Charlotte v. Chouteau

• Decision Date: 31 October 1857
• Parties: CHARLOTTE (of color), Respondent, v. CHOUTEAU, Appellant.
• Court: Missouri Supreme Court

25 Mo. 465

CHARLOTTE (of color), Respondent,

v.CHOUTEAU, Appellant.

Supreme Court of Missouri.

October Term, 1857.

1. Judicial notice will not be taken of the laws of a foreign country.

2. If the foreign law is unwritten, it may be proved by parol; it will not be presumed to be in writing.

3. Foreign written laws must be proved by the laws themselves, properly authenticated.

4. It is the province of the court to instruct the judges as to the meaning and effect of the written foreign law adduced in evidence; and this construction should be the same which is given to it in the jurisdiction in which it is in force.

5. The opinion of text writers, the decision of the courts, and the evidence of persons skilled in the foreign law, may be resorted to and consulted to enlighten the court in construing and expounding the foreign written law.

6. In a suit for freedom the onus of proving his right to freedom must rest upon the plaintiff; but the law does not couple the right to sue with ungenerous conditions; he may prove such facts as are pertinent to the issue, and may invoke such presumptions as the law raises from particular facts.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

Gantt, for appellant.

I. The documentary evidence adduced by the defendant, consisting of the articles of capitulation, the treaty of peace, the act of 1771, the act of 1790 and the act of 1793 demonstrate the existence of negro slavery and its legality from 1763 until 1793.

II. The testimony of Messrs. Gale and Reed as to the effect of the acquisition of Canada by the British government was incompetent and illegal; also their testimony as to the effect of various clauses in the treaty of cession, the king's proclamation, and the articles of capitulation.

III. There was no evidence whatever showing, or tending to show, that Rose was unlawfully held as a slave in Canada, unless we regard as such the testimony of witnesses denying the legality of slavery there after 1763 and before 1793.

IV. It is part of the case of the plaintiff that Rose was held as a slave in Canada, and the testimony of the defendant shows that she was rightfully so held; on this point there is no opposing testimony whatever.

V. The verdict was flagrantly against law and the instructions of the court.

VI. The giving of the last instruction, at the instance of the plaintiff, was calculated to mislead the jury, or, rather, to encourage them to disregard every thing but their own sweet will in making up their verdict. It is no instruction to them, being the statement of a proposition too broad and abstract to be of any real service in guiding them to the truth.

A. J. P. Garesché and Cobb, for respondent.

I. Foreign laws are to be proven as facts and submitted, under instructions, to a jury. (Story's Confl. of Laws, §§ 1038, 1040; 1 Greenl. Ev. §§ 624-7; 1 Phill. on Ev. 401; 3 Watts & Serg. 76; Consequa v. Willing, 1 Pet. C. C. 225; 15 Serg. & Raw. 84; 9 Mo. 10; 3 Mo. 374.)

II. The instruction given to the court at the instance of the plaintiff was correct. The verdict was not against the evidence; and even if it were, the Supreme Court would not reverse for that reason. (Goetz v. Ambs, 22 Mo. 170; Holliday v. Atterbury, 22 Mo. 512; Zimmerman v. Owens, 24 Mo. 97.)

RICHARDSON, Judge, 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 born a slave, because slavery did not exist in Canada at the time of her birth.

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 Vaudreuel, 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 panis 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, 1763, 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 Canada, might retire with all safety and freedom wherever they should think proper, and might sell their estates to British subjects, or take away their property without restraint. But the treaty is, in every respect, silent in reference to the persons or property of the Canadians.

Third. The proclamation of George III, dated 7th October, 1763. 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 tenth 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, etc., 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 make, constitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of our said colonies, and of the people and inhabitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies; and in the mean time, and until such assemblies can be called as aforesaid, all persons inhabiting or resorting to our said colonies may confide in our royal protection for the enjoyment of the benefits of the laws of our realm of England; for which purpose we have given power, under our great seal, to the governors of said colonies, respectively, to erect and constitute, with the advice of our said councils, respectively, courts of judicature and public justice within our said colonies, for the hearing and determining of all causes as well criminal as civil, according to law and equity, and, as near as may be, agreeable to the laws of England.” There is nothing else in the proclamation that relates to this subject.

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 the said province of...