text:
    City of Fayette, Plaintiff in Error, v. Shafroth, Defendant in Error.
    1. The act incorporating the city of Fayette confers upon the mayor thereof tlie same jurisdiction, in cases arising in said city, that justices of the peace have in their respective townships; (Sess. Acts, 1855, Adj. Sess. p. 212, sec. 11;) he can not entertain jurisdiction of an action for a penalty exceeding ninety dollars imposed by an ordinance of said city.

      Error to Howard Circuit Court.

    This was a prosecution instituted in the name of the “ City of Eayette,” before the mayor of said city, against John Sha-froth, for violations of an ordinance of said city ££ to regulate the liquor traffic.” The complaint, or rather one of the complaints, is in the following form:
    “ December 26, 1856. John Sliafroth to the City of Eay-ette, Dr. To one hundred dollars for violation of the first section of an ordinance of said city, entitled £ An ordinance to regulate the liquor traffic,’ in this, to-wit: that he sold to Mr. A. B. one gallon of brandy, on or about the 20th day of December, 1856, within the corporate limits of said city. [Signed] W. W. M., City Constable.”
    There were two other complaints alleging violations of the same ordinance, one hundred dollars being claimed in each. Judgment was rendered against the defendant for $100 and costs, in all $110. An appeal was taken to the circuit court. In the circuit court the defendant moved the court to dismiss the proceedings because the mayor had no jurisdiction thereof, and because the amount claimed exceeded his jurisdiction. The court overruled the motion.
    Certain ordinances of the city of Eayette were offered in evidence on the part of plaintiff. The defendant objected to their introduction, on the ground that the suit was brought in the name of the City of Eayette and not in the name of ££ The Mayor, Councilmen and Citizens of the city of Eay-ette,” as required by the charter. The objection was sustained. The plaintiff offered to amend by inserting the “ Mayor, Council'men and Citizens of the City of Fayette,” in lieu of “ The City of Fayette,” wherever the latter name occurred. The court refused to allow the amendment. Plaintiff took a nonsuit with leave to move to set the same aside.

      Williams, Gardenhire and Morrow, for plaintiff in error.

      Prewitt, for defendant in error.
    I. The suit is in the wrong name (see Sess. Acts, 1855, p. 210; Section 1 of Charter; 4 Iredell Eq. 195), and can not be amended in the circuit court; (Kraft’s Adm’r v. Hurtz & Jungk, 11 Mo. Ill; Flemm v. Whitmore, 23 Mo. 430.)
    II. The mayor has the same jurisdiction as a justice of the peace. (Charter; Sess. Acts, 1855, Adj. Sess. p. 212, § 11.) This exceeds a justice’s jurisdiction. (2 R. 0.1855, p. 925.) Plaintiff can not remit the excess in the circuit court. (2 Mo. 13 ; Robnell v. Nuron, 9 Mo. 246 ; Batchelor v. Bess, 22 Mo. 402) ; nor can consent before the justice confer jurisdiction. (Stone v. Corbett, 20 Mo. 350.)
    III. The courts of the country are the proper forums to recover penalties for the breach of any ordinance of a corporation (Angel & Amos on Corp. 304) ; and a jurisdiction having been conferred on the mayor and limited by express provision of the charter, the power can not be implied in the city to confer a greater jurisdiction. If the legislature had intended to authorize the city to erect any court to try offenders against her ordinances, it would not have been left to implication. Corporate powers are strictly construed. (2 Kent, Com. 299 ; 9 Mo. 502.) More especially ought not the power to be implied to confer unlimited jurisdiction- on the mayor, who is a party to the suit when properly brought. (Broom’s Legal Maxims, 109; 1 Thomas’ Coke, side page, 15 ; Wilcock on Corp. 86, 91.)
    IV. The mayor can have no jurisdiction, because he is the executive (Charter, § 10,) and part of the law-making power, (§ 6,13,18 and 19,) and the offices are incompatible. (Constitution of Missouri, article 2; State v. Stutt, 2 Ark. 282; State Bank v. Curran, 5 Eng. 142 ; 8 Greenl. 484 ; Bamford v. Melvin, 7 Greenl. 17 ; 2 Dallas, 409; 13 How. 44 ; State y. Fry, 4 Mo. 120 ; 12 Mo. 498.)

       LeoNAjid, Judge, by reason of indisposition, was necessarily absent during this term.

   Soott, Judge,

delivered the opinion of the court.

The 11th section of the act to incorporate the city of Fay-ette, approved December 7th, 1855, provides that the mayor shall be, ex officio, a justice of the peace within and for the city, and shall have the same jurisdiction, in all cases in the city, as justices of the peace have in their respective townships. Among other things, the first and second sections of the first article of the act establishing justices’ courts and regulating proceedings therein declares that “ every justice of the peace is authorized to hold a court for the trial of all actions for any penalty not exceeding ninety dollars, given by any statute of this state.” These sections clearly show that, except in actions on bonds and notes, the legislature intended that justices of the peace should not entertain jurisdiction in any other cases, where the amount in controversy, exclusive of interest, exceeded ninety dollars. The penalty here sought to be recovered is for the sum of one hundred dollars. Under the charter the corporate authorities had no authority to enlarge the jurisdiction of the mayor beyond the sum fixed by that instrument.

The charter is to the corporate authorities what the state constitution is to the general assembly. As a law against the constitution is void, so an ordinance of a corporation against the provisions of its charter is of no validity.

Judge Byland concurring,

judgment affirmed ;

Judge Leonard absent.


source: Caselaw Access Project

author: RiChabdson, Judge, Scott, Judge.

license: Public Domain

text:
    City of Carondelet, Appellant, v. City of St. Louis, Respondent.
    1. The act of Congress of June 13, 1812, proprio vigore, vested in the inhabitants of the various towns and villages designated in the first section of said act the absolute legal title to the common possessed and used as such by them respectively prior to December 20, 1803.
    2. To enable the inhabitants of a town or village designated in said act to assert title to, and recover possession of, land as common confirmed by said act of June 13, 1812, no United States survey is required; proof of possession and user as common prior to December 20, 1803, is sufficient.
    3. The approved U. S. survey of the common of St. Louis is not conclusive as against the inhabitants of the adjacent town (now city) of Carondelet. It may be shown in their behalf that land embraced within said survey was used and possessed prior to December 20, 1803, as common of Carondelet; and that too although it is not embraced within the U. S. survey of the common of Carondelet.

      i. An approved United States survey of the common confirmed to the inhabitants of a town or village by the act of June 13, 1812, is prima facie evidence of the true location and extent of such common.
    6. Such survey would not, however, be conclusive and binding upon the inhabitants of sudh village unless accepted; it might be shown that it had never been accepted, and that it was incorrect.

      6. No formal act is necessary to constitute an acceptance; it may be inferred from various acts and circumstances; and it is the province of the court to declare to the jury, as a matter of law, the legal effect of such acts and circumstances.

      Appeal from St. Louis Laúd Cowrt.

    The city of Carondelet seeks in this- -action to recover possession of certain lots of ground in the possession of the city of St. Louis. Carondelet asserts title to said lots under the act of Congress of June 13,1812, as a portion of the common confirmed to her by said act. The city of St. Louis also asserts title thereto as common confirmed to her by said act of Congress.
    At the trial the testimony of sundry aged persons (Antoine Smith, Pierre Chouteau, jr., Amable Chartrand and Paul Robert), familiar with the location and boundaries of the commons of Carondelet and St. Louis, as possessed and used by said villages respectively prior to December 20, 1803, and since, was introduced and relied upon by plaintiff. Prom this testimony it appeared that during the Spanish domination, and at the time of the change of government, the recognized boundary line, separating the common of St. Louis from the common of Carondelet, commenced at a point on the bank of the Mississippi river known as the “ Sugar-loaf,” and from thence ran to the north-east corner of the common field of Carondelet; that previous to the change of government there had been a fence running from the “ Sugar-loaf” to the said corner of the said common field; that the inhabitants of St. Louis used as common the land lying north of said boundary line and fence, while the inhabitants of Caron-delet possessed and used as common the land lying south of said line, including the land in controversy. The plaintiff also introduced in evidence an order of the St. Louis court of common pleas, dated November 9,1819, incorporating the townpf St. Louis upon petition of the inhabitants, and designating a line running due west from the “ Sugar-loaf as the southern limit of the corporation, and ordering the metes and bounds to be surveyed and a plat thereof recorded; also a survey of the limits of the town as thus incorporated, made in the year 1820 by Joseph C. Brown, in execution of said order, which bounded said town by a line running due west from the “ Sugar-loaf.”
    The defendant then introduced in evidence the approved U. S. survey No. 3125, made in the year 1832, of the St. Louis common. This survey includes the land in controversy in the present suit — the south line of the common of St. Louis being located south of the “ Sugar-loaf” and south of the land in controversy. Defendant also introduced in evidence the survey (No. 3102) of the common of Carondelet, made in the year 1834 by Joseph 0. Brown, deputy surveyor of the United States. This survey did not include the land in controversy.
    The plaintiff then offered in evidence the instructions for a survey of the common of St. Louis, dated November 18, 1832, given by Elias T. Langham, surveyor general of Illinois and Missouri, to Joseph C. Brown, deputy surveyor; also a survey of St. Louis common, made by James Mackey in the year 1806, and purporting to have been made at the request of the inhabitants of St. Louis, and offered to prove that it did not include the land in controversy ; also offered to prove that the inhabitants of Carondelet always claimed the land north of the town or village of Carondelet to the “ Sugar-loaf” and the north-east corner of the common field of Carondelet as common of Carondelet down to the year 1852 ; that up to the year 1836 the said land lay open and was used for pasturage and wood by the inhabitants of Oaron-delet; that when Brown surveyed the common of Carondelet in 1834 the inhabitants of Carondelet claimed their common’s line on the north from the “ Sugar-loaf” to the northeast corner of the common field of Carondelet; that said' Brown ran said line [from the Sugar-loaf to the north-east corner of the common field] as the north line of the common of Carondelet in the presence and under the claim of a great number of the inhabitants of Carondelet; that said Brown returned tbe said north line with the survey of the common field, and fraudulently omitted to return it with the survey of the common of Carondelet, and fraudulently returned another line three quarters of a mile south of said true line so claimed and run as aforesaid; that the inhabitants of Carondelet were people who spolre the French language and not the English; that they were a primitive, innocent people, not acquainted with the language, or laws or customs of the United States ; that they believed that their line had been run on the north by the surveyor of the United States, and that they were the parties in the rightful possession; that they protested against the encroachments of St. Louis at various times from 1836 to 1853, and claimed the said land before the common council of St. Louis many different times and before the Land Department of the United States as the land of Carondelet before the bringing of this suit; that no copy or plat or report of Brown’s survey of the common of Caron-delet was sent to or returned to the commissioner of the General Land Office at Washington until the 22d day of June, 1839. Plaintiff also offered in evidence various documents, consisting of the official correspondence of the surveyor general of Illinois and Missouri, the solicitor of the General Land Office, the commissioner of the General Land Office, and the Secretary of the Interior, tending to show that Brown’s survey had been disapproved by the commissioner of the General Land Office and the Secretary of the Department of the Interior. The plaintiff also offered to prove that the inhabitants of Carondelet protested before the commissioner of the General Land Office and the Secretary of the Interior against the survey of their common by Brown in 1834; that they proved before said Brown, when he made said survey, that the true north line of their common ran from the “ Sugar-loaf” to the north-east corner of the common field of Carondelet. Plaintiff also offered to prove by experienced surveyors and others that the surveys of the commons of St. Louis and Carondelet do not conform to the confirmations or' either of them, and that the instructions under which the surveys were made were violated and disregarded ; that said surveys were made in violation of law and of tlie act of Congress of June 13, 1812.
    The court, on motion of defendant, excluded the evidence. The defendant then introduced in evidence, against the objection of plaintiff, the United States survey of the outboun-dary line of the village of Carondelet. The land in controversy was not embraced within this outboundary line.
    The plaintiff then offered to prove that said plat was constructed in the office of the surveyor general in the year 1858, without any actual survey on the ground, from erroneous plats of other surveys; that no inhabitant of Carondelet was called upon to prove the true or actual outboundary of said town; that no official or other notice was given to said inhabitants to attend and do so; that the north line pointed out and proved to Brown by the said inhabitants and run by said Brown in 1834, was fraudulently suppressed by him from the return of the survey of the common, but appeared on the plat of the survey of the common field of Carondelet; that the said outboundary, as constructed, followed the fraudulent survey of 1834, and that the clerk constructed said map of the outboundary line and did not make any of the surveys on the ground from which it was constructed, nor go on the ground to do so or to verify the same; that there are not and never have been any such notes of survey in the surveyor general’s office as are referred to in the caption of the map of said outboundary line. The court excluded the evidence.
    The following instructions asked in behalf of plaintiff were refused by the court: “ 1. All the right, title and interest of the United States. in and to the commons of the village of Carondelet was vested in the inhabitants of said village on the 13th day of June, 1812, according to the extent and boundaries of the said commons, as the same existed and had been claimed and used by the said inhabitants as common prior to and until the 20th day of December, 1803. 2. If the jury find from the evidence that the land in controversy is within the commons of the village of Carondelet, as the same was claimed, used and possessed by the inhabitants of said village prior to and until the 20th day of December, 1803, the title of the United States thereto was vested in the said inhabitants on the 13th day of June, 1812. 3. The surveys No. 3102 for Carondelet commons and No. 3125 for St. Louis commons are each of them prima facie evidence of the extent and boundaries of the respective commons of the said villages of St. Louis and Carondelet, and the burthen is on the plaintiff of proving that said surveys are incorrect, and that the true boundaries of the Carondelet commons, if correctly surveyed, would include the land in controversy, and that the true boundaries of the St. Louis common, if correctly surveyed, would not include the laird in controversy. 4. The plat of the outboundary lines of the village of Caronde-let, purporting to include the out-lots, common field lots, village lots and commons, given in evidence, is prima facie evidence that the commons of Carondelet, as confirmed by the act of 13th June, 1812, were within said outboundary lines; and if the land in controversy is not included within said lines, the plaintiff can not recover, unless the plaintiff has proved to the satisfaction of the jury that said outboundary lines are incorrect, and that the true or correct outboundary line, so run as to include the village lots, out-lots, common field lots and commons, would include the land in controversy. 5. If the jury find, from all the evidence in the cause, that the land sued for is within the commons of Carondelet, as the same was used, claimed and possessed by the inhabitants of said village prior to and until the 20th day of December, 1803, and is within the outboundaries of said village, when so run as to include the out-lots, common field lots, village lots and commons thereto belonging, then the plaintiff is entitled to recover in this action the land sued for. 6. If the jury believe from the evidence that the plat called an out-boundary of Carondelet was not made by actual survey on the ground; that it was constructed by a draftsman in the office of the surveyor general for Illinois and Missouri; that it was made by retracing the lines of Brown’s survey, purporting to be for commons of said village of Carondelet, of 1884, and the lines of the common fields; that said survey of commons by Brown, of 1834, was fraudulently made, with intent to cheat and defraud the village of Carondelet and the inhabitants thereof, and that the plat of said survey of 1834 was constructed upon fraudulent returns made by said Brown— then the said plat of outboundary so constructed does not conclude or estop the plaintiff from recovering so much of the premises sued for as were actually claimed, used and possessed by the inhabitants of the village of Carondelet as commons belonging to said village prior to and until the 20th dajr of December, 1803. 7. If the jury find from the evidence that a direct line from Sugar-loaf mound to the northeast corner of the common fields of Carondelet was the true northern line of the commons of Carondelet; that the specific land bounded north by said line from the Sugar-loaf mound to the said common fields’ north-east corner, east by the Mississippi river, south by the village of Carondelet, and west by the front fence on the east line of the said common. fields, was claimed, used and possessed by the inhabitants of said village as commons belonging to said village prior to and until the 20th day of December, 1803; that the premises sued for are within the said boundaries of said commons, and that at the time when Joseph C. Brown made the survey, purporting to be a survey of the commons of Caronde-let in 1834, the inhabitants of Carondelet claimed before him on the ground, and pointed out to him on the ground the said line from the Sugar-loaf mound to the said corner of said common fields as the north line of the commons of said village ; and that said Brown run said line, for and at the request of the said inhabitants, as the north line of said commons; and that said Brown fraudulently omitted to return to the surveyor general’s office the said survey of said north line, and fraudulently returned an erroneous survey of another line as the northern line, nearly half a mile south of said Sugar-loaf mound — then the jury is instructed that the said survey of Brown of the commons of 1834, does not con-elude or estop the plaintiff from recovering in this action.” The court gave the following instruction prayed by defendant : “ 1. All the right, title and interest of the United States in and to the commons of the village of Carondelet was vested in the inhabitants of said village by the acts of Congress of June 13, 1812, and of January 27,1831. The United States surveys No. 3102 for Carondelet commons, and No. 3125 for St. Louis commons are each and all of them evidence of the extent and boundaries of the respective commons, so confirmed and relinquished by the United States to the said villages of St. Louis and Carondelet; therefore, if the land in controversy in this action is within the commons of St. Louis as surveyed by the authority of the United States, and not within the commons of Carondelet as surveyed by the United States authorities, the plaintiff can not recover.”
    The jury rendered a verdict in favor, of defendant.

      B. A. Sf JD. W. Hill, for appellant.
    I. The confirmations by the first section of the act of Congress of June 13,1812, were not subject to the condition of survey. In this respect they are unlike the confirmations by the first board and by the recorder of land titles, which were of claims to be surveyed. Under such confirmations the title did not pass until the survey. (Guitard v. Stoddard, 16 How. 508 ; Chouteau v. Eckart, 2 How. 844 ; West v. Cochran, 17 How. 414; Mackay v. Dillon, 4 How. 445; Caronde-let v. McPherson, 20 Mo. 193.)
    II. The outboundary survey directed to be made in the first section of the act of June 13, 1812, is not conclusive against the claimant of a field lot outside of such survey. (Milburn v. Hortiz, 23 Mo. 532; Tayon v. Hardman, 23 Mo. 539 ; Schultz v. Lindell, 24 Mo. 567.) The outboundary is the only survey directed by the act of June 13,1812 ; and if it does not conclude the claimant of a field lot outside of such survey, then no survey made under any subsequent act of Congress can affect the plaintiff’s right to recover. (Guitard v. Stoddard, 16 How. 509.)
    III. Surveys of confirmations under the act of March 8, 1807, have only been held conclusive in cases where the grant had no definite or certain location. The distinction between confirmations under the act of 1807 and the act of 1812 was. carefully drawn in the case of West v. Cochran, 17 How. 416. See also Standford v. Taylor, 18 How. 409, and cases above cited. The survey of the St. Louis common, including as it does the premises in controversy, can have no effect whatever. The survey for St. Louis of the land granted to Carondelet as common is a mere nullity. (Stoddard v. Chambers, 2 How. 318 ; Grignon’s Lessees v. Astor, 2 How. 350 ; Strother v. Lucas, 12 Pet. 450.)
    IY. There was no question of estoppel in this case. The court below refused to admit any evidence of the proceedings upon the survey of the Carondelet common. If there be any force in the question of estoppel, the court erred in excluding the evidence offered by plaintiff. The United States were not bound by Brown’s survey at any time after September 24, 1839. Estoppels must be mutual unless they be by matter of record. The mere fact of survey by the United States does not create en estoppel against the plaintiff. (Ca-rondelet v. McPherson, 20 Mo.-.) The inhabitants must be shown to have accepted the survey as a correct one in order to be bound by it. Prom the record it ajjpears that neither Carondelet or the United States have accepted Brown’s survey. It appears to have been repudiated by both parties.
    Y. Tlie commissioner of the General Land Office had power to disapprove the survey. (See 1 Land Laws, Senate ed.-; Acts of Congress, of May, 1785, p. 11, 12; of July 23, 1787, p. 24, 33, 34 ; of May 18, 1796, p. 50; see also Part 2d of Land Laws, Sen. ed. p. 64, 85, 98, 153, 198, 199, 220, 395, 728, 729, 730, 733, 735, 736, 738, 739, 740, 742, 743, 744, 747, 748, 758, 759, 760, 785, 794, 801, 802, 803, 804, 805, 806, 809, 810, 819, 824, 838, 835, 900, 905, 912, 908, 944, 948, 962, 960, 996 ; see also Acts of May, 1800, id. p. 71-78; of March, 1804, p. 104, 110 ; of July 28, 1806, p. 152 ; of March 3,1807, p. 154-7 ; of April 25,1812, p. 211; of June 13, 1812, p. 217; of March 3, 1813, p. 232; of April 12, 1814, p. 243-4 ; of April 29, 1816, p. 278 ; of May 26, 1824, p. 398 ; of July 4, 1836, p. 552.-) From all these acts of Congress, it will be manifest that the surveyor of Illinois and Missouri, after the act of 1816, was subject to the control of the President and the commissioner of the General Land Office, and that all the powers of the Department of State, of the Treasury, and of the "War Department, over the public lands, were vested in the said commissioner by the act of April, 1812. By invariable custom, this power of control has been exercised over the surveyors, the registers, the recorders of land titles, and the receivers. The surveyor is an executive officer, and. is directly under the control of the President. The theory and practice of the government requires that this control should be- exercised. Eor the sake of convenience, special officers have been created to aid the President in the performance of his executive duties in relation to the public lands. It would be destructive of all the checks and balances of the government to hold that the act of a surveyor was a finality not subject to revision by the President and the Land Department. This power of revision is recognized in almost every act of Congress, and has been exercised ever since the organization of the government. The system of surveys and the operations of the Land Department are based upon this immemorial custom. It has never been doubted until lately that this control over the surveyors existed. Public policy requires that this long-settled practice of the Land Department, recognized in so many instructions through every administration, should not now be disturbed or questioned.
    VI. There is no privity between the plaintiff and the defendant, through which the defendant can claim the benefit of an estoppel. The plaintiff has done no act by which the defendant can claim the benefit of an estoppel. (Cottle v. Sydnor, 10 Mo. 767.) The inhabitants of Carondelet must laaye bad power to grant this land as common in order to pass it by estoppel. (Dugal v. Fryer, 3 Mo. 31.) The board of trustees of Carondelet bad no power, in 1834, when Brown’s survey was made, to pass the title to the land in controversy. No such power was vested in the board of trustees or in any body until the year 1851.

      Bay, (city counsellor,) and Todd, for respondent.
    I. The act of June 13, 1812, reserved the control of the designation of an outboundary line of the entire territory within which the grant of the act should operate. (Le Bois v. Brammel, 4 How. 464; Guitard v. Stoddard, 16 How. 494; Westv. Cochran, 17 How. 403; Standford v. Taylor, 18 How. 409; Cabanné v. Lindell, 12 Mo. 184; 14 How. 514.)
    II. If this proposition is not suffered to prevail, then it is insisted that the approved surveys, of particular classes of property confirmed by this act to claimants, for the purpose of defining their locations and of fixing the outboundary line, should be conclusive of their respective location.
    III. As the right to run an outboundary was secured to the United States, and by consequence the right also to survey the locations of the kind of property embraced by the act of 1812, a survey under this act of the common of a Spanish town should be held conclusive of its location until another location should be shown of an official character by the Spanish or French authorities. (4 How. 464.)
    IY. The record shows, by the evidence given and offered by plaintiff, that the common of Carondelet, without an authoritative survey, is of that vague and uncertain locality that makes it no property at all, in a court of justice, as against a grantee of the United States of land certainly defined for him by the United States. (16 How. 242.)
    Y. The survey of St. Louis common was made in 1832. St. Louis has governed, used and disposed of her common notoriously ever since according'to this survey. Carondelet has never attacked this survey of the St. Louis common before the United States authorities. (Carondelet v. McPherson, 20 Mo. 205.)
   RiChabdson, Judge,

delivered the opinion of the court.

In the consideration of this case, it must be assumed that the plaintiff could have made good'the order to impeach and invalidate the survey of 1834 of the Carondelet common ; and the court, in excluding the evidence and giving the instruction which decided the case, must have held, either that the survey was binding though disapproved by the United States and rejected by the plaintiff, or that, admitting as proved every thing that was offered to be proved, the plaintiff had no standing in court without a survey, or that the opposing survey of the St. Louis common was conclusive on the rights of the plaintiff without, a survey, or with one that did not include the locus in quo.

The case presents a conflict between the boundaries of the common of Carondelet as claimed-by the plaintiff, and of the common of St. Louis as designated by a United States survey ; and the questions to be decided are, first, whether the plaintiff can recover without a survey, and, secondly, whether the survey of the common of St. Louis is conclusive on Caronde-let as to the land included within it. Both parties derive their respective titles from the act of Congress of the 13th of June, 1812, and these questions must be determined by the construction of that law, and the judicial decisions which have been made under it.' In reference to private claims, at least, it has been so often decided by this court and the Supreme Court of the United States, in every instance in which the subject has been considered, that the act proprio vigore operated to confirm the rights, titles and claims” to the property described in the first section, that it is no longer an open question; and the proposition is so well settled in so many cases, that the bare statement of it carries with it the familiarity and force of an axiomatic truth. (Soulard v. Clark, 19 Mo. 581.) The act was a complete divestiture of all the title of the United States, and nothing being reserved by the government, nothing was required to be done by the con-firmee. Mr. Justice Campbell observes, in Guitard v. Stoddard, 16 How. 510, that “ the act of 1812 makes no requisition for a concession, survey, permission to settle, cultivate or possess, or of any location by a public authority, as the basis of the right, title and claim upon which its confirmatory provisions operate. No officer was appointed to survey or to locate any individual right. All the facts requisite to sustain the confirmation — what were village or town lots, out-lots, common field lots or commons — what were conditions of inhabitation, cultivation or possession, to bring the claimant within the act — were referred to the judicial tribunals.”

The act of May 26th, 1824, supplementary to the act of 1812, by the first section declared “ that it shall be the duty of individual owners or claimants of town or village lots, out-lots and common field lots, in, adjoining, or belonging to the several towns or villages” of St. Louis, Carondelet, <fcc., whose lots were confirmed by the act of 1812, to proceed within eighteen months thereafter to designate their lots by proving before the recorder the fact of inhabitation, cultivation or possession, and the boundaries and extent of each claim. As this act spoke in a tone of command, it was supposed by some persons that the United States had the right to impose on the claimants the duty of proving their claims before the recorder, and that the assertion of the authority implied that some power existed over the subject which had been reserved. But it was decided by this court that the act of 1812 was absolute, depending only on the fact of inhabitation, cultivation or possession prior to the 20th December, 1803; (Soulard v. Clark, 19 Mo. 582; City of St. Louis v. Torey, 21 Mo. 243 ;) and the question was ably discussed and decided on like reasoning and in the same way by the Supreme Court of the United States, in Guitard v. Stoddard, 16 How. 494. The rights, titles and claims to commons were confirmed by the same section of the act that confirmed the titles to town lots, out-lots, &c.; and it will be observed that the first section of tbe act of 1824 does not mention the commons or include them within any of its requirements ; and if the claimant of a town or common field lot can recover without a survey, and in the face of a law that directs him to prove his claim and the boundaries and extent of it before the recorder, wc can not appreciate the force of the reason that forbids the claimants of common from recovering without a survey.

By the first section of the act of January 27,1831, the United States relinquished to the inhabitants of the towns or villages of St. Louis, Carondelet, &c., all the right, title and interest of the United States in and to the town or village lots, out-lots, common field lots and commons, in, adjoining and belonging to the said towns or villages, confirmed to them respectively by the first section of the act of 1812, to be held by the inhabitants of the said towns and villages in full property, according to their several rights therein. The second section relinquishes the right, title and interest of the United States to the town lots, &c., reserved for the support of schools by the second section of the act of 1812. The object of the second section of this act is readily understood, for it was necessary to divest the United States of the title to property, which had never before passed, but had only been reserved. But the object of the first section is not perceived, for there was nothing on which it could operate, and there was no interest remaining in the United States to be relinquished if the whole passed in 1812. No one-pretends that the act was necessary to perfect any right to private claimants, and no argument can be drawn from it to jDrove that the rights, titles and claims to commons were not as complete by the act of 1812 as the rights and titles of claimants to town lots, &c.

The Supreme Court of the United States, in Le Bois v. Brammel, 4 How. 457, speaking of the act of 1812, in reference to the St. Louis commons, observes: “ That this was a general confirmation of the common to the town as a community, no one has ever doubted, so far as the confirmation operated on the lands of the United States.” And the learned Judge who delivered the opinion of this court in Carondelet v. McPherson, 20 Mo. 201, remarked that, “ according to the decisions of the Supreme court of the United States, the act of 1812 confirmed the lots to individuals, and the commons to the towns, without regard to the question whether there had or had not been a previous survey, and the boundaries of the claims thus confirmed were left open for proof in any litigation that might arise.”

But the first proposition we are considering was directly before this court, and decided in the case of Carondelet v. McPherson. The case trxrned on the propriety of an instruction which asserted that the claim of the plaintiff could not be sustained without a survey which included the property in dispute. The instruction was declared erroneous, and it was held that the plaintiff’s title to common might be established, without a survey, by proof of user prior to December 20, 1803. The only difference between the two cases is, that in this case both parties claimed under the same act, and the plaintiff was met by an approved and accepted survey of the St. Louis common, and this leads us to consider the second proposition.

The United States surveys of the commons of St. Louis and Carondelet are no doubt prima facie evidence of the extent and boundaries of the respective commons of said towns, and, when approved by the United States and accepted by the parties for whom they were made, were conclusive on the United States and the towns respectively, and all persons claiming subsequently to the grant under them or either of them. When a claim is not confirmed according to ascertained boundaries, but the confirmation is coupled with the condition that the land shall be surveyed, the confirmee can not controvert the survey that locates the claim. (Standford v. Taylor, 18 How. 412.) But it is settled that confirmations under the act of 1812 were legislative grants without any conditions annexed, and that the act was operative to pass the title without any thing further being done by the United States. If so, neither the government, nor any department, nor officer under it, could impair the grant by an improper survey or otherwise. When, however, the survey of the St. Louis common was made and approved by the United States and accepted by the defendant, it was conclusive on the parties to it, for, as they agreed to it, they are bound by by it; but other claimants to land within its boundaries, who were not parties to it, were not concluded, and could controvert it so far as their claims were affected by it. (Menard v. Massey, 8 How. 314.) In the City of St. Louis v. Toney, 21 Mo. 243, a private claimant under the act of 1812, whose land was covered by the survey of the commons, was allowed to dispute its correctness, and to recover against the commons’ title, without having complied with the act of 1824, upon proof of inhabitation and cultivation prior to December 20th, 1803. So also in Vasquez v. Ewing, 24 Mo. 31, this court decided that though the Supreme Court of the United States, in Le Bois v. Brammel, had established the doctrine that the approved survey of the St. Louis common, confirmed by the act of 1812, was equivalent to a patent, and that the title was as perfect from the government as could be obtained, and could not be assailed by the government nor any one claiming under it subsequently to the confirmation of the common, yet a private claimant within the boundaries of the survey, and asserting title under the same act of confirmation, might prevail against a person claiming under the city, upon actual proof of such facts as would bring him within terms of the first section of the act of 1812. The first section of the act that confirmed the “ rights, titles and claims to town or village lots, and lots and common field lots,” in the same breath and in the same words confirmed the titles and claims to the commons in, adjoining and belonging to the several towns or villages” named'in it. No distinction is made between the claimants of the different kinds of property designated in the act; and if the claimants of town village lots, out-lots, or common field lots can recover or without surveys, and are not concluded by surveys made for other claimants, no reason is perceived why a different rule should be applied to the claimants of common. If one can maintain ejectment without a survey, the other can; and if one is not concluded by a survey to which he has not assented, and to which he was not a party, the other ought not to be. Both are vitalized by the same power and are subject to the same conditions. The confirmation to each was a grant by legislation which carried the fee, and was superior to the dignity of a patent (Grignon’s Lessee v. Astor, 2 How. 344) ; and to the extent of impairing the rights which the act conferred the power of the government was exhausted, and they were sacred from the improper interference of the highest executive officer, the head of a department, or any subordinate officer or agent; “ but the boundaries of the claims thus confirmed were designedly, as we suppose, left open to the settlement of the respective claimants by litigation in the courts of justice.” (Mackey v. Dillon, 4 How. 446.)

In our opinion the plaintiff might recover without a survey ; was not concluded by the defendant’s survey, nor by the survey of 1834, if it was not approved by the United States or assented to by the plaintiff, as showing the extent and boundaries of the Carondelet common. If, however, the survey of 1834 was approved, it would be prima facie evidence of the true location and boundaries of the Carondelet common, and the plaintiff could not recover without showing that it was incorrect and had never been recognized or accepted. No formal act is necessary to constitute an acceptance, but it may be inferred from a variety of acts and circumstances; and though the acts of the party going to show that the survey had been accepted must be proven as facts to the jury, it will be the province of the court to declare, as a matter of law, the legal effect of particular, acts bearing on the question. Judge Napton concurring, the judgment will be reversed, and the cause remanded.

Scott, Judge.

As only part of the claim of Carondelet for commons is presented by this record as it appears, I am not willing to express an opinion as to whether Carondelet can, on her bare confirmation alone, maintain an ejectment. There is no doubt the act of 1812 conferred title, but to wliat lands is a matter for judicial determination. It is for the courts to say whether a claim, although it has been confirmed, has that degree of definiteness which entitles it to be submitted to the jury. As the case now stands, I am not prepared to say that Oarondelet would not be entitled to recover.


author:
RICHARDSON, Judge,
      Scott, Judge,

text:
    Charlotte, (of color,) Respondent, v. Chouteau, Appellant.
    1. Judicial notice will not he taken of the laws of a foreign country.
    2. If the foreign law is unwritten it may he proved by parol; it will not he presumed to he in writing.
    3. Foreign written laws must he proved by the laws themselves properly authenticated.
    4. It is the province of the court to instruct the judges as to the meaning and eifeet of the written foreign law adduced in evidence; and this construction should he the same which is given to it in the jurisdiction in which it is in force.
    5. The opinions of text writers, the decisions 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.
    IY. 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.
    Y. The verdict was flagrantly against law and the instructions of the court. *
    YI. 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 Pliill. 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 ; Hol-liday 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 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 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, 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 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 Quebec, and the commission under the authority whereof the government of the said province is at present administered, and all and every the ordinance and ordinances made by the governor' and council of Quebec for time being relative to the civil government and administration of justice in the said province, and all commissions to judges and other officers thereof, be and the saíne are hereby revoked, annulled and made void from and after the first day of May, one thousand seven hundred and seventy-five. Sec. 8. And be it further enacted by the authority aforesaid, that all his majesty’s Canadian subjects within the province of Quebec — the religious orders and communities only excepted— may also hold and enjoy their property and possessions, together with all customs and usages relative thereto, and all other civil rights in as large, ample and beneficial manner as if the said proclamation, commissions, ordinances and other acts and instruments had not been made, and as may consist with their allegiance to his majesty and subjection to the crown and parliament of Great Britain; and that in all matters of controversy relative to property and civil rights resort shall be had to the laws of Canada as the rule for the decision of the same, and all causes that shall hereafter be instituted in any of the courts of justice to be appointed within and for the said province by his majesty, his heirs and successors shall, with respect to such property and rights, be determined agreeably to the said laws and customs of Canada, until they shall be varied or altered by any ordinance that shall from time to time be passed in said province,” &c.

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 commons in this present parliament assembled, and by the authority of the same, that from and after the first day of August, one thousand seven hundred and ninety, if any person or persons — being a subject or subjects of the territories or countries belonging to the United States of America — shall come from thence, together with his or their family or families, to any of the Bahama or Bermuda or Somers’ Islands, or to any part of the province of Quebec, or of Nova Scotia, or any of the territories belonging to his majesty in North America, for the purpose of residing or settling there, it shall be lawful for any such person or persons, having first obtained a license for that purpose from the governor, or, in his absence, the lieutenant governor of said islands, colonies or provinces respectively, to import into the same, in.British ships owned by his majesty’s subjects and navigated according to law, any negroes, household furniture, utensils or husbandry and clothing free of duty; provided always, that such household furniture, utensils of husbandry and clothing shall not in the whole exceed the value of fifty pounds for every white person that shall belong to such family, and the value of forty shillings for every negro brought by such white person; and if any dispute shall arise as to the value of such household furniture, utensils of husbandry, or clothing, the same shall be heard and determined by the arbitration of three British merchants at the port where the same shall be* imported — one of such British merchants to be appointed by the governor, or, in his absence, by the lieutenant governor of such island or province — one by the collector of the customs at such port— and one by the person so coming with his family. Sec. 2. And be it further enacted, that all sales or bargains for the sale of any negro, household furniture, utensils of husbandry, or clothing, so imported, which shall be made within twelve calendar months after the importation of the same (except in cases of the bankruptcy or death of the owner thereof) shall be null and void to all intents and purposes whatsoever.” The third and last section relates only to the oath of allegiance required to be taken by the immigrant.

Sixth. The act of the priucial parliament of Upper Canada, passed July 9th, 1793. (Rev. Stats, of Upper Canada, chap. 8, p. 18.) The first section of this act recites that it is highly expedient to abolish slavery in the province, so far as the same may gradually be done without violating private property. It then repeals so much of the act of 1790 as enables the governor or lieutenant governor to grant license for the importation of negroes, and forbids any negro or other person subjected to the condition of a slave from coming or be-bing brought into the province after the passage of the act to be subject to the condition of a slave. The second section provides that nothing in the act should be construed to extend to liberate any negro subjected to service, or to discharge him from the possession of his owner, who should have come or been brought into the province in conformity to the conditions of the act of 1790, or should have otherwise come into the possession of any person by gift, bequest or purchase. The third section- declares that in order to prevent the continuation of slavery within the province, every child thereafter born of a negro woman who was a slave, should remain with his or her master or mistress until such child should arrive at the age of twenty-five years, and then be free.

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 stand. The first declared as a matter of law the legal effect of the documents named in it, and the court in giving it assumed that it was its duty, and not the province of the jury, to pass on their meaning and operation. The second submitted every proposition of law in the' case to be determined by the jury. If it was a conclusion of law from the documents read in evidence, to be decided by the court, that slavery was sanctioned in Canada, it was not proper to refer the question whether or not it was lawful to the jury ; but if the last instruction was proper, though inconsistent with the first, the defendant can not complain ; and if the first was correct, the other was wrong, and was calculated to mislead the jury to the defendant’s prejudice. The quality of these instructions must be determined by the question whether it is the duty of the court or the jury to construe a foreign law.

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 witnesses of competent skill. But where they are in writing, a copy properly authenticated must be producedwhilst Lord Denman, in Baron De Bode’s case (8 Q. B. 250) permitted a witness to speak oí the effect and state of the law in France resulting from a decree, but Patterson, J., dissented. In this country the question is well settled, but the cases are not uniform on the point whether the evidence of the existence of a foreign law is addressed in the first instance to the court or to the jury. In Consequa v. Willing it is said, that, whether the law or usage is sufficiently proven or not, is a question of fact for the jury, and so also in the case of the State v. Jackson, 2 Dev. 566, Ruffin, J., held that the “ existence of a foreign law is a fact. The court can not judicially know it, and therefore it must be proved, and the proof, like all other, necessarily goes to the jury.” And in Moore v. Gwynn, 5 Ired. 190, where the question did not arise on statute, but under the common law of Virginia, and the testimony was conflicting, it was decided that it ought to be left to the jury. But the decided weight of the American authorities goes to the length of establishing the doctrine not only that it is the province and duty of the court to instruct the jury as to the meaning and effect of a foreign law, when proved, whether the law is written or unwritten, but that the proof must be made to the court. Mr. Justice Story, in his Conflict of Laws, (§ 688,) says: “ All matters of law are properly referable to the court, and the object of the proof of foreign laws is to enable the court to instruct the jury what, in point of law, is the result of the foreign law to be applied to the matters in controversy before them. The court are therefore to decide what is the proper evidence of the laws of a foreign country; and when evidence is given of these laws the court are to judge of their applicability, when proved, to the case in hand.” And Mr. Greenleaf, in his treatise on evidence, (1 Greenl. Ev. § 486,) quotes this section from Story, and incorporates it into the text of his work as containing the proper rule. Gibson, Chief Justice, observed, in Sidwell v. Evans, 1 Penn. 888, that “municipal law is a matter of compact, and as such tbe construction of foreign statutes, as in tbe case of any other written compact, belongs to the court. A plausible distinction might be taken in this respect between written and the unwritten law which necessarily rests on parol, but it seems to have been disregarded.”

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 be extremely difficult for the court to determine either the fact sought to be proved or to declare the legal effect of the evidence. And whilst it may be the better rule to submit as a question of fact the existence of a foreign law to the jury, we think that when it is written and received in evidence it is the duty of the court to construe it, and to instruct the jury as to its meaning and effect. We do not mean by the written law the statements of text writers or the decisions of courts; but these may be used with the evidence of experts to enlighten the court in expounding the foreign law; for when a foreign law has received a local construction, judicial decisions and law writers may be consulted, and professional witnesses may be examined for the purpose of ascertaining its meaning.

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 slavery of negroes and pañis, as therein stated, bad been practiced and was still continued in the colony in 1736, as by an ordinance of Mr. Hoegnart, the then intendant, of the first of September of that year, a form for the emancipation of slaves was established and directed to be observed. So far the existence, if not the legality, of slavery would appear.” He also • states that the ordinance of 1736 assumed the legal existence of slavery. Judge Gale, the other witness, in speaking of the ordinance of 1709, says, it declared that it would be useful to the colony to hold negroes and Indians of a distant nation, called pañis, as slaves, and therefore the negroes and pañis, who had been or might be bought, should be held by the purchasers as their slaves; and that the ordinance of 1736 required masters who emancipated their slaves to do so only by written documents passed before public notaries, and declared other forms of emancipation void. In answer to the question whether slavery of negroes or other persons was recognized and allowed by law in Canada while the country belonged to Eranee, he replied: “ I believe that a modified system of slavery respecting negroes and some others was de facto exercised in Canada, in various instances, while the country remained under the French dominion ; but I can not undertake to say that such de facto exercise of slavery was justifiable under sufficient legitimate enactment and a correct interpretation of the laws as they then stood.” My opinion is to the contrary.

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 colonial assemblies with the knowledge of the home governments.

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 United States v. Percheman, 7 Pet. 87, Chief Justice' Marshall, in speaking of the.rights to property acquired in Florida before its cession to the United States, reiharks: “ The people change their allegiance; their relations to their ancient sovereign is dissolved; but their relations to each other and their rights of property remain undisturbed. If this be the modern rule in case of conquest, who can doubt its application to the case of an amicable cession of territory ? Had Florida changed its sovereign by an act containing no stipulations respecting the property of individuals, the rights of property in all those who became subjects or citizens of the new government would have been unaffected by the change.” This principle was recognized in England in reference to Jamaica as early as 1693, in Blankard v. Galdy, 4 Mod. 222; also by Lord Mansfield, in Res v. Vaughan, 4 Burr. 2500. Slavery now exists in Louisiana, Missouri and Florida without any act of legislation introducing it, and none was necessary ; for, being in existence under the implied sanction at least of France and Spain in 1803 and 1819, it was continued, and was- not dependent on any positive law for its recognition.

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 causes, as well criminal as civil, as near as may be agreeable to the laws of England. The judges whose testimony we have noticed say that this proclamation introduced into all the colonies mentioned in it the common law of England, and that the genius and spirit of the common law are so hostile to slavery that wherever it is introduced or prevails it operates ipso facto to abolish slavery.

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 1763, which is set forth in the report. With regard to three of the four governments to which this proclamation related — East Florida, West Florida and Grenada — I am not aware that any controversy as to the effect of it ever arose. Perhaps there may have been, with respect to them, other acts and instruments more directly expressive of his majesty’s intention to introduce the laws of England. But as to the fourth — the government of Quebec — which was included in the same proclamation, and where it must have had the same legal effect as in the others, it became a matter of great and long-continued discussion whether the laws of England had thereby been generally introduced in abrogation of the ancient municipal laws of country. In a report made bjr the Attorney and Solicitor General in 1766, little other effect was ascribed to this proclamation than of extending to the inhabitants of Canada the benefit of the criminal law of England.” But no matter whether or not the proclamation introduced the laws of England into Canada, or whether they produced any change as to the rights of property, it is certain that the act of parliament of 1774 repealed so much of the proclamation as related to the laws of England, and enacted that the Canadians within the province of Quebec might hold and enjoy their property and possessions, together with all customs and usages relative thereto, and all other their civil rights, in as large, ample and beneficial manner as if the said proclamation” had not been made, “ and that in all matters of controversy relative to property and civil rights” resort “ should be had to the laws of Canada as the rule for the decision of the same.”

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 imported. It is said that this act was for the benefit of British subjects whose homes wore -uncomfortable to them in the United States after our independence was achieved. This is doubtless true, but it is hardly probable that out of tenderness to them Parliament would have established in Canada, for their benefit alone, a system of slavery which had never before existed there, and which it is alleged is so repugnant to the genius of the common law.

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 slavery was authorized by law in Kentucky or Virginia, it is probable that no legislative act could be found in either state which, in. express terms, legalized it; but the conclusion would force itself on the mind of a judge, and he would feel himself compelled to decide, that it was lawful, as a necessary inference from disconnected acts regulating the subject; and, in our opinion, if slavery existed in Canada under the French government, before the English' acquired the country, it continued to exist and was lawful until it was abolished; and after a careful examination of the documentary evidence in this cause, and for the reasons which are .here hurriedly given, we have arrived at the conclusion which the circuit court announced in the first instruction given for the defendant. The last instruction for the plaintiff is inconsistent with the first for the defendant, and was therefore improperly given. If the word “ lawfully” had been omitted in the last instruction, it would have been unobjectionable; for though slavery was sanctioned by law in Canada, if in fact Rose was not a slave there, her children would not now be.

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.

Scott, Judge,

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.