| Mo. | Oct 15, 1862
Lead Opinion
delivered the opinion of the court.
1. We cannot say that the court below erred in refusing to grant a special venire upon the application of the defendant. The application did not come fully up to the requirements of the act of the General Assembly, and if the court below had any power to grant the venire in such case, that power was to be exercised at its discretion, and nothing appears in the record to authorize us to say that the discretion was exercised unwisely.
2. The court did not err in refusing the application of the defendant, that the court should hear and consider the testimony in the cause relative to the legal existence of slavery in Canada at the time when the ancestress of the plaintiff was in that country, prior to the empannelling of a jury. The existence of a foreign law was a question of fact, to be tried by a jury. If a written law had been proved, it would have been the duty of the court to construe it, and instruct the jury as to its meaning and effect. This we understand to have been decided by this court when the case was here in 1857.
3. The instructions given by the court were correct. The first and fourth have already been approved by this court. The second was for the advantage of the defendant. No objection is made to the third.
4. The first and third instructions moved by the defendant were properly refused, because they required the court to declare the existence of a law, by inference from facts in evidence. If all the evidence had been documentary, possibly it might have authorized such inference ; but there was also parol testimony, of the truth and effect of which the jury was the proper judge. The second instruction would necessarily include the same declaration. It required the jury to
5. The plaintiff read to the jury from printed books a number of decisions of cases by English courts, and also an extract from Garneau’s History of Canada, and also from a printed book purporting to contain the census of Canada for the years 1719, 1721 and 1724. The defendant objected to them, because they were read to the jury, and not to the court. The jurors were the triers of tbe fact of the existence of slavery by law, and therefore the evidence was properly addressed to them. The issue tried by the jury was of a character very rarely brought before juries, and it therefore appears strange that they are called upon to hear and weigh as testimony matters which are usually submitted to the court.
6. The most plausible objection to the judgment is, that it was founded upon a verdict which was rendered against the weight of the evidence. Notwithstanding that we might believe that the verdict should have been rendered for the defendant, yet the practice is so well established, not to reverse a judgment because the verdict appears to have been rendered against the weight of evidence, that we will not, for that cause, interfere in this case.
Judgment affirmed.
Dissenting Opinion
The following is the opinion of
dissenting:
“ In my opinion, the defendant’s application for a venire for a country jury came within the meaning and intention of the General Assembly.
“The end of the statute is a fair and impartial trial. This cannot be attained upon the plaintiff’s construction of the statute. The plaintiff’s objection is, that the law provides for a venire only when prejudice exists against the person, whereas the application shows the existence of prejudice, not against the defendant, but against his side of the issue.*202 What matters it to the defendant whether it be against him or his cause ? The result to him is the same in the one case as in the other; in either case he fails to get what every litigant is entitled fco — a fair and impartial trial. The two cases come alike within the mischief; why not within the remedy ?
“ I concur in the opinion of the other judges, that the question of what was the law of Canada was a question of fact for the jury, under proper instructions from the court; but I think the first instruction given of the court’s own motion was erroneous in this: that while it properly referred to the jury the question whether the law of Canada, under French dominion, permitted negro slavery, it improperly omitted to inform them what facts, if any, proved by the evidence, would constitute such law. On this point, (so far as relates to the law under the French,) the jury were left without any guide, each to determine for himself what would or would not constitute the law. For these reasons, I think - the judgment ought to be reversed.”