by John Bailey
When Eva totted up her list of witnesses there were only seven, and that included herself and her husband. It was such a disappointment after all the effort she had put into it. She spoke to Mr. Eimer in his shop in Bienville Street. He was one of the most generous contributors to the fund to free Sally Miller, and was always ready to lend a sympathetic ear. He asked if the seven included Madame Carl, because he had heard that she was seriously ill. She had some sort of mysterious lump in her stomach, and the doctors didn’t know what to do about it.
Eva called on Madame Carl on her way home. She was in bed and seemed smaller than Eva had remembered her. Her skin was as gray as a winter’s dawn and there were deep circles under her eyes. Madame Carl smiled at her friend. Yes, of course, she would still give evidence. She inquired when the hearing was to be held. It was six weeks away. Ah yes, she said, she should still be around for that.
John Fitz Miller called on people who in years past had drunk his wine, dined at his house, and ridden out with him on early morning gallops. He hadn’t seen most of them for years, not since the disgrace of his bankruptcy, but an even greater disgrace threatened him now. It had to be done; he had to ask for help. To each he made the same request: Would they come to court to swear that they had never seen a little German girl among the domestic servants at his and his mothers house?
A pure white person couldn’t be a slave. This wasn’t a presumptive rule that could be rebutted by an owner bringing evidence to the contrary. Quite simply, no white person could be a slave—and no number of contracts of sale, court records, or memories of mothers in bondage could make it otherwise. At the core, the issue in Sally Miller’s case was whether she was of pure German descent. If she was, it didn’t matter how Miller obtained her, she must be free.
Sally Miller’s petition would be heard according to the unique laws of Louisiana. In 1803, when Thomas Jefferson purchased Louisiana from Napoleon Bonaparte, the territory was governed by the laws of the Spanish and French colonial administrators. Acting on the assumption that such laws must be barbarous, one of the first things the new American governor of the territory, William Claiborne, did was to attempt to impose America’s version of the English common law on the state. Much to his surprise, the citizens resisted. They liked their civil laws. They regarded their laws as morally superior to, and certainly more understandable than, the common law. Bowing to the storm of protests, Claiborne confined himself to reforming the criminal law and the law of evidence, and left the civil law of Louisiana to its Roman traditions. It was subsequently codified in 1808. Its sources were mainly French, but some Spanish, Roman and English elements were included in one harmonious mass. It was revised from time to time, most notably in 1825, but its fundamentals remained the same.
With biblical simplicity (and anticipating by 150 years the push for plain English), the code set out complex concepts in terms the ordinary man could understand. Here is an example:
Article 449. Common things may not be owned by anyone. They are such as the air and the high seas that may be used by everyone conformable with the use for which nature intended them.
Article 450. Public things are owned by the state or its political subdivisions in their capacity as public persons.
Article 453. Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.
With such elegant brevity, is it any wonder the people of Louisiana fell in love with their civil code? Behind its apparent simplicity lay 2,000 years of wisdom, distilled and refined by the Justinian Institutes, the ancient writings of the Spanish partidas, and the works of Montesquieu. At every turn there was a religious and moral basis to the code. Whereas the common law was about the preservation of landed estates and the sanctity of a bargain between merchants, the code was devoted to the protection of the family and honest practices in business. For example, contracts were regarded as creating mutual obligations that involved concepts of fair dealing quite unknown to the common law. There was the astounding belief that merchants should act morally and that an agreement could be set aside if there was a defect that made the thing useless. In family law, acquisitions of property became, not the exclusive possession of the husband, but the joint possession of the spouses. A father in composing his will was compelled to reserve a portion of his estate for his widow and children. Bastards were legitimized by marriage and could inherit property along with the legitimate children. Parents were responsible for the damage caused by their children.
The Code was the source of the law, and it mattered not what an earlier generation of judges might have said about it. The dead hand of precedent was shunned. By way of contrast, the common law was jammed together by judge-made rulings stretching back centuries, to be ascertained not in one volume, but in hundreds of law reports that only the very rich could possibly possess.
However, at Governor Claiborne’s insistence, the rules relating to evidence at trials were determined according to the common law, and its contribution to Sally Miller v. Louis Belmonti and John F. Miller was to rule that neither Sally Miller, nor Louis Belmonti, nor John Fitz Miller could appear as witnesses. This was because, under the arcane laws that applied in the common law world at that time, a person with an interest in the outcome of a legal action could not appear as a witness in his own cause. The law reasoned that people couldn’t be trusted to tell the truth if the outcome might impact on their own pocket. Sally Miller, as well as being excluded under this rule, was doubly silenced because she was a slave. In Southern courts, the only time a slave was permitted to speak was to confess to a crime or to condemn another slave. The rule against an interested person giving evidence also applied to Francis Schuber, on the technical reasoning that he might lie to the court to save the thousand-dollar bond he had posted against Sally Miller’s promise to appear at court. Upton, anxious that Francis should give evidence, realized this problem in time, and a few weeks before the trial was due to commence, another person in the German community, a Mr. Boman, became the bondsman in his place.
Sally Miller left the Schuber household a fortnight before the trial began, and moved to a boarding house in Lafayette. Why the change? Only one insubstantial clue exists: during the cross-examination of Francis Schuber some weeks later, the attorney for Miller asked him if he had “expressed great partiality” for the plaintiff. Evidently, Francis was prepared for the question, because he ignored its sexual overtones and replied that he had taken “the part of the plaintiff because he knew her to be in the right.”
It was a nasty, underhanded question that had nothing to do with the merits of the case, but was damaging just the same—as Miller’s attorney had intended. Nothing more about the relationship between Francis Schuber and Sally Miller appears in the documents. Did the questions suggest that Francis Schuber was infatuated with Sally Miller? It is difficult to think what else the attorney was getting at. If it was the case, did Eva Schuber order her out of the house? Perhaps. In any event, although Sally left the Schubers’ home, there was no faltering in Eva’s dedication to the cause of freeing her goddaughter. Eva had devoted her very being to making Sally free, and she was determined to see it through, come what may.
Two days before the trial was due to commence, Eva Schuber’s son arrived at Upton’s office and handed him an envelope. He waited in case there was a reply. Inside was a brief, handwritten message. It said that Madame Carl had died during the night. Then a P.S.: I thought it important that you should know as soon as possible. Eva Schuber.
Upton thanked the boy. No, there wasn’t a reply.
As he shut the door behind the departing messenger, Upton felt a great weight settle on his shoulders. He cursed the bad luck of it. He had planned to make Madame Carl his first witness. He had lost the dramatic opening of her discovery of Sally Miller at Belmonti’s cabaret. He then had planned to lead her through the story of the journey from Germany, the deaths during the voyage, and how they were sold
as redemptioners when they arrived. She had impressed him as a resolute woman, not likely to be flustered by his opponent’s cross-examination. She was to be the one to dispel any thought that this was a case brought by excited immigrants hoping to bring a lost relative back from the dead. Heaven knows the case had enough difficulties as it was. There was still no solution to the baffling puzzle of the unaccounted-for years between 1818 and 1822, which had swallowed Salomé Müller and spawned forth Bridget Wilson. Nor had anyone given him proof that Miller had engaged Daniel Müller and his children as redemptioners, much less that Miller had kept Dorothea and Sally at one of his plantations in Attakapas. And what had happened to Dorothea? No one knew that, either. According to Miller’s answer, Sally Miller was about twelve in 1822. Eva Schuber was now saying she was much younger. It was Eva’s recollection that the girl was a little over three when they left Alsace in 1817. She may have been younger, she may have been older, but whatever age, you would think she would remember something of her parents and the sea journey to the United States.
If this wasn’t enough, at the last moment Roselius had bowed out, giving as his excuse that he was obligated to appear in the Supreme Court for the churchwardens of the St. Louis Cathedral who were arguing that the building belonged not to Bishop Blanc, nor even Pope Leo XII, but to them. With only a perfunctory apology to Upton, Roselius had said that the most he could do was to appear to make the opening address, but thereafter Upton would be on his own.
Upton had learned that John Randolph Grymes would oppose him, and he had reason to be overawed at the prospect. Grymes was the elder statesman of the New Orleans bar and its most famous practitioner. He was the first choice of wealthy clients, and other counsel could only marvel at the fees that he could command. In one case, the infamous batture case,* he earned a reported one hundred thousand dollars for rescuing a strip of waterfront land for the City of New Orleans from the claims of a fellow lawyer, Edward Livingston. In another case, he and the same Edward Livingston were paid twenty thousand dollars each by the gentleman buccaneer Jean Lafitte to defend his brother, Pierre, on a charge of piracy. At the time when this engagement came his way, Grymes was the district attorney for the parish of Orleans, but the prestige of public office wasn’t enough to hold him and he resigned to appear for Lafitte. The team of Grymes and Livingston failed to obtain Pierre’s release, so the pirates organized a jailbreak and freed Pierre anyway. Jean Lafitte, ever the honorable man, acknowledged his debt and invited Grymes and Livingston to his island hideaway in Barataria Bay to collect their fee. What happened next is the stuff of legend, one version of which was recounted by Herbert Asbury in his book The French Quarter:
Grymes, who was notorious in New Orleans as a gambler and a playboy, accepted eagerly, but Livingston declined, and deputized Grymes to collect his fee at a commission of ten per cent. Grymes received the money the day he arrived at the pirate’s establishment, but he lingered on the island, charmed by Lafitte’s hospitality, and nightly gambled with the pirate chieftain. At the end of a few days the twenty thousand dollars Grymes had collected for himself was back in Lafitte’s strong-box, together with the two-thousand-dollar commission from Livingston.95
Such stories only added to Grymes’s reputation for absurd adventures and high living. The strict hearsay around New Orleans was that everything he earned through the law, he let slip through his fingers in high living, careless generosity, and discreet affairs of the heart. He frequented the cockfighting pits in the French Quarter, the horse track at Metairie, and the card table at the St. Charles Hotel. An invitation to dine at his table, with its magnificent food and fine wines, was to be savored for months afterward. During his lifetime he was involved in several duels, one as an upshot of his involvement with Jean Lafitte. A man imprudently accused him of being ‘seduced by the blood-stained gold of pirates’; Grymes was the steadier shot, and his bullet hit his accuser in the hip and left him a permanent cripple. On another occasion, while he was briefly a member of the state legislature, he attacked a fellow legislator.
The distinguished historian of Louisiana, Charles Gayarré, wrote:
There is nothing of the scholar in Grymes; his collegiate education has been imperfect; his reading is not extensive as to legal lore, nor anything else. But there is infinite charm in his natural eloquence and his powerful native intellect knows how to make the most skilful use of the materials which it gathers at random outside of any regular course of study and research. He has the reputation of never preparing himself for the trial even of important cases, and he seems pleased to favor the spreading of that impression. He affects to come into court after a night of dissipation, and to take at once all his points and all the information which he needs from his associates in the case, and even from what he can elicit from his opponents during the trial. It is when he pretends to be least prepared, and has apparently to rely only on intuition and the inspiration of the moment, that his brightest and most successful efforts are made. Many have some doubts about the genuine reality of this phenomenon, and believe that Grymes works more in secret that he wants the public to know.
No man was ever more urbanely sarcastic in words or pantomime. If the Court disagrees with him on any vital point, and lays down the law adversely to his views, he has a way of gracefully and submissively bowing to the decision with a half-suppressed smile of derision, and with an expression of the face which clearly says to the bystanders: I respect the magistrate, as you see, but what a goose that fellow is!96
A case with little law and few witnesses to sizzle was Grymes’s meat. Those burned by his cross-examination remembered his piercing eyes that mesmerized concessions that they never intended to make. In addressing juries he was witty, elegant, and cynical. He cajoled them with folksy humor and peppered them with shrewd observation about society, the fond silliness of women, the grandness of Southern culture, the bumbling ways of public officials and the inherent stupidity of dark-skinned people. He always spoke softly, with a lilt to his speech and a smile on his lips. His voice was easy to listen to and had a cadence that persuaded.
Upton spent the rest of the day fussing about his office, tidying his papers and going through his notes of examination of witnesses for the hundredth time. He made sure that the petition and the answer, the summons to appear and the bond papers were neatly indexed in a folder. That done, he leaned back in his chair. He wondered what would happen to Sally Miller if he lost the case. He supposed she would have to be returned to Belmonti. What then? Belmonti would be free to inflict any punishment upon her he felt she deserved. Still, on the couple of occasions he had met Belmonti, he didn’t seem a bad sort of fellow. Perhaps he wouldn’t be too harsh. But who would know? And there was always Miller in the background, who might want to borrow her for a while so that he could inflict some punishment of his own.
Upton’s mind wandered through the various aspects of the case. It seemed to him that Grymes had the much easier task. Miller’s explanation of how he obtained Sally at least had the advantage of simplicity—over twenty years ago, Williams came to his sawmill and left him a slave girl to sell. Williams didn’t return, so Miller sold her to his mother. Later he bought her back from his mother and sold her to Belmonti. And that was it. Logical, simple, and believable. Whereas his own case depended upon a court believing that a miracle had occurred when a German woman missing for a quarter of a century had been found in a New Orleans cabaret—and in Upton’s experience, courts didn’t like miracles. His witnesses were a succession of immigrants who could recognize a little girl after twenty-five years on the strength of two moles and because she looked like her dead mother. Upton took a deep sigh, willing himself to believe.
NINE
THE FIRST DISTRICT JUDICIAL COURT OF NEW ORLEANS
The slave … cannot be a party in any civil action, either as a plaintiff or a defendant, except when he has to claim or prove his freedom.
Article 177 of the Civil Code of the State of Louisiana
; On May 23, 1844, the Upton brothers, each carrying a black leather case, walked through the streets of the Vieux Carré toward the First District Court. Following closely behind were Eva Schuber and her husband, holding bundles of papers, and directly behind them was the plaintiff herself. She was wearing a slate-gray dress that fell to her ankles. A frilled lace collar, held in place by a large brooch, pressed high on her neck. Her hair was parted in the middle and pinned in a knot at the back of her head. Walking behind her came Madame Koelhoffer, Mistress Schultzeheimer, and Mrs. Fleikener, dressed in church-going black. Then came Messrs. Frendenthal, Grabau, and DeLarue dressed in business suits, all of whom Eva had earlier introduced to Wheelock Upton, telling him that these were some of the men who were meeting his legal expenses. Then at the rear, hobbling along with the aid of a walking stick, was Madame Poigneau, who would tell the court that she had heard Bridget Wilson speak like a German.
In Toulouse Street they met up with Christian Roselius. No man was more respected by the German community, and Sally’s supporters surrounded him and thanked him profusely for taking on the case. But he was a lawyer in a hurry, and he extracted himself from the well-wishers and strode off toward the court, one arm swinging, the other holding a battered buckskin satchel containing documents he had examined overnight. The others, like participants in a medieval religious procession, followed along behind, instinctively ranking themselves according to their importance to the case.
The First District Court was housed in the Presbytere. It was originally the priest’s house to the St. Louis Cathedral next door. On the other side of the cathedral stood the Cabildo, where the Spanish governor had ruled, while his soldiers had paraded in the Place d’Armes directly out in front. These three buildings represented the trinity of ecclesiastic, divine, and military authority in the colony. When Louisiana became American, the symbols of power changed. The Cabildo became the City Hall and later housed the Supreme Court, the Presbytere was turned into the district court, and the Place d’Armes became a public park. Nowadays the Place d’Armes is designated Jackson Square, but in 1844 the splendid statute of Old Hickory riding a prancing horse hadn’t been erected, and the Pontalba buildings with their guillotine windows opening onto graceful balconies had yet to be built. The square was then an old marching ground with a set of stocks in the middle where black people convicted of crimes by the nearby courts were whipped each afternoon.