Chouteau v. Pierre

• Decision Date: 31 January 1845
• Citation: 9 Mo. 3
• Parties: GABRIEL S. CHOUTEAU v. PIERRE, OF COLOR.
• Court: Missouri Supreme Court

9 Mo. 3

GABRIEL S. CHOUTEAU

v.PIERRE, OF COLOR.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING & TIFFANY, for Appellant. 1. The question whether slavery existed in Canada, was a fact for the jury, which the court excluded from their consideration, by its instructions. 2. That instruction can be justified only on the supposition that there was no evidence whatever of slavery in Canada, or not sufficient to go to the jury. 3. There was sufficient evidence to be left to the jury: 3 Mo. R. 544; that slavery of the blacks has been tolerated in all the American colonies, and no legislative act exists introducing it. 4.

The holding of plaintiff's mother as a slave in a portion of the Northwest territory, by British subjects, before the same was surrendered to the American government by Great Britain, and before the American laws were ever in force there, could not free her. That portion of the country was retained, because the American government failed on their side to fulfil the treaty. The British troops were therefore instructed to hold the western posts, and the government of the United States was officially informed, that the posts were and would be held for that purpose. This occupation was legalized by the subsequent action of the government. When the Constitution was formed and went into operation, his Britannic Majesty was informed that the treaty was fulfilled on our part, and he then stipulated for the surrender of the posts: 1 Brown's Laws of U. S. 206. Speech of Gen. Washington, to Congress, of 7th December, 1796.

GEORGE W. NABB, for Appellee. 1. That Rose, the mother of the appellee, being a native of Montreal, Canada, a British province, she became thereby free, and the plaintiff entitled to his freedom. Law of Slavery, by Wheeler, 348, 349, 406. 2. That Rose having resided in the town of Michilimacinac, in 1794--in Prairie du Chien, eighteen months or two years after that time--whether same places were a part of the British possessions, or a part of the territory northwest of the river Ohio, subject to the Ordinance of Congress of 1787--and the appellee was born of her subsequently, he is entitled to his freedom. Winny v. Whitesides, 1 Mo. R. 472; Merry v. Tiffin, 1 Mo. R. 725; Law of Slavery, p. 356. 3. If the mother of Rose ever had been a slave and resided in Prairie du Chien after the year 1787, she became emancipated, and the appellee being born of her subsequently to that time, became free. Same authorities cited in No. 2; Law of Slavery, by Wheeler, pp. 355, 339. 4. That if Rose was born in Canada, a province of the British government, there was no evidence to show that slavery existed in that province. And there being no evidence to prove that she was a negro or a woman of color--that Pierre, the appellee, being her son, is entitled to his freedom: vide record. 5. That the instructions of the court were properly refused, as offered by the defendant's counsel--and that the instructions of the court, that slavery or involuntary servitude did not exist in the Canadas, was correct--and that Rose being the mother of the appellee, and a native of Canada, he is thereby entitled to his freedom.

SCOTT, J.

This was a suit for freedom, brought by Pierre against Chouteau, in which a judgment was rendered for Pierre, to reverse which this appeal is prosecuted. The petition of Pierre sets forth that his mother, Rose, was a negress, and was born in Montreal, in Lower Canada, about the year 1768. That in the year 1791, or thereabouts, his mother was taken from Montreal to Prairie du Chien, in the Northwest territory of the United States, by one Stork, where she remained until his death in and about the year 1794, rendering service to him and his family. That about the year 1795, Andrew Todd took Rose, his mother, from Prairie du Chien, and brought her to St. Louis, where she was sold in October of that year, to one Didier, a priest; and in August, 1798, she was sold by Didier to Auguste Chouteau, with her two children, didier conveying the slaves to Chouteau without warranty of title, though Todd conveyed to Didier with warranty. That while his mother was in the service of Chouteau, she had several children, amongst whom was the petitioner. That after the death of A. Chouteau, the petitioner came into the possession of the petitioner in error, G. S. Chouteau, by whom he is held in slavery. Pierre based his right to freedom on two grounds. First, that his mother, Rose, was born free, being a native of a British province, in which slavery was not tolerated. Second, that if his mother was a slave, by her residence at Prairie du Chien, she became free by virtue of the Ordinance of 1787, for the government of the Northwestern territory.

On the part of Pierre, evidence was introduced conducing to prove that Rose was a slave or servant, and her residence at Mackinaw and Prairie du Chien about the time stated in the petition. During the period of Rose's detention at Prairie du Chien, that post was in the possession of British subjects. It was shown in evidence that Pierre was born in St. Louis. A conveyance of Rose, who it appears was acquired from the representatives of the estate of John Stork, dated October 1795, and executed by Andrew Todd, a merchant of Montreal, in Canada, to one Didier, a curate of the parish of St. Louis, was read in evidence; also a conveyance of Rose and her two children made by Didier to A. Chouteau. This conveyance was dated in August, 1798.

The defendant below gave evidence tending to show the actual existence of slavery in Canada in the year 1786--that slaves were recognized as property and subject to be sold; that Rose, the mother of Pierre, was sold as a slave in Canada. A treaty and documents relative to the northwestern posts by Great Britain, were read in evidence. The court excluded from the consideration of the jury all the evidence tending to prove the existence of slavery in Canada to which an exception was taken.

The following instructions, asked by the plaintiff in error, were refused by the court: “1. That the facts that the mother of the plaintiff was born and held as a slave in Canada, and was at Mackinaw and Prairie du Chien, while these places continued in the possession of the British government, do not, nor does either of them entitle the plaintiff to his freedom. 2. If the jury find from the evidence, that slavery existed in Canada, that the mother of the plaintiff was there held as a slave, the fact of her residence in Canada, or other places at the time in the possession of the British government, and before the surrender of these places, does not entitle the plaintiff to his freedom.” Exceptions were taken to the refusal of these instructions. The court instructed the jury that slavery or involuntary servitude never did exist in either of the Canadas. An exception was taken to the giving this instruction.

Before the jury was sworn, the defendant below asked leave to inquire of the jurors, when sworn to answer questions, if any of them felt bound in conscience to find a verdict in favor of the freedom of the plaintiff, notwithstanding the law might hold him in slavery. The court refused to permit this question to be put to the jury, to which refusal an exception was taken.

The first point we will notice, is that growing out of the refusal of the court to allow a juror to be asked if he felt in conscience bound to find a verdict in favor of the freedom of the plaintiff, notwithstanding the law might hold him in slavery. We cannot well conceive how a juror could be considered as indifferent between the parties, who labored under the bias supposed by the question. Nor do we see what objection can be urged against its propriety. An affirmative answer does not tend to the disgrace or infamy of the juror. We know that there are many in our sister States who do entertain such opinions; they may find their way amongst us, and so long as slavery is tolerated in this State, our courts should be clothed with the power of preventing our laws from being openly set at defiance, and under...