The slave, to remain a slave, must be made sensible, that there is no appeal from his master; that his power is in no instance, usurped; but is conferred by the laws of man at least, if not by the law of God.
Judge Ruffin of North Carolina, 1829119
Now that the motion for a new trial had been rejected, Sally Miller was again liable to be taken by Belmonti, so Upton undertook to have the bond renewed to secure her freedom pending the appeal. Upton’s abuse of Buchanan might have brought pleasure to himself and joy to Sally’s adherents, but seemingly he was unaware that it was Buchanan who would set the amount of the bond to secure Sally’s freedom pending the appeal. Roselius went along with Upton to shield his junior from the ire of the judge. Although the bond for the trial was set at one thousand dollars, Buchanan doubled it to two thousand dollars for the appeal, justified on the basis that, now that he had found that she was rightfully a slave, she had a much greater incentive to run away.*
Once again, Eva Schuber knocked on doors seeking sureties. It was harder this time. Hadn’t the court ruled that Sally Miller wasn’t a German? That was enough for many to lose faith. If she was let free on a bond, she would be sure to run away like all slaves do when they are afraid. Once again, Mr. Wagner, Mr. Eimer and Mr. Grabau kept the faith. Mr. Serda, Mr. Fischer, and Mr. Frendenthal remained loyal. Eva collected coins from German people in the timber houses in the streets of lower Lafayette. It took her several days, but eventually she gathered in enough to go to the sheriff’s office and install her husband as the bondsman.
A few weeks later, Upton met Mr. Eimer outside his shop. Eimer said he wouldn’t be able to support Sally Miller for the next few months. Not that he had lost faith in her—in fact, he was more convinced than ever that she was German. It was just that he had promised his wife that they would return to their homeland at least once in their lifetime. They had been in America for thirty years and it couldn’t be put off any longer. But there was one thing he would do for Sally. He would journey to Langensoultzbach and search for the birth certificate of Salomé Müller. He would be back by October. Would that be too late? Upton assured him that it wouldn’t. The way cases were backed up in the Supreme Court, it was more likely the appeal wouldn’t be heard until the following year.
This proved to be the case, and those involved in the litigation returned to the business of living. Sally left her lodgings with the Schubers and moved across the city to the Faubourg Marigny where, according to Mrs. Canby, she lived with a “person whom she now claims as her husband.”120 Whether this is true, or Mrs. Canby intended to create the whiff of scandal, is, from this stretch of time, impossible to say. During the autumn, Roselius, while still attending to his law practice, stood as a Whig candidate to the State Convention and was duly elected. Upton, who had hoped to achieve fame by freeing Sally Miller, had instead achieved notoriety for confirming her as a slave, and there was still no clamor of clients at his door. From time to time, in the courts of the city, he ran into Miller, the perpetual litigant, fending off claims from his creditors. Grymes, appearing in all the great cases of the day, continued to acquire a fortune with every word he uttered, and to lose it with just as much grace at the city’s gaming tables.
In October 1844, the Eimers returned from Europe. When their ship docked in New Orleans, Mr. Eimer left his wife to cope with the luggage and, taking a black attaché case with him, hurried through the streets of the city directly to Upton’s office. He brushed aside Upton’s secretary, and upon opening the office door, found the lawyer at his desk. Without a word, he pulled several sheets of paper from his case and placed them on top of the book Upton had been reading.
Upton picked them up. He was looking at documents written in French. As he picked through the words, Eimer, with a broad smile on his face, watched. Slowly, Upton worked out that he was reading an extract from the register of the births of the parish of Langen-soultzbach. In the margin he saw, under the Royal Seal of France, the name of Salomé Müller.
The mystery is solved, whispered Eimer.
Upton continued to make his way through unfamiliar words. The child’s name was Salomé Müller; that he could make out. Her father was Daniel Müller, aged thirty-two years, shoemaker. Her mother was Dorothea. There followed a declaration by the recorder of births and deaths that a child of the female sex was born in legitimate wedlock on the tenth day of the month of July 1813 at 10 a.m. The record had been made at 2 p.m. on the very same day, at the mayor’s office.
Upton let the paper fall from his hands. He immediately understood what Eimer meant. It was astounding. Everyone of the German witnesses had been wrong. She hadn’t been two, or even three, when she arrived in New Orleans—she was almost five. This meant that she wasn’t nine or ten in 1825, when Lafayette was born, but twelve and a half. His mind raced ahead. Two of the reasons Buchanan gave for rejecting Sally Miller’s petition were invalidated. The ages of Bridget and Sally did roughly correspond. It was feasible for her to have given birth to Lafayette in 1825. After all the worry, after all the mistakes they had made, after the disappointment of Buchanan’s decision, here at last was the answer. He jumped up and hugged the small man across the table. They did a little jig. They decided to tell Roselius. Eimer placed the precious birth certificate back in his attaché case and the two men hurried down the stairs and through the Vieux Carré to Roselius’s office in Customhouse Street. Suddenly a victory in the appeal seemed possible.
Still, things weren’t that straightforward. Even as Upton hastened to Roselius’s office, he began to realize that the birth certificate brought with it as many problems as it solved.
Just as Eimer had done to him, he placed the document into Roselius’s hands without any introductory words. Roselius read it quickly, then a wry smile played on his lips. We’ll have some explaining to do, won’t we now? he said.
The birth certificate had turned the plaintiff’s case inside out. There was no longer any need to show that Lafayette was several years younger—the birth certificate had made his mother several years older. There was no longer any need to attack Madame Labarre’s evidence, or to endeavor to put Madame Bertrand on the witness stand. Wheeler’s recollection that Lafayette was born in 1828 no longer mattered. Now “Marie” could be Mary and “Jean” could be Lafayette. Even General Lewis could be right when he said that Mary Miller was forming breasts in 1823.
But even as the birth certificate made the plaintiff’s case simpler, it had made the presentation of the appeal more difficult. The doubt about the disparity in the ages between Salomé Müller and Bridget Wilson may well have been resolved, but what would the Appeals Bench think when it emerged that the German witnesses had made Sally Miller younger than she really was? Surely, Salomé Müller’s devoted godmother would have known how old she was? Grymes would be on hand to suggest that this was no mistake. On the contrary, it was proof of a well-orchestrated chorus of witnesses, conducted by Eva Schuber, intent on deceiving Buchanan. And the motivation for the lies was obvious enough: making the plaintiff several years younger explained why she remembered nothing of her parents and the voyage to America. But the problems brought by Mr. Eimer’s birth certificate went farther than that. If the German witnesses couldn’t be trusted to say how old the plaintiff was, what did that make of their claims that they could recognize her after twenty-five years? And if Eva Schuber and the others could be so wrong about her age, why should they be believed when they said that Salomé Müller was born with moles on her thighs?
When Upton met Eva a week or two later, he asked her how she had become so confused about her goddaughter’s age. She replied that she hadn’t done it deliberately, if that’s what he was thinking. She was only eleven when she became Sally’s godmother and she had simply remembered the wrong year. It was such a long time ago and so much had happened since. Upton wondered about her answer, but he let the matter rest.
Given the public interest in the outcome of the appeal, all five judges of the Supreme Court of Louisiana sat to hear the arguments. Although the legislation creating the court didn’t create a position of chief judge, that title, by convention and courtesy, was bestowed on the most senior appointment, and that person, by at least thirty years, was François-Xavier Martin. He had been a judge for twenty-nine years and chief judge since 1836. He was a jurist of national fame and, despite his advanced years (he was eighty-three), his mind was as sharp as any of the other judges who sat with him. He was also totally blind.
Martin’s eyesight began to fail him when he was in his seventies. Most men would have seen this as a reason for retiring, but not so Martin. When he was no longer capable of writing opinions, he dictated them to an amanuensis; or when none was available, he placed guides at the edge of each page so that he would know when to move his hand down to commence writing a fresh line. In 1844 he returned to his native France, hoping to find a cure for his blindness by consulting the best oculists in Paris, but none was prepared to operate on him, save one who promised too much, and Martin distrusted miracles. He returned to New Orleans, resigned to spending the remainder of his life in darkness.
The law was his passion and, according to his contemporaries, he had no other interests. He was a lifelong bachelor and attributed his good health to his abstemious habits. Despite being French, he claimed never to have tasted wine until he was in his sixties, and then “in great moderation.”121 Music, literature, and games were of no interest to him. He was notorious for his unsociability, slovenly dress and closeness with money. His interests were solely intellectual, and his pleasures, such as they were, lay in discussing fine points of law with colleagues. His scholarly output was prestigious. He created the first set of law reports in the state of Louisiana and edited the first twenty volumes. He compiled several law books in French and English. He wrote the history of Louisiana, followed up by a history of North Carolina.
For all of Martin’s industry, the court he presided over was held in derision by most in New Orleans—and with good cause. Following the economic crisis of 1837, claimants flooded to the Supreme Court seeking redress from their financial woes, only to be entangled in a system that was slow, costly, and highly technical. Within months, a large backlog of cases clogged the lists, but Martin ignored the problem. He was derided as conducting a “talking court,” and litigants were accustomed to hearing inane points of law argued between judges and attorneys for hours. Without a glimmer of humor, Martin turned proceedings into an intellectual battlefield. He was merciless on counsel and seemed to take delight in making them appear foolish. He sat for only five hours a day, three days a week, claiming it was that essential he have private time for research and the writing of opinions. It wasn’t unusual for only one case to be heard in the three allocated days. One disgruntled lawyer calculated that at the rate Martin’s court was disposing of matters, newly issued suits wouldn’t be heard for thirteen and a half years.122
Martin saw no reason for change and showed every intention of remaining chief judge while he still had the strength to breathe. He paid great attention to the minutiae of the law but none to procedures. Judges appointed to clear the backlog resigned in frustration at the impossibility of having Martin introduce reform. Matters became farcical when, for a period in 1839, every other judge abandoned their appointment, leaving Martin alone on the bench. Two more were appointed, but within months they also departed. So low was the salary of a Supreme Court judge that few competent lawyers would accept an appointment unless they had independent wealth, and even then they might hesitate to work under Martin’s idiosyncratic rule. Eventually, another four were recruited: Henry Adams Bullard, Alonzo Morphy, Edward Simon, and Rice Garland. With the possible exception of Bullard, a native of Massachusetts and a Harvard graduate, they weren’t from the top rank of lawyers in the state.
These were the men who sat with Martin in 1845 when the Sally Miller appeal was argued. It had been jumped through a bloated case-list, presumably because of its notoriety and the adverse publicity it was bringing Louisiana.
Upton spent many hours over many days worrying about what he would say to the court. He wrote draft after draft analyzing Buchanans decision, then listing the multiple errors he thought the judge had made, but he remained disappointed in what he had composed. It was too harping, too ill-tempered. He had identified no overwhelming point that would secure victory. He made further alterations, he changed the order of things, he cut out paragraphs, but still he remained dissatisfied. It was to be the most important speech of his legal career and he had to get it right. He read the notes of the evidence of the trial again and for the first time saw all the mistakes that had been made in presenting the plaintiff’s case. Some by him. Some by others. It should never have been alleged that Miller had land in Attakapas in 1818, before it was known for certain that he did. That had been Sigur’s mistake. His own mistake had been to bungle the arrangement for the taking of Madame Bertrand’s evidence—although, if they could get the Appeals Bench to accept the birth certificate from Langensoultzbach, this would be repaired. His second mistake had been not to realize the significance of Sally Miller’s age until it was too late. He could never excuse himself for that. However, Eva Schuber had made the biggest mistake. If, as Upton suspected, in her zeal to make Sally Miller free, she had lied about her goddaughter’s age and had convinced others to do the same, it was these falsehoods that had led Buchanan to rule that Salomé Müller and Sally Miller couldn’t be the same person.
Upton wondered if there had ever been a case similar to Sally Miller’s decided in Louisiana. He had never heard of such an instance. Still, one never knew. He spent the next two days in the library of the Supreme Court sifting through the court’s judgments since its creation thirty years earlier. There was nothing there about white people being taken as slaves. He wasn’t surprised. Since it was universally accepted that whites couldn’t be slaves, there would be no need to litigate the matter. He then moved to the records of the old Territorial Court, which had existed prior to Louisiana becoming a state in its own right. On the afternoon of the second day, in a room overlit by the westerly sun, he came across the case of Adelle v. Beauregard. At first he could see nothing in the report that might assist and was about to set it aside. It didn’t concern a white person, but a mulatto slave, a young girl who had run away from her master. It was also decided in 1810, two years before Louisiana became the eighteenth state of the Union, and on that account might be thought to carry little weight. But it was only a few pages long, so he read on, and as he did so an unsteady argument began to form in his mind.
The case concerned Adelle, a young mulatto. Her master, Monsieur Beauregard, a wealthy plantation owner, had brought her with him from the West Indies to New Orleans. Adelle was treated with particular consideration, taught the ways of a lady, and, when she became old enough, was sent to a boarding school in New York. Seemingly a New York education changed Adelle, because upon her return, she was no longer the dutiful servant who had left Beauregard’s house several years earlier. After tolerating his rule for just a few months, she fled and immediately brought a suit for freedom in the Territorial Court. At the trial, Adelle’s lawyer challenged Beauregard to show that she was his slave. This Beauregard failed to do—possibly because he didn’t want to admit that he was her father. Instead, his lawyer relied on the argument that because Adelle was colored, Beauregard wasn’t required to provide proof. The color of her skin meant that it could be assumed that she was a slave. If she wanted to be set at liberty, it was up to her to show that she was born free or that at some time in her life she had been emancipated. The Superior Court of the Territory of Orleans decided in Adelle’s favor. In the course of its decision, a distinction was made between the status of pure Africans and those of mixed blood:
… negroes brought to this country being generally slave, their descendants may perhaps fairly be presumed to have continued so, till they show the contrary. Persons of color may have descended from Indians on both sides, from a white parent, or mulatto parents in possession of their freedom. Considering how much probability there is in favor of the liberty of those persons, they ought not to be deprived of it upon mere presumption, more especially as the right of holding them in slavery, if it exists, is in most instances, capable of being satisfactorily proved.123
It was this paragraph that seized Upton’s attention. The court had accepted that colored persons, as distinct from full-blood Africans, were free unless those claiming them showed them to be slaves. But Sally Miller wasn’t colored. She looked white. How much stronger must be the assumption of freedom for her? Could it be argued, he wondered, that on the basis of Adelle v. Beauregard, if the court, after considering all the evidence, remained unsure if Sally Miller was a slave, then it must free her.
But Adelle v. Beauregard had its difficulties. It had been decided in 1810, at a time when judges were still moved by the spirit of freedom enshrined in the Declaration of Independence and ennobled by the sacrifices of the American Revolution. Judges in those times were apt to pick up their pen and, after quoting Jefferson, Franklin, and Adams, declare for the proposition that all men were created equal and that there was a presumption toward freedom regardless of skin color.124 However, as Upton appreciated, in recent years judges in the South had pulled back from the belief that the presumption of freedom could apply to those held in slavery. If slavery was good for slaves (as many Southerners held), it was illogical for the courts to lean toward freeing them. Instead, judges in many states took their lead from the stream of laws passed by state legislators, increasing the regulation of slaves, facilitating the capture of fugitives, and sanctioning the imprisonment of any blacks unable to prove themselves free— laws that were the very antithesis of freedom.125 The question now troubling Upton was whether the Supreme Court of Louisiana would regard Adelle v. Beauregard as sound law. He wondered which of the territorial judges had written it. The note preceding the report said it was delivered “By the Court,” probably meaning that it was a unanimous opinion. Was it possible that Martin was a member of the bench? It was delivered in the fall term of 1810. Surely Martin wasn’t a judge then? He flicked to the front of the volume and found an announcement that, following the death of Judge Thompson, Martin had been commissioned a judge on March 21, 1810. Upton looked at the date in amazement. It meant that almost certainly, thirty-five years earlier, Martin, as a junior judge, had joined in freeing Adelle. Upton felt a quivering in his stomach as he realized the implications of the case he held in his hands. Could he possibly hope that Martin’s court would be prepared to hold firm to the view that colored people, like white citizens of the United States, were presumed to be free?
But for the presumption of freedom to be applied, there must be doubt. Upton could see that. This made it even more important that the new evidence of the German birth certificate be proffered to the court.
The appeal to the Supreme Court of Louisiana commenced on May 21, 1845. It was almost a year since Buchanan had made his decision. The fate of Sally Miller had become a talking point in much of the South and was also beginning to be followed by Northern newspapers, which wrote it up as an intriguing case of a poor immigrant attempting to free herself from the horrors of slavery. People in New Orleans reckoned it to be the premier legal battle of the year, particularly since that master of Southern oratory, John Randolph Grymes, was to appear.
On the morning of the appeal, an overflow audience queued early outside the Cabildo. As soon as the doors opened, they rushed inside to gain a seat. Newspaper scribes took their place along the side wall. In the front row of the public gallery, in a place Upton had reserved, sat Sally Miller, defiantly showing her whiteness for all to see, while next to her was Eva Schuber, willing and praying for the judges to make it so.
The same legal team appeared: Christian Roselius, Wheelock S. Upton and Francis H. Upton for the plaintiff; John R. Grymes and W. Micou for Miller; and E. A. Cannon for Belmonti. Despite all of its disadvantages, Upton had convinced Roselius that the birth certificate should be made part of their case. He doubted that they could succeed without it. But there lay another uncertainty. Under Louisiana law, an appeal wasn’t an opportunity to run the case for a second time and new evidence wasn’t usually admitted. The normal process was for the judges of the Supreme Court to read the notes of the previous trial and then hear written and oral arguments from opposing counsel on whether a different verdict should be entered. The first obstacle to be faced was in having the Appeals Bench even look at the birth certificate.
The task of inducing the bench to take up the birth certificate fell to Roselius. Although he had none of the persuasive powers of Grymes, he had the advantage of being one of the few counsel at the New Orleans bar who was the intellectual equal of the chief judge, and Martin respected him for that. Roselius was a short, powerfully built man with a rough-hewn face much as you might expect from a Dutch farmer, but there was nothing rustic in the matters he discussed. He was able to pick up a volume of law in Latin and, without hesitation, translate its content into English for the judges, then read a commentary in French on the Code Napoléon, all designed to show the subtle shades of meanings inherent in their state’s Civil Code.
Roselius started by assuring the court that no one could doubt the authenticity of the document Mr. Eimer had brought back with him. Not only had he obtained the signature and seal of the mayor of Langensoultzbach attesting that it was a true extract taken from the Record of Births and Deaths of the village, but he had also obtained the signature of the president of the Civil Tribunal of Wissembourg, declaring that it was indeed the mayor who had signed the declaration of authenticity, and then the signature of the minister of home affairs stating that it was the truly the president’s signature.
Roselius placed the certificate in the hands of the clerk of courts, but that was where it remained. Why should we consider that, Mr. Roselius? Martin asked.
Because, Your Honor, answered Roselius, there is an exception to the rule that new material shouldn’t be considered in appeal. He took up a volume of the Louisiana law reports and began to read.
The case was Marie Louise F. W. C. v. Marot, decided a decade earlier by the late Judge Mathews. A slave named Josephine had sought freedom from her wealthy Creole owner, Madame Toussaint Marot. During the course of arguing the appeal at the Supreme Court, it had become apparent that Josephine’s lawyer had made a serious blunder in failing to bring certain evidence in her favor. Madame Marot had sent Josephine to Paris to learn the art of hairdressing, and what her lawyer had failed to realize was that because France didn’t tolerate slavery, Josephine had become free, and it wasn’t in the power of her mistress to reclaim her when she returned to Louisiana. But could this new evidence of residence in France be taken into account at the appeal? Judge Mathews had decided it could. He wrote that in “an action brought to redeem a helpless female from slavery … every thing which may properly be done in favorem libertatis, should be done.…”126
As he made this submission, Roselius kept his eye on Martin. He was sure that if he could persuade the chief judge, his seniority and strength of personality would carry the rest of the bench with him. Martin, however, was giving nothing away. He held up his hand for Roselius to stop. The court waited while he composed his thoughts. Is it not strange, he said, that before Judge Buchanan you argued that the plaintiff was younger than the age designated by Mr. Miller, and now on appeal you are trying to have us accept a certificate that says she is older?
Roselius had expected a question along these lines, and after much thought had concluded that no answer would satisfy Martin, save confession. Your Honor is, of course, correct, he replied. Counsel are mortals; some are slower than others, and it took us a little time to realize the obvious.
A slight smile passed Martin’s lips. Well, is not there the difference? In Marot’s case, there was a failure to raise a vital point, but in your case, Mr. Roselius, there was no such failure. Your side distinctly argued the matter of her age, but now, on appeal, you want to say something different about it?
Roselius responded as best he could. The principle endorsed by Marot, he said, was one of liberty of the subject, not one of fine distinction between what the lawyers thought was important when they presented the case at trial and what they wanted to raise on appeal. Marot’s case simply said that every opportunity should be given to the petitioner to show that she was free, even when something different had been argued in the district court.
Martin thought about Roselius’s answer for a moment. Then he said he would like to hear what Mr. Grymes had to say on the topic.
To Grymes, the admittance of the new material was a mischievous and costly waste of time. The rule restricting new evidence in appeals was a sensible one, he said. It was in the public interest that there should be an end to litigation. Parties shouldn’t be allowed to wear the other side down amid incessant claims of new evidence. The expense was wearing heavily on Mr. Miller and Mr. Belmonti, to say nothing of the damage to their reputations. Anyone reading Judge Buchanan’s reasons for dismissing the petition for freedom could see that he thought that it was a very weak case, and it could hardly be that the birth certificate would solve the glaring inadequacies of proof identified by the judge. The only merciful thing for the bench to do was to immediately despatch it.
There was whispering behind hands for several minutes as Martin consulted with his brother judges. That concluded, he announced that the court would take notice of the birth certificate, although what weight it should be accorded remained to be seen. Mr. Grymes had made a valid point—there was much more to this case than the issue of the plaintiff’s age.
Roselius bowed in respect of the wisdom of the ruling. He would now hand over to his colleague, Mr. Upton, who would take the court through the detail of the evidence and the points of appeal.
Upton commenced by abandoning many of the claims made in the petition originally drafted by Sigur. It would no longer be asserted that Miller had property in Attakapas in 1818, or that he had engaged Daniel Müller and his children as redemptioners. Nor would it be said that Miller had acted in bad faith. In truth, said Upton, there had only ever been one aim and that was to free the plaintiff from the bonds of slavery. Miller’s possession of her, whether rightfully or wrongfully gained, wasn’t the issue. The claim for one thousand dollars in damages wasn’t being pursued. All that was now being sought was the freedom of a poor German woman.
No comment came from any of the judges on the bench, so Upton, after a sigh of relief, embarked on the task of summarizing the evidence of each witness, thus showing, he hoped, that Buchanan had got the tenor of the evidence hopelessly wrong.
At the end of the day, Upton had still not concluded, and the next morning he resumed from where he had left off.
Just before midday, he turned to the law. He had decided to keep this, his most tenuous argument, to the last. He announced that he would be relying on the case of Adelle v. Beauregard. A slight smile passed Martin’s lips, as if acknowledging the return of a long-absent acquaintance. Upton decided to read the case in full. It was only a few pages, he said, so it would not take long. As he turned the first page, he looked up at the bench of elderly white faces. Martin sat with his eyes shut, rocking backward and forward in time with Upton’s words, recalling passages he had helped to craft thirty-five years earlier. The others were taking notes or listening intently as he read. Silently and unnoticed, black messengers carried books and documents from the judges’ chambers beyond.
When he finished reading, Upton closed the law report and faced the five judges. Adelle v. Beauregard provides a complete answer, he said. Even if at the end of this appeal the court thinks that Sally Miller is a mulatto, rather than a German, this makes no difference—the onus is on Mr. Miller to show that she is a slave. If he cannot prove his title to her, then she must be released. This is what Adelle v. Beauregard stands for. Even if the court entirely believes Mr. Miller when he says that he acquired Sally Miller from Anthony Williams in 1822, this still doesn’t prove that she is a slave. No one knows how Williams obtained her, so she must be released. Even if the court harbors doubts about her age or whether she could bear children at a young age, none of this is conclusive. It doesn’t prove that she is a slave, so she has to be released. Her lack of a Germanic accent means nothing if Mr. Miller can’t prove his ownership of her. If Mr. Miller can’t prove his ownership of her, she must be released.
Martin leaned forward, listening intently.
When Upton finished, there was a moment of silence. Is that it? demanded Martin.
Upton replied that, yes, he had completed his submissions.
Are you not intending to explain why none of this was put to Judge Buchanan?
Upton squirmed. I didn’t know of the case then.
I thought not, growled Martin. I take it that legal research is no longer a requirement at the New Orleans bar.
Upton stood with his mouth open, unable to think of a reply.
Oh, sit down, snapped Martin. The answer is obvious.
The introduction of Adelle v. Beauregard into the debate worried Grymes. It was just the sort of hoary case that Martin might find persuasive. Even lawyers at the Louisiana bar who had known Martin for years and were familiar with the hundreds of opinions he had written, found it difficult to forecast how he would decide a particular issue. His written judgments were terse and unadorned, but for all that, they often contained surprises. His approach to the law was to push first principles to remote, ultimate conclusions, regardless of the consequences. He measured the law as a mathematician might; there was only one right answer to every problem, and his task was to find it. His mind ran on a mechanism of pulleys and belts where logic worked and emotion counted for nothing. He ignored criticism that he was legalistic, remote or inaccessible. It wasn’t his task to make the law progressive, or to develop it as a social weapon, or even to make it practical. Nor was it to protect private property or governments. The law, in Martin’s hands, remained pure.
Grymes gave Adelle v. Beauregard considerable attention when he began his reply mid-afternoon on the second day. He told the court that there were sound, practical reasons why Adelle v. Beauregard shouldn’t be regarded as the law of Louisiana. It couldn’t be true in a slave-owning society that masters had to show how they obtained their slaves. Thousands of people held colored slaves with no better title to show than that of Miller—was it going to be suggested that all of these slaves could now flood the courts with petitions of freedom? If the court followed Upton’s reasoning, any slaves who weren’t pure African could now hope for deliverance if their master couldn’t produce a piece of paper showing title to them. The rights of ownership of thousands of slaveowners in the state would be imperiled if Upton was correct. Was the court prepared to let this happen? Was the court to be seen as foolish?
Grymes continued: fortunately for the peace and prosperity of Louisiana, Upton was wrong. He hadn’t given the court the full story. Grymes took the court to a much later case, Mary v. Morris,127 which, he claimed, had placed a safeguard around Adelle v. Beauregard.
Mary v. Morris was decided by the Supreme Court of Louisiana in 1834, although it had its origins two decades earlier. John Marshall of Georgia, upon his death, left a mulatto slave, Mary, to his daughter for a period of five years, after which time, according to the provisions of his will, Mary should have been set free. Unfortunately for Mary, Marshall’s daughter neglected to tell her this, and instead took her to Louisiana and held her for twenty-four years, while Mary produced five children. Somehow, eventually, Mary discovered the contents of the will and sued for freedom for herself and her children. The defense was that emancipation was prohibited in Georgia and had been for many years, so John Marshall’s will was invalid from the outset. This argument found favor with Judge Mathews of the Louisiana Supreme Court, so Mary and her children remained enslaved. But the significant point of Mary v. Morris, according to Grymes, was that Mathews, in giving his reasons, had said: “Being from color and [in the] actual possession of the defendant, presumed to be a slave, the burden of proving her freedom devolved on her.”
Grymes argued that the law emerging from this case displayed the common sense absent from Adelle v. Beauregard. This law protected the legitimate rights of ownership. It meant that if a colored slave was in the actual possession of a master, the onus of proof remained with the slave to show he was free. This was the guiding principle to be applied. Sally Miller was in the actual possession of Belmonti before she became an illegal runaway, so it was up to her to show she was free and not vice versa. This she had failed to do.
Grymes then went on to point out that this view accorded with the ancient and wise provisions of the Spanish partidas. In Spanish law, if a master could produce any title or document to show that he had possession in good faith, it was then incumbent on the slave to prove otherwise. Miller and Belmonti had well satisfied that criterion, argued Grymes. They had possession of Sally Miller for over twenty years, and the power of attorney from Anthony Williams showed good title.
Grymes then put aside his law books for a final attempt at winning over the judges. The court had heard a lot about the fate of this woman, but he now asked that some thought be given to the fate of his client. Mr. Miller’s life had all but been destroyed. The bench must not be so blinded by concern for the plaintiff to ignore the effect of this appeal on Mr. Miller. He was the victim of a well-concocted web of lies. Mr. Upton might say that he was no longer alleging a lack of good faith, but it was far too late for that. The accusations had been made; the malicious gossip had taken its toll. Only through a complete rejection of this appeal would his reputation be restored.
After Grymes had concluded, Martin had one further query for Upton. As you quite rightly say, Mr. Upton, there is a presumption of freedom inherent in Adelle v. Beauregard. But a presumption always dissolves in the face of cogent evidence to the contrary, does it not?
Upton said he must agree.
Yes, that is the correct answer, Mr. Upton. That is the issue in this case. Is there proof that she is a slave?
And with that the five judges left the bench.