
    Porter against Dunn.
    Whore negroes were taken from an. enemy, or their adherents, during the -war, and delivered over to the officers and men in tev's brigade, in lieu of ray; the original owner, by virtue of an act parsed in 1784, was divested of his right of property, and the state only became responsible for the value.
    TROVER for five negroes, viz. Peter, his wife and three children. The plaintiff, Robert Porter, was an officer in general Sumter’s brigade, in 1780 and 1781; and the defendant, a planter on Btack. river, who had joined the British while they were at Camden, and performed duty as a soldier in their militia.
    The negroes in question were formerly the property of the defendant, but had been captured while the defendant was with the British, and delivered over to the plaintiff in lieu of pay, for his services as an officer in the line, and taken into North-Carolina, where he resided. They were afterwards enticed away by the defendant, and this action was brought to recover their value.
    It will be recollected, in the history of this country at the period alluded to, that the British forces had overrun almost every part of it, and there was no money in circulation to enlist men, or bring them into the field, the continental and state currencies having about that time died a natural death. In the pressure of those circumstances, general' Sumter, who had been a very active officer in the course of the war, conceived the idea of raising a brigade, and paying the officers and men with the property of those who had joined the enemy, and taken up arms in their cause. This plan he submitted to the consideration of the commander in chief, and other officers of distinction^ who gave it their sanction and approbation. In consequence of which, he issued a proclamation, calling upon the citizens of America to join him, and promised, as their rewards, the property taken from the enemies of the country within the British lines, or from those who had joined their standard. This proclamation drew numbers to him, particularly from North-Carolina; and in a short time, he was enabled to procure, and bring forward into the field, a great body of men, who contributed much by their exertions, in driving the enemy from the upper country.
    It appeared in evidence on the trial, that in order to do justice to the officers and soldiers in the brigade, a commissary was appointed to take charge of the property so taken; and a board of field officers was also appointed, whose duty it was to examine into the claims of each individual, and likewise into the property taken; and if the property belonged to any citizen of America, or one who was friendly to the interests of the country, it was restored to them ; but if to the enemy, or their adherents, it was to be delivered over, at a fixed valuation, to the officers and men, in lieu of pay. It also appeared in evidence, that in the course of the distribution of the negroes among the troops, that the wench, Peter's wife, and one child, were delivered to Porter, the plaintiff; that he purchased Peter from a brother soldier; and that the wench had two children while they were in his possession.
    Pinckney, for defendant,
    argued, that he had never been divested of his property, either voluntarily, or by any competent tribunal. The taking away negroes from the defendant’s plantation, and giving them to the officers and troops in general Sumter's brigade, was an unlawful act, not warranted by the law of nations, or any municipal law. That in a civil war, such as the revolutionary war was, the right of property depended upon the final issue of the contest, and the stipulations then entered into by the contending parties ; or until altered by some act of the supreme authority of the state, or competent tribunal. It was true, that the defendant had been deluded and prevailed upon at one period to join the English standard; but it should be remembered, that in the year 1780, and in the early part of 1781, the British had, by a superior force, overran the greatest part of the southern part of the country, from the sea-coast to the mountains ; and many good citizens, well' attached to the cause of America, had been either seduced into their service, or forced to throw themselves under their protection, until the enemy were driven back to the garrisons on the sea-coast ; and who, after that turn of good fortune, went back to their farms and plantations, and ever afterwards behaved well. That the defendant was one of this last description of men, and had conducted himself, since his return to his allegiance, as a good citizen. That the treaty of 1783 deprived him of none of his rights as a citizen of America, but on the contrary, exonerated him from all criminal prosecutions, for any thing done during the war, That if he was, by this formal and public act of his country, forgiven or excused for the part he had -taken; it followed of course, that all his civil rights, origi-naUy attached to him, were also restored. He further contended, that even the property taken from an open and avowed enemy, was not changed in war, until the capture had been legally investigated in some court of competent jurisdiction, and until a condemnation had there taken place. He eited to this point the case of Jenkins v. Putnam, (p. 8.) also the case of Turnbull v. Ross, (p. 20.)
    Pringle, in reply.
    The act of taking away the property from the original owner was not squared by the nice rules of law; yet, the urgency of the times, and the desperate situation to which the country was at that time reduced, well justified its policy. The state was overrun, ravaged and pillaged, from one end to the ocher, and its defenceless inhabitants suffered every species of injury and insult. It-was without resources, and without men to defend it. Upon this trying occasion, new and extraordinary measures were necessary, and they were adopted. What were the consequences ? Why, of the most beneficial nature to the state. If, therefore, there was a deviation from the known and established rules of warfare, in cases of civil dissensions, the country was bound and pledged to support its enterprising citizens in the transaction, and save them harmless from every species of civil or criminal prosecution. And they did it. He then quoted the act of assembly, passed in 1784, “to indemnify brigadier-general Sumter, and the “ officers acting under his direction, during the British invasion,” which enacts “ that no indictment, or suit at “ common law, or in equity, shall be brought or maintained “ against the said Thomas Sumter, or any state or militia “ officer acting by his orders, authority or command, for “ any trespass vi et armis, or trover, or for any debt, or “ damage incurred, if the same was committed or incurred “ on public account, and appropriated for the use, and with “ intent to give success to the operations of war., conducted “ by the said Thomas Sumter, during his command in the “ militia of this state, and the state troops under his com- “ mand ; but all such actions or suits commenced, or to be “ commenced, shall, upon pleading the general issue, and “ giving this ordinance in evidence, be dismissed with “ costs. That in all cases where any property hath been “ taken from any person resident in this state, and “ appropriated to the public use, by order of the said brigadier-general Sumter, such person or persons shall ap- “ ply for redress to the legislature, and not elsewhere.”
    
    From the tenor of this act, he contended, that whatever was irregular, or not conformable to the rules of war, in the conduct of the general, or any of his officers, was cured and legalized. They were completely indemnified by it, and the property so disposed of for public use, vested in the persons to whom it was delivered. The only remedy the former proprietor had, was by an application to the legislature, who had in many instances, where favourable circumstances accompanied the applicant’s claim, granted full compensation.
   Grimke, J.

presided at the trial of this cause, and charged the jury, that the practice of taking property from an enemy, or its adherents, and dividing it among the soldiers, was not justified by the laws of nations or rules of warfare. That it had a tendency to promote licentiousness in an army, and on that account, was much discountenanced by all civilized nations. But the act of assembly of IT84, for indemnifying general Sumter, places this case beyond all doubt: it exonerates him, and all persons acting under his authority, from any prosecution or suit, on account of property taken, in order to give success to the operations of war. And expressly directs, that the former owners shall apply to the legislature, and not elsewhere : which seems to legalize all the proceedings of those officers $ and, in fact, vests the property in the in them.

The jury returned a verdict for the plaintiff, to the amount of the value of the negroes.

A new trial was afterwards moved for in Charleston, before a full bench, on the ground that the plaintiff had not performed the services which would have entitled him to the delivery of the negroes in question; and on the further ground of the defendant’s case being a hard one.

A new trial was therefore ordered, on payment of costs.

This cause came on to be tried a second time at Camden, when Justice Burke was present, and there was a second. verdict for the plaintiff. The defendant acquiesced in it, and afterwards applied to the legislature for redress; 
      
      
        Note. The constitution of the XTniied States, and the constitution of Souih-CuroHnci, passed in June 9 171)0, both guard against ex post facto laws In future 5 consequently all such will, if: is presumed, be forever hereafter considered as null end void by the judges of this state, and those of everv-other state hi the Union.
     