by John Bailey
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. Th
e 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 witnesse
s 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.