The slave … cannot be a party in any civil action, either as a plaintiff or a defendant, except when he has to claim or prove his freedom.
Article 177 of the Civil Code of the State of Louisiana
On May 23, 1844, the Upton brothers, each carrying a black leather case, walked through the streets of the Vieux Carré toward the First District Court. Following closely behind were Eva Schuber and her husband, holding bundles of papers, and directly behind them was the plaintiff herself. She was wearing a slate-gray dress that fell to her ankles. A frilled lace collar, held in place by a large brooch, pressed high on her neck. Her hair was parted in the middle and pinned in a knot at the back of her head. Walking behind her came Madame Koelhoffer, Mistress Schultzeheimer, and Mrs. Fleikener, dressed in church-going black. Then came Messrs. Frendenthal, Grabau, and DeLarue dressed in business suits, all of whom Eva had earlier introduced to Wheelock Upton, telling him that these were some of the men who were meeting his legal expenses. Then at the rear, hobbling along with the aid of a walking stick, was Madame Poigneau, who would tell the court that she had heard Bridget Wilson speak like a German.
In Toulouse Street they met up with Christian Roselius. No man was more respected by the German community, and Sally’s supporters surrounded him and thanked him profusely for taking on the case. But he was a lawyer in a hurry, and he extracted himself from the well-wishers and strode off toward the court, one arm swinging, the other holding a battered buckskin satchel containing documents he had examined overnight. The others, like participants in a medieval religious procession, followed along behind, instinctively ranking themselves according to their importance to the case.
The First District Court was housed in the Presbytere. It was originally the priest’s house to the St. Louis Cathedral next door. On the other side of the cathedral stood the Cabildo, where the Spanish governor had ruled, while his soldiers had paraded in the Place d’Armes directly out in front. These three buildings represented the trinity of ecclesiastic, divine, and military authority in the colony. When Louisiana became American, the symbols of power changed. The Cabildo became the City Hall and later housed the Supreme Court, the Presbytere was turned into the district court, and the Place d’Armes became a public park. Nowadays the Place d’Armes is designated Jackson Square, but in 1844 the splendid statute of Old Hickory riding a prancing horse hadn’t been erected, and the Pontalba buildings with their guillotine windows opening onto graceful balconies had yet to be built. The square was then an old marching ground with a set of stocks in the middle where black people convicted of crimes by the nearby courts were whipped each afternoon.
A correspondent in 1847 wrote of “the curious scenes” he saw in and around the Presbytere courthouse:
Apple-women take possession of its lobbies. Beggars besiege its vault-like offices. The rains from Heaven sport among its rafters. It has everywhere a fatty, ancient smell, which speaks disparagingly of the odor in which justice is held. And yet in this building (which the poorest Eastern village would blow up before sundown should it appear within its precincts) are held from November until July, six courts, whose officers brave damp and steam enthusiastically and perseveringly. You turn … into a narrow alley and brushing past a greasy crowd are soon within the criminal court, where a judge, perched in a high box, wrangles hourly with half-crazed witnesses;—here you behold jurymen, who of themselves constitute a congress of nations; zealous, fulllunged lawyers; and audacious criminals ranged in boxes, very much to the satisfaction of a mustached district attorney and the merry-looking keeper of the Parish jail.97
It was into this bedlam that Roselius and the Upton brothers led Sally Miller and her backers. They elbowed through the crowds and climbed the stairs to enter one of the courtrooms. Already it was half full. A hush fell on the audience as they turned to stare at Sally Miller, judging her white or black, according to their preconceptions. The lawyers took their seats at the bar table, and Roselius indicated directly behind them, to where Sally, as the plaintiff, should sit.
Grymes arrived a few minutes before court was due to commence. He was a tall, elegant man, in his late fifties, with graying hair and a thin face. He wore a paisley waistcoat and a shiny black coat. A dandy gambler on a steamboat wouldn’t have been better turned out. He came at the head of a team of attorneys and assistants, who waited respectfully until he had chosen his seat, then took their place either side of him. John Fitz Miller, his head held high, and mortified that it had come to this, sat behind them. Grymes nodded to Roselius. They knew each other well, respected each other as formidable opponents and disliked each other immensely. With those curt courtesies over, both men concentrated on the documents placed before them by their more junior associates.
The respective followers of Sally Miller and John Fitz Miller moved to sit directly behind each side’s legal team. Louis Belmonti wasn’t there. He had decided that the litigation was no longer of concern to him, and was well satisfied to leave it to his counsel. The Daily Picayune, in reporting the case, was kind to him, making it clear that he had acted in good faith and that if damages were to be awarded, Miller, and not he, would sustain them.98 As the trial progressed, the press, presumably in the interest of making things simple for their readers, ceased mentioning Belmonti’s name at all.
Precisely at eleven o’clock there was a tapping at a door set in the paneling along the front wall. All rise, called Deputy Sheriff Lewis, in a clear and booming voice, and in obedience there was the scrape of a hundred chairs. The door swung open and with his black robes swishing behind him, Judge Buchanan strode to his judicial upland on which sat a large upholstered chair. He looked around, nodded briefly to Grymes, then to Roselius, and, ignoring the other counsel, threw his robe behind him so that it enveloped his chair, and sat down.
Oyez! Oyez! The Honorable First Judicial District Court of the State of Louisiana is in session, cried the sheriff. All those who have business in the case of the petition of one Sally Miller against Louis Belmonti and John F. Miller come forward and they shall be heard.
Both sides, for quite different reasons, had requested that a judge sitting without a jury should decide the petition. Roselius and Upton had been concerned that if they insisted on a jury, it was likely that most of its members would be slaveowners and disinclined to take away another fellow’s property. Nor might the typical juryman readily accept that a Southern gentleman would be capable of enslaving a young white girl. Grymes, for his part, had been worried about the jury’s reaction to the sight of a white woman seeking her freedom. He had expected (and a quick glance at Sally Miller confirmed this) that she would appear in court groomed in the most respectable of clothing and with a pale skin indicating she hadn’t seen the sun for weeks. To his mind, the defendants’ cause would be best served by drawing a crusty old judge who wouldn’t be swayed by the emotional foolishness of the German witnesses or the charming pretences of the plaintiff.
Grymes couldn’t have wished for anyone better than the judge now facing them. Alexander M. Buchanan was an ex-soldier who frequently used the bench to lecture the citizens of New Orleans on the need for rules and discipline in society. He wasn’t admired for his knowledge of the law, but Grymes saw no disadvantage in that. Here at least was a judge who would decide the case without flourish or adventure and stick to the facts. If Buchanan was known for anything in lawyerly circles, it was for his quick temper and his overconcern for the dignity of his office.
The lawyers stood in turn to announce their appearance: Mr. Roselius with Messrs F. W. Upton and W. S. Upton for the plaintiff; Mr. Grymes, with Mr. Micou and Mr. Lockett, for Mr. Miller; and Mr. Canon for Belmonti.
Roselius waited to catch the judge’s eye so that he could commence his opening address. Behind him, every seat had been taken and some of the overflow spectators were lined against the side walls. There was a witness stand on Roselius’s left; to the right was a small desk for Deputy Sheriff Lewis. In the well of the court, directly in front of the lawyer’s bench, was a rail enclosure capped in brass knobs, where Mr. Gilmore, the clerk of the courts, waited, ready to write notes of the proceedings. Shorthand wasn’t a skill he possessed, so he wrote his notes in an abbreviated, narrative form, by omitting the questions and only recording the answers.*
Roselius spoke for most of the morning, reordering the elements of an intricate drama into a simple sequence of events. He spoke quietly. There was no stage thunder, no arm waving, no appeals to emotion. His tone was of a plain fellow, come to tell of an awful wrong, and seeking the court’s help in putting things right. He told of the journey of German immigrants to the United States, how one such family—a widower, Daniel Müller, and his children—upon their arrival in New Orleans had become redemptioners in Attakapas, and how Attakapas was where Miller had several plantations. He explained how Sally Miller had arrived on the doorstep of the Schuber house a year ago and how the people who gathered there had instantly recognized her. He read the petition and Miller’s answer, pausing to list the witnesses he would call and what evidence they would present.
He pointed out to Buchanan the unusual features of the lawsuit now before the court. He said that almost always the petitioners in freedom cases were people with some African blood in their veins, offering this explanation or that as to why they should no longer be held in chains. However, in this case the petitioner was saying that she had nothing of Africa in her. She was incapable of being made a slave. She should never have had her childhood stolen from her or have been forced to labor for others. Why not? Because she was always a free white woman.
Roselius turned to face Sally Miller. Everyone in the courtroom followed his gaze. This woman, he declared, is of pure German descent. She is pure white. In the name of justice, she must be freed. He turned back to Buchanan. This is the unique issue at the core of this case. This is the important matter you have to decide.
When Roselius was done, Grymes, without rising from his chair, announced that the defendants would make their opening address after the plaintiff’s case had concluded.
It was time for Roselius to make his apologies. After inclining his head in respect to the bench, he explained that he had a case at the Supreme Court he must attend to. His esteemed colleague, Mr. Wheelock Upton, ably assisted by his brother, Mr. Frank Upton, would take over from here.
Even before Roselius had packed up his belongings, Wheelock Upton was standing in his place. In a nervously loud voice, he asked the sheriff to call his first witness.
A woman of many years, dressed in clothes that spoke of poverty, made her way slowly through the crowd into the body of the court. Sheriff Lewis motioned her forward and then, offering his arm, aided her into the witness stand. After she had settled herself, the clerk of court placed a Bible in her hand. She spoke very little English, she said. Spanish was her tongue. An interpreter was summoned and with great solemnity Mr. Gilmore took her through the oath of truthfulness.
Upton approached and bowed low. He asked her name and where she lived. Her answers came through the interpreter: Madame Poigneau, and she lived in the Third Municipality.
Did she know the woman seated behind him? Yes, she did. She had known her since she was eleven or twelve. She had seen her at Miller’s sawmill. Then, without any further prompting, she added that the girl had the color of a white person, so she remembered her from that. She had the appearance, the mien, the eyes, and the color of a white person.
And what accent had she when she talked? asked Upton. Was it French, Spanish, whatever?
She had a German accent, said Madame Poigneau.
Upton glanced toward Buchanan, confirming that he understood the significance of her words.
Are you sure that this is the same person? pressed Upton. He directed Madame Poigneau’s gaze toward Sally Miller. Are you sure this is the same person you saw as an eleven- or twelve-year-old girl, speaking like a German in the yards of Miller’s mill?
Madame Poigneau nodded. Yes, she was sure.
Upton sat down. His examination of Madame Poigneau had taken only a few minutes, but he had planned it that way. The essential point was so important, he didn’t want it lost in other evidence. He could hear a buzz of excitement from the German people sitting behind him. He glanced behind him and saw the smile on Eva Schuber’s face and her certainty that now they must be believed.
Grymes rose slowly to his feet, began to ask a question, then stopped himself. He glanced at the clock. Buchanan took the hint. They would resume at two o’clock, he announced.
As Upton left the courtroom, a jubilant crowd of Sally Miller’s supporters surrounded him as if he had done something wondrous. So, she spoke with a German accent! It was all they needed, wasn’t it? Then, with the proof of the moles on her thighs to come, victory must be theirs. Never had there been such a clear-cut case.
After lunch, the crowd in the courtroom was greatly reduced. Many from the German side, well pleased at how the morning had gone, hardly saw the need to continue to show their support. The business of the day awaited. Miller had lost some of his supporters as well, but he had gained one. A tall, balding man in his mid-forties sat next to him. He was dressed in a snuff-colored frock coat and nursed a crisp Panama hat on his knee. Upton didn’t know who he was, but he was clearly someone, because Grymes got out of his seat to welcome him. Upton asked his brother to find out about the newcomer. He returned with the news that the man was General Lewis, the commander of the state militia. He was, it seemed, to be called as a witness for Miller.
Grymes began his cross-examination of Madame Poigneau gently enough. When had she first seen Sally Miller? She appeared unsettled by his question. She couldn’t exactly remember. It was at least twenty years ago.
Well then, asked Grymes, what street were you living in then?
Again his question caused her difficulty. She didn’t know the name of the street. You can’t remember? asked Grymes solicitously. She said she couldn’t, but then added that she had always lived in the lower part of the city.
Did she know the name of the faubourg? She didn’t know that either. Grymes smiled sympathetically. She gave the names of some of the people she knew in her street.
How does that help the court? said Grymes, with the slightest of sneers. Do you expect the judge to know these people?
The woman made no response.
So, you don’t know where you were living?
It was about half a square from Mr. Miller’s mill.
It’s difficult after such a long time, isn’t it? said Grymes.
Madame Poigneau agreed.
Grymes turned to a different topic. Had she ever visited Miller in his house?
No, she hadn’t.
Had she ever visited his mother, Mrs. Canby? No.
Well, then, why were you on Miller’s land?
I went to the yard to visit among the old Negresses.
These would be slave women you were visiting, Madame Poigneau?
The witness mumbled a reply. He repeated the question.
Yes, she said more loudly.
Suddenly there was a hardness in Grymes’s voice. So, you heard Sally Miller speaking with a German accent, while you were visiting old slave women?
Yes. She always spoke German.
But you were visiting slave women?
Yes.
Because they were your friends, these slave women? That was why you visited them?
Yes. Bridget always spoke German.
You are now saying that this woman spoke German, are you? Not just had a German accent, but spoke German?
She always spoke German.
She spoke German to you?
Yes, she always spoke German.
Ahh, said Grymes. Could you speak a little German for us?
She looked at him in confusion. Grymes sighed in mock empathy. Gone, has it?
I used to be able to speak German back then, but it’s forgotten. It’s because I only speak Spanish now. But Bridget spoke German then. I heard her.
And what did you talk about.
I never had a conversation with her. I just heard her talking.
Well, what was that?
I once said: Well young girl, you are running about with your feet naked and your calico robe on.
I see, said Grymes. How old are you, Madame Poigneau?
I don’t know. We Creoles don’t count our ages.
No, I suppose not.
I was born in New Orleans, though, added Madame Poigneau, and grew up during the rule of Governor Galvez.
Grymes’s face beamed. Governor Galvez, the Spanish governor? You remember him? The witness did.
Bernardo De Galvez’s rule in Louisiana had ended sixty-five years earlier. Grymes looked at Judge Buchanan and shook his head in a knowing way, implying that Madame Poigneau’s mind had long since departed her. Oh dear, said the lawyer in a stage whisper as he sat down.
Somewhat shaken after watching Grymes maul his first witness, Upton next called Madame Hemm. She was a middle-aged German woman of dour respectability, whom he felt sure would have no difficulty in remembering where she lived. Nor was there any possibility that she would have spent her time visiting elderly slave women.
Madame Hemm went through the story of how she had accompanied her parents from Württemberg to Holland, and how, once they had arrived in Amsterdam, her father had used the last of their savings to pay for the family’s passage to Philadelphia. Later they heard that the man who had taken their money had become bankrupt. They had been cheated and they had nowhere to go. They had spent five months in Helder and it was there that she had met Salomé Müller. She guessed that Salomé’s age was then three or four. Eventually the Dutch government made them return to Amsterdam, where they waited until they came to America. Many, many of them had died.
And that child you saw in Holland, do you see her now in the court? asked Upton.
Oh, yes, said Madame Hemm in a clear voice, pointing to Sally Miller. I recognized her as belonging to the same family. She is the person I saw in Amsterdam.
How did you recognize her as the same person? he asked.
There was the family likeness in her face, which I saw as soon as she came in the door.
The lawyers packed up their books and papers, and walked back to their office. The first day in court had ended, and Madame Hemm would continue to give her testimony in the morning. The German supporters of Sally Miller accompanied the Upton brothers part of the way. There was none of the excitement that had accompanied the parade to the Presbytere that morning. Would it go for much longer? they asked. Weeks yet, they were told. They nodded; they had thought as much.
Before he let Sally Miller go, Wheelock Upton asked her about General Lewis. He had visited Miller’s household a lot, she told him. That was many years ago. He had spoken to her plenty of times. What had they talked about? Nothing, really. Nothing important. Nothing that she could remember. She had waited on his table and carried coffee to him and Miller while they chatted on the veranda. He was always friendly to her. He was always polite. Sometimes he asked her about her children. That was all. But what did she say to him? Nothing, replied Sally. She couldn’t imagine what he was coming to give evidence about.
The Upton brothers continued on their way. It had been a day of mixed fortune. Madame Poigneau hadn’t been the savior they had hoped for, but Madame Hemm had done well. Still, there was Grymes’s cross-examination to come.
The next morning Upton asked Madame Hemm a few questions about the dispersion of the immigrants once they had arrived in New Orleans. Madame Hemm said that she never knew where Shoemaker Müller’s children had gone and it was only lately that she had learned that Sally Miller was alive. Upton asked her again to explain how she recognized Sally after all those years. She gave the same answer: she immediately saw the family likeness.
It was Grymes’s turn. He had listened carefully to Madame Hemm’s evidence and concluded that she had made only one substantial point—that she could recognize Sally Miller after a gap of twenty-five years. His cross-examination concentrated on the improbability of this. There had been hundreds of German children in Helder, hadn’t there? How many were there? Two hundred families? Nine hundred people? How could she remember one little girl? Madame Hemm insisted that she could.
Really?
He asked Madame Hemm her age—forty-six next fall—so she would have been eighteen or nineteen when she last saw Sally Miller? Yes. And how old was Sally? About three or four. Madame Hemm’s family wasn’t from Alsace, but from Württemberg? Now, that was miles away across the Rhine. And the first time she had met Sally was on board the Rudolph in Helder? And she hadn’t seen the plaintiff since they left Amsterdam? They hadn’t come over on the same boat, and she hadn’t seen her in New Orleans? All this, Madame Hemm conceded, but stressed that Grymes couldn’t possibly realize what things were like at Helder. They were there for five months, worried sick about what would happen after they lost their money. Everyone helped one another. They looked after one another’s children, they nursed the sick, they shared what little food they had. Everyone knew everyone else, and she knew Salomé Müller.
By the time Grymes had finished with Madame Hemm, it was mid-morning on the second day. Upton announced that his next witness would be Eva Schuber, the godmother to the plaintiff.
Eva had convinced herself that Sally Miller’s freedom depended on her evidence and as she took the oath her voice trembled with anxiety. Upton asked her what year she had arrived in America. It was the sixth day of March 1818, she responded with singsong certainty. She couldn’t remember the name of the ship, but she remembered the name of the captain, all right. He was Captain Krahnstover.99
She seemed a little calmer now. Did she know the plaintiff? Yes, she did. Upton let her tell the story in her own way. The words tumbled out. Yes, she knew her. She had cared for her after the girl’s mother died. She was her godmother. Eva patiently went through the tangled relationships by marriage and blood of the families who had left Langensoultzbach. She was fifteen years old and Salomé Müller was two years and three months. Eva told of the heartbreak of being cheated out of their fares, of how they had begged in the streets of Amsterdam, then of the voyage across the seas—all recounted in a flat, quiet voice, not so much remembering, but reliving events that would remain with her for the rest of her life—a teenager watching silently as around her people died, day after day, week after week, on that doomed voyage. She told of the death of Salomé’s mother, and how she had then nursed Dorothea and Salomé when they were ill and comforted them when they were frightened. She had put them to bed and slept with them at night, and had dressed them in the morning. She had seen marks on Salomé’s body. Moles, brown moles, on the inside of each thigh. She had seen them often. And she had seen them again when Madame Carl brought Sally Miller to her house a year ago, and they were the same.
Upton asked her about her first sighting of Sally Miller after all those years. She said that she had seen a woman standing behind Madame Carl when she came to her house, and had asked, Is that a German woman? Madame Carl had said, Yes, and she had said, My God, the long lost Salomé Müller! She had instantly recognized her. She needed nothing more to convince her that it was Sally Miller. She would recognized her among a hundred thousand persons.
And did you attempt to have her owner free her?
I spoke to Mr. Belmonti about Sally Miller.
What did he say? inquired Upton.
He blamed Mr. Miller. He said he wanted to set her free, but Mr. Miller had told him that if he did that, she would have to leave the country. That it was the law. Mr. Belmonti then told me that Mr. Miller had said to him that he didn’t sell her as a slave. Miller had said she was a white woman, as white as anyone, and neither of them could hold her if she chose to go away.
Grymes opened his cross-examination by asking her about the last time she had seen Daniel Müller and his three children. She hadn’t seen them leave New Orleans, had she? No. She hadn’t seen them on board any keelboat, either? No. Nor did Daniel tell her who their new master was? No, he hadn’t. It could have been anyone, couldn’t it? Reluctantly she agreed.
He asked her how old she was when she arrived in New Orleans. Fifteen, going on sixteen. She was now forty-three.
And you say Sally Miller was about three?
Yes.
And she spoke German plainly?
Yes.
And no other language?
No.
The other little girl, Sally Miller’s sister, how old was she?
She was four years and two months.
Is she alive?
I don’t know. I haven’t heard anything.
So, you can’t say if she is dead or alive?
No.
You didn’t see Sally Miller again until last year?
That’s right.
And you say you recognized her after all those years because she looked like some of your relatives.
I recognized her.
But you have no other reason to believe that this woman was the daughter of Daniel Müller than the supposed resemblance she bore to the family and the marks you mentioned. That is it, isn’t it?
Eva agreed.
So it went on for the rest of the morning. Grymes hounded her, ridiculing her claim to see the likeness of Sally Miller in her faded recollection of a three-year-old child. She suffered his attacks with a tired resolve. He scoffed at her answers, he rolled his eyes, he sighed in exasperation, but she wouldn’t be moved. Stubbornly, she maintained that she could recognize Sally Miller. She had found the moles on her legs. She was sure she was her goddaughter.
If you believed that Sally Miller had gone to Attakapas, why didn’t you search for her there?
How could I? I was bound to work for Madame Borgnette. I was tied to her. How could I go anywhere?
What year did you leave Madame Borgnette?
I can’t remember.
You can’t remember?
No.
Well, did you search for Dorothea or Sally after you left Madame Borgnette?
No, I was married. I mentioned about Daniel Müller to my husband. I asked him to make enquiries.
But he didn’t?
He told me that he had heard that when a keelboat returned from Attakapas, Daniel Müller and the boy had fallen out of the boat and were drowned. We asked the other Germans who came out on the same ships if they had heard of Daniel Müller’s children, but they hadn’t heard anything either.
And how long have you been married?
Twenty-four years.
Yet, for most of this time Sally Miller was at Mr. Miller’s mill, in this very city?
I didn’t ever go to Miller’s mill. I had never gone that far downriver, until about ten months ago.
Thank you, Mrs. Schuber, said Grymes. And with that Eva Schuber’s evidence ended.
Upton’s next witness was a thin man with a face made craggy from the sun and drink. Sally Miller had found him that morning in the Bayou Hotel in St. John’s and had shepherded him through the streets and up the stairs to the courtroom. He had been diffident about coming, but once there he seemed to delight in the attention. He was an old soldier, he told the court, come from the North with Jackson’s army and had fought in the Battle of New Orleans. That was nearly thirty years ago and he had stayed in the South ever since. He gave his name as Mr. A. M. Wood and he was a carpenter. He knew Sally Miller from over twenty years ago. He had first met her when he was employed by Mr. Miller to work at his mill.
When was that? asked Upton.
Would have been in 1821 and 1822. She was a domestic, serving at the table and the like.
Upton then asked the vital question: Did you ever hear her speak?
He screwed up his face. Yes, I did. She talked German.
That must have made you curious?
It sure did, replied Wood. So, I asked.
Who?
The lady who owned her.
Mrs. Canby?
That was her name. I asked where she had come from, and she told me the girl’s mother was dead and she was an orphan, and she had taken her on as charity.
I see, said Upton. Have you seen her since then?
I have, off and on around New Orleans.
And is she the same person you saw?
I know her. I know her to be the same girl.
How old was she, when you first met her? Grymes asked Wood in cross-examination.
She looked to be five, perhaps older, seven.
That was in 1821 or 1822, you say?
Yes.
And then you left Miller’s employment and went working over the lake?
Yes, that’s right.
But you came back to New Orleans in about 1824? You were no longer working for Miller by then?
No.
But you went to his mill from time to time?
Wood agreed. Why wouldn’t I go to Miller’s to buy timber? I’m a carpenter.
But you went there for more than that, didn’t you?
Wood didn’t answer. He began to look uncomfortable—he could see where this was heading.
You remember being told that they didn’t want you to come to the sawmill anymore?
Again Wood didn’t answer.
Go on, tell the court why they didn’t want you there anymore.
Wood looked around helplessly.
Yes, Mr. Wood? insisted Grymes.
They said it was because I was overfamiliar with the girl.
Ah-huh. Grymes stood with a slight smile on his face, his hands tucked out of sight behind his coat, his shoulders slightly stooped.
And who told you that?
It was Mr. Struve, the sawyer at the mill.
And what did he say?
He told me I was getting too familiar with that Dutch girl and had better keep away.
Grymes was too wily to ask what “too familiar” meant. He pretended to examine his notes while everyone wondered. Then, after waiting a few moments and without raising his head from his notes, he asked Wood what work this “Dutch” girl performed.
She waited in the house, sometimes she nursed visitors’ children, sweeping, looking after Mrs. Canby … things like that.
How old was she then?
She might have been nine.
Nine. Or perhaps five or seven, mused Grymes. That’s what you said earlier. Wood squirmed.
The first time you met this girl, she was waiting at the tables?
Yes, that’s right.
Although you never had your meals with Mrs. Canby and Mr. Miller? There was a second table, wasn’t there?
Yes. I ate at the second table.
With the blacks?
Yes.
And with this little girl you were overfamiliar with who might have been five or seven or nine?
She ate with us sometimes.
And the cook and the butler?
Yes, and some of the other white tradesmen.
And what was this girl called?
I think they called her Sally.
She was Mary, wasn’t she?
I knew her as Mary. They called her Sally, as well.
When did Mr. Struve say you were too familiar with this girl?
It might have been in 1825.
It was 1824 a moment ago.
It was the latter part of 1826 or 1827.
You’re not sure, are you?
Wood didn’t answer.
Grymes turned to Upton, challenging him to examine the witness further. Upton thought for a moment. Asking more questions would probably only make matters worse. No, he replied, he had nothing more for Mr. Wood.
The irony is that if Wood’s last recollection was correct, and he was warned off by Struve for being over-familiar with Sally Miller in 1827 or 1828, a little over a year later Struve himself got her pregnant. However, both Upton and Grymes avoided this topic. Grymes understood that the code of the South forbade asking questions about the identity of the white father of a slave child, and it couldn’t have helped Sally Miller’s cause for Upton to have raised side issues that reflected on the morality of his client.
Upton’s next witness was married to John Fitz Miller’s sister, and Miller was outraged that family should testify against him. “It is Nathan W. Wheeler to whom I have the misfortune, I may almost say, the disgrace, of standing in the relation of brother-in-law,” Miller was later to write. This “perjured villain … had been the recipient of my bounty for years. He and his family had long lived on my charity, and when it was no longer in my power, owing to my loss of fortune, to contribute to their support as liberally as in former days, he basely deserted his wife and child, who are thus thrown on me for their daily bread.”100
Miller might not have been so furious if Wheeler’s evidence had been inconsequential. However, it wasn’t. After telling the court that he had been living in New Orleans off and on since the spring of 1813, Wheeler then said that he had seen Sally in Miller’s possession in 1819 or 1820. This was quite contrary to Miller’s contention that he had never laid eyes on Bridget Wilson until Anthony Williams walked into his sawmill with her in August 1822.
Wheeler said his first sight of the plaintiff had been in Miller’s yard. He had asked Miller if she was white and Miller had told him she wasn’t. She had been left with other Negroes for him to sell. Although he had sold the others, Miller had said she was too white to be sold.
Did you see her after that? Upton asked.
Oh, yes. She was raised in the family.
Did Mr. Miller say who had left her with him?
I never meddle in family matters, so I don’t know anything else about her. I concluded from what Miller said that she was a quadroon.
But even now you think of her as white?
I may have expressed myself on the subject of her being white, when I heard of this affair. Her color rather surprised me at the time.
Did you ever hear her speak?
Wheeler shook his head. He hadn’t. He never paid much attention to that sort of thing.
Grymes began by asking how old this slave girl was when Wheeler first saw her. Wheeler though she was about seven or eight. What work did she do? The same as the others, replied Wheeler, common work, cleaning knives and forks, waiting on the table. She was called Mary, wasn’t she? Yes, he hadn’t heard her called anything else.
And Mary had a child who is now dead, didn’t she?
Wheeler agreed that she did.
He was named Lafayette?
Wheeler agreed with that as well.
You took this child to work on your property in Cincinnati?
I did. Mr. Miller lent him to us for a while.
Quite so. And how old was the child when you took him to Cincinnati?
Wheeler thought for a moment. About five or six. Yes, that would be correct. The child was named after General Lafayette, so he must have been born soon after the celebrations when Lafayette visited New Orleans in 1825.
Quite so, said Grymes again. He had no further questions.
Upton glanced across at his opponent. He wondered why Grymes had gone out of his way to establish Lafayette’s age. What relevance had that to the case? Upton couldn’t work it out and it worried him. He doubted if Grymes ever asked needless questions.
Upton had one more witness to round off the day. Mrs. Fleikener took the Bible and swore that she knew the infant Sally Miller. She was positive the plaintiff was the same person and she should know— she was family. Her first husband’s mother and the plaintiff’s father were brother and sister. She had lived about three miles from the Müller family, and when they began the journey to Amsterdam, they had all started together. In Holland she had seen Salomé every day for six months.
Grymes took her back to their time in Holland. Sally Miller was two years and two months, she said. They had traveled on different ships to America, and she had not seen Sally Miller when they arrived. Although she had lived in New Orleans for two decades, she had never heard of her. Yet, when she saw her at Eva Schuber’s house a year ago, she had instantly recognized her. Grymes smiled his encouragement at her powers of recall. It was because of her resemblance to her mother, she firmly declared. Sally had the chin of her mother.
With that the proceedings ended for the day. It was a Friday. Judge Buchanan’s court took a leisurely pace. He normally sat on only three, occasionally four, days a week. He announced that the case would resume the following Tuesday.
Back in their office the Upton brothers unpacked their bags and closed the door behind them. It had been an arduous two days. With any other judge they might have felt more confident. Buchanan hadn’t said much, but they both worried about what he might be thinking. They only had a few more witnesses to present. Three or four, and then finally Francis Schuber. That was it. Would it be enough? They weren’t sure.
There was some good news from Mobile. Mr. Breden had written to say that despite a conscientious search of records in the city, he had found no trace of an Anthony Williams. Nor had his name appeared in any census. Breden had also taken the trouble of speaking to a Mr. Davis, known around Mobile as “the original George Davis,” who was one of the oldest citizens in Mobile and knew everyone and whom everyone knew, and Davis was quite sure that no such person as Anthony Williams had ever lived in Mobile.
On Tuesday morning, Upton introduced yet another middle-aged German woman who recognized Sally Miller from twenty-five-year-old memories. She was Mistress Schultzeheimer, who explained that she was Salomé’s aunt by her first marriage. In Germany she had known the plaintiff’s mother, Dorothea, because they had attended the same school. She also knew about the moles on Salomé Müller’s legs. Once when they lived in Alsace, Dorothea had shown her the marks on her baby’s thighs. Mistress Schultzeheimer was a midwife and able to assure her that they were nothing to worry about.
How old was the child when you saw the moles on her legs? asked Upton.
About six months. Just a baby.
Have you seen those marks again recently?
Yes, I saw them again this morning—on the body of Sally Miller. They look like beans of coffee and they were the same today as when first I saw them.
This was one witness Grymes couldn’t shake. He challenged her claim that she had known Dorothea Müller, and even that she had come to America on the same ship. He asked her how many ships there were and who else was on board. He asked her about Dorothea’s sisters. He asked her where she lived when she first came to America. Mistress Schultzeheimer granted him nothing. He then suggested that she had spoken to Madame Hemm about the case. Or Mrs. Schuber. What about Mrs. Fleikener? No, she hadn’t seen any of them for a long time. Well, who brought her to court today? It was Sally Miller. She had collected her from her home and taken her to Mr. Upton’s rooms. She had asked Sally to show her the moles, but she had refused, saying that she could only look at them in her lawyer’s office. So it was in Upton’s office where she had seen them. Sally had lifted her dress. They were exactly as Sally’s mother had shown them to her all those years ago.
Grymes ran through his range of sighs and snorts, but Mistress Schultzeheimer stuck to her guns. They were the same moles. She recognized them. She had also recognized Sally Miller because of her looks. She knew her.
The next witness was less certain. All that Madame Koelhoffer could say was that Sally Miller looked like one of Daniel Müller’s children. Both Daniel Müller and his wife had that sort of dark complexion. Madame Koelhoffer also thought she looked like others in the family, especially Daniel Müller’s sister, Salomé Kirchner.
Mr. J. C. Wagner, who had spent six months on the Rudolph with the Müller family, told of traveling from Germany to America. About the only sting in his evidence was to mention that Grymes, in 1818, had represented the immigrants in their attempt to avoid having to serve time as redemptioners. Grymes had failed and they had been sold anyway.
Grymes made no attempt to defend himself. In fact, he saw no need to ask Wagner any questions. The immigrants may have suffered grievously on the journey to America, but that had nothing to do with Miller and Belmonti.
In the closing minutes of the third day, Francis Schuber took the stand. Upton took him through the now familiar tale of the horrors of the journey from Germany. Then Upton asked him if he remembered when Madame Carl had brought Sally Miller to his house. He certainly did. He had recognized her the moment he saw her. I said to my wife, Is that one of the two girls who was lost? My wife said she was.
At that, Buchanan called a halt for the day. The remainder of Francis Schuber’s evidence would have to wait.
The next morning, Schuber continued from where he had left off. Upton asked him about the day that Madame Carl had brought the plaintiff to his house.
We inspected her legs to see if the marks were there.
And were they?
Yes, they were.
What do you know about these marks?
They were often spoken of in my family. I heard my mother-in-law, who is now dead these twelve years, say that if ever the lost child was found, even if it was a hundred years, she could be identified by the marks on her body. The marks had been made by burns the child had received when she was five or six months old.
The last part of this answer stunned Upton. He asked Francis if he was talking about Sally Miller. He was. His mother-in-law had said that the girl had been held before a fire to keep her warm and sparks had burned her on her legs.
Upton quickly moved on. He asked Francis if he had seen the marks on Sally on the day Madame Carl had brought her to his house. No, he hadn’t, not personally. It was his wife who did the examination. He was in the bedroom, but they weren’t shown to him. But his wife had found them, all right.
In cross-examination, Grymes asked nothing about the marks on Sally’s legs. He was quite content to have them described as burns and he certainly didn’t want to give Francis the opportunity of changing his mind. Instead, he put it to Francis that he had no reason to believe that Sally was the child of Daniel Müller other than his recollection of her in Holland. Francis agreed. He also agreed that although he believed that Daniel Müller went to Attakapas, he didn’t know who had engaged him.
Grymes then asked a question as gentle as the slice of a knife through liver: Had he not expressed a great partiality toward one of the parties?
Francis replied that he took the part of the plaintiff because he knew her and he knew her to be in the right.
Well, pressed Grymes, when you heard of the death of Daniel Müller, with all your partiality for his children, why didn’t you go searching for them?
I didn’t know where to look. After us immigrants were sold, we were scattered like young birds leaving a nest, without knowing anything of each other. Most of us never kept in contact. There were so many people I never saw again. People who helped each other at Helder and on the boat—good, kind people who I never saw again. We talked a lot about what had happened to the children of Daniel Müller, but they had disappeared, along with the rest.
Upton had planned to call no further witnesses—that was until Francis Schuber had blurted out that his mother-in-law had said that the marks on Sally Miller’s legs were caused by sparks from a fire. The case certainly didn’t need that complication. Francis’s wife, Eva, had already been in the witness box and described them as brown moles and she had been backed up by Mistress Schultzeheimer, who had said they were moles the size of coffee beans—not likely to be confused with burn scars. If the nature of the marks was left in doubt, inevitably Grymes would suggest that they were burns, recently scorched into Sally’s skin in a desperate attempt to mimic those on the real Salomé Müller. Upton had seen the marks only briefly. In his office, Sally had sat on his desk and cautiously lifted her dress to let him examine her thighs. They looked like moles to him, but he couldn’t be sure. He wondered if he should take the risk of having Sally examined by Judge Buchanan; even going further and asking him to conduct a formal inspection of her whole body so that he could see for himself that there was no sign of African blood in her.
There were many cases in the law books of the South describing courtroom inspections of people claiming to be white. The usual procedure was for the claimant to stand in the well of the court under the gaze of the judge while their lawyer pointed out that their nose was thin and angular, or that their eyes were blue. He would ask them to bow their heads to display the straightness of their hair. Sometimes they would disrobe to show how pale their skin was. Next, physicians would come forward and provide opinions about the identifying features of the various races, and advise on what side of the line the claimant stood. It was a sideshow run by judges that drew idle people in as amused spectators.
Many who suffered this humiliation were free persons, and the issue was whether they could vote, or send their children to school, or carry a gun without a license, or be a witness in a court case against a white man. The court had to decide between those who were truly white, and those who merely looked white. To designate a person “visibly white” was to damn them. It meant that they wouldn’t stand closer scrutiny—there was a frizz to the hair, an unacceptable flatness to the nose, a thickness to the lips—all indicating that surging through the veins was tainted blood.
If you were “visibly white,” a reputed master wasn’t barred from asserting ownership, transmitted through a slave mother. One case, decided in Arkansas, illustrates the point. Thomas Gary, a sixteen-year-old, looked white. A Dr. Brown examined Thomas and said he could discover no trace of Negro blood in his eyes, nose, mouth, or jaws—his hair was smooth and of a sandy complexion, perfectly straight and flat, with no indications of the Negro curl. Thomas’s eyes were blue, his jaw thin, his nose slim and long. Dr. Brown’s expert view was that it would take at least twenty generations from black blood to look as white as Thomas Gary. Another physician, Dr. Dibbrell, said he would judge Thomas to possess a small amount of Negro blood, no more than one-sixteenth, perhaps not so much, and wouldn’t swear that he had any at all. Admittedly, his upper lip was rather thicker than in the white race, but in the doctor’s opinion he made up for that by having a sanguine temperament.
Thomas Gary related a harrowing story to the court of how, after his father had remarried, he was sent away to Louisiana, where he had been taken in slavery and offered for sale. Being white, no one would buy him, so he had been sent back to Arkansas and sold to a man named Stevenson. Initially, both his father and Stevenson were in competition to own him, but under slave law, Thomas’s father could have no claim, so he dropped out of the case.
At trial, Stevenson insisted that Thomas had African blood in him and this came from his mother, Susan, who was a slave. Stevenson then produced a series of witnesses who told the jury that they had seen Thomas and Susan together and she had always treated young Thomas as her son and he had gone to her as his mother. The testimony was damning. According to the court, the connection with his slave mother was “sufficient to repel any presumption of freedom” arising from the whiteness of his skin.101
In another case in Arkansas, a woman named Abby Guy and her four children, in an effort to sway a jury, displayed their feet. Abby looked white and her children looked whiter. Abby’s eldest daughter had been accepted into a white boarding school, went to the white church, and was invited to parties where she danced with white boys. Abby lived with a white man named Guy, and passed as Mrs. Guy, but when Guy died, her previous owner seized her and the children.
Abby Guy’s attorney called two doctors whose expert evidence was intended to distance her and her family from black people. The note of their opinion in the law report reads:
Dr. Newton —Had read Physiology. There are five races—the negro is the lowest in intellect. Some physiologists are of the opinion that in the head of the mulatto, there is some negro hair, and some white hair, and that the negro hair never runs out. It would not run out before it passed the second generation. It may in the third generation have waves. The color, hair, feet, nose, and form of the skull and bones furnish means of distinguishing negro blood or descent. The hair never becomes straight until after the third descent from the negro, from either the father or mother’s side. The flat nose also remains observable for several descents. Dr. Comer —Heard the last witness, and corroborated his statements.102
The jury, on this evidence, set Abby Guy and her children free. Their owner took an appeal to the Supreme Court of Arkansas, where on a technicality a retrial was ordered. At the second trial, “the plaintiffs were brought into court for inspection, and were permitted to pull off their shoes and stockings, and exhibit their feet to the jury against the objection of the defendant.” Again the jury freed them and again the slaveowner appealed. The Supreme Court recorded that the slaveowner’s counsel had argued “with much warmth of expression, that the court committed a gross error in permitting them … to exhibit their bare feet.” The court disagreed, soberly recording that: “No one, who is familiar with the peculiar formations of the negro foot, can doubt, that an inspection of that member would ordinarily afford some indication of the race.”103 Abby Guy and her children were declared to be free.
Upton hesitated to put Sally Miller through a similar procedure. It would be a risky business to ask Buchanan to examine her and draw his own conclusion, and even if he agreed to take part, he was hardly qualified to be able to distinguish between a burn and a mole. Moreover, just presenting Sally for inspection would create an adverse impression—to someone like Buchanan, a white woman of repute would never participate in such a demeaning presentation.
Upton dithered. He decided to wait and see how the defense case proceeded. He told the judge that the issue of identification of the marks on Sally Miller was yet to be addressed. He would discuss the issue with Mr. Grymes and, if need be, return with further evidence. With that, he closed his case.
It was now time for Grymes to show that Sally Miller was a slave.