BEFORE THE SUPREME COURT.

Once more it was May, when in the populous but silent court-room the clerk announced the case of Miller versus Louis Belmonti, and John F. Miller, warrantor.  Well-nigh a year had gone by since the appeal was taken.  Two full years had passed since Madame Karl had found Salome in Belmonti’s cabaret.  It was now 1845; Grymes was still at the head of one group of counsel, and Roselius of the other.  There again were Eva and Salome, looking like an elder and a younger sister.  On the bench sat at the right two and at the left two associate judges, and between them in the middle the learned and aged historian of the State, Chief-Justice Martin.

The attorneys had known from the first that the final contest would be here, and had saved their forces for this; and when on the 19th of May the deep, rugged voice of Roselius resounded through the old Cabildo, a nine-days’ contest of learning, eloquence, and legal tactics had begun.  Roselius may have filed a brief, but I have sought it in vain, and his words in Salome’s behalf are lost.  Yet we know one part in the defense which he must have retained to himself; for Francis Upton was waiting in reserve to close the argument on the last day of the trial, and so important a matter as this that we shall mention would hardly have been trusted in any but the strongest hands.  It was this:  Roselius, in the middle of his argument upon the evidence, proposed to read a certain certified copy of a registry of birth.  Grymes and his colleagues instantly objected.  It was their own best gun captured and turned upon them.  They could not tolerate it.  It was no part of the record, they stoutly maintained, and must not be introduced nor read nor commented upon.  The point was vigorously argued on both sides; but when Roselius appealed to an earlier decision of the same court the bench decided that, as then, so now, “in suits for freedom, and in favorem libertatis_, they would notice facts which come credibly before them, even though they be dehors the record." And so Roselius thundered it out.  The consul for Baden at New Orleans had gone to Europe some time before, and was now newly returned.  He had brought an official copy, from the records of the prefect of Salome’s native village, of the registered date of her birth.  This is what was now heard, and by it Salome and her friends knew to their joy, and Belmonti to his chagrin, that she was two years older than her kinsfolk had thought her to be.

Who followed Roselius is not known, but by and by men were bending the ear to the soft persuasive tones and finished subtleties of the polished and courted Grymes.  He left, we are told, no point unguarded, no weapon unused, no vantage-ground unoccupied.  The high social standing and reputation of his client were set forth at their best.  Every slenderest discrepancy of statement between Salome’s witnesses was ingeniously expanded.  By learned citation and adroit appliance of the old Spanish laws concerning slaves, he sought to ward off as with a Toledo blade the heavy blows by which Roselius and his colleagues endeavored to lay upon the defendants the burden of proof which the lower court had laid upon Salome.  He admitted generously the entire sincerity of Salome’s kinspeople in believing plaintiff to be the lost child; but reminded the court of the credulity of ill-trained minds, the contagiousness of fanciful delusions, and especially of what he somehow found room to call the inflammable imagination of the German temperament.  He appealed to history; to the scholarship of the bench; citing the stories of Martin Guerre, the Russian Demetrius, Perkin Warbeck, and all the other wonderful cases of mistaken or counterfeited identity.  Thus he and his associates pleaded for the continuance in bondage of a woman whom their own fellow-citizens were willing to take into their houses after twenty years of degradation and infamy, make their oath to her identity, and pledge their fortunes to her protection as their kinswoman.

Day after day the argument continued.  At length the Sabbath broke its continuity, but on Monday it was resumed, and on Tuesday Francis Upton rose to make the closing argument for the plaintiff.  His daughter, Miss Upton, now of Washington, once did me the honor to lend me a miniature of him made about the time of Salome’s suit for freedom.  It is a pleasing evidence of his modesty in the domestic circle-where masculine modesty is rarest-that his daughter had never heard him tell the story of this case, in which, it is said, he put the first strong luster on his fame.  In the picture he is a very David-“ruddy and of a fair countenance”; a countenance at once gentle and valiant, vigorous and pure.  Lifting this face upon the wrinkled chief-justice and associate judges, he began to set forth the points of law, in an argument which, we are told, “was regarded by those who heard it as one of the happiest forensic efforts ever made before the court.”

He set his reliance mainly upon two points:  one, that, it being obvious and admitted that plaintiff was not entirely of African race, the presumption of law was in favor of liberty and with the plaintiff, and therefore that the whole burden of proof was upon the defendants, Belmonti and Miller; and the other point, that the presumption of freedom in such a case could be rebutted only by proof that she was descended from a slave mother.  These points the young attorney had to maintain as best he could without precedents fortifying them beyond attack; but “Adele versus Beauregard” he insisted firmly established the first point and implied the court’s assent to the second, while as legal doctrines “Wheeler on Slavery” upheld them both.  When he was done Salome’s fate was in the hands of her judges.

Almost a month goes by before their judgment is rendered.  But at length, on the 21st of June, the gathering with which our imagination has become familiar appears for the last time.  The chief-justice is to read the decision from which there can be no appeal.  As the judges take their places one seat is left void; it is by reason of sickness.  Order is called, silence falls, and all eyes are on the chief-justice.

He reads.  To one holding the court’s official copy of judgment in hand, as I do at this moment, following down the lines as the justice’s eyes once followed them, passing from paragraph to paragraph, and turning the leaves as his hand that day turned them, the scene lifts itself before the mind’s eye despite every effort to hold it to the cold letter of the time-stained files of the court.  In a single clear, well-compacted paragraph the court states Salome’s claim and Belmonti’s denial; in another, the warrantor Miller’s denial and defense; and in two lines more, the decision of the lower court.  And now-

“The first inquiry,” so reads the chief-justice-“the first inquiry that engages our attention is, What is the color of the plaintiff?”

But this is far from bringing dismay to Salome and her friends.  For hear what follows: 

“Persons of color”-meaning of mixed blood, not pure negro-“are presumed to be free....  The burden of proof is upon him who claims the colored person as a slave....  In the highest courts of the State of Virginia ... a person of the complexion of the plaintiff, without evidence of descent from a slave mother, would be released even on habeas corpus....  Not only is there no evidence of her [plaintiff] being descended from a slave mother, or even a mother of the African race, but no witness has ventured a positive opinion that she is of that race.”

Glad words for Salome and her kindred.  The reading proceeds:  “The presumption is clearly in favor of the plaintiff.”  But suspense returns, for-“It is next proper,” the reading still goes on, “to inquire how far that presumption has been weakened or justified or repelled by the testimony of numerous witnesses in the record....  If a number of witnesses had sworn”-here the justice turns the fourth page; now he is in the middle of it, yet all goes well; he is making a comparison of testimony for and against, unfavorable to that which is against.  And now-“But the proof does not stop at mere family resemblance.”  He is coming to the matter of the birth-marks.  He calls them “evidence which is not impeached.”

He turns the page again, and begins at the top to meet the argument of Grymes from the old Spanish Partidas.  But as his utterance follows his eye down the page he sets that argument aside as not good to establish such a title as that by which Miller received the plaintiff.  He exonerates Miller, but accuses the absent Williams of imposture and fraud.  One may well fear the verdict after that.  But now he turns a page which every one can see is the last: 

“It has been said that the German witnesses are imaginative and enthusiastic, and their confidence ought to be distrusted.  That kind of enthusiasm is at least of a quiet sort, evidently the result of profound conviction and certainly free from any taint of worldly interest, and is by no means incompatible with the most perfect conscientiousness.  If they are mistaken as to the identity of the plaintiff; if there be in truth two persons about the same age bearing a strong resemblance to the family of Miller [Mueller] and having the same identical marks from their birth, and the plaintiff is not the real lost child who arrived here with hundreds of others in 1818, it is certainly one of the most extraordinary things in history.  If she be not, then nobody has told who she is.  After the most mature consideration of the case, we are of opinion the plaintiff is free, and it is our duty to declare her so.

“It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be reversed; and ours is that the plaintiff be released from the bonds of slavery, that the defendants pay the costs of the appeal, and that the case be remanded for further proceedings as between the defendant and his warrantor.”

So ends the record of the court.  “The question of damage,” says the “Law Reporter,” “is the subject-matter of another suit now pending against Jno.  F. Miller and Mrs. Canby.”  But I have it verbally from Salome’s relatives that the claim was lightly and early dismissed.  Salome being free, her sons were, by law, free also.  But they could only be free mulattoes, went to Tennessee and Kentucky, were heard of once or twice as stable-boys to famous horses, and disappeared.  A Mississippi River pilot, John Given by name, met Salome among her relatives, and courted and married her.  As might readily be supposed, this alliance was only another misfortune to Salome, and the pair separated.  Salome went to California.  Her cousin, Henry Schuber, tells me he saw her in 1855 in Sacramento City, living at last a respected and comfortable life.