The Purchase of Intimacy

Chapter 1
ENCOUNTERS OF INTIMACY AND ECONOMY
In the parish of Catahoula, Louisiana, during the 1840s Samuel Miller lived on his plantation with Patsy, his mulatto slave and sexual partner. In 1843, as Miller fell ill with dropsy, he sold the land and his slaves to Hugh Lucas, settling for nine promissory notes of $3,000 each, to be paid yearly. In April 1844, Miller, who was in declining health, left Louisiana with Patsy for St. Louis, Missouri. Before leaving, Miller gave the promissory notes to William Kirk, asking him to "keep them for Patsy's benefit" since "he intended to have her emancipated, and that he wanted the notes to enure to her benefit" (Cole v. Lucas, 2 La. Ann. 1946, 1948 (1847)).1 The previous year, Miller had granted Kirk power of attorney, authorizing him to emancipate Patsy.
Later in 1844, Kirk brought the promissory notes to Missouri and returned them to Miller. Patsy received her emancipation in Madison City, Indiana, in May 1844. Back in Missouri, Miller gave her the notes. He died a week or so later, on May 21. Patsy and Miller were apparently living in modest circumstances; the inventory of his possessions conducted in January 1845 listed these items: "One man slave and four children, and one woman who had run away in October previous, and not since been heard of, a book-account of $500 against William Kirk, one dinner table, two breakfast tables, one feather bed and bedstead, one small bedstead or lounge and one gun" (949-50). After Miller's death, Cole, Miller's former neighbor in Catahoula, traveled to Missouri and bought the promissory notes from Patsy.
We know of these events and people because the court in Catahoula heard a suit by Cole against Lucas, the debtor in the notes. Cole, as owner of the notes, demanded that Lucas pay him the annual installments. As the suit proceeded, however, a certain Griffin, representing Miller's heirs, intervened, claiming ownership of the promissory notes. Yet the jury hearing this trial ruled against Griffin and in favor of Cole, confirming Cole as the notes' rightful owner.
On what grounds could the heirs intervene? Up to this point, after all, the transactions seemed straightforward. While acknowledging that Miller gave Patsy the promissory notes and that she sold them to Cole, the family claimed that Patsy had no legal or moral right to the notes. If the family's claim was correct, Cole himself therefore did not have legal ownership of the notes. The case pivoted on the relationship between Miller and Patsy: was she Miller's slave? Was she his concubine? Or were they essentially man and wife? If a slave, under Louisiana law she could legally receive no gifts at all. As a concubine, she could only receive the equivalent of one-tenth of the value of her lover's estate in movables, but no immovables. If his wife, she could receive any gift whatsoever. The Catahoula jury ruled that the gift was legal because Patsy was already free at the time she received the promissory notes. They also accepted Cole's claim that the more liberal laws of Missouri applied to her legal status and to the transfer itself.
But the heirs did not give up; they appealed the Catahoula decision to the Supreme Court of Louisiana. The court accepted the heirs' arguments that Miller's move to Missouri had circumvented Louisiana law and that Miller's friends had provided no evidence of Patsy's having received the notes after her emancipation. Again, notice what is happening: except for some questions about dates, no one was disputing that Miller and Patsy had lived together or that Miller had given her the notes. The critical question was what relationship they had in the law's eyes at the time of the gift. The appeals court that reversed the initial jury verdict was anxious to defend the Louisiana law: "We have already stated our opinions of the relations subsisting between the parties to this donation. The disabilities under which the law places persons who have lived in this condition, are created for the maintenance of good morals, of public order, and for the preservation of the best interests of society" (952). Thus, the court inserted a condemnation of interracial concubinage into a judgment concerning domicile.
To twenty-first-century eyes, the whole case is astonishing. Here is a court overturning the efforts of a dying man, who clearly knew what he was doing, to protect his long-term companion's financial welfare. The couple had lived together for some time, and trusted friends knew of their connection. In fact, the court described their relationship as "open and notorious." Yet the appeals court decided that the legal standing of the relationship invalidated Miller's gift: Patsy had been his slave and his concubine.