Isabella v. Pecot

The judgment of the court was pronounced by Slidell, J. There is a motion to dismiss this appeal, upon two grounds. One is, that the transcript has been returned directly to this court, though by the order of appeal, made in 1845, it was returnable to Opelousas. The appellant has manifested suitable diligence .tocomply with the order granting him time, made at the last Opelousas term, and the failure to do so is entirely attributable to the fault of the clerk of the court below. Under the peculiar circumstances of this case, we think, the direct filing at New Orleans was authorited by the statute of 1846; at least, under thatstatute, which, in some of its provisions upon a new and difficult subject is not free from obscurity, the point is not clearly against the appellant. We adopted, in the recent case of Gilmore v. Brenham, 1 An. R. 414, a rule which we believe a salutary one, that motions for dismissal will not be sustained, unless there be a clear case for dismissal. We stated then the reasons why the appellant would be considered as entitled to the benefit of any doubt, and it is not necessary to reiterate them. Another ground of the appellee’s motion for dismissal is, that the warrantors have not been cited. The appeal was granted on motion made in open court, and no citation was necessary. Whether there be any defect in the appeal bond, is a question not necessary to be considered; for the objection is not made in the grounds of the motion, which present the mere question of citation. The warrantors have left this motion for dismissal on the grounds presented by the defendant. We shall therefore proceed to the consideration of the cause, on its merits. The petitioner alleges that, in 1836, she resided in Mexico, in the province or State of Texas, where she had resided for some years previously; that she was held to service as a slave in said country, by a man named Thomas Gates: that, in 1836, she was brought by the said Gates across the Sabine river into the United States, and that the said Gates, with his family and the petitioner, soon after removed to the parish of St. Mary; that Gates, claiming her as a slave, held her to service in the parish where she was afterwards seized and sold to pay the debts of Gates. The mesne conveyances are then recited, by which she was eventually conveyed to the defendant Pecot, against whom she claims her freedom. The plaintiff rests her claim to freedom on two grounds: that she was never lawfully held to slavery in Texas, because by the laws of Mexico slavery was not tolerated, but prohibited; and that, if lawfully held as a slave in Texas, her importation into the United States from Texas, a foreign country in 1836, was in violation of the laws of the United States, and that Gates thereby forfeited any right of ownership which he may have theretofore had. At the trial of the cause the plaintiff offered to prove by the testimony of a witness that, at the time when Gates held the plaintiff in slavery in Texas, slavery was prohibited by the laws of Mexico. The defendant objected to this testimony; “ Upon the [391] ground that plaintiff had not first shown that there was no statute law prohibiting slavery in Mexico or no written law, which he was bound to do before he could prove the laws of Mexico by parol. And the said objection being sustained by the court, which refused to permit said parol proof by said witness and permit said question to be answered to this effect, unless it was first shown that there was no written law, the plaintiff excepts to said opinion of the court, &c.” We think the court did not err. The general principle is, that the best testimony or proof shall be required, which the nature of the case admits of. The requisition of the court, upon the objection of the opposite party,, in effect was, that the witness called to prove the laws of the foreign country, should be first asked whether the law as to which he was about to testify, was a written or an unwritten law. There was no hardship in this, and its tendency was to save the time of the court by preventing the introduction of illegal testimony. If the course of examination prescribed by the court had been adopted, and the witness had declared that the law he was called to prove was an unwritten law, we must suppose the examination would have been permitted by the judge to proceed, and that the proof would have been sufficient, for courts should only require proof of foreign laws by such species of testimony as the institutions and usages of the foreign country admit of. If the foreign law be unwritten, no other testimony than that of witnesses is attainable, and it would be unreasonable and vain to require any other. But if the foreignlaw be a written law,, then higher evidence should be produced, in the form of an authenticated copy, or at least of a copy proved to be a true copy by a witness who has examined and compared it with the original. See Church v. Hubbard, 2 Cranch, 237. Story’s Conflict of Laws, ss. 639, 640. Greenleaf on Evidence, ss. 487, 488. The ruling of the court derives, if need be, additional force from the acts of the plaintiff. On a previous calling for trial, the plaintiff had applied for a continuance, on affidavit, for the purpose of “procuring from the city of Mexico a copy, duly authenticated, of the law of the Republic of Mexico forbidding and abolishing slavery in the Republic.” Besides, we know that, by the laws of Spain, of which Mexico, like Louisiana, was once a province, and which laws once governed our territory, slavery was recognized. If that law has been changed since Mexico passed from the dominion of Spain, it could scarcely have been otherwise than by written law. The plaintiff has herself offered testimony very unfavorable to her case. Her principal witness declares that, before the plaintiff was brought from Texas, he had seen many persons held as slaves there, and that the cotton plantations there were cultivated by slave labor. It is also a matter of public history with regard to this member of our confederacy, that Texas formally announced her independence before the date at which the plaintiff proves that she was brought from Texas into Louisiana, and that the condition of slavery was recognized in that State before its admission into the Union. Being of opinion that the plaintiff has failed to establish that she had been unlawfully held to slavery in Texas, it remains to consider the effect of her importation into the United States from Texas, then a foreign country. In the year 1836, when a hostile army had entered the territory of Texas to renew the attempts, which had so often proveda bortive, to reduce the people of that country to subjection, a portion of the population fled for refuge to the Sabine, seeking safety for their lives and property within the confines of the [392] United States. It may well be questioned, whether an importation of a slave, under such circumstances, could be deemed a violation of our laws concerning the slave trade. Our federal government, in its diplomatic discussions with foreign powers, has certainly asserted, on occasions not dissimilar, a very different doctrine, where the rights of her own citizens in slave property were jeoparded, when brought by uncontrollable misfortune within the foreign territory. This consideration is not, however, indispensable to the present enquiry. If the laws of the United States would affect the rights of the owner of a slave imported under such circumstances, can the commission of the offence be enquired into by a State tribunal, at the suit of the slave against the party alleged to have committed the unlawful act, or those holding under him. We think not. The jurisdiction of the United States Court should be invoked to adjudge and punish the offence, and the person so imported, in case the vei’dict of a jury should ascertain the commission of the offence, would remain in the custody of the marshal for safe-keeping, subject to the oi’ders of the President of the United States. Under the former legislation, slaves unlawfully ixnported were to remain subject to such regulations as the State legislature might establish, and the statute of Louisiana provided that such slaves should be sold by the sheriff as slaves for life. In 1819, the power thus given to the State legislatures was taken away, and it was enacted that the slave should remain- in the custody of the marshal, as above stated. There is nothing in our State legislation which recognises the freedom of the slave as acquired by the illegal importation, and the legislation of Congress must be interpreted as a whole, and administered and executed as Congress has directed. See United States v. Preston, 3 Peters, 66. Acts of Congress, of April 20, 1818, and 3 March, 1819, sec. 3, &c. Statute of Louisiana, 13 April, 1818. Judgment affirmed.