25 Mo. 465 | Mo. | 1857
Lead Opinion
delivered the opinion of the court.
The plaintiff asserts her right to freedom on the ground that her mother, a negress, was born in Montreal, in Lower Canada, about the year 1768, and that her mother was not
On the trial the plaintiff gave parol evidence tending to prove that her mother was born in Montreal about the year 1768, and that slavery did not actually exist and was not tolerated by law at that time in Canada.
The defendant, on his part, gave parol evidence tending to prove the actual existence of slavery in Canada in the year 1768; that slaves were recognized as property, and that Rose, the plaintiff’s mother, was held and sold as a slave in Canada.
The defendant also gave the following documentary evidence :
First. The articles of capitulation of the surrender of Montreal by the French to the English forces, signed on the 8th September, 1760, by Lord Amherst, commander-in-chief of the British forces in North America, and the Marquis de Vau-dreuel, governor and lieutenant general for the king of the French in Canada. The 27th article secured to the Canadians the free exercise of the Roman Catholic religion. The 47th article is as follows : “ The negroes and pañis of both sexes shall remain in their quality of slaves in the possession of the French and Canadians to whom they belong; they shall be at liberty to keep them in their service in the colony or to sell them; and they may also continue to bring them up in the Roman religion.” “ Granted, except those who shall have been made prisoners.”
Second. The definitive treaty of peace concluded between the kings of Great Britain and France the 10th day of February, 1768, by which the French ceded and transferred to the crown of Great Britain Canada with all its dependencies. The king of Great Britain agreed to grant the liberty of the Catholic religion to the inhabitants of Canada, and that he would give the most effectual orders that his new Roman Catholic subjects might profess the worship of their religion according to the rites of the Romish church as far as the laws of Great Britain permitted; and that the French inhabitants, or others who had been the subjects of France in Cana
Third. The proclamation of George III, dated 7th October, 1753. It begins by reciting that extensive and valuable acquisitions in America had been secured to the crown by the treaty concluded at Paris on the 10th of February, 1763, and being desirous that his subjects, as well of his kingdoms as of his colonies in America, might avail themselves of the great benefits which would accrue therefrom to their commerce, &c., he had thought fit to issue his proclamation, thereby to publish and declare to his subjects that he had granted letters patent to erect within the countries and islands ceded and confirmed by said treaty four distinct governments, called by the names of Quebec (Canada), East Florida, West Florida and Grenada. It then designates the extent and boundaries of said governments, and declares as follows: “ And whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are and shall become inhabitants, we have thought fit to publish and declare, by this our proclamation, that we have, in the letters patent, under our great seal of Great Britain, by which the said governments are constituted, given express power and directions to our governors of our said colonies respectively that, so soon as the state and circumstances of our said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general assemblies within the said governments respectively, in such manner and form as is used and directed in those colonies and provinces in America which are under our immediate government; and we have also given power to the said governors, with the consent of our said councils and the representatives of the people so to be summoned as aforesaid, to
Fourth. The act of the British parliament of 1774, (14 George III, chap. 83,) entitled “ An act for making more effectual provision for the government of the province of Quebec in North America.” (30 British Stat. at large, 549.) There is nothing in this act that bears on the subject but the two following sections : “ Sec. 4. And whereas the provisions made by the said proclamation in respect to the civil government of said province of Quebec, and the powers and authorities given to the governor and other civil officers of the said province by the grants and commissions issued in consequence thereof, have been found upon experience to be inapplicable to the state and circumstances of the said province — the inhabitants whereof amounted at the conquest to above sixty-five thousand persons, professing the religion of the Church of Rome, and enjoying an established form of constitution and system of laws by which their persons and property had been protected, governed and ordered for a long series of years from the first establishment of the said province of Canada — be it therefore further enacted, by the authority aforesaid, that the said proclamation, so far as the same relates to
Fifth. The act of the British parliament of 1790, (Geo. Ill, chap. 27,) entitled “ An act for encouraging new settlers in his majesty’s plantations in America,” (87 British Stat. at large, 24,) as follows: “ Whereas it is expedient that encouragement should be given to persons who are disposed to come and settle in certain of his majesty’s colonies and plantations in America and the West Indies, be it therefore enacted by the king’s most excellent majesty, by and with the advice and consent of the lords, spiritual and temporal, and
At the request of the defendant, the court gave the following instruction: “ 1. If negro slavery existed by virtue of the laws and ordinances of the French government in Canada prior to the acquisition of that country by the English, and if the articles of capitulation, the treaty of cession, the acts of parliament of 1774 and 1790, and the king’s proclamation of 1763, be correct copies of the genuine documents, then negro slavery was sanctioned and permitted by law in the country called the province of Quebec (which includes Montreal) at all times from the year 1760 to the year 1790.” Other instructions were given to the jury, among which was the following, given at the plaintiff’s instance: “ Whether Rose was lawfully a slave in Oannda is a question for the jury to decide from the evidence on the trial.”
These two instructions are incompatible, and both can not
It is universally admitted that courts do not take judicial notice of the laws of a foreign country, but they must be proved as other facts in a trial. It will not be presumed that a foreign law is in writing, and if it does not appear that it is written, it may be proved by parol. (Livingston v. Maryland Ins. Co. 6 Cranch, 280.) But, like the proof of every other fact, the best evidence of which the causq is susceptible must be produced; and as a witness may speak of the terms and nature of an unwritten contract, so he may testify of the existence of a foreign law; but as, when the contents of a written instrument are sought to be proved^the instrument itself must be produced, so foreign written laws must be proved by the laws themselves. (2 Starkie’s Ev. 331; Consequa v. Willing, Pet. C. C. 229 ; Robinson v. Clifford, 2 Wash. C. C. 1; United States v. Ortega, 4 Wash. C. C. 533 ; Dougherty v. Snyder, 15 Serg. & Raw. 87 ; Kinney v. Clarkson, 1 Johns. 394; Camparel v. Jernegan, 5 Blackf. 375; Gardner v. Lewis, 7 Gill, 379; McNeil v. Arnold, 17 Ark. 155.)
The English cases are contradictory. In Miller v. Hernwick, 4 Camp. 155, Gibbs, Ch. J., said: “Foreign laws not written are to be proved by the parol examination of wit
Though the Supreme Court of North Carolina, in the case of the State v. Jackson, decided that a foreign law was to be proved as a fact to the jury, held, that when it is established “ its meaning, its construction and effect is the province of the court. It is a matter of professional science; and as the terms of the law are taken to be ascertained by the jury, there is no necessity for imposing on them the burden of affixing a meaning on them more than on our own statutes.” And in a late case (5 Ired.) the same court decided that, where the question arises under a statute, it is the province of the court to decide both as to the existence of the statute and its proper construction. The case in Inge v. Murphy, 10 Ala. 897, turned on the construction of a foreign statute, and the Judge, in delivering the opinion of the court, observed: “ It seems to us a self-evident proposition that laws, whether written, statute, domestic or foreign, must be ascertained in the general and always construed by the court, and equally so that it is manifestly not the province of the jury to place the construction upon it under any circumstances.” Again, in a very recent case in Pennsylvania (Bock v. Lauman, 24 State Rep. 447,) the doctrine was reasserted that, though the law of another state is a matter of fact, it is not necessary to be found by the jury but by the court, and that all the analogies of the law inclined the court to regard the interpretation of foreign laws, whether written or unwritten, as falling within the province of the court.
It may be doubted whether the rule ought to be applied or can be practically enforced when the foreign law offered in evidence is unwritten, or is the common law of the country where it prevails ; for in many instances, as in the case in 5 Ired. 190, the evidence may be conflicting, and all the witnesses may state the law differently, in which case it would
The first instruction, then, given by the court at the defendant’s request, to the effect that negro slavery was sanctioned and permitted by law in the province of Quebec from 1760 to 1790 was proper, if the conclusion was legitimate from the facts stated in it; and it will therefore be necessary to recur to the evidence.
The plaintiff read the depositions of two learned and intelligent witnesses — Judges Reed and Gale — each of whom held high judicial positions for many years in Lower Canada. The former testified that slavery existed in Canada to a certain extent while under the dominion of the French, although he could find no law by which it was introduced prior to the year 1709, when, by an. ordinance of the intendant of the colony, permission was given to the colonists to purchase negroes and pañis from the Indians, because they would be useful in the cultivation of the soil; that this ordinance would seem to have been made in order to confirm a practice which had previously existed, though there was no law of the French government authorizing slavery in Canada; that it had been doubted whether the intendant or any governor of a particular colony could establish therein, such a general principle of public law as slavery; but, he says, “ it is certain, however, that from the time of this ordinance and before
Both of these gentlemen prove that slavery existed in Canada from a period at least as early as 1709 to 1760; and though they say there was no act of the French legalizing it, we know that France permitted slavery in her West India colonies, and it can not be supposed that she was ignorant of the state of things in Canada for so long a time. And it may be assumed that slavery existed in Canada under .the French rule, not only de facto but de jure. Slavery existed in nearly all of the North American colonies, though no law or royal decree has been found introducing it; but it was permitted, and afterwards sanctioned by laws concerning it, passed by
The facts developed by the testimony of these witnesses in reference to the state of things in Canada before 1760, explain, if explanation was necessary, the purpose of the 47th article of the capitulation. It will be observed, by an examination of the articles of capitulation, that they make very few provisions affecting the inhabitants of Canada; and it is hardly probable that a besieged army, in the face of an enemy’s guns, would stipulate in a separate article for the protection of an interest that had no real existence. No other allusion is made to the property of the inhabitants who intended to remain in the colony; and the 47th article is not only a clear recognition of the existence of slavery, but of the value of the interests connected with it. Only the most prominent objects seem to have engaged the attention of the retiring governor; for he secures nothing for his master’s subjects but their religion and their slaves.
The national religion of England was protestant, and the French king was therefore jealous of the religion of his Canadian subjects; and the reason is obvious why the treaty of 1763 secured to the Canadians the enjoyment of the Boman Catholic religion, and did not stipulate for any other rights of conscience or property. No argument can be drawn from the silence of the treaty on the subject of slavery or any other peculiar institution; for the inhabitants of Canada, without any special guaranties, were entitled to all their rights of property, after the change of government, which they possessed under their former sovereign. The cession of a territory only passes the sovereignty, and does not interfere with private property. This is an established rule of public law, and is acknowledged and respected by all civilized nations. The subjects or citizens of a conquered or ceded country retain all rights of property which are not taken away by the new sovereign, and remain under their former laws until they are changed. (Strother v. Lucas, 12 Pet. 438 ; Mitchell v. United States, 9 Pet. 734; Blacks. Com. 107.) In the
It is insisted that the royal proclamation of October 7, 1763, had the effect of abolishing slavery in Canada. Admitting that the king’s prerogative included the power of making laws for the English colonies, we have searched through every clause of the proclamation to find a word or sentence which, in terms or by implication, remotely touches the subject. We have been directed to the clause of the proclamation set out in the first part of this opinion; but, on looking at it, it will be seen that no new law is decreed, but only the assurance is given that, until provincial assemblies can be called, all persons inhabiting or resorting to the colonies of Quebec, East Florida, West Florida and Grenada, may confide in the royal protection for the enjoyment of the benefit of the laws of England, and that orders had been given to the governors of said colonies respectively to erect courts of justice for the hearing and determining of all caus
In 1763 the English acquired — besides Canada — Florida, Dominico, Saint Yincent and Tobago, in all which slavery existed ; and though the proclamation expressly applied to all, it is well known, and these gentlemen admit, that it did not have the effect of abolishing slavery in Florida and the Dre-nadas. It is strange that it was potential lc.r the purpose imputed to it in one place and not in the others. The Supreme Court of Louisiana remarked, in Seville v. Chretien, 5 Mart. 285, that they have not been able to find any trace of a legislative act of the European powers for the introduction of slavery into their American dominions. Yet it is an undisputed historical fact that slavery existed in nearly all the English colonies, now included in the United States, and that in each of them the “ common law” was claimed as their birth-right, and causes in their courts were determined agreeably to the laws of England. If the opinion of the Canadian judges is correct, it is evident that the common law was not uniform in its operation, for it did not perform the work, in the thirteen colonies, ascribed to it in Canada. The common law of England was introduced in Missouri by an act of the territorial legislature of the 19th of January, 1816, and nobody ever supposed that it was equivalent to an act of emancipation.
In the case of the Attorney General v. Stewart, 2 Mer. 156, the question arose whether the proclamation we have been considering extended the laws of England to Grenada, and it was certainly doubted in that case whether they were carried by force of the proclamation to the province of Quebec. The Master of the Rolls, Sir William Grant, observes: “ It seems to be supposed that this was done by the proclamation of
The act of 1790 is only consistent with itself on the idea that it assumed the existence of slavery in Canada. The mention of negroes is only in connection with other property which is exempted from the payment of an import duty; and the prohibition on the sale of negroes or furniture, imported under the act within twelve months, was to prevent frauds on the revenue, and it implied that sales of negroes were lawful after the expiration of a year from the time they were
The province of Quebec was divided into the provinces of Upper and Lower Canada by an order in council August 24, 1791, which took effect 26th December following. The act of 1793, passed by the parliament of Upper Canada, not only repealed the immigration act of 1799, but provided for the prospective and gradual emancipation of the slaves born thereafter. It assumed that there were other slaves in the province than such as had been imported under the license granted by the act of 1790 ; for the second section provided that the act should not apply to slaves then in being, who had been brought in under the act of 1790, or to such as had otherwise come to the possession of any person by gilt, bequest, or purchase. And if there were no other slaves than such as had been imported under the act of 1790, there was no reason for mentioning them.
It is true that this law was the act of Upper Canada, which does not include Montreal; but it was passed very soon after the province of Quebec was divided, and if slaves were lawfully held in the upper part of the province before the division, it must be supposed that the law which permitted it operated uniformly throughout the whole province. The parliament of Upper Canada, at its first session in 1792, introduced the English law, quite as effectually as the king’s proclamation could have done it, as the rule of decision in all matters of controversy relative to property and civil rights; and it could not have thought that the common law was effectual to abolish slavery, otherwise there would have been no necessity for the subsequent act of 1793.
If a controversy should arise in our courts as to whether
By omitting to notice the other instructions given for the defendant, our silence is not to be construed into an approval of them. The third instruction is very objectionable, for it implies that the plaintiff must make out her case by a higher degree of evidence, and that she must connect every link with more conclusive proof than is ever required in civil cases of other persons. If a negro sues for his freedom he must make out his case by proof like any other plaintiff, but the law does not couple the right to sue with ungenerous conditions; and he may prove such facts as are pertinent to the issue, and may invoke such presumptions as the law raises from particular facts. Our statute provides that in suits for freedom, “ if the plaintiff be a negro or mulatto, he is required to prove his right to freedom(R. C. 1845, p. 533 ;) but this is not a common law rule of evidence, and, with this exception, we are not aware of any other rule peculiarly applicable to such suits. Judge Napton concurring, the judgment will be reversed, and the cause remanded.
Dissenting Opinion
dissenting. What may be the province of the court in the interpretation of foreign laws for the benefit of the jury I do not deem it necessary to determine, as I conceive no such question is involved in this record. The question for the jury was, whether slavery existed in Canada. No statute was produced creating or establishing that institution which called for the interpretation of the court. From the fact that there were laws and documents, in which reference was made to slaves, or which contemplated a state of slavery, it was to be inferred that slavery lawfully existed in Canada. That inference was one of fact to be made by the jury. As the jury have found the fact, whose exclusive province it was to do so, the practice -of this court, now established for a number of years, forbids that a judgment should be reversed because a verdict is against the weight of evidence.