by John Bailey
Yes, I saw them again this morning—on the body of Sally Miller. They look like beans of coffee and they were the same today as when first I saw them.
This was one witness Grymes couldn’t shake. He challenged her claim that she had known Dorothea Müller, and even that she had come to America on the same ship. He asked her how many ships there were and who else was on board. He asked her about Dorothea’s sisters. He asked her where she lived when she first came to America. Mistress Schultzeheimer granted him nothing. He then suggested that she had spoken to Madame Hemm about the case. Or Mrs. Schuber. What about Mrs. Fleikener? No, she hadn’t seen any of them for a long time. Well, who brought her to court today? It was Sally Miller. She had collected her from her home and taken her to Mr. Upton’s rooms. She had asked Sally to show her the moles, but she had refused, saying that she could only look at them in her lawyer’s office. So it was in Upton’s office where she had seen them. Sally had lifted her dress. They were exactly as Sally’s mother had shown them to her all those years ago.
Grymes ran through his range of sighs and snorts, but Mistress Schultzeheimer stuck to her guns. They were the same moles. She recognized them. She had also recognized Sally Miller because of her looks. She knew her.
The next witness was less certain. All that Madame Koelhoffer could say was that Sally Miller looked like one of Daniel Müller’s children. Both Daniel Müller and his wife had that sort of dark complexion. Madame Koelhoffer also thought she looked like others in the family, especially Daniel Müller’s sister, Salomé Kirchner.
Mr. J. C. Wagner, who had spent six months on the Rudolph with the Müller family, told of traveling from Germany to America. About the only sting in his evidence was to mention that Grymes, in 1818, had represented the immigrants in their attempt to avoid having to serve time as redemptioners. Grymes had failed and they had been sold anyway.
Grymes made no attempt to defend himself. In fact, he saw no need to ask Wagner any questions. The immigrants may have suffered grievously on the journey to America, but that had nothing to do with Miller and Belmonti.
In the closing minutes of the third day, Francis Schuber took the stand. Upton took him through the now familiar tale of the horrors of the journey from Germany. Then Upton asked him if he remembered when Madame Carl had brought Sally Miller to his house. He certainly did. He had recognized her the moment he saw her. I said to my wife, Is that one of the two girls who was lost? My wife said she was.
At that, Buchanan called a halt for the day. The remainder of Francis Schuber’s evidence would have to wait.
The next morning, Schuber continued from where he had left off. Upton asked him about the day that Madame Carl had brought the plaintiff to his house.
We inspected her legs to see if the marks were there.
And were they?
Yes, they were.
What do you know about these marks?
They were often spoken of in my family. I heard my mother-in-law, who is now dead these twelve years, say that if ever the lost child was found, even if it was a hundred years, she could be identified by the marks on her body. The marks had been made by burns the child had received when she was five or six months old.
The last part of this answer stunned Upton. He asked Francis if he was talking about Sally Miller. He was. His mother-in-law had said that the girl had been held before a fire to keep her warm and sparks had burned her on her legs.
Upton quickly moved on. He asked Francis if he had seen the marks on Sally on the day Madame Carl had brought her to his house. No, he hadn’t, not personally. It was his wife who did the examination. He was in the bedroom, but they weren’t shown to him. But his wife had found them, all right.
In cross-examination, Grymes asked nothing about the marks on Sally’s legs. He was quite content to have them described as burns and he certainly didn’t want to give Francis the opportunity of changing his mind. Instead, he put it to Francis that he had no reason to believe that Sally was the child of Daniel Müller other than his recollection of her in Holland. Francis agreed. He also agreed that although he believed that Daniel Müller went to Attakapas, he didn’t know who had engaged him.
Grymes then asked a question as gentle as the slice of a knife through liver: Had he not expressed a great partiality toward one of the parties?
Francis replied that he took the part of the plaintiff because he knew her and he knew her to be in the right.
Well, pressed Grymes, when you heard of the death of Daniel Müller, with all your partiality for his children, why didn’t you go searching for them?
I didn’t know where to look. After us immigrants were sold, we were scattered like young birds leaving a nest, without knowing anything of each other. Most of us never kept in contact. There were so many people I never saw again. People who helped each other at Helder and on the boat—good, kind people who I never saw again. We talked a lot about what had happened to the children of Daniel Müller, but they had disappeared, along with the rest.
Upton had planned to call no further witnesses—that was until Francis Schuber had blurted out that his mother-in-law had said that the marks on Sally Miller’s legs were caused by sparks from a fire. The case certainly didn’t need that complication. Francis’s wife, Eva, had already been in the witness box and described them as brown moles and she had been backed up by Mistress Schultzeheimer, who had said they were moles the size of coffee beans—not likely to be confused with burn scars. If the nature of the marks was left in doubt, inevitably Grymes would suggest that they were burns, recently scorched into Sally’s skin in a desperate attempt to mimic those on the real Salomé Müller. Upton had seen the marks only briefly. In his office, Sally had sat on his desk and cautiously lifted her dress to let him examine her thighs. They looked like moles to him, but he couldn’t be sure. He wondered if he should take the risk of having Sally examined by Judge Buchanan; even going further and asking him to conduct a formal inspection of her whole body so that he could see for himself that there was no sign of African blood in her.
There were many cases in the law books of the South describing courtroom inspections of people claiming to be white. The usual procedure was for the claimant to stand in the well of the court under the gaze of the judge while their lawyer pointed out that their nose was thin and angular, or that their eyes were blue. He would ask them to bow their heads to display the straightness of their hair. Sometimes they would disrobe to show how pale their skin was. Next, physicians would come forward and provide opinions about the identifying features of the various races, and advise on what side of the line the claimant stood. It was a sideshow run by judges that drew idle people in as amused spectators.
Many who suffered this humiliation were free persons, and the issue was whether they could vote, or send their children to school, or carry a gun without a license, or be a witness in a court case against a white man. The court had to decide between those who were truly white, and those who merely looked white. To designate a person “visibly white” was to damn them. It meant that they wouldn’t stand closer scrutiny—there was a frizz to the hair, an unacceptable flatness to the nose, a thickness to the lips—all indicating that surging through the veins was tainted blood.
If you were “visibly white,” a reputed master wasn’t barred from asserting ownership, transmitted through a slave mother. One case, decided in Arkansas, illustrates the point. Thomas Gary, a sixteen-year-old, looked white. A Dr. Brown examined Thomas and said he could discover no trace of Negro blood in his eyes, nose, mouth, or jaws—his hair was smooth and of a sandy complexion, perfectly straight and flat, with no indications of the Negro curl. Thomas’s eyes were blue, his jaw thin, his nose slim and long. Dr. Brown’s expert view was that it would take at least twenty generations from black blood to look as white as Thomas Gary. Another physician, Dr. Dibbrell, said he would judge Thomas to possess a small amount of Negro blood, no more than one-sixteenth, perhaps not so much, and wouldn’t swear that he had any at a
ll. Admittedly, his upper lip was rather thicker than in the white race, but in the doctor’s opinion he made up for that by having a sanguine temperament.
Thomas Gary related a harrowing story to the court of how, after his father had remarried, he was sent away to Louisiana, where he had been taken in slavery and offered for sale. Being white, no one would buy him, so he had been sent back to Arkansas and sold to a man named Stevenson. Initially, both his father and Stevenson were in competition to own him, but under slave law, Thomas’s father could have no claim, so he dropped out of the case.
At trial, Stevenson insisted that Thomas had African blood in him and this came from his mother, Susan, who was a slave. Stevenson then produced a series of witnesses who told the jury that they had seen Thomas and Susan together and she had always treated young Thomas as her son and he had gone to her as his mother. The testimony was damning. According to the court, the connection with his slave mother was “sufficient to repel any presumption of freedom” arising from the whiteness of his skin.101
In another case in Arkansas, a woman named Abby Guy and her four children, in an effort to sway a jury, displayed their feet. Abby looked white and her children looked whiter. Abby’s eldest daughter had been accepted into a white boarding school, went to the white church, and was invited to parties where she danced with white boys. Abby lived with a white man named Guy, and passed as Mrs. Guy, but when Guy died, her previous owner seized her and the children.
Abby Guy’s attorney called two doctors whose expert evidence was intended to distance her and her family from black people. The note of their opinion in the law report reads:
Dr. Newton —Had read Physiology. There are five races—the negro is the lowest in intellect. Some physiologists are of the opinion that in the head of the mulatto, there is some negro hair, and some white hair, and that the negro hair never runs out. It would not run out before it passed the second generation. It may in the third generation have waves. The color, hair, feet, nose, and form of the skull and bones furnish means of distinguishing negro blood or descent. The hair never becomes straight until after the third descent from the negro, from either the father or mother’s side. The flat nose also remains observable for several descents. Dr. Comer —Heard the last witness, and corroborated his statements.102
The jury, on this evidence, set Abby Guy and her children free. Their owner took an appeal to the Supreme Court of Arkansas, where on a technicality a retrial was ordered. At the second trial, “the plaintiffs were brought into court for inspection, and were permitted to pull off their shoes and stockings, and exhibit their feet to the jury against the objection of the defendant.” Again the jury freed them and again the slaveowner appealed. The Supreme Court recorded that the slaveowner’s counsel had argued “with much warmth of expression, that the court committed a gross error in permitting them … to exhibit their bare feet.” The court disagreed, soberly recording that: “No one, who is familiar with the peculiar formations of the negro foot, can doubt, that an inspection of that member would ordinarily afford some indication of the race.”103 Abby Guy and her children were declared to be free.
Upton hesitated to put Sally Miller through a similar procedure. It would be a risky business to ask Buchanan to examine her and draw his own conclusion, and even if he agreed to take part, he was hardly qualified to be able to distinguish between a burn and a mole. Moreover, just presenting Sally for inspection would create an adverse impression—to someone like Buchanan, a white woman of repute would never participate in such a demeaning presentation.
Upton dithered. He decided to wait and see how the defense case proceeded. He told the judge that the issue of identification of the marks on Sally Miller was yet to be addressed. He would discuss the issue with Mr. Grymes and, if need be, return with further evidence. With that, he closed his case.
It was now time for Grymes to show that Sally Miller was a slave.
TEN
THE DEFENSE
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 attorne
y; 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.