The question of freedom should be determined, like every other question made before the courts, solely upon its legal aspects, without partiality to an applicant for freedom, because he may be defenseless, and a member of an inferior race, and certainly without prejudice to his kind and color, and without regard to the sincere convictions that all candid, observing men must entertain, that a change from the condition of servitude and protection, to that of being free negroes, is injurious to the community, and more unfortunate to the emancipated negro than to any one else.
Justice Fairchild, of Arkansas, indulging in mixed messages104
In Grymes’s hands, the trial wasn’t about freeing a white woman from slavery; it was about defending the reputation of a Southern gentleman. Not forgetting his mother, now in her nineties, named by implication as an accessory to the charge leveled against her son. Both of them had been brought low by the accusation of their own servant—an olive-colored quadroon, a woman they had cared for and raised from childhood, a slave intent on destroying them both. The injustice of this petition, declared Grymes in his opening address, was that Miller had been placed in the position where a slave was forcing him to explain himself. Make no mistake, that was the practical result of this petition, Grymes told Judge Buchanan.
This woman has made wild allegations that, in effect, said to Mr. Miller: “Now that I have ruined your reputation, it is up to you to clear your name.” Mr. Miller, in defending himself, has had to reach back over two decades looking for evidence of his ownership of someone who had, without complaint, protest, or opposition, been his servant since 1822.
Grymes then asked Buchanan to set aside any feelings of sympathy he might have for the fond beliefs of people who have managed to see a German woman in a common slave—too much was at stake for that. Nor should His Honor be swayed by compassion for someone who might look white. The petition must be decided according to the tenets of impartial justice. Even His Honor’s natural concern that the honor of the South was under attack for enslaving white people should be set aside. It was the facts that should decide this case. And the facts, declared Grymes, were emphatically on the defendant’s side.
One of Grymes’s junior lawyers handed him a document tied in red tape. Grymes unfolded it and held it in the air. Mr. Miller, declared Grymes, being forced to defend himself, was now in a position to do so. This document was the power of attorney executed by Anthony Williams giving Mr. Miller the right to sell a twelve-year-old slave named Bridget Wilson.
Grymes read several excerpts showing the detail of the transaction. It was dated August 13, 1822, he said, as he handed it to the sheriff to pass up to the judge. Your Honor might see that it is witnessed by two notaries. I now announce that both of these men shall give evidence in support of what that document says.
Grymes held up a second document. It was a receipt for one hundred dollars, dated the same day, recording that Miller had paid that amount to Anthony Williams. Grymes pointed out that it was signed by both parties, and again witnessed before a well-known notary of the city. The notary would also give evidence. Grymes picked up a third document. It was the bill of sale of slaves whereby Mrs. Canby in 1834 had sold Bridget and her children, Lafayette aged five, Madison aged three, and Adeline aged fifteen months, to Mr. Miller for three hundred and fifty dollars. Grymes handed the receipt and the bill of sale to the judge. Over the next few days, said Grymes, His Honor would see the mosaic fall into place, piece by piece, showing how Mr. Miller had obtained the plaintiff. He would see a chain of ownership from Williams to Belmonti, each link beyond reproach. The plaintiff was born a slave. She is a slave, and at the end of this case, Grymes assured the court, she will remain a slave.
He announced his witness list, all people who knew Mr. Miller and were anxious to come and speak on his behalf: Mr. G. Pollock and Mr. C. Pollock, both notaries public; General Lewis; Mr. Emile Johns, the well-known composer of the city; Mr. C. Hurst, notary public; Mr. W. Turner, a respected businessman in the city; Mr. C. F. Daunoy, a well-known attorney; Mr. H. B. Stringer, a commissary of the Third Municipality. This was the calibre of the people who were prepared to speak on behalf of his client.
Grymes began by calling the man who had witnessed the power of attorney of Anthony Williams. He was Mr. George Pollock, port warden of New Orleans. Pollock’s evidence was less helpful to Miller’s cause than might have been expected. He recognized his signature, all right, but couldn’t remember actually signing it. Nor could he remember meeting this Anthony Williams. Grymes showed him the place where a Mr. Cornelius Hurst had also witnessed the document—did he know him? Yes, of course. He was a colleague of his, and yes, that looked like his signature. Grymes handed Pollock the receipt from Anthony Williams for one hundred dollars. Did this jog his memory of Williams? No, not really. Pollock couldn’t recall ever seeing that document either.
Pollock was of more assistance to the defense when asked about his recollections of Bridget Wilson. He had seen her on visits to Miller’s house for a year or two before 1824, and he had watched her forming into womanhood. She was, he told the court, well developed for a twelve-year-old. He had spoken to her several times, but couldn’t detect a foreign accent. He took her to be a quadroon. She would accompany Mrs. Canby wherever she went, and he saw them on occasion shopping together in the city. He and Miller were almost inseparable during those years and they regularly rode together. Miller was thought of as a man of wealth with a great many slaves. He was highly indulgent to them. And for that matter, so was his mother. She was a very kind woman, and he was personally aware that Mrs. Canby raised some orphan white girls. Miller entertained lavishly. There was so much company in the Miller household in those days that it was difficult to keep track of everyone. Pollock recalled that over the years the plaintiff had given birth to several children, the first having been born immediately after the visit of the Marquis de Lafayette to the city. Up to 1825, he had never heard of Miller having business interests in Attakapas.
Pollock then told the court that he had seen Bridget several times after Louis Belmonti purchased her. This was because he had a daughter at the Ursuline Convent and, when he picked her up after school, he would see Bridget standing in the doorway of Belmonti’s cabaret. She was well dressed, and on the couple of times he chatted with her, she seemed content. She had never complained about her treatment, and not once had she said she shouldn’t be a slave.
Pollock hadn’t been the stellar witness that Upton had feared. Williams remained a ghostly figure. It was more than Upton could have hoped for, and he felt he need ask only a few questions in cross-examination. He again got Pollock to declare that he had no recollection of witnessing the power of attorney—all he could say about it was that it bore his signature. Was the slave girl present when the document was signed? Upton got the answer he was hoping for: Pollock couldn’t remember that either.
On reexamination, Grymes asked Pollock if it was his practice to have slaves before him just because they were mentioned in a document. Pollock said it wasn’t.
The next witness, Emile Johns, was a seller of sheet music and a book publisher, and it was his firm, E. John & Co. of Stationers Hall, New Orleans, which, in 1838, had brought out Upton’s book, The Civil Code of the State of Louisiana with Annotations* Johns said that upon his arrival in New Orleans in 1818, Miller had engaged him as the family music master. They became friends and hardly a day passed when he didn’t call in on Miller to chat. Miller had since fallen on hard times, but twenty years ago Miller had had many slaves and, in Johns’ opinion, was too good a master and spoiled them. Johns first saw Sally Miller around Miller’s house in 1822 or perhaps 1823. She appeared to be between ten and twelve. He took her to be a quadroon. He hadn’t paid much attention to her except to ask her to get a coal to light his cigar but, from what he could hear, she didn’t have any sort of accent. In his hearing, she was always called Mary.
Johns also said that the first time he was aware that Miller had an interest in a plantation in Attakapas was six months ago, when Miller invited him to visit. If Miller had owned property in Attakapas between 1818 and 1825, he was sure he would have heard of it.
Upton’s cross-examination was brief. He asked him if he didn’t consider Sally Miller too white to be a slave.
He disagreed: I considered her a quadroon, because she had the color of a quadroon.
But you said you didn’t pay much attention to her?
That’s right, I didn’t.
So, you didn’t think about her color?
I didn’t think about her at all.
So, why did you think she was a slave, when she was so white?
Because she was always among the slaves, I never thought of her other than as a slave.
Buchanan took a break for lunch. Upton freed himself from Sally Miller and her backers and hurried away to a small room adjacent to the court reserved for the legal profession. He slipped the latch on the door. He had some thinking to do. The way in which Grymes planned to conduct the defense was now apparent: like a skilled craftsman whittling away, Grymes intended to carve out a victory by calling a string of well-connected friends of Miller to say that they knew Sally when she was Mrs. Canby’s servant and that in their view she was a slave. Grymes knew his judge, and he was counting on Buchanan buckling under the weight of consistent opinion from the cream of New Orleans society. Upton struggled with what he could do about this. It seemed to him that a scattergun attack on the credibility of each witness would achieve little. What he needed was a consistent approach that would allow him to ask similar questions of all Grymes’s witnesses so that he could emphasize to the court his fundamental and strongest point: that they only thought her a slave because Miller had led them to believe it. After several minutes of thought, he jotted down a theory of the case. It was this theory that molded his cross-examination of the witnesses to come. To each of them he would put a similar series of questions: Did they agree that Miller and his mother treated Sally Miller as a slave? (Of course, they did.) And the reason they regarded Sally as a slave was because she was treated as such by Miller and his mother? (He expected them to say yes.) Well, then, he would ask, didn’t that mean that if Miller and his mother had treated her as a white person, they would have seen her as a white person instead. (Here Upton would hold his breath, hoping for agreement.) And the culmination of his theory, which he would put to Buchanan in his final address, was that because everyone treated her as a slave, Sally Miller, a helpless orphan-child, believed it herself. Thus, the circle was complete. This was how Miller had subdued her into bondage.
The next witness, Carlisle Pollock, said he had known Miller and his mother since 1812, and had been employed as their notary. To his knowledge, Miller hadn’t acquired property in Attakapas until 1837 or 1838. He also gave evidence of seeing Sally in Miller’s family at about the time she was acquired by Mrs. Canby. He hadn’t observed any accent in her speech. From her appearance, he thought that she was colored, a mixed blood.
But, insisted Upton, if you had seen her among whites, would you not think she was white?
Pollock paused. I can’t really say. The problem is that in New Orleans there are many white people of dark complexion and many colored people with bright complexions.
But what do you say is in the features of the colored persons to denote them as such?
It’s hard to put your finger on it. But you can tell the difference. People who live in countries where there are many colored persons acquire an instinctive means of judging that cannot well be explained.
Are you saying that it is instinctive? Is that how you tell?
Well, yes. In some cases, peculiar features stand up when people have black blood.
Did you see any peculiar features in the face of the white girl you saw at Miller’s sawmill that would have induced you to believe her a colored woman?
This was a question that Mr. Pollock was unwilling to answer. He avoided it by saying that he had no cause to impress her features on his recollection.
Grymes felt some repairing had to be done. He asked Pollock whether, in his experience, people who look white were often not.
Pollock readily agreed. He had seen persons whom experienced men would have taken for white, but whom he knew to be colored. There were also many colored persons in New Orleans who looked like those in white families.
With the question of color now well and truly muddied, Grymes left it at that. Pollock was the last witness for the day. Tomorrow, announced Grymes, he would start with General Lewis.
Upton by this time had accepted that it was unlikely that he would be able to show that Miller owned property in Attakapas in 1818. The evidence presented so far suggested strongly that Miller hadn’t begun to purchase lands there until at least a decade later. To Upton’s mind, this was but a minor blemish. He had convinced himself that ultimately it didn’t matter how Miller had obtained Salomé Müller. The essential point was that, through a number of eye identifications by those who knew her, and the presence of the marks on her legs, he had sufficient proof to show that Sally Miller was Daniel Müller’s daughter. Added to this was the failure of Grymes to produce Anthony Williams, or even to explain who he was. And when Grymes’s own witnesses, who had supposedly signed the power of attorney, failed to remember anything about it, he and the German supporters of Sally Miller took it as an article of faith that Miller, after creating the Williams story, had forged the power of attorney, the receipt for one hundred dollars, and the signatures of the two notaries.
Meanwhile, both legal teams realized that something had to be done about identifying the marks on Sally Miller’s legs. Were they burns or natural blemishes? Grymes complained to the judge that Upton’s witnesses had spoken about them for days, yet no one from his side had ever seen them, and they couldn’t even be sure they existed. Upton conceded the point. The next day, before General Lewis gave evidence, he announced to Judge Buchanan that, following discussions with his opponents, agreement had been reached on how to ascertain the origin of the marks. It was proposed to have Sally inspected by a doctor and a report prepared stating their cause. Buchanan agreed to the proposed course and signed an order for the medical examination to proceed.
Yes, he was familiar with Mr. Miller, said General Lewis in response to Grymes’s first question. He wasn’t acquainted with Mr. Belmonti, though. He had known Mr. Miller intimately for twenty-five or twenty-six years. And the plaintiff? He had known her for about twenty years, although he had never heard her called Sally Miller. “Mary” was the only name he knew her by. He had seen her off and on over the years at Mr. Miller’s house. When he first saw her she was forming into womanhood, and that was before 1824. He was able to be precise about the dates because he was chosen by the state to carry the votes to Washington for the presidential elections of 1824. When he returned in 1825, Sally was in the family way after she had started living with one of Mr. Miller’s colored boys. His name was Yellow Jim, and he looked to be as white as Mary.
What was the reputation of Mr. Miller and Mrs. Canby as to how they treated their slaves? asked Grymes.
At that point, Lewis searched for the woman who was causing all the trouble. After finding her seated next to Eva Schuber, he looked carefully at her for a moment, then frowned. He returned to the question. Miller is a kind and indulgent master, he said. In fact, too much so, in my view. All his slaves were fond of him. And Mrs. Canby is one of the best, most matronly ladies I know. She is very respectable and charitable. She is welcomed in all the respectable families in New Orleans and is forever sending little presents to her friends in the city. She often visited my father. When I knew her she was still living in New Orleans and was always ready with an offer of charity whenever her services were needed. She raised many young ladies in her house; one, I remember in particular, became Mrs. Parmly. I attended Mrs. Parmly’s wedding to Mr. Parmly, a dentist in the city. I am, of course, talking about twenty years ago. Miller was rich, then. He had many slaves and a thriving business. Since then, he has become something of a recluse. His loss of fortune hit him hard.
Did you ever hear the plaintiff speaking?
Yes, frequently. She came to my father’s house on errands, delivering things from Mrs. Canby. And when Mrs. Canby visited, she would often come with her. She was Mrs. Canby’s companion.
How did she speak? Was there anything unusual in her speech?
Not at all. I have no recollection of her speaking with any accent other than that of a colored American servant. There was nothing unusual about the way she spoke.
But she was treated as a slave?
Well, she was, but she was also treated as a favorite. Because of her light complexion, I suppose. Everyone who came to the house treated her well.
Even you? You treated her as a colored girl?
I hadn’t the least suspicion that she was other than a colored girl, until this court action was brought. Just a few days ago, when I called in to observe this hearing, I spoke to the plaintiff and she told me that she had discovered she was white.
What was your reaction to that?
I was surprised; until then, I had also thought her colored. She also said to me that she was sorry she was obliged to bring the suit.
After Grymes had concluded his examination, Judge Buchanan asked several questions of Lewis. When he had seen her in the latter part of 1823, or 1824, could he positively say that she was over ten?
But Lewis wouldn’t be led. No, he really couldn’t say how old she was. Her breasts were formed, or forming, but the girl might have been precocious for her age. He found it impossible to exactly state her age.
But, I take it you thought her colored?
That’s right. As I said, I had no suspicion that she was anything other than a slave. If she had been considered white, it would never have been permitted that she live as the wife of a colored boy. I, for one, wouldn’t have countenanced a connection of that kind, either then or now, had I known of it.
It was Upton’s turn. Isn’t it the case that you had no reason to believe that the girl was a slave other than the fact that she was in Miller’s family as a slave, and treated as such?
Lewis considered his answer for some time. Yes, I would agree with that.
Upton had struck gold. He continued to mine it: And if you look at her now, sir, is there anything in her appearance that would lead you to believe her colored?
For a second time Lewis looked long at the plaintiff. She is as white as most persons, he replied. But then, he added, but then, I have seen slaves as light a color as she.
Lewis appeared dissatisfied with his answer and was about to say something more, but stopped himself. Upton waited for him to continue. Lewis shook his head. No, that was all.
One brick at a time, Grymes attempted to wall Sally Miller in. After Lewis had departed, he called two further witnesses to give weight of numbers to evidence already presented. Charles F. Daunoy, attorney at law, said he rode regularly with Miller in 1822, 1823, and 1824. He had met the plaintiff many times and it had never come into his mind that she was German. She looked a quadroon to him, and she spoke much as did other servants around the house. He never knew the girl by any other name than Mary.
Mrs. Kopman was a friend of Mrs. Canby and for several years had lived with her. She recalled that the first time she had seen Mary Miller was in 1825. Mary had been scrubbing the front steps of Mrs. Canby’s house. Mrs. Kopman thought she looked about fifteen or sixteen, and she was pregnant. A few months later she had given birth to a boy. Mrs. Kopman said that she had many conversations with Mary. She had no German accent. Once, Mary had told her she was of the Indian breed and had been brought here by a Negro trader from over the lake.
Mrs. Kopman’s evidence that Mary had said that she had come from “over the lake” was later seized upon by both sides as confirming their account of how she came to be in Louisiana. To the Germans, it was a faint memory of the voyage across the Atlantic; to those on Miller’s side, it was a recall of sailing through the Gulf islands from Mobile to New Orleans. It was a case of more evidence resolving nothing.
On the other hand, the allegation that Mary had said she was “of the Indian breed” wasn’t taken up by either party as being of significance. Indian descent didn’t guarantee freedom. The first slaves in Louisiana (as in the rest of colonial America) were Native Americans, not Africans, and although both the Spanish and the American authorities passed laws prohibiting the enslavement of Indians, those already in slavery, and their descendants, weren’t released. Descendants of Indian slaves, and Indian-African slaves, continued to be held in Louisiana, right up until the Civil War.105
Before proceedings got under way after the luncheon adjournment, General Lewis stood up and announced to Buchanan that he wanted to add to his evidence. Everyone in the courtroom looked at him in surprise, but no one stopped him when he strode to the witness stand. There was a lull of curious expectation as Mr. Gilmore swore him in. Yes, what is it, General? asked Buchanan. All craned forward to hear him speak. What he wanted to add, he said in a soft, clear voice, was that the other day, as Mrs. Schuber was giving evidence, he had been struck by a remarkable resemblance between her and Sally Miller. Then, a little later he had seen another young woman, a member of the Müller family, sitting next to Sally. Again, he was struck by the resemblance. It had caused him to think. Perhaps he was wrong about his earlier evidence. He had always thought the plaintiff had something resembling the colored race in her features, but he might have been induced to that belief by the fact that he had always seen her associating with persons of color.
There was a deep silence in the room as the judge, counsel and spectators took in what Lewis had said. Miller’s own witness had turned against him!
That was all I wanted to add, said Lewis.
Grymes half rose from his chair, ready to insist on the right of examination, but then he paused. What would a cross-examination of Lewis achieve? Lewis was not a man to be broken down by artful questions, and Grymes had no doubt that he had wrestled long with his conscience before deciding he must give further evidence. Grymes resumed his seat, and in a showy display of contempt waved his hand in dismissal of Lewis’s evidence. I have no questions for this man, he said.
Judge Buchanan frowned for a moment, then thanked the witness. The general stood up and, carefully avoiding eye contact with anyone, strode through the hushed courtroom and out the door.
Lewis’s evidence was a dramatic moment of betrayal of Miller’s cause. The man who had been his friend for a quarter century, the man in whose evidence he had set most store, had let him down. Miller sat in the court stunned by what he had heard. He looked across at those supporting Sally Miller and saw them whispering to each other. Some glanced towards him, gauging his reaction. He would give them nothing. He averted his eyes and looked directly ahead.
To Upton, it was the breakthrough he had been praying for and a vindication of his theory of the case. From that moment on, all of his doubts vanished. Even hidebound, conservative, prejudiced Buchanan must now see that Sally was white. Perhaps Grymes might argue that Lewis’s opinion of Sally Miller’s whiteness carried no more weight than anyone else’s, but Lewis wasn’t just anyone else, and the lawyers on both sides knew it. General Lewis was one of New Orleans’s most distinguished citizens. His father, the late Joshua Lewis, had been a judge for the Superior Court of the Territory of Orleans. Buchanan would have known the family well.
However, Grymes wasn’t done yet and his next witness was to be as damaging as any he had previously called.
Mr. Joachim Kohn was a shopkeeper who ran a dry goods store in Chartres Street. He had a clear recollection that almost twenty years ago, one of his regular customers was Mrs. Canby, who would arrive in a carriage accompanied by a slave girl called Bridget.
Grymes asked him how Mrs. Canby treated Bridget. As a servant, he said. She treated the girl kindly, but as a servant. In my view, she was a quadroon.
Kohn said that he had plenty of opportunity to hear Bridget speak, because sometimes she would come by herself carrying messages from Mrs. Canby about what she had to purchase. There was nothing Dutch or German in her appearance, or in her accent; if there had been, he, being German himself, would decidedly have observed it.
And, inquired Grymes, what was her color like, compared to some of Miller’s other slaves?
It was a question designed to inject a tincture of black blood into Sally Miller’s veins, and shopkeeper Kohn was prepared to assist. Miller had several servants who were whiter than that girl, he replied. One of them Miller owned even up to the present day.
Upton tried the same approach with Kohn as he had with every other defense witness. It was true, wasn’t it, that his only reason for believing Sally to be a quadroon was because she was treated as a slave? Amazingly, Kohn agreed. Upton then challenged him on the assertion that Miller was holding another slave even whiter than Sally Miller. It’s true, maintained Kohn. I’ve met him, and his name is John Pickett and he lives with Miller in Attakapas.
So little did each side trust the other that two doctors were required to inspect the marks on Sally Miller’s legs. The plaintiff chose Dr. Warren Stone, who was professor of surgery at the University of Louisiana; Miller chose the equally distinguished Dr. Armand Mercier, a graduate of the College of Louis le Grand in France. Both were somewhat overqualified for the simple task they were being asked to perform—in the words of the court order, “to examine the moles or marks upon the thighs of the plaintiff and to report in writing to the court on or before the 11th June on the nature, appearance and cause of the same.” The inspection, the parties agreed, would take place in a room above the courtroom on June 4.
Meanwhile, the defense case ground on, Grymes calling witness after witness, each confirming the other: they hadn’t seen Mary Miller in Miller’s possession earlier than 1822; no one had heard her speak with a German accent; she had never complained about being a slave; as far as they knew, Miller never owned land in Attakapas earlier than 1830.
The other witness to the power of attorney, Cornelius Hurst, gave evidence. He recognized his own signature, but he had no recollection of this particular document. Nor did he recall anything about Anthony Williams. But then, it was over twenty years ago.
William Turner said that he had been Miller’s partner for three years, between 1834 and 1837. He now ran a rival sawmill down on the levee. Turner said he had run into Sally Miller about eight or nine months ago, wandering below the French Quarter, in the Faubourg Marigny, and had asked her what she was doing there. She had told him that she was a free white woman. That had somewhat surprised Mr. Turner, because when he had met her in 1834, she had called herself Mary Brigger, from the name of the colored boy she was living with, and had several slave children underfoot.
Another witness, Mr. H. B. Stringer, a commissary of the Third Municipality, said he had lived for almost two years with Miller, from 1834 to 1836. Seeing that she was so very white, he had once asked Mary where she was from. She had replied that she came to the country young, and believed she came from Georgia, or Mobile in Alabama. Stringer said he had no doubt that she was a slave—he had only asked her the question because her light color had excited his sympathy.
After rejecting Sally Miller’s request to be a witness for her, Daphne Crawford appeared in court to give testimony on Miller’s side. The laws of Louisiana, although allowing free men and women of color to give evidence, required that on the court record they be designated as f.m.c. or f.w.c.*, the intention being to warn juries and judges not to give their testimony the same weight as the word of a white person. Madame Crawford recounted how, during the summer of 1822, Miller had paid her to nurse a little girl named Bridget who was suffering from yellow fever. Bridget had told her that a man had brought her to New Orleans from Mobile.
Upton asked the witness about Bridget’s color.
She was no fairer than me, said Crawford. When she had the yellow fever she looked white, but when she recovered she was darker.
She looked like a white person?
I never thought Bridget was anything but a mulatto.
It wasn’t the answer Upton wanted. He persisted. But when you first saw her, what did she look like?
She looked sunburned, but when she recovered from the yellow fever, she looked no clearer than I do. She looked dark.
Opinions of this sort needed rebutting and Upton found, of all people, a slave trader to do it. Mr. A. Piernas had acted as the broker for Belmonti in purchasing Mary from Miller in 1838. Although the defense hadn’t completed its evidence, Buchanan allowed Upton to interpose Piernas’s testimony. Piernas told the court that Belmonti had commissioned him to approach Miller to see if he would sell Mary. He said he had always known that Mary was Miller’s slave, but he had an opinion of his own.
And what was that? Upton asked.
She didn’t look like a colored person to me. I know my slaves, and I never observed anything in her face which resembled the African race.
To which, Grymes asked only one question: That is a mere opinion of yours, isn’t it, and not based on any fact you can bring to this court?
Piernas agreed that was the case.
Belatedly, and as his final witness, Grymes produced someone who was able to bring Anthony Williams into the proceedings, although, it must be said, not in a totally convincing way. William Johnson said that he was crippled during the war against the British, but in 1823, when he was still working as a carpenter, he had placed orders for timber at Miller’s sawmill. He saw the plaintiff there and he thought she was about twelve or thirteen. She spoke English fluently enough. One day he asked her where she had come from, and she told him Mobile. She had been brought to New Orleans by Mr. Williams, who had sold her to Mr. Miller.
Upton’s cross-examination hardly helped his cause. He challenged Johnson on his recall that Sally Miller had ever mentioned Williams to him, only to have Johnson repeat the claim, and then add that she had mentioned it to him many times. Upton asked him if Sally spoke with an accent, only to be told that he never knew Miller to have had a Dutch girl in his family. If he’d had one, he would have known about it, he said. He knew all Miller’s house servants. There was another one called Mary—a tall quadroon girl, just as fair as the plaintiff and with hair just as straight.
So, the case drew to a close. Grymes announced that he had no further witnesses. There was only one more piece of evidence, and that was the doctors’ report.
On the following Tuesday, Sally Miller, escorted by Eva Schuber, presented herself at the old Presbytere building. The two women followed the sheriff up the stairs, through the crush of lawyers and litigants, past the courtroom that was now so familiar to them, to steps that led to the third floor. They waited nervously on a bench for half an hour until Drs Stone and Mercier arrived. Sally was immediately beckoned inside one of the rooms. Eva was told to stay where she was.
The next day, Upton received a message from the clerk of court that the doctors’ report had been filed. Did he want to look at it? Upton hurried to the courthouse. With a broad smile on his face, Mr. Gilmore handed the report to Upton and watched as the lawyer untied the tape around the cover sheet. Upton read it quickly. It couldn’t have been better. The doctors had written:
We, the undersigned … did, on the 4th June, proceed to a room situate above the court, examine the said Sally Miller and did find:
1. On the middle of the internal part of the left thigh, a mark of the size of a lentil, of an irregular form, of a brown color, and presenting on its surface three small nipples of a deeper color, with strong and black hair.
2. About the superior third of the right thigh, a mark presenting a slight prominence on the skin, of the size of a coffee bean, of an oval form, being composed entirely of small protuberances of about the same dimensions of a blackish color, in one word, resembling a blackberry.
Conclusion
1. These marks ought to be considered as Navi materni.
2. They are congenital, or in other words, the person was born with them.
3. There is no process by means of which artificial spots bearing all the characters of these marks, can be produced.
New Orleans, 4th June, 1844.
Mercier, D.P.
W. Stone, M.D.
When Eva Schuber came to Upton’s office the next day, he showed her what the doctors had written. It can’t be challenged, he assured her. Grymes and Miller had to accept that the moles had been with Sally from birth. It was very good news. The case was almost over. The evidence was all in. He would present his final arguments on Tuesday, Grymes would reply, and then it was finished. They had done their best. Then it would be up to Judge Buchanan.
Not quite. Eva said that she had another witness for him. She went outside and ushered a middle-aged man into the room. She introduced Upton to the son of Locksmith Müller, a cousin of Salomé Müller. A farmer, Upton judged from his appearance. He now lived in Mississippi, she said, but just by chance he was in New Orleans for a few days. His name was Daniel Müller. Eva’s two sons had taken Daniel to meet Sally Miller at her lodgings in Lafayette only the previous night and he had recognized his cousin the moment he had set eyes on her. He had to give evidence, she said firmly. He could talk about the moles as well.
Upton explained the difficulties. The testimony part of the case had ended and Grymes would be sure to oppose any attempt to enter further evidence. It would then be up to Buchanan, and he might not allow it. But he could try, couldn’t he? Well, it depended on what Daniel had to say. Was his evidence worth the effort?
Upton spent several minutes talking to Daniel Müller. He seemed smart enough and he was convinced that the woman he had seen the previous evening was his cousin. Perhaps his evidence might help if Buchanan was still undecided. Anyway, it couldn’t hurt. Upton told Eva to bring Daniel along when the hearing resumed and he would see what he could do.
Upton spent the next few days preparing his final address. As he read over what he had written, he became even more convinced that victory must be theirs. It wouldn’t matter if Buchanan refused to hear Daniel Müller. He was sure that they had made their case as it was.
As Buchanan took the bench, Upton readied himself to ask for leave to introduce Daniel Müller’s evidence, but in a moment of hesitation, the opportunity was lost. Grymes was on his feet. Upton was surprised to hear that it was his opponent who wanted to reopen. He had some vital, important, new evidence, which must be heard if justice was to be done. Grymes handed Buchanan a deposition from John Fitz Miller. He explained that it had been composed only that morning— as a matter of utmost urgency. Of course, he had a copy for his opponent, and with a gracious bow, he placed it in Upton’s fingers. It was half a page in length, written in Miller’s hand and in evident haste. Since his counsel had “announced the closing of the evidence,” Miller had written, he “had discovered that the first child of the plaintiff was baptised and a record of it exists.” Annexed to the affidavit was an extract of the Register of Baptism from the St. Louis Cathedral of New Orleans.106 It was in French. As Upton struggled to understand what it said, he had his ear cocked, listening to Grymes explain that a Mrs. Labarre, the godmother to the baby, was waiting to give evidence, if His Honor so allowed. Grymes turned to point to an elderly, colored woman sitting on a bench behind him.
Upton looked at the document in confusion. Where was this leading? Grymes guided Buchanan through the contents of the extract. It showed that within the archives of the church could be found a record of the baptism of a boy named Jean, to a mother named Marie, a quadroon enslaved to John Miller. The godmother was, as Grymes had suggested, Rosalie Labarre, and the godfather was someone called Célestin Médecin. The child was born on December 29, 1825, and the baptism took place on May 9, 1826.
Perhaps so, but it still made no sense to Upton. What did it have to do with the case? Who was Marie? Who was Jean? The vital paragraph of the certificate read:
L’an 1826 et le 9 de Mai a été baptisé Jean, né le 29 Décembre 1825, fils naturel de Marie, quarteronne, esclave John Miller, le parrain a été Célestin Médecin et la marraine Rosalie Labarre.
Presumably, Grymes would argue that “Marie, quarteronne, esclave John Miller” was Mary Miller. Her child, according to this, was Jean.
Buchanan was also puzzled. Grymes assured him that Madame Labarre would explain all. It would only take a few minutes, and she was ready to take the stand. Upton objected, his main point being that evidence coming from a public record, as this obviously was, should have been found by the defendants earlier and presented before they closed their case. Even as he spoke, he could see it was a lost cause. Buchanan wanted to know more about this cryptic new document that Grymes thought was so important.
Madame Labarre was noted in the court record as being a free woman of color. Under Grymes’s guidance, she told the court that in 1825 she lived in the area in the front of Miller’s sawmill. She knew Mary Miller very well. She was made the godmother of Mary Miller’s child during a baptism at the St. Louis Cathedral. The godfather was Célestin Médecin. He now lived in Mexico.
Grymes asked her to explain who Jean was. The explanation was simple. Jean was Lafayette. The vicaire of the cathedral had said he couldn’t be baptized Lafayette, unless they had the general’s permission, and of course they couldn’t get that, so he had to be Jean.
This was all Grymes had to ask. He thanked her and turned to Upton for his cross-examination.
Even as he was getting to his feet, Upton began to realize the implication of this woman’s evidence and it horrified him. He paused, his mind racing in several directions at once. He needed time to think. Looking up at Buchanan, he asked for a short adjournment. He needed to consider what Grymes had sprung upon him. Buchanan, now beginning to appreciate where Grymes had led the case, agreed.
Upton sat at the bar table, took a deep breath, then counted the years off on his fingers. There was no getting away from it. If Madame Labarre’s evidence was allowed to stand, Sally Miller had given birth to Lafayette at around the age of ten.
Upton instantly understood the dreadful problems his case now faced. A succession of his own witnesses had sworn that Salomé Müller was either two or three when she arrived in New Orleans in March 1818. His chief witness, Eva Schuber, had claimed she was aged two years and three months when she left Alsace in the spring of 1817. This made her ten when she had Yellow Jim’s child and perhaps nine when he was conceived.
He knew that Grymes would claim that, as a matter of accepted biological knowledge, it was most unlikely that a child of such tender years would be capable of giving birth—unless she had black blood in her veins; it being a matter of common knowledge in the South that Negro women were much more sexually precocious than white women. Wasn’t it everyone’s experience that slave girls had babies while they were still children themselves? The heat of Africa had made women fertile at an earlier age.
Grymes would then point out that Miller’s witnesses had said that Sally Miller was twelve when Anthony Williams left her with Miller in August 1822, making her fifteen when Lafayette was born. Surely, this was the more likely scenario. The only logical conclusion to draw from the disparities in their ages was that Salomé Müller and Sally Miller were not the same person.
Upton took Sally into the corridor outside the courtroom. Well, was it true? he asked. No, it wasn’t, she replied. Lafayette was born much later than 1825. She couldn’t say when, but it was much later. He was never called Jean. The midwife at Lafayette’s birth was Madame Bertrand and she would confirm what she was saying. She would know when Lafayette was born, because she kept a book of all the births she attended.
Well, what about the baptism? Upton asked. She had never been to any baptism for Lafayette, she replied. She knew nothing about him being baptized. Upton examined his copy of the certificate. There was nothing to suggest that either she or Yellow Jim had been present. He recalled Rosalie Labarre’s evidence—she hadn’t claimed that the parents had been there. This didn’t surprise him. In Louisiana, a master might well arrange for slave children to be baptized without the knowledge of their parents. A baptism, in addition to its religious significance, had the secondary and important purpose of creating a record of ownership on a document of impeccable authority.
When the court resumed, Upton began his cross-examination of Rosalie Labarre. He asked her why she had been chosen as the godmother of Lafayette. She didn’t know; perhaps it was because she lived closest to the sawmill. Upton suggested that she had given evidence against Sally Miller because she bore her ill will. This, she denied. She was a friend and still was. Never had she quarreled with her. He asked her how old Mary was when she gave birth to Lafayette. Madame Labarre replied that she was about thirteen. How could she be sure? Because she was there when the child was born. And so was Mrs. Canby. Another woman, whose name she didn’t know, was also present. Upton asked her if she knew who the father was. It was Jim Miller, she said. Had she seen any marks on the legs of Mary Miller while the baby was being born? No, she hadn’t.
Upton sat down. He realized that he hadn’t greatly diminished Madame Labarre’s evidence but he could think of nothing more to ask her.
Grymes then proposed that the extract of the record of the baptism of Lafayette Miller be accepted into the court record. Upton objected, but Buchanan received it anyway.
Grymes had only one question of Madame Labarre in reexamination. He asked her to look at the woman seated next to Mr. Upton. Could she be sure she was the same person she knew as Mary Miller?
Madame Labarre looked at Sally Miller. Yes, she said, it was the same person.
Miller later wrote in glee of the devastation that Madame Labarre’s evidence had inflicted on his opponents:
And how they stood aghast when having closed their evidence, they discovered the testimony I had in store,—testimony they could neither refute nor deny—by which I proved, if Sally Miller was Salomé Müller, the child of the cold and backward climate of Germany, had under the genial sun of Louisiana, ripened into a mother at ten years of age. Here was the horn of a dilemma, and Sally did gore them Yankees, negroes, Dutch and all.107
Suddenly, the issue of the date when Lafayette was born had become pivotal to the case. If Buchanan believed that Sally Miller had given birth to a child when she was ten, Upton felt sure he would rule against her. It became imperative that he challenge Madame Labarre’s evidence. He stood before the court to ask that he be given time to combat these latest revelations. Judge Buchanan was reluctant. As far as he could see, the case had dragged on too long already. The plaintiff’s lawyers should have anticipated that evidence about her age would be important, and prepared on that basis. Upton launched into an emotional protest. This new piece of evidence was produced at the very heel of the hunt. He had been ambushed. He should have been forewarned. How could His Honor make a just decision when doubt remained about who the baptismal certificate related to? How could anyone be sure that the “Marie” in the certificate was the plaintiff? How could it be assumed that the “Jean” in the certificate was her son? When Mrs. Canby sold Bridget and her children to Miller in 1834 the bill of sale stated that Lafayette was five, and so born in 1829. Now Miller wanted to contradict his own documents and say he was born in 1825.
Eva Schuber and Sally Miller, seated next to each other in the body of the court, heard the anxiety in Upton’s voice as he struggled to persuade Buchanan to allow him time to bring further evidence. They listened to the arguments go back and forth, barely understanding what was happening. It seemed unthinkable to them that, on the last day of the trial, after everything had been going so well, they were suddenly in danger of losing.
Upton could see that Buchanan was wavering. He told the judge that his client believed that the midwife at Lafayette’s birth was Madame Bertrand. This woman lived in the Faubourg Marigny, not far distant. A summons could be issued and she could be in court this very afternoon. She would know when the child was born.
His words wore Buchanan down. The judge prepared a summons directing that Madame Bertrand attend at the court after lunch. Sheriff Lewis was sent off to serve the summons on her. With that small victory accomplished, Upton then pressed Buchanan for another. He wanted to present one final witness. The judge glowered at him.
Daniel Müller told the court that he was ten when he came to America. He was now aged thirty-six, and his father, Henry, was the uncle of Salomé Müller. They all came on the same vessel. Salomé was about three years old.
Do you recognize anyone in the courtroom who traveled to America at the same time? asked Upton.
I recognize several, he replied. I recognize Mrs. Schuber and two others. I recognize Mistress Schultzeheimer and Madame Koelhoffer. He pointed to each of them. And I recognize the woman there. She is Salomé Müller.
Are you sure she is the same person you knew in Germany?
There is no doubt in my mind that she is the same person. My parents’ house was only three hundred yards from her parents’ house in Langensoultzbach. I knew her from the day she was born and I saw her every day while we lived in Alsace.
Upton asked about the moles. Daniel Müller replied that he had never seen them himself, but he had heard his father, mother, brothers, and sisters all say that she had the marks. They were on the inside of each of her thighs. They were natural marks, and she was born with them. His father had always said that he would find his two lost nieces from the marks on Salomé. His father had often spoken of Dorothea and Salomé, and when Daniel was twelve, his father had spent a month searching for them in Natchez. Even after that, his father continued to ask all the Germans he came across if they had heard about Daniel Müller or his children. In 1824, his father was back in Bayou Sara and he met a man driving cattle who told him that there were two girls named Miller living in Attakapas. His father began to make preparations for a journey there, but he died before he could set off. That was in May 1824.
Grymes asked Daniel why he had formed the opinion that the plaintiff was the same person as Salomé Müller. The witness counted off the reasons. First, because of her resemblance to the family, particularly to her mother. Second, on the say-so of his relations that they believe her to be the same. Third, because of the marks.
Upton couldn’t resist a reexamination. Daniel Müller was by far the most impressive of all those he had called.
You saw the plaintiff just a few days ago?
Yes.
How were you able to identify the plaintiff after so many years?
Her features were impressed upon my memory. She looked exactly like my sister, and when I saw Salomé Müller, I recognized her immediately. Her features were just as they were in 1818. They were distinctly impressed upon my memory. She is Salomé.
It was a dream answer.
When the parties assembled in Buchanan’s court after lunch, Madame Bertrand wasn’t there. A shamefaced Deputy Sheriff Lewis informed the judge that although he had delivered the summons, she had refused to come with him. She was indisposed, she had said. It was a lady’s reason. He hadn’t asked for more details. He could hardly force her to attend, could he?
It took all of Upton’s persuasive powers to convince Buchanan that he should be given another chance. After all, argued Upton, there was so much doubt about Madame Labarre’s testimony. Hadn’t she said that although she was present at the birth of Lafayette, she hadn’t seen any marks on the mother’s legs? This meant it couldn’t have been the plaintiff. And hadn’t one of Miller’s own witnesses, William Johnson, only a few days ago told the court that Miller had another house slave named Mary? The Marie in the baptismal certificate could well have been her. The solution, he urged, was to permit Madame Bertrand’s evidence to be taken on commission, at her house, if need be. That way, Madame Bertrand would be able to say conclusively when Lafayette was born.
Buchanan eventually agreed. Not that he intended to take the evidence himself. He appointed the recorder of the court, Mr. Lewis, or if he was unavailable, Associate Judge Bright, to go to Madame Bertrand’s house early the following morning. If all went according to plan, a deposition of her testimony would be available when the court resumed at eleven the next day. Buchanan handed a copy of the commission to Upton and told him to make the arrangements.
The court then rose. It was three in the afternoon and Upton, after escaping from the anxious concerns of Sally Miller and Eva Schuber, hastened to the judges’ chambers in search of a commissioner. Immediately, he ran into difficulties. Recorder Lewis refused to act, saying that he was otherwise engaged, and Associate Judge Bright was nowhere to be found. Frantically, Upton searched through the courts and offices of the Presbytere, but no one seemed to know where Bright was. He decided to travel to the judge’s house in Faubourg Marigny and wait for him there. It was almost dark when Bright arrived. The judge invited Upton inside and listened carefully as he explained what Buchanan had ordered. Upton showed him the copy of the commission. With little attempt to disguise his irritation, Bright finally agreed to be at Madame Bertrand’s house the following morning. Upton then left the judge’s house. He still had much to do.
In a document, now held in a Louisiana archive, Upton gave his version of what happened next:
Madame Bertrand was to be notified, and Mr. Grymes, Mr. Canon and Mr. Micou—all this was done by me in person after dark, and certainly some diligence was necessary, and was given, to this part of the proceedings. Madame Bertrand lives far down in the Third Municipality, Mr. Grymes has his office in Exchange Place, Mr. Canon in the lower part of the First Municipality, and Mr. Micou resides in Carondelet Street. The next morning I rose earlier than usual and proceeded at once to the house of Madame Bertrand. I found her awaiting the arrival of the Commissioner [Associate Judge Bright]. I conversed with her for half an hour; I might have arrived there a little before the hour named; I was certainly there at the hour, and for a considerable time after —for so long a time after, as to lead me to the conclusion that some mistake had been made about the hour, and that the Commissioner would not come. Under this belief I left. Neither the Commissioner nor either of the opposite counsel had appeared. On my way to my office I met my colleague, Mr. Roselius, in Royal Street, and stated to him my disappointment in not being able to obtain the testimony of Madame Bertrand, and urged his attendance at Court punctually at eleven o’clock, in order to take such steps as should secure her testimony to the Plaintiff. I repeated to Mr. Roselius the substance of the conversation I had had with Madame Bertrand, and he left me with the remark, “that unquestionably the Judge would order her attendance at Court; at all events we must not think of going to trial without her.” I stated in this conversation that Madame Bertrand had told me that the first child of the plaintiff was born, as she believed, in 1827 or 1828. That she (said Madame Bertrand) was, with Mrs. Canby, the only persons present at the birth—that she, Madame Bertrand, acted as the accoucheuse at said birth. If indeed Madame Bertrand will state this, it will go far to remove, nay it will, in point of fact, at once wholly and completely remove the only shade of doubt that in any way hangs over the Plaintiff’s cause.108
Upton begged Roselius to return to the case, if only to bring his authority to a plea that Buchanan must allow them another chance to secure Madame Bertrand’s evidence. Roselius said he would be there.
When Roselius arrived at the courthouse at eleven o’clock, he found Upton, Grymes, and Micou in the midst of a heated argument in the hallway. They were blaming each other for the failure to obtain Madame Bertrand’s testimony. Upton swore that he had arranged with Bright for them to meet at seven o’clock and that was the time he had told everyone. No, no, insisted Grymes and Micou, he had told them to be there at seven-thirty. Grymes and Micou turned to Roselius. It was entirely Upton’s fault, they said. He had muddled up the time and had left early.
When Buchanan took the bench, the squabble continued before him. Miller, who had also risen early that morning, hurriedly wrote out an affidavit, stating that Mr. Micou had told him to attend at Madame Bertrand’s house at half past seven. He had waited with Mr. Grymes and Mr. Micou until “at least eight o’clock … the time as shown by three watches worn by the gentlemen who were present.”109Grymes handed Miller’s affidavit to the judge. The blame clearly lay on the plaintiff’s side, Grymes suggested. The court had already overreached itself in indulging Mr. Upton as he attempted to patch up his case, he said. Grymes urged Buchanan to resist any further attempts to obtain Madame Bertrand’s evidence. The legal costs were mounting each time Mr. Upton led the court on a wild goose chase. The case should now proceed to its finality.
Roselius stood to address the court, but Buchanan motioned him to remain silent. Instead, he sent the clerk of courts to Associate Judge Bright’s chambers. Buchanan said he expected that the judge would report on the outcome of his commission even if no evidence had been taken. They would wait to read what he had to say. Buchanan remained on the bench, his head down, moving his quill across a page. Upton watched him, convinced that Buchanan was already writing his judgment. Roselius picked up the notes of a trial in the Supreme Court he was appearing in later that day. Grymes sat with his hands clasped in his lap, his eyes closed in quiet repose. Behind the lawyers the court was almost empty. Sally and Eva, as always, sat together, whispering to each other. Miller paced at the back of the room.
After ten minutes, Mr. Gilmore returned with Bright’s report and handed it to Buchanan. The judge scanned it quickly, then read it out to the parties. Bright was in no doubt that he had fixed the time of the commission for seven-thirty. When he had arrived, “within ten minutes of the time fixed,” he was “informed by Madame Bertrand that Mr. Upton had been there and left a few minutes before.”110
Did Mr. Roselius want to say anything about the matter? asked Buchanan. Roselius did. It did look as though the fault may lie with his colleague, but given the haste and pressure under which Mr. Upton had labored last night to arrange the commission, the confusion over the time was forgivable. But really, the failings of Mr. Upton weren’t the issue. The real issue was justice, and its likely miscarriage if this critical piece of evidence wasn’t received. The fate of the plaintiff shouldn’t be jeopardized by a mistake of her counsel. Too much was at stake for that. The possibility that a white person might be doomed to eternal bondage was more than enough reason for the court to allow more time.
Buchanan gave Roselius’s submission little consideration. There would be no continuance. As far as he could see, the negligence was attributable to Mr. Upton in not awaiting the attendance of Associate Judge Bright. It was up to the plaintiff and her legal advisers to have their evidence ready, and if they failed to do so, the court wouldn’t wait on their convenience. The record was complete. The court would delay no more. Judge Buchanan ordered the lawyers to proceed immediately to final argument.
Upton went first. He confronted the issue of Sally Miller’s supposed immorality head-on. Strictly, it had nothing to do with the case, but no one believed that. A fragment of Upton’s address appears among the court archives. “However polluted and degraded her person may have been,” he told the court, “her friends seem to be bound to her as it were by very hooks of steel.” Her “moral power, and weight, and influence” were as.” . . inconsistent with the nature of an African, as it would be with the nature of a Yahoo” (the italics are Upton’s). He continued:
The Quartronne is idle, reckless and extravagant, this woman is industrious, careful and prudent—the Quartronne is fond of dress, or finery and display—this woman is neat in her person, simple in her array, and with no ornament upon her, not even a ring on her fingers. Ask her friends if, since they have discovered her claims to freedom, since she has been made aware of her rights, if in any instance or in any particular she has departed from the strict proprieties which belong to the pure and good of her sex, and they will tell you, No! They will tell you that she has in all ways and in all things comported herself as well become the rights and station she claims.111
Upton then listed for Buchanan the points that went to prove that she was a free white woman. There was the firsthand identification by her relatives. No less than seven people had come forward to say they recognized Sally Miller as Salomé Müller, and an eighth, the late Madame Carl Rouff, who, if she hadn’t passed away, would have told about discovering her in Louis Belmonti’s cabaret and bringing her to the safety of her godmother’s house. There could be no uncertainty in the face of such testimony. Then there were the moles. He read out the opinion of Drs. Stone and Mercier, lingering over the words navi materni and the conclusion that there was no process by which artificial marks could be produced. Next, Upton pointed out that Miller had plenty of opportunity to take a helpless girl as a slave and hide her in his mill or one of his houses in New Orleans or Attakapas. He gave special emphasis to the evidence of Madame Poigneau and Mr. Wood, who had said they heard Sally Miller speak with a German accent, not forgetting that Millers own brother-in-law, Nathan W. Wheeler, had said he had seen Sally in the yard of the mill in 1819 or 1820. Finally, he highlighted the failure of his opponents to produce Anthony Williams—a glaring omission, he said. Even the notaries who were claimed to have witnessed the documents bearing Williams’ signature couldn’t remember him.
Upton dismissed the fuss about Sally’s age as a diversion sprung at the last minute by a defense team knowing it faced defeat and desperate to try any trick to divert the court from the essential fact that Sally was a white woman. Her appearance betrayed no trace of African blood. All Buchanan needed to do was look at her to see that. Even some of Miller’s own witnesses had confessed that the only reason they regarded Sally as a slave was because Miller had treated her as one. And the poor, unfortunate girl had believed it herself. This was how Miller had enslaved her.
As Upton concluded his address, he looked up at Buchanan, searching his face for a favorable sign. Had he said enough? He found it impossible to know what the judge was thinking. Even as Buchanan was getting ready to call on Grymes, Upton decided to have one last go. It was such a strong case, he said, that it would be tragic if the absence of Madame Bertrand’s evidence should decide the issue. Buchanan smiled and said that the point had been made already. He well remembered what Mr. Roselius had said on that subject. But now it was time to allow Mr. Grymes to speak.
Grymes concentrated on disparaging the evidence of the German witnesses. It was impossible, he told Buchanan, that a court would believe that people could remember an infant after a quarter of a century. Everything pointed to the fact that the plaintiff was using the gullibility of the anxious family of Salomé Müller in an attempt to gain an ill-deserved advantage for herself. There were many examples in literature and history of impostors duping relatives and friends—Perkin Warbeck, the scoundrel who was recognized by Edward IV’s sister as a pretender to the throne; Martin Guerre, who fooled a whole village; and the two Dromio brothers, who looked exactly alike and served two identical brothers. Grymes dismissed the German witnesses’ memory of the moles as fantastic, and contrasted the quiet respectability of the people who had appeared for his client. It was their sober recollection that the plaintiff was a slave. He pointed out that it was Mrs. Schuber’s evidence that the plaintiff was about three when she arrived in New Orleans in 1818. This meant that the plaintiff had her first child when she was ten. No white woman would have allowed herself to become as degraded as this. Could she truly be, as was claimed, a pure white person? Common sense said no! She had no memory of her childhood and no hint of a foreign language in her speech. She had never claimed her freedom until corrupted by her meddling supporters. On the other hand, a succession of Mr. Miller’s witnesses had sworn that the girl they saw at his house in 1822 and 1823 was much older. Twelve or thirteen. There was an obvious mismatch between the ages of the lost German girl and Miller’s slave. They could not be one and the same. The evidence abundantly established that the woman now sitting in the court was an impostor. She could not possibly be Salomé Müller.
Buchanan heard him out, then thanked both Mr. Upton and Mr. Grymes for their assistance. He knew that the parties regarded it as an important matter, so he would write his judgment as soon as he could. He stood, everyone in the court rose with him, he bowed to those in the court and left the bench.
Upton remained slumped in his chair at the bar table. His arms hung either side of the chair. He felt too empty to be tired.