Charlotte v. Chouteau

Scott, Judge,

delivered the opinion of the court.

The copies of the archives, offered in evidence, should not have been excluded. The last clause of the 18th section of the ..act concerning evidence prescribes that a copy of any record *596of the French or Spanish governments deposited in the office of the recorder of any county, being duly certified by him, shall be received in evidence, with like effect as the original.’' This provision is declaratory of a principle of the common law. In the case of the United States v. Percheman, (7 Pet. 53,) it is said, “ on general principles of law, a copy of a paper given by a public officer, whose duty it is to keep the originals, ought to be received in evidence.” The papers excluded were such as are contemplated by the section referred to. They were copies of the records of the Spanish government, deposited in the office of the recorder of St. Louis county, as appears by his certificate. The originals were authentic instruments, executed in the presence of the lieutenant governor, and deposited among the archives of the government..

Had these papers been admitted in evidence, they would have showed that Rose, the ancestor of the plaintiff, was born in Canada, and consequently the question would have arisen whether slavery, in fact, did ever exist in that province, so that an African and his descendants could have been lawfully held in bondage. For if Rose, the mother of the plaintiff, was ever lawfully a slave, though the law afterwards gave her a right to freedom, yet, if she failed to assert it there, and came with her master here, neither she nor her descendants will be permitted to assert it now.

We cannot yield to the argument that the plaintiff has no right to go back and show that her mother was free, in order to establish her right to freedom, on the ground that we cannot inquire whence the inhabitants of this country, under the Spanish government, acquired their negro slaves, it making no difference, in point of law, whether they captured them in Canada or Africa.

As the successors of the Spanish government, the authorities now existing here must take notice of the laws which prevailed in this country when it was a dependency of the kingdom of Spain. Our courts take judicial notice of those laws. Al-hough wa have seen no law or laws which,, in terms, reduced *597the African race to bondage, yet it is an historial fact, as well authenticated as any other, that the slavery of that race was recognized as legal in the Spanish, French and British colonies in America. Negroes were captured in Africa, brought to America and held in servitude. But when any of this race, who were then reduced to slavery, acquired their freedom under the laws of the country in which they lived, we- are aware of no law by which they, .except for crime, could be again subjected to bondage. The principle that there is no prescription against liberty, applied to them as well as to those of any other color. No law has been shown to us by which the Spanish authorities of Louisiana were authorized to reduce free persons to slavery. The fact that a conveyance of a negro was made in the presence of the lieutenant governor, and authenticated by his signature, in a colony where slavery was tolerated, and in whose presence it was customary to execute such instruments, and it not appearing that he had knowledge that the negro was not a slave, on no principle can be regarded as an adjudication that such person was a slave. Such instruments, so passed and authenticated, were only intended as evidence of the transfer of the title of one- person, to another, and never were supposed' to be an adjudication as to the status of the person transferred by the instrument. Such an act would be evidence that the government tolerated slavery, but we cannot see how it would have the effect of determining-whether the negro named in the conveyance was a slave or not. The courts of this state will protect the inhabitants in the enjoyment of all the rights they possessed under the Spanish government; but they are bound to resort to those laws, in order to ascertain whether a right existed under them or not. In the courts of Louisiana, in a case in which the Spanish law, as it existed here before the change of government, was administered, it was held, referring to the Spanish law of the third Partida as authority, that, if a man be free, no matter how long he may be held by another as a slave, his estate or condition cannot be thereby changed, nor can he be reduced to slavery, in any man*598ner whatever, on account of the time he may have been held in servitude. (Delphine v. Devize, 2 Martin N. S. 650.) This principle was asserted in a case in which the descendant of a negro woman was-suing to establish her right to freedom.

The cause will be remanded, in order that the fact may be tried whether Rose was lawfully a slave in Canada.

The other judges concurring, the judgment will be reversed, and the cause remanded.