Governor Coppmger, authorising the interference; that in that part o,t Florida, there could scarcely he said to be any government, there'being no magistrates or courts of justice' m the exercise of authority: that negro slaves ¿ad been introduced into Georgia, through Florida, in 1817 and 1818; that Col. Bankhead having also been informed, not long before thé application from Talbot Island, that a company had been formed to introduce slaves into Georgia, thought this an occasion for complying with General Gaines’ order of the 22d May, 1,819, relative to attempts on the southern frontier to introduce negro slaves into the United States, and detached Lieutenant-Griffiths with a competent force to act under it, and also to protect the inhabitants of Florida from any outrages 'which the slaves might commit; that Lieutenant Griffiths proceeded to Talbot Island and took away the ten negroes on the day of March, 1820; that he brought them to Fernandma, where Captain Payne was then in command; that while in eus«-tody they were maintained at the expense of the United States, and one of them having forcibly endeavored to make bis escape was killed by a sentinel on duty; that Captain Payne having refused to deliver them up until instructed by his superior officer, detained them until upon the application of Belton Copp, an attorney at law, to the Secretary at War, they were ordered to be restored on the payment of their expenses, which having been complied with the nine survivors were on the 8th Sept. 1820, delivered up by Captain Payne. It also appeared from the evidence, that Robinson, the plaintiff, was a British subject from Jamaica; that he had been a merchant and afterwards a seafaring man;- that he applied to Governor Coppinger and got permission- from--, him to bring negroes into Florida; that the plaintiff had no landed- property in Florida, but was in treaty for the purchase of lands, and that Mr. O’Hara, the witness' had given him permission to settle on any of his lands.
    The defendant contended that the plaintiff had not established any such property, possession or right of possession, as was necessary to enable him to maintain the action, and thatthe seizure and detention was justified or excused by the political State of that part of Florida from which the slaves were taken', -and was authorised by the application of the inhabitants and the just suspicions of the officer, and under the order of General Gaines.
    The judge • charged the jury that the entry into Florida with an armed force was unjustifiable, as no government has a right to interfere with the territorial rights of another, but that the officers seizing and detaining, were perfectly excusable, that there was nothing lawless or officious in their .conduct» which indeed was laudable and was called for by the necessity of the case, and that therefore they were not answerable' in damages. The jury found a verdict for ‡009,68, including interest. The defendant moved for a new trial on the following grounds.
    1st. That from the condition of Florida atthat time, it was no violation of the Spanish authority to seize the negroes, and therefore, under all circumstances, it was a justifiable act.
    2nd. That from the evidence and the judge’s opinion it was an excusable act, and the damages should have been nominal, and were therefore contrary to evidence.
    
      Petigru, for motion.
    To authorize the plaintiff to recover, he ought to prove possession or property in himself. • The possession was in Houston, and so far as the proof goes, ¿hey were convicts from the West Indies.
    The presiding judge supported the counsel for defendant in the view that the state of the country was such as to excuse defendant’s act. In legal effect, there is no difference between an excuse and a justification; all the difference is in the manner of pleading. Condemnation of one criminally accused is only justifiable on full' proof; but seizure and detention are excusable when there is probable cause. Mayson Rep. 27, 102; 7. Crunch 839.
    
    The officers had explicit instructions to use their efforts to suppress the slave trade, and the manner and circumstances of the introduction of these slaves, was calculated to induce the belief that the plaintiff had violated.; or was about to violate the law.
    The acts of Congress of 1807 and 1819, authorize naval and; military officers to seize vessels having slaves on board-The government is not bound to wait until the law s are violated,: but may anticipate the contemplated act of violation, when-circumstances justify th:e belief that it is contemplated,
    
      OrimJcc, contra.
    Although the negroes were in the possession of Houston, yet according to his own evidence, his possession was the possession of plaintiff. He left them in Hous » ton’s posses dm, and according to the strictest rule, they were prima facie, his property. The action of trover is found*, ed technically on plaintiff’s possession.
    There is no doubt that defendant did the act which is comobmied of, and the plaintiff was entitled to a verdict for something, unless defendant had pleaded and proved a justification. Circumstances of extenuation or excuse could only be. used to lessen the damages and were exclusively for the jury.
    Was the taking of the negroes justified by the circumstances? When the act of congress for preventing the slave trade was passed, the U. S. had not the power, and it could not have been intended, to interdict the importation of slaves into Florida, Until the surrender of the territory under the treaty, the United States had no power over it, so far as territorial jurisdiction yvas concerned. The plaintiff was a British subject, and government had no personal jurisdiction over him, and consequently could not authorize the act; and the authority of government cannot justify the officer. 2 Cranch, 170, 179.
    The act of 1807 has no application to this case. The powers delegated to the president by that act, are confined to vessels yvitlxin the jurisdiction of the United States, and to those hovering off the coast, with apparent intention to land; arid to-vessels belonging to citizens of the United States, found on the high seas with slaves on board. The only case provided for by the act, which bears any analogy to the present, is that of hovering ojx the coast; and the fact that these slaves were landed in Florida, and contracted to be sold there, shews that this case did not exist, The act of 1817 only provides for cases where the vessels employed in the slave trade belong to citizens or residents of the United States; which has clearly no application to-'the present.
    
      * The plaintiff’s demand was for the expenses paid to the officer, as a condition of delivering up the negroes, and for the negro shot. It is objected that money paid for the subsistence of the slaves'while in defendant’s possession, cannot be recovered in the action of trover. There is no doubt hut a special as-sumpsit would lie to recover it back; but it does not follow that-it may not be recovered in trover. If the damages sustained he the consequence of the original injury, (as in this case) they .may be recovered in this form of action.
    
      Gadsden, in reply.
    To sustain his action, the plaintiff must prove both property and possession, or the right of pos ■ .session. 2 Phil. Ev. 118; 14 Johns. 353, 7 T. R. 12; IS' Easi, 609. He had sold to Houstonr Houston said he had engaged to purchase them, provided he could pay for them by .a given time, which had not arrived. They were in Houston’s-possession, and at work on his plantation; he first applied for the-return of the slaves and was with Robinson when they were returned.
    The defendant had aright to take them. There was no violation of sovereignty, fin- he was invited by the Spanish authority. A state may enforce an ordinance beyond its own jurisdiction. The peculiar circumstances of the province justified the-measure. It actually belonged to the United States by treaty; the treaty was to he ratified within six months, it was ratified, and the ratification has relation to the time of its execution.
    If the Plaintiff’s object was to bring these slaves within, the United States, they might be lawfully seized even in Florida, and no one could complain but the Spanish government. The circumstances afforded reason to believe that such was his object; and if there was probable cause for seizure, it will excuse.
   The opinion of the court was delivered by

Mr. Justice Huger.

The political situation of Spain, anterior to 1819, was. disturbed and revolutionary. The Spanish empire was falling to pieces, and the mother country was unable to preserve order and peace in her colonies. The contiguity of East Florida i» the United States imposed on. the general government the duty bf adopting measures for the protection of our southern frontier. A lawless inób having possessed themselves of Amelia Island (the northern extremity of East Florida) put at defiance-the constituted authorities of the province, and threatened the peace of the United States. Under these circumstances, the-general government thought proper to take military possession of that part of Florida which-was immediately contiguous to Georgia. This precautionary measure gave no umbrage to .Spain. She appears to have been satisfied that the United States acted -in good faith. Subsequent to this, in February, .1819, the treaty of session was signed at Washington, andra-lified by our government. Provision was made in this tie -ty for a ratification by Spain in six months after its date. This however was not done until October, 1820; during this interval the government of Florida and th.e magistrates were unable to afford protection to the inhabitants living to the north of the St. -John’s river, they were referred to the United States’ army for protection, accompanied with an acknowledgment of theii-imbecility and a request to the officer commanding the United. '^States’ troops, that he would afford protection. The power, •of Spain had ceased and that of the United States had commenced; it was therefore incumbent on them to afford protec-ton, for wherever sovereign power exists there have the governed a right to look for protection. A government can only act by its agents, and the agents of the United States in Florida were the arnry: the army therefore was hound to afford the protection required. It .certainly did not lie with the plaintiff, who was a foreigner to both governments, to dispute an authority sanctioned by both.

It is difficult to imagine a case which could present a-stronger claim to the protection of the sovereign power than the one before the -court A foreigner gets into the country, with a cargo of convicts, under the pretence of settling there, lie sells his cargo, in opposition to the known laws and policy of the province, as well as of the United States. The convicts, .as he must have expected, raise the standard of insurrection, ■alike dangerous to .Florida .and Georgia; they arm themselves,. steal, rob and threaten the destruction of the weak and defenceless, and then he complains that the power in the exercise of sovereignty interfered to prevent the consummation of mischiefs* against which humanity alone afforded a sufficient authority to? act, and which interference the laws of nature and nations imperatively demanded. • 1 can see no ground on which the plaintiff can recover; the interference on the part o.f defendant was ¡authorised by the government. No more force was used than ivas sufficient to quell the insurrection, and their ..detention lasted no longer than the government supposed necessary to the occasion. _ The unfortunate accident which happened was the .effect of an attempt to escape on the part of one of the prison-¡firs for which the defendant is not answerable.

Gadsden and Petigru, for motion.

Grimhe, cpntra..

The motion must, therefore, be granted,

jBay and Johnson, Justices concurred.  