by John Bailey
But if Miller was capable of swapping Salomé Müller for a dead slave, what else was he capable of? It then occurred to Upton that the explanation of how it had been possible for Miller and his mother to hold a German child without anyone noticing her had been evident for some time—if only he had possessed the wit to see it. He could have kicked himself for not thinking of it earlier. Eva Schuber had led him into the error of believing that Salomé Müller had been held captive in the boggy swamps of Attakapas. But all along, had she been in Mrs. Canby’s care in New Orleans? An act of charity had disguised a great evil. A number of the witnesses had praised Mrs. Canby for looking after orphan girls from the Ursuline Convent. No doubt some of the girls were orphans, but was it possible that Daniel Müller’s daughters had been concealed among them? Visitors, if they took any notice of her at all, would have assumed that the nuns had left her there. It was the perfect hiding place.
It was a grand theory, the difficulty being that Upton had only fragmentary evidence to sustain it.
The next day, Sally returned to Upton’s office with the news that she had another witness for him, not in the flesh, but he could be had with a few days’ notice from a sugar estate near Bayou Plaquemine. His name was Fribee. (His first name doesn’t appear in any of the court documents.) Fribee had told her that when he was working as an engineer in Miller’s sawmill he could recall Sally speaking with a German accent. Jubilantly, Upton wrote down the details. Along with Madame Poigneau and Mr. Wood, Upton now had three witnesses saying they recalled a girl with a German accent in Mrs. Canby’s service.
The next day Sally brought him Peter Curran, a tugboat pilot who lived at the Balize, at the very mouth of the Mississippi. His evidence was to the effect that Belmonti had told him that, a few weeks after purchasing Mary Miller, she was so troublesome that he had demanded of Miller that he take her back. Miller had told Belmonti that she was a white woman and was only to be kept a slave by kindness and coaxing. Belmonti was extremely dissatisfied with this conversation and had declared to Curran that if he had a pistol, he would have shot Miller. Upton regarded what Curran had to say as important because it backed up Eva Schuber’s testimony.
Then Nathan Wheeler returned to bring Upton something further. He had been thinking about things, and it was now his recollection that the date of Lafayette’s birth was 1827 or 1828. This was what Upton wanted to hear. So, quite ignoring Wheeler’s sworn evidence during the trial that Lafayette was born in 1825, and the obvious concern that Wheeler hated Miller because of his failed marriage with Miller’s sister, Upton included the new information in the motion for a new trial. Upton attributed Wheeler’s lapse of memory to “the excitement of his testimony in open court.”116
Upton wrote the motion for a new trial with the furious speed of an angry man and had it completed by June 27, a mere two days after Buchanan had delivered his judgment. He included the evidence of Fribee and Curran (which wasn’t new in the legal sense because it merely confirmed what other witnesses had said) and an affidavit from Wheeler (which was astonishingly new because it contradicted what he had said on oath). He also launched into a long complaint that Madame Bertrand’s evidence hadn’t been heard, adding that the plaintiff’s rights shouldn’t be “hazarded upon the ten minutes variance of a town clock.” He offered to pay for the costs of a new trial if the “negligence be really attributable” to him. After he had written the accompanying commentary, he had a document of fourteen pages. Much of its ink was spent in being offensive to Buchanan:
The Judge of this Hon. Court does not preside here as if his bench were of no higher dignity than a stand upon the Metairie Race Course, and he but to decide which jockey brought in his horse first to the winning-post by the head or the length … The judge here, and in such a case as this, has his own great responsibility to answer—he has his own conscience to satisfy—he has the true justice and merits of the case to pass upon, and give judgment according to his own sense of right and wrong.117
Judge Buchanan’s suggestion that the friends of Sally Miller might purchase her from Belmonti was rebuffed by Upton in contemptuous indignation. It was “a piece of advice, which does infinite credit to that cool indifference to feeling which is so excellent an attributer of the judge. History hands down to us the name of a Roman counsel who was equally successful in throwing aside all human weakness.”
This, presumably, was a reference to Pontius Pilate.
So it goes on, trumpeting, repetitive advocacy, peppered with poetry and garnished with insults. Upton quoted from Shakespeare, Byron, and a lengthy passage from Sir Walter Scott’s The Abbott. In case Buchanan thought there wasn’t a lot in common to be found in the adventures of noblemen in the Scottish highlands and a slave in Louisiana, Upton explained:
The author makes the Lord of Morton discover this resemblance of a son to his father, and that father not having been seen by Morton for nearly twenty years. And is there anything in this unnatural or improbable? On the contrary, we find it true and truthful—it is strange to be sure, but “truth is strange, and stranger than fiction.” I doubt much if Mrs. Hemm ever read Walter Scott, but Walter Scott read such people as Mrs. Hemm.118
He had Sally Miller come to his office to sign the motion—not with her mark, as she had a year earlier, but with a full signature.
Upton then appeared before Judge Buchanan and laboriously read through the fourteen pages of his motion, while the judge fumed. After inflicting romantic novelists upon him and comparing him to Pontius Pilate, Upton asked him to grant a new trial. In reply, Grymes read out an excerpt from a decision of the English Kings Bench deploring the practice of losing parties demanding a second hearing when they hadn’t prepared properly in the first place. He trusted there was no necessity for him to spend too much of the court’s time on this particular motion, he said, before adding unctuously that His Honor would know what do with it. He then sat down.
Motion denied, growled Buchanan. Upton, following the script, stood up and announced that there would be an appeal to the Supreme Court.
I never doubted that for a moment, replied Buchanan.
TWELVE
THE APPEAL
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 th
eir 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 Louisi
ana, 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.