by John Bailey
106 A copy of the affidavit and the extract from the Register of Baptism appears in Docket 5623.
107 Miller’s pamphlet, p. 10.
108 Upton new trial. The italics are Upton’s.
109 Docket 5623.
110 Docket 5623.
111 Although most of the final addresses of counsel haven’t survived, a good idea of what they said can be gauged by the pamphlets the parties later wrote about the case, appeal papers, and reports in the press. The portion that is reproduced appears in Upton new trial.
11 Judgment
112 Bryan v. Walton (1853 Ga) 14 Ga 185, 205.
113 Docket 5623.
114 Articles 557-61 of the Code of Practice.
115 Upton new trial.
116 Upton new trial.
117 Docket 5623 and Upton new trial.
118 Upton new trial.
12 The Appeal
119 State v. Mann (1829 NC) 2 Dev. 263, 267.
120 Mrs. Canby’s comment appears in Miller’s pamphlet, p. 22.
121 Much of the material on Martin comes from Henry A. Bullard, “A Discourse on the Life and Character of the Honorable François-Xavier Martin,” in Judith Kelleher Schafer and Warren M. Billings (eds.), The Louisiana Purchase Bicentennial Series in Louisiana History, vol. XIII, University of Southwestern Louisiana, Lafayette, 1997, pp. 691–707. See also: Appleton’s Cyclopaedia of American Biography, New York, 1888; Glenn R. Conrad (ed.), A Dictionary of Louisiana Biography, University of Southwestern Louisiana, Lafayette, 1988; and Henry Rightor, Standard History of New Orleans, Louisiana, The Lewis Publishing Co., Chicago, 1900, p. 96.
122 Louisiana Law Journal, 1842, vol. 1, p. 157.
123 Adelle v. Beauregard (1810 La) 1 Mart. (O.S.) 183, 184.
124“Slavery,” wrote a Mississippi Appeals judge in 1818,”is condemned by reason and laws of nature” (Harry v. Decker & Hopkins [1818 Miss] Walk. Miss 36, 42). A judge of the Virginian Supreme Court in 1828 referred to “the spirit of the Laws of all civilized nations which favor liberty” (Isaac v. West’s Ex’r [1828 Va] 6 Randolph 652, 657). In the same year, a Missouri judge stated, “All men are by the law of nature free” and without some positive declaration of the state should be set at liberty (Marguerite v. Chouteau [1828 Mo] 2 Mo 71, 90).
125 Virginia was one of the first states to recant. In 1831 the Court of Appeals said that “all who have examined the earlier cases in our books, must admit, that our judges (from the purest motives, I am sure) did, infavorem libertatis, sometimes relax, rather too much, the rules of law” (Gregory v. Baugh [Va 1831] 2 Leigh 665, 680). In 1860 the Supreme Court of the state of Arkansas wrote, “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” (Phebe v. Quillin [1860 Ark] 21 Ark 490, 500). In the same year the Supreme Court of North Carolina wrote, “the true principle of our law, in relation to the emancipation of slaves, is, that it permits, but does not favor it” (Myers v. Williams [1860 NC] 5 Jones Eq. 362, 367).
126 Marie Louise F.W.C. v. Marot (1835 La) 8 La (O.S.) 667, 669-70. There was a retrial and Josephine was eventually freed: Marie Louise F.W.C. v. Marot (1835 La) 9 La (O.S.) 295.
127 Mary v. Morris (1834 La) 7 La 135.
13 A Presumption in Favor of Liberty
128 Henry A. Bullard, “A Discourse on the Life and Character of the Honorable François-Xavier Martin,” in Judith Kelleher Schafer and Warren M. Billings (eds.), The Louisiana Purchase Bicentennial Series in Louisiana History, vol. XIII, University of Southwestern Louisiana, Lafayette, 1997, p. 704.
129 Sally Miller v. Louis Belmonti (1845 La) 11 Rob. 339.
130 Sally Miller v. Louis Belmonti (1845 La) 11 Rob. 339, 343.
131 Quoted in Louis Voss, “Sally Mueller, the German Slave,” Louisiana Historical Quarterly, vol. 12, 1929, pp. 447, 459-60.
132 Reports of the celebrations for Sally Miller appear in the Daily Tropic, June 30, 1845, the National Anti-Slavery Standard, July 31, 1845, and the Jeffersonian Republic, June 24, 1845.
14 The Children of Salomé Müller
133 Müller v. Miller and Canby, general case 1403 (entry 121, location A1610136), the National Archives—Southwest Region (Fort Worth, TX).
134 Müller v. Miller and Canby, general case 1403 (entry 121, location A1610136), the National Archives—Southwest Region (Fort Worth, TX).
15 Polly Moore
135 Miller’s pamphlet, p. 16.
136 Miller’s pamphlet, p. 19.
137 Miller’s pamphlet, p. 3.
138 Miller’s pamphlet, pp. 6, 12, 15-16.
139 Miller’s pamphlet, p. 18.
140 Miller’s pamphlet, p. 17.
141 Daily Picayune, June 22, 1845; Daily Tropic, June 23, 1845.
142 The depositions are contained in Müller v. Miller and Canby, general case 1403 (entry 121, location A1610136), the National Archives—Southwest Region (Fort Worth, TX).
143 Docket 1114.
16 Nullity
144 The evidence of Brown and Coward appears in Müller v. Miller and Canby, general case 1403 (entry 121, location A1610136), the National Archives—Southwest Region (Fort Worth, TX).
145 Docket 1114.
146 Article 608 of the Code of Practice.
147 The sheriff’s notes are to be found on the papers associated with the subsequent appeal. See Docket 1114.
148 Docket 1114.
149 Docket 1114.
150 Miller v. Miller et al. (1849 La) 4 La An 354.
17 The Woman Who Remembered Nothing
151 Sally Miller v. Louis Belmont (1845 La) 11 La 339.
152 Harvey Breach v. Miller’s Testamentary Executors (1860 La) 15 La An 601.
153 See Judith Kelleher Schafer and Warren M. Billings (eds.), The Louisiana Purchase Bicentennial Series in Louisiana History, vol. XIII, University of Southwestern Louisiana, Lafayette, 1997, pp. 416, 418, 460.
154 Monroe Bulletin, May 19, 1886.
155 Cable, p. 191; J. Hanno Deiler is quoted in Louis Voss, “Sally Mueller, the German Slave,” Louisiana Historical Quarterly, vol. 12, 1929, pp. 447, 460.
156 John S. Kendall, “Shadow Over the City,” Louisiana Historical Quarterly, vol. 22, 1939, pp. 148, 165. See also Carol Wilson, “Sally Muller, the White Slave,” Louisiana History, spring 1999, vol. XL, p. 133. Wilson concludes that Sally Miller was “more likely than not” the lost German girl, but it appears the author wasn’t aware of the material relating to the trial at the U.S. Circuit Court.
* Emancipation was prohibited in South Carolina at that time (1835) and it seems that Fable’s intention was to get around the law by arranging that his executor, after purchasing his son, should give him a large degree of liberty (called “quasi-freedom” in the law report). The report doesn’t say why Fable directed that only one of his children should be purchased by the executor. Perhaps there wasn’t enough money in the estate to buy both of them.
* It was always open to masters, contemplating the future emancipation of their female slaves, to specify that children should be freed along with their mothers, but many neglected to do so.
* As section 4 of Louisiana’s Black Code stated: “The slaves disabled through old age, sickness, or any other cause, whether their diseases be incurable or not, shall be fed and maintained by their owners … under the penalty of a fine of five and twenty dollars for every offense.”
* Two witnesses in the trial to free Salomé Müller, J.C. Wagner and F. Schuber, refer to this litigation but don’t explain why it produced nothing for them (Docket 5623). Most likely it never went to trial. See also Cable, p. 157.
* In 1830, one in every seven slaves in New Orleans was owned by a free black: see Lawrence Kotlikoff and Anton J. Rupert, “The Manumission of Slaves in New Orleans,” Southern Studies, vol. 19, summer 1980, p. 177. Some of the black slaveowners included in this figure may have been plantation manage
rs for absentee owners.
* In a case that was described by the court as being “by no means free of difficulty,” the judge declared Thompson free pro tanto, which is a Latin tag tending to camouflage the rather awkward result that Thompson was free to the extent of three-fifths. The judge then suggested that since most of the work of emancipation had been accomplished, it would be a good idea if the other owners entered into an arrangement to make Thompson entirely free. Thompson v. Thompson (1844 Ky) 4 B. Mon. 502.
* Cynthia Simmons got a male slave to murder her husband: State v. Cynthia Simmons and Laurence Kitchen (1794 SC) 1 Brevard 6. John Skinner had two of his slave women put arsenic in the soup of a relative, Samuel Skinner, killing him: State v. Poll and Lavinia (1821 NC) 1 Hawks 442.
* Attakapas was one of the counties created by the governor and the Legislative Council in 1805 as a judicial and administrative district. It was in the southwest of the state and included New Iberia.
* A shotgun house is a narrow structure with connecting doors in a line, giving rise to the notion that you could fire a shotgun from the front gate and hit someone standing in the back room. It is thought that the design came to Louisiana with Haitian refugees in the first two decades of the nineteenth century.
* It wasn’t until 1900 that it was discovered that the bite of the Aedes aegypti mosquito carried yellow fever to humans. New Orleans was superbly sited to be a breeding ground for mosquitoes. Stagnant water pooled within the city boundaries, it was surrounded by swamps, and during the summer it rained every few days.
* The obeah was a priest-like figure, skilled in the use of charms and potions, and often possessing the authority to wield spiritual and community leadership over his fellow slaves.
* This being section 9 of the state’s 1828 Black Code. In 1854, Georgia passed a law of weasel words that said that children under five shouldn’t be sold separately from their mothers—but this only applied to deceased estates and then only if the distribution wasn’t otherwise affected. Alabama had a similar law.
* Over decades, the Mississippi River deposited a considerable tract of land adjacent to the New Orleans waterfront—called a “batture”—and the dispute about who owned the resulting real estate was the subject of wrangling in the courts for years.
* In writing this book, I have relied heavily on the notes kept by the clerk of courts, particularly in portraying the events of the trial. The notes, however, have their limitations: they are only a précis of what was said, and are usually in the third person. Mr. Gilmore did not record counsels” addresses on the facts, or submissions on the law, although the judge’s rulings were sometimes inscribed in bills of exception, in the judge’s own handwriting. Gilmore’s notes also contain an occasional error (for example, mixing up the plaintiff and the defendants), but I must not be too critical—given that his words were written at speed, with quill and ink, they are remarkably comprehensive. The approach I have taken is to reconstitute the evidence into what I think counsel asked, and the witnesses replied. I have omitted much that is repetitious, and placed examinations about the same topic together. Where obvious gaps appear I have relied on sources such as newspaper reports, the pamphlets written about the case, and what I think it was likely counsel would have said. The notes of the case before Buchanan were made part of the Supreme Court Collection, now housed at the University of New Orleans, Docket 5623.
* Johns was an interesting character. Born in Krakow, Poland, and probably educated in Vienna as well as being a printer and law-stationer, he was also an accomplished pianist and composer. He gained international fame in 1833 when several of his works were published in Paris under the title of Album Louisianais. He was also the Honorary Consul to Russia.
* That is, free man of color or free woman of color.
* The Louisiana Code of Practice gave Buchanan plenty of scope. Article 576, apparently dealing with slaves and fruit in the one paragraph, read: “If the judgment [appealed against] decree the delivery of a slave or some moveable of a perishable nature, the court shall require surety to an amount exceeding by one half the estimate value of such slave or moveable.”
* On March 18,1846, the day following his eighty-fourth birthday, Martin completed his term as chief judge of the old Supreme Court, but as a mark of his displeasure at being swept from office, he refused to appear on the bench. The new court, presiding in the same room in the Cabildo as the old, commenced on March 19, 1846. Without the inspiration of the law to keep him alive, Martin faltered and he died eight months later.