The Lost German Slave Girl

by John Bailey

  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 le
gal 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.