But the combined efforts of Roselius, Upton, and others were unavailing, and the newspapers of the following day reported: "This cause, continued from yesterday, came on again to-day, when, after hearing arguments of counsel, the court took the same under consideration."
It must be a dull fancy that will not draw for itself the picture, when a fortnight later the frequenters of the court-room hear the word of judgment. It is near the end of the hot far-southern June. The judge begins to read aloud. His hearers wait languidly through the prolonged recital of the history of the case. It is as we have given it here: no use has been made here of any testimony discredited in the judge's reasons for his decision. At length the evidence is summed up and every one attends to catch the next word. The judge reads:
"The supposed identity is based upon two circumstances: first, a striking resemblance of plaintiff to the child above mentioned and to the family of that child. Second, two certain marks or moles on the inside of the thighs [one on each thigh], which marks are similar in the child and in the woman. This resemblance and these marks are proved by several witnesses. Are they sufficient to justify me in declaring the plaintiff to be identical with the German child in question? I answer this question in the negative."
What stir there was in the room when these words were heard the silent records lying before me do not tell, or whether all was silent while the judge read on; but by and by his words were these:
"I must admit that the relatives of the said family of redemptioners seem to be very firmly convinced of the identity which the plaintiff claims.... As, however, it is quite out of the question to take away a man's property upon grounds of this sort, I would suggest that the friends of the plaintiff, if honestly convinced of the justice of her pretensions, should make some effort to settle à l'aimable with the defendant, who has honestly and fairly paid his money for her. They would doubtless find him well disposed to part on reasonable terms with a slave from whom he can scarcely expect any service after what has passed. Judgment dismissing the suit with costs."
The white slave was still a slave. We are left to imagine the quiet air of dispatch with which as many of the counsel as were present gathered up any papers they may have had, exchanged a few murmurous words with their clients, and, hats in hand, hurried off and out to other business. Also the silent, slow dejection of Salome, Eva, Frank, and their neighbors and kin—if so be, that they were there—as they rose and left the hall where a man's property was more sacred than a woman's freedom. But the attorney had given them ground of hope. Application would be made for a new trial; and if this was refused, as it probably would be, then appeal would be made to the Supreme Court of the State.
So it happened. Only two days later the plaintiff, through one of her counsel, the brother of Frank Upton, applied for a new trial. She stated that important evidence not earlier obtainable had come to light; that she could produce a witness to prove that John F. Miller had repeatedly said she was white; and that one of Miller's own late witnesses, his own brother-in-law, would make deposition of the fact, recollected only since he gave testimony, that the girl Bridget brought into Miller's household in 1822 was much darker than the plaintiff and died a few years afterwards. And this witness did actually make such deposition. In the six months through which the suit had dragged since Salome had made her first petition to the court and signed it with her mark she had learned to write. The application for a new trial is signed—
The new trial was refused. Roselius took an appeal. The judge "allowed" it, fixing the amount of Salome's bond at $2000. Frank Schuber gave the bond and the case went up to the Supreme Court.
In that court no witnesses were likely to be examined. New testimony was not admissible; all testimony taken in the inferior courts "went up" by the request of either party as part of the record, and to it no addition could ordinarily be made. The case would be ready for argument almost at once.