(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A full report of the great Gaines case : in the suit of Myra Gaines vs. Chew, Relf & Others, for the recovery of the property of the late Daniel Clark ..."

<> t 








^^^*, 






% 



UNIVERSITY OF PITTSBURGH 




D. 



igton 



Me 



J LiL. 



•ary 



i 



r 



'\'^ \-,^^-?V'">. ^s, 



( 



^XAflA DARLING roN 

MUHORIAL LIDRARV 

UHlVEHiMlY OF ?lTrSBU(tGM 



UNITED STATES CIRCUIT COURT. 



A FULL REPORT 



THE GREAT GAINES CASE 



TUK SUIT OF 



MYRA GAINES vs. CHEW, RELF & OTHERS. 

FOR THE RKCOVERY OF THE PROPERTY OF THE LATE DANIEL CLARK, INVOLVING- 
SEVERAL MILLIONS, IN WHICH THE LEGITIMACY OF THE PLAINTIFF, 
IS INVESTIGATED, AND HER ROMANTIC AND INTERESTING 
HISTORY DEVELOPED; 



C L U D 1 N O 



THK niPOSmONS AND DOCUMRNTS IN THE CASE,— THE SPEECHES CF THE LAWyEll.--, 
(EMBIUCING SOME OF THE MOST EMINENT TALENT OF THE BAR OF LOUISIANA AND ALABAMA 
AND THK DECISION OF JUDGE McCALKB. 



REVORTEl) BY 



ALEXANDER WALKER. 



NEW ORLEANS: 
PRINTED AT THE OFFICE OF THE DAILY DELTA, ll'J POYDRAS t?TREET. 



18 5 0. 



ENTERED, ACCORDING TO ACT OF CONGRESS, IN THE YEAR 1850, BY ALEX. WALKER, IN THE CLERK'S 
OFFICE OF THE FIRST DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. 



I N T 11 D U C T I N 



Tub roinark thai " truth is straiii?ei timn Action,'" was nevur more forcibly illtislratud, than by itvc 
liistory of the suit brought by Mrs. Myrn Gaines, to recover the property which belonsjtxl to Mr. Daniel 
yVs, Clark, who she alleges was her father. The wildest rom:inco ever written, couUl not contain n 
^^ greater variety of strange incidents, more affecting details, more strongly marked characters, a 
^ more constant succcession of stirring events, and stronger exhibitions of folly, intrig e, deception 
^ and crime. The^e details, too, combine the qualities of the most thrilling romance, with the 
rairn substantial foritui-es of history, not only in its graver national and political aspect, but also 
in the more humble, but not less useful sphere of embodying the manners and habitus and social 
^^ ideas and customs of the times. Heroin will be found a large fund of information, relative to 
^ the acquisition of Louisiana by Mr. Jefferson, in 1803, in tiic inception and accomplishment of 
i\? which Dmiel Clark played a conspicuou.? part. In Clark's letters, and those addressed to him, are 
1 developed many little under currents aud subordinate events, relating to the cession of Louisiana' 
which have never appeare<l before. P.iS3iug from political to commercial affairs, the history of th«' 
^ most ambitious and enterprising merchants on this continent, such as Coxe and Clark wore in their 
ilay, will be found full of valuable information to those who are curious in that department of 
knowledge. Not loss interesting, and even more valuable, is the light which this record sheds upon 
the progress and changes in jurisprudence, through which this State has passed, since the 
events occurred, which have produced this litigation. The history of these parties, includes the 
most interesting epochs in the history of Louisiaua. It commences with the old Spanish Gov- 
ernment, when this colony was governed by that venerable compound of old Roman and Monastic, 
^^ or Ecclesiwtical law, from which the most enlightened features in the jurisprudence of all the 
^ present cirilizotl nations of the world is derived. The marriage of Zulime Carriere to Jerome 
(^ DoGrange occurred under that law,— so did the alleged marriage of Clark and Zulime, and their 
effects must, therefore, in a great measure, be controlled by the principles of the old Spanish law. 
^ The next era occurs after the cession in 1803, and includes the period of the Territorial Gov- 
^ ernment of this colony, down to 1803, when the old code went into operation. That cotle was 
^ 4 very materially changetl by two uvonts— Qrst, the lulmission of Louisiana into tin.' Union in Itfli, and 
^Vsk the consequent inlroduciion of the chancery system of practice ; aud secondly, by the adoption of 
^O the codo of 13-25. To cjmprehcud fuUy, therefore, the bearings of this case, it is necessary con- 
stantly to refer to these various systems of jurisprudence. This case, therefore, possesses deep 
j,^ interest in its jurisprudenti.il iwpccts, and will be fomid to contain a great fund of valuable in- 
S«Vj formation, illustrative of the features of the different codes, which have controlled the rigbtn 
S^S\ sad regulated the duties of ibe citizens of Louisiana, since iU first settlement. 



iv. INTRODUCTION. 

The characters of the individuals, who play the principal parts in this history, give also grea« 
variety and interest to the drama. The proud, ambitious, passionate, enterprising, yet affection- 
ate, gfflierous and kindly natui-e of Daniel Clark, who, amid all his trials and changes, never 
forgot the claims of his old mother and sisters, upon his duty and bounty, and seemed to be so 
deeply concerned to make edequate arrangements for the support and education of his children, 
whether born in matrimony or not, — qualities which bound his friends to him " as with hooks of 
steel,"— these were set off by vices and failings, which may be ascribed to the times in which he 
lived,— such as led him to betray the confidence of the poor French Syrup maker, by alienating 
from him the affections of his wife, and to desert the afflicted Zulime, in pursuit of the more 
glittering prize of the heiress of the House of CarroUton. As minor failings,' we should not 
omit to notice the disposition manifested in the numerous letters on file to employ bribery, the 
'influence of political position and intelligence procured by certain means, in advance of the rest 
of the world, to promote his commercial ventures. The other personages in the drama, also pre- 
sent very interesting features of character. The history of Zulime is full of romance. Her 
parents came from the land of poetry and romance,— the far famed home of the Troubadours- 
Provence. A native of Louisiana, she inherited the beauty for which the Creoles of this State 
are so celebrated, and at an' early age, was followed by trains of admirers. Like many others, 
even of the damsels of our own Republic, she was captivated by a title, and before she was fif- 
teen, married Jerome DeGrange, a Frenchman, whose want of personal charms, was amply atoned, 
for, by his claims to descent from one of the "first families" of France. The alliance however, 
seems to have been an unhappy one. Zulime was gay and beautiful. The aristocratic preten- 
sions of Jerome soon collapsed. His fall was nearly as great as that of the Prince of Como's, 
he sunk from the lofty position of a branch of the "Ancien Regime" into a poor Syrup maker 
and confectioner. ZuUme thus cruelly disappointed in her first matrimonial adventure, was not 
disposed to waste her charms in a convent, or to mourn in secret over her misfortunes. She 
was evidently possessed of strong domestic traits and qualities. Hence her alliance with 
Clark, which we shall not attempt to designate. Hence, too, when in 1808, she discovered that 
Clark had deserted her, to offer his homage to Miss Caton, she married Dr. Gardette, with whom 
she continued to live until the day of his death, respected by all the friends of the family. So 
much of Zulime, whose nai-rative of this interesting affair, will be found in the following record. 
We have then the various other subordinate character in this drama, all of which present points 
and features of interest. The devotion of the two sisters of Zulime, Madames Despau and Cailla- 
vet, as well as the warm friendship of Clark's particular fHends, Pitot, Bellechasse Bonfoistaine 
and De la Croix, form pleasant episodes in this narrative. 

But what, after all, can equal the romance of the history of the lady complainant in this suit ?— 
Bom in secret, and removed from the care of her mother, she is brought up in ignorance of her 
parentage by a kind family. Never does the suspicion cross her mind that she is not the lawful 
child of her foster parents, until she attains full age and forms a matrimonial alliance. When 
the secret of her birth is betrayed to her, her whole nature is thoroughly aroused, and her mind 
excited to the vigorous prosecution of her rights. She commences then, with the ardent aid and 
guidance of her husband, the legal measures, to recover what she believed to be her rights. Her 
husband, an impulsive and detei-mined young man, involved himself in serious difficulties in the 
prosecution of these legal proceedings. He wa-s imprisoned for a libel of the defendants, the Exe- 
cutors of Clark's estate. His death, by yellow fever, soon after removed him from the scene of 
worldly contention. The widow, some years after the death of her first husband, married that pure 
minded and chivahous-hearted old soldier, General Edmund Pendleton Gaines, the hero of Fort 



INTRODUCTION ? 

fc;rie. It appears thai one of Ihp motives to this alliance was tlio Jooji intorwl, whicli C.cneral 
Caincs Toll in the rurtunes of M» old frionil, Daniel Clark, with whom he had beea broaght Into 
ronlacl in the early events of the history of Louisiana. In his marriage contract ho bound hini- 
oelf to prosecute the rii^hts of his wife to a Bnal decision. Faithfully did he redeem his promise. 
Me dovotetl the last ten years, at least that portion of them not demanded by his country, to 
the vigorous and untiring prosecution of this suit, yielding up his distinguished life whilst engaged 
in superintending the taking of the depositions in this case. 

Nor would we discharge our duly, as faithful chroniclers of the facts in this case, if wo ne- 
,'lected to notice the evidence which this record furnishes of the high esteem in which Clark 
held the principal defendants, Richard Relf and Beverly Chew. These gentlemen are now 
old and valued citizens of New Orleans. In tho extreme of age, they have gathered around them 
a large circle of relatives and friends. In youth they seem to have been patient, persevering 
and honest merchants, and in old age they have retained the good opinion of the community in 
which they have resided for forty years. In saying thus much, we hazard no opinion of the 
lustice of the imputations ca<)t upon them in this case, but only refer to facts which neither party 
will gainsay. 

Thia case, it is believed, is reported faithfully and impartially. The gentlemen on both 
sides have acknowledged the fairness of the report. It has been a severe labor, as it in- 
volved the necessity of looking through and condensing a record of fifteen hundred pages. 
It will be found to embrace all the substantial facts in the case,— all that were referred to in argu- 
ment, and in the decision of Judge McCaleb. In giving the depositions, the language of 
the witnesses, is generally followed, excluding the interrogatories, cioss interrogatories, and much 
legal surplusage and technicality. The voluminous letters on file, have been condensed, as many 
of them were only introduced to prove dates. The speeches of counsel are acknowledged to be 
remarkably full and accurate. They will be found interesting, as fair specimens of the forensic ability 
and talents of our principal lawyers. The whole report, however, has been got up hurriedly, 
amid the pressure of the unceasing duties of editing a daily paper. The Rrport«r roust, there- 
'oi-e, beg tho Indulgence of the readers for any imperfections it may contain. 

A. VV, 



IN THE UNITED STATES CIRCUIT COURT, 



THE GREAT 



GAINES CASE. 



This long delayed and much contested case came up 
on Wednesday, January 23d, 1850, before the Circuit! 
Court, Judges McKinley and McCaleb. Messrs. i 
Grymcsand P. C. Wri£;ht, of our Bar, and Colonel 
Campbell, of Mobile, appeared for the complainant. 
For the defendant, Creer B. Duncan, T. G. Morgan, 
and Miles Taylor. 

Afler some discussion in regard to the printing of 
the record, the case was opened by Mr. P. C. Wright 
reading the first Bill in Chancery, which, together with 
the other pleadings, we have, at great labor, condensed, 
so as to present the points disentangled of legal tech- 
nicalities and verbosity. 

THE FLEADINOS. 

The first Bill in Chancery was filed by Mrs. Whitney, 
on July 28, 183f>, in the United States Circuit Court, be- 
fore Judge Samuel K. Harper. This bill was prepared 
by James W. White, solicitor. The orator and oralri.x 
are William Wallace Whitney and Myra Clark Whit- 
ney, his wife. The bill proceeds to enumerate certain 
properties of which Daniel Clark died possessed, to 
wit: 

I One plnntatinn, five leagues from the tity, on the left bank 
of the Misaissippi. including all th» buildinga, etc.; purcbared by 
Clark of Stephen Homlenion, for $1»,0(J0. 

2. A square in Oiubourg St, Marj-, Second Munipality, bounded 
by Philippa, Poydran. Circus and Penlido atreef, together with 
ail tenements, etc. [This square is worth at least ^50.000.] 

a. A tract of land on Gentilly Road, K arpents front 

4. Lots number 184 and Igii on Royal street. New Orleans. 

5. Three lots, each 60 feet front by 1*1 deep, at the southern 
corner formed by the intersection of Toulouse and Burgundy 
streets. 

6. A tract of 133 arpents on the Bayou St. John, adjoining the 
propeity of Evarifte Blanc. 

7. A lot in the Faubourg St John, half a league from the city of 
New Orle.ins. 

8. Fight Iota, from No. 1 to No. 8 inclnsive, in Suburb Sl John. 

9. A lot in Washington street, in Faubourg St. John. 

10. A square in Faubourg St. John, 300 feet front on St. John ' 
street, 200 on Washington strett. 

11. A planUtion on the right bank of Bayou Lafourche, oppo- 
sits Donaldsonville, 11 arpents front on the Mississippi River and 
W on Bayou Lafourche. This nlanl.ilion, the Bill avers, was 
bought by Wade Hampton for Daniel CLirk, and after Clark's 
death conveyed to one of the defendants in this suit, Richard 
Relf. as executor of Clark, who subsequently sold to Barthelemy 
Lafore. 



pents front 



s front on Mississippi, and 40 in depth. 

. A lot in Second Municpality of New Orleans bounded by 
Delord street, Tivoli Place. St. Charles. SL Joseph and Camp, 
being lot at S. E. comer of said square, formed by intersection of 
Camp and Delord — fiO feet front on Camp by liO on Delord. 

14. The undivided half of a tract of land at Manchac. on East 
hank of the Mississippi, sold by Daniel Clark to Celeeline St. 

.M ; said sale bemg rescinded by District Court of Third 

District of Lotiisiana. 

15. A tract of land near Duval'a Plain, two leagues, from tho 
town of Baton Rouge, bought by Clark from Charles Fenin, con- 
taining fiOO arpents. 

Iti. A tract of 14,046 arpents on the river Comite, 9 mile» from 
tlie Amite. 

17. A tract of H4S arpents in East Bston Rouge, 6.'4 milea 
from the Missi»«ippi. 10 miles from Baton Rong-. 

IS. A tract of 43<>4 arpents in Baton Rougf, I'.i miles south of 
the line of demarcation. 

19. A tract of S864 arpents on West aide of the Comite, 3>4 
miles above Redwood Creek. 

90. A tract of iiOO arpents on Jones's Creek, in Baton Rouge. 

21. A tract of 2000 arpents, 9 ^i miles from fort of Baton Rouge. 

22. A tract of 21 ,000 on East side of the Comite, 8 miles from 

23. Undivided half of a tract in Parish .«t John the Baptist, 12 
leagtiea from New Orleans, on the Mississippi. 

24. Undivided half of .a planUlion in St. John Baptist, 4 )i ar- 
pents front on the Mississippi. 

2.1. A tract on left bank of Bayou L.afourcbe, 6 arpenta front 
on the Bayou. 

96. A tract of M70 arpents on the Comite, on the Eastern side 
of the Comite, 12^4 miles from the old boundary line between 
the Spanish and .\merican possessions. 

The bill then enumerates the slaves of which Daniel 
Clark died posses-sed : they aio two hundred and 
twenty-six in number. Then follows an ennnicralion 
of all his other property : cows, oxen, and other ani- 
mals ; furniture, flowers, etc., of the value of $4044 ; 
and farming implcment-s etc., of the value of $3084. 
Then comes the particular debts due to Clark, amount- 
ing to §28,000 ; and then his dr bis in general, amount- 
ing to 885,438 ; to which the petitioners also anne.x 
the claim filed by Chew and Relf, administrators, of 
the debts duo and other property, of Daniel Clark, of 
the value of $323,188. 

The bill then avers that Daniel Clark intended to 
leave his property to Myra Clark Whitney, and did, on 
or about July, 1813, duly makehis will, declaring Myra 
Clark \Vhitney his legitimate child, devising all hi* 



THE GAINES CASE. 



propeity to her, natning as his Executors Col. Joseph 
Deville, Degoutin Bellehasse, James Pitot, Chevalier 
Dusuaii De la Croix ; said De la Croix to be tutor of 
Ihe minor Myra. This will, it is further averred, con- 
tained several annuities to IVIai'y Clark, Daniel Claik's 
mother ; and to Caroline Degrange ; and contained di- 
rections as to the education of Jlyra. 

This will, it is alleged, was written by Daniel Clark, 
was read to Judge James Pitot, the late John Lynd, 
^.Notary Public,) and Mrs. Harriet Smith, and its con- 
tents communicated to said Col. Bellehasse, to De la 
Croix, and Mr. P. B. Boisfontaine ; that Daniel Clark 
died about the 16th August, 1813, without altering or 
revoking this will, leaving Myra, his only child or de- 
scendant, his fixed heir of all his property. 

The bill then avers Myra Clark- Whitney's right of 
inheritance as the only lawful and legitimate child of 
Daniel Clark. It further relates that shortly after her 
birth, which took place in July, 1806, Myra was placed 
by Daniel Clark in the family of Samuel B. Davis, with 
whom ' she lived in New Orleans till 1812, and then 
moved to Philadelphia. She continued with Davis dui'- 
ing Clark's life and some time after his death. While 
he lived, Clark exercised over her the authority, care 
and protection of a pai'ent. 

In 1811, Clark, fearing that Daniel W. Coxe, of Phil- 
adelphia, had involved him, assigned property to S. B. 
Davis' and others, to the amount of several hundred 
thousand dollars, to be held in trust for Myra, and 
made a brief and general will of all his property to his 
mother, appointing Richard Relf and Beverly Chew as 
his executors. 

Daniel Clark returned fj-om Philaeelphia, and finding 
his interests not seriously jeopardized by Coxe, receiv- 
ed back a portion of the property assigned to Davis, 
and declared that he should revoke the will in favor of 
his mother, and make one, devising all his property to 
Myra Clark. That he revoked said will, and then made 
one in 1813, shortly before his death, leaving all his 
property, to his daughter Myra. In his last moments 
he declared that he had made this will and that it was 
contained in a certain drawer in his office. The will of 
1811 continued in the possession of Relf and Chew. 
Relf was an agent of Clark, in his extensive affairs, and 
at and before the latter's death, assumed control over 
his domestic affairs, and took possession of his papers — 
and that said Relf obtained possession of the will of 
1813, and destroyed it, and substituted the revoked 
will of 1811 — had it probated, and himself and Beverly 
Che'w appointed executors. The bill then avers that 
there being no relations of Daniel Clark in Louisiana, 
said Chew and Relf fraudulently took possession of 
Clark's etfects, and administered the same, falsely re- 
presenting the estate to be insolvent, and selling or ap- 
appropriating the same to their own uses, etc. 

Myra continued with Davis till 1832, being always 
called Myra Clark until Clark's death, when her name 
was changed to Myra Davis, and she was kept in ig- 
norance of her parentage and her rights until her mar- 
ri^e with Whitney, when she was made acquainted 
with her history, and ever since has been engaged in 
the prosecution of her rights. 

Mary Clark, Daniel's mother, being, dead, the other 
heirs of Daniel are Eleanor A. Beaone and Jane Green, 
daughters of Mary Clark — Jane Green and Sarah 
Campbell, grand-daughters of Mai-y Clark. 



Then foUowes an enumeration of the owners of the 
property, which are as follows : 

Tract 1. Widow Holliday and John Holliday. 

2. Roman Maranii, Jran Antoine.Jolm Murium, B. Berdoule, 
M.BIarquez, J Matliew. Thomas D, Hailes.M. Calloway, J. Bar- 
obiuo, A. Peonios. New Orleans and Carrohton Railroad Company 
Widow Jaubert, Charles Patterson, and Charles Tude, 

3. F. Xavier Martin, (late Ch.ef Justice,) and J Hopkins. 

4. Rene Lemonier. 

, 6. F. H. Petitpain and Toledanc 

0. Maynr and Aldermen of New OrleanB. 

in. Augustus Pepie and Wright. 

U. Gabriel Winter. 

12. P hillip Miner, George Kenner, Duncan Kenner. 

13. Lallande Ferriere.* 

Then follows the names of Francois Dusuaude la 
Croix, as the possessor of 20 slaves, and Celestin 
Robert Avart, F. P. Labarre, Soniat Duponat, Louis 
Desdanes, H. Fortier, as the possessors of other slaves 
belonging to the estate of Clark. All these parties are 
made defendants, as possessors of property pm-chased 
at illegal and fraudulent sales. 

The rest of the bill repeats the facts averred before, 
and that the defendants have been required to give up 
the property, but they refused ; and further, that they 
(the defendants) aver that Daniel Clark was never mar- 
ried to Zulime Nee Claik, mother of Myra Clark ; but 
that said Zulime was the wife of Jerome De Grange, 
which is averred to be false, Daniel Clark and said 
Zulime N6e Carriere having been lawfully married. 
It is fm'ther averred, that if Zulime was married to 
De Grange, the marriage was illegal, because said De 
Grange was the lawful wedded husband of another 
woman. 

It is further alleged that the executors, Relf and 
Chew, did not act conformably to law in the adminis- 
tration of Clark's property, and various informalities 
are mentioned, which vitiate tho sales made by them. 
That the defendants were aware of these allegations, 
and cognizant of the frauds and other irregularities of 
Relf and Chew— that their suppression of the will of 
1813 was well known throughout Louisiana. 

The rest of the bill contains the usual clauses, and 
concludes by praying that Myra Clark Whitney be re- 
cognized as the legitimate child of Daniel Clark, and 
that all the enumerated property be adjudged to be 
hers in virtue of the heirship, both as legitimate child 
and as entitled under the will of 1813. 

This is the substance of the original, the first bil 
filed by Mrs. Gaines, then Mrs. Whitney. 

Then follows the demurrer of defendants, Relf and 
Chew, which denies that the bill contains sufficient 
grounds for a writ of discovery, that the will under 
which complainants claim has never been probated, 
that they have their remedy at law ; that it is not 
alleged in the bill that Mary Clark, the heir-at-law of 
Daniel Clark, is dead ; they also set up the probated 
will of 1811, as depriving this court of jurisdiction; 
that the efifest of its judgment under the claim of the 
complainants would be, to set aside the proceedings of 
the Court of Probates of the Parish of Orleans, which 
could not be done. 

This demurrer was signed by L. C. and G. B. Dun- 
can, Isaac T. Preston, Lockett & Micou, L. Janin, and 
Thomas Slidell, attornies for various defendants 

The Judges of the Circuit Court being divided in 
opinion, the case on the demim-er went up to the Su- 
preme Com-t of the United States, when Judge McLean, 
at the January term in 1844, decided— 1, That the com- 
plainants had the right to sue the defendants jointly in 

*Mr, Ferriere ban since been dismissed from th« suit. 



THE GAINES CASE. 



Iho case, that the bill wim not mnltirnrUius. 2, Thnl| 1801, hnd carried on buglnese with Dutilel W. Coxc, of 
IheCoiirl could not ontei'taiii jurisdiction of the caw Pliilmlflphio, niid «iid piirtlcs liad nocumulaled Ian:*" 
until tho will set up was probali-d in th«! Stale Court, [iropcrty in tlip name of Clark. On lOlh June, 1H13, 
3, TliatttiH case was a proper one for Chancer}, and | Claris entered into partnernhip with the <IefendantJ', 
that it <li'! iioi belonc; excUwively to a Court of law. Chew and lU'lf, who had !<ucceeded t<> the liu>ineM of 

In July, l'^44, RIyra Clark Cauies, the complainant, | the old partnership of Clark it Coxe ; and a«ri*ed to 
having lost her first husband, and miu-ried General divide all his property equally with them, except bin 
Kil'nond Pendleli-n Gaines, amended her bill conform-', house on the Hayou I^iad, and the properly inherited 
ably to the suic^'e-lions of the Supreme Court, com-, by him from Thuuiait Wilkin». Thus defendants be- 
plaining that Caroline Barnes claimed a large portion came entitled to oni-lhird of all Clark's properly, 
of the property of the late Daniel Clark, by virtue of the I Most of the properly was held in the name of Clark, 
will of 1811. They further aver that the Probate Court | whose debts were enormous. Respondents were kept 
refosed to probate a will unless it could be produced ' much embarrassed by tho lar^e quantity of inipro- 
in open court, and that if said Court had juris«liction of ductlve lands owned by them in conm-ction w ith Clark, 
such a will, tho complainants despaired of success, by i In consequence of these embarrassments, they applied 
reason of the manifest prejudice of the judge of said for a respite from theircreditors, as well for the benefit 
court, and by reason of the direct interest of two of the of Clark's estate as for themselves. This was in 1814. 
judges of the Supreme Court, (Martin and iMalthews) The meeting of creditors graiiUKl the respite, and they 
who had purchased at the sales of Clark's property proceeded to dispose of the property, most of which 
under the will of 1811. They, therefore, discontinued was held in Clark's name. Said sales were made to 
their probate proceedings. They further allege that the best advantage. The whole statement of complain- 
Mrs. (iaines is entitled to one moiety of Clark's estate , ant, about the will of 1813, and its destruction by Relf^ 
by virtue of a conveyance from her mother, said estate is pronounced by the latter unfounded and false, under 
having been acquired during the coverture of said Clark ' the sanction of an oath. The only will of Clark was 
and wife. Tho claim of complainant is to the whole ' that of 1811, and the whole conduct of Relf and Chew, 
estate under the will of 1813— or that she is entitled to I imder that will, is averred to have been just and legal, 
it as heii^at-law. If there be no will, she is entitled to j It is then alleged that Clark could not have legally 
one-half in right of her mother, and fo'.u--flfth3 as forced, married Zelime 'Si-e Carriere, who intennnrried, in 
heirof her father. ^ December, 1794, with Jerome DeG range, who was 

To this bill Chow, Rcif and Gerriere demur, on the living when Myra was born ; that these parties 
same grounds as in the former demurer, alleging that ' had not then been divorced; liiat said Zulime, 
tho said bill disregards tho decision of the Supreme after Myra's birth, to wit, in 18(18, had sued Del Irange 
Court, and on the additional grounds, that the matters ^ for allimony, representing herself as his wife ; and in 
set forth in the amended bill were not proper matters ^ 180C, sued him for a divorce, which divorce was 
for amendment. Second, that M. Z. Gardette's (Mrs. | granted subsequent to the birth of Myra; and in 1808, 
G.'s mother) marriage with Clark, is not shown as to , said .Mrs. DeGrange married James Gardette, with 
time or place, or that she is entitled to the benefit of whom she lived till his dealh : that Daniel Clark lived 
the community. Finally, they set up the law of limita- five years after the marriage to Gardette, and never, in 
tion or prescription. anyway, acknowledged the lady as his wife; that if 

Then follow the plays of the defendants. They deny [ complainant was really the daughter of Daniel Clark, 
all the allegations in the bill, that Clark ever possessed ' by Zulime Nee Carriere, she was illegitimate, and 
th« property enumerated— that he even married Z. N. 'could not, therefore, Inherit by will or otherwise. It is 
Carriere— that Myra Clark Gaines was his daughter — also averred that Madam Carriere was never introduced 
that he ever made any other will but that of 1811 — into the same society with 'JIark, and that at the time 
which said will was duly administered under the control stated, Clark was paying his addresses to others, 
and jurisdiction of the Probate Court of New Orleans. | They repel the impuUition upon his character involved 



They declare that Z. N. Carrire, before the birth of, in the charge of his connexion with JIad. Carriere. 
Myra, was married to Jerome DeG i age, and said mar- 1 They deny that .Myra was ever recognized as the le- 



riage had not been dissolved at Myra's birth. .gitiraale child of Clark, but aver that in 1817, Colonel 

After these pleas, come the answers of defendants. Davis, in whose family Myra was raised, brought suit 



First, the answer of Chew and Keif. In their answer, against them, as Claik's Kxecutors, fur the support of 
they aver that Daniel Clark died in .\ugust, 1813— that Myra, styling her his natural or illigitimate child. • She 
he made his will, in due form of law, on COth May, 181 1; ' was also so recocnized in the will of Mary Clark, the 
and said will was duly probated in 1813, and Relf and mother of Daniel. But respondents deny even Ihi.s 
Chew qualified as executors. All the charges and alle- that she is a child, legitimate or illegitimate, of Danial 
gallons in plaintiff > bill, are expressly, and, in general Clark. They aver that they have aever interposed any 
terms, denied. Mary Clark is averred to have been j delay to the settlement of this suit ; in proof of which, 
the only proper heir to whom Relf and Chew could they refer to the suit of Whitney and wife in 1834, 
account; she was the universal heir, and she had given | which was quashed by the complaintants themselves ; 
them the power of attorney to sell and administer the , to the suit against them for the trust funds alleced to 

which was decided in 
their favor ; to the suit broui;ht by Relf against Whit- 
ney, former husband of complainant, for a libel, in 
charging him with destroying the will of Clark, which 
was decided in respondent's favor. They declare that 
Clark's property was sold on the most advantageous 
terms, smd faithfully applied to the liquidation of hU 



tors, were fully approved by .Mary Clark, whilst she 
lived. She died in Philadelphia, in 18-23, leaving a 
will, appointing Joseph Keed her executor. Reed con- 
tinued Chew and Relf as the agents for the estate of Mrs. 
Clark, whose will was duly recorded here. The answer 
lurther avers that Daniel Clark, previous to the year 



THE GAINES CASE. 



debts which were very large— that to Daniel Coxe alone 
being $172,950. They aver that having homologated 
their accounts in the Probate Coui't of New Orleans, 
they cannot be called on to account to this Court. 
They plead these probate proceedings as res judicata' 
alleging that they were not ez-parte, but were contested 
by De la Croix, one of the alleged Kxecutors of the 
■will of 1813, and before Judge Pitot, Judge of the Pro- 
bate Court, anothei of the Executors of this same pre- 
tended will. 

In regard to the application of complaints, to pro- 
bate the will, of 1813, in the Probate Coiu't of New 
Orleans, respondents deny that the question of juris- 
diction was raised, but aver that the case was non 
suited, expressly on the ground that the applicants 
failed to appeal- and present their claims. As to the 
alleged prejudice of the Judge of Probates, they aver 
that the charge is a slander placed upon the records of 
the court, against one of the Judges of the State of 
Louisiana. The averment of interest in Judges Martin 
and Matthews, is also met by an admission, ai 
former, who was incompetent to act in the case of 
complainant, but is utterly denied as to Judge Matthews; 
and that even if it were true, there were three other 
Judges on the Supreme Bench, -who could see that 
justice was done complainants. They aver that the 
intimation of the United States Supreme Court, that 
the Circuit Court could hold on to the jurisdiction of 
this Court, in order to oblige defendants to go into the 
Probate Court, was unnecessary, as the respondents 
have invited complainant to go into such court, and 
have offered to waive all pleas to the jurisdiction, in 
order to get a decision of this vexatious matter. 

This is substantially the answer of Chew and Relf, 
sworn to and filed January, 1845. 

The amended and supplemental bill of E. P. Gaines 
and Myra Clark, his wife, filed in 1858, contains 
substantial allegations of the original bill, but renounces 
all claims under the will of 1813 as universal legatee, 
and claims four .fifths of the property as forced heir. 
The will, however, is asked to be i-ecognized as a proof 
of the legitamacy of Myra, and her rights to inherit 
four-fifths of Clark's effects. The amended bill con- 
cludes with certain interrogatories to defendants, as to 
the manner in which they acquiied their property. 

Then follows the answers of the defendants, which 
adopt the grounds set forth in the principal answer of 
Chew and Relf. 

It is also alleged, in one of these answers, that if 
Daniel Clark ever was married, it was a fraud in the 
parties in concealing and keeping secret said marriage 
frorn all the world, and said secresy was violative of 
the laws of God and man. 

After many tedious and complex interlocutory pro- 
ceedings, plaintiffs filed a supplemental bill, in which 
they recite the facts of the case of Gaines vs. Patterson. 
The judgment in this case fully explains all its facts. It 
is as follows : 

"This case having come on for final hearing, by consent of the 
complainants, and the defendant Patterson, upon the bill, answer, 
replication, exhibits, depositions and documents on file herein, and 
on the admission of parties, that the estate in controversy in 
this case exceeds in value the sum of two thousand dollars, and 
the said complainants and the defendant Patterson, expressly waiv- 
ing and dispensing with the necessity of any other parties to the 
hearing or decision of this cause than themselves, and agreeing 
tliat the cause shall be determined alone upon its merits, and the 
Court being now sufliciently advised of and concerning the pre- 
mises, dot:s finally decree and order, that the defendant Patterson 
do, on or before the first day ofthe next terra of this Court, convey 
«Bd surrender poiiessioa to the complainant, Myra Clark Gaines, I 



all those lots orparcels ofland, laying and being in the city of New 
Orleans, and particularly described m his answer and exhibits, 
and to which he c-aims title under the said will of (1811) eighteen 
hundred and eleven, said conveyance shall contain stipulations of 
warranty against himself only, and those claiming underhim. It 
is further ordered and decreed, that the defendants pay the coro- 
lilainants so much of their costs expended herein ss have been 
incurred by reason of his being made a defendant in this cause." 

*'Fr(.m which decree the defendant prayed an appeal to the 
Supreme Courtof the United State, wliich is granted," 

On the appeal from this judgment to the Supreme 
Court, that tribunal rendered the following decision: 

" We shall direct the decree of the Court below to be revere- 
edy and adjudge that a decree shall be made in the said Court, in 
this suit declaring that a lawful marriage was contracted in Phi- 
ladelphia, Pennsylvania, between Daniel Clark and Zulime Car- 
riere, and that Myra Clark, now Myra Gaines, is the lawful and 
only child of that marriage; that the said Mvra is the forced heir 
of her father, aud is entitled to four fiahs of his estate, after the 
excessive donation in his will of 1811 is reduced to the disposable 
quantum which the father could legally give to others ; that the 
property described in the answer ofthe defendant, Mr. Patterson, 
is a part of the estate of Daniel Clark at the time of his death ; 
that it was illegally sold by thos'e who had no right or authority 
to make a sale of it ; that the titles given by them to the purchaser, 
and by the purchaser to the defendant, Mr. Patterson, including 
those'given by the buyer from the first purchaser to Mr. Patter- 
son, are null and void, and tha 
estate of Daniel Clark, the legitii 



le is liable, as part of the 
forced heir, and that the 
fendant, Charles Patterson, shall furrenderthe same, as shall 
he directed among other things to be done in the premises, as will 
appear in the decree and mandate of this Court to the Circuit 
Court in Louisiana." 

By virtue of this decision, complainant declares that 
she is recognized and decreed to be the legitimate child 
aud forced heir of Daniel Clark, as against all the de- 
fendants holding the same relation to complainants as 
Charles Patterson. 

Defendants respond to this new issue, that they are 
not bound by a judgment against Patterson in a trial 
in which they took no part, that the whole proceedings 
in the case of Patterson were false and fraudulent, 
intended as an imposition upon the court. That it 
was a decree in part consented to by said complainants 
and Charles Patterson, as will be evinced and proved 
in many ways, and among others, by the fact that said 
case was submitted to the court on one day, and that 
on the following morning a decree was brought into 
court ill the hand-writing of the counsel of the com- 
plainants, viz.: R. H. Chinn, Esq., in which, as a part 
of the decree of the court, it was agreed between the 
complainants and said Patterson, that he, the said 
Patterson, should be left in posssession of the property 
claimed from him by complainants, and should take 
an appeal from said decree, without any security what- 
ever ; that, in fact, the complainants have always 
hitherto allowed, and still do allow, the said Pattei-son 
to enjoy the said property as owner, and so little 
respect have said complainants to said decree, that 
they have again made said Patterson deiendant to their 
amended bill, claiming the same parcel of ground in 
said decree referred to ; all of which facts, and many 
other acts of fraud which this defendant claims the 
right to adduce on the trial of this case, he declares 
make the decree mentioned by said complainants 

having been rendered against Charles Patterson, 
wholly null and void as to this defendant ; which fraud 
this defendant now puts forth as ground ot defence in 
same manner as if he had set the same out more 
fully and particularly, by way of special plea, or 
otherwise ; and he prays that this com-t may investi- 
gate this case upon its own merits, disregarding said 
decrees so rendered against Charles Patterson, first, as 
res inter alias ecta, as to the defendant ; and, secondly, 
because they are collusive and were fraudulently 
procured. 



THE CAINES CASE 



Tlie foregDliifC i)lcudinpi nro given tn regular order, 
to pres«>ia tlic c:i.so In u ckiir and inetluMlical light. 
The rcplicatioiw of complainants were flUU 3lh March, 
1849, whonthf ca-c was then put at l*»uo. UeforP Ihi- 
answers of diMiiulanls wuri! n-iul, u discussion arose, 
as to whether the (mrlies should go to trial on the pleas 
or the answers. 

Mr. Campbell submitted that tho pleas w«re over- 
ruled by the answer, which was lull. 

-Mr. Duncan read the rule of Iho Supreme Ck>urt, 
allowing the party to go to trial on tho pleas. 

Judire Mchinleii. As the pleas and answer seem to 
involve the sunn- poiiit.x, wo will try the whole case 
together. Procewl with it. 

AOer reading the ploiidiiiijrs, the testimony, which is 
very voluminous, was oi>ene<l, imd Mr. Wright com- 
menced reading it, the exceptions to the testimony 
being reserved to bo dociiU-d by the court before ren- 
dering judgment on the merits. 

At tliree o'clock, Mr. Wright had flnlshed but a 
«mall portion of the testimony, when the court ad- 
journed till to-duy. 

TESTIMONY FOR COMPLAIX.VNT-Skcosd Day. 
In condensing the testimony In this ciuie, wo only 
take that which rcl'ers to the main facLs, not regard- 
ing that which is merely formal proofs— such as proof of 
signatures of witnesses, and other collateral mnlters. 
The evidence being very voluminous, we have iK-en 
compelled greatly to abridge it, to prevent our report 
extending to too great a length. It will be found, how- 
ever, to embrace tho main substantial facts. 
Thomas U. Harper's Tkstimon-y. 
Thomas D. Harper, for complainant, says he is 26 
years of age; is a merchant and resident of New Or- 
leans ; is son of the lale Harriet Smith, formerly Mrs, 
Harper; knows from family report that Mrs. Smith 
was in New Orleans in 1605 ; knows Mrs. Gardelte, 
the mother of Mrs. Gaines, ami her son. Dr. Uardette 
James Garpette's. 
.las. OardMe, for complainant, knew Madam Louisa 
Bcrgnerol, who formerly resided inOpelousa, and that 
she had given testimony in this case. Ho ^Gardette 
was born in Philadelph lain 1809, and istheeldi^tof hi 
mother's children ; liis pareiitji were married in W)7 
or 8, and had three children ; they lived in Philadelphia 
until 1829, when they movwi to Boideaux, (^France* 
where his father resided till his death, in 1831 ; his 
mother continued to reside there till 1835 ; she is tho 
mother of the complainant, Mrs. Gaines. 
Gai.lien Preval's. 
Oallien Prtval, for complainant —age 68 years ; oc- 
cupation, gentleman ; has resided 30 years in New Or- 
leans ; knows the jiarlies in this suit ; knew Daniel 
Clark in his lifetime, ami was called on at his death to 
affix the seiUs to his effects ; he went to Clark's house 
on the Bayou Uoad, attixed the seals, made out the 
process verbal, looked in a certiiin trunk for his will, 
but did not find it. As he was about to leave, Richard 
Relf handed him a sealed package, slating that be 
thoughtitwas Clark's will. He noted the fact, and 
delivere*the package into the Court of Probates. He 
knew Clark, but r\ot intimately ; attended his parties ; 
Clark was intimate with Judu'e Pilot ; the Judge In- 
formed witness that Clark said his will wasinaceriain 
trunk, and his confldeutial servant, Lubin, had been 
directed to carry laid tnmk to the hotise of De la Croix ; 



Clark had further told PltoU that in Bald will ho had ap 
poiiU«l Pilot, De la Crt)lx, and BellechB.«»<', a» his exe- 
cutor* ; Judge Pilot Is the name Judge who ordered the 
probate of the will of Daniel Clark anil); he fre- 
luenlly allonded Clark's loirits ; never, on these occa- 
sions, met with a lady recognlxed as Mrs. Clark ; Daniel 
lark's npulalioii was that of lUi honorable, high- 
minded man ; hi; iiiver thought of Inquiring wbellier 
Clark was raarrie<l or not. 

Pi:rER K. Waoser's. 
Peirr K. H'mrnir. lor complainant — Is C3yoanioId, 
hius resided in New f Jrli'aiis since March or .\pril, 1812 ; 
knew the parties; wa« intimate with CUu-k ; visited 
lilm frequently during his laj*t illness ; In the spring of 
1813 went to see Clark, to collect a bill ; he was an off- 
hand kind of man, and said, "Wngner, I have no 
change ; " asked him for a draft on Chew and Relf ; bo 
replied, " that fellow. Chew, is such a damnifl rascal 
I don't speak to him." Wc, here In New Orleans, then, 
had plenty of paper money, but little gold and silver. 
Knows that Chew was in New Orleans in 1845, at tho 
battle of New Orleans— saw him in the lines. 
Harriet Smith's. 
Mrs. Harriet Smith, for complainant— Knew Clark 
1804, until his death, in 1813 ; my husband was of 
the Ih-m of Harper &. Davis, who operated on Clark's 
basis ; I nursid Myra Clark's daughter ; she was brought 
to me whilst in the family of my husband's uncle, and 
having an infant of my own, I consented to nurse her ; 
I was informed she was Mr. Clark's child ; he toM ma 
5o ; he treated her as his dnuchter, exhibited every 
sign of patenial regard, called her his dear lillle daugh- 
ter, Mrya, lavished every cjire and extravag;ince upon 
her, and said that she should inherit his splendid for- 
tune. Clark continued these alUntions till 1812, when 
Myra went to Philadelphia with Colonel Davis. I 
always understood Clark designed to make Myra his 
sole heiress. When ho fought a duel with Governor 
Claiborne, and when he went to Philadelphia, in 1811, 
to settle his affairs with Coxe, he slated that he bad 
made ample provisions for Myra. Afler his return 
from Philadelphia, lie staled that the will of 1811 was 
made with a view to his apprehended involvements, 
through his connexion with Coxe. In 1813, a few 
months before his death, Clark told me he ought no 
longer to defer securing his estate to Myra. About 
this time he t*>M me that De la Croix, Judge Pilot, and 
Colonel Bellechasse, would bo his Executors ; that he 
was engiured in making his will, constituting Myra as 
his sole heiress, and acknowledging her as his legiti- 
mate daughter, and spoke of certain legacies to his 
mother and others. In his conver?ations, he spoke 
of Ihecourseofetlucation to be pursued with Myra, 
expressed great faitli in her, and satisfaction that 
De la Croix had consented to be her tutor. About 
four weeks before his death he brought his will 
to me, and said it was an acknowledgment of 
Myra's legitimacy ; calleil it the charter of her rights, 
and desired me to read it. I read the wiU-il recognized 
Myra as his daughter, and left her all his estate, with 
several legacies to other persons. He called on me 
after this, spoke of the burden taken from his mind 
hy his ample provisions for Myra, and his minute 
directions as to her education. Afler Cliu-k's death, I 
learned that this will had been suppressed, and one 
dated in 1811 had been substituted for it. Clark was a 
man of powerfid and acknowledged talents, towering 



THE GAINES CA.SE. 



ambition, great pride and dignity of character, strong 
feeling and afifections. The interest exhibited by him 
in his daughter could not fail to make a lasting im- 
pression on me. When he brought his will to me, in 
allusion to his remark that it was the charter of Myra's 
rights, I playfully suggested to have it dated on 4th 
July. The disappearance of the will of 1813 created 
great excitement amons Clark's friends, and great in- 
dignation was expressed, when it was learned that De 
la Croix became friendly with Mr. Relf, and received 
from him a large number of Clark's slaves. Myra was 
born in 180G. I don't know whether Clark was mar- 
ried — I always believed he was married to Myra's 
mother. The separation between Clark and Myra's 
motherwas caused whilst Clark was in Washington, 
delegate in Congress, and was produced by letters 
written to Clark by other persons. They quarelled 
and separated, and she left New Orleans. I communi- 
cated to Myra her true history shortly before her mar- 
riage with Mr. Whitney. Up to that time, she believed 
she was the daughter of Colonel Da\'is. The mother 
of Myra was Miss Carriere, whose former husband, 
DeGrange, I always imderstood, had been condemned 
for bigamy in marrying her. Myra continued in the 
family of Colonel Davis from infancy until her mar- 
riage with Whitney. Clai-k had no other child. Myra's 
mother had a daughter by DeGrange, older than Myra, 
called Caroline. I thought Myra's mother respectable 
from seeing her intimate with Mrs. Relf, first wife of 
Richard Relf, now Cashier of the State Bank. There 
were rumors of a private marriage between Clark and 
Myra's mother. 

Joseph D. D. Bellechasse's. 

Joseph Deville Degoutin Bellechasse, for Plaintiff— I 
knew Daniel Clark, and enjoyed his friendship for 
many years. Clai'k told me that he had a daughter 
named Myra, frequently took me to see her, and 
manifested great affection to her. In 1811, Clark con- 
veyed to me thirty lots, for the sole use and benefit of 
Myra. At the same time, Clark stated that he had 
made a provisional will, making Chew and Relf his 
executors, but (hat he had provided hy confidential 
agreement for Myra. In 1813, Clark spoke of settling 
up his affairs, and making a will in favor of Myra, and 
requesting me to act as exedutor, in conjiuiction with 
DelaCroix and Judge Pilot. At this time he spoke 
of Myra as his daughter in the most emphatic and 
impressive manner. He afterwards showed me his 
win, written in his own hand, and providing as before 
stated, that Myi-a should be his sole heiress. When he 
was quite ill I called to see Clark, was told by Relf that 
he was too ill to see me. Indignant at the attempt to 
prevent my seeing my old friend, I pressed forv/ard 
into his room. 

" How is it," exclaimed Clark, takmg my hand with 
affectionate reprehension, " Bellechasse, that you have 
not been to see me belbre ? I told Relf to send for 
you." I replied that I had received no such message ; 
that I had been his physician before, and would have 
been most happy to attend him. He squeezed my 
hand. I retired, telling Relf I should call again to 
attend my old friend. Relf said that his doctor had 
required him to be quiet and undisturbed, that he was 
not very dangerous. I desired, that if he grew worse, 
to be sent for. The next day I came without any inti- 
mation, and found Claik dead. I went to Pilot's, found 
him indignant that Relf should have kept him in 



ignorance of Clark's illness, and that the will of 1813 
could not be found where Clark had placed it— that of 
1811 having been substituted for it. 

In 1831, seeing a letter of Relf, which was published 
in the case of libel against R. R. Keene, in which Myra 
was declared to be the offspring of an adulterous bed, 
knowing it was a shocking calumny on the name and 
memory of my deceased friend, and a cruel and wick- 
ed one on the birth and name of his child, I wrote a 
letter stating that it was an untruth, and that DeGrange, 
the former husband of Myra's mother, had been con- 
demned for bigamy. This letter was not pubUshed, 
which I regret, as I felt that justice had not been done 
the character of my departed friend, against whom, 
when alive, no one would have dared to uttei' such a 
calumny. Relf know to the contraiy, and was the last 
man from whom it should have proceeded, as he owed 
everything he was and had to the generosity of Daniel 
Clark. I think it my duty to declare what I know to 
be a fact, that DeGrange was condemned for bigamy 
in man-ying Miss CaiTiei'e ; this condemnation took 
place in New Orleans about the close of the Spanish 
domination. 

My name is Joseph Deville Degoutin Bellechasse. I 
was born in Louisiana, in 1760. I continued in Louisi- 
ana under the American Government, held various 
civil and militai-y posts, and removed to Cuba in 1814, 
and have ever since lived on my plantation, and am a 
Lieutenant Colonel in the Spanish service. My inti- 
macy with Clark commenced about the end of the last 
century, and lasted till his death. We had relations of 
friendship and business. In 1803 I was induced by 
Clark, then U. S. Consul at New Orleans, to accept the 
offer of the French Colonial prefect, Lassal, to take 
command of the militia of Louisiana, when the covmtry 
was sui-rendered by Spain to France. I was one of the 
intimate friends whom Clark, in 1806, assembled in hia 
house, aud informing them of the intentions of Colonel 
Burr, advised them to exert their influence to support 
the V. S. Government, to rally around the Governor, 
notwithstanding his incompetency, and also to prevent 
a meeting of the Legislatiu-e, in case Colonel Bm-r 
should gain possession of the city. I was a member of 
the State Convention of Louisiana that assembled in 
1812, and framed the Constitution of that State. Clark 
was the head of the political party to which I belonged, 

I do not know, but I believe Clark was married to 
Miss Carriere. His pride was probably the motive for 
the concealment of the marriage, for he was proud of 
his pedigree, which he carried back to the ancient 
kmgs of Ireland, aud always cherished his coat of 
arms, though a Republican. I wrote to Myra in 1832 
of her rights ; she did not receive the letters ; but I 
met her in Matanzas, and there developed her whole 
history. I subsequently wrote lier fully on the subject. 
She has my permission to exhibit these letters. Clark 
had no other child»but Myra. She lived with Colonel 
Davis, and in her infancy was called Myra Clark. The 
will of 1813 was fraudulently suppressed. Clark knew 
the law well. He submitted that will to Judge Pitot, 
who fully approved it, Clark, from his confidence in 
my honor, declined receiving a re-conveyance of the 
50 lots he had assigned to me in trust for Myra. He 
matle other assignments. His object was to place his 
property beyond the reach of Chew and Relf, doubting 
their integrity and good faith. 

Clark was a patriot, and an entttusiastic loTer of 



THE GAINES CASE. 



liberty. Ho refUs<»l to btaitno a Spanlsli citlzon. 
Aftor tlio ITniU-.! Slates acquln-d Nntchi-z, lit- beaiiiu- n 
tUizi'ii of tliiti iipubUc,thoui.'h oiiiitinuliij{ to renldt- in 
Nuw Orlt'uns. Ho took an ai-livo part in callini; the 
attention of ttio I'nltcd States tiovernini-nt to thu im- 
portunes of acquiring lioutsiniiii, and constanlly cor- 
respondwl with tho officers of Govi-rnmonl. The 
rnited Statfs owe the nciidisition of Louisiana to 
Daniel Clarli. His influi-iico reconciled the people to 
the chajigo of (fovcrnmeiii, and u'ave them the most 
favorable impressions oflliejuslice and wisdom of the 
United States. But, nnl'orinnalely, the American 
Uovomor was weak-minded, and his policy was not 
wise or conciliatory. Jealousies and ill-feeling were 
engendered, which Clark wu.s active in subdnini;. A 
hostility arose between Governor Claiborne And Clark, 
who became the chiefs of two opposing parties, 
Edward Livingston was one of tho large number who 
moved subject to Clark's orbit. After Clark's death, I 
left New Orleuiif . Relf wrote me at that lime that my 
enemies had charged that I left to lead tho British 
against New »)rlcanb— a char;;" very absurd, as I left 
all my family and properly behind. I then wrote to 
fViends in New Orleans, directing them to place Myra 
111 possession of the properly assigned to me by Clark. 
Relf wrote me that Clark had another daughter, called 
Caroline, who was entitled to one-half of the prop«-rly, 
and proposed that I should convey the prt>perly to him. 
that Clark was too good a man to provide for one of 
his children to the exclusion of the other. 
Pierre Baron Boiskontainl's. 
Pierre Baron Buhfontainr, for the PlaintifTs — 
Witness was long intimate with Daniel Clark. Mr. 
Clark left at his death, a daughter named Myra, 
whom he acknowledged as his own, before and 
after her birth, and as long as he lived. In ray pre- 
sence he spoke of tho necessary preparation for her 
birth ; in my presence asked my brother's wife to be 
present at her birth, and in my presence proposed to 
my sister and brother-in-luw, Mr. S. B. Davis, that they 
should take care of her after her birth. .After her 
birth ho acknowledged her to me as bis own, con- 
stantly, and at various places. He was very fond of 
her, and Fcemed to lake pleasure in talking to me 
about her. When he communicated to mo he was 
making his last will, he told mo he should acknow- 
ledge her in it as his legitimate daughter. The day be- 
fore he died, he spoke to me about her with great af- 
fection, and as being lelt his estate in his last will. 
The day he died he spoke of her with the interest of a 
dying pa.-ent, as heir of his estate in his last will. Was 
present at Clark's house llfteen days before his death ; 
saw him hand a sealed packet to De la Croix, slulinu' 
Uiat it was his last will. Before this he had often told 
witness that he was making his will. He spoke of this 
at Judge Pilot's. The day be lore he died be told me 
that his will was in his office room, in a little black 
case. He mentioned his will the day he died. When 
he gave the sealed packet to Do la Croix, he told the 
latter that he had made him tutor to his daughter, and 
asked if he would do for her all he (De la Croix) had 
promised— adding : '• 1 have given her all my estate 
in my will; an annuity to my mother; and some 
legacies to friends. Vou, Pilot and Bellechasse are the 
Executors." He frequently slaU^d to witness that in 
his wiU he had acknowledged .Myra as his daaghter. 



had made Do la Croix bis tutor, and directed how she 
should be educated. 

A)>out iwo lioum before his death, Clark evinced 
♦irong fellings for Myra, and dlrecte«l his Btrvnnl La- 
bin, to luku his will to De la Croix us noon as he died. 
About this time, shortly before Clark's death, w Itncss 
)<aw Relf lake a bundle ofkeysft'om Clark's iirmoir, one 
of which wltnesss believes opened the litlle black cane 
ho had seen Clark open so often. Relf then went lie- 
low, and Ijukin says, went into Clark's office,and locked 
himself up In the office. .Mraost Clark's Ian words 
referred to his lost will in favor of Myra. .M\ (Statement 
of the last will of Clark was fully conflrmed by Judge 

' Pilot and John Lynd, who staled that Ihey bad read 
tho will ; it was in Clark's hand-writing, and iLs dispo- 
sitions in her favor were as I have staled. Col. Belle- 
ehab.-* and the wife of William Harpi;r told me also 
that they bad read it, and substantiated Clark's state- 
ment to me of Its contents. 

My name is Pierre Baron Boisfontaine ; my age about 
fifty. Hive opposite New Orleans; I was eight years 
ill the British army; I was sevend years agent for Mr. 
Clark's plantations ; I live on my revenue, am in no way 
connected with tho partii-s, and have no interest in this 
suit. I knew Daniel Clark nine or ten years. He wa.i 
the father of Myra, sho wa.s bom In my house, and was 

' put by Clark, when a few days old, wllh my sislerand 
brother-in-luw, Samuel B. Duvl.^. Clark respected our 
raislortiincs, knowing that my family was once rich, 
and had lost all by tho revolution in St. Domingo. I 
believe Clark was married to Zulime Carriens who. It 
hud been represented, had been married to Mr. Dn 
Grange, which marriage was void, on account of a pre- 
vious and subsisting mtirrlage of Do Grange. When tho 
time for making the marriage public arrived, certain 
interested parties caused a separation betwi-en Zulime 
and Clark. The former went to Philadelphia, where 
sho was advised by a lawyer that the marria^'e was in- 
valid and she then married Mr. Cardello. Clark always 
spoke of Myra as his legHimate daughter. Clark was 
a fond parent ; he supported the Harpers, and confei^ 
red great benetitson Davis, for their kindness to Myr». 
He spoke of the marriage of Zulime to Gardette, as an 
unfortunate barrier to the puhliclly of her marriage 
wllh him, Clark. In his last moments, he showed great 
sensibility as to Myra being declared legitimate. I was 
a confidential friend of Clark's. 

Mrs. R. M. Davis. 
Maria Rose Daris, for complainant— I knew Daniel 
Clark, being only intimate with him so far as he was 
in the habit of coming very often to my house to ca- 
rets his daughter who was placeil, in my charge. 
When Clark died, Myni was with u."*. Clark uniformly 
acknowledifed her as his daught»^r with pride and un- 
common affection. Myra was placed in my charge 
when she was six or eight days old, and remained Wllh 
us in New Orleans till 1812, when we left. When wo 
were about to leave, Clark said Myra woiUd be his heir, 
and spoke of her in terms of greut lUfection, and •* pe- 
cuniary ambition." After Clark's return to New Or- 
leans from Philadelphia till he left in 18^ he frequent- 
ly visited us, and always spoke of her with great affec- 
tion. When 1 saw Clark, for the last time, just as we 
were attoul to leave, he gave directions that Myra 
shoald be educated so as to take a standing in society 
equal to the great estate she would inherit. I never 
saw any will of Hark, or beard him spuak of soy. 



THE GA.INES CASt;. 



My name is Mary Ann Davis, wife of Samuel B. 
Davis ; I reside in Ptiiiadelphia. I have no interest in 
this suit, and am not connected with the parties. Be- 
fore the birth of this child, Clark came to our house 
and asked that we would prepare for her reception. 
Myi-a never had teachers before we left New Orleans ; 
she was educated at my husband's expense. I don't 
know that she was ever christined. She remained with 
us until she was married. Clark pm-chased a servant 
for Myi'a, and gave her costly dresses and playthings. 
Myra was born in a house which my brother then held, 
not Clark's residence. I know no other daughter of 
Clark, ever ackdowledged to me. 

Third Day. 

Samcel B. Davis's (Mrs. 6aines''s foster-father) 

Testimony. 

Samuel B. Davis, for plaintiff— I knew Daniel Clark 
intimately. He left a daughter named Myra, then 
living in my family, whom he often acknowledged as 
his daughter. He stated she was his child before she 
was born— always claimed and acknowledged her as 
such, and manifested great affection for her. Before 
her birth Clark requested me to make preparations 
for her reception. She remained in my family until 
she married Mr. Whitney. In Clark's papers he spoke 
of her as his child. In 1811, Clark requested me to 
go to his house, and there, in an excited manner, spoke 
of his difficulties, growing out of his connection with 
D. W. Coxe, of Philadelphia. He showed me a sche- 
dule of his property, showing a balance in his favor of 
about $500,000. Previous to this there had been a 
coolness between us. In one instance Clark, being 
about to leave Louisiana, placed $28,000 in my hands, 
to be secured, in case of any accident, for his daughter's 
benefit. Shortly before leaving New Orleans, Clark 
placed $12,360 in my hands, to invest for the benefit 
of Myra. I gave my- note for this amount. After 
Clark's de^th, Chew and Relf brought suit and recov- 
ered against me in my absence. On the 27th May, 
1811, Clark wrote me from Balize, directing me to de- 
liver an inclosed package to General Hampton, and 
refers to certain notes which he expects General H., 
as a man of honor, to pay ; and in case he does, directs 
me to dispose of the funds as previously instructed. 
His previous instructions were to place the money to 
the best advantage for his daughter Myra's interest. 
Just before his departure from Philadelphia, he wrote 
me, directing me, in case of any accident or misfortune, 
to open a letter addressed to him, and dispose of the 
contents as previously du-ected. The letter contains 
this clause: "To account in a satisfactory manner to 
the person committed to your honor will, I flatter my- 
self, be done by you where she is able to manage her 
own affaii'S ; until which, I commit her, under God, to 
your protection." The letter referred to, as well as 
that to General Hampton, were returned to Clark un- 
opened, on his ai'rival here. Clark exhibited the 
warmest aflection for Myra, and frequently said he in- 
tended to leave her alibis property. 

I never doubted his sincerity. I know nothing of 
Clark's will, being absent with the army in the North, 
at the time of his death. Clark had assigned his Bayou 
property to De la Croix and Bellechasse, in blind con- 
fidence to secure it for his daughter. He had pre- 
viously done the same to me, before a coolness had 
arisen between us. I know nothing of the will— have 



received instructions from Clark in regard to Myra's 
education. His reference to her as his daughter and 
heir was an every day affair. She was always the 
subject of conversation when we met. His language 
was always the same, but expressed with more en- 
thusiasm, as she became mor? interesting. I had not 
seen Clark for more than a year before his death. At 
his hist interview with hi-^ ciilkl, it was impossible for 
any father to have manifested more solicitude and 
affection. It was then he gave me instructions about 
her education. I know nothing of any will of Clark. 
My residence is Philadelphia. I am not connected with 
plaintiff, and have no interest in the result of this suit. 
In the spring and summer of 1813, 1 was commanding 
oflScer at Lewistown,Delaware. My intimacy with Dan'l 
Clark originated in New Orleans. I commanded the ship 
Gen. Washington sixteen years, and came to New Or- 
leans consigned to Clark, in 1799. DiflSeulties had then 
arisen between France and the United States. I had 
served in the French navy as lieutenant de vaisseau. I 
resigned my command, returned to the United States 
very poor ; and this was my fli'st command. Clark 
then occupied a very high and influential position in 
New Oileans, and was looked up to with great respect 
by all strangers. He treated me with great kindness ; 
my intimacy with him continued until 1809 or 1810, 
when from some causes imknown to me, our confi- 
dence was suspended. I was not present when Myra 
was born ; it occurred in 1804 or 1805. Clark never 
spoke to me of the expense of maintaining Myra. Our 
relations forbade such allusions. The child remained 
with me. Time rolled on and the child grew, and as 
she giew, she gained our affections. Nothing was ever 
said about her maintenance until we were about leav- 
ing for the North, when Clark placed the money in my 
hands, referred to before, to be invested for her benefit. 
I never said or wrote anything to Clark about any 
advances for his daughter. He would have attended 
to such request, if I had hinted it. 

On one occasion Mr. Clark spoke to me of a child 
called Caroline, thenUvingin New Jersey. 
Louisa Benguerel. 

Louisa Bergnerol, for plaintiff— My age is 57 ; I re- 
side in Opelousas ; I have heard of the plaintiff in this 
suit ; I know Zulime Nee Carriere, mother of Myra ; I 
knew her long ago ; I have no personal knowledge of 
her marriage with Clark. 

Mr. James DeGrange married Zulime Carriere, 
which proved a bigamy ; his lawful wife, whom he 
had previously married, came to New Orleans ; he was 
thrown into prison in New Orleans, in 1802 or 3, but 
escaped, and, I believe, never returned to Louisiana ; 
DeGrange's other wife brought with her proofs of her 
marriage ; the exposure of DeGrange's bigamy was 
notorious in New Orleans at the time ; my husband 
and myself were intimate with DeGrange ; we re- 
proached him for his baseness ; he excused himself 
that he had abandoned his other wife, and never in- 
tended to see her; DeGrange was about six feet (Eng- 
lish), stout built, light complexion, blue eyes ; I knew 
DeGrange's lawful wife, whom he had married pre- 
vious to imposing himself on Zulime. I have no in- 
terest in the suit, or any connection with the parties. 
Madame Sophie Despau, Sister of Zulime. 

Jlladame Sophie Despau, for plaintiff— I am 71 years 
old, and reside at Biloxi, Harrison county, Mississippi; 



THE GAINES CASE. 



I know Mym Clark Onlncs, wns present at \wr birth ; 
1 rpsldodln Ni-w Orlrniis from lH<H)lo 1«)7 ; I knew 
« 'lurk since 1797, and coiitlmied to tie nc(|iinintcil with 
him until Iho Inlfrriipllon of frlomlly relatione bt'lwiten 
him and my slsior, Ziilime Nt^t- do t'arrlert', in 1^)7. 
I know that OunittI Clark v/i\» miirricd ; ho was mnrriitl 
In Phlliidelphiu, by a Catholic Priest, to my sl^t.r, 7m- 
llme N6e de Carriere ; I was present at this marriage ; 
this was in 1W)3— It may hiivo been in 1802; It wiw 
shortly, previous to Mr. Clark's Koine to Kurope. 
There was but one child of this marrlaife— the present 
plaintiff. Zulime had previously married DeUranRe, 
from whom she separated, on account of the charije of 
bisaray against DeOrantie, which he admitte*!. These 
facta wen- known. Cliirk made proposals to marry her. 
But, before his marriaife could be effected, it was neces- 
sary to prove the invalidity of the inarria^ with De 
Grange. My sister and myself went to New York, to 
procure proofs of DeGrange's previous marriage. 
Clark was to follow us. On our arrival in New York, 
we found thai the reKlslry of raarriaites had been de- 
stroyed. Clark arrived alter us. In Philadelphia, we 
found a Mr. Gardette, who said he was present at De 
Grange's first marriage ; that his wife had gone to 
France. Mr. Clark then stated to my sister, " You have 
no longer any reason to refu.=e being married to me ; 
it will, however, be necessary to keep our marriage se- 
cret until 1 have obtained Judicial proof of the nullity 
of your marriage with DeGrango." They were then 
married, Clark and Zulime. After this, we heard that 
DeGrange's wife had arrivctl in New Orleans. We 
proceeded to that city. DeG range was prosecuted for 
bigamy, father .\utoine taking part in the prosecution. 
He was convicted, thrown into prison, whence he es- 
caped by the connivance of the Governor, and was 
taken down the river by Mr. Le Bretor D'Orgenois, 
when he got into a vessel and fled the country. This hap- 
pened just before the cession. Clark told us, that before 
their marriage could be promulgated, Zulime sluudd 
bring an action against DeGrange. This was delayed 
by the change of-govemment. But, at length, in IHOfi, 
Messrs. James Brown and K. Fromentin, as counsel for 
my sister, brought suit against DeGrange, in the City 
Court of New Orleans, alleging his bigamy. Judgment 
was rendered against him. Clark still kept the marriage 
n secret. In l»no, he was elected to the U. S. Senate. 
Whilst in Washington, we hennl ho was courting a 
Miss Caton. My sister was much distressed, and we 
went to Philadelphia to get proof of his marriage. 
We could not llnd the records, and were told that the 
priest who had i)erformed the marriage ceremony had 
gone to Ireland. Mr. Coxe told >« that Clark was en- 
gaged to Miss Calon. My sister sjxid it could not be 
so. Coxe replied, that she could not prove her mar- 
riage with Clark if he contested it. A lawyer waa sent 
by Coxe, who said that my sister could not prove her 
marriage, and read a letter in English from Clark to 
Coxe, st.iting that he was about to marry Miss Caton. 
The marriage of Zulime and Clark was private. 
Besides myself, there was present a Mr. Dossier, of New 
Orleans, an Irish gentleman (ii friend of Mr. Clark) 
whose name I do not recollect. Clark said he had in- 
formed Col. Davis, Daniel .V. Coxe, and Richard Relf 
of his marriage. It was known only to a few friends. 
I became acquainted with Jerome DeGrange in 1793, 
when he first came to New Orleans. He passed for a 
single man. Zulime had two children by DeGrange ; 



a boy and n girl. The boy died. The girl lived ; her 
name was Curoline, and she niarrie<l one llamex. Hhe 
wiLS born. In IHOI, and die«l within the ihri-e yi>ar« part. 
My Hlster, in 1H(«, married, in Philiulelphia, Jait. (iar- 
dette. The house In which Clarke and Zulime were 
inarrie<l was a private one, rontetl by Clarke. I don't 
n^member the street. As near tw I can reraemlx>r, tbo 
marriage took place in 1H02 or 1803. Clark wa.s seve- 
ral weeks in Philadelphia before the marriage. Ho 
remained in Philadelphia but a short time after the 
marriage. Zulime wils nineteen or twenty years of 
age when married to Clark. Alter the marriage, wo 
resided together in the house provided for my sister by 
Cliu-k. I wa-s not acquainted with Clark's mother. 

I do not know of Clark's Introilucing Zulime as his 
wife. Shortly after the niarriace, Clark went to Europe ; 
he returned to New Orleans in the summer ; Clark 
lurnishcd Zulime with a handsome house in New Or- 
leans, in which she and I residt^l : Clark took tea 
with us almost every evening ; the house was near 
the Bayou Koad ; I don't remember the name of the 
street ; I was not in New Orleans at Clark's death, in 
1813 ; previous to this, a rupture had Uiken place be- 
tween Zulime aiul Clark ; Zulime was never divorced 
from ~ Clark : bcliving it impossible to establish her 
marriage with Clark, she married Gartlette before 
Clark'sdeaih. She lived with Gardette till his death. 
in IKK or '33, having t*o children by him. 

Clark was a highly honorable man, quick to resent 
an insult. I have always believed his feelings to my 
sister were honorable, but he was kept from making 
the marriage public on account of the unfortunate statu 
of affairs. He never intended to impose upon Zulime. 
He met her after her marriage with Gardette. so my 
sister told me, and regretted that the present barrier 
prevented his publicly acknow'ledging her as his wife, 
having been convinced that she had been calumniated 
in the matters which leil to their separation. 

The child was placed with Colonel Davis, and whilst 
in his charge, was frequently visited by Zidime. My 
sister kept the birih of Myra secret because Clark 
alone possessed the me.ins of establishing her legitima- 
cy. After m-irriage to Gardette, she recinested of Col. 
Davis permission to laKe Myra home, but Col. D. ob- 
jected, saying that she had been rais«-d as his daughter, 
looked up to him as her parent, ami was happy in her 
igiionince of the unfortunate circumstances of her 
birth. The mother of Myra now resides in New Or- 
leans, and is supported by her s<in. Dr. James Gardette. 
Since 1806, she has resided in New Orleans. Philadel- 
phia, and France. 

Rose Caillavet, Sister of Zuline. 

Rose CfliV/nrff, for riaintiffs— I am in my eighty- 
third year, and reside at Biloxi. I have been person- 
ally acquainted with plaintiff, Myra, alx'ul fourteen 
years ; my knowledge of her dates from her birth. I 
resided in New Orleans previous to lr*00, and until I 
went to France, in 1807. 1 wa.s well acquainted with 
Daniel Clark ; my intimacy grew out of my sister's 
marriage, and continued whilst I resided in New Or- 
leans. I was not present at the marriage, b\it knew, 
both from Mr. Clark and my sister, that they were 
married. I know that iu 18fr2 or 1803, Clark proposed 
marriage with my sister. These proposals were dis- 
cussed, aod the preliminaries were arranged, by my 
husband in my presence. The difficulty was to get 
proof to invalidate my sister's previous marriage with 



10 



THE GAINES CASE. 



DeGrauge. To get these proofs, Zulime and Madame 
Despau went to the North. While there, Zulime wrote 
me that she had married Clark. Myra was bora of this 
marriage. She was placed with Mrs. Davis, and 
nursed by Mrs. Harper. She is now the wife of Gene- 
ral Edmund Pendleton Gaines. Clark always kept 
this marriage secret. I have heard that he acknowl- 
edged it in a last will, which was suppressed. I be- 
came acquainted with Jerome DeGrangein 1795; he 
was then reported to be an unmai-ried man. Some 
yeaj's after his marriage with my sister, it was discover- 
ed that he had a wife living. He was prosecuted and 
found guilty of bigamy and thrown into prison, whence 
he escaped by the aid of the Spanish Governor and Mr. 
Le Breton D'Orgenois. This happened just before the 
transfer of Louisiana to the United States. This was 
the last heard of DeGrange. His lawful wife came to 
New Orleans and established her pretensions. My de- 
position, taken in 1835, under a commission from the 
Probate Covu-t of New Orleans, before Judge Preval, in 
presence of L. C. Duncan and C. Roselius, is, as it has 
beeji translated to rae from the English copy, garbled 
and mistranslated in material parts, particulai-ly in the 
cross-examination. I never said that there had been 
no children from the marriage of Zulime and De 
Grange. (Other misstatements are also referred to in 
this deposition, which she says were never translated 
and read to her. She adds, that since this deposition 
was taken, she has learned that the counsel employed 
on behalf of complainants had abandoned the case 
and taken a fee on the other side.) Zulime had two 
children by DeGrange. She was nineteen or twenty 
years of age when she married Clark. When Zulime 
returned to New Orleans, she lived with Madame Des- 
pau and myself, where Clark frequently visited us. He 
did not keep house with Zulime on account of their 
mai-riage being kept secret. My sister mari-ied Dr. 
Gai-dette and lived with him in France until he died, 
having two children by him. My sister Zulime now 
resides in New Orleans with her son. Dr. Gardette. 
Right Rev. Philander Chase. Bishop of Illinois. 
Philander Chase, for complainant, says— I reside at 
Jubilee College, Peoria, Illinois ; I am pirces ex-officio of 
said institution, and presiding bishop of the Protestant 
Episcopal Church in the United States ; I am acquain- 
ted with Chew and Relf, and Mrs. Gaines. In autumn, 
1805,,! went from New York to New Orleans, and 
obtained the charter of Christ's Church in that city ; 
my family followed me in the fall of 1806 ; the vessel 
with ray fm-niture was shipwrecked on Cuba ; in con- 
sequence of this misfortime, we accepted a tender of 
the hospitality of Andrew Burk, and lived with him 
in the Faubourg St. Mary ; shortly afterwards I moved 
down the coast, about three miles from the city, and 
occupied one of two dwellings belonging to Mr. Jos. 
McNeil. Nearly opposite to me, and on the other side 
of the dividing fence, about thirty or forty feet off, 
lived Myra' Clark, under the nursing care of Mrs. 
Samuel B. Davis. The Davis's were not affluent, and 
were reputed to be dependant on the liberality of 
Daniel Clark ; Myra Clark was then a year and a half 
or two years old, as I should judge from seeing her 
brought out every day to receive her father's caresses ; 
this 1 saw during a period of six months or more ; I 
was acouainted, but not intimately, with Daniel Clark ; 
we spoke as two gentlemen having no particulai- ac- 
quaintance ; his character was good as far as I know ; 



one failing was admitted on all hands, viz : that a 
weakness, (amiable as it was termed by some,) in con- 
fiding too much in those who would flatter him, but 
who, it was thought, served him with some sinister 
views. He was reported to be as wealthy a man as 
any in New Orleans ; my acquaintance with him ex- 
tended from 1806 to 1811. Daniel Clark was the repu- 
ted father of Myra. He openly acknowledged cherished 
and fondled her, and spoke of her as his heiress. 

I was somewhat, but not extensively acquainted with 
Mr. Samuel B. Davis. His attempt^ at familiarity with 
me were unpleasant by reason, of his bad character. 
Andrew Burk, my senior warden, had told me while I 
lived in his house, that Mr. S. B. Davis, having been a 
privateer under French colors, had taken his (Mr. 
Burk's) vessel at sea, and he was sorry to see him ap- 
pointed harbor-master of New Orleans. When Mr. 
Davis moved into the house adjoining to mine, I found 
his servant cutting up, on the opposite side of the levee, 
and disposing of a Kentucky flatboat belonging to me, 
which I had bought a few days before, for ten dollars, 
in New Oi'Ieans, and caused to be floated down the 
river for domestic purposes, tasked the servant by 
whose orders he was doing so. He an.swered, " by my 
master's orders," and added such language as to give 
me to understand that a quarrel was the object aimed 
at. lu this I was determined to disappoint him, and 
suffering the pecuniary loss, gave up the matter. Re- 
membering what good Mr. Burk had told me, I shrunk 
from the thought of contending with Mr. Samuel B. 
Davis, especially as he had gained the patronage of the 
rich Daniel Clark. Daniel Clark was intimate with 
Davis. The latter had two neices. I never heard it 
contradicted that Myra was the daughter of Clark. 
Before the death of Clark, Davis was considered a poor 
man ; since, he has been accounted Rich. 

On 1st Feb., 1819, being about to be consecrated 
Bishop of Ohio, I heard that I was charged by Colonel 
Samuel B. Davis, a rich man of Philadelphia, with 
having wiitten him a letter threatening his life. The 
matter was investigated ; Davis never could produce 
the letter ; he acknowledged he could not do it, in my 
presence. Here the matter dropped. My brother, 
Dudley Chase, who had been a member of the United 
States Senate, when asked by me, why he voted for 
the appointment of Davis as Colonel of the regiment 
to be raised for the defence of the Chesapeake Bay, 
replied that he went^ with his party, and that Mr. 
Fromentin, the senator from Louisiana, voted against 
him, as a man of bad character. I heard in Philadel- 
phia, that Davis had a daughter living with him, by the 
name of Myra Davis. This deception of the public 
being consistent with his character, created no sm-- 
prise in my mind, should she prove to be the real Myra 
Clark, whom I had seen her father own and caress in 
1807-8. This opinion of Davis's deception was con- 
firmed some time after by the Rev. Dr. Edmund Barry, 
in New Jersey, who informed me that Myra had mar- 
ried a Mr. Whitney ; and, discovering that she was the 
child of Daniel Clark, they had gone to New Orleans 
to establish their rights. I never thought Clark an im- 
postor, nor that he was capable of any grossly improper 
conduct. 1 knew nothing of Clark being reported a 
married man. Messrs. Chew and Relf were gentlemen 
of good reputation and standing, when I lived in New 
Orleans. They were members ; of Christ Church, of 
which I was Rector. 



THE GAINES CASE. 



11 



f Annexed to Disliop Chase's tli'posilion is n corres- 
pomliHice between him and VirKiJ Whituoy, son of 
Mrs. tJiiino-s in relation to the knowledge ho (Cliase) 



possefseil of Clark and Myra. The Bishop's reply em 
bodies substiuitially the facts set forth in his dopositiou.J j 
Samtkl B. Davis— Ob crots-eTamination. i 

Samuel B. /Jaria, whoso testimony in chief has been ] 
previously given, was subsequently crori.x-exumiued by i 
delendiuits, and deposed as follows : iW'v only Rive of 
this testimony what is not stated in his previous depo- , 
sition.) I 

I began to remain permanoutly in New Orleans in 
1603. 1 have been both sailoruud solilier. Clark, with j 
whom I was intimate, had the reputiUion of being a 
rich man. Clark left n child by Madame Defirange; j 
that child is now Mrs. VA. Pend. (Jaines ; she was born I 
at my brother-in-law's, Baron Boisfontaino. Clark was , 
then absent in .Mexico. I provided for the child. 
Clark always spoke of .Myra as his daughter with great | 
afli'ction. Clark never spoke of anybody else as his heir | 
but Jlyra, Clark, before he left New Orleans, in 1S)7, 
to see after his affairs in Philadelphia, conveyed a 
largo property to me, for the benetlt of Myra, and also 
left with me a trunk containing valviable documents, 
which I deposited in Bank. I first became acquainted 
with Clark in 1799. I was present when Laussat, the 
French Colonial Prefect, arrived in New Orleans. 
Clark WHS then in New Orleans. This was in 1(^04. I 
never heard Clark speak of Zulirae as his wife. I had 
no convei-sation with Clark about his connection with 
Zulime. Clark had no woman in his house but a 
black servant during my acquaintance with him. .Myra 
was boyn in a house on Esplanade street. Clark never 
referred to her as illenitimate. The petition in the suit 
brought by me, in lc*l7, against Relf and Chew, may 
contain the allegation quoted, to wit : " the natural 
daughter of naniel Clark, lateoftho city of New Or- 
leans, acknowledged by him as such ;" but these words 
were not used with my knowledge or consent. This 
suit was discontinued, on the promise of Uelf and 
Chew to do what was right. Myra's nurse was the 
wife of a watchmaker, named Gordon. She remained 
with her only twelve days, and being neglected, I took 
lier to my home, where she was suckled by Mrs. 
Harper, then nursing her oldest child. .Airs. De 
Grmige often came to see Myra. When we went 
to Philadelphia, in 181:2, Mrs. DeCrange was then 
living with Dr. Gardetle, in Philadelphia. She was 
not proliibited from' visiting my bouse. She was 
at my house, t'ho never saw Myra elsewhere. Mrs. 
Gardette once met me in the street with Myra, and 
she stopped to speak to me. She did not speak to 
Myra, or lake any such notice of her that the latter 
might remark ; but she looked very hard at her. She 
acknowledged Myra to be her daughter, by Clark, and 
manifested every feeling w hich a mother could do to- 
wards a child- Myra bore a strong resemblance to 
Clark— more in figure than in face, and more in charac- 
ter than in figure. Clark visitwl my family every day. 
MjTa never knew that Clark was her father ; at that 
time she called him " Mr. Clark." She always called 
us by parental titles. Clark requested, when we left 
for Philadelphia, that she should not bo placed in a 
boarding-school, but kept imder the eye of my wife. 
I returned to New Orleans shortly after the war : my 
family came in 1S16. M3rTa remained in Philadelphia. 
It was reported that Clark's estate was insolvent. I 



should have prosecuted my claims, if I had thought 
anytlilng.could bo mode out of the estate. I never 
heard Clark was married. There was a report that ho 
was engiMjed to Miss Caton. I do not think it likely 
that Clark would have two wives. Myra could imthavo 
been born before 1801, as Mrs. Harper was not m Now 
Orleans until that year. When Cliu-k went to Con- 
gress, he took my Bon, Horatio Davis, to college with 
him. I think it was in 1805— the tlrBt time a deli>gato 
was sent to Congress, from Louisiana. .\t that timo 
.Myra was about a year old, and could not sit up ; slio 
was a sickly child. 

TeSTI.MONV as to DKtJRANOE's MaRRIAGE WITH BAR- 
BARA M. Orci— Ellen Ouinan. 

FJlen Ouinan, for complainant— 1 have resided in 
New York since 1 was nine years old ; when I flrst 
came to New York, the pastor of the Catholic Churcli 
in the city of New York was my uncle, William Vincent 
O'Brien ; he was pastor for thirty years, and died in 
1814; r have seen him write, and identify exhibit 
(A) as in his handwriting ; I have heard of the p<>r8on 
named in this certificate ; I did not know .Jacobus 
DeCrange and Barbara M. Orci, nametl in the cer- 
tificate ; 1 learned from Mr. Cruse, who married the 
sister of Sir John Johnstown, that the books of my 
uncle, which had been given over to Bishop Connelly, 
were ilestroyed by fire ; this was thirteen years ago ; 1 
heard that the witnesses in this certificate belonged to 
the Spanish ambassador's suit ; my uncle had authority 
to marr)- ; his certificates were mostly in latin ; the 
marriage certificate of DeGrange is in the usual form ; 
I think 1 have heard my aunt, Louisa Jane O'Brien, 
speak of the marriage of such a person as DcGraugo ; 
she mentioned particularly the dress of the bride. 

The certificate referred to as exliibit (.V) is as follows : 

0mnibu4 'ios litertu itup<cturit Saltium in Domuco. K;:o, inira 
BcriptM, mrenlos CntUoliciM et Apostolieus, pnjtor rc<lp»iir 3. 
Petri Apostoli, liuic presentibtis, notum fiicin et attC!>toromniba» 
et tiin^is quontm interest, quod die eexta roennui Julii, A. D. 
]■'.», ill matrimoDium conjiiiueerara Jacobiim Defrange et Bar- 
bara M. Orci. Testes presentes fuemnt- Joannea O'Cunnell, Caro- 
lus Beruardi et Victoria Bcmardi. In quorum fid<rni, liai inanu 
|iropria scripsi et aubscripei negatoq neminl Datum Seo Eboraci, 
bac lid die meusis Septeiubria, It D. tSOix 

GULIELMU3 N. O'BRIEN, 
Taator Eccleaiie S. PeUi, ut supra- 
John Power, Ficar General of J^Tete York. 

John Power, for complainant : I reside at No. 15 
Barclay street. New York; am Vicar General of the 
diocese of New York and Pastor of St. Peter's Church ; 
I have been Pastor of St. Peter's 20 years ; records of 
marriage are kept in SI. Peter's; I do not know 
whether the record of marriages in 1800 exists; 1 have 
heanl it was missing ; 1 knew Wm. V. O'Brien by rcpi»- 
laliou ; he died before 1 came to New York. There 
are records of baptisms solemnized by him in St. 
Peter's Church ; I believe the certificate (that of Do 
Grange's marriage to Mrs. Orci) to be in the hand- 
writUig of O'Brien ; it is identically the same hand- 
writing with the records of St. Peter's kept by O'Brien ; 
the Rev. Mr. O'Brien kept his record in Latin ; his sig- 
nature was Gulielmus V. O'Brien; he had authority to 
solemnize marriage : the certificate shown to me of the 
marriage of DeGrange to Mrs. Barbara >!. Orci, is in 
due form ; I know nothing of the witnesses in this cer- 
tificate. 

Charles E. Benson. 

CAaW«» E. BeiiiiMi, for plainlifl'—U Clerk of Sl.Peter's 



12 



THE GAINES CASE. 



Church, New York, and has the custody of the records ; 
there are no records existing previous to 1802 ; my only 
knowledge of Rev. Mr. O'Brien's handwriting is derived 
from examination of the records ; the certificate shown 
to me is in the handwritmg of O'Brien ; the records 
contain baptismal certiflcates in 1788, 1789 and 1790— 
down to 1608 ; I have searched diligently for marriage 
records iu 1802, and can find none ; I have searched 
every where in vain ; O'Brien had authority to marry ; 
his certificates were in Latin ; I know nothing of the 
witnesses mentioned in the certificate. 

[Here follows a certificate of C. W. Di-ebshler, who, at 
the request of plaintiff, instituted a search for the 
papers referring to the bigamy of DeGrange, but was 
unable to find them, most of the old Spanish docu- 
ments having been removed fiom New Orledns pre- 
vious to the Cession. Governor Claiborne made seve- 
ral ineffectual efforts to get the papers back.] 

In the archives of the old corporation, Mr. Drebshler 
foimd some of the files of the Moniteui' de la Louisiane 
of 1804, but the file of 1803, vol. 3 was missing. He cut 
out of a printed publication au extract, which reads as 
follows : 

New 



had 



" Zulime Carriere, at the 
Orleans, in the year 1796, c 
ber of a noble French famil 
informed that Mr. DeGranj 
Grange was charged by i 
thus marrying her while' hi 
at first denied the charge, 
left him on th. ' 
DeGrange's lir^ 
her husband h: 
she prosecuted 

ed, by the order of the Governor, 
Grange effected his escape, and 



and he 



■ly age of sixteen, married ii 
lerome DeGrange, a younger mei 
.\bout the year 1800, Zuiime w 
former wife then living. I 
family with his baseness, 
fe was living, and although 1 
juently admitted i ~ " 



I for the often 



fled the country. About 1803, 

ew Orleans, from France, and 

oNew Orleans at the same time, 

of bigamy, and had him an'est- 

.nd thrown into prison. De 

■ afterwards returned." 

Mr. Drebshler annexes three certiflcates, one of Anto- 
nio Argete Villalebos, Spanish Consul, one of Mr. W. C. 
C. Claiborne, son of Governor Claiborne, and one of 
Eugene La Sere, keeper of the archives of the old 
Curporalion, confirming his statements about the 
appearance of the Spanish records, and of the volumes 
of the Moniteur de la Louisiane, in 1803. 



Fourth Day. 
Mrs. Leonide Blondeau. — Evidence to the good char- 
acter of Mesdames Despau and Gardette. 

Mrs. Leonide Blondeau, Doctor Byrenheidt, Mrs 
Adeline C Nixon, Mrs. Louise Reyesou and Monsieur 
Le Cur6 Geuuard, all of Biloxi, prove the good charac 
ter of Madame Sophia Veuve Despau ; also, Mesdames 
Sylvan Cantrelle, Evanate Nee Brunei, Azelia Foucher, 
Antonio Urabro, Maria C. L. Truffin, Antonio A. Mea- 
doz. Rev. Manuel F. Garcia, Andres de Tories, Eliza L. 
Ruelle, J. B. Sai'azin, Pedi-o de Torres, Felix Carriere, 
C. Debaillons, J. and M. C. Louaillier, and others. 

EUzabeth Bragen deposed to the good chai-acter of 
ftL-s. Gai-dette (Zulime) whilst residing in Philadelphia. 

One of the cross-interrogatories to the witnesses, intro- 
duced to prove the good chai'acter of Madame Despau, 
is as follows : 

" Will you state what would be your opinion and 
theopinionof the first society, where you or she re- 
sided, concerning the chastity, truth and veracity of a 
woman, accused and charged by her husband in al- 
most the following words : ' With scandalously and 
clandestinely leaving the territoi^, (her residence) 
leaving her children to the care of nobody, leading a 
wandering and rambling life without regard to the 
principles of honor and decency, being in open adult- 
ery.' Upon which accusation and charge the coiu-t 
rendered judgment, declaring '• that the wife had for- 



feited lier rights to the property acquu-ed, and that the 
same vested in and belonged to the husband.' " 

To which the witnesses all replied that they knew 
nothing of the matter inquired about. Several of 
them state that M. Despau was a bad man. 

L. £r«i«-jer— Visited Madame Gardette in Philadel- 
phia. She kept a fine house and entertained the best 
company. It was I who brought presents to Clark 
from Mexico ; they wei-e gold medals from the Count- 
z Galvez, the Coimt de Cavarol, the Count de 
Valenciana. I was intimate with Clark; frequently 
took breakfast with him ; never found a lady in his 
house. I knew Relf and Chew : they bore good char- 
acters. Eelf was the Executor of Alexander Milne. 1 
never heard any complaint against him. 

Deseree Vignaud — 1 am sixty-six years of age, was 
born in Marseilles, France. I knew Madame Zulime 
DeGrange ; have always been friendly with her ; she 
visited in the best Creole society ; I knew nothing agamst 
the reputation of Madame Despau. 

M. S. Oalan—Has known Madame Despau thirteen 
years, and never knew any thing against her. 

H. S. Harper — Inspector in the Custom House, knew 
Madame Despau when she lived with her son-in-law, 
near Matanzas. Her character was high there and here ; 
she was esteemed among the elite in Cul>a. I am the 
third child of Mrs. Harper, late Mrs. Smith, who suck- 
led Mrs. Gaines, I do not know whether it was myself 
or brother who was nuised with Myi-a. My father was 
a coffee-planter in Cuba, and I lived with him till 1829, 
when I came to New Orleans. 

Madame jllpuent— {Maiden name Elizabeth Chon- 
nait.) Resides in Parish St. Bernard : is seventy-five 
years of age ; knew the Carrieres ; their position in 
society was highly respectable ; ZiUime married De- 
Grange, a rich confectioner, who left in consequence of 
the arrival of another wife. 

E. T. Brasier — Fifty years of age ; resides in Phila- 
delphia; knew the Gardettes; their position highly 
respectable ; Dr. Gardette was an eminent physician, 
and was thought to be wealthy. 

Mandate of the Supreme Court in Patterson'' s case. 
In this mandate it is set forth by the Supreme Com'l, 
that Daniel Clark did mari-y Zulime Cai-riere, as set 
forth in the bill ; that Myra is the only issue of this 
man-iage, and was, at Clark's death, his only legitimate 
heir ; that the lots of Patterson formed pai-t of Clark's 
estate, were illegally sold by Chew and Relf, pretended 
executors, and must be restored to Mrs. Gaines. It id 
decided that Mrs. Gaiues is entitled to her legitimate 
share, being four-fifths of Clark's estate. The Circuit 
Com-t is therefore du-ected to cause Mrs. Gaines to be 
put in possession of four-fifths of the property of said 
Patterson, and of the rents and profits accruing from 
said property since it came into possession of defendant. 
Statement of Clark's property in 1810. 

Debts $330,873 

Lots sold on the Bayou — 117,640 



Houmas land and 100 slaves 150,000 

Sligo and 100 slaves 110,000 

HaifofClarksviUeandSOslaves 25,000 

Houmas Point .30,000 

.•)2,000 acres in Ouachita 52,00* 

40.000 acres in Filheol's grant 40,003 

8,000 in Opelousaa * 

180 acres on Canal Carondelet, extending to the 

BayouRoad, onlyvaluedat iiO.OOO 

Other lands, making a grand total, in debts and 






Upon which only $5ii00 *a 



.$967,013 



THE CAIXES CASE 



This statement is sifrrioil by Daniel Clurli. I on. injm Reif m Bi>ileciwu«, New Oriwm., AueiuHi, i*w. 

On the -id March, IHH, Relfand Chew, .«exoculons | X"^:l;^riX i^'a i;:;Sb:r,:":r/„^l:rpL.;!;*":,..t"u..,:U"' 

Entirely ignonnitof CUrii'* iatenliiHia aa to h» twu cbiMr*^!!, d« 
dcnireii t'l know uf BrllcclmM« if thi' til^y-two lou wrre intirnd 
fd for Myni nlonc, or for both rhililrrn. 



asked tlie Court lor' a rt«pito, and a raoetiuK of tlie 
credltom uf Clurli'd estate to delay a sale and Hacriflce 
of his properly. 

Letters from the Complainant. 
-letter from Mr».U»lf u Daiii.-I Clurk. daipd PhiUdrlpliin. 



testimony foi; the defendant. 

Lewis Lksamsicr. 

Lewis Lesasnirr, for dvfcndanlti, is 53 yeam of age ; 

camo to New Orleanst in 1805; knew Daniel Clark ; he 

April 7. i8(K.tn Reir' wasa Icadlnij politician ; stood high a'* a manofbusl- 

h'."[jr'J,,TJl!fi.°' i ""=«* ; never heard of his being married. I was a clerk 

of Thorn & Co., in St. Louis «lreet, between Chartres 

and Roynl. Chew and Rcif kept nearly opposite, 

ll'hpr.* T frMnll 

I I 



Juiia iO, ITHii, tliunkinj; him for 

No. 1.—K letter of intruductit 
ter, to Chew and Keif. 

No.a.— KromD. W. Cox«, 
anJCIiew, advbiin;; them to si 

New York ; tiliio in r«x**ril to frauds in packing cotton, ui 
ing other urldiri. of busiuusa 

So. 4.— D.iniol W. Cut- (June 11, t8(»J.) to Claik, 
him of the arrival of hia father's family at I he Laturettu, and re i" . ., ., .... ,■, , . ■', " '.^ . ■ 

ferring to other domesuo nrrangemenW ; refers tothe heary debt* i where I frequently Saw t lark. I don't believe Daniel 
he has to pay, and to various commarclal tr»n«actiou» ; advi.e« j Claik would be capable of ndrtre!M<llig a lady. With a 

view to marriage, when he had a wife. 
Henry \V. Palfrey. 



him not lo give over 16 rents for cotton, and concludes " tliat tlie 
probable fate of Luuistiuni u wrupped in n^'stery. The French 
article," he says, " liHiks very suspicious, and also Windham's 
speech of 3d May. The Aurora, however, seems to deny it alto- 
gether; God grant thiit it may be in llie right." 

No. 6.— From Clark tu Chew and Relf, dated Balize, lilth June. 
)80i, recommending urgency in sendiAg money to Philadelphia, to 
relievo their friends there, and expressing ereat apprenensions. 

No. I>— Coie to Clark, about the latter's family and his own em 
barrassments. This letter also refers to tlie fate of Louisiana ; 
says our newspapers from North to South, teem with oppositio 



Henry W. Palfrey., for defendants — Is 51 years of 
age ; came to New t irleaii^in li^lO ; is acquainted with 
the parties involved in this suit ; was employed as a 
clerk in the hou.-e of Chew and Uelf in 1811 : knows 
the handwritincf of Clark, and of Chew and Relf; (wit- 



to it, with the single exception of the Aurora. He thinks that tlie ness idenlilled handwriting of various letters which will 

cession to Fntnce wdl unite nil parties in fiivor of the acniii^ition 1. . : ... i . j . .-. x », .-., ui*.. a . .i n«, .. 

of Louisiana, and regret, the abolition of the internal taxes by 1 ^'^ introduced hereafter.) .Mr. Clark lived on the Ravoil 
Mr. JeOerevn's party. road, in his latter days. He visited Chew and Helps nlore 

In a posUcript he gives an accomit of a duel between ' every day. Keif lived with Clark for some months be- 
Capt. Izard and a Frenchman, growing out of a deli- fore his (Clark's^ death. Never heard of Clark's being a 
cate affair, in which Izaid was badly woimded. i married man. Clark, Relf and Chew were the three 

No. 7— Letter from Richard Hell', dated 1803, to Clark, referring i principal men of New Orleans. I kept the books of 
^vl^l^rcirLuiYeueffiimCoxe to Clark, dated Philadelphia, 1 Chew and Relf for four years after the death of Clark. 
January 6, 1807 complaining of the difficulties c.ark had thrown I knew Lubin, Clark's Confidential servant ; his master 

on his bands. He complains also tliat the abolition society had i iv^-j ..-j i-i. *• i.: . 

heenbruughtdownpnbimabout8ome"negrowench." Tiiis let. ^^d his friends entertained a hiurh Opinion of him; 

ter cont.a»as the following reference to the Cnrriere aitair^' I but, in 1815, Witness Caught hiin stealing cotton. 

must sneak out of a business in which no person durst show his p l-> s' 

face here, and Mad. Carriere must bear the brunt &c. 'Tisanun- *'• "• 0"*-P"KRD. 

fortunate thin» in every i)oint of view, that this lady should have R. JD. Shcphertl. for defendants— I arrived in New 

mr.^li^rt±^ho«rd"^ma^°n^1n?ia',;d••o^^aX-^ i Orleans on September 7, 180-2 ; I was well acquainted 

yourself and a burden to herself and me. Mad she not better re. j With Chew and Relf.who did business in New Orleans; 
turn toNewOjle««J''^ Clark, unde, date. January 6, IWK). he ! "J^" ^'l'' Daniel Clark ; Clark Was not in New Orleans 
says: "I fear the air of Washington does net agree with either in the autumn or the earlv part of the vear 1802. Clark, 
^ouH^te"ret°;JsT:dd^.tao^•o^rh•™'v^o"ml;iai'i^^ aaerhls return from Europe, complained of frauds in 

sellable of your engajemeui to Miss c — , which packing cotton. Clark arrivtxl here in mid-winter of 



oi promise in not communicating the secret to her. Confidence acquainted With Clark, and had several business trans- 

"Ta TilcSx"! 'art^J:. J«i;":'i'^?reTe1,".o Clark', quarrel ^«'°"« *"»^ h™' ' ^'«''«1 bim frequently at his resi- 
with Governor Claiborne, also, to Uie arrival of the Carrieres, | dence Oil the Bayou road. He was a man of great note 

;:irte«rrefe« ;;1r«k"p^p'Xlt%'Lur^^^^^^ »'^''-«- 1 "'^^•'^' '^^^"'■'l ''^" >*«^ ™=^^ried. or saw a lady at 

a brilliant aiiair of honor. I his house. 1 never heard of a widow of his. Clark told 

intend'Jd'riTrri"'!"''" '^"' '°'''"''' '''='•-»• ««». "'""ringto his I me, when he ciime back from Europe, that he brought 
No. li—J. H. t inhiv lo Clark, Philadelphia, Feb. 9, 18051, refer- 1 ihp Stones Or brickbats, and Other proofs of the frau- 
"r"l^•c«;'^'.^■VlLtVhZ.'Ii;^"J"u".^l^VsfJ".!l•f.™ .„ I du'-m packing of the cotton sent to Europe. I am 65, 



reside in New Orleans in the winter and in Virginia in 



. hu, July 91, 18M, refera to 
business alfairs. i 

r,?e"r;i'„^o''p;^va'fe''.'S^'Mil^r«i^^^^^^^ ' -"^ed her in 1802 ; was eighteen 

handsome fortune, and iiit..nded to retire (rom men lutiie life , years old ; came here on a Special misjion. I relumed 
referring, also, to a loss of *»ooo, sustained by an ill piac-ed confi (o New Orleans in 1804 ; remained here till 1817, since 

dence in the collector. 

No. 15— W. E.Hulings to Clark, dated PhiUidclphia, April 20. 
1810, referring to business alVairs ; dwelling upon the pleasures of 



,Sept.JO. isia 

No. 17— Eli7.a Clark to Daniel Cl.irk, l>liiladel)>hia. May 19, Ig].;. 
stating that Myra was in good beaJih, was very happy, and was 
beginning to rend. 

[Here follow several letters from the members of 
notable Creole families in New Orleans, to Mrs. Zulime 
Gardette, whilst residing in Bordeau.\, and from dis- 
tinguished persons in the latter place, all indicating 
intimacy and friendship between the parlies.] 



when I have been here at intervals ; it is my principal 
place of business. Mr. Clark's most prominent and 
conflential friends were Chew and Relf, De la Croix, 
Pelayvin, John McDonogh, Shepherd. Brown, Bella- 
chasse. Judge Pilot— the two latter were his most inU- 
mate friends. 

Madamk Vevvk Barbis DiBellevck. 
.Madame Delph'.ne Trrpag-nicr, widow of Barbin De 
Bellevue, tor defendants— I am 36 years of age. My 
husband was in the United States' service eighteen 
years ago. My mother resided on the Bayou Road, 
until 1813, near Clark's residence. Daniel Clark visited 
ray mother's family every day. I was living with my 



THE GAINES CASE. 



mother then, being unmarried. Had two sisters— one 
younger and one older — then living with my mother 
One of my sisters (the elder) had been mari-ied and 
divorced. This was Heloise ; she had been married to 
Francois Lambert, from whom she had been divorced 
The younger sister was Horlense. Clark paid his ad 
dresses to my sister, Heloise Lambert, with a view to 
marriage. He was engaged to her in 1813, up to the 
time of his death. He represented himself as a bache- 
lor — never as a widower. Clark spoke French as well 
as English. 

On cross-examination — Clark commenced his ad- 
dresses to my sister about eight months before his 
death, when the engagement took place. He had been 
courting twelve months before his death. I was present 
and recollect the answer of my sister. I was then 2i 
years of age. The marriage had been delayed for 
causes I do not remember ; it was to have been cele- 
brated within two months, when it was put an end to. 
by the death of Clark. My sister, I heai-d, was divorced 
by a judgment of a court. It was published in the 
paper. In 1815, my sister was remarried to her fonner 
husband, Mr. Lambert, by a civil contract before 
notary, and lived together as man and wife. This act 
was passed in March, April or May, 1815. 
Francois Dussan Delacroix. 

Francois Dussaji ije/acroti, for defendants — I arriv 
-ed in New Orleans in 1793, and am a little over seventy 
three years of age ; I am a planter. In 1806, or 1807, 1 
was a member of the Legislature of the Territory of 
New Orleans. I was a Director of the Planters' Bank 
Louisiana, President of the Louisiana State Bank, and 
President of the State Insurance company. I have 
known Chew and Relf since I lived in New Orleans 
always believed them honest ; if not, Daniel Clark, who 
knew human nature as a perfect judge, would not have 
employed them as a commercial house. When I went 
to France in 1819, I designated Richard Relf as one of 
my alternative attornies, in case of the death of either 
of the two others named, which I would not have done 
if I had not thought him honest. Daniel Clark was a 
man of honor and integrity, otherwise he would not 
have been a friend of mine. Clark was never married ; 
if he had been, I should have known it from my inti- 
macy with him. Mr. Clark told me he had a child 
with a married woman, an adulterous child ; that 
child was placed by Daniel Clark in the house of Sam- 
uel Davis in Terre Boeuf; her name was Myra; she is 
the same who married Whitney ; and subsequently 
married Genei'al Gaines. About two years before 
Clark's death, he placed in my hands two portions of 
land on the Bayou Road to be remitted to Myra in case 
of his death ; which portions of land I remitted to 
Myra the first time she came here with Capt. Davis. 
I met Captain Davis at the Exchange, and asked him 
if he had brought Myra ; he answered "yes." I then 
told him I desired to remit the two portions of land 
which were confided to me by Daniel Clark. The an- 
swer of Captain Davis was, '' she will not receive that 
from you because she is entirely ignorant that she is 
the natural or bastard child of Daniel Clark." But a 
few days after this she accepted, and the business was 
settled before a notary. 

I saw Daniel Clark the day before his death ; he was 
lying on a mattrass, on the floor of his parlor. When 
I entered, some persons who were present retired on 
the gallery- T came close to him, I put my knees on I 



the mattrass where he was lying. He took my hand 
and kissed it a hundred times, covered it with his 
tears. In that supreme instant he uttered not a word. 
In that sacred moment when the most profound se- 
crets involuntarily escape, not a single word escaped 
him about his pretended marriage. I fiequently visited 
Clark, taking breakfast and dinner with him. I lived 
in the country. I never saw Bladame DeGrange in 
his house, never heard that Clark was married to her. 
Clark always spoke to me of Myra as his illegitimate 
daughter or bastard. Before his death Clark was 
much embarrassed. In 1810 he sent to me to get my 
endorsement on a note of .$6000, which I gave. A few 
months before his death, he said he was afraid he 
would fail, his circumstances were so embarrassing. 
This I kept a secret. Mr. Clark had a great mania 
to buy real estate. He was always tormented by the 
spirit of speculation. Clark once proposed to me to 
buy a plantation near the city for $72,000— $25,000 cash . 
When the sale was made he had not a cent to pay his 
half. I had to raise the whole of it. Fortunately, we 
sold the plantation two months afterwards to Farrar 
and Williams, for $125,000. The benefit was but a 
slight relief to Clark in his embarrassments. In 1812- 
'13 and '14, money was so scarce in New Orleans the 
Banks had to suspend payment. Property depreciated 
in New Orleans very much at that time. Clark was a 
partner of Chew and Relf. I endorsed notes for the 
house. The reputation of Madame DeGrange was that 
of " une femme gallant," as we call it in French. I 
do not know how it is expressed in English. 

On eross-examination — I am not interested in this 
suit. Mrs.. Gaines has sued me, but it is not this suit, 
which is against Chew and Relf. Whilst in France, 
my agent, Mr. Cavellier, employed P. A. Rost, Esq., to 
defend me in a suit in chancery. I do not know what 
Mr. Rost did in the case. I have never reflected on 
the consequences (to myself) which might result from 
the loss of this suit, so monstrous and iniquitous. 

Germain Musson. 

Germain Musson, for defendants— Came to New Or- 
leans in 1803, previous to the change of government ; 
was a clerk for several years, then became a Western 
merchant; knew D. Clark from my arrival till he died. 
I never knew Clark was married. The population of 
merchants afid business-men in New Orleans then be- 
ing small, we knew one another intimately. I never 
heard he was married. 

Question bij a Defendant— Was, or not, Daniel Clark 
represented to be impotent 1 (Objected to by com- 
plainant, as wholly ii-relevant, impertinent, and scan- 
dalous.) 

Witness could not answer ; cannot say what was 
Zulime De Grange's reputation for virtue and purity, 
I was sixteen when I arrived here. IMr. Clark stood 
high as a honorable man, and a man of fortune. He 
was intimate with Col. Bellechasse, Dusnau de la Croix, 
Judge Pitot, and Edward Livingston. 
Zenon Cavellier. 

Zenon Cavellier,iov defendants — I am upwards of 70 
years of age, I was born in New Oi leans, and have lived 
here, with only tenipora.iy absence, ever since. I was 
intimate with Clark, from the time of his ai'rival here. 
There was a temporary coolness between us, aming 
from political matters. I never knew, or heard of 



THE GAINES CASE. 



Clark's being marrlixl ; I alwiiya Icnew him as a bache- 
lor, oiwl u iiinii of good rrputation. Noyer hennl any 
lliini; tu lliu eoiitrury, unlil .Mrx. Gaines appuartHi here. 
I knew JiTome DeGrangu. lie was a conrortioner, 
ami kepi in St. .\nnu street) between Royal and Cunde ; 
I am bound tu miy the truth, and must Htato what I 
have Niid before, that Mrs.' I)e(;ranKO was a ''/rmnie 
irallanlr.'^ Clark was considereil the lover of Mrs. De 
Grange. They were never spoken of as husband and 
wife. Her maiden name was /ulimo Carriere. I don't 
know whether she was a native or not ; she came hero 
very early, if she was not born here. I am not inter- 
ested in tills suit. 

[UvrQ rolltiwd (I number of iiiterrogBtoriea, inquiring into th«^ 
wiuieu' connectiun witli tlie ownenilii|) olB certain tract of laiul, 
claimed by plaintiA*, in Baton Koii£;e.] 

I was Intimate, In a business point of view, and 
friendly with Clark. The coolness which arose be- 
tween us, alter the Spanish Government, was attribut- 
able to an event which occurred under that Govern- 
ment. It continued a short time. Clark was consider- 
ed un honest man, of good reputation ; it is for that 
reason I think he never was married to that woman, 
because he knew well her conduct, and was him«elf n 
man of delicacy of feeling. When Clark lived in Tou- 
louse street, I was in the habit of takin-j; tea with him, 
and Chew andlielf. The character and standing of Col. 
J. D. D. Bellechassc, was that of an honest man. Un- 
der the Spanish Government, he was captain in the 
Louisiana Regiment, was afterwards made a colonel 
by Governor Claiborne. lie was always considered an 
honest man. I do not know how far the n-port is true 
that in ISU he gave information to the Hritish Gene- 
ral. Colonel Bellechassc and Clark were well together, 
but I never said they were intimate. 

I know Pierre Boisfontainc and Judge Pilot : I be- 
lieve they were honest men. I was not so intimate 
with Clark that he would communicate to me the fact 
of his private marriage. Such communication he 
would have made to Pitot and Bellechasse. His most 
intimate friends were Chew and Relf. I knew DeGrange 
under the Spanish Government ; ho was a long time 
here, and runaway when it was discoveretl that he had 
been niarrie«l in France. He was a very ugly man, 
about live feet six or seven inches, and stout ; a very 
common looking man. He married Zulime Carriere. 
I do not know if he was tried for bigamy ; ho may 
have been; I was absent at the time. He was reported 
a bigamist. It wius I believe, in the case of Kean vn. 
Relf, or Relf c,,-. Kean, in Judge Lewis' Ctiurt, about 
\i or 13 years uu'o, that I teslitled that Madame De 
Grange N'eo Carriere was a '• femme g.iUante." 1 never 
heard Clark or his friend speak of her. I have heard 
many others speak of her. If I was forced to it, I could 
name two individuals, who are now dead, who told 
mc that they bad slept with her. I have been, for a 
Dumber of years, the agent and attorney, in fact, oi 
Dusnau De la Croix. The llrst time De la Croix left this 
country for France, was in May, IftI9 ; he came back, 
remained here a short time, and then went away again 
in August, 1833. I have always continued to hold his 
power of attorney since. I have long been intimate 
with De la Croix. There is a suit respecting certain 
property belonging to Clark's succession, pending be- 
tween Mrs. Gaines and De la Croix. This suit respects 
certain negroes. Mr. De la Croix lives on his planta- 
tion, and comos very UtUe to town, being blind. I 



knew Goremor Claiborne, was intimate with him ; t 
I was a representative at (he lime. There was a strong 
, party a«iiinst him. He offered rao several office*; I 
I refused them all but the dirc<ctory of the State Library. 
Clark and Governor Claiborne had a ((uarrel and duel. 
I Clark was embarrassed in his pecuniary affairs »hortly 
I before his death. .Many of his notes were in circula' 
; lion, and sold at \i |«'rceiit. per annum— a very high 
. discount at that time ; I have seen them in the hands 
of brokers. Clark was reputed to have an interest in 
the house of Chew &. Relf. Chew and Relf always 
i bore ugocMl reputation tare. I knew Relf from a boy, 
I and never knew any thing against him. 
I Tkfodore Zaehary, for defendants— Proved the verity 
I of certain letters and certjllciites of Col. Uelleohasse, 
and of Relf, which he had delivered to Col. Bellechasse, 
' in >Iatanzas, at the reiiuest of .Mr. Relf. 
I Etiesne Carradv. 

j Ktienne Cnrraby, for defendants— I was bom in New 
Orleans, and am 75 years of age. I do not know tho 
complainant, but have known Chew and Relf for fltty 
years. I knew Daniel Clark well, from 1799 to hia 
death in 1^13. I was merchant down to IWW. I had 
some business with Clark, at different times, particu- 
' larly in 1799, when we had ajointopenilion from here 
' to Nassau, New Providence, on account of the commer- 
cial house of Knox. Clark was a merchant. He en- 
joyed a good reputation. 1 never heard any one say 
he was married— was nut a bachelor. I knew De 
i Grange ; he was a manufacturer of syrups and liquors, 
and lived in St. Anne street, between Royal and Cond6. 
1 was acquainted with MadameDeGrangeN6e Carriere; 
her reputation was bad. It was generally reputed in 
1 New Orleans, that Clark lived with Madame DeGrange^ 
I in an amorous and illicit connection. He lived with 
her as a lover. I did nol know personally -Madame 
; Despau ; but nothing good was said of her. Clark's 
reputation was that of an honorable and high-spirited 
gentleman. Clark was too high-minded a man to con- 
I iract marriage with his paramuur. 

[.VoTi- Wc uliouM remark tlint many of the interrogatorie*, 
I enpecially those relerring to the reputrftionnrMe^domes DeGnuiga 
; anil Deapau, are 9lrt>n5ly iiroie^leil a^inrt by complaint** coun- 
sel, OS impertinent, irrelerant, ami scandalous j 

Loins BocLioNY. 
Louis Bouligny, for defendants — I am sixty-eight 
years old. I have resided in New Orleans, or its vici- 
niiy, for sixty-eighl years. I do not know plaintiff, 
but have known Relf and Chew for a long time. I was 
acquainted with Daniel Clark in 1791 or 179i He used 
to visit my brother. In 11*03 I became intimate with 
him ; had business transactions with him, and so con- 
tinued, until his death. In I8U3 1 had a business lran»- 
action with Daniel Clark. We went together to Oua- 
chita, where there was a tract of land which I had sold 
to Clark. We laid on the same bearskin during the 
nighl, imd tr.ivek'd on horseback during the day. I 
used to take dinner with Clark, and he with me, during 
several years. Witness used to go and sleep at Clark's 
house, who was a bachelor, in order not to wake bis 
' (witness's) mother late in the night. I was a military 
, man up to 1803, and from that time hare been a plan- 
! ter. I was a cadet, and afierwanls an ofllcer under the 
1 Spanish Government. In 1803 I held the position of 
2nd LieulcuanU In February, 1803, 1 w as stationed at 
I the Balize, and on tho 1st day of March, le03, I start- 
I ed from the city of New Orleans to go and receive the 



16 



THE GAINES CASE. 



Prefect Laussat and Geu. Victor, who was expected ; 
but the latter did not arrive. When I left for the Ba- 
lize, Clark was in New Orleans. T had a converaation 
with him just before I left. Mr. Clark was American 
Consul ill New Orleans. In what year I do not remem- 
ber. In 1803 Clark held no office under either the Spa- 
nish or American Government. Clark was absent from 
New Orieans about the latter part of the year 1802, 
about some cotton transactions. Clark told me he had 
been to Europe. Clark wa« generally reputed to be a 
bachelor. He often gave soirees to which gentlemen 
and ladies were invited. I never heard Clark was 
married ; if he had been, from my intimacy with him, 
I should have known it. I knew DeGrange by sight ; 
danced with Madame DeGrange at the balls. The ge- 
neral reputation of Madame DeGrange was bad. Pub- 
lic opinion had it that Clark was the lover of Madame 
DeGrange. Clark never spoke to me of Madame 
DeGrange, as either his wife or lover. I only knew 
Madame DeGrange by sight ; knew nothing of her re- 
putation. Clark could not have been married to a lady 
who did not enjoy a spotless reputation. 

A young lady of this country, a widow, by the name 
of M.iss Trepagnier, being divorced from Mr. Francois 
Lambert, was courted by Mr. Clark, as Clark told 
witness, with a view to marriage. This was in 1809-10 
or 11. Clark owed me $10,000 at the time of his death. 
1 gave the executors time, and they paid it. Clark was 
so much embarrassed before his death, that he told me 
he had only taken the contract for the canal for $50,000, 
as he was much in need of that sum. I refer to the 
Canal Carondelet. I have known Chew and Relf a 
long time ; they always bore good characters. I am 
Recorder of Mortgages of the Parish of Jefferson, and 
have held the otBce since 1840. The debt due me was 
paid by Mr. Zenon Cavallier, who bought property on 
the Metairie Road from Daniel Clai-k, which was mort- 
gaged in favor of witness ; portion of the debt due me 
was paid by Chew and Relf. I had inherited a tract of 
land known as the Maison Rouge concession. I sold half 
of it, under private signature, in 1803, to Mr. Clark. P. 
Sauve and Diisnau De la Croix were witnesses to the act. 
The other half I sold to Daniel Clark in 1813. It was 
thus he became indebted to me for $10,000. I inherited 
this tract by testamentary donation from the Marquis de 
Maison Rouge. I was twenty-two years of age when I 
sold this land to Clark. Clark was eight or nine years 
older than myself. The most prominent men in New 
Orleans, at that time, were the family of Cavellier, the 
two Urquharts, Michael Fortier, Dr. Dow, J. B. Laba- 
tut, Major Nott, Bellechasse, Destrehan, Gov. Villere, 
Governor Derbigny, General Laronde, Dusnau de la 
Croix. All these were Iriends of Daniel Clark, and if 
they had not had a good opinion of him, tliey could 
not have been his friends. I served as an officer with 
Col. Bellechasse. He was a highly honorable man, 
and commanded the militia of New Orleans, and was 
President of the Senate under the Territorial Govern- 
ment. He was one of the most intimate and confiden- 
tial friends of Daniel Clark. Judge Pitol was a man of 
very good reputation. He was Mayor of the city un- 
der the Territorial Government, and afterwards Parish 
Judge. I knew Pierre Baron Boisfontaine. He was an 
honorable man ; was manager of Clark's plantations. 
He had previously managed a plantation at Natchez, 
known as the Desert plantation, and he afterwards 
came with the negroes to establish the Hoimia plan 
ation. 



I danced with Madame DeGiange between 1798 and 
1804 ; I saw her at every public ball, but not at society 
balls ; there was only one public ball-room in New Or- 
leans at that period. Rumom- said that the intimacy 
between Clark and Madame DeGrange began during 
the presence of her husband here — that is, in 1800, and 
continued for a long while. I never met Madame De 
Grange at the soirees given by Clark, or at any other 
private parties or soiVees given in Clark's circle of so- 
ciety. Pievious to Clark's death. Chew and family 
occupied a portion of his house ; he was always very 
intimate with him and Relf. Mr. Chew has been Col- 
lector of the Customs for this port ; Mr. Relf has been 
Cashier of the State Bank from its creation. 

Madame Marie Villere Ducanau. 

Madame Marie Villere Ducanau, (a sister of the late 
Governor Viller^,) sworn lor defendants: I am 
eighty years and six months of age. I reside in New 
Orleans. I was born in New Orleans, and never went 
further from it than to the Lake. I knew Daniel Clark 
very well ; I knew him when he was eighteen or 
twenty years of age, and our acquaintance continued 
until the time of his death. I never heard that Clark 
was married. He was never married, positively. I 
know that he was never married, because I always 
heard that lie was never married, and that he had good 
reason not to marry, I always heard that he could 
not be married, because, at the age of about 16 or 
17, he was afflicted with a disease, the result of which 
was to prevent his ever after being married ; but for- 
tunately, he had the money to pay his " soi disant mai- 
tresses.'''' Daniel Clark was always reputed, in New 
Orleans, to be an unmarried man ; his reputation was 
thatofaman "comme«i!/aMi." I never heard he was 
married, and always heard that he could not be mai*- 
ried. I know Madame 'Zulime DeGrange Nee Carriere 
by reputation only. I never heard that she was mar- 
ried to Clark. Her reputation was not that of an honest 
woman, but perhaps it was not true. The reputation 
of Madame Despau was about that of her sister. These 
ladies did not mingle in the same society with Daniel 
Clark. 

My maiden name is Marie Rey Viller6. I was bom 
in New Orleans ; my maternal language is French. I 
knew Clai-k when he was about IG years of age. He 
visited my house, and I visited his aunt. I never en- 
joyed his confidence. I was seventeen years of age 
when I was mai-ried. I have been married but once. 
My husband was Simon Ducanau. The equivocal 
character of Madame DeGrange wa^ of general repute. 
I was intimate with persons of high standing and 
prominence in Louisiana, during the lifetime of Daniel 
Clark. I knew Chew and Relf; theu- reputation was 
that of honest merchants. 

S. Field., for defendants— Proved that in the fall of 
1813, he met Beverly Chew in Philadelphia, and cross- 
ed the mountains with him to Pittsbui-gh. 
P. J. Tricou. 

P. J. Tricou- Knew Clark ; always heard that he 
was an unmarried man. I heard that Clark was im- 
potent. It was said so by women whom I visited my- 
self at that time. I was then about twenty years of 
age. I saw Madame DeGrange in my mother's saloon. 
Knowing that she had a bad reputation, I informed 
my mother of it, and since that time have never seen 



THE GAINES CASE. 



hiT except iu the slruuts. MnJume DeGranRO wiui 
considered as the niiHirexd (amante) of Daulel Clurk. 
The repiilulion of Madame Dcspau was on the flume 
footing as thai uf Madame I)i-(;ran(;e. From my know- 
ledge ofClurk, I do not really believu that ho would 
have married a lady who did not enjoy a Hpotless repu- 
tation. Chew and Relf have always <njoyc<l the llrsl 
reputation in New Orleans. Rellhas been Cuahierof the 
State Bank, Mr. Chew, Collector of the Customs, and 
Cashier of Canal Bank. 1 always heard lo the con- 
trary that Clark was marritnl. Mr. Clark always 
considered Chew and Relf, then young men, us bis 
children. 

One day I heard a conversation between my mother 
and Daniel Clark (not sooner than lt<lHj, nor latter than 
1810,) in which she was teazing him for not being 
married ; and told him he should get married ; and he 
answered that it was " trap tanl," — the time was over. 
Clark never intimated lo me in any manner that he 
waa a married man. Our intimacy was not, therefore, 
such as to justify his communicating to me the fact of 
his secret marriage. 

HoRXTlo Davis. 

Horatio Davis, for defendants, being shown the 
printed statement below— Says that he made the pub- 
lication ; it was in May, 1841. The original of the let- 
ter, dated at New Orleans, 14lli October, 180.5— from 
Daniel Clark to his sister — was handed to me by Mr. 
Barton, at prewnt charge at Chili, and by Doctor 
Barnes, the husband of a lady claiming In bo the 
daughter of Daniel Clark, 1 took a copy, and relumed 
the original. I believe it was written by Clark. The 
printed copy is correct. 

The infant Myra was brought to my father's hotise 
some time in the year 1804. I did not, at that time, 
know whose child she was : I, however, before long, 
heard her spoken of by members of the family as the 
Child of Daniel Clark. I was too young to have noted 
whether it was a natural, or a legitimate child. 1 
left New Orleans in the summer of 1806 to go to the 
North, for an education. My mother arrived in Balti- 
more with Myra, then a little girl, in ISl'J, while I was 
at college at that place. I'rom that period up to the 
present time, 1 have never had any reason to believe 
that any member of my family ever looked upon her 
in any other light than as the natural child of Mr. 
Clark. Myra was always treated by every member of 
the family as my sisler. Neither directly nor indirectly 
was it communicated to her by any membt^r of the 
family, or by any of the servants, in my presence, that 
she was any other than the dauchtJ^l- of my father and 
mother. We seldom spoke of her relation to Mr. 
Clark ; but when she was so sjwken of, it was aa his 
natural daughter. 1 am the son of Samuel Boyer 
David and Mary Ann Rose Baron, his wife, now de- 
ceased. 1 was born on iSd July, 1795, and am a resi- 
dent of New Orleans. 

I re-afiSrra the statement made in the printed publi- 
cation referred to before, which is as follows: 

Mr.tsri. fUlUon : In .-< AUUeniFnt hv Mr?. Oiiinf«, published in 
j-our paper ol'the lltb iiul., 1 am i liar;;ed .with lenj^uing with her 
enemie:i, in the .ve«r inn. The cliar^'e h one affeitinr Booor, lod 
as it appeared in >our rolumnn, I pr.ij that jou will hare the 
goodneos to iusert the foUowing defeme. 

loum re>pe,truil\, H. D. 

" Statemett virittm and signed by Mirra CJark Oainu, 
atid read bykerinthe Ditlriet Court, May 7, 1841. 

c 



the 



year IMIT, ba*tat 

ul Colf'Oel Samad 

.nreh. 

Wl 



iColoi 
U. Uavl,, a Iprnevolfiit ftiend aixl ad..j.toJ roolhar, a|.nrehead«4 
that »lir .oul.l not b<- mftly JUpMid ../.o u tJi prevent her futun 
rrowlh uii.l iniprovcinent; Sot thr> l>-nmed that Mim Clark, 

tliouj-h kiL.wn I.) hor immediate lu-- ■• j .t uly oa Myra Da>i<. 

waa rrtfiving from Mrs. l)a> .i ti . . i 'r,.-^« <i( a de«ut^ 

niuther, and lhou|!h in the f. ■ ' "««. '"J mad* 

such progrrM in the attaini i . n to fill thea« 

lawleM ezeculora nl' my fnth' T !■ . -ii -^nou^ appra 

henaiiin that they might er^ i ' ■'' ' i owur of 

mind and moral coum^u tli.it M '..ni.tvf 

gold, in whiib they ■- ■ ' '"•• 



iljie r 



of the high-apirit.'d but i;rn'-i 
nt mature age, the injured »iiiu-niiT 
much ofthe mind and rpiril ol tlie I', 
ty. After due deliberation, aided I 
client«t the> deternilni'd ('> ;'tf iiy t 
they rouldmake it apj'-Mr that tlii>. <>r 



by Id. 



urd Kell 



rnunael wortliy of auch 

,ue u/alim-nt/, bv which 

.;, iNild of their dereaiM?d 

:..!, .ivir, which would 

, ., .r.ir'l Tliitei 

.. , . <■, was publuhed 

, , ,.,.-i\ , in the y«a» 

.,, . .,1 be .een by eiery 

of 



such a proceedinj;. In 
mind the fact, that, at l 



enjox uienl of every 



houe9t mind to contain irrrf 

aae that could ._-,_,, ,-.,-, 

it i, proper lo bear io 
.•., sot U|. In New Or- 
leans, Myra Clark was not only unoonH-iou. of her being any othof 
than Kvn Davis, the daughter of (-..loiiel S. U Davis, and Mr*. 
A. R. l»avis, whom she had cwwi.l.rr.! ;i« her ps.-ents, and by 
whom she bad been treated aa their dan^iter, from the e.\rlio»« 
of her childhood to which her memory could revert; but 
, during the summer of 1817. with her »up|>oeed mother 
Mrs. Davis, in the city of PhUiulelii 
comfort; nor did she learn any thing about tills 

■ until more than twelve years after its tpw"*""""" 

Myral Did you write, sign and read this sUteinent before th» 
District Court— in the presence of a jurj —n crowded audience? 
Are you the Myra I have seen in herhelpleosneM resting on th» 
bre.ist, from which, in my infancy, 1 received tlie sustenance that 
lotht-rs jive their children? Are vou the Myra I have seen 
..estliii" on the manly bosom of my imhir.- Are you Uio Myra 
that I have so olVio lulled to sleep with all a brother's love, and 
buee infant steps 1 have supported ? 

Are you that Myra? And could yna dtlibtrately trrUe «** 
rii-H* puA/ir/y fo read these words ; "'Alter duo deliberation, 
led by couMsiL worthy of' riicA ci,is.Trs they determined lo pet 
up a c;i>e of alimony, by which tliey could make it appear that 
rphan child of their deceaseit benefactor had made admis- 
hich would enable Ihem luat>u« and 

ned Davis and PeiK* 

_ _ ^ titese petitions, claim- 

ny lor you; and in support of the baseless charge by 
1 seek to fasten dishonor upon me, and upon a name thai 
lent to you, my fatlier's aiithoriiy is brouj:ht to br.ir 
e— " Cxlontt SamutI B. Davit liu^ pubUcly derlartd l*a» 



!OfeiUiersubmittir 



bUcty d< 

;" tliereby placing 
silence to a false and 
.1 question of veracity 



ne in the altemati 

lisgracefiil imputation, or of publicly 

between my father and myself! 

Have you a heart, and could yoo do this? Did not your eye 
wander from this disavowal of my father to another i>art of his 
public letter, where he says, ""Conne<-ted with Mr. Clark by 
freat intimacy, 1 became acquainted with the birth of bis 
daughter when it occurred. He desired that the cirrunistanc* 
should be kept secret, and so it was by me. The child was 
pUced where it was supposed she would be properly atu-nded 
to; and Mr. Clark leaving New Orleans for a short time very 
siwn arter. I .-onsenled to see that this was done. It was soon 
iipparent that the infant was neglected, and al\er some hesitatioo, 

the child, was touched with compassion at her forlorn and deso. 
lute situation, and generously consented to take her at once to 
her own house." Could not the sight of this passage bring better 
leelings to your liosom, and arrest your unhallowed purp'»se of 
arraving against each other the hii.'liand ami only son of your 
benefactress ? Was there no inward sense of gratitude to restnu 
you ? Oh, shame! shame! It is true that I made the appli 
in behalf of my father— that I did so by his di 
nisheil me with the grounds lor the application. 

After a lapse of twenty years, that he should In 
part that he took in the transaction, is not so 
llial you, who "had madt such pm^rtu m Oi 
A.-neiWc'ffr,'*shotUd have been misled h\ 
state that at the time of fiUng the (letition you _ 
phia with my mother, "rrvo.ww^f rrery comftwi. In li*17, niy 
mother was on the sugar estate, in the parish of.St. Bernard, and 
did not retumlo Philadelphia till thespringofJSIS. after my father 
had sold the estate, low were going to school in PhOadelphia, 
and resided with Mrs. Patterson. 

Even >uur excellent memory sometiavs deserts you, not only 
in the way of forgelfulness of benefiu, but also in the lorg«tfuln«»s 

* The two petiliooe were signed by me, Davis t Peirc*. 

because we were partners. Mr. Peirre. as well as I can now re- 
member, was at the time fling th« paliCion. ill of lbs Isvar. 



rertioa : he for 

forgotten the 
at 



THE GAINES CASE. 



IV lorgotten that m aa'iwer to a cross 
\ "Mr Wlutnej, jourlate husband, to 
1 li ird Kulf vs W W Whitney, and 



* 1 h 1 \i]y such auit (the alimony suit,) as 

IS laqniK- rt 1 pj ^ n tit itpd nrr huw it c inie to be brought, 
though mj name hai e het-n u el thei in as ciiritjr ad litem 
IreniLmbet onli, llmt Mr E In i I Liim^ tot! \atd t > me that ah 
Tnony mr iht he t nned f ' f nl I tt le ' er that Mi 

Chew 01 litl/, but I beh I t , I I „ , 1-' The 

affairt of the estate were i I I l duiu 

for her then, hut that mh i I n ^ 

thing for her,' andifllie i i ion 

sequence of this staftinent ress to 

me, his intention of educit n^ ir l su} pntn n\ r i 1 1 nib own 
rani of life and proviimg ior hei , but 1 ne er heaid him saj 
when he meant to do it " 



ngston, who 



) to have gi\ en me hi: 



The bringing of the suit was the con^^equence t 
tionwith Ml LiMng * ' ' ' 

ance in conducting i 

After the conversation with Mr. Relf, by direction of my fathe 
I moved for its discontinuance. 

You have alleged, and by the testimony of vonr annt, Mr 

Despau, now on rprnr.l. if^vp Pn.ipavnrP,) to prove, that Dnni 

Clark was marrip-l v. !;..: •: l^ ,.: :'.- i - - ■■■<::. to Mr 

DeGrange, your m ■ r, , ■ , i - : ' ■ u-e m. 

becauseyou wer- : ' : li-hter < 

Daniel Clark. I, • • : , ■ lancy 

had never heard \'' ■ ; i ■ ' .. i r 1 i ,-.i vow t 

be his natural >! tition t 

establish t/o'tr Id', ■■.... [ i l- ■:■ In tli 

belief, I refer VPM -- , • t ,■, ir.ipsse 

lUr.deln i-:-.v, ■■ , ,, v,-l,o, ui 

dertlip , :, , nrinte 



ble,, 



::tfic. 



ifpossi 



Intl,-' . Gaines and wife, in the First 

Distrii t c . Ill, I', li,,' l<-t,'i'i'.,\ ni :\Ir. and Mrs. Baron Boisfon- 
taine, (;n wiiust^ iluu^e .\ uu wpii^b'irn.) it is proved that you were 
bom in 1804. That sudi was the fact, I have a personal know- 
ledge. In November 30th, 1605, seventeen months after your 
birth, Mrs. DeGrange presented the following petition to the 
County Court of New Orleans : 

[Here follows a copy of Madame DeGrange's petition 
against her husband for alimony, alleging that she has 
been cruelly and barbarously treated by her husband, 
Jerome DeGrange, from the 2d September to this day ; 
prays for $500 per annum. Filed 30th November, 1805.] 

Now hear Mr. Clark's voice. One month before your mother's 
application for alimony, from her husband, DeGrange,hewritesto 
bis sister, Mrs. Green, of Liverpool, as follows: 

New OnLEiNs, 14th Oct., 1805. 

"My Dear Sistei^l have received \mirletfpi if the 3d May, 
and thank you kindly for the pains ynn ♦ .' i , 1'"i- *i " 'mlette. 

ojreredite,therloMrs.d,ark,ora„ ,„e Mrs. 

Clark, but thistoill nut be the ease J'u , , ■ lor, as 

long as 1 have the misfortune to be li , w ' ^ i h ' u-iness, ^o 
lontjwiH Iremain single, for fear of mi-loriunp or ji < i^lpnt. 

"To thepublic, before whom you have so unnecessarily dragged 
me, I leave to determine whether or not I have repelled ^our 
• ■■ HORATIO DAVIS. 



Jacob Hart. 
Jacob Hart, for defendants— I knew Madame De- 
Grange in 1805 or 1806 : DeGrange was presented to 
me as her husband, in the streets in 1806 or 1807 ; Ma- 
dame DeGrange, at that time, went into the best society; 
I became acquainted with her in a private family f sub- 
sequently, slie did not stand as fair, but had the repu- 
tation of intriguing with gentlemen a great deal ; this 
is only hearsay ; I think this was about the years 1808 
and 1809 ; I left here in 1810 ; I always understood Clark 
was a single man. The report was ge neral that Clark 
was impotent, both among men and women, I heard 
it a number of times ; I heai'd it from females probably 
a dozen times — repeatedly. I arrived in New Orleans 
in 1804. I am 68 years of age. DeGrange had the ap- 
pearance of a common man; he was about five feet 
six inches in height, rather thinly inclined. His hair 
was light. He had a very common look, wa.^ ugly and 
|, • --.v.-'-Vf^: he was about 36 years of age. Iboai-ded 
V "' -:, PeGrnns;p was in the 



habit of vistiting three or four time a week ; I met 
Mrs. DeGrange frequently in the first society of New 
Orleans : I occasionally met Clark in the same society. 
I cannot name any persons who spoke of Mrs. De- 
Grange's reputation or of Clai-k's impotency. 
Jean Canok. 

Jean Canon, for defendants— I am 63 years of age; 
was borne in New Orleans ; knew Daniel Clark and 
Myra, his daughter by Madame DeGrange. At the re- 
quest of Clark, bought a Choctaw pony for her, and 
had a saddle and bridle made by James Martin. I took 
the pony up to Mr. Davis's. When I arrived there the 
child was asleep; they woke her up, and I took her and 
put her on the pony, and held her in the saddle with 
one hand, and led him around the yard with the other. 
Previous to this, Myra had been with Mrs. Harper ; 
Clark met me one day and requested me to go and send 
Dr. Watkins to Mrs. Harper's to see the child, who was 
sick. I took Watkins' opinion of her to Clark, at the 
bank of which he was a director, airs. DeGrange did 
not suckle her child, as she wanted to get out of thtj 
way of DeGrange or his first wife. Clark spoke of Ma- 
dame DeGrange as a beautiful woman, and very de- 
servedly, for she reaUy was a beautiful woman ; Clark 
sent for me one day, about 2 o'clock, p. m. When I 
entered the house, I found Clark sitting on a small 
canopy and holding in Lis hand a giape. The servant 
was arranging his bed on the llooi'. 1 asked him how 
he felt, and he replied " Badly ; I am unwell." He then 
said he had sent for me to take and deliver to John 
McDonogh some six or seven old negroes, which he 
had sold to him. I delivered the negroes to Mr. Mc- 
Donogh's overseer, on the Gentilly plantation, which 
afterwards belonged to Judge Martin. In returning, I 
reached Clark's house a little before sundown ; was 
surprised to see all the doors and windows open and 
feared something had happened. On reaching the house 
I saw Mr. Relf standing on the gallery ; he was weep- 
ing, and he said to me, "• he is dead ;" Baron Boisfon- 
taine was at the hcuse, and also Cadet de Jean. The 
latter said to me, sand me your razors and soap-box, as 
I want to shave Mr. Clark, which I did. Clark kept his 
amours secret, as he had several such connexions, and 
it would have given him trouble had his particular 
female friends known of them. I do not know whether 
Clark was married ; if he was, it was not here, it must 
have been at the North, otherwise Chew and Eelf 
would have known it, as they were very intimate with 
him here, and everybody else would have known it. 
Claik never told me he was married. I always forbore 
questioning him about Madame DeGrange, as I knew 
that Clark had an intrigue with her, but frequently in 
conversation, in speaking of beautiful women, Claik 
would ask me what I thought of Madame DeGrange. 
Clai-k courted a great many ladies in New Orleans ; 
when Clark saw a pretty woman, he fell in love with, 
her. I knew Jerome DeGrange ; he kept an establish- 
ment in St. Anne street, and sold liquors; he was a 
short, thick, set man, with a round, red face, and light 
or auburn hair. 

[Then follows the testimony of certain notaries and 
other parties, authenticating public domumeuts.] 

ISADORE A. QUEMPER. 

Isadorc A. Qiiempcr, for defendants— Is keeper of the 
records of the Cathedral of St. Louis, of this city. It is 
customary with the French and Creole popvdation of 
New Orleani to gire nicknames or soubriquets to theii- 



THE GAINES CASE 



1» 



ohildren ; iintl wltnc9« has found (?rcftt ilifBculty nnd 
confiifiion in consoqiience, in cxumininir llio rocortis 
of the churcli, to flml the rc'nl nniiio Intciiclfd, tipcniiso 
they 1,'fiicrnlly apply for the goiibri<niel» or niciinamo?. 
This state of things arises. In part, tVom the fact that 
the Catholic priests will not christen n child, nor bniv 
tize, nor marry parties by family niclvnames or soubri- 
quets. The name of Zulimo is a nicknntne. I do not 
think there is a saint by that name. The priests who 
perform the ceremony record the acts. Tliey are kept 
double to guard agninst loss from flro. 

Vl'. W. JIONTOOMERY. 

IV. W. Montgomery provtd haudwritin? of certain 
documents ; also, that he hud loaned $0)H)U to Clark a 



AncLB Tahzu Kovrno«. nib Cariikttb. 
Jliifle Ttiuzin l<numo»—l have resided in New Or 
leans thirty yeiirs; my father was Dr. Jnmex t^antvtle, 
(confirms ihe fureijolni; facts in rehilion to tier Cn.ther'i 
innrrlai,'e with Mrs. n«tjrfinire). I lell my father lo 
lrtl7 ; went to Nayhviile; for two years I correspumled 
with my ftilher, since then have heard nothing from 
them, nor received anything from his eftnli-. Ho died 
ill Bordeaux. I wilh very young when my lather mar- 
rio<l >!r«. Henrange ; I was about nine ; I never heard 
any good of Maduniu Detlnuige ; she wn.-> always very 
unkind anil unju?t lo inc. 1 suffered greatly under her, 
aud the ih^t cliaucc I got I went away, never to return ; 
never saw my father afterwards. I always heard that 



few days before his death, and the good character aud ' *'"'''"°« ^'^P""' """^ "l"** '*" 5'^')"' "'"'J' '""'""■• 



public services of Chew and Relf— never had their in- 
tegrity been doubted, except by persons connected 
with Mrs. (iaiues's suit. Clark was an honoralile,high- 
minded man. He had too mucli honor to address one 
lady when he was married to another. I know .Myra 
when a child, as the adopted cliild of Samuel B. Uuvis. 
Witness gave further testimony to the good reputation 
of Chew and Relf, stating that the former was in the 
battle of Uio iJSd December, and continued on service 
till the evacuation of the Kritish ; Uelf was a member 
of a are company, and the lireinen turned out to main- 
tain the police of the city at that lime. Also proved 
the high chaj-acter of Judge pilot and others. 
Fanny Di'chxufoir. 
Fanny Duchaufour, for defendants— I reside in New 
Orleans, where I have been for the last twenty-eight 



I hou.se, was no better than her sistir. (In other re«p 
the deposition of Madame Bounios conforms to thai 
of Madame Duchaufour). 

Joarhim Covrcelle, for defendants— Knew Clark well ; 
never heard he was married ; knew Deiirnnge. he wag 
a watchmaker. 1 was acquainted with Madame Da 
firange ; have been in circles where her reputation 
was spoken of very slightly ; she was very '• coquette 
ct Ugere ; " What was staled of Madame Delirange 
was also said of Madnmo De^pau. Clark was an honor- 
able, hi'rh-spirited genlleinan. He was reputed to be 
courting Mrs. I^amberl, formerly Miss Trep.ignier. 
Clark was not a man to contract a marriage that would 
dishonor him. Knew Colonel Bellech^isse and Judg*^ 
Pilot, they were honorable men. 

Mrs. Sarah M. Smithy for defendants— Proved Bev- 
erly Chew's marriage at her house, in 1810, to Maria 



years. I was bom in Philadelphia ; am (illy-two > ears i Theodora Daer, and the iniimacy of Claik wilh him, 
old ; am daughter of Dr. James Gardctte, formerly ] ,,.y,^ ,,^ ^ geal at his table. Chew lelt New Orleans 
dentist m Phdadelphia; my mother died in 1807. j,,,^ the North in 1813, in the brig Aslren, and w.a, at sea 
About eight or nine months after my raotli^r's death, I „„ „,« 4th of July of Ihal year. Mr. Otuk was always 
ray father married Mrs. DeGrange, wlio then went by i mippog^d to bearaturied man; have an indistinct 
the name of Carriere. I heard Ihey were married in recollection of a child, Myra, being wilh Mr. Davis, an 



Philadelphia; I was ihen at school. When I return- 
ed, my father presented me lo her as my step-mother. 



Eugli»hiuaii. 
Louis Bouli^u, recalled and examined— Says that 



They resided in Philadelphia unti 18-J9, when Ihev />■ ■ , j .,. . <• 

, .. „ ,1 r .. I- J ■ „ . ' ..'ICarkhad the reputation of courting a great many 

whent to Franco. My father died in Bordeaux, Aug. 11 ' -^ t, j 



1831. I was very young al the time, but it is very jxisi- 
tive that Madame DeGrmige's reputation was not good. 
It is positive that her reputiUion was bad. I never 
knew anything about Madame Despau until she came 
to my father's house. I then heard as much bad of 
her, as 1 did of her sister, Zulirue CaiTiere. I never 



IS said by some feinmes gallants that 
Clark was slroog, and of great en- 



women ; but it wu 
he was impotent, 
ergy and courage. 

EiilaUr jyatkins, for defendants— 1 knew Daniel 
Clark : my busbiuid was his physician. Clark would 
not have paid his addresses lo a lady if he hud been 



heard Madame Zulime, afler she was married to Dr. """■"''<' = ^'' '*"* "" honorable man. I never knew 
Gardette, sav that she had been married to Daniel ■^"'•"'""' ^'=^' "'"'"= ^ ^* ''" """^^ ="'"'*'" '*P"'**' 
Clark. I h^ard that previous lo her marriage with '» '^^ ^'''■y handsome; she was remarkable for her 
Dr.Gardette. Zulime had a child, a girl. 1 ask-d her ''^"'"y- »'y h"*h'i>'d was once called upon by Mr. 
about it, and she positively denied it, saying that the \ ^}^'^ '" »^;"' . " ''"*> 1^° *■" "'l'^"' >"-''"^ f """"-'**, = 
child was Madame Lambert's and Daniel Clark's. I'*''', '^'^^Z .'^f^'J^VV *»>/"f'^'' ""u'l'^- 

Madame Lambert was Miss Trepagnier. She made '°''* "" ''^"f ""' '"'*>". ^« was cal ed for, was Madame 
this denial in the presence of my father. Zulime had | ^'^''P""' " ''^'^' "^ *''^'"°« ^^"^^''■ 
three boys bv Dr. Gardette, their names were James, I ^- '>'>'"'' for defendants— Clark could not hare 
Alvarez, and "jEdmuiid. My father and Madame De ' concealed his marriage, it was nimore,l he was Impo- 
Grauge were married in 1808. I was mi.rried three I '^"'- ^°"'^ Relieve Clark would mldress one lady 
limes. My lather w!us received in good society in Phila- 1 *hen he was married to another. UeputaUon of Chew 
delphia ; every <.ne was asloni>hed that he should have | »"d K*^"" ^"«'7 «"<»«'• 

married as he did. He was considered a man well off. | MUanj Julien Dominion, for defendants— Is sixty 
1 hail but Utile lo do wilh my mother-in-law, marry ing years and seven month-" of age ; has lived in New Or- 
soon afler my return Irum school. Madame Gardette, leans forly-flve years four days and nine hours ; knew 
n6e Carriere went lo France with my father, and re- 1 Clark well ; his character was much difcussed in the 
mained there wilh him mitil his death. public papers. I cannot recollect that I ever read in 



20 



THE GAINES CASE. 



the Louisiana Courier, certain interrogatories pro 
pounded to Daniel Clai-k, asking liitn liow mucli mo- 
ney he liad offered to certain pliysicians to give iii 
certificate of his potency. I heard Madame DeGrauge 
epoken of as afemme gallant. If Clark had been mar- 
ried, it would have been known ; he always liked the 
company of ladies ; he was always with them, and it 
was said that the reason of his being so much with 
them was, that he was impotent. He, however, had 
the reputation of having several mistresses. I do not 
recollect that Madame DeGrange, at that time, was re- 
puted as his mistress. 

Charles Harrod, for defendants — I knew Danl. Clark ; 
he was considered an honorable man, and rich. I al- 
ways thought him a bachelor ; we frequently joked 
with him about a lady in Baltimore, whom we supposed 
he was going to marry ; our conversation was always 
that of bachelors ; he was so considered in New Or- 
leans. He was not a man who woiUd address a lady when 
already married to another. Messrs. Chew and Relf 
have always been considered honorable men ; they are 
not capable of suppressing a will or plundering an es- 
tate. I first landed in New Orleans 14th July, 1809, have 
resided here ever since, and am sixty-fom- years of age. 



Daniel W. Coxe. 

Daniel W. Coxe^ for defendants— I have no interest 
In this suit. [Witness then entered into a statement of 
his affairs with Relf and Chew, and his purchase of a 
large amount of property of the succession of Clark, 
to settle a charge against Clark, which he had, of 
$172,950 ; if he was deprived of this property by Mrs. 
Gaines being declared heir-at-law, he should sue her for 
the money paid.] Knew the mother of Daniel Clark; 
she died at Germantown, in 1823, leaving a will. I 
made suggestions to Mrs. Clark about her will, that she 
should provide for Caroline Clark, an illigitimate child 
of Daniel Clark, and also maintain Myia, who, we had 
been informed by Col. Davis, was also an illegitimate 
daughter of Clark's. I have known Relf and Chew a 
long time. I first saw Myra Davis in 1818; it was on 
board of a vessel of Captain Simon Toby's ; she was 
under care of Col. S. B. Davis, and was called Myi-a. 
Never knew General Gaines till his marriage with his 
present wife. I have known Delacroix since 1797. I 
was acquainted with Daniel Clark fi'OTu 1791 until his 
death, August, 1813. The last time I saw him was in 
Philadelphia, in 1811. I was intimately acquainted 
with him. I was associated in commercial business 
with Clark from 1793 until July 1811. In om- settle- 
ment, in 1811, Clark was found largely in debt, as see 
my accounts. Clark repeatedly confessed his inability 
to pay the balance due me. His letters to me (shortly 
befor his death,) were couched in tenns of deep gloom. 
He frequently referred to his pecuniary distresses. 
Clark was in Europe in 1802. He arrived in this city in 
a vessel from New Orleans, during the last days of 
July, 1802. He was at Wilmington on 22fi July, 1802. 
He was kept in quarantine. On arrival in Philadelphia, 
he made preparations for an immediate departure for 
Europe, and in a few days left for New York, from 
whence he sailed for Europe, previous to the middle 
of August. He remained in Europe until the latter 
days of November, 1802, when he sailed directly from 
Europe to New Orleans, where be arrived, as I under- 



stood, in the latter part of the winter, or last days of 
February, 1803. I coiTesponded with Clai-k at the time 
of his visit to Europe. He went there on our com- 
mercial business; our business at that time rendering 
it necessary for us to know the existing and probable 
futui'e politiciU state of England and the Continent 
generlly. I believe that Clark left Europe for the 
United States in the latter part of November, 1802. 
The ship Thomas, in which Clark sailed for Em'ope, 
put into Kingston, was detained, and made a long voy- 
age. Clark was in Philadelphia, in 1802, on two occa- 
sions — in April, when he left with me a power of attor- 
ney. Immediately after, he left for New Orleans, where 
he remained until June, and then sailed to Philadelphia, 
on his way to Europe. Arrived in Philadelpia dm-ing 
the last days of July, 1802. I saw him every day whilst 
in Philadelphia. He had pressing business, which 
engaged all his time. My personal relations with Clark 
in 1802-1803, were of the most intimate and confidential 
character. Such were our relations,that I do not believe 
he would have married in Philadelphia, or elsewhere, 
withbut informing me of it, and inviting me to his 
wedding. Clai'k wrote to me about his relations with 
Madame DeGrange, mother of Myra. In the early 
part of the year 1802, the said Madame DeGrange pre- 
sented herself to me, with a letter from Daniel Clark, 
introducing her to me, and informing me in confidence 
that the bearer of the letter was pregnant with a child 
by him, and requesting me, as his friend, to make 
suitable provision for hei-, and to place her under the 
care of a respectable physician, requesting me, at the 
same time, to fiunish her with whatever money she 
might want and stand in need of during her stay in 
Philadelphia. I attended to his wishes ; employed the 
late William Shippen, M. D., to attend to her during 
her confinement, and procm-ed a nurse for her. Soon 
after the birth of the child, it was taken to the resi- 
dence of its nurse. The child was called. Caroline 
Clark ; and, at the request of Mr. Clark, was left under 
my general charge and exclusive care until 1811. She 
is now dead, so is Dr. Shippen. Sortly after the birth 
of Caroline, Clark arrived in this city, in April, 1803, 
when I received from him the expression of his wishes 
in reference to this child. He left here shortly after- 
wards, as before stated. Dming his subsequent visits, 
Clark always visited this child, acknowledged and 
caressed it as his own and continued to give me the 
expression of his wishes in reference to her. In a 
conversation with me, about Madame DeGrange, 
immediately after the birth of Caroline, he stated to 
soe that he was the father of this illegitimate child, 
Caroline, and he wished me to take care of the child, 
and 'let the woman have what money she stood in 
need of, until she returned to New Orleans. 

Daniel Clark both spoke and wrote to me on the 
subject of the proposed marriage which he desired to 
bring about between himself and a lady of Maryland. 
The lady's name was Louisa Caton. She was the 
grand-daughter of the late Charles Carroll, of Carroll- 
ton. Daniel Clark did address that lady, fvith the view 
of marriage, in 1807 or 1808, and there was, as I was 
nformed by Mr. Clark, a partial engagement between 
them. Mr. Clark infoimed me that this engagement 
subsequently dissolved, in consequence of high 
pecuniary demands made by the friends of that lady, 
to be made in the form of a settlement in her behalf, 
and beyond his means to comply with. Mr, Clark also 



THE tiAlNES CASE 



fit 



Informed rae thnt there wiia a •ubsequent effort iniKJe 
lo renew th\* iiiuiUfement with Miss Colon, rhielly 
Ihroiiiili ttx- iii'irunuiilalily of Robert GmMlloellnriHir, 
who hull umrriitl an uuut of Mi^t I'nlon. The wimo 
obstacles interfered, and Imny add, that, a»Mr.Clarl( 
con9\ill«'<l me upon this »uhjfct, I also interposed my 
olyeclions U> his encumbtrinu' himself with heavy pe- 
cuniary stipulnlioiu*, as it would greatly eml)arra.«s him, 
and ino also, in our business relations. The letter of 
Clark's to me, Introducing Mrs. DeCraniie, has b»>en 
destroyed. Clark's father died a few years before the 
sou; his mother survived him. His fiunily always 
spoke of Clark as unmarried. 1 was intimate with all 
of them. Mrs. UeGrange left Philadelphia as soon after 
the birth of Caroline aa it was prudent, in the spring of 
1S02, for New Orleans. She returned lo New Orleans, 
according to the best of my recollection, in the autumn 
of 1^07, and did not leave until her marriage with Dr. 
Gardette. t<he was married at St. Joseph's Church, by 
Right Rev. Michel Egan, .Vugusl 2d, 1808. She was 
married by her maiden name, Marie Zulime Carriere 
(Annexes certidcaio of marriage.) She continued to 
reside in Philadelphia, with her husband, until 1829 or 
'30, when she removed to France. She had children 
by Ur. GardetU>. No man woul'"' ^e tolerated in society 
in Philadelphia, who would a''"'lbpt to palm off on the 
community a woman, as hL'-'lawful wife, if it were 
known she was not so. 



Daniel Clark was in Philadelphia several times afler 
Zulime's marriasre to Doctor Gardette. I never 
heard him protest against her being Gardette's wife. 
Daniel Clark was a high-tempered and chivalrous 
man ; his disposition was quick and impetuous ; no 
man would more promptly resent an imputation 
against his honor and integrity. He would never have 
submitted to the indignity of allowing another man lo 
take his wife. I am perfectly sure that if Daniel Clark 
had been in truth a msirried man, whether that mar- 
riage had been public or private, and that wife slill 
living, he would never have held himself out lo the 
community and the social circles in which he moved 
directly or indirectly, as an unmarried man. I am 
eqaally sure, that in the case supposed, Clark would 
never have approached a lady with a view to r 
riage, if he had been at the lime a married man. No 
man who knew Clark, would believe him capable of 
conceiving acts so atrocious. I annex several letters 
between Clark dnd myself, relative to business matters, 
also relative to the affair of .Miss Caton. That lady 
resided at the time at .Vnnapolis, in Maryland. Hear- 
ing of the alleced will of 1811, I aldressed Mr. .Ma- 
zoreau on the subject, and received the letter from him 
which follows, dated 1st .May, 1842. 

In the year 180;*, iifter Madame DeGrange had ro- 
tumed to Philadelphia, from New Orleans, and when 
lodging in Walnut street, she sent for me, and during 
a private interview with her, at Mrs. Rowan's, she 
stated that she had heard Mr. Clark was going to be 
married to Miss Caton, of Baltimore, which, she said, 
was a violation of his promise to marry her ; and aJded, 
that she now considered herself at liberty to connect 
herself in marriage with another person. Dr. Gardette 
shortly aftewards entered the room. In a few days 
after, I saw the notice other marriage to him. When 
Mr. Clark visited Philadelphia, he hai a room at my 
bonae. When be was there in 1802, he staid a part 



Uietlme alGermantown and a part at my houie, and 
occasionally at a hotel. 

On cr«5.-cr<iininnri'on.— Some of the reasons why the 
marriageof Clark with Miss Ciiton was not •••miiura- 
matiKl, wi-re, the unreasonable exactions mmle on 
behalf of the lady, in the matter of a pecuniary miIIIc- 
ment. Mr. Clark, on reflection, told me he thought 
the match not an elligible one. 

It is difficult to say what were the most jirominent 
and striking traits of character which distinguished 
Daniel Clark. He wan a high-minded, honarablcman ; 
i[uick in his impulses, ardent in his temperament, 
actuated, as I believe, by the highest sense of honor, 
integrity and justice ; he was a proud, ambitious and 
aspiring man. Ho pos-sessed remarkable spirit and 
energy. His social feelings were cordial, and his na- 
tural affections strong and ardent. I refer lo his letters 
to me, written at a time of great pecuniary distress, as 
illustrative of these trails. My pecimiary circum- 
stances were very limited and embarrassed in 1811, 
when Clarky visited Philadelphia. 

[Here follow various documents, annexed to Coxe's 
dei)osition. Exhibit A. .Account current between 
Coxe and Chew and Uelf, Clark's Executors, 'JTlh 
Feb., 1819; also articles of agreement of ce-ssion of 
Coxe's interest in their joint affair lo Clark, for 8150,000. 
Then follow other exhibits of Clark's properties, debts 
due, tc. ; marriage certiflcate of James Gardette to 
Marie Zulime Carriere.] 

Mazcrbau's Letter. 
The following is the purport of the letter from the 
late Etienne Mazureau, referred to in Mr. Coxe's de- 
position : , 

Mr. JMaiureau says : " that he was asked by the late 
Daniel Clark whether a certain will, of which he chow- 
ed me a rough sketch, would be valid in law in the 
then territory." This will slated .Myra to be his naturo/ 
child, and instituted her his universiU heir, leaving to 
his own mother an annual rent, I believe, of 83000. 
Clark said the mother was .Madame DeGrange. That 
woman was married, and DeGrange was alive when 
the girl was born. I recollect having heard a good 
deal of talk about it at the time ; but never heard your 
name (,Coxe) mentioned as connected with that love 
affair. 

" Yes," said Clark, " she was married I know, and 
what matters it "j The ruffian (who kept a confectionary 
shop here) had deceived that pretty woman ; he was 
married when he courted her and became her husband; 
and as it was reported, he ran away afterwards, from 
fear of t)eiiig praH^cuted. So you see this marriage 
was null." " That may be, but until so declared by ft 
competent tribunal, the marriage exists, and the child 
isof such a cla-HS of bastards (adulterous bastards) as 
not to be capable, by our laws, of receiving— by will, 
from her supposed father— any thin? beyond which 
may be necessary for her snslenance luid education. 
Such are the positive provisions oi our C<xle. The 
Spanish laws were somewhat mure favorable. They 
permitted the father to leave such a child one-flflh of 



the whole of his estate, but our Code has restricted that 
to mere alimony. 

"I showed Clark both the Codes and the Spanish laws, 
iind though app.irontly disappointed, he expressed his 
satisfaction that he ct>uld not make the will he intend- 
ed to make. I wont fnrther. and showed him that th* 



29 



THE GAINES CASE. 



gii-l could not be legitimate, or even acknowledged as 
his child, by subsequent marriage or otherwise. I 
showed him, also, that if his mother survived him, 
she was his forced heir, and that in supposing that he 
could leave to the child anything beyond what was ne- 
cessary for sustenance, it could not be of the value of 
more than one-third of his estate, as his mother was 
entitled to take and receive two-thirds, clear of all 
charges or dispositions."' 

" What shall I do, then ?" asked Clark. « Sir, if you 
have friends to whom you can place your confidence, 
convey them secretly some of your property, or give 
them money, for the use of the child, to be given to her 
by them when she becomes of age." "That I'll do," 
said Mr. Clark, and we separated. I heard afterwards 
from him and Bellechasse, that he had followed my 
counsel. The first husband of Myra wanted to retain 
me as his counsel, to sustain his claim under the pi'e- 
tended will, (which I sincerely think never was exe- 
cuted,) as universal heir of Mr. Clark. That I declined, 
from the motives above expi-essed ; and as he con- 
fessed to me that the friends of Clark had^ conveyed to 
'her the property which he had trusted them with for 
her use, I advised him to be contented with what he 
had. The present husband of Myra came once to ask 
me whether I had any knowledge of a will iu favor of 
his lady, by the late Daniel Clark ; and in that case, 
whether I had any objection to appear as one of her 
witnesses. My answer to this was—" I have seen no 
such will of Mr. Clark's, but he has consulted me 
upon a will, of which he showed me a rough sketch." 
" Well, that will answer our purpose," said the Gene- 
ral. " Very little, I belie ve ; for if I was to give my tes- 
timony, I am inclined to think it would demolish all 
your pretensions." " Never mind," said the General, 
" I will have you subposnaed." Upon this, I stated to 
him all that had occurred between Clark and myself 
on the subject, the opinion I had given him, and the 
determination which he did say he had taken, &c. &c. 
He retired and I never was subprenaed. Before con- 
cluding, I must observe, that having once been of 
counsel for BIr. Relf, in the case of libel, brought by 
him against Myra's first husbaiid, in the federal court, 
I felt a very natural delicacy, and declined to appear 
as a witness for him in the suit that has since made so 
much noise. As this is written in haste, I would not 
like it to meet the eye of the public, though every 
portion of it is most substantially true. 

1 remain, &c., Mazureau. 

THE CASE OF GAINES VS. PATTERSON. 
Charles Patterson. 

Charles Patterson, for defendants— Is seventy years 
of age ; came to New Orleans iu 1805. I was sued in 
this court by Mrs. Gaines, for a house and lot on which 
I reside. Mrs. Gaines succeeded in that suit. Accor- 
ding to the judgment of the court, that house and lot 
belong to her ; but they told me that they would not 
take it from me. 

1 believe that Mrs. Gaines would give me a title to 
that property. If her creditors should attach or seize 
it, I suppose I should stand a suit. G(!neral Gaines and 
wife gave me in writing under their own hands, tliat 
they would not take the properly from me, and that 
they would make my title good. The property has 
always been assessed as mine, and I have always paid 
tba taxes on it. The decision of the court was that the 



property should be divided and sold. They talked of 
having it done. The court must do it. I cannot do it. 
I paid most of the costs, but they paid me again— that 
is. General and Mrs. Gaines. There was an under- 
standing or agreement between General and Mrs. 
Gaines and myself, that they should pay the costs even 
should the suit be decided against me. They made 
the same offer to Judge Martin. 1 made the best effort 
in my power, and employed the best counsel to defeat 
Mrs. Gaines. At the trial of my cause with Gaines and 
wife, my counsel requested of Mrs. Gaines' counsel to 
be permitted to introduce the record from the Probate 
Court of New Orleans of all the proceedings of Mrs. 
Gaines in the prosecution of her rights in that court. 
Her counsel objected. I then applied to General and 
Mrs. Gaines. They replied to me to get all the evi- 
dence possible— the stronger the better. General 
Gaines remarked it would be more glorious to have it 
as strong as possible. I then caused the proceedings 
to be introduced. My case was tried in this coiu't nine 
yeai's ago. I had interviews with INIrs. Gaines pre- 
vious to that trial and in reference to the same. My 
counsel was employed immediately before the record 
was obtained from the Probate Court. That counsel 
was Mr. John McHeB«r. now Judge of the First Dis- 
trict Court of New OrWitas. 1 do not know whether 
the said John McHenry^iheld any consultation with 
counsel previously employed by me in the cause. 

I did not consult with Chew and Relf, or their coun- 
sel, or with their or any other attorneys employed in 
the defence of the suit, and I do not know whether my 
counsel did. Mr. Isaac T. Preston was employed by 
me previously to Mr. McHenry. Mr. Brent, the old 
gentleman formerly a member of Congress from Lotii- 
siana, was employed to defend my interests before the 
Supreme Court in Washington. On the first trial Mr. 
Brent was paid for his services. Mr. Brent's son ap- 
peared on the second trial and he and Mr. May were 
paid by draft, for $100 each, on me, through Mr. May's 
brother, in this city. The amount has been reira- 
bm-sed to me by General Gai nes. I took out the record 
hei'e, and sent it on, but do not recollect how. I was 
in possession of the record of the Probate Court, which 
I asked General Gaines permission to introduce when 
my trial came on. This transcript had been previously 
offered in evidence. It was agreed by General Gaines 
and wife, with me, that if I would go to trial on the 
merits of the case, they would indemnify me against 
all fees and costs, and that my property should not be 
taken, in case they succeeded in their suit. I was 
particularly requested by the General and Mrs. Gaines 
to use my best exertions, with the aid of the best 
counsel to make every defence in my power to this 
uit, and of which it was susceptible. I consider the 
agreement of General and Mrs. Gaines as an act of 
liberality on their part, growing out of a desire to come 
to a speedy trial with some one or more of the defen- 
dants on the merits of the case. 

Mrs. Julia A. C. Wood. 

Mrs. .Mia Ji. C. Wood, of New York, niece of Mr. 
Beverly Chew, one of the defendants— Went to New 
Orleans to be placed at school, under the care of her 
uncle. Knew Mr. Daniel Clark well. He lived with 
Mr. Relf in 1810, with whom my uncle and myself also 
resided. After my uncle's marriage, Clark lived with 



THE OAINLS CASE. 



iw uiiUI ho had compluUHl his houno on the llayou Hood. | to n»e that he wafl or had been marriMl. I have no 
My uncle spent Ui« sumuiur with him, and I went theru doubl tliiit If ho hud thought proper to marry prirniely, 
during my vacation. .\aor this, Mr. Clarlc came ti> ho would have comniunlcmed the tact to mt- und bil 
town, und diuvd with my undo ditily. I urn cortain inteuiiuiis on lh*< Huhjoct. 
ho wu.s not niiirrled. I was liidobtod to lilm tor Kreat 
kiiulnt-SH. lie took special intcre.st in my (.'duculion — 
cumo tiir mo frotpienlly to tho scliool, in liis cubrioloL, 



Mkh. AnuB M. CALLKMnAR. 

Mrs. Jlnne M. i n/trndar, maiden nume Smith, went 
to New Orleims lorly years o«o; resided with Judge 
Provost ; froquenlly t>uw Clark ; heard, and tHjIiuved 
that ho was cm?iiged to .MinsCaton within Ihrcoorfour 
years of his death. Ilo wouid have communicated to 



on Saturdays, to lake me home ; t'roqueiilly heard me 

recite ; selected books for me ; look greut inlerost in 

my studies ; selected desireablo books for me froni his 

own library, which was on uncommonly large u.ul good '„,„ i^„ f„^t of his mnrriiu;e"if It'liad ever'i^x'iirr.^^ 

one ; selected portions of pm-try for me to commit to 1 j,^ j,,,,„ authenticity of the fol- 

memory, and ge..eral!y took «reut u,>d co..slant '"tor-L ^. , ,^,,^.^ ^^^^^ P ^ 

est in my education, lie was, ut tho time, purlicularly ., r, ,.-■ . • . • . 

attontivotomyautU, Mi.sChow,andpromi..dherthatl3U S,?^^^^^ 

' '■' "" ■ — '" ' "*■ " '-—-■• tlllini,' the toilette. I assure you that ii would buve 



vould come on to \irt,'inia, in a short time, to visit 



lier. Wo looked for him in Virginia, whither wo ofler- 
wards went. It was reported in Now Orleans, at the 
time, that he was paylni;; his addrei^ses to my aunt, Miss 
Chew. He died lu .August following our departure 
iVom New Orleans, my uncle, Mr. Chew, was with us 
in Virginia at tho timo. Whilst in New Orleans, I saw 
Mr. Clark almost daily. Ho was very intimate with 
Mr. Chew and Mr. Relf, and when we left, ho came 
aboard to tiike leave of my luicle, and brought (lowers 
and books for my aunt. Mr. Clark's peculiar tone and 



me infinite pleasure to have offered it either to 
Mrs. Clark, or any person likely to become Mrs. Clark ; 
hut this will not bo the case for some time to come : 
for as long us I have the misfortune to l>e hampered 
with business, so long will I remain single, for fear of 
misfortune or accident. DANIEL CL.\RK. 



Sarah Hidings, for defendants. — My maiden name 
was Cohen : my ago is seventy-nine ; I reside in Phila- 
delphia ; have lived hero since 1804. I was married 
to the lute Dr. Ilulings. I went to New Orleans in 
style of character, were such, that he would have been I '"'*' ''^\' and remainc.1 there until »Iay, leW. Knew 
oneoftheverjlastmenonearlhtomarryclandestinoly,^'^,^:',''if ^' '• .^ ^ ^"^ ".t.malely acquamted with 
■' . ..... , .•'Daniel Clark. In tha summer, during tho yellow fever, 

or marry any woman, whoso social position was not ui I „^.. ,..,,.., ' ^ . '; "="^'' 

,, , . . . 1 ,. resided with him in the same house n the country 

aU respects equal to his own , or whose personal char- 1 , , v ..,,u=^ m i..d lAjumry. 

„_. _ ... . ,. .,... ,.:,.,„.., ,„. m.. :..,; , , I ' '"»>e no hesitation m saying, he never was married, 

but was every where received as an unmarried man. 
-My lute husband wos a merchant, and vice-consul of 



actor was not of tho highest order. My intimacy 
such, that if he had been married, ho would, I thiuk, 
have made it known to mo. 

Mrs. Carolisk M. Stannard. 

'■ Caroline 



Mrs. Caroline M. StnnnarJ., maiden i 



the United States at New Orleans, then a foreign port. 
Dr. Hulings was very intimate with Mr. Clark, loaned 
him money, having great confidence in him. Dr. 



Matilda Chew, resides jn Fredericksburg, Virginia: ilulings acted a-s Mr. Clark's agent in Philadelphia, in 
her husband was the late John Stnnnard, who died tho payment of money to Clark's mother. He was 
flfteen years ago. He was once a Colonel in the U. S. subsequently named by Mr. Clark, one of his execu- 
.Vrmy, and subsequently Marshal of the Chancery Court tors. Clark would not have been married without 
ofVirginia. lamsisterof Beverly Chew. (The witness telling us of it. When Clark was consul. Dr. Hulings 
coBflrms the statement of .Mrs. Wood, about their going discharged all tho duties, and received the emolu- 
to New Orleans in 1810, mid residing with Mr. Relf, ments of the office, 
with whom also lived Daniel Clark ; and their subse- Colonel Phillip Hickkt. 

quenl removal to Chew's house.) I was us well ac- „, ,„..„. „. , -• t, . d . t, 

..,■.. r. ■, n; , -.1 1 .u / . Colonel Phillip Hicktiu of East Baton Rouge, for 

quaintwl with Daniel Clark as with a brother, (repeats , , .,-,.. . •" , .^ ,-V , 

}, ,». „T 1 , . ., . .. ,v defendants— \\ as seventy-one vears of age the nth of 

the testimony of Mrs. Wood about their spending the , , . ,, • i j • r '• • • . . 

■.^ t., 1 .u n r. J 1 .1, • June last. Has resided in I^ouisiana sixty-two vears. 

summer with C ark on the Bayou Road, and their see- ,„ ,, r> i , ,« . o • ' . 

■ ,.. J . . ,^.1 1 . , . -A Waswel acquainted with Daniel Clark. Being but 

inghimduiv.) Clark wascertainlv not a married man. ,, . »- ,^ , . . ,.^ ., * ""' 

' " ■ ' , ,.. . ,.•. ., ,. seldom in Now Orleims, never heard of Oark's connex- 

He gave me every proof of that, that a gentleman could , ..... ^v ,- ■.- r^ ^ V^-\, 

.. , , ,• "^ , ,. ^ . , .^ ^ Ion with Mrs. DeGrangc. Knew a DeGrunge ; his first 

give to a lady. I never heard It once .suggested that he ,j . ., . ,, .^ *, . . 

** .■'. , •, . , • XI r^ 1 or given name I do not recollect. He resided m one of 

was a married man whilst I was in New Orleans, nor ... . ■ ■ .u . i> a ■ ., „. 

ever until I heard of .Mrs. Gaines's suit. He waL the '''' ''""^^ '^'^'""'^'"'^ ''''\'" '*"" ^'"^'f' "" '""^ ^ "« 
last person 1 took leave of on boa.5 the vessel in which ""^ -''"«"' »"1 Z^ « confectioner I do not recollect 
we lea New Orleans. He was standing by me on the '^>}^\"^ "^Z, " ' '"^ addressed a lady. I do 
deck until the ves^-l was actually cast off fro^ the ""' '»'"'"'''' '^ ^'"/^'"^ * l""""^ "■"' 'hat he would 
wharf, and his last words to me were "G.kI bless you! '"^^'"'"^ '^"^^^^ '"*^>-„ .' 'l^^^"" '°'"'''' '° """ *"" 
I hope to be with you in Vinrinia soon ! " "^ *» «'>■ P~Pe"y held by Clark. 

„.^ . . . , ,„ , . , . . f I lore follow two other depositions of Madamea 

Iho intimacy between Clark and my miclo continued ^^^ ^^ Caillavet, repealing substantially the evi- 
luunterrupted till Clark's death. U hen that event oc- j "^ . u .u u r -.v. i- I. .. 

curred, my uncle was in Virginia with us. I was on '^!""^ ^'^ ^.y.'""™ l''^' .^^ '"""^ "."5.'!' i''""- 
such terms of intimacy with Mr. Clark, that 1 can cer- ''""* and additions, which «nll be noted m the Bnefs 
Winly say he would have coraniunicati'd to me tho fact omies.J 

of his marriage, had he been in fact married. The^«-CLKSUST1CAL RkcoRps— MARRtAoior DeGrasok 
nature of my acquaintance with him and his commuui- •^-''p Zili me. 

cations to me, necessarily precluded the possibility of !• The license, in Spanish, of the Bishop to Jerome 
his ever being married. He of course never intimated DeCrange to contract marriage with Maria Julia Car- 



54 



THE GAINES CASE. 



riere, native of this city, written in the formal style of 
old Sanish marital proceedings, and dated 3d Sept 
1794. Then follow the usual publication of the bans 
of marriage, according to tlie forms then in vogue. 
Previous to the fourth and last publication,' DeGrange 
petitions the Bishop to dispense him from the fom-th 
publication, as Lent is about to commence, which 
would postpone his marriage; and as he has embai-k 
ed in the liquor business, he requires the assistance of 
his wife. The dispensation is granted, and the parties 
are regularly and formally married with all due pomp 
and ceremony. These documents all allege that no 
legal impediments exist to the marriage. 

Thk Chakoe of Bigamy against DeGrange. 

A decree of the Vicar General, Thomas , Hasset, 
states that it is reported that Jerome DeGrange, who 
man-ied Marie Julia Carriere in 1794, was at that time 
married to Barbara Jeanbelle, who has arrived here 
from Prance ; and that it was reported said DeGrange 
had another woman here and kept three wives, " as 
scandalous as it is opposed to the precepts of our Holy 
Mother Chnrch ; " an order is, therefore, made that De 
Grange be anested and held subject to the penalties of 
the law, and that all persons who can give information 
on the subject may come forward, 

Then follow the evidence in the case, the license of 
DeGrange, the depositions of the various witnesses 
who had sworn to DeG range's capacity to marry : 
being a legitimate son ; to his performing Christian 
acts, hearing Mass and attending Holy sacrement ; and 
that he was not engaged to any other woman. 

Donna Barbara Jeanbelle^ being examined on tlie 
alleged charge of bigamy against DeGrange, says that 
she has know him for sixteen years. She was never 
married to DeGi'ange. It was her intention to do so, 
but as he was going away, she changed her mind. She 
went to Philadelphia; while there DeGrange wrote 
her to come to this city to consummate the marriage, 
to which she did not consent. This was eleven years 
before. She saw him afterwards in Bordeaux, but 
they were both then married. She was married to 
Santiago Soumeylliatt. M. Bernardy and his wife were 
witnesses. 

Maria Y/lar, being also sworn — Came from France 
to get a livelihood ; knew DeGrange ; it was he who 
told her to come to New Orleans. She knew before 
she left France that DeGrange was mai-ried in New 
Orleans. 

Then comes the testimony of Maria Zulime Carriere 
herself, who stated, that about a year before, she had 
heard it stated in this city that her husband was mar- 
ried in the North, and in consequence, she wished to 
ascertain whether it was trne or not, and she left this 
city for Philadelphia and New York, where she used 
every exertion to ascertain the truth of the report, and 
she learned only that he had courted a woman, when 
her father not consenting to the match, it did not take 
place, and she married another man shortly afterwards. 
She has heard in public, recently, that her husband 
was married to three women, but she does not believe 
it, and the report gives her no uneasiness, as she is 
satisfied it is not true. 

Jerome DeOrange. also being sworn — Says that he 
first knew Barbai"aJanbel de Orsi in New York, eleven 
years ago, and afterwards in Philadelphia. He was 
Hsver married to her, although he wished to do so, and 



had asked the consent of her father, but he refused it, 
as deponent was poor. He saw the said Donna Bai'- 
bara in Bordeaux, by accident. He became acquainted 
with her husband, M. Soumeylliatt, who attended de- 
ponent when sick, and he (deponent,) visited them 
afterwards. He also confirms the statement of Maria 
YUar. He aiso states that taking it for granted that 
this charge would naturally fall, his wife being satisfied 
of his innocence, he had used no exertions to procure 
the necessary documents to establish his innocence. 

Upon these proofs, the Vicar General orders that all 
proceedings against Jerome DeGrange be suspended, 
and that he be set at hberty. 

Connected with these documents are several other 
instruments of proof. 

1. The power of attorney of DeGrange to his wife, 
Jlarie Zulime Carriere, to attend to his affairs in his 
absence, he being about to go the Europe to see after 
some property which had been left him. This power 
is dated twenty-sixth of March, 1801. 

2. A power of attorney, signed by all the Carrieres 
to Jerome DeGrange, to receive certain property which 
had been left them in France, dated twenty-sixth of 
March, 1801 ; then follows several acts of sale of slaves 
made by Marie Carriere, styling herself the agent and 
legitimate wife of "General Geronimo DeGrange." 

The last of these acts is dated the sixth of November, 
1801. 

3. The will of Simphorien Caillavet, the husband of 
Rose Caillavet, in which he refers to a sum of money 
which had been remitted to him by Jerome DeGrange, 
for which DeGrange had received his power of attorney 
previous to his departure for France. In this will M. 
Caillavet nrefers, as tutor of his childien, F. J. Lebre- 
ton Dorgenois, to his wife. 

Suit of Zulime vs. 3. DeGrange, for AuMONy. 

On November 6, 1805, Zuilme DeGrange sues her 
husband for alimony, in the County Court of New Or- 
leans, alleging that she is his lawful wife. Jerome ans- 
wers by a general denial. Another suit is brought 
against the name of DeGrange by Zulime, Jime 24, 1805 
The Despacs. 

The defendants, to attack the credit and chai-acter of 
Madame Despau, the principal witness of complainant, 
and only witness of the marriage, produces the record 
of a suit brought against her by her husband for a se- 
paration. In her fiist petition, JM. Despau alleges in- 
compatibility of humor and several other reasons, "the 
relation of which would be too afflicting, which makes 
t nec^sary for him to pray for a sepai-ation fiom his 
wife, Maria Sophia Carriere." To which Madame Des 
pan answers. Ceitain diffiulties then arise in regard to 
the disposition of Despau's property, the sale of which 
is enjoined by Madame Despau. On February 8,1808, 
M. Despau files another petition, alleging that it is noto- 
■iously known, that said Sophia Carriere has several 
times deserted the bed and board of your petitioner, 
and even that she is now out of the tei'ritoi'y, without 
the consent of her husband, and that she is leading a 
wandering and rambling life, without any regard for 
the principles of honor and decency, living in open 
adultry. Ho prays that her right shall be forfeited On 
February 12th, judgment was rendered by Hon. Joshua 
Lewis against Madame Despau, forfeiting her rights to 
the property acquired in the community. 



tllE GAINES CASE. 



25 



Will or Mary Clark. 

The win of Mury Clurk, mother ol" Daiil. Cliirk, iimtli' 
Nov.'-'vL, 1817, bcfiucathsUic bulk of her properly to her 
children. One-fourth |>urt to her u-ruiuUluimhtur, Curo- 
liuc Clurk, (nflerwiu-ils Barnes) '• a iiuturol iluui^hter of 
her Don, DoiilelCliirk;" also, the hinii of $-.'tlU to her 
^' gnind-ilaughler Mym Clurk, coinnioiily culled Myru 
Duvid,'' unothor natural daughter of her son, Daniel 
Clurk, uiid stales "sbu would have left her equul with 
the other heirs, if she hiul not been otherwise- provided 
for." Her executor was .loseph Ueed, of Philiidelphiii, 
who appoinlLtl Chew UHd Uelf us thw usrenta of Mrs. 
Clark's estate in New Orleans. Theu follow two acts of 
Mule, ouo dated KUh May, lf<Ot*, of certain lot?, by Uanl. 
Clurk 4o Jos. D. B. Bellech.isse, (these are the lots Uiat 
were assiiiruedin trust for Wyra.) On 4th June, 18:53, at 
Mutanzas, Bellechnsso conveys these lots to Wm. W. 
Whitney and Myra his wile. There is also an act of 
recession of Deliicroix, made in 18-20, of certuiu pro- 
perly to Samuel B. Davis for the minor Myra Clark. 
MvKA Clark's Tetition for Alimony. 

On June >J4. 1)^17, MyraCl.irk, through S. B. Davis, her 
curator ad liUm, jKitilioiis lion. Joshua Lewis, ulleffiug 
that she is the natural ilaunhterof Daniel Clark, who 
made a will appointing Relf and Chew his executors, 
without making any jirovislon for her support or the 
continuation of her education, which had been beijun 
daring the lifetime of her said father, in a genteel and 
expensive style. That her said father had frequcnlly 
expressed his intcnion to his tVieuds, of eilucatiug and 
supporting her in his own rank of life, and amply pro- 
viding for her. That some instrument was executed 
In her favor by her father, which had not been shown 
her. She prays, therefore, for all the papers belonging 
to Clark, and for an allowance out of his estate." De- 
fendants answer, denying that Mj ra is the child of 
Clark, averring his will of 161 1 and the execution of it. 
They deny that Clark ever gave any instructions In re- 
gard to Myra, during his liletime. On 19th February, 
1818, on motion of lloratio Davis, this suit for alimony 
was discontinued. 

Marriaok Contract or G«s. Edmcnd Pendleton 
Gaines and Myra Clark Wuitnby. 
This act was passed before W. Y. Lewis, notary 
public, on 7th May, 1840. It alleges their intention to 
enter forthwith Into the bond.* of matrimony; that there 
shall be a community of acquets and gains between 
them ; that each shall be bound for the debts incurred 
before marriage. 

The property of Gen. Gaines, brought into mat riago 
consists of 

KW acres of I.inJ near Meni|iliis, Tcnn., f<liiiutcd.. SJT.inW 
50X) acres of East Kluridu I^J 6i>.i««l 

6 lot3 in MenijibU.... r> ,<<•«> 

7 slaves ...... ■ 5,UM 

$1117,(100 

MjTa CTark ^^^litney brings into the m arriage sundry 
squares and lots in Faubourg St. John, viUued by her 
at $100,000 ; also her rights and claims as sole heir to 
the estate, eflects, and credits of her deceased father, 
Daniel Clark, the value of which cannot be ascertained, 
as it is in litigation ; she also jirovides that her pro- 
perly shall be considered paraphernal, and she retains 
the right of alieuatuig or encumboriiig the some when- 
ever it shall be necessary ; that she has three children 
by hor former husband : and that he has two children 
D 



by his former wife. Sho then provides that lu ooubldo- 
rutionof tho e.\|>en«c he will Incur in pronoculing hor 
claims and oul of affection U> him, she mukon u doim- 
lion inrrrriro.«outof her pro|>«irty, to be recovorod 
Irom the succession of her father, of $100,000— ihia 
donation to revert to Mrs. Gaines in cjise of tho Gen- 
rul's death withoul children by this marriu^e. There 
are other Immaterial clauses in this marriage tetUe- 

ent. 
Probate Proceepinos of Clark's Siccksson. 

The Probate proceedings in the matter of the will of 
Daiil. Clark are very voluminous, but contains few mut- 
ters of much bearing on the case. On 3d March, Chew 
and Relf set forth in a petition to tho District Court, 
that owing to the general depression of afTuirs they 

uld not realize from Clark's estate eno«gh to pay hia 
debts, if his property was forct^d into market and sold 
for cash ; they, therefore, pray for a respite and u meet- 
ing of the creditors of tho estate. They annex u 
schedule of Clark'a debts and assetts. The meeting of 
creditors accordingly took place, and the respite wan 
granted. 

Answer op Caroline Barnes to Mrs. Gaines' 
Bill. 

Among the other defendants in this case waa 
Caroline Clark Barnes, born of Zulimo DcGrange, and 
her husband, whoso answer contains points and aver- 
ments not set forth in the general or sepanito answers 
of the other defend;ints : Caroline alleges the verity 
of the will of 1811, and her own rights under tho will 
of Mary Clark, the mother and devizee of Daniel 
Clark. That Daniel Clark b«ng induced to believe 
that Myra was his illegitimate daughter, had inado 
some provision for her. That about two months before 
his death, be did meditate making a will to provide for 
Myra— which will he probably showed to bis intimate 
friends; that she, Caroline, was acknowledged as 
Clark's child, educated at his expense, bore his name, 
and was looked upon at school us his prospective 
heiress ; she was so treated by his mother. For Myra, 
provision was made by property assigned to Samuel 
R. Davis and others, to the amount of several hun- 
dred thousand dollars. This fact vindicates his 
(Clark's; memory from the imputation of fraudulently 
conveying several hundred thousand dolhu-s worth 
of property in st-cret and confidential discretionary 
trust for an lllegilimato child, and tantalizing an ageil 
mother with a residuary legacy of empty boxes. Such 
report of Clark's character tho respondent avers is 
fictitious and unjust. In relation to the projectixl wUl 
in favor of Myra, Clark consulted an eminent lawyer, 
(here follows a statement of his conference with Ma- 
zurcau, conforming with that already given by that 
gentleman.) The fact that Clark left such oulslunding 
trust deed surviving him, is almost proof positive tluU 
he did as advised. The improbability that Judge 
Pilot should have been cogniziuit of tho will of 1813, 
is then dwelt upon, he being the Judge before whom 
tho will of 1811 was probated. Refen-nce is then made 
to the unsuccessful efforts in 1834 to have probated the 
will of 1813. 

In respect to the averments of plaintiff, Myra, that 
her mother was tho lawful wife of Daniel Clark, and 
that the plaintiff is the only legitimate child of that 
marriage, respoiidenLs say that a more exaggerated 

fiction was nexer wrought up from a tissue of circum- 
stances which comported so litUo with iuch condu- 



THE GAINES CASE. 



Bions, and which respondent is loo painfully conscious 
can admit of no apology, no explanation, at which mo- 
rality must not blush, and these defendants especially 
deplore. The marriage of Zulime to DeGrange is then 
noted, and their separation in 1801. That Clark's illicit 
intimacy with her then commenced, of which intimacy 
respondent, Caroline, was the acknowledged issue, and 
Myni&reputedissiie, though respondent (Caroline) has 
been frequently assured by her mother, that she was 
the only child of Daniel Clark, and repeats now that 
Clark was imposed upon and deceived into the belief 
that Myra was his chOd, when she was, in fact^ the 
child of another man. This adultrous connexion con- 
tinued till 1804, when Clark separated from her, and, in 
1807, became the accepted lover of Miss Caton. The 
marriage of Zulime and Gardette is then referred to. 
All these facts respondent woidd most gladly have suf- 
fered to repose in oblivion, had not a perverted imagi- 
nation attempted, from such humiliating circumstances, 
to work out a marriage of Mrs. DeGrange to Clark, and 
the consequent legitimacy of Myra, to the subversion 
of the established rights of this defendant, (Caroline.) 
and with an accumulation of dishonor and repror.cli 
upon both her parents. This respondent never hcaitl 
herself denominated Caroline DeGrange, until so styled 
by complainant. The defendant has hea/d from her 
mother her repeated expressions of sorrow and regret, 
that she had not succeeded in becoming the wife of said 
Daniel Clark. 

The answer contains many other averments. It avers 
that if there was a will of 1813, such as is described by 
complainant, it would be null and void and could not 
convey any property to Myi-a. Ilespondent avers that 
the assignments, in secret trust, made by Clajk in his 
life for the benefit of Myra, were illegal as against the 
mother of Daniel Clark ; and defendant claims their 
portion of the same as one of the heirs of Mary Clark. 
They conclude by denying that during the time the 
said Caroline was at tlie boarding school, and after her 
marriage, the said Zulime nee Carri6re frequently visi- 
ted her and repeatedly" assured her that she, Caroline, 
was the only daughter of the said Daniel Clark, and 
therefore the said delandants Rssert and maintain ihat 
if the said alleged marriage between Clark and Zulime 
ever took place, as the complainants have averred, 
and it shoiUd be regarded of any validity, that, in that 
case, Uie said Caroline Clark Barnes would be and must 
be regarded, as the legitimate child of that marriage, 
for if even born before wedlock, she would be, by the 
laws of Louisiana, legitimated by the subsequent 
mai-riage of her parents, and the acknowledgment of 
the said Clark that she was his child, and therefore 
would be entitled to all the rights and privileges of le- 
gitimate, legal heirship and iimeritancc. Signed, John 
Barnes, Caroline Clark Uarnes. 

LETTERS OFFERED BY DEFENDANTS. 

LETTERS PROM DANIEL CLARK TO DANIEL COXE. 

(-1^1' '~'^''''^'^'' °f partnersliip or asreeraent between Coxe and 

?— JXi'mington, 22a July, 1803— a business letter. 

3— VVashington, 3Ist January. 1807. This letter refers to certain 
proposition, mnileby Clark to Governor Claiborne, imtl develops 
li-; I'Jili.wiii-iiiterestinKlact: " VVlienlreturnt-d i'lth K.iirr.)ip. In 

'■ ' ':'"!'- "I : -ii.f, I found the deposit at New imI. . m, , ( i,. 



eposit ! 

I making immediate prepariiti' : 
in, which 1 believed would h- 

■t-M to the United States Iwni' i 

crnor Claiborne, separrttcly, to pro|.>i r 
ol' New Orleans, it tln-y thought the i 



under the clir. 
Claihore then 



i:i;.4 to be done 
,. , '•..\„me other 
I.; ifil tlie true one 

I which is injurious 



. Octo 



,1803- 



very . 



of the giites of New Orleans the American 
wn by any act wh.itever; and, if we were 
pie, such snpineness, irresolution, and want of 
" ' ' ■ ' nsequences. The 



eady produced 
prelect, who i3 a turbulent man, has more than once directly 
suited the commissioners, and Clairborne puts up with it. Hehas 
heenwritingto the government th.at all is quiet, while two liota, 
threatening the town's safety, took place in a ball room where 
he was present, and his conduct on the occasions has brought him 
into merited contempt, even with his own friends. In short, if he 
13 continued here, the Government itself will be despised. I wish 
you tokeep these things to yourself, and not mention my name. 
It were to he wished that Dallas would come out governor. He is a 
gentleman, and a man of the world, and I make no doubt, that the 
people would shortly, by his endeavors, be attached to the United 
States ; and I wish you to let him know my opinion. Dnyton wrote 
to me lately, aild seems hurt that I Iiave not had an otier of some 
thill' In ni'- vi li. The only thing I want, is to be left rjuiet, as I 

am .1 II!" I .. I- to hold any office whatever. But, I confess 

U} \ ,1.1, : .1' notice being taken of the services I have 

i.Mil ii ' I i\'d. at least, a remembrance by a compli- 

nun . I I L ■ ...xpiration of my consulship. As no notice 

\i:\< I, , i . i ■ nor my representations, |and .as my functions 

li[i\, 1,1 I hi't write a line to any memberof the Gov- 

iiiir I I . Ill ' iiHi; my correspondence with it ropifd, and 
wli' I. . Hit itto you, that you may judge what Ihave 



Florida; tli. 
delivered \\\i 
all the othrr 



THE GAINES CASE. 



2T 



.•iin< nn nn thf l.»«l r 

fu<t nml lii.« I'»rtl, Wltll r<!l]<r%:l tou 
pofwiblt* )inU**4l iinti nfoo^ition to 



111 lliid saiiii) IfUer ho refers lo the arrival of Edward i,^,. 
Livingston, whose manners ho says are pleasing, lie i">" ' 
winluia to bo romoiuborud to his ruinily. ', J^'l'.', 

7- llalitc. Murili :«. IHOG— Nolin- hij nrrival, itatinx that it i""'} ' 
wnulil probiibly rfjciice I'hfw ;ind U'-lf. i ""t ^^ 

n—Srw (Jrlsaiu, April 3, ISiKi— Kc-lerriug cntiraljr to btwiaeu i "■»''i 
and iibl|iiiiii«. fartn i 

ft— N>«» cTrlMai, April 17, l*v,— Refxra to profiLi o(u abipmcnt | "" ' 
from NVwhur^, aii.l t<i Iiin iiii<-iiii(>i) tu purcliOAe ctrrtaio «u^ar ea- i ^bnl I 



. .!M.-ti;rTnine, wiilioul delay, to 

r. : Kill a<lvi.« ,.,u. I..I in- 
sult ul ihU biuioeu, and that it will 



lUiat 



>xe-A.Iviiie< bin 
Itrnpettkn of Mrlli 
I laud!. . . 

. Biird. 

"lopes 
1 for rolief; te 
u..il! .ri ur» in Mfiiioandeliiewbero. 

1- N -> 1 ■ .1 !■*. 1 -1 »'.— Refeni lo commercial aAVirs, 

1-' ^ ■ *' '-■^'' — After viirioiis allu^tions to bu- 

si'i'- - ii-kinf;old napt*ri«, ti> be rcidy 

H- -^'■^^ I »r -■ ' -, \: p ■:, iMk" — Speak of certain land pur- 
cba^es u.id »ta'.-. that il,.. S,-, rrLiry of the Territory, Mr Gra- 
btini, lum wrioii to Dr. Watliiii.i tbnt our aflaira with Siinin will 
be .ettlru, unil t.'i^ Kii.ri.la ...peoiilationa would fail. Kraue»t» 
Coxe to a^-r.'riniri tli** fiu I. trum ilic/rirnrf who can inform liini. 

1ft— New Orleans, 4tli Sept., 1»A.— A atroiifily written letter, 
alati.i- th.a lif bill no laimey or creJit in Engia " ~ 
eclat,'' (be says of a certain !«bipinunt,l "wbeaweare to pay for 
it with buuoraud vexatioiL" In this letter be aays. " You are 
mu» li iiii-T.i^- a til >(iur iii'}:;:ii at i>i K'-ir, who is, in my opinion, 
nut V. ■ ' .'T ;;reat capacity, and 

full •J to him.'' 

>i ■.-■■» of selling all his 



panMit^ kiH.w the f.ii 
end here. 

In a postjicript, he ndil* Hint the secret of the intended duel 
leaked out in New OrltviiH, from the Governor^ friend*, wbo 
mentioned it piihlirly after tin' Governor's departure. H« ac 
cordingly left thirty-six hoiirM before the appointed time was i* 
•jjed by the sherill, but cot nrnu-n lo Iber\iUe helore he i-ouH b« 
arresteil. He refers tu hin :reat popni.iriiy fpim this affair, lit 
states that ever)'wbere the syiu> atbies of the people were on bif 






still less iiropert> 



(w Orleans. !4tli July, 18i>T -Refers lo shii.roenU of cot 
!«, ** nnr pohticul horizon hoks cloudy, and wishw«baii 
propertx at sea than wt. have alloiit.'' Refers lo th« 



of difficult!.^ with 
lo tnniire, and threatens 
atii*-nd bis roniliKi in this 
•xr, amounting lo »lao,i«<U 



17-Wl 
about hi.4 
Florida is given 
about bis lands. . . 

to suspend the non importation act, and although the dem 

' ~ 1 of tlieir conduct, kickalitlle, and flounce about i 



Dec, ISOO— Writes what articles Coxe 
ah.. II ■ ■ lus. He sUtes : " The news from Ohio 

■>u: : -en of Burr's boat were seized at Ma- 

rie; l a;i3 about the same time acquitted on 

ail i:i ' K .-,_\. Refers to an liunonymous letter, in 

wbicli liH ^i:: irk J i> incntiuned as the chief broker and payma.ster 
to Burr ; and jocosely asks Coxa if he is aware where the fuads 
to draw upou are ? 
lit— Baltimore, i7tli Dec, I8(i&— States that be has coma to 

iO— Washington, 34 til Kebruary, laii -^uiten that Relf was more 
frightened about their lUfairs than be ought to have been ; refers 
to a trick of Burr, or some ol bis adherents, to raise money by 
pretending tliat they were authorized lo draw on them, Chirk and 

':!1— Bullimore. Utli March, 1807— Refers to certain trunks, and 
directs adi.|ii.»ition to be made of ci-rtaiu packagts ; states tliat 
a prodigioLi.! ,Miii;:n>tiun will shortly Uke place from this State, 
(Marylar.d,) and Virgiuia : be will be in Philadelphia in tea days : 
and speak" <■! -eMinj; his estates and going lo Europe. 

82— New Orlca;i.4, .'jlli .May, ItaM-^tales that he is straining 
every nerve lo reniil tobacco. 

!13— Uouma l'l<u.i.ition, l;2Ui June, 1^)7— This is the duel letter. 
As it isa ciirioiM ntt'sir we give it entire ; 

Ml/ Oeiir /'; .V;ic/— When I wrote you last, I mentioned that I 
was on the point of s»-tliiig off for Natchez, and you must natiirsl- 
ly conclude that I hnv- hi-* time enough to get there ere now. 
ily departure I'r-i •.., TV v. n camed by other reasons than 



tiovemor i 
io Congress i ■ 
despair by II. • 
■when the m. • 

dence, to ch i 
spurred by c.i. i. 
me for my coi.v ■■■,.- 
Governor ri»kiii;:hi" jcr- 
fais own in danger. Wf 
to be out of ilie Oo\ , 
crossing the Ibenilie, v 
day, the 8th. atone in •■:. 
companied the Governor a< '.us 
the bar, and an intimate friend, 



■ quick by the few woi 
to the militia, and i 



thit III' r : ■ ■ ■■ • .• < lT" war can iniura 

us"-'- ' II 1. ii.'haslieardofihe 

pro.'e. ': 1 (r, , , N rl .U, to4lll July. 

i!iv-l I .« .Nr« III, -..i„, ;tli Sept., 1807— Re 

fers I" -. '^(-.4 aj.preiieuji.ins of its dam.ig"* 

in N<-i. his absence is looked upon as a real 

loss \u ■ 

27-1 ■ inber, I8n7— The Comet, on which 

he saiU'il li.i.fi %■ V. iirl.. 1,1-, i» compelled to put into Charleston, 
on account ol a leak ; tliey were tniarded off the Tortugas, and 
rigorously overliauled by thellrili'-li :.loop of warElk ; tlie Comet 
cleared from Amsterdam via Pbila<lelpbia, on account of the 
drawback. 



Ifiinil- 



by Rand..l|.h. Dana. I.iverin .re. 9ii„..-> .u, I „il,.-,.. H 
'• You will now, I hope, acknowledge I have ju.lged the i 
tratiou rijht," 

30— Wa-ihington, Dec C'lthl^r' ro-rip'-!tn« nf In-in 

$1 37 postage for two letf— - ■ v •>■'- T'-- 

KnglanJ will not look on ; 

lales ; retails some go...o. 

ton, and a Miss I.ea, for t).'- I'hinki 

that the Presid"nt will forr.- ;li the 

intrigues of the baiteauil linpritjr;]i i: ii'.-.i aronn.: li:iii. anjUirougb 

a fear of France. 

31 — Washington, January 1st, 180*-- Refers toatlemptto expel 
John Smith "f the .«enale; thinks th-at there will be a warwith 
En^iau'l or Kraij.-c ; ^.ii » that no foreign vessel can take a cargo 
ordepir. .- . i i - :..• on board, Uian what she had wb.-n 

tbeeinl.. .' her; thinks that England will makes 

■ ime members are talking ab'.ut moving 



theCap. .. ; . !• 
■J:...\i.,. '..,:.. 
earring tieiwecn 
Rose at Sorfolk, 
France, leaving 



plied 



. . o.l June— He refers to a circumstance o<; 
. K.i:alolph and Wilkinson; the arrival ofMr 
ud the receipt of unpleasant dispatcbea from 
alternative between war or aa alliance with 



, K.-.'ii.. 



At the conclusion ol this letter, occurs the foUowIngr, 
which may be considered as aa allusion to his afbir 
■e'ti'redamostat'tbe' With Miss Calon : 
same instant, at ten paces, and the Governor fell, shot tlirough ' " I am happy lo leam that so much importance la attached to 
the thigh, and with a most severe contusion on the other. I have | my visit lo .\nnapolis ; but it w, P'rhajis, unfortuBata that tU« 
received no injury. T look upon, this I 



I settled,' and willj conjectores in my favor are so devoid of foaadation." 



28 



THE C4AINES CASE. 



5S— New Orleans, Mi 
oents; the necessity ra 
59 — New Oi'Ieans, M.i 



due tbenT 



and Ros 
Mr. Bav; 



Mferg to con-espondenci 
■Mon in his defence, (ii 
-•\ to injtire him. Artkir 



—New Orleans, December li 
.unt oi the Sailnreof the ne£:o1i 
he claims of the heirs of a Mr. f. 

1. 1* *u;;iriilaiitatioa; epeats of 



in things 
ith Chew 



3ii, 1810— E.tpre.ssea his joy at the pro- 
certain property under sequestration is 
! Piiarture of Relffor Philadelphia, and ad- 
) him Tn every merchant in the Union. 
!i'i. -m— Says that he flatters himself 
I tliat bis power to injure him 



l^n— Refei 



his e_ 



cted 



■ ; I ■ . I - • ''"■■■■■' .v< of a roptu 

i.sl. K'lvoy. The hittpr wishes us to per' 



4Cl-.\Vashiuston.>- 
will bet.aken bV Fran. 

41-Washiniton. I- 
■wishes sent to New < i 

«-WaslHnjrton, s 
Annapolis Court). I I 
foreign relations, an-1 

EngLn.ilv'll" '■"!'■' 



i 'W wiiat steps 

! ii .1 draft which he 

i--(On>is return frni. 
I sent a messa|;e on >> ■ 






. IH08— Says that the negotiatic 



pended, and n. .'■■;[ i-. i .,! ., 1mi 
kinsoii. 

45- Washington, Feb. 21st, 1808--States that Erskine has in- 
formed our government that the British Government would look 
upon the non-importation art as a wa r measure and .act accordingly. 

46— Washin^fin. .'Manii ITtli l.'^O^— Renuest.s Cove to »pt !1ip 
Felicity rea.:. (<.,■ -. ,i :>, I,- 
off for Ne,. M, , 



ivili contmue until a change of n 
eb.22d, 1808— Negotiation of Rose i 






50-Ne 
sent by c 



■)M— ,-, w (jrlean-', Uth JuJv, 1808— Encloses a letter from Col. 
John Clay, commanding 2d Regiment Militia, in New Orleans, 
oonHrmmghis (Clark's) statements about his visit to Wilkinson's 
camp. 

3d .(illy. 1808— Refers to Saludo's answer, 
'- i < i-iders a compliment to him, and a 
w I I linn's friends. Refers to shipments 

. _aist--Sees now that the embargo 
. ^. and their purchases have injured 
; I -■ to embarrassment, and the neces- 

: i rnber, 1808— Speaks with joy of a 

esays:'" l'' 1 •',":,■, i'J'bat theatre 

Deiiiu,!.;. ! , ', -V will be com. 



■[ . !, 1! ' . I i I —Has received Cox's letter of 

■ ,il i.-; !,i. i;i a.;.- c.l .1 1.-H , j :^ it. Has completed sale of the 
oiunas to Gen. Hampt'aiTnr $170,000. Says the failures ia New 
Drk have been dreadfully felt here. Five or si.^ large, and twice 
at number of small houses have failed. The Branch Bank, by 
during its necommodations, has put the whole town' on the 

N I " :!! .1 1 a :i--. '."11— Writes very despondingly 

' '■! ■■ i 1 ■ 11— Writes in themostgloomy 

' ' : .1 I .. . r- ■ ia ,,i ■■; I. o.-ve's impatience andreproach- 

, oa a.rniiiit t>i lii> gre.it nistre>9. and concludes in the follow. 
g desperate language; "One consideration only weighs down 



foreign count°ry witho 


t friends 


or protectors; fc 


r God's sake en- 




our friend 


top 


ovide for 


them until 1 can 


;ake nieasurts to 


dose 


which Wl 






may myself bee 


ome an outcast. 


but « 


ith a little 






-ement there w 


ill be enough to 


pay a 


lour debts. It 


vould be 


ruinous to have 


our landed pro 




brought to 


thel 


immer, a 


nd sold far cash 




satio 


-New Orle 
1 he feels i 




'"';:'' ^': 


■"' — "■ """'I'- 


1 escribe the sen- 
.. . and his deep 




:s that he. 










tv en 


oughtoi . 








■ I, is family. 












.' 1 xe to make 






iBir a 


..u.»; IS 


seeiwaglcuel liu 





the U. S. Bank. 

69— Bayon St. .John, near New Orieans, Sept. 6, 1811 — Arrived 
here afte'ra passage from the North to the Bahze, of 41 days. Is 



ell, bu 






!!iety. 



Sept. 13, 1811— Refers to embarrassments of 
Chew and Rell; speaks of other losses, and of his intention to go 
out into the country to collect. The city is in a dreadlul state, on 
account of sickness, and consequent stagnation of business. 

71— Bayon Road, October 18, 1811— Would »ive his heart's 
blood to relieve him, Coxe, but cannot rai<e a . : i : i~ n' l : ■"• t.' 
go into the country, and the country people v, . , • : . : . i -i a. 

72_NewOrleans, Nov. 30. 1811— Clark hn- • ■ .i i am 

atourin the Mississippi territor.v: feels sen-ia ;, - v - ■. lats 
and deeply 



-Cape 



le Louisiana Bank when Relf is elected Director, 
of Delaware, July l.";, 1,-<U— Is going to sea; wil 



3toNe 

74— New Orieans, Jan. 13, 1812— Is about to proceed toHoumas 
ci see Gen. Hampton about his note. 

7,r,_New Orieans, June 15, 181-.'— Explains why he has not re- 
litted to Cnxe, as ah his means have been used up to serve Chew 
ud Relf. Would sacrilice all that ho has to save Coxe, and then 
\ away, to escape the heU he has lived in for the last eighteen 



'i-1. -New Orleans, Bth Noveinbe 


, ISOa-Refers to accounts, 


iTliere 


remittances. &c. ; encloses a copy 


of a letter from Wilkinson. 


of order. 


55--New Orleans, 24th October, 


ISOS— Refers to sales of cer- 


1802, in w 


tain tracts 6f land. He says : - 


aiu hapiiy t.) hear that the 


will sailo 


Spaniards and Federalists coiiti.iar 




hew;;;."' 


5G-New Orieans, 1st May, 1; 


r ' a. 'idiiculties with 


Turner, and his intention to pr-. 


a .'. to make his 






. !-• .M:. Livingston in a 


f '^','' .;;' . 


PubUcationhehasural. : r.. , ' ,, i 


■1 nark.) (reueral F.il.L, 




he adds, is now here, i- 


a|.iio.-.ed that the obi. . 




of our troops here is 


a .ll'Klorida. 




57...New Orleans, ;i ! 


:;..nrstotlie diffieulti.... ... 




bringing Turner to a -- 


.s unoriginal letter bajm 


Ir.a 


Wilkin»on to General . , a , ; 


. i .len of property, wliirh 


tlia; 


he thinks will be rn,.,, ', ,, ,,, 


. .Irbts; explains that he 


heril. 


purchased the lots on i 


•lie expectation th.at the 


hadi.. 


Government would o| r , i . . m a 


.i.i.idplet, and thereby they 


tUilllvi..: 


rould becoms quite \ iile.al.le -buin 


ilU.ay no more property, tc. 


money Iro 



fHB OAINES CA«E. 



29 



nor, whom lie tlirr.itpn 
•■•0,000, he »i.y». "I w 

IlRhrnl^lw.lf ',".,!' , 
whirli lif i« pr.- i 
§rrioiii tci taks y ■ 






fiiutbitr Kiid rainily, 
I in II fonii^n liiiid on 
■* hj-iiic srenter Ihmi 

r ,,,.....„»t<> ilenpiiir 



from an id«« of great miperi 



inlf nilnl. h« will tiiuke over m IruA l\ 

nnit would be uniust to lenvv themexj 

(iriitnlxd Kol'm to KelPa emUnrni."" 

w«» cuiitemplatud. Retiirt »««in, in i^ 

to hii effortt to«Mi»t Co«e, Mrlninii , . ■ (.,.i! i. •. whim-nn I 

do that 1 have iHit don**!" K^fltfrt t'> ^ iiri««ein]( 

their debtor*. Olt'ern, if Coie will -, . ' , i . irnntfc'r 

to him evprythiiije in the flrheiliile i>i ;l. :; i -i' I'rnp.-rTy. if be 

(Coie) will underuke to free him I'roiii all il-nmn.i-.. Kefem to 

tlie dech'ne in cotton n» iiicreaaini; their diUiculliea : and con- 

chideK asfiillowii: 

"I hare now one word to way on a aubject which I hope will be 
the laat time that it will be iiei-euary to touch upon it. You 
tell me in a late letter, that I ha»e lo»tone estate by nycophanUt, 
and expreea your hope that 1 will nut endanger another by them. 
Noboily better tlian you ought to know how mortifying and inju- 
rioiia to my feelingii such remark* mu'it be, that they can be 

I — .1. 1 _.. 1 — j._ ,,,f|,,^,,_ be thought to spring 

ily of mimi and intellect, on the 
I kind of humble dependent, or debased 
slave, such aa you may, perhaps, ir. imagination, figure yourself, 
T may or ought to be to you. 1 madden with indignation, when 
I ask myself what can authorize this liberty to be uken with me, 
and I only recover my reasmi on recollecting the habit you have 
acquired of saying mortifying thing* at the expense ofoiliers, 
perhaps, without aulficieiit reflection : and ia the intimacy that 
subsisted between us, I have on more than one occasion suggest- 
ed to you the necessity of paying more regard to other people's 
feelings. If, therefore. ^-ou set the smallest value on my friend- 
ship, I wish you to avoid the suhject in future, and not lacerate 
my mind afre.ih, e\-en bvan explanation or allusion to it." 

7«— Clark to Cojce, New Orleans, Sdth Dec, 1811— Says: No 
mail, and miiat remain in ignorance of the effect of the Duke of 
nusano 'a letter. Will attend to paying taxes on the Marquis de 
Gasa Griuo'a properly. Trust to be able to make remittances. 

7>»— Clark to Coxe, New Orleans, 19th Jan.. 1813-Refer* to the 
difficulty of realizing debts, on account of the war, and the des- 
truction of the crops by the hurricane. 

SO— Coxe to Claik, Philadelphia, August Sfith, 1803 — ^Acknow 
ledeing Clark's letters of 12tli, 13th, and lirtli ult. Rejoices in liia 
prompt resolution to make a bold strike at lands, which he con 
aiilers tlie fairest chance in the world of making a fortune. Sends 
money to buy more lands. 

Family Letters. 
, fil — From A. Anderson to Daniel Clark — Germantown, May 
IfW. Clark's brother writes of family affairs; of the kindn 
of Coxc. 

8-3 — Jane Green, Clark'* suiter, to Clark— Liverpool, May 



to her share of fitting up "y 
toilette,"iadding "the idea of it* being intended for Mr*. D. 
got strong possession of my mind.and so much do I wish to at 
bear tliat name worthy of you, that nothing, in my opinion, could 
be too good to tnist in it ;" says, "it has been exhibited in Lon 
don as a master piece of eleeance and fashion." Refers to her 
sister Ann having received t^lark's present to her. After nlludinf 
-^ ** ■ *• ■ letter concludes; "why will you be for 



toilette : if they are, may you be a* happy in your choice a* is 
your tnily affectionate sister. JANE GREEN." 

«3— Marj- Clark to her son Daniel— Germantown, March 30, 
1^03. Refer* to the receipt of a letter fn>m him, from Kingston, 
and their fears for him in the different voyages he had to make 
during the winter. Refers to Mr Coxe'a conduct to them and 
certain lamily affairs, and says: "we want for notliing hut the 
presence of liini who has so largely contributed to our eniie and 
comfort— ackniiwled;;es the receipt of plate," Ac, See. 

84— Mary Clark to her son Daniel- Germantown, July 9, 1803. 
Refers to a letter from Clark, received yeeterday. "Your ab- 
sence," she says, "is a thing you can't avoid ; therefore 1 must 
he content until you can come with safety to yoursell :" refera to 
tlie disorder of his plantation during bis absence, says that "It is 
six weeks since we heard from Liverpool: that tliey (meaning 
Clark's sister's family) were all well," &c.. and they regret 
much your leaving them so !.<«in." [All these letters of Clark's 
relations are couched in the most affectionate and grateiul ex 
pressions towards faim, and ascribe ai\ their happiness to his kind- 
ness and liberality.] 

85-Jane Clark to Daniel Clark, Germantown, August 11, 1803, 
—About family affairs. 

S6-Jane Clark to Daniel Claik. Rocky Mill.*, near Richmond, 
Jan. 13, 1803— About private alTairs. 

87— From the same, April 20, Imo — Same purport. 

88— A letter, not sisned. by a member of his mother's family— 
Germantown, Aug. Cti. 1803— About lamily. mattirs. 

8<>— Anderson to Clark, Germantown, -rOth August, IWJ. A 
family letter. Refers to the rage of the fever in New York, and 
several family matter*. 

90— Coxe to Mrs. Jane Clark, Philadelphia. October 10th. 1811, 
relative to the amnesty. 

-Hulin-s to Clarlt, Philadelphia. Janu.-iry Ist. 181S— About 
Stic affaiia. 



»i -ll'< 



Philadelphia, January Mth, lail-Ae 
.iiowli-ilkiti;; Clark's Livur of December Kth, incluDilig lull* lor 
i;**!; >p>'.ik» of derangenieotJ in Clark's family, and the neee* 
ily of reiiiittance. Another letter to the same puqiort, Jiiiiuarv 
th. 1«12. 

M -Kimball to Clark. August S7th, 180a-About a small sum 
ue him by Chew and Keif. 

WV— A. Anderson to CUrk, Germantown, f.th Dec, 1«03— About 
family concern*. 

Pdblic and OrnciAL Lxttkrs. 

06- Lausaat.thecolonial Prefect, to Clark, le ler fnirtidoran 
11. — Returns thank* lor a comtnunication from CUrk ; felicitate* 
the United .State* on the iiiagintimit and important acaui»ition,— 
and dwells upon the ricline^f* i<r ihr soil, salubrity of tlie climate, 

and the Htlier ndvniiinge* of Ui intry. Concludes by Mtying 

that he is awaiting the orders oi hit government. 
"17— Clark to Citizen Colonial I'rcfuit, New Orleans, 18th Aug., 
ating a letter of the Secreury of State, enclosing 
of the cession of Louisiana, and stating that the President 
formed him that he should convene Congress on the 17tli 
October, u> ratify the aaid treaty. 
James Madison, Secretary of State to Daniel Clark. 

[.As this letter is an interesting historical fact, we 
give it entire.] 

DinaTMBirr or Stitb, OcL 31, lAOS. 
Sir:— The present mail convey* to Governor Claiborne and 
General Wilkinaon, authority to receive or take poasession of 
to Governor Claiborne, authority to administer, for 



The possi- 
irly a protest 
om Krnoce to 
Sew Orleans, 
il be made a* 



the present, the Government «>i il,.- i.-.u-J miinlry 
bil ty suggested by recent i 

the UnitedStates that deliv 
on the part of Spain, requir 
well for Uking as receiving 
Governor Claihorne and General Wilkiii-on "ill have to decide on 
the practicability of a coup demain, without waiting for the rem 
forcements, which will require tinieim our part, and admit pre- 
panitions on the other part In forming that decision, they will 
need the beat and quickest information from the spot. GoTemor 
Claiborne will write to you on the subject, and there can be no 
doubt of Uie zeal with which you will render them every aid of 
thi* sort. Should a coup dc main be resolved on, there may be a 
call on you for assisUnce of another sort. A cooperating move- 
ment of the well disposed part of the inhabitan's wdl be of critical 
advantage, and it is desirable that it should, in concert with the 
military councils, be prepared and directed in a manlier to give 
it Its best effect Your knowledge of local circumsUnces; your 
acquaintance with the dii^osilion of the people, and with tlie 
principal characters and theirviews,willenahleyou to render most 
accepuble servwes on such an occasion! It is presumed that Mr. 
Laussat may also render his influence over certain deai-riptioo* of 
the inhabitants, useful to the object. Mr. Pechon has, in the 
strongest terms, pre.ssed him to do so. Should he be well dis 
pased,a frank and friendly communication and co-operation be. 
tween yourself and him is particularly to be wished, and I doubt 
not, wiU be prompted on your part. It will be agreeable to hear 
fromyou on the receipt of this letter, and in every stage of the 
interesting business, which is the subject of it. Tlie mail will 
lienceforward go from till* to Natchez in fifteen days, and return 
in the same time. To double the chance of quick and certain 
conveyances, duplicates by water may also be expedient 
X remain, sir, veo respectfully, your most ob't serv't. 

JAMES MADISON. 

Dakiil Cuai, Esa. 

08— Wro. Dunbar to Clark, Natchez IGth SepL, 1803 -This is 
historically a very interesting letter, referring as it does to the in- 
formation the writer has been assisted by Clark in obuining in 
answer to certain queries of the President, about the revenue* oi 
Louisiana, He make* the whole population of Louisiana little 
more tlian .W.UOO, without going further East than the River 
Amite, the black popuUtion 3ri,0UO, and upwards of ICi.MIO men 
able to bear arm*: he hopes the UrsuUnes of the Coin-ent will 
be preserved in their rights ; and makes certaingeographir.il in- 
quiries about theSute. This letter concludes with a strong de- 
nunciation of lawyer*, and a hope that the Louisianiana will or- 
eanize a court of arbitration in civil eases, to rid theiiiselres of 
the evils oF litigation. 

ixt— James Madison to Daniel Clark, Virginia, Sept 16, 1800 — 
Refers to several letters: the last, of the Wlh of Antust, recerv. 
ed from Clark, and to the importance of procuring inlormalion on 
various suhject* relative to J.oui-.ian.i, it* l>ound«rv. tc. which 
Clark's lo<:al knowledge may be able to furnish. Refers to a let- 
ter from Governor Claiborne, concurring in the opinion that the 
Prefect meditated opposing the delivery of I»uisuinii into our 
hands; Mr. Madison does not credit the report He fears that 
Spain n:ay oppose the execution of the cession. He ilierefore 
directs Clark to watch every tyinptom winch may show itself, u> 
ascertain what force Spain h«s in the country, where it is posted, 
and bow the inhabitant* would act in case a force should »• 
marched thither from the fnited States, and wb.it number of them 
could be anned. ami actually biought Tnto oppa-iuon to it. Urge* 
dispatch upon him. 

100— Daniel Clark, Consnl of the United Stales for New Orleans, 
to .lames Madison, SecrcUty of Sute, July »l, 1808— Refers to 



TflE GAINES CASE. 



tlie determination of the Marquis of CasaCalvo to J raw off three 
ur fouf eettlemeiits.and place them on the land reserved by the 
Spaniards uu the ether side of the Ibervdle — which measure he 
^Iias encoufaged, to produce jealousy among the French and 
Spaniards. 

101— Madi,son to Clark, Aupist 12, 1803— Announcing the re 
ceipt of a letter from Mr. King, to the etiect that, on the 30th of 
April, the Island of Spain was ceded to the United States. The 
treaty is expected every moment. 

103 -Clark to Madi.son, An just 12th, 180.3— Expres.sing con- 
gratulations on the cession, as insuring the safety and prosperity 
of our western country. 

103— Thomas Jefferson to Daniel Clark, Washington, July 17, 
1803— Conveying the terms of the cession, and his intention to 
convene Congress on 17th October, and requesting information 
necessary to a proper organization of the said Territorv, and in- 
closmg certain queries. These queries refer to boundaries, found- 
ation of land titles, teudal rights, public lands, — to courts, laws, 
taxes, debts, annual products, revenue, and all other points cal 
culated to develop the revenues of the new State. Directs in 
quiries to he made, and the parties will be paid by the Secretarj 
of State. Some of these queries are rather curious. Such as, foi 
instance, "What is the number of lawyers, their fees, their stand 
ingmsnciety.' Are the people litigious.' What is the nature ol 
most law suits.' What ars the usual dilapidations of the public 
treasury, before it is collected, by smugirling and bribery : and, 
secondly, by the unfaithfulness of the agents and contractors 
through whom it passes.^" 

104— Clark to Jefferson, New Orleans, August I8th, 1803— Ac 
knowledges receipt of his letter and Incloses maps, and replies to 
the queries, and congratulates the President upon the splendid 
acquisition. 

105 — Madison to Clark, Washington, Department of State, July 
20th, 1803— Incloses the Treaty of Cession of 30th April, 18ii3.— 
Calls his particular attention to the article relative to property 
the article assuring the inhabitants in all their 
irects inquiries as to the relations 



rights. 
Spai 



lOij- 



sew Orleans, August ISth, 1803— Ac- 
ioing letter. 

» er Mersey, 23d Dec, 1803— Advising 
IS etat m'jJoT, had set off about the 
. to embark for New Orleans. 
t - ' I irk. W I- ii u-u.n, Dec. 5, 1803— 
1-1 I .' ■ !■ ',_ 1 terms with the 



Judii 



lOS)— Wm. Dunbar to Clark, Natchez, 30th December, 
Refers to.his cotton shipped to Clark, and to a n 
ginning ; thinks his estimate of the population of Louisiana too 
large. Refers to private matters, and says he hears from General 
Wilkinson.tbat Louisiana is to be divided into two territorial gov- 
ernments, and W. C. C. C. is to return to his own government 



firmation of the Treaty of Ces: 



chicola 



boundc'l i , ■ ! 
must be ill ..,!.--. I iM', 
west ofthat line, lor 
Mississippi." This le 
Government,and requi 
' " -Dayton to Cla 



id the apprehended opposi- 

i: "West Florida was un- 

1 be included in the cession, 

^ much. This will carry us to the Apala- 

■I ■ or the Rio Del Norte would have been 

IS the western boundary, and not a foot 

. 1 iiL-re. If we should ever consent to be 

1 IP :ino, ihe Adayes, and the Missouri, it 

I our exchange of what we justly claim 

I the Sjianiards own or claim east of the 

;r speaks of Clark's high position with the 

ts information from him on certain points. 

.Washington, Oct. 31, 1803— Refers to 

t he passage of the bill authorizioa the President to take possesion 

of Louisiana.. Says that no time will he lost in taking possession 

>ne all in his power to impress the President 

■ (Clark's) services.and the important bene- 



of it. Says "he has ( 
with the k 

fits which mnv be de 
He speaks 



zeal and his judgment, in asking leave of the Spanish Government 
for one or more companies of cavalry, to pass hv land to New Or 
leans, to escort the commi9sioner.s. A few of the militia of the 
country will accompany the regulars from Fort Adams to New 
Orleans. 

116— Claiborne to Clark. Natchez, Nov. 23. 1S03— Refers to his 
(Claiborne's) probable descent from Fort Adams, in four or five 
weeks, to t.tke possesion of New Orleans. \ 

117— Clark to Wilkins.New Orleans, 8th June, 1803— Refers to 
private affairs. 

118— \Vm. Burnum to Clark, New Orle:ins Prison, Aug. 8. 1803 
—Complains of beiug unlawfully imprisoned as a citizen of the 
United States. 

lia— Wm. Leman to Clark,Military Agent's office, Philadelphia, 
October 18, 1803— Containing invoice of tents, camp kettles, &.C., 
for the United States, shipned to Clark's address. 

i:o— Dunbar to Clark, Natchez, April 2S, 1803— About paying a 

. 1-1— Claiborne toClark, Natchez. November 30. 1803— Intima- 
ting tluat, it force isnecessary to gain possession of Louisiana, it 
will be employed with as much energv' an^ promptitude as could 
could be wished. ' 

1-33— Clark to Thornas Jefferson, New Orleans, August 18, 1803 
—In reply to the President's inqukies for information of the state 
of affairs in Louisiana. 
133- FulivarSkipwithtoCI.ark, Paris, May IH, 1803- Trusts, if 
■'■— received letters from him about the cession, before its di- 
^d\h»:"' ""l-''..o ]'■-!■ "'' I,'-' ^"^1.~°'-""V'" ■v:-'T "!''' 



he ha 



Ibrmatii 






134— John Steele,Natchez, 28th May, 1803— Introducing Genera! 
Dayton.amember of the U.S. Senate. 

133-Dayton to Clark, Washington, Dec. 12, 1803-Acknow. 
ledges receipt ol lavor ol 31»t ult. and his satislaction that the 
Spanish will oHer no oppu.sition to the cession. Clark's name not 
appearing with Gen. Wilkinson's in the comini.saion was owin.'to 
his badunderstanilingwlth the Prelect 

1313— Clark to Madison. ^%..,• 1 1, k- ,•; , .T-i'v ■:!. l"'^-— n ,cloie.s 

plains .strongly of till- ■: ,, : , . . , ', ' , ', , , ,';,,'„;i 

his measures against tir- . i, ! ,,ik,i 

contemplation t 



of Orle.ans, on the other .sioe ol 
sirahle measure, aud . 
d Spanish, and thu 



ILier 



Thii 



promote the jealousy 
. . he commerce into on 

137— Clark to Madison, New Orleans, Jul' 
nieraoranda respecting the to.nir.v. 1^:, 
of the Spaniariis to oljt tin the ,- 



Missis . . ^ _ 

partof Louisiana, and t'lit 
French and Spani-h office 



1303— Encloses 
' the anxiety 
kt bank of the 
d" the western 



: presi 



the 



Ited and i 

details given to Gen. Dayto';i. ;i , . , , ,- .in 

thorities,ol the requestor Gen. W .k.i ; ,,,| k,, i, , :.,i ,,,ii ki ,-ci.ii 

two vessels to our settlements ou ike .11. iliile 'river, jVoiii an ap 

prehension that it might interfere with the ne-otiations i,endin . 

128— Clark to Madison, New Orleans, An-. ISth, ISiiJ— .i.-knuw- 

ledges the receipt of Madison's letter of ISlh Au-ust— 30th Julv, 

closes a letter, in reply to ine, from the President. Gives' a 

ery bad character to the Prefect. Savs the people general Iv 

contented with the Charge-rail, in fact, bnt a few adventureiV 

lately arrived from France. 

The Caton Letters. 



t the affair is fo 
meet, altlioug 
sed the eliect | 
lid state that h 



Western i i- 

are engaged in v 

113— Ciark to 
sing answers to 

114— W. C. 0. 
Acknowledges r 
(Clark's) staten 



procee 



Madison, New Orleans, 16th Aug., 1803— Inclo- 
the President's queries about Louisiana. 
Clnibornc to Clark, nenr Natchez, May 15, 1803— 
.,.„!,.,, .■ I.I.. c„„,..r .1 ..| iiI.Itio, and thinks his 

le.ii I , ■ ,, i , ,1 ,i>.,:,ti,,. Mibject of the Mo- 

i\-i,sure8tliePre- 

llc lus remain as they 

: ' i iV" II k'lirope. Thinks it 

: II' I, HIS uesign. .'says he will watch acer. 

. oust whom Ciark had warned him. — 

I I II of the Spaniards and Choctaws, and 



of the results.' 



1, 12th Jan.^ 1808- Refers to 
ihifions, and to the Caton aliair, of 

Whenever I am fortunate enough 



White to Clark, Washington, May 30, 1808— Hopes i 
1 s^afely in New Orleans. Refers to Ge.ieral Wilkinson 



THE GAINES CA8E. 



31 



otb«ir |ii.ii'i' ..i 11, -It , !;• Jif»y: 

'•Diirri- '1 ■■; I,,- from 

bwk riiv : . r lilt!}- 

are iiii\v.- I ■ >> ■! ;■ .• : :■,." 

133— Kill,., I (i. .„.!.... H..r|.. , i,r.,.l.. „|- >!,.. I [.,111., ctark, 
DiiUimor,', Sviu'iT. IMM-Ackriuvklraj^K receipt <il' Chirk'* letter 
ofiiJ Auu'u»t,«nil one from Krenr, ailtli Aiigii«t, ia which be 
•«}■», "Vou (Clurk) are well," and «U<I. "you nre much nlnued 
with the note in nnswor which ynu |;"t in FliiLiilel|ibiH from 
Loui.<n, from which I perceive tlmt he ban b«il >omf nuamunic*- 
tiun with yt>u on tbe subject. Rcfeni to somtr reprehrnMible con- 
iluct of Kevne. Inilulgea rame politicnl preiliciionn nbout the in- 
tlf|,ondenca of Uie Stalea of Spiinii>h America. Refem to Kerne's 
lii-mR taken by tbe Englixh, with n curgo of flour; blitmua him 
»tr<,ii»Iy. He concludes, "We bsve your elesiint i,re.ifiila, the 
iiiedols. handsomely framed and bung up in our parlor, where we I 
conitanlly look at them with the interest inspired by everylhini: 
that is connected with you." 

I:M— K- G. Harper to Clark, Baltimore, September IS, lOOil— 
Attribute* the bilure of Clark's letter to what Mr. Jclfrr- 
son calls "tbe curiosity of the post-offices," and adds 
••to have our most delicate family a/fairs, our private 
concerns, and our chit-chat with our friends exposed to tbe 
views of such men as Gideon Graoser and bis master, i« not n very 
pleasant tbii^;" refers to Clark's embarrassments with deep re- 
gret; to the revolution in Cuba, to be followed by another in 
Mexico; lo a publication he is preparing on Wilkinson's conduct; 
to the proofs of Wilkinson's corruption, ami Chrk's purity. 
■•Speaks of Wilkinson's coming on and threatening to challenge 
hiin (Harper) and abused himtu some of the leading democmts, 
whom I gave to understand. OS soonas I beard ol it, that they 
were not to repeat any of bis slanders. They took care to observe 
the caution, and there the matter ended. "Louisa is quite well, 
and looks very well, she very often gets ber aunt to ask wbetlier 
I have heard from you, and when I expect to hear." Refers in 
slroi^term.4 of censure to Keene. 

la-.— S. White to Clark, Wa.«hingtoii, May 30. 1809-Snys: 

"The Carn llsand Catons are well, and L a, it is said, has it 

III serious contemplation to take the »eil." 

136— S. White lo Clark, Washington, November 20, ISOS— Re- 
fers to the blunders of tbe administration. "I saw L a the 

other day. She is more blooming and charming than ever. How 
canyoustay away; she wants to Me you. God bless you! Come 
on immediately!" 

137-8. White to Clark, Washinjiton, December 2, 1807— Ex- 
> inipitience on account of bis abnence, speaks ;of their 



Would render the lair Miss L., of Georgetown, and Miss D.,'of tlie 
Peiinsylvauia Avenue, to both of whom, it ia reported here, you | 
are going to be miirried— whether nt once or in succession, public i 
luiiie has not decided. Tbe good old mamma of one ofilie ladies 
sends every day to inijuire whether Mr. Wnrk has come. How | 
can you be so cold? In tlie name of all that's lovely, hasten to the i 
hoaom and arms of beauty, swelling and expanded to receiveyoii." ' 
^ 13»— Letter of introduction from Mrs. Caton to Clark, ol a young 
French gentleman, .\aupi. 

l.'fii— Margaret Coxe to Clark, Hth Feb., 1807— tetter incomplete. 
Appears to refer to Clark's courtvhip and marriage. 

Clark and Coxb to Cbbw and Relf. I 

140— Cl.irk toChewand Relf— PInijuemine, 27lh June, HOI— 
Expre»«es his dissatisfaction at being detained for the reguhr 
and sea letters, and the <l,>,ip !^;illv pa.-«ing him. Refers to busi- 
ness affairs. The i : « i ^ .. ;ii 'i ]...rtant part of this letter: I 

"Inowen.Ioset. . . M . 1 '. .r ,,i;e's note for the balance of I 
bis account to ni,>. ] ":.-ro Lubin, I took to prevent > 

Ins being sold to t; . , I ..,.i,}ou to offer bini the pre- | 

lerenceof him at ti. .i . [.ri,.-; ,i lie does notcbooseto take I 
him back. Chevalier M.il.m lier will buy him of you. Independ 1 
cut of the note, I paid, after DeGrange's departure, ♦a'H for 
hiin, by bis direction, which last sum, when re<-eived, is to be , 
placed to my credit, I have charged no'self with the money when I 
I paid it, I wish you not to imsli Mr. D. for payment, but wait, i 
consistent with safely, sui-h lime as he may find nece.-«iary.— i 
Should he be inclined to go away before the sum is paid, you ; 
must insist oo securily." llegs them to assist ether iiersoa* 
nameil. I 

HI— Coxeto Chew and Relf— PhiL July M<l, 180J— Acknowl- ! 
edges rereipt of their leltera of 1, 4. 5 and I9ih Juno, via New 
York. Refers to arrival of Mr. Clurk in Uie schooner Kliio, at 
New Ca«tle onWth inst. by whom he received Chew and RelPs | 
letter of .•!. St ult. Will leave tl.al d.iy to see Mr. Clark at Darby. , 
7 miles from Philadelphia. 

141— Coxe to Chew and Relf— Philadelphia, Augnstft, lf«>,sa)'a 
'that Mr. Clark wrote you very full per mail a few days since, ' 
since which he bos come up to Gernianlown, aid to morrow seu | 
out for New York, then to embark for England. In this letter he 
says : "The Board of Health have advi.«ed a general removal ol the ! 
inhabiunts, to prevent the effect of fever." | 

143— Clark to Chew and Relf, Liverj.ool. October 7, 1802-Has 
been there tliree dojs, and is about Ui le.ive for London. Alhides, I 
ill bitter terms, to the cotton frauds, as caused by the culpable' 
neglect of Chew and Relf. Give many cautions in regard to ship- ' 
ping cotto.i. Estimates their losses at X3(i,iXlit or .£40,000 ster- ' 
ling. Says ha IS almost lUd with shams and veuiatioa. That he 



IS preparing t 
and R. I" < 

144-< 1,1. 
ter of ihU. 

14.'.-i 1. 



lulendant. Advise* C- 
IntendanL 
.October 13, llll^•'AI•t 

' l:l, 1 80j- Refers to biwi. 



isnyoul 1 ,1 y,„i fhoulil feel bairtlie turtnre 

ofmypri. I lo solicit fsvors. Hea\en*lho» 

humiliati, .V unused 1 have been to III How 

painful J., • • tijj, ha* keen my fate, when I 

thought III),- , ,1 ,111 ...„. .. 

H6-CUrk to I li.jw ai.<i Krif, October T, ICkJ- Reminds them 
nl the direction eiven by b.m fn.m Cooper's Ferry, abuut hn 
family and plantation, and limily affairs. 

147— Clark to Cliew and Itelf, Margate Ocu>brr 17, IMT.'— Refers 

to the displacement of Ciipluiii J( • from the ciilnniaiid <>t the 

Thomas WiUon. He wdl>ail li.r Orleans in the llrst ship <.f Mr. 
Coin's that may arrive. Begn i hem to hasten remittances, and 
sell every species of prtipertt ihal may tie urceasary to susUiii 
Coxe's crediL Says that their rre.lii, (chew and Relf,) had 
suffered vastly in Liverpool and London, Irom tbe frauds la 
cotton, and concludes "On >our exertion our szistsoc* de- 
pends; do not, therefore, suffer u* to perish." 

148— Clark to Chew and Relf— '.oudon, October 19, IMM— 
Refers to a conversation with Mr. Morgan from whom be learned 
that Spain objected to giving up I..oui»iana until France h.itl done 
what she promised. Mr. Morgan bad been iniruOui ed to tlie olfi. 
cei.i appointed for Louisiana — Laussat, Provincial Prelect; Gen. 
Victor. Commander inChief of the troops: and J. J Ayme. Tlia 
Fremh Government was determined u> uke possession of Louisi- 
ana, without regard to the opposition of the Court of Madrid. 
They talk of embarking, at the end of this month, 4,000 men 
for Louisiana Desires that these matters should be communi- 
cated confidently to Morales. Desires it to he kept a secret. 
Advises them to make what sales tliey can; hopes that the 
French will not embark as soon as they say. 

14i>-Clark to Chew and Relf— October M, 1602— Refers to the 
preparationof tlie French to take possession of Louisiana; dees 
not know how Uie province can sust«in so large a body of men; 
hearstbat Pilot has been introduced lo the Prefect, gives an in- 
lereatin' account of the political sUte of affairs in Europe; expects 
to sail for Orleans by Uie 20th of next month ; gives direction* 
about the sale of tbe ropewalk, and negroes, and ships, and to 
urge the collection of all their debts. 

150— Clark to Chew and Relf— London, Oct.'.*;, im:— Notes tbe 
arrivalof another cargo of damned bad cotton, aad blames them 
for shipping it ; says they must account Kir it to Coxe. Refers to 
some difficulties in clearing the vessel, and in a postscript, adds : 
•'It might be well to circulate the news of war— it must tend to 
raise your goods, and lower produce." 

IM— Clark to Chew and Relf. Paris, 16th Nov., IgOC- Leaves 
Paris to-morrow for London, and hopes in a lorlnigbtto embark 
at Liverpool for Orleans. Has been introduced to the French 
■ to govern Lonismna. and was well received hy 



ved by 
them. Tbe eiuedilion will shortly sail. The Adjutant (ieueral, 
a Lieut Colonn ami an Ensign accompany him (Clark) tu Eng- 
land, and will goout with him. May show this to Morales, but 
must not hint it to anybody else. Advises early remiitauces and 
sales of property. 

Jerome Derranoe to Daniel Clark. 

1.t2— From Jerome DeG range l.i Clark, datcl Bordenux, 24tb 
July, 1801— Writes in French, of his arrival in France, and the fa- 
vor shown to him by a friend of Mr. Cuew. Speaks ol specula- 
tiolu that might he nude by shipments to Bordeaux i desires hi* 
compliments to Mr. Chew. He then says, •'! take tbe liberty to 
inck.se a pacquel for my wife, which 1 wish you to deliver: per- 
mit me," he sajs, *'ta reiterate my demand upm tbe kindness 
proffered by you before my departure, that if my wife became 
embarrassed, yoc would aid her with your counsel.'* 

1 hope, before long, to be ready to return to my family. I expect 
that 1 shall return lo Bordeaux in two or three months, to 
terminate my affairs here and lo prepare to rejoin my friends. 1 



1 fear this affair will cost much money. 1 leave M. Bernard in 
cliargo of my other affairs. 1 have not heard from my wife, 
which givea me pain, as I hoped to hear from ber before I left 
for Provence. It is said there will be peace before Uie end of tbe 
year, but 1 fear Uiera is no such good luck. Hoping soon to bear 
from you, I am Tres affeclionne serviieuret ami. 

DbGRANGE. 
MlSCELLANEOrS LETTERS. 
1.13- Clark to Delacroix- 1st May, ISIO— Asking for his en 
dorsement of a note for «&O0O 

LVi— Mary G. Delji Roche, Phil, June 3. ISKV-Askii^ Clark 
to use his influence to induce William Har|>er tu do sometliii^ 
for hissister and berchildren. 

15i—Hulings to Clark, Phil., Sept, IRi:— Refers to family af- 
iairs; the embarraasmeot of CUrk's mother; Hull's disgrateful 
surrender. 

From the same, iSUh Oct Refers to RelPs presence there, aad 
the apoplectic fit of Clark's aunt 

l.W-Coxe to Clark. Phil.- 23d Dec. 1813— Is sgonixed atlha 
non povmenlof H.impton's dralts, and expresses bis fear in the 
TiH>st gloomy and dc-peraie Unguage : sees noprospert of relief. 

137— Hulings to Chirk, PhU.. 30U> Oct, 1 81 J— Informs C. of the 
death of his aunt, Mrs Jane Clark. 



yj 



THE GAINES CASE. 



Letters offeubd by Defendants. 



iSS— A longlelter signed by Coxe 


, in the handwriting of Chrk 


•i;itad Pliiladeiphia, Jan., 18, 180-: 


—Gives general instructions m 




r iMi^ine-a, and enters into a 


veri- elahnroti-tlet;urol tlifir -.r.r ■ 




159— Davnl i;r:.dlurJl.,i - 


i; Iv i;.v.m Sarah, Nov. 27 


1802— Says, lie Ii.f.ieceivei! i, 


tliey advice him o; 


Mr. ClarK- i;p;i:,rui.v fnr I. 1 


;!.., Mut.s, appointing them 


(Chewari::.' ; -;-r .;. 


-. and reiers to some accounts 



161- 



Hadelphia. March 8, 1802- 
■iiiladelfdi 



162— Clark to Clie.v and Keif, 
Acknowledges reieipt ol'lheirs, olMan. 21. Speaks of pu 
he has to iii.a.e for La Vergnes. Morales, and tlie Assessor. Kelers 
to the proljahility that France will not get Louisiana; and tlieun 
happy fate of St Domingo. Requests R. & C. to attend to his 
parents, and sendlhem on b.y ship. He will probably 'go to Eng- 
land and France, without delay, to push your business. Gives 
many directions about business. 

IfiS- Coie to Cuew and Relf, (per Spanish lady) Philadelph._, 
July .■?, 1802— Learned, the day before, thatthe schooner Eliza had 
uTrived in the Mississii pi, with Clark, at which he is rejoiced. 
Encloses two books, "The Suppression," and "The History of 
the late Administration." 

164— Coxe to Chew snd Relf, Philadelphia, July 
Speaks of his great embarrassments, and of his inability to accept 
any further lor theui. Blames them for the incautious cotton 
purchases, and gives directions for the future, 

165— Clark to Chew and Relf, Philadelphia, Feb. 18. 1802 Re- 
turned three or four days from Washington, where he saw the 
President and oflicers of Government. There seem to be no 
doubt that France is to have Louisiana ; they must prepare for 
It. Fears that he will be requested to go back shortly. Asks 
them to forward information respecting the sentiments of the 
rieople, and deny to his creditors, that they have any property of 
liis in their hand.s. 

166^0o.\e to Clark, Philadelphia, December 23d, 1802. Is hap- 
py to hear that peaceable possession will be taken of Orleans; 
speaks of tne condition ol his affairs being much better than re- 
presented ; refers to business affairs : says that Venelle will not 
be your Governor, but Gen. Dearborn or Governor Claiborne will, 
"either of which would be infamous appointments." He adds . • 
"The tide of emigration to Louisiana is running strong, and you 
may expect to see in its train half the bankrupts, scoundrels and 
fortune seekers in the United States. Beware, therefore, of the 
arts and knavery of many able men of talent, who will visit that 
country. Edward Livingston, of New York, late mayor of that 
city, and district attorney, a man of lost reputation and fortune, 
though of excellent abilities as a lawyer, sails for Orleans in afew 
days. He is a very sanguine speculator, and more likely to en- 
deavor to link himself with you than any one I know. 

"You may make himuseful, but never confide in*im. He pos- 
sesses much plausibility, and will get into favor at Orleans, and 
may possibly hope for political preferment, though, having been 
lately dismissed from the otlice of district attorney for misappli- 
cation, 'tis said, of public money, he cannot be in favorwiththe 
cabinet." 

167— Clark to Chew and Relf, Cooper's Ferry, July 29th, 1802— 
Notes his arrival within sight of Philadelphia, (but does not enter) 
after eighteen days passage. Refers to cotton frauds which will 
compel him to embark for Europe without seeing his parents. 
He says: "Eternal damnation could only surpass the sufferings 
of mind and body, which I must bear, when 1 thought it was al- 
most out of the power of fortune to put me an inch out of my road. 
Ihave madeup my mind and will sail this week before my quar- 
antine is over.'' Will travel through Europe to aid Chew and 
Relf's credit: gives directions about shipments to England, which, 
if they cannot be done in Ainerican bottoms must be disguised as 
formerly; if not to England, make shipments to Havana, under 
Spani-*h colors, putting some Spaiii-*h sailors aboard; refers to a 
cargo to theiraddress. which he told the sliipperhe might find the 
portshut.htit that yon (Chew and Helf) will find means of having 
the dry goods, il' not e\en the wines and brandy, landed at Natc/tez, 
us the A'a/l'.t■^;i.? <i/](t sii/cSy2'er Eliza, loUh very little costs ; gives 
many business directions. 

168— Coxe to Chew and Relf, partly in the hand writing of 
Clark, Phila., 30th March, 1802— Refers to many aliairs of the 
joint concern. Makes the following suggestion ol back-door influ- 
ence in the Customhouse ol New Orleans: "Should the port be 
shut, you must use your influence with the intendant to gi\'e joii 
leave to load the vessels you may ha^'e consigned to mm ,,,,.,. i,, 

getall the produce you have on liamt slii]i|.eil. 1 ' r ' ■■ ri 

contemplation to send you baik the S'.].iii:i, will, : 

China and India goods, in hopes she will arn\< . , ,, 

importatiuiis from hence are jin-venleil, ami .i- li,- -■ tl i j- 

Terms fri 'i .1 ; t i li.pes that they ma>^ answer, and 

serve >ni. : i ' ii,is year. For fear the port 

should lir- .,,;.: ,,i :;.,!; I ,, .^, 1 willhave the major part of 

these arm i-, pi ■ 'mi in I.h;,./ h^iii rusks, that if you are forced to 
ont.r ii.B.n liir .Jcposit yoii iMiy afterwards take out the contents, 
y, supply the place of it with earthenware, which 
at Natchez. In this case, I recommend to you, if 

, the keys of 



which you most get into your possession, and of which you know 
by experience the use that a friend of ours was accustomed to 
make." 

169- Clark to Chew and Relf, New Y'ork, 17th August, 1802- 
He will embark to-mortow in the ship Lydia for Greenock, and 
will either stay in England some time, or return immediately, ac- 
cordingly as he finds things ; urges them to exert themselves to 
support Mr. Coxe's credit, &c.. &c. Notes the presence ol three 



-h fri! 



, with 



and, if necessary 



oferobarkingatGui -; ' ■, ; ,-- ;.. inDe of the ceded 

islands, they carrii-.! I . i lie .'Spaniards at 

Carthagena. Thev ■ ■ i: ive lome here in 

distress. Theyba'--: . ..: .nJ the negroes 

here; warns them ag !.' - , ... J.,,:.iana. Advices 

have arrived that the Eni|ieior of Morocco has declared war 
against us, and two of our merchantmen have been taken by the 
Tripolitans. 

170— Coxe to Clark, (unknovs-n.) Philadelphia.INov. 18. 1803— 
Thinks that no part of West Florida has been ceded to France by 
Spain, and that if negotiation takes place, as it is said to be the 
case, all the acts of the Government must be valid. 

"Spain promises to cede to France, after the entire execution 
of the conditions relative to the Duke of Porsue, the province of 
Louisiana, with the same extent it ?ioit' /las inthe hands of Spain, 
and that it had when France possessed it, and such as it should 
be afler tue treaties subsequently entered into between Spain and 
othei- stttes.'*^ And 1st, 'tis notorious that Louisiana, as now 
pojsei'set/ by Spain, does not comprise West Florida. 2d. Bj' a 
clear inference from, and interpretation of the words "as when 
France possessed it," they are merely part of an explanatory 
clause, which received its final and complete elucidation from 
the /as< part of the sentence, viz.: and such as it should be after 
the treaties subsequently entered into between Spain and other 
States." Here let us inquire, what are the treaties and what 
the States here alluded to, which define what should constitute 
the remaining or future territory of Louisiana, seeing that some 
part of it had, by these treaties, been lopped off, and ceded to 
other powers. The answer is clear and unequivocal, that these 
treaties are: 1st. That every treaty of 1763, to which France 
and Spain are both parties, and which cedes to Great Britain 
all the country east and south east of the Mississippi. 2d. The 
treaty of 1783, by which England recedes to Spain, or acknow- 
ledges her right by conquest, of the twt> Floriaas. 3d. The 
treaty of San Lorenzo, in 179-'), by which the southern bound- 
ary of the United States is defined. Louisiana is, therefore, and 
should be, to use the words of the treaty, the country west of 
the Mississippi, including the island of N. Orleans- The Prince 
of Peace, when applied to by Mr. Pinckney. at the request of 
Messrs. Monroe and Livingston, to know whether the Court of 
Spain did not acknowledge the claim of France to West Flo- 
rida, replied peitishly, "You may as well ask me if my shirt 
is yours," and treated the question w.th contempt and anger. 

He is, therefore, easy as to the validity of our Baton Rouge 
grant; imagines thatthe partof Louisi.ina. far West of the river 
Mississippi, will be the boon we shall oti'er. and give in exchange 
for the Floridas; advices them to buy 90.000 more acres of the 
Baton Rouge grant. Thinks that the leading points inthe remon 
strance of Spain against the cession of Louisiana on the unfounded 
claim of France to the Floridas; and the non-fulfillment of ane- 
gotiation made by France, He does not believe our Government 
will prohibit or encourage the importation of slaves; if they dp 
they may evade it as at Charleston, where in spite of prohibiting 
state laws, they are landed oti' Ch?rlesten bar hy ship loads. Ha 
says, "1 therefore strongly advi-e your immediately writing 
Green & W. to contract with some Guinea house for the delive- 
ry of a cargo or two of the proper kind at NewOrleans, or on the 
river helow, restrirting them to such prices as can be aflbrded. — 
If he has any scruples about this biisines.s. advise him to carryit 
on under the name ofChew and Relf. It is a necessary branch of 

safest, and will prevent what you seem to tear, any odium attach- 
ing to it, as it will be the act of others, a'nddone in foreign vessels. 
The same ships which brought them could be loaded with cotton 
for Liverpool, and the proceeds applied by G. &. W. to pa\- for the 
slaves. You might safely venture to order 1000 to be sent and 
that done, our fortunes would be made, and we might quit trade 

—Clark to Chew and Relf, Philadelphia, 29 March, 1802— 
Expresses thanks for their kindness to his fimily, as well to 
Chew and Relf. as to his other friends. Mr. Coxe went out of towu 
yesterday, and will be back in a few davs. 

172- Letter of a committee. New Orleans, 5th Aug., 1830, to 

sverly Chew, signed Thos. Urquhart, Wm. Nott. J. Henderson, 

H. Shepherd, J. Linton, L. Miliauuon, presenting hits with a 

rviceofplate, in testimony of his fidelity as collector. 

173- S. Jaudon, Cashier of Bank of U.S., New Orleans, Nov. 

-'i, 1831, to Beverley Chew— Endorses the resolutions expressing 

ilie hiirh opinion of the Board of the Bank of the ability of his 

(Chew's) administration of iU aBairs. 

GENER.4.L Gaines' Lettkr, offering Compromi- 
ses.— Complainant also filed the following, as referred 
to in the cross-examination of -Mr. Patterson : 
To the purchasers and present claimants of the Estate 
of the lata Daniel, Gark-,E?,g, 

Notice is hereby g iven to the purcuasera aiid present 
claimants of the es.aleb deTJswl by the late Daniel 



THE GAINES CASE. 



33 



Clark, V^H; of Iho city of Now Orleuns, to his only 
iliiiiKlitor, Myra Clark, (tho wifo of tlio undiTaignetl,) 
or such parts of Iho »aul oitale as wi'ro tukuii poss<-»- 
bioii of and lawlessly sold by Kichanl Rolf and Itovorly 
Chew, the pn-tcndod executors of the saitl Daniel 
Clark, that having' uscertnincd that the said Relf and 
Chew, with their copartner or counsel, L. C. Duncan 
and others, have been endeavoring to deceive and 
tieludo the said purchasers and claimants with the 
false impression that the claim of RIyra Clark has been 
ilefoated in the Courts of the State of Louisiana, and 
that the undersii,'ned and his wife are unwilling to 
como to trial in the Circuit Court of the Unitetl States — 
In order, therefore, to giuad the said purchasers and 
claimiuits from further imposition, imd to enable thorn 
to see through the veil behind which the swindlers 
are contriving their own escape from the infamy which 
they well know awaits them, the undersigned takes 
this metho<l of assiu-ing the said purchasers and claim 
ants that no decision or trial upon his wife's claim has 
ever taken place in any of the State Courts — that she 
was twenty-four years of age before she was advised 
of her being the daughter and heiress of her deceased 
father, Daniel Clark, who departed this life before she 
was seven years of age. As soon as possible, alter 
being advised of the nature of her claim, proceedings 
were instituted in the Probate Court of New Orleans. 
Previously to the day of liial, however, she had the 
good fortime to learn that a quorum of the Judges of 
the Supreme Court of the State had purchased valua 
ble portions of the estate in question, and were, con.se- 
quently, disqualifled to sit in judgment in her cause. 
Inasmuch as the defendants would have appealed to 
the Supreme Court, when defeated in the Court of 
Probate, her only alternative was to bring the suit in 
Chancery now pending in the Circuit Court of the 
United States. 

The imdersigned, therefore, acting in accordance 
with the wishes of his wife, who has constantly de- 
sired only to have a speedy trial before an impartial 
tribiuial, and to the worst of her adversaries she would 
most willingly '■'■ return good fm- evU,'"— even to those 
who have publicly denounced her as an imposlcr — and 
bemg anxious, as she has constantly been, to put it in 
the power of her calumniators to meet her before an 
impartial tribunal, ;as she knows the Supreme Court 
of the United States to be) by whoso decision she will 
cheerfully abide. To prove the sincerity of these de- 
clarations, she is willing to make a liberal deduction 
in favor of all the piu-chasers who will, without further 
delay, come to trial at the present term of the Circiut 
Court of the United States. Cordially concurring in 
these just and benevolent views and wishes, the un- 
dersigned and his wife make to the claimants afore- 
said the propositions which follow : 

Ist. To any one of the piu-chasers and present claim- 
ants aforesaid who will forthwith answer our Bill, and 
otherwise do whatever may be necesimry and proper 
to meet us in fair trial in Chancer)-, without any fur- 
ther attempt to delay, we will make a deduction of 25 
per centum in the amount of which we may uliiraato- 
ly be entitled from such person or persons, should the 
fhial decision be in our favor. 

Cd. To any of the siiid piu-chjiscrs .and present claim- 
ants who may, before Uio 22d instmit, desire a com- 
promise, and la^e the necessary steps to render the 
compromise effectual, we will nuike a deduction of .SO 
E 



per cent In the amount of that part of the c«itate held 
by such cUiimant or claimants. 

The aforesaid piutlhasors and present cloimuitB ar« 
respectfully udviiied to wparato themselves trom Iho 
lawless executors and their co-partnors in guilt, and 
takecoun.-el of men who have ni> inter<«t in shielding 
these high-hand. <l robbers from condign punishmunl, 
as it must be obvioiwtoall such purchajoTs and pres- 
ent claimants that they will be greatly boneililed, and 
in no possible event injured, by availing Ihemaelves 
of the above liberal propositions; to those who reject 
or disregard them, it is the painful duty of the under- 
signed to say, that no other effort on his part will b>3 
made to effect a compromise. 

EDMUND P. GAINES, 
for himself and his wife, M>Ta C. Raines. 

JVew Orleans, AprU 14th, 1640. 

Referred to by Mr. Patterson, in his croes-examlna- 
tion, 'JOth Julie, 1849. J. W. GURLEY, Com. 

Introduced by complainant. GURLEY. 

New Orleans, La., May 11, 1848. 

Charlks Patterson, Esq.— Sir— A final decree 
having been rendered by the Supreme Court, the high- 
est judicial tribunal in the United States, settling for- 
ever in favor of the undersigned, heir at law, the pain- 
ful controversy with you ; and believing, as we do, that 
you have acted in strict accordimw with the sacred 
principles of eqiity and jistice— and tbat^ in deter- 
mining to meet us upon the merits of th* case, you 
have incurred the displeasure of many of the Uiwleas 
holders of the estate for so many years withheld from 
us, we take this occasion to assure you that we regard 
your long and strenuous opposition, and that of your 
counsel, though otten of a character ver>- harrassing to 
us, as imder all the circumstances of the case, unavoid- 
able, and perhaps, essential to faciUtate the full and 
perfect establishment of our rights upon a firm basis 
without some years more of acrimonious controversy. 

Our rights being now eslablisheil beyond the reach 
of mortal litigaUon, we freely and voluntarily assiu^ 
you of our determination to guard you and your heirs 
from every expense or loss that may attend the result of 
our late controversy. 

With great respect your ob't serv'ts, 
EDMUND P. GAINES, 
MYRA CL.-VRK GAINES. 

Complainant also filed the Epitaph of Daniel Clark, 
as follows : 

Hie IHS Jacet 

DANIEL CLARK 

SIpfone in Bib«nu& oatua. 

a Puerro Louisianir in cola 

in hac ciTiute, 

dum sub Hiflpani& dictione esaet, 

Federatorum Statuum Consul 

propter prvclaraa Virtulea 

Rennnriatun, 
dein, Aurelianrnaia Apt 
populariura unanimi vote 

primus Genti, Amerii 
conailio, D«l«jp(tus i 
aniplas at sine mact 
Cougestas Ope«, 
in egrntium pmfudit neo 
liberal itjite tamen factna ditior 
Obiit bonia omnibus drbilis 
Aueusti.XVI, a. ». HDCCCXIIl 
Alalia Sun .XLVn 



THE GAINES CASE. 



Clark's Will of 1811. 

The following is tlie will of 1811, under which de- 
fendants sold, and was admitted to probate : 
State of Louisiana, Parish of Orleans, Court of Pro- 
bates—Office of the Reffister of JVills. 
Ne Varietur. (Signed,) Js. Pitot, Judge. 

In the name of God, Amen. 

1, Daniel Clark, of New Orleans, do make tliis my 
last will and testament. I 

Imprimis : I order that all my just debts be paid. 

Second: I leave and bequeath unto my mother, 
Mai-y Clark, now of Germanic wn, in the State of Penn- 
sylvania, all the estate, whether real or personal, which 
I may die possessed of. 

Third : I hereby nominate and appouit my friends, 
Uichard Keif and Beverly Chew, my executors, with 
power to settle every thing relating to my estate. 

New Orleans, 20th May, 1811. 

(Signed) Daniel Clark. 

Ne Varietui-. (Signed) Js. Pitot, Judge. 

Defendants offer a statement of letters on file in the 
Department of State, at Washington, from Daniel 
Clark, Consul of the Uiiited States, showing to whom 
they are addressed, from what place, the mouth, day 
of the month, and year. 

These letters are addressed to James Madison, Elijah 
Gushing, Governor Claiborne, Brigadier General Wil- 
kinson, Fulivar Skipwith, Don Andi-ew Lopez de Ar- 
mento, Albert Gallatin, Don Manuel Salcedo. 

With the exception of one, dated the River Mersey, 
December, 1802, all these letters are from New Or- 
leans, during tiie months of June and December, 1802, 
and March, April, May, June, July, August, Septem 
ber, October, November, December, 1803, and Januaiy 
42, 1804. 

THE ARGtJMENT. 

The testimony being closed, it was agreed by the 
Counsel, that three gentlemen on each side should ad 
dress the Court, to wit : Messrs. Wright, Campbell and 
Grymes, for the plaintiffs, and Preston, Duncan and 
Myles Taylor, for the defence. 

As an accommodation to Colonel Preston, who is a 
member of the Legislatm-e, and was desirous of return- 
ing to his public duties at Baton Rouge, he was allowed 
to addi'ess the Court before complainant's counsel 
opened. His speech was therefore the first deUvered 
in the case, but, as it is more in order, we produce it 
after Mr. Wright's opening. 

ARGUMENT OF P. C. WRIGHT, FOR COMPLAINANT. 

Matj it please the Court : Complainant claims to be 
the only legitimate child and heir at law of Daniel 
Clark, born in lawful wedlock of said Clark with 
Zulime, n6e Carriere, about 180G, and entitled to 
her legitime, or four-fifths of his succession as forced 
heir. 

Sketches the history of Daniel Clai-k, his birth of 
L-ish pai-entage, his arrival here in his minority, about 
1787, to live with his imcle, whose ample fortune he 
inherited. He entered largely into mercantile pui'suits. 
His enterprise, his pride, and chivalry of character, 
patriotism and philanthropy— his influence in political 
affaus— are dwelt upon. His pride, however, inflicted 
the wounds under which his daughter now writhes. 

Sketches the history of Znlime Carriere, a creole of 
Louisiana, of French ])arentage, distinguished for 
beauty, of respectable family, fully the peer of Daniel 
Oark. At the age of 13, married to Jerome DeGrange, 



who had wickedly imposed himself upon her, being 
preWously married. Intimacy arose between her and 
Clai-kin 1801 ; during which year DeGrange sailed from 
New Orleans to Bordeaux. On return, DeGrange 
is charged with bigamy. Clark believed the charge 
against DeGrange, and proposed marriage with Zulime. 
She goes to the North with Madame Despau to procm-e 
proof of the former mai-riage of DeGrange, and arrived 
at Philadelphia in the autum of 1801, or spring of 1802, 
meets Gardette, who informs her that he was 
present at DeGrange's former maniage. Clark then 
claimed that she, Zulime, no longer had any reason to 
efnse being married to him : they were accordingly 
married, agreeably to the forms in Pennsylvania. The 
marriage was to be kept secret until that with De- 
Grange was anniUled. Zulime came to New Orleaus 
have such marriage annulled. Clark at the samn 
time went to Evuope. DeGrange was prosecuted, con- 
victed of bigamy, and fled the country. Clark and 
Zulime cohabit as man and wife, but the marriage was 
kept secret, in 1806, Zidime, at Clark's suggestion, 
brings a suit against the name of DeGrange. Judg- 
ment of divorce is rendered. But Clai-k still postpones 
the promulgation — not a solitary instance of a repre- 
hensible weakness. In 1809, Clark was a delegate in 
Congress. It was then reported that he had addressed 
Miss Caton, of Maryland. This rumor caused Zulime 
much distress. She went to Philadelphia to get proof 
of her marriage ; but not succeeding, and believing 
that it was impossible to establish her mai-riage, she 
concluded to marry Dr. Gard^t^, with whom she 
lived until his death, in 1833. Complainant, sole off- 
spring of this marriage, was born in New Orleans 
about the year 1806, and was placed with Colonel 
Davis. She remained in the family of Davis, and was 
educated, in ignorance of her parentage, imtil 1832 or 
'33, when it was disclosed to h^r by Davis himself. 
All the witnesses concur in representing Clark as 
warmly attached to Myra, and taking a great interest 
in her education. In 1811, Clark being about to leave 
for Philadelphia, made his will in favor of his mother, 
creating Relf and Chew his executors. He conveyed 
a large amount of property to Davis, Bellechasse, and 
Delacroix, for the benefit of Myra. On his return, he 
received this property back, with the exception of 
about $4,000, which was to be appropriated to the 
education of Myra. At this period Clark began to 
bring his extensive commercial enterprises and specu- 
lations to a close, preparatory to that retirement and 
enjoyment of his collossal fortune, which he seems to 
have long anticipated, and most ardently desired. He 
feels, however, the greatest anguish and solicitude for 
the daughter of the ill-used Zulime, and he resolves to 
devote the residue of his life to repau-ing the injustice 
lie has done her. In 1813, he made a will, revoking 
that of 1811, declaring the circumstances of his mar- 
riage, the legitimacy of Myra, and creating her his 
heir. But this will was never permitted to see the 
light. It was carefully concealed from Myra. In 1832, 
circumstances transpired in the family of Samuel B. 
Davis, which resulted in disclosing to Myra the secret 
of her birth and wrongs — so long kept from her by 
the avarice and cupidity of the defendants. 

To ascertain the true position of plaintiff, the follow- 
ing points present themselves : 

1st. Did Daniel Clai'k and Zulime Carriere enter into 
and consummate the raan-iage contract? If so, at 



THE GAINES GA8E. 



3i 



what timo aud place, and were thcv, each of thum, in Twiot it Itas guiio to Uie Supremo Court on mere que»- 
the cnpiiclty. Icijnliy, to perform that net, luul in the ijons i.C pnu-tico, uml tJio dwisfoua were rnvurable U» 



comiilainnnt tin' 
nfflnnnti 

follow- I 



oatutis iKilv. nil 
mortis, to the cunCrnrv 

3d. TIml if Daniel liiirk (li> 
ment, disiH>8t> of aiiv more of 



IS|H>8t> Ot II 

ttie "ili.<i 



.ole hM,„. of that ninrriaso V |f the 1 t|,o co..MS.'iu.L';i. Tlie tl.ini li.uo it went ,ip "n « car 

;-.M,ropo,il>o». 1.0 Mmwn, then there I ^.^^^^^ ,'r,iivi«ion of opinio.. u,x.n demurrer. Tho de- 

I .-tiilted to complainant upon tlio | nuirrer was overruliHl, but the Bill wai direclt-«l to be 

., u|H>M his iliiiih V Tlio law an- 1 amended in two particular-: (1) that Caroline Bornets a 

lii't it ilei !:irt^ one of ihoso riv'l\t.'< Ui<atco in tlio KpoliaKHl will of 1813, was not a nece*- 

. .iiul enjoyment of four-linhs of that , ^r proi>er parly to establish that will ; (••> ll.al tl..- 

■ului^'aiiydiHpo^ili.in thereof, causa ' ' ' ,,! ,,., ., ,,».„ „.i,i -.>• i-ri ^ >.,!,( 

- .results executors, Rell and Chew, of the will ol 1^11, conlil 

iLsi will luid testa- 1 ""' ^f> callwl to account in the iMimo Bill with the terre 
inellllh temtnls, the other defeiidanfH in the Bill. All parlies 



•>> 



part, or the "di.<posal)le portion," such ilispo.xition 1 who had appeared in the suit except ChjirloR Palter«on, 

,"1111!^ fhi?. ^"r'^ " r o*"'"'"''' ""," •'""■'i"!': "I '■!'"1«'^*»'*' ' joined in that demurr.r. This was in ■l&44. The Bill 
npon the /('i'i//mr of the oomp ainanl, his heir; but as I , , ,. . i , ,. a w „<'„.., i n.,, 

tJ the remainder, ordisposable qunnlnm, it mn^t stand, 1 *"« amended ius d.rect.M by the Supreme Court. But 
nnlesswehaveshownthat the will was lei^illy revoked the delendanla aicain s«'t up the same demurren'. In 
by asubse»pi('nt will, whichhiid been wiluwfuUy sup-i ISIO, Mr. Tiitterson, from huulable conxiderntiow, 
pre«?odjir destroyed. _ _ I withdrew his demurrer and his dilatory exceptions, and 



4th. Did the acts of Rplf and Chew, in dispooin? of ^ ^^i tj,e ^^^0 upon iU merits. His case came to trial 
present holders ther!" f! l^a^^'^;:^^^ I '" >ray, U^O, and a decree was rendered in favor of 



the properly found In rinrk'i 



itle, i 



those from or through whom they derived their 
any right or title whatsoever Uiereto, beyond the 
flflh, or the disposable portion tiiercof. 

5lh. Can the defendanls. the In 
claim the equilahle 
chasers and holders in simhI faith, without notice 

6th. Have the defendants acquired a right by pre- 
Bcription against complainant? 

7th. In what manner is the /(-o-itimfof the complain- 
.nnl in the siKo—^i.m of Daniel Clark to bo estlinatiHl 
and awnrile<| to her? 

«Jlh. Is this Court competent to afford the relief 
prayed for— that is to say, to p-ant to her Uie lifriti 



complainant apminst Patterson. On appeal, the Su- 
preme Court, in 1848, modified this decision by decree- 
in? to complainant the li-^itime of the property, re- 
tmnnts in this suit. [ venues, etc., and declaring her statu.t and dctininp her 



particular. From 1845 until 1848, this ca«e stood nt 
rest in this Court. It was then determined to answer 
the Bill, regardine the points decidi^l in the demurrer' 
in 1845, and limiting complainant's claim to that of 
forced heir, regarding the will of 1813, only as a decla- 
ration by Clark, of the validity of the marriage, ami 



of her father's estate, in kind, m whosoever hmids it' the lojitimncy of Myra. The case now stands on this 
may be found? I amended Bill. New parties have been brought in by 

I. The fact of marriage is proved by the witnesses, revivors. The answers to the original Bill are allowed, 
Mesdaraes Despau and Caillavet. It took place in the "X con^C'"^ «» ^^'^ "^""'^^ tins Bdl. \\o are now 
spriui; of 180-2, in Philadelphia, where the paities had here for a full bearing upon the pleadmgs and proofs, 
gone to remove a certain obstacle to their marriage, ' '^'"' """"^' '»'"^"''"1 '" ""^ P'itterson case are as fol- 
which was done. Numerous witnesses to the paternity 
stand uncontradicted, as well as those to the marriage. 



Clark acted towards, ami spoke of her as his legitimate 
child, lie so recoicnizcd her in his will of 1813, which 
we do not set up as a devise, to claim tmder it, but 
claim the bt>netits of it as a solemn dt-claration by Clark 
of one true relative to him. The other points have been 
already determined by this Court, smd affirmed by the 
Supreme Court. 

HISTORY OF THIS SUIT. 

Sometime about the year 1832, complainant dis- 
covered the secret of her birth. About this time she 
married William Wallace Whitney, son of General 
Joshua Whitney, of New York, one of the most promi- 
nent and worthy men of that State. Having leiuiied 
the facts of her histor)- from her foster-father, Davis, 
she came to New Orleans, and set on foot a prost^u- 
tion against Uelf and Chew, and others, in the State 
Courts, claiming in the sole capacity of instituted »mi- 
versBl heir of Clark, by the spoliated will of 1813. She 
was iuduceil to suspend her proceedings in the State 
Courts, by iliscovering that even the highest judicial 
tribunals of the State coiUd not prescri e their ermine 
unsullied.by the frauds which b.id plundered her birth- 
rights; two of the Judges having purchased, for a 
small sum, property of the estate of Clark, worth 
thousands, and influenced by the combination of 
wealth and power arrayed nirainst her. She then, in 
1836, filed her Bill on the Equity side of this Court. 
The difficulties here are all known to the Court. 



The points decided in the Patterson case are 
lows : first, that this is not a cise to go before a jury in 
a trial of le'.,'itlinacy of Mrs. Gaines ; second, that this 
Court, as a Court of Equity, had jurisdiction of the 
case as to all the defendants now before it ; third, that 
I the marriage of D. Clark, with Ztilime. nto Carriere, 
took place at Philadelphia, and that said marriage was 
valid ; fourth, that Mrs. Gaines was the legitimate off- 
spring and issue of that marriage ; (Iftb. tliat the pre- 
vious marriasre of Ztdiine and Detlrange was void by the 
laws of Louisiana and Pennsylvania, that the burden 
of proof lies upon those who make objections to the 
validity of the second marriage— it is not necessary for 
complainant to produce the record of the bigamy; 
sixth, when a marriage is proved, the presumption of 
the law of the land is in favor of the legitimacy of the 
child born of said marriage, and it will be incumbent 
in him who denies it to disprove it ; seventh. Ihat the 
prior marriage of DeGrange is proved : eighth, that 
the sales of property, by which defendanU Patterson, 
derived his title, were made without authority,judiclal, 
or olherw ise : ninth, that defendants knew the sales 
were from Relf and Oiew, made in a representative 
character, and were bound to inquire if such character 
were leaal; tenth, that the plea of prescription is not 
applicible; that the time allowed by the statute, when 
this suit was brought, determine the rieht of the party, 
and that time has not expired ; eleventh, Mrs. Gaines, 
as forced heir, is entitled to such a portion of her 
estates, as her father could not deprive her of. either 
by donations intrr rirof or mnrtis rnvsa ; the will of 
1811 is not null, but redndble to the disposable qiian- 



36 



THE GAINES CASE. 



turn of the estate ; twelfth, according to the 29th article 
of the Civil Code, chapter 3, section 2 of the code of 
1808, the disposable quantum would be one-flfthof the 
ag!?i-egate of the property of the decedent in Louis- 
iana ; the legitime four-flfths. 

Thus far, the status rights and equities of complain- 
ant are determined and established beyond dispute. 

The defendants are precisely in Patterson's posilion, 
except in one single particular, that Relf and Chew 
aUege they were copartners of Clark, entitled to 
one-thii-d of his property, and consequently that com- 
plainant's legitime must be restricted to one-thu'd. The 
same evidence upon which Patterson's case was adju 
dicated is contained in the record in this case. Three 
of the witnesses,(Despau, Caillavet and Mr. S. B. Davis,) 
have been reexamined, and testify again to the same 
facts, substantially. (Here follows a recapitulation of 
the depositions, and the letters relied on by plaintiff, 
all of which have been noted before.) 

Defendants have introduced more than forty wit- 
nesses to prove that Clark was of high standing, and 
to prove his celibacy. Two other witnesses, Mrs. 
Wood and Mrs. Stanai-d, also infer this negative of his 
man-iage from some certain acts and words of ordinaiy 
gallantry. (Here follows an enumeration of the proofs 
of defendants.) 

The following points are established by the proofs : 

I— Daniel Clark and Zulime Carriere, at the time of 
their marriage, as charged in the bill of complaint, 
were both of them legally competent to contract mar- 
riage. 

The marriage being proved, the law presumes it to 
have been valid. The proof of an impediment or in- 
capacity is thrown upon defendants. This is deter- 
mmed in the Patterson case. 

That Jerome DeGrange and Zulirae Carriere were 
married ;>ro/orma, is admitted by us. Had he the legal 
capacity to contract such a marriage? Defendants 
maintain that he had, and introduce various proofs : 1. 
DeGrange's application for a license, his oath of his ca- 
pacity to marry, his license and marriage, according to 
the riUes of the Catholic church. 2. The proceedings 
of an ecclesiastical investigation into DeGrange's al- 
leged bigamy, and his acquittal. 

We have opposed to these, (1) certificate of mar- 
riage of DeGrange with Bai-bara M. Orsi, by Rev. G. V. 
O'Brien, in New York, 6th July, 1790, in presence of 
three witnesses, who sign the same ; the testimony of 
the following witnesses, Mesdames Despau, Caillavet, 
Benguerelle, Alpunte, for complainant ; of L. Caval- 
lier and Jean Canon, witnesses for defendants. This is 
all that is known of DeGrange. Such men are soon 
forgotten, except by those who have good cause to hold 
in moiu-nful remembrance his bold and infamous de- 
ception. 

The competency of the Spanisli ecclesiastical record 
as proof, is denied. Who are the parties to it ? Bar- 
bara M. Zembell d'Orsi, the same who was mai-ried to 
DeGrange, in New York, in 1790. Her evidence is un- 
worthy of belief. Though she says she told the truth, 
even if she swore falsely, she could not be punished for 
perjury. The second witness, Maria YUar, is also im- 
pugned. The third witness desei-ves our sympathy 
and commiseration. She is Maria Julia Carriere ; she 
beholds him in whom her heart had fondly trusted — to 
whom she had pUghted bor solemn vows, with all the 
young ardor of new-born love ; the father of her chil- 



di-en, airaigned for a crime whose lightest penalty 
would tear him from her side, imworthy as he was, and 
consign him to the hard fate of a galley slave for life. 
WeU might she dissemble and stifle every conviction 
of his guilt. She had no cause of fear or apprehen- 
sion, had she known that she was only required ioplay 
her part in a pleasant farce ! Gerouimo DeGrange is al- 
lowed to prove his own innocence. All these par- 
ties were strongly interested — prompted by the strong- 
est motives to conceal the truth; their reputations re- 
quii-ed it. 

II. Clark and Zulime were manied in Philadelphia, 
according to the forms and solemnities recognized 
there sometime about the latter part of 1801, or early 
part of 1802. The precise point of time is not so ma- 
terial as the fact. The Supreme Coui-t in Patterson's 
case fixed date in 1803, This sccounts for the efforts of 
defendants, by numerous proofs and letters, to prove 
that Clark was not in Philadelphia in 1803. Madame 
Despau thinks marriage took place in 1803, from certain 
associations; it may have been in 1802; her impression 
is that it was in 1803. It was shortly previous to 
Clark's departure for Europe. Madame Caillavet says, 
'it is her personal knowledge that Mr. Clai-k proposed 
to her sister about the year 1802 or 1803. Zulime 
went north to get proof of the previous mai-riaee of De 
Grange; whilst there, Madame Caillavet received a let- 
ter from Zulime, saying that she and Clark were mar- 
ried. Here is positive proof, which must dispense 
with the necessity of proving that Clark and Zulime 
wei'e in Philadelphia in 1803. As to precise dates, 
witnesses are usually cautious and hesitating; not so 
as to facts. The voyage of Clark to Em-ope is a con- 
spicuous fact; it took place in August, 1802. (Vide 
letter of Clark to Chew and Relf, dated August 17, 
1802.) He went there on account of certain frauds in 
packing cotton, shipped by him. The first communi- 
cation to Coxe of these frauds, by his advices from Eu- 
rope, is made in March, 1802. On the 1st AprU, 1802, 
Coxe writes to Chew and Relf of these frauds. On the 
7th April, 1802, Coxe writes to have the parlies ex- 
posed connected with the fraudulent packing. The 
third letter, on same subject, July 9th, 1803, written af- 
ter Clark had left New Orleans for Philadelphia, but 
before his arrival there. On the 3d July, 1803, Coxe 
writes that he heard the schooner Eliza had arrived in 
the Mississippi with Mr. C, and he expresses his relief 
for his early arrival. Coxe's letter to Chew and Relf, 
22d AprU, 1802, says: "The schooher Eliza, on boai'd 
which Mr. Clark has taken passage, goes to-morrow 
morning for your port." Tlius is seen Oie precise date 
of Clark's departm-e for Philadelphia, and neariy the 
time of his ai-rival in New Orleans. While in Phila- 
delphia, in the spring of 1802, Clark had proposed go- 
ing to Europe, but not upon the emergency which sent 
him there soon after. He wrote to Relf and Chew, 
Philadelphia, 14th March, 1802, in appai-ently good 
spirits, and says: "I will probably go to England and 
France, without delay, to push yom- business." The 
first communication from Clark to Chew and Relf, on 
the subject of his hasty departure for Europe, and the 
cause of it, is dated Cooper's Fen-y, 20th July, 1802, in 
which he refers to the necessity of departing for Eu- 
rope in consequence of the damnable fra\ids referred 
to. 

Now let us see what were the movements of Clark 
from the 1st November, 1801. to liis departure from. 



THE GAINES CASE. 



37 



rbiliulolphin to Now Orleans In April, 1802, prior to his 
goiiiu to Kiiropi' ill AiiijiiMl of timtyeiir. On Iho llUh 
Oct<il.iT, mn, I'lark fxi'cutiHl n powor of Attorney to 
Chew iind Rulf. On tlio 'JOtli October, ho flleil in the 
w\ine ofliw a power of attorney IVom c;oxe. No other 
ilocuinent is found, until 4th Miircli, 1H03, after his «!- 
turn IVora Europe. A letter from David Bradford, 
nayou Sara, Not. 27, 1801, to Chew and Rolf, acknowl- 
edging the receipt of their favor of 7th instant, in which 
ho says, "you advise me of Mr. Clark's departure for 
the United States." Again, a letter from Coxe to 
Chew and Relf, written by Clark, of date Thiladelphia, 
18lh January, 1802, referring to Wark's arrival, and 
their business arrangements, says that due attention 
will be given to their (Chew mid Rolf's) letters from 
29lh October to I5th December, including those of 7th, 
10th, nth, and25lh November last, to Mr. Clark. 

Another letter from Coxe to Chew and Relf, in 
aark's handwriting, dated Philadelphia, February 23, 
1802. The same letter is continued at different dates as 
follows: February 2(5, March 2, .March 4, March "J, 
March 14. A letter from Clark to Chew and Rolf, 
Philadelphia, March 8, 1802; also, March 14, 1802; 
also, a letter from the same to the sanjo, February TH, 
1802, iu which Clark refers to his return from a visit to 
Washington, where he had been well received by the 
President ; also, a letter from Clark, Philadelphia, 
Rlarch 1 1, 1802. In none of these letters is there any 
reference to the frauds in the cotton packing. The first 
letter in which that subject is mentioned, is dated 
Philadelphia, March 30, 1802 ; the next is dated Phila- 
delphia, April 7, 1802; another, April 22, in which 
Clark's intended departure the next day for New Orleans 
in the Eliza, is mentioned. Joseph II. Timlay writes 
of having met Clark in Now York iu the winter of 1801- 
2. Thus is it shown that Clark was in or about Phila- 
delphia from November or early in December, 1801, 
until April 23, 1302. 

Now, let us trace Zulime. Defendants introduce a 
general power of attorney of Detjrango to Zulime, his 
wife, New Orieans, March 20, 1801 ; acts of sales of 
slaves by ZiUime, dated November Ifi, October 25— (in 
the latter, the consideration of the slave is an hypothe- 
cation, payable three months after date, for §200.) The 
said hypothecation is released January 30, 1802. There 
is lUso a power of attorney and substitution to Caillavet, 
November 9, 1801. At about this date, Zulime and 
Madame Despau sailed for New York ; and it is jis 
equally probable Clark arrived in Philadelphia about 
the same time. From facts contained iu the record, we 
infer that DeGnmge returned to Now Orleans in the 
winter or spring of 1802. Margaretle de Orsi, his wife 
arrived shortly anerwards. There is no fact to weigh 
against the presumption of the departure of Zulime and 
sister from New Orleans, and their arrival at New York 
and Philadelphia inthe hitler partofl801 ; and we have 
shown that his (CoxcV) meraory is altogether at 
fault, as to dates. \Ye have seen » hat he wrote ; now 
let us hear what he says in 1849. In his deposition he 
says, Clark arrived in Philadelphia in a vessel from 
New Orieans during the last days of July, 1802. He was 
at Wilmington on July 22, 1802. and came to Philadel- 
phia in five or si.x days after. On his arrival he com- 
menced making preparation for an immL-diate depart- 
\ire for Europe on business of importance, and left tlir 
city for Kew York, from whence he sailed for Europe 
•u a ver>- short time. Tlii" was pro-i-ious to the middle 



of August, 1802. "Clnrit wan In Philadelphia on two 
several occasions in 1802, wlu'ii he loft mo a power of 
attorney. Immediately after, Clark left for New ( )rl)»tiB, 
whore ho remained until June ; then sailed from Ihonco 
to Philadelphia on his way to Europe, and arrivc<l at 
Philadolphia during the last days of July, 1K)2. He was 
engrosseil in business whilKl in Philadelphia." >' Whilst 
in I'hiltulolphia, in 1802, he staid part of the time al 
Germantown, part of the time at my (Coxe) house, and 
occasionally at the hotel." On further retlection, it 
was on his subse(iueiit visit that he stayed with his 
family at Cermantown. The memory of Coxe waa 
naturally directed to the period during Clark's presence 
here, connected with tlio all-important occurrence of 
the frauds in packing cotton, April?, 1802. This ac- 
counts for his hesitancy in speaking of other circum- 
stances. Coxo says that Madame DeCrange arrived in 
Philadelphia in the early part of the year 1802; and 
that Clark arrived shortly after the birth of Caroline, 
which, he believes, wtis in April, 18(hi. Madame De- 
Crango loft Philadelphia soon after the birth of Caro- 
line, for New Orleans, in the spring of 1802. Thus it 
appears that the depai'ture of Mr. Clark for New 
Orleans, also the departure of Madame DeCrange 
thence, the subsequent arrival of Mr. Clark and his 
departure thence for Europe, are the prominent events, 
occurring so nearly together, aa to lead the memory 
of Coxe to the date of one of the most important of 
them, to wit : ("lark's hasty departure for Europe. 

The locality of parties, time, place and circumstance 
are then favorable to the comi)lainanfs allegations.— 
The statement by Coxe about Madame DeC range's ar- 
rival in Philadelphia, and his interview with her, is, to 
my mind, an entire fabrication — beyond all belief 
prompted by self-interest and a desire to conceal or 
gloss over his conspiracies with Chew and Relf to swal- 
low up the estate of their former friend and benefac- 
tor. Clark and Coxo were both high-minded, chival- 
rous, proud, ambitious and aspiring men; they were 
attached friends, but their friendship was more that of 
mutual interest and joint commercial enterprizes. Can 
crediUity itself believe that Daniel Clark would have 
taken a woman who was merely his mistress, or his 
toy for an idle hour, and the offspring of his illicit 
amours, to Daniel VY. Coxe, the first merchant of Phila- 
delphia ; that he would make such a man the keeper 
both of his secrets and the fruits of his forbidden plea- 
sures, and a pandcror to his lusts ? The hypothesis of 
the complainant is far more easily to bo reconciled 
with this state of facts — that Zulime was Clark's lawful 
wife. Clark had not then become ambitious, lie had a 
fine estate to which ho meditated retiring, to live in 
ease and aflluenco. lie had neither become besmeared 
by the quagmires in the field of politics, nor maddened 
by its postilenlial atmosphere. The marriage of Zulime 
wiis not beneath him. On his return from Europe, iu 
1803, about the time of the transfer of I..ouisiana to the 
United Strifes, his character appears to have been un- 
dergoing an entire change. 1 1 is character is then tainted 
with pride, ambition and i-ccontricities; he aspired tu 
some brilliant alliance, but he bethought him of his sol- 
emn vow before t;<id and man, luikept, .-uid paused ero 
it WHS too late to lelnice his steps. 

The proofs ol I he marriage, then, are . 

1— Testimony of Madame Dospau. who was present , 
who relates all the facts, in a narrative marked with 
tnith, simplicity and perspicuity— all of which are con 



38 



THE GAINES CASE. 



sistent with Clark's movements and conduct from 1801 
until 1807. She speaks of the marriage, the witnesses ; 
of the discovery of DeGraiige's bigamy, his condem- 
nation and escape. Of Clark's singular concealment 
of the marriage with Zulime ; his courtship of Miss 
Caton ; the distress of Zulime, and her marriage with 
Gardette. 

2— Madame Caillavet confirms Madame Despau. 
Was not present at the marriage, but she knew of 
Clark's proposal to her sister ; of her hearing of the 
man-iage through Madame Despau, and Clark's ac- 
knowledgment of it. These ladies are widely separated 
wlieu they testify— one being in Cuba, and the other in 
Mississippi. 

3— Pierre Baron Boisfontaine, who testifies in 1835. 
He was a cherished and confidential friend of Clark, 
and relates with fidelity Clark's affection for BIyra; his 
munificent arrangements in her behalf ; his keen regret 
for his conduct to his wife and child ; of the interested 
intermeddling of friends; and finally of the atrocious 
crime in the destruction of his last will. 

4— Joseph Deville Degoutin Bellechasse confirms 
Boisfontaine, and asserts that if not married to Zulime, 
Clark was never married to any one else. He refers to 
the will of 1813; he had read it; its destruction was 
considered by all Clark's friends a gi-eat villainy. He 
explams the will of 1811, Clark having first secured the 
greater part of his estate to Myra, by confidential tr\ists. 

5— Mrs. Harper, afterwards Mrs. Smyth, who saw 
Clark's will of 1813, tells of its contents, and of Clark's 
great aflection for Myra. 

6— Jean Canon, witness for defendants, who tells us 
of Clark's fondness for his child. 

Against these you have defendants' witnesses : 1. 
D. W. Coxe; 2. The opinion of the "forty strong;" 3. 
The ecclesiastical record ; 4. The suit of Myra Clark, by 
Davis, her curator, for an allowance— fully explained 
by Davis in his testimony ; 5. Zulime's suit against De- 
Grange, filed 3d November, 1805, in District Court, for 
alimony. What the judgment was, does not appear. 
This suit fixes the desertion of Zulime, 2d September, 
1802. 0. The suit against DeGrange, by Zulime, for a 
divorce, filed 24th July, 1806. A curator, appointed for 
defendant, shows that DeGrange was not here. On the 
record is endorsed, "judgment for the plaintifi"." 7. 
The suit of Despau against his wife, for a separation 
of property, on account of " incompatibility of humor." 
In a supplemental petition. 8th February, 1808, Despau 
makes serious charges against his wife ; and the judg- 
ment of the court forfeits her rights, but grants no 
divorce. 8. The records, on the application of Shaum- 
bourg, for the curatorship of the succession of Daniel 
Clark, as a vacant succession; 9. Certain interesting 
family letters from his sister, presenting a toilette to 
Clark, with the expression of a hope that it may soon 
fall into the possession of a Mrs. Clark, (and various 
other depositions, letters, and other documents, which 
•we need not particulariy specify.) 

III. It is established that complainant in this suit is 
the sole issue of the wedlock of Daniel Clark with 
Zulime Carriere. 

That complainant is the oflspring of Clark and Zu 
lime, is not seriously questioned ; her legitimacy, and 
the rights springing therefrom, are the only points now 
controverted. The only remaining question of fact to 
be examined, which is not decided in the Patterson 
case, relates to the averment of Chew and Relf, respect- 



ing the partnership between them and Clark, and their 
claim to two-thirds of his property. The letters, in 
evidence, show that Clark and Coxe entered into mer- 
cantile pursuits, in connexion, in 1791. This business 
arrangement continued until 1801, when the connexion 
was dissolved, and Clark retired from active commer- 
cial puisuits. Coxe became a partner, to a certain ex- 
tent, with Chew and Eelf. The letters, on file, show 
the nature and extent of this connexion. In May, 1811, 
Clark went to Philadelphia, to settle his own affairs 
with Coxe ; and, as attorney of Chew and Relf, to settle 
theirs. On 31st May, Chew and Relf send a statement 
of their aflairs to Coxe, at Philadelphia, as the basis of 
the settlement. An agreement was accordingly made. 
The debts of the concern were first to be paid. Chew 
and Relf were then to take $25,000 out of the assets, in 
full satisfaction of all claims against Coxe. The state- 
ment referred to, shows a balance, after paying debts, 
of $80,040, from which Chew and Relf were to take 
$50,000. Add to this the private property of Chew and 
Relf, and the sum of $140,000. Add to this the property 
of Clark, and there will be an addition of $410,200 to 
the assets of the house, from which said Chew and 
Rolf were to make up the sum of $50,000, in case 
the first amount of assets of the house properly should 
fail to produce that sum after paying all its debts. 
This does not look much like a partnership in the lands 
of Clark and Coxe, standing in the name of Clark. 
Tlie agreement of Clark and Chew and Relf (19th 
June, 1813) might have been an equitable arrangement 
for the establishment of a commercial concern, which 
was prevented by the death of Clai'k. It never was 
completed. This instrument contains addenda in the 
hand-writing of Relf; it has traces of the villain's 
hand. These ffirfde?wia,respecting the plantation purchas- 
ed of S. Henderson, was an application of Relf to charge 
this debt upon Clark's private estate. On rendering 
the account of their executorship, in 1837, Chew 
and Relf say that they have excluded the partnership 
property of Clark, and Chew and Relf from the inven- 
tory, and have only inventoried what appeared to helovg 
to said Clark individually. If the agreement of part- 
nership had been complete, there needed to have been 
no doubt as to what was private, and what was part- 
nership property. This partnership might have been 
a fair arrangement for the parties'provided they had all 
lived. The letter from Coxe to Clark, July 21,1810, shows 
the light in which the relations of Chew and Relf were 
regarded by Coxe. The defendants can avail them- 
selves of this pretended partnership of Clisw and Relf 
with Clark, as they purchased from them as executors 
of Daniel Clark, deceased, and as attorneys, in fact, 
of Mary Clark. They had no knowledge of any such 
right as Chew and Relf. The agreement was never 
made public imtil 1841. Such a claim— if it were ad- 
niigsibie— is a mere equity, and they are not now pro- 
perly before the court for any such relief, which must 
be sought by a cross bill. 

In conclusion : This case is not changed from the 
aspect which it presented in the Patterson case. The 
charge of collusion in that case has been disproved 
by their own testimony. The boast of what Hiey could 
do, when seriously called upon to defend this suit, has 
proved to bo but "the echo of braggart defiance. 

The objections to evidences in this case are stated 
and discussed in the motion to suppress. 

It is with sincere feeling that we may now congratu- 
late the complainant upon the speedy termination of 



THE OAINES CASE. 39 



lh\» lUignllon, which li:u engrossed her wholo thoughts iiirocofd to tho poliita of dt-fcntv, common to all the 
feeliii',', [iiid vnor\!y duriii:,' idmoat the enlirn summer- ^ defenilatits. The suit against Miii')r, in which I rr-pro- 
time of lier earthly existence. Her cause lin'* indeed j sent deftiidunts, is ilistingul.->l;:-'j!i.- Ironi the oilier ciweis 
bcenworthyorsoh«>lynnd»ojusludevotlon. Ilirhopesjin this: tlmt ii is completely ai.d eirectuully barnd by 



have never been depreajsed, whilst cheered with the 
assurance that on her side were justice, e(iulty,and 
truth. Her confldenco In the exalted tribunal whose 
power she has Invoked, has never ceased to inspire 



our law uf prescriplion. Whellur a possessor in «ood 
or bad luitli, wheih.r he bod been present at the mar- 
noiiii ol" Daniel Clark, had assisted In plundering; his 
estate, or had dispossessed Clark by force and buried 



and encourage her through her long contest against a I him under the soil, the said I'hillip Minor could hold 
combination which would have daunted any soul un- j his property by an un<iuestionuble and coropU-te tllleof 
Bustained by conscious rectitude. To this Honorable | prescription. (^Ile then read the law of prescription, a» 
Court she acknowlwlges a lasting obligation of grati- : applicable to immovable istates, even where possessed 
lude for its patient indulgence during the last sixteen | knavlshly and without title, and referred to the service 
years. Finally, to your Honors she couimits her | of citation, &.c., in this suit, to show that Minor had 
cause, with a Ann reliance that justice will bo awarded I acquired a full title by prescription.) Minor came 
to the right by your solemn decree. jdown the river more than thirty years ago, in a llat- 

j boat ; ho found this land unoccupied ; he bought it 

SPEECH OP COLONEL PRESTON, ifora small sum ; it was then a dreary di>sert, the abode 

For THE Dkkesce. i of mosquitoes and venomous reptiles, he devoted hiu 

Colonel Isaac T. Prestos then addressed the j whole life to cultivating and improving it, rendering 

Court, in behalf of the delendants, as follows : I fur more than its value, in the suffertngs, sacrifices and 

Jlaij it please the C<«ir«— Before 1 enter upon the ! labor expended on it. The land has now become valu- 

facts and law of this cjii^e, I deem it a proper occasion uble. And h*e is entitled to the benefit of the law, 

to move the Court to direct un issue to be made for ' which, after thirty years of undisturbed possession, 

trial by a jury, on the law side of this Court on the two ] quiets his title, however it may have beeft oriionally 

points : j acquired. So much for the special defence of Phillip 

1 — As to the fact, whether Daniel Clark was ever Minor to this suit, 
married to Zulime DeUrange, and Wyru Gaines, tlie | l will now proceed to examine the matters in which 
plaintiff, was the child of said parties. all the defendants have a common interest,— the points 

•i~To inquire into the facts of the fraud alleged by | of common defence, 
the defendants, in the suit of Gaines vs. Patterson. | In 1813, died In this city Daniel Clark, a man of con- 
Thesem-e questions which properly belong to a jury i siderable note in the early history of this State. He 
to determine, and by assigning them to their proper | died leaving his estate to his mother, and constituting 
tribunal, the Court will be relieved of immense labor ; chew and Relf his executors. The latter, in the settle- 
and responsibility. Even in cases of equity it is well ; ment of his estate, sell the property of his succession, 
settledjurisprudence, that where questions of fact and i by public auction, to various parties, who, or their 
fraud that are proper for the law side of the Court to assignees, now hold said property. When thes<' sales 
examine into, the Court willnot deprive parties of their were made, Clark was universally understood and 
constitutional right of trial by jury. It has been decid- believed to be an unmarried man. There was no risk in 
edthat in a suit between the heir at law and the de- buying his property. Hisestate was duly administered, 
vizee, the matter is a proper one for a suit at law. 4 , The purchasers remained in quiet possession until 1836, 
Howard, 649. This is just that cjise. Mrs. Gaines pre- 1 for a space of twenty-six years, when suddenly a lady 
tending to be heir, sues defendants, who hold under , appears in this city, and startles the whole community 
Clark's mother and devizee. The beneficent provision ' by claiming all this property, alleging that she is the 
of our judiciary law, (178G,» provides that equity shall , child of Daniel Clark by lawful marriage with Zulime 
not take cognizance of a case where law affords an ' do Carriere. And what does all this monstrous preten- 
abundaut remedy. When in any suit, even in Chan- j sion— this extraordinary discovery rest upon '! It rests 
eery, the facts are strongly contested, we have the au- ! upon the testimony of one single witness, Madame 
thorityofthe books on equity that they shall be referred Despau, sister of Zulime, whose credibility, as a 
lo a jury for determination : (read Daniel's Chancery i witness, will presently be inquired into. But taking 
Practice.) Is it strongly contested in this case that her stoo' for the truth, what does it amount to? 
Daniel Clark ever was married to Zulime deCarriere; Why, that Daniel Clark had made a secret,* clan- 
that Myra Gaines was bom of a lawful marriage; thai destine marriage with Zulime do Carriere— that the 
the trial between Gaines and Patterson was a fair and marriage was made in secret, and the -ecrel was 
honest proceeding V These facts, averred on the one long kept by all parties. Now, I shall show, by com- 
haud and denied on ihe other, constitute the very gist pcteiil law, that such a marriage was not only illegal, 
of this case, and they are facts peculiarly within the but criminal. L'nder the Spanish law, and indeed 
province of a jury to decide. ; in all Catholic countries, marriage is a sacrwl, reli^ous 

Judge MrKiNLEV.— Are you not premature in this ceremony, the solemnization of which should be noto- 
motion ? Would it not be better to wait until the case rious and public, that all the world might know it and 
is fully presented and argued, and then to move the be bound by it; and in order, if there was any legal im- 
coiu-t to make up such issues as you may think, ought pediment, that parties might come forward and make 
to be submitted to a jury V it known. Examine the proceedings on file here, in the 

Colonel Preston.— The court is correct. I have matter of Zulime's lirst marriage, and see the fonn,di- 
made this motion now, lest it might be considered that ties required by the old ecclesiastical law in celebrat- 
I had waived it by entering upon the merits of the case, iing marriages; In White's RuopUacion^ and in the 
There is another matter, to which I must refer, before 1 ' Partidas, we find it laid down, that secret marriagea nr'' 



40 



THE GAINES OASE. 



fraudulent and criminal In the eyes of God and man, 
and the parties to them are justly subjected to severe 
penalties. Under the old Spanish law, parties who 
took part in clandestine marriages, forfeited all theii- 
property and rights. Such marriage, then, if it took 
place, was not only fraudulent as to the world, but it was 
punishable by tlie law of tlic domicil of the parties con- 
tracting it. But if there were such a marriage, it was 
invalid, on account of Zulime's existing marriage with 
DeGrange. Tliat marriage never was annulled ; it could 
not be aniuUed by the mere acts of the parties. 
It required the interposition of the Ecclesiastical 
Court, which claimed and exercised the exclusive 
jurisdiction in all matters pertaining to marriage. 
And on what evidence does the fact of this pretend- 
ed secret, fraudulent, and invalid marriage depend ? 
On the testimony of an adulteress ! An adulteress, for 
such Madame Despau is proved, on this record, to 
have been. 1 refer to the proceedings of her husband 
against her for a forfeiture of her rights in the marital 
property, in which she is charged with leadmg a ram- 
bling life, living in open adultery. And what judg- 
ment did that pui-e-minded, that incorruptible Judge, 
Joshua Lewis, render upon this complaint? He gave 
judgment for the plaintLff, and decreed a forfeitm-e of 
the rights of property against Madame Despau. This 
is the woman upon whose evidence you are now called 
upon to disposses hundreds of honest, virtuous and 
industrious people, of property which they pin-chased 
in good faith, which they have possessed for thirty 
years, whose money has gone to pay Daniel Clark's 
debts ! What says the good old Spanish law about the 
credit due to an adulteress? That ancient and honored 
jurisprudence justly regarded with the greatest horror, 
the crime of adxUtery. It authorized the husband to 
kill the wife and her paramom-, when caught in 
flagranti delicto. He must, however, says the 
Partidas, kill both, as it would be unjust to kill 
only one. (Read numerous quotations from the 
Partidas to this point.) Now, our law has virtually 
abolished the penal provisions of this code, though 
it is stUl a part of the common law, or usage of the 
country, to kill adulterers. Not a week passes that we 
do not read of some man being slain by one whose bed 
he has defiled and whose wife he has seduced. Our 
law does not deliver over the adulteress to be killed, 
but it consigns her to an infamy far worse than death. 
It stains, it blackens, it defiles her reputation so that 
she cannot be heard in any court of justice. The Span- 
ish' law says a woman of fair fame may be heard in 
any case except as a witness to a will, and that excep- 
tion is made to exempt her from a temporal duty 
which belongs more properly to man. A woman of 
fair fame may be heard in any case. Well may it say 
so, for a wdman of fair fame is the paragon of truth, of 
virtue, and of all loveliness. There can be no purer 
source of human testimony than this ; but an adul- 
teress ! Oh ! says the Spanish law, she is infamous ! 
She forfeits all her rights and property, and is shut out 
from courts of justice, and disqualified from testifying in 
matters involving the rights of others. And she, the 
convicted adulteress, is the only witness to this secret 
marriage ; this marriage, held in some retired comer 
of Philadelphia, which no body else witnessed, and 
which never was heard of until thirty years after it 
occuiTcd ! 



Thank God ! we live in a State where it could never 
be a question if such a marriage was valid — where 
people do not go into a room by themselves, or before 
a single witness, and, by jumping over a broomstick, 
become man and wife f Under the old law of this 
State, parties desii'iug to enter the holy estate of matri- 
mony had to petition the Vicar General for a license, 
then the bamis were proclaimed in public for four suc- 
cessive Sundays, and finally, after the whole world was 
apprised ot the intentions of the parties, the marriage 
was publicly celebrated with all due form and ceremo- 
ny by the representative of St. Peter, and under the 
solemn sanction of the Holy CathoUc Church. There 
the parties made a solemn oath to cling to one another 
faithfully, and be true to their mai-riage tie. If they 
violate this solemn oath, if they pi'ove recreant to this 
holy injunctian, if they are faithless to the maniage 
bed, the Holy Church condemns them to perdition, and 
considers them peijurers of the first class, ^aolators of 
the most sacred oaths. Under such ceremonies and 
such law, the witness, Madame Despau, was married. 
She violated her oath. She committed the gi-eatest of 
perjuries in going to the bed of her pai'amour ! She can 
no longer, under the Spanish law, be a witness in a 
Court. She is forever incapable of giving testimony 
and unworthy of belief. The polluted breath of so vile 
a wretch should never be heard in a Com-t of Justice. 

But suppose this witness is credible, and the mai'- 
riage aid take place, as sworn by Madame Despau, it 
was a marriage whose effects were to take place in 
Louisiana, where the parties were domiciled, and where 
their property was. It was a secret marriage. Both 
parties kept it locked up in their breasts. It was un- 
known to Clark's many intimate friends, who Icnew his 
most secret thoughts and purposes. Zulime was 
equally secretive. So it remained from 1800 to 1836. 
In the meantime, Clark held himself out to the world 
as an unmarried man, and flourished extensively among 
the ladies ; and the gentle victim, the patient Zulime 
herself, instead of pining in soi'row over her secret 
and Clark's eccentricities, acted very successfully the 
part of a female Lothario, ready to marry any and 
evei-ybody that offered, and who, in her eagerness to 
secure a husband, no sooner finds herself in stress of 
proof of one marriage, than she enters into another. 

Now, under such circumstances, if Madame Despau's 
story is to be credited, and there was such a clandes- 
tine marriage between Clark and Zulime, it was a fraud 
upon the world, and the complainant, who stands in 
the shoes of her father, must inherit the conse- 
quences of his act, and camiot, by such fraud, 
recover back the property which has been honestly 
acquired by the present possessors. You Inherit 
the frauds and imperfections, as well as the rights 
and titles of your ancestors. Judge Story (read 
his Equity) lays it down as a fixed rule of equity, that 
it will not disturb the bona fide piuxhaser of the legal 
estate, without notice, and for a valuable consideration. 
And will you allow this complainant to come into this 
Com't, confessing the fraud and imposition of her parent, 
and demanding that all this vast property shall be 
wrested from these honest possessors, and given to the 
offspring of this secret, this clandestine, this fraudulent 
marriage ! We saw this property adveitised as Daniel 
Clark's. He had always been known and reported a? 
an unmarried man. We knew nothing of your in- 



THE GAINES CASE. 



41 



trigiies, your secret aminKeraents, your adulteries, tuid [ ever fonjet* that day. But there were special reaaona 
other nhuniinutiuiiH. We went in o|ienday tu .Muscaro'i.' why '/ulimo du Corrit^ro should remonitN-rtlio day of 
coQlT-house — n public aucllou miirt — and bid for the ' her iniirriiit;i'. It waa lo her a day of relcaM! from the 
properly. We paid our money for It, and acts of wile nioiiloppre^«ivememorieis the moot cniel fate. She had 
were iiinde out to \is before nol^u-if!) public ! To dis- btt-n ninrried to u man who hud another wife— who 
ttirb/iKhlsthusacquired would be initiuity, not equity .' (rilled willi lu-r holiest aflt-ctlons — who inflicted upon 
Hut, oil! we aro told of "constmclive frauds" nnd her the docpe^l wron;; a woman could nulTer. Hhe d»- 
K'al implications, and all these foreign interpolatiou.s u-ctcd his villiiiny. Ilo fled the vengeniice of the law. 
that have been forced into our juriftprudonce! I She wept in sorrow luid despair over htr mi.ilorlune. 

The matter is to be involved in lesjal raysliflcations; and contemplated the future with the gloomiest feel- 
and, in the end, I have no doubt, the setters up of i»«s. It was then thai this Bplendid marriage with 
these monstrous Actions, this stupendou.s I'mud, will Clark was proposed, was iicc.eptcd and consummated, 
show, or attempt to show, that the innocent purchasers! Who will believe that «he could have forgotten 
of Clark's property, at public auction, for a full and the day when it occurred. Oh! never, whilst memory 
valuable consideration, were really the criminal and I held sway, could Zuliine de Carriere have forgotten the 
ffnudulent parties in the transaction ! Oh ! that I had day of h<jr marriage with Daniel Clark, if such marriago 
this case before twelve honest jurors, sworn to examine had taken place. \Vell, then, the complainant in thia 
the facts, and delennine them according to law and ' humbug suit of f'aiterson, alleged that the marriage 
justice, how soon would I scatter into impalpable par- 1 took plac*- in lt<03. Hut when, by the examination of 
ticU>s, all this twisted web of fiction, fraud, and false- numerous letters of Clark, it was discovered that ht> 
hood ! I was not within a Ihou.xaud miles of Philadelphia dur- 

But, fortunately, wo are not altogether bound by ' '"S 'he J'-nf 1'^'' ">*^'y change their posit'on. As soon 
foreign law. The I'nited States Court, sitting in this | «» 'hi'V 'wcerlained the discovery we had made, (which 
State, is bound, in administering justice here, to regard m colleagues were for keeping a secret, but I was for 
the laws and jurisprudence of the State, and make making it public) and the complainant was required 
their decisions conform thereto. If this were not the|»" »''"^ when the marriage occurred, she comes into 
case, I would as lief see the ghastly cholera, or the , court and fixes the time in the autumn of ieOl, or 
destructive crevasse in our city, as a United States ' "Pf'np "f ^^'- -^ikI «ho discrepancy betwe<-n the 
Judge. I averments and the depositions of Madame Despau 



But let us look more closely into the facts of the case. 



I is got over in her testimony, taken in 1&49, by say- 



Was Daniel Clark ever marrUxi to Zulime DeGrnngo, '"^l'*'''' [""'" <="""" «'«'«c«»t.ons she thinks it was in 
nndwhen did it tako place? What say the plaintiflT "•^- l^**"'""''' '*''"* ^' *'^''";'^^ ". '' f " '"°; 
and her witness about time and place ? And hero 1 1 ^f'" ^''\ "'^. ^«;^,"^« occurred m 1802. Daniel 
•^ Clark left hero in 1602, he was on his wav to sec into 



must call the attention of the Court to a striking dis- [ 
crepancy which meets us on the threshold of tliis in- 



some allege<l frauds in cotton packing, which serious- 
qiUryiVndTiIlMolheminTother'proo'^ impugned his honor and his fortunes, lie sped 

in the record of the fabricated character of this whole '" f ^'^^^^ '^'^.''".»» " m'nd racked by awf.d for^ 
transaction. When that infamous suit ..f Pnttei^on, :'^°'^'°^: "« '^^^'^ "'^f Philadelphia in July, waa 
(Which I would to God I could blot from ttu. records of 7""™"''"f!' and the re he addresse<l Coxe on th» 
this Court, where it must ever remain the memento of '«'■"'''« '^"^ ''^'^^ f^ ^•^"T^'* ""' •".'"'^: '^'^ ""^« 



disgraceful and outrageous fraud, perpetrated upon one • 
of our highest judicial tribunals,) was tried, it was 1 



I situation one to which, as he energetically expresses 
it, eternal damnation would be preferable. There 



pretended that the raarriaee of Cl.irk and Zulime took 'f °° P"^,^ »*"at ho ever went to Philadelphia. But in 
Jlace in 1803, and the Supreme Court has so adjudged ^"^'ist (13th) we find him in New 'i ork, and on that 
in their decision that it took place. Madame Despau ! 
swore t.> the same eflect. 



I day he left for England, in hot haste to investigate the 
j facts connected with the cotton frauds. Now, was 
,...,. . ^ J Clark in a slate of mind then to contract a marriage 

Now the complainant m this case must have gotij^^^^j ^^.^^ i^ ^^^^ ,i^^ ^^ ^,^^^ circumstances 
her informatum from her mother, who no <Io„bt, ^^^^^^ ^^^,^ ^„ occurrence probable? Read his 
loU her ol her splendid marriage to Daniel Oark, the . ^^^^^^ ^^ ^^^^^.^ ^^^ distressed, the agonized state of 
millionaire, the great merchant, the ambitious politi- ^.^ ^.^^ , „^ ^^„,j j,,j^ ^^ nothing but the wr«:k 
cian-her splendid marr'age, consummated so soon „f ^j^ f^^une, his hopes his reputation. Oh ! a proud, 
and so happily after her unfortunate one with her pro- ambitious, aspiring, pleasure and wealth loving man 
ous husband. She no doubt dwelt on all the circumstan-iife^.D^ig, ^.,3^^. must have experienced, from the 
ces of so memorable an event. It is an event which a contemplation of the awful precipice of commercial 
woman never forgets, the day when she took her nup- ^^^ yawning before him, feelings that forbade all 
tialvows-lhat greatest of al days, w-hen she yielde.1 ^^ ^„ i^,,,^^^ ^ enjoyment. Would he, 

her happiness, her honor, and her fondest devotion, to ^^^ „j^ ^^^ ^^^ ^^^.^^ merchant, who reftised 
the man of her choice. It is the day which a woman's ^^^^ ^^^ ^^ ^ I^^^ly ^^^^ ^^^ ^-^^ become a Duchess- 



thoughts, hopes, and memorit^ must ever regard with 
holy remembrance and joy. In girlhoo»l, she looks for- 
ward to it as the realization of the most exquisite of 
earthly bliss— the miion of two sympathizing heart: 



(Mr. DrNCAN.- .\ Marchioness.) 
a Marchioness, Duchess, Countess, or something of 
that sort, I am not familiar with titles of nobility — 



in middle age, it is made sacred by feelings of mutual would this ambitious Irishman, who refusixl the hand 
interest and aflection, and in old nge it is held in sweet, of a distinguishe<l lady, rather than embarrass him- 
but firm and distinct memory, when many other facts 'self, turn aside from the perplexing anxieties which 
»nd incidents have lapsed into oblivion. No woman I filled his mind, and overcome the gloom that frownet'. 
F 



42 



THE GAINES CASE. 



like a dark cloud upon his hopes, to burdeu himself 
with the cast-off wife of a poor, miserable French 
syrup maker ! 

Such are the probabilities and possibilities as to the 
presence of Clark in PhUadelphia in 1803, and his 
marriage with Zulime. 

But where was the other party to the marriage,— 
where was the poor, virtuous, forsaken Zulime, the vip- 
timof that poor Frenchman, who, in my opinion, is the 
most honest party in this whole tangled web of fraud 
and fiction. Zulime was here on 2nd September, 1802, 
living with DeGrange, and at that very time institut- 
ing an inquii-y into his alleged bigamy, and swearing 
before the Vicar-General that she did not' believe 
the rumor of DeGrange's previous marriage. Both 
j)artie3 then, were more than a thousand miles from 
Philadelphia, at the time when it is averred they were 
married. 

In her petitition for aUmony, Iiladame DeGrange 
says her husband sepai'ated from her in September, 
1802, which proves that previous to that time they 
were living as man and wife. What does she then 
do ? She t)roceeds to New York, then a long, weai-j- 
and periloas voyage, (for that was before the time of 
steamboats and railroads), to get proof of DeGrange's 
previous marriage. But when she gets there, alas ! she 
learns that the records of the church of St. Peter are 
all burnt and destroyed. She is satisfied with this 
rumor. She makes no inquii-ies foi-fathen- O'Brien, 
who was then living there until 1806,as large as 
life, the vei-y Priest who, it is pretended, celebrat- 
ed the former marriage of DeGrange. There was 
the great church of St. Peter, the very liead of 
the great catholic denomination in this country, then 
standing in a city, comparatively a small one, with 
a Bishop known to every body, and whose house 
wotild have been pointed to her by any body she 
might have asked ; and yet she inquires not for 
father O'Brien, whom every body knew as well as 
they did the Battery or Castle Garden; but hearing a 
rumor that the records were destroyed, came away 
88 well informed as before she had gone there, and 
then returned to Philadelphia. And now, this tramped 
up story of the destruction of the records of the 
church of St. Louis, is to be proved by an Irish girl, 
whose testimony to any fact could no doubt be pro. 
cured for two bitts. This girl, in 1846, in telUng her 
stoi7 about this marriage, is so definite that she ac- 
tually retains a recollection of conversations held with 
hel' aunt respecting the dress worn by some miserable 
Frenchwoman, a miserable witness to this miserable 
maiTiage. But Oh ! here is the certificate of the mar- 
riage ! there it is, spread out in latin, with all the flour- 
ishes and pompous plirases ; and where did this certi- 
ficate come from ? It was found among the papers of 
Dr. Gardette, who had procured it in 1806, at a time 
when he was the husband of another lady, the highly 
respectable Madame Defaucher. What had Dr. Gar- 
dett to do with the intrigues, the secret arrangements, 
&c. of Zulime and DeGrange. Gardette's wife dies, 
and he straitway marries Zulime, in as much haste as 
the Queen of Denmark, who did not wait for the 
meats to get cold before she supplied the place other 
lost spouse — he thus rushes into the aims of the im- 
patient Zulime, who no sooner bears an idle rumor 
that Clark is courting somebody else, than she det«r- 
mines to commit bigamy. Gsrdette and Zulime marry, 



and this certificate sleeps among Gardette's papers 
until it is exhumed, forty years afterwards, for the pur- 
poses of this suit. But even this certificate refers to 
the marriage of one Jacobum, not Hieronynum De 
Grange, and is not, therefore, good evidence of the 
fact which it was intended to prove. No! may it 
please yom- honois, this is all a trumped up stoi-y ! 
These rumors of bigamy were all got up to frighten off 
and get rid of tliis miserable baker of cakes and con- 
fectionary, falsely and absurdly styled a French noble- 
man, as everything is sought in this whole nefarious 
affair to be covered up under some high sounding aris- 
tocratic titles. The ambitious Zulime wished to get 
into the society of the elite, — she desired to take rank 
among the femmrs gallantes of the country, in that age 
of universal licentiousness— a licentiousness not alto- 
gether passed away from our city even in these days. 

I have stated that under the Spanish law, which 
existed at the time of this pretended marriage, that 
Madame Despau, being a convicted adulteress, could 
not be received as competent proof of the fact of this 
maniage. Now, there is another ground which goes 
to her credit, and places her in a category nearly 
as bad as that in which she is placed by the judg- 
ment of Judge Lewis against her. She was the com- 
panion of her sister throughout this tortuous plot— 
they were Arcades ambo, femmes gallantes, together, 
in New Orleans,— all the witnesses say that one was 
no better than the other. They were here together, 
they went to Philadelphia together, and there Madame 
Despau was the witness to her marriage with Daniel 
Clark. They lived together in New Orleans in one 
common seraglio, until Clark went to Congress. They 
then went on to Philadelphia together, and there Zu- 
lime, heai'ing of Clark's attentions to Miss Caton, mar- 
ried Dr. Gai'dette, in the very face of her pretended 
previous marriage with Clark. Now, all this time, 
Madame Despau stands by, aiding and abetting her 
sister in the commission of the infamous crime of 
bigamy. She is accessory to that crime which is a 
felony by the statute of Pennsylvania, of 1791, punish- 
able by two years' imprisonment in the Penitentiary. 

Judge McKinley — We are not governed by the 
Spanish law of evidence. The common law govehis 
in all matters of evidence. 

J. A. Campbell— I desire to call Colonel Preston's 
attention to the fact that Madame Despau does not say 
she was present at the marriage of her sister to Doctor 
Gardette. 

CoL. Preston : And why did she say she was not 
present V For the veiy purpose of avoiding this con- 
clusion, of weakening this argument,— this presimip- 
tion against her character, which would flow from the 
fact of her presence at the marriage of Zulime. But if 
not actually present, she was cognizant of all the 
movements, the acts and intentions of her sister. They 
traveled together, they slept together, they knew one 
another's inmost thoughts ; they were thrown among 
a people who did not speak then- language ; she knew 
all about the Caton affair ; about the interview with 
Mr. Coxe, and of the latter sending a lawyer to Zulime 
to advise with her— a lawyer by the name of Smith. It 
might as well have been no name at all ; but it was a 
very good name for their pm-poses, for it forever pre- 
vented our getting any clue to the individual, so as to 
make use of his testimony. Under all these circum- 
stances, who imagines that she was not present at her 



THE GAINES CASE. 



sl8tvr*ii mnrrlage with Dr. Ganletle, in whuso rainlly 
she liviil for xomtillmo after thiil iDBrrhiK". Mere, 
then, wu flint this wUue.sis u|>uii whotst- testimtmy this 
imint'iiso property Is to bo wn-stt'il iVom Its prosoiil 
honest proprie(<ir», iin uccoinpliuu In the atrocious 
criiiii' ol' blxuiuy. It rttqulreii no scnlencu of luw to 
pruMoiint-u lu>r Inliinious unci i^iiworthy of credit. Shu 
is coiivictvd on hi-r own conll-ssion of n hii;h IVlony, 
and is inconiputunt to appear ux a witiiuss but for mure 
form ; she cannot be credited or believed in any conn 
of justice in Christendom. In IrftKJ, Madame Di-spau 
was convicted of adultery by u jud);ment of Judge 
Lewis, but we uro told that this judgmeut only sub- 
Jectoil her to a forfeiture of her rights of profHjrty. 
Now, the civil code of Louisiana doi-s not allow one 
who is infamous to testify in a civil causi' : aiiy one 
who is guilty of the crimen faJsi amuot be a witness. 
And is not adultery crimen faJsi ? Oil ! the falsehood 
and perjury of the wife, who has sworn before high 
heaven to love, honor and obey her husband, to cling 
to him faithfully, and who yet goes to another's bed 
and dishonors her husband and steeps herself in infa- 
my by the horrible perjury of adidtery I 

JiDOK .Ml KiNLK V : UTiut was tlio judgment in that 
case? 

Ckjlonel Preston read the pleadings and Judgment in 
the ca.«e of Despau rrrsus Despau. In the first peti- 
tion of Despau, he only claimed a separation, for 
causes, as heexjiressestoo aHlicting to mention.which 
will be found detailed in the ecclesiastical proceedings 
on her application. But, subsequently, he tiles a sup- 
plemental petition, alleging further, that she had gone 
out of the teiTitory, was lending a wandering life, liv- 
ing in open wlultery. 

.1. A. Campbell: The petition in this case was filed 
8th of February, 1808, and the judgment was rendered 
12th of February, 1808. 

Col. Preston: That was the supplemental peti- 
tion ; the original petition had been filed sometime 
before, in that, the unfortunate husband, not desiring to 
proclaim his wife's infamy, from moiivt-s of tender re- 
giu-d, to the peace and reputation of his family, had 
concealed her notorious and infamous conduct, under 
the mild phrase of "occurrences too afflictive to men- 
tion." Now, this, may it please your Honors, is the 
testimony upon which our property and our reputa- 
tion are to be wrested from us. The law forbids this ; 
it requires that the witness, whose testimony is to de- 
prive me of life, reputation, property, should be repu- 
table. The complainant sets up her claim. We swear 
against it. And now comes forward Madame Despau. 
whose infamous tongue is to be permitted to override 
the oaths of these honest defendants, and to determine 
these monstrous pretensions in favor of the complain- 
ant. But perhaps this testimony may lead to i>ther cir- 
cumstances confinnatoiy of .Madame Despau's state- 
ments; let us look into some of these circumstan- 
ces. One of the modes of bolstering up this case, 
and the reputation of the principal parties in it, is to 
defame tlie character of that individual who, in my 
opinion, throughout these whole proceedings, has 
acted wiih more fairness and honesty, and has been 
treated with more injustice, than any of the actors in 
this drama. 1 refi-r to the poor, honest syrup-maker. 
DeGraiige. He is selected as Uie scape-goat for the sins 
of all the other parties. It is necessary to criminate 
him; and as he is absent, dead, and has no friends. 



we need not bo over Krupulou* In our meniw of ic- 

complishing that end. Henct-, th(«« cerUficati-s flled, 
touchinii the alleKc.l bignray of I)e(;ninge, ami the de- 
struction of the records by which they pretend they 
could prove his conviction for bigamy. 

Now, I admit that it l» probable that Madamo Do- 
Grange persuaded Clark llial Myra won ins daughter, 
tliat Clark was induced to siwtch the child from the 
polluting atmosphere of the seraglio in which It wa» 
born, and placed it with a re»i»ectable lady to be raibed, 
removed Irom the containiiiating exumpio and iu- 
Ihience of the mother, ond that having this bond, she 
endeavored to persuade Clark to marry her. To 
accomplish that, it was necessary to annul the previous 
murriiwe with DeC.raiige. Hence all the»o reporw 
about bigamy, this suit against the name of Itelirango, 
and this hunting up of documents amonu' the old musty 
records of the city. Meagre results reward the labor 
of this bunter-up of document*. The Spanish records, 
which would prove the criminal procet-dings against 
DeGrange, were all taken away by the Spanish 
tiovernment when it left the State. Even the volume 
of the old Moniteur de la Lovisiane for the year le<K, 
when DeGrange was tried and convicted of bigamy, is 
mysteriously missing ! All that can bo found on thia 
subject is a newspaper paragraph, which refers to the 
afluir of De(;range's preteiide<l bigamy. Where the 
extract came from, what pai>er it beloneed U>, and iu 
what year it was published, are all h ft to conjecture. 
It is very evident, however, thot this extract was 
published much nearer the year of our lx)rd 1834, 
when these suits commenced, than that of ItsOi. This 
whole story is a wild, a baseless, a transparent fiction. 
The truth is simply this: When /idime commenwid 
her coucubiiuige with Clark, she determuii'd to gel rid 
of her poor French syrup-maker. When the child 
•Myra was born, she was supplied with a potent 
wand to control the feelings and conduct uf Clark. 
DeGrange out of the way, this splendid niarrlage 
might be accomplished. Then this biTOmy story 
was Irumpwl up. The busy tongue of rumor set to 
work to spread it far and wide; interested friends 
busied themselves in circulating the calumny ; it was 
put into the newspapers, and people who don't read the 
newspapers much, are in the habit of believing all they 
see in them— and so it got to be generally believed that 



DeGrange was a bigamisU And yet not a part 



icle of 



respectable testimony has been presented to establish 
this fact. The spurious certiticnte found, after the ex- 
piration of mony years, in Dr. (iardelle's papers is 
utterly unworthy the notice of the Court as evidencu. 
The complainant herself proves that the records were 
destroyed by fire when her mother went there in 180-i, 
to find proof of DelJrange's former marriage. It must, 
therefore, be fabricated for the occasion. Such are 
the oidy pr«K)fs of the bigamy. Now, on the oiher 
hand, we have the proceeilinirs of the Lcclcsiaslical 
Court, which iuvt-stigated U\is case fully and carefully, 
and acquitted DeGrange. Madame DeDrango horseM 
appeare<l before tJiis tribunid, and confe!«aed thai 
it was a sliuider, and she had no doubt of the 
innoci-nce and honesty «n her husband. Thii poor 
Frenchman einicrated here in 175HV, not us Zulime 
de Carrier* pretends, a French nobleman. It is 
not the least suspicious aspect ni this c«i>e, this 
perpetual lugging m of these high sounding titles. 
It is always the case iu infumims and dark tran^ac- 



T:iE GAINES CASE. 



tiori, that the parties are connecLed v'lth the nobility ; 
a-.d seek to cover up then- m^ral shortcomings 
and reD. insignificance, by aristi^cratic pretensions. 
No ! DeGrange was not a nobleman of the French 
peerage; but he was a nobleman of natm-e, who 
sought to support himself by honest industry. He 
lived here, enjoying the confidence of his fellow- 
citizens, and supporting his family. Having occa- 
sion to go to France, in 1801, to attend to the 
interests of his family, he receives a power of attorney 
from his wife and the other DeGrauges, to reclaim 
property left them by some relative in France. He 
constitutes his wife his attorney to attend to his affaiis 
in his absence. He goes to Prance, transacts the busi- 
ness entrusted to him, returns and faithfully accounts 
for his ti-ust — pays over the money collected by him to 
the DeGranges. In the will of Caillavet, husband of Rose 
DeGrange,we find an acknowledgment of the receipt 
of his or his wife's share of the property collected by Je- 
rome DeGrangc. It is by this will that Caillavet refuses 
to give the tutorship of his children to his wife, but ex- 
pressly confers it on a friend. A fatality attended this 
whole family. Now, what was the conduct of Zulime 
dm-ing the absence of her husband "? It was then that 
Bhe began to receive the attentions of Clark, that this 
infernal intrigue, the effects of which have extended 
even to this remote generation, commenced. She then 
determined to get rid of DeGrange. Accordingly, in the 
fall of 1801, she sells all Jerome's slaves, puts the mo- 
ney in her pocket— she even sells that celebrated negro 
Lubin, who figures so largely in the exciting drama of 
the destruction of the wiU, and upon whose testimony 
this chai-ge of crime and fraud is made against old^and 
highly respectable citizens— the same who was after- 
wards caught by Mr. Palfrey, in the act of stealing cot- 
ton. Thus, whilst Zulime is preparing to go to the 
North, to obtain proofs of DeGrange's bigamy, she is 
selling out his property here as fast as she can. She goes 
to Philadelphia, where she has the child Caroline Barnes, 
and induces, Clark to believe it is his own, although 
it was born in less than seven months of the departure, 
of DeGrange, and the fact is also in proof that DeGrange 
was a healthy, vigorous man, and Clark was generally 
held to be impotent. She makes Clark, thi-ough his 
friend Coxe, bear all the expense of her accouchement. 
And this child Caroline Ls raised in the moral State of 
New Jersey. She lives a respectable life, and so de- 
meaned herself as to secure the respect of every body, 
and to lead to the belief that she must have come from 
a pm'sr soiu-ce than the other daughter. How different 
her conduct from that of this complainant, who, in her 
greed of gain, recklessly roots up from the dim past, 
and exposes, in all theii- glaring enormity, ti'ansactions 
80 disgraceful to those whose good fame should have 
been with her paramoiuit to all other considerations, 
and which should have been consigned to eternal 
oblivion. Jf fhe could thus succeed in palming off the 
child Caroline upon Clark, after a few months' separa- 
tion from DeGrange, how much easier it would be to 
persuade him that Myra was his daughter. 

Now, can anything be more monstrous stnd incredi- 
ble than this whole story of the marriage of this woman 
to Daniel Clark ? Is it possible that such en event 
<«uldhave taken place and she have no memento ol 
it— no billet-doux, no memorial— not a particle of 
proof. So holy and near a tie as that of marriage exist, 
and no rnstageB of it I You, too, so unsuspicious, so 



confiding, so careless and indifferent after the sad and 
sorrowful experience of the past ! Oh ! who would be- 
lieve so prodigious a fiction ? Let the circumcised Jew 
credit it ; no one who believes in Christ will believe 
that incredible fiction. Are there no proofs; cannot 
the priest be remembered ; the house where the cere- 
mony was performed— some fact which will afford a 
clue to this mysterious marriage? There was a Mr. 
Dorsier present ; who, and where, is he ? There was 
an Irish friend of Clark's present ; cannot some traces 
be found of him? The marriage was not in the open 
flelds, or in the woods ; it must have been in some 
house or some street, in Philadelphia. Where is that 

3e— what is the name of that street? These things 
cauuot be forgotten, when so many less important facts 
are so well remembered. No, there was no marriage. 
The probable stoiy is that, after the buth of Myra, this 
woman sought by that bond to decoy Clark into the 
nuptial noose. She probably went to Philadelphia to 
trump up some proof of DeGrange's bigamy, and thus 
remove the obstacle in her path. Btit it is evident that 
in the distracted state of his mind, at that time, Clark 
would not have married her if she had been a second 
Helen, for whom a Troy might have been destroyed. 
Whilst there, she hears by Madame Caillavet of the 
arrival of DeGrange's other wife in New Orleans. She 
hastens to New Orleans to have the villain punished 
who had outraged her young affections, and at the same 
time be enabled to promulgate her marriage with 
Daniel Clai-k. They arrive liere safely. The Holy 
Catholic Church, justly regarding such an imputation 
as of the most serious character, has DeGrange arrested 
and impiisoned. He is brought up for trial before 

Vicar General. There is the testimony of his 
alleged first wife, JeanbeUe D'Orsi. She relates her 
story with all due simplicity. He courted me. she says, 

I would have married him, but he insisted on my 
going with him to New Orleans, and I looked upon that 
as the jumping off place of cieation. I declined going ; 

marriage was broken ofi', and we separated. Other 
witnesses are also examined, until, lastly, comes the 
pm-e, angelic Zulime. She is now to tell the truth ; 
she is now enabled to relieve herself of a connexion 
which has become odious to her. and to fly into the 
outstretched arms of Daniel Clark, the merchant 
prince, and as his bride, to electrify the whole country 
with her beauty and magnificence, exciting the admi- 
ration and envy of the most lofty dames in the land 
And what response does she give to the inquiry, if she 
believes her husband guilty of the bigamy charged 
against him ? She answers : " As there is a God in 
Heaven, and as I expect to be saved, I declare my be- 
lief that he is innocent !" Now, did she thus solemnly 
utter a falsehood ? Did she, in the awful presence of 
the Chm-ch, foi'swear herself? Heaven and earth tes- 
tify against such an inference ! And shall her daughter 
be pei-mitted now to come before the world, declaring 
that her mother uttered so horrible a falsehood, to ex- 
culpate a man who had evinced all that invincible hate 
and passion which deep injuries kindle in the female 
bosom, and which are never calmed or extinguished 
until sated by complete revenge. Alas, poor De- 
Grange! you were the injured party in this whole dark 
tragedy. You return home from your native land, ex- 
pecting to find a peaceful and happy home ; but you 
no sooner arrive here than the story of your wife's in- 
famv reaches voar ears. The town is full of the in- 



THE GAINES CASE. 



4& 



trigue of your wifn aiid Clark ; your wifc'B Hflectlons 
ari> Roiie fort'ver from you; iiifuiny rests upon your 
nanio and family ; your proptTly has bwn diswlpatt-d, 
squniidtTod, to miiilHter U> tlio pride and pleuHurc 
of your faithless spous*-. I'ndc'r «uch circumittanccs, 
no Wonder the unhappy man flies from his home, and 
buries his sorrow either in tbeurave or in sOme remote 
land, for he has not been heard of since WW. Aud thus 
was poor Jerome De(^raiii,'e made the true and real vic- 
tim of the infamous iiilrii^ue, which begot this infiimous 
suit. These are the acts of your mother rising' to tes- 
tify against you. But your father was an honoi-able, a 
high-minded man, with no spot or blemish, save those 
amours, which were matters of course then. Let us 
see what was his conduct. Early in ISOi, as the story 
goes, Clark married Zulime, aud he leaves immediately 
for Europe. Slio returns to New Orleans. So does 
Clark; but they do not come together. Whilst living 
here, Clark resides in his palace on the Bayou Road ; 
Ztilime lives with her sisters, in a house of their own, 
constituting a seraglio, at which Clark is a frequent 
visitor. Clark never takes her to his house, to intro- 
duce her to his friends— those friends, who were aa 
numerous and as sturdy as the trees of the forest. 
Then, loo, we would suppose that Clark and DeR range 
coidd not bo the most intimate and confidential friends 
In this state of affairs. But here wc And De(;range 
writing to his dear friend, Clark, commending his wife 
to his care and protection. Ami faithfully did he com- 
ply with the injunctions of the (Ktor, deluded French- 
man,— he took good care of his dear wife : But the 
strangest phase in this complicated intrigue is the 
conduct of Clark, in permitlini; DeGrange and Zulime 
to live together a3 man and wile, atu>r her marriage 
with him. Was Daniel Chu-k this sort of man? Was he, 
proud, high-spirited, and passionate, the man '• who 
would keep a corner in the thing he loved for another's 
use ?" No. He would have cried, like Othello : 

" O Ihat tlie slave liail forty tliousand livea. 
One u too poor, loo wral for my revenge." 

This bare suspicion contradicts the whole life and cha- 
racter of Daniel Clark. It would make that eloquent 
"Aicjaret" which attests his character as a man, his 
honor as a gentleman, his worth as a citizen— it would 
make it a glaring falsehood, a revolting insult to the 
dead,— a piece of indecent and ribald irony of one 
called to his last account. Such an imputation upon 
the character of Daniel Clark would reanimate his 
mouldering bones, and aause them to burst the cere- 
ments of the grave with horror and anger. 

But Clark, if not the protector of his honor, and that 
of his wile, was at least generous. In 1805, when Zu- 
lime was in thai situation •• in which ladies delight who 
love their lords," ^lor Myra says she was born in 1806, i 
she was in want— she wants bread and meat. Does 
she appeal to her generous husband, the merch.-\nl 
prince? Xo; she sues the wretched, ruined DeGrange, 
for alimony. Clark, the husband, was bound to au- 
thorize this suit— to spread on record that his beautiful 
wife, now cnciente, should ask for crumbs from De- 
Grange. Clark knew of the suit— for, in those simple 
times, suits were to lawyers like angels' visits — few and 
far between. He thus spread on record the disgrace of 
himself, his wife, and hoped-for offspring, by asking 
bread from her seducer. Impossible I 

Another scene in the drama. He is the flrst repre- 
sentative to Congre.«s. from the splendid acqnisitinn of 



Jeffenon. HIa fame, Mn tolenttt, hiN wxalih, preoedo 
his ailvent to the Capitol. The beauty- and wealth of 
the country thn>w themselves In the Haloonx vlnlled by 
the Hplendid bachelor. He addreiuwn th<! iK-autiful 
Louisa Cuton, famed to the present day In the aunaU of 
rtLshion luid gallantry. The husband of Zulime U en- 
amored imd enurn,^ to Miss Colon. The unanimons 
voice of the coiuury prociaiins the father of .Myra Inca- 
pable of this baseness. He afterwardo addresses and is 
engaged to Mrs. LambtTt, while a married man ; and 
baseness numl>er two failing, the Lothario addrcsscH 
Miss Chew, whoso words were even now those of sim- 
plicity and truth. 

The closing scene approaches, an the darkness of 
eternity, when the heart can conceal nothing, tx^gins to 
gather around him. He is stretched on the pallet of 
death. The Chevalier De la Croix, lo whom he had 
contlded all that was dear to him in the world from 
which he was just departing, kneeled down by his side 
to receive his last wishes. He did not die with the lie 
in his mouth, that Myra was his legitimatt; daughter. 

" //if jdfrt " was inscribed on his tomb, as printed 
in this record. Hie jam, innocent of all the plunder it 
is atlempti-d to perpetrate in his name. The same hie 
jaret invites us all to beds of eternal bliss, if we have 
been just on earth. But, if we become participators in 
schwmcs of perjury and plunder, it will be inscribed 
over our sleep of deutli. But, we will sleep, " per- 
chance to dream" — forever dream. 

I beg this court, then, to take this case and determine 
it upon the evidence developed in the record, without 
regard to the fictitious and fraudulent showing In the 
Pattei-sou case. The judge who will expose and de- 
nounce that compound of falsehood and «>rruptionr 
will deserve the highest niche In the Temple of Justice. 
His " hicjacet" will record the virtue, the justice, and 
wisdom, without which, elevated station can coufer 
neither honor, dignity, nor respect. 

ARGUMENT OF J. A C.VMPBELL, 

For CoMPLAi.sAST. 
May it please the (ourr— Daniel Clark, a citizen of 
Louisiana, died in li?13, leaving a large estate, both real 
and personal. In that State. The Code of Louisiana 
casts the succession of four-fltths of that estate upon his 
legitimate children. In opposition to any voluntary 
disposition he may have made during his life. 

The PlaintitT In this case claims to be the only legi- 
timate child of Daniel Clark. 

The first (luestion that arises in the cause is, whether 
the plaintiff is the child of Daniel Clark ; the next, 
whether she is legitimate ? Upon the solution of these 
questions In her favor, her rights to the legal succes- 
sion depend. 

How Is the fact of filiation considered, apart from the 
lac t of legitimacy established ? The controlling proof 
of filiation consists in the possession of the status which 
filiation denotes. Before a child is born, the law 
recognises lis being and provides for its care and mir- 
lure. Nature designates in advance the persons, and 
inspires In them sentiment-s necessary to the peform- 
ance of the duties which the helpleas condition of the 
newly-born demand. The child, on Its appearance in 
the worid, finds itself in the midst of relations whirh 
originated in its first conception, and terminate onlv 
with its existence. This poeilinn and the«c relatione, 
rnnsfitntp the ^fiiv* of ihp rhild, and detAnnina r.n 



46 



THE GAINES CASE. 



place In the society. The most important of these re- 
lations is that of filiation. 

The mother is made Itnown by incontestible proofs. 
Nature proves maternity by the evidences of pregnan- 
cy, and the perils and pangs of child-birth. The evi- 
dence of paternity is presumptive—" Sein enim est im- 
possible quis cvjus filius sit mater certa pater incertus.''^ 
When the facts of nuptials and conjugal union are es- 
tablished, the law determines the paternity of the child — 
Pater id est quem nuptim demanstrant. In the absence 
of the proofs of legal nuptials and conjugal union, there 
are other proofs of paternity equally conclusive. These 
proofs result in the establishment of three characters, 
from which the status of the child is incontrovertibty 
inferred. These proofs consist in ascertaining the 
nomen, tractatus, fama^ which attach to the child. A 
child born to the father beai's his name ; it receives the 
treatment (i. e., care, countenance, protection, educa- 
tion,) of a chUd. The public receives the child and 
recognises the paternity which the father asserts. The 
status of that child is no more open to dispute. 3 
DKiguessaii, 181 ; J^ougorede Lois dts families, 213 ; 
6 Casus Celeb, 358 ; 8 Denisart, questions d'etat, 9 ; 
1 CocMn, 590. 

These proofs, under the common law system, are of 
«qual dignity. When a man and wife cohabit, and no 
impotency is proved, the issue is conclusively pre- 
sumed to be legitimate, though the wife may have been 
imfaithfid to her marriage bed. 1 Moodij ^ R., 269, 
•276; 3 C..S-P., 215; 8 £ast, 193; IBarboar Ck. Rep., 
375. 

If there was any sexual intercourse between the hus- 
band and wife, at a time when, by the course of nature, 
the husband might be the father of the child, any infi- 
delity that she might be guilty of, would not vary the 
case; and it matters not that "the general camp, pi- 
oneers and all, had tasted her sweet body," because the 
law fixes the child to be tlie child of the husband. 3 
C. <S- P., 215, 

In cases when the factum of marriage is not pnjvable, 
the conduct of parties connected is the best evidence to 
establish filiation. Starkie details the circumstances 
which will be received as evidence of marriage and fili- 
ation. He mentions, among others, the circumstances 
of persons recognizing and educating children as their 
own ; the entries in family bibles and on monuments, 
announcing relationship ; the declarations of persons 
who are dead. These circumstances, he says, are facts, 
or are solemn and deliberate declarations accompany- 
ing facts, and partaking of the nature of facts, which, in 
the absence of all suspicion of fraud, afford the strong- 
est presumptions, &c. 1 Stark, Ev. '47 ; 2 Stark, Ev. 
Pedigree ; 8 Vesey, 428. 

The same author proceeds, (3 Stark, llOi) these are 
not to be considered mere wanton assertions, upon 
which no reliance can be placed ; on the contrary, in 
the absence of any motive for committing a fraud on 
society, it is in the highest degree improbable that the 
parties should have been guilty of practicing a con- 
tinued system of imposition upon the rest of the world, 
involving a conspiracy in its nature very difficult to 
be executed. fV. Black, 811 ; Waddilove nig, 233. 

The testimony to the filiation of the plaintiff with 
Daniel Clark, consists in the proof of the following 
facts : It is proven that from 1802 or 1803 to 1806 or 
1807, the mother of the plaintiff lived in a house pro- 
widfid by Daniel Clark, and in an intimate connexion 



with him — they cohabited. The evidence shows this, 
and such was the public reputation of the relations be- 
tween the parties. Madame Despau was present at the 
birth of the plaintiff, and identifies her. Clark, before 
the birth and from that time till his death, treats the 
child as his own. She bears his name, and was sup- 
ported by his care and providence. In the family in 
which she was placed, and in the estimation of his 
neigbors, the child was his. He made advancements 
to the child, by deposits of money and property for her 
use; and, finally, prepared in his last will a cbai'ter of 
her rights as a legitimate child. Coxe and Relf, in then- 
letters, speak of the child as that of Clai-k's. The 
child, by Coxe's persuasion, is mentioned in the last 
will of Clai-k's mother, as the child of Daniel Clark. 
The question now arises, was the plaintiff the legitimate 
child of Daniel Clark? The filiation of Mrs.Gainea 
having been established, the burden rests upon the 
defendants to show her illegitimacy. All the presump- 
tions of the law are in favor of legitimacy. Always 
favorable to innocence when the same efiect can be 
traced to two causes, the one illegal and unjust, the 
other just and legitimate, the law rejects the first to 
adhere exclusively to the last. (8 Denisart, 4 ; 3 D^An- 
guessau, 188.) This rule of evidence belongs to the 
jurisprudence of every State. (3 Stark, Ev. 1248; 1 
Oreen, Ev. §34.) The defendants assume the ungracious 
office of impugning the plaintifl'. 

They assert, first, that her mother was married, at the 
time of her birth, to one DeGrange, and, if she is the 
child of Clark, she is an adulterous bastai-d ; secondly, 
that there was no marriage between her father and 
mother, that the mother was the mistress of the father; 
thirdly, that the imputed father was impotent. 

The last assertion is contained in the evidence, and 
is not contained in the pleadings. The fact, if it ex- 
isted, could not be proven. The allegations and proof 
must correspond. (Dan'ls. Ch.Pr. ill ; 10 Peters, 177.) 
The evidence offered on this subject consists of a repe- 
tition of the idlest bar-room and brothel gossip, and is 
not competent. 

To prove a case of impotence, the evidence of wit- 
nesses who have examined the person of the party 
charged, is required. (5 Paige, Ch. R. 554 ; Waddi- 
love's Dig. 197 ; Paynter Mart Dio, 124, 125, 126, and 
note.) Froite desproced quesont en usage en Francepour 
le preiive de Pimpuissence de l''homme. (8 Cous. Cel. 26, 
9 do. 191.) 

The evidence of legitimacy is somewhat of a dif- 
ferent character from that of filiation. The legitimate 
child is one conceived during a lawful marriage. The 
evidence shows that the public repute, in reference to 
the plaintiff, was, that she was to be the heiress of her 
father's wealth. This reputation implied legitimacy — 
the adulterous bastard could not be an heir. Under 
the laws of Louisiana, he was incapacitated from his 
birth ; he could neither receive from the love of the 
father, nor by the operation of the laws, more than a 
bare maintenance fi'om his father's estate. The expec- 
tations of the circle in which the plaintiff was placed, 
were all excited by the declarations and conduct of the 
father. Bishop Chase testifies—" Daniel Clark was the 
reputed father of his child Myra Clark ; her he openly 
cherished as such ; he embraced her in the presence 
of his fi'iends as his child in my sight. Other pater- 
nity, to ray knowledge w belief, was never spoken of 



THE GAINES CASE. 



47 



or thouf^ht of In New Orlemis. She was spoken of oh 
hia lu-iresa." 

The evidence of Bishop Chnse Is abundantly sus- 
tained by other parts of the cause. The njeneriil repu- 
tation, the evidence shows, had a sub^luntinl founda- 
tion. The mother of the plaintiff live<l with the pliiiu- 
tiff, and was supported by him. The evidence shows 
that she was never publicly acknowledged as his wife, 
and never shiiretl his honor?'. These fuels weaken un- 
queslioimhly Ihe force of Ihe evidence of leKltimaey, 
which lire derived from the repute before alluded to. 
They show that the po-ses^iion of the utatiin was not, lo 
the public observation, complete. In this country, 
however, the inference derived from the reputation we 
have noticed in favor of the child, would lead tou fa- 
vorable decision for the plaintiff, notwithstanding what 
was said of the mother. In this country, wo have no 
laws requiring the publication of the bans of mai^ 
riage — none to prevent clandestine marriages— none 
reciuiring the public acknowledgment or registry of 
marriages. The usuiU habit of the community is de- 
parted fh)m by secrecy; but none of its laws are in- 
IVinged by maintaining it. 

SirWm. Scott, in the case of Dalrymple rj». Dalrj'in- 
ple, refers to this and adopts the conclusion that the 
absence of the name and the repute of a married wo- 
man, in the case of the wife, is not a fact of grave im- 
portance in deciding the existence of marriage when 
such is the law. 'i Ua^irnrd, ffl. 

The public repute in favor of Ihe plaintiO', as the 
child and heiress to Daniel Clark's estate, is sufficient 
to establish her claim. This proof, however, is fortifi- 
ed by repeale<i declarations of the father in favor of 
the child. All authorities concur in admitting the 
declaralions of the father as evidence In favor of the 
child. The Roman law in some cases regarded them 
as conclusive. " We have determined to ordain 
(JVoiifc//*' 117, cAo;/.) that if any one having a son or 
daughler of a free woman with whom he might have 
been married, shall say in a written act either befort> a 
public ofBeer, or under his own hand sustained by 
three credible witnesses, or in his last will, that this 
son or this daughter is his child and that he does not 
call them natural children, they shall be reputed le- 
gitimate ; and no other proof shall be demanded of 
them, and they shall enjoy the rights of legitimate 
children." 

Undoubletlly, this rale of evidence was adopted in 
consequence of the solemn character of the instruments 
that are enumerated in the law. The common law 
assigns no special importance to the form of a father's 
declaration. The fact lo be decided by the court is, 
whether there was a marriage from which the plain- 
tiff is the issue. The declarations of the father consti- 
tute a medium of proof to aid the court. What 
weight shall be given to ihe respective declarations, is 
committed to the so\md judgment of the court, which 
is to pronounce upon the proofs. Still, we caiuiot doubt 
that the declarations of a lather connected with im- 
portant acts, and which accompany and explain those 
acts, are of Uie highest class of declarations. Such 
is the character of the acts and declaratious of Clark 
in reference to the plaintiff. No witness who has tes- 
tified in this cause (save Pe la Croix,) has testified that 
he ever heard Clark speak of the plaintiff as his natu- 
ral chUd. Bellechasse, Boisfontaine, and Mrs. Smith, 
testify fully to the declarations in his will. 



Were the case to stand here, the r%idenre of legiti- 
macy woukl be complete, In so far iwMt 1b de[H-ndant 
upon a marriage. 

The evidrncr ^oes furthrr, and proven a marriaire In 
fuel, in presence of a Catholir prie.it and three iritnentet, 
nnil cohabitation nfter proofnof marringo. ^Howard, 
1 DowU Hep., UH fVaddilort's Dig. 2 Hapgard,fa. 

The testimony of .Mesdames Despou andCaillavet, In 
impeached by the evidence of Coxe, that the connexion 
between Uaniel Clark and /ulime Curric^re wim origin- 
ally illicit— that the only visit ofZullme to Philadelphia 
in \m■Z■^^, was to usher Ihe first fruit of this connexion 
into the world. That Clark wilh tht-n absent. That ho 
visited Philadelphia but once while she was there, and 
thai this was a hiusty, flying visit, imder a great pressure 
of business and anxiety of mind, which forbade the 
idea of marriage. In some of the most material parti- 
culars, this Is untrue. Clark lefl New Orleans for Phil- 
adelphia in Ihe latter part of October or early in 
November, 1801. Mis voyage was long, owing to a 
detention at Havana, and the probability Is that he 
reached Philadelphia in December or early in January, 
I8th». He remaineil In Philadelphia till the iJ3d April, 
18(>2, and then relumed to New drieims. In June, 
181)2, he lel^ New Orleans and arrlve«l in Philadelphia 
in July or Angust. Zulime Carriere gives a power of 
attorney on November i), 1801, in New Orleans. That 
power was used in January, 1802. The proof is clear 
that Clark lea New Orleans about the time she did. 
The conclusion therefore is, that there was no such 
difficulty in the way of the fornoation of a marriage as 
Coxe intimates. 

This statement of the facts suppressed by Coxe, and 
upon which he arijues to his conclusion, invalidates 
his conclusion. Madame Caillavet states that the rumor 
ofDetirange's bigamy preceded his return from Kurope. 
That these rumors induced proposals of marriage from 
Clark to Zulime, and that his proposals were accepted, 
provided the evidence of the bigamy of Detirange 
could be found there. Zulime and Madame Despau 
visited the North for that purpose. This statement 
shows that this movement was prompted by, and of 
interest fo Clark, and we find Clark niaking'a corres- 
ponding movement on his part. They meet in Phil- 
adelphia, and probably pass tlie winter and spring 
together. 

This statement, then, affords the reason for the secrecy 
of the marriage. It was necessary for the marrince 
wilh DeCrauKe to be legally annulled before a second 
marriage would hare been proper. This was the rea<km 
given by Clark, and the sufficiency of which was ac- 
quiesced ui by Zulime. It is proba'ble that she subse- 
quently adopted the idea that this marriage had no 
legal oblisation or validity, from the fact that a prerlous 
nuUity had not been declared of her marriage with 
DeGrange. 

The continental law of Europe corresponds wilh the 
statement of Clark to her. The ascertainment of th« 
bigamy of DeGrange by some direct proceeding, is 
declared to be proper by the writers on that law, before 
a second marriage should be contracled. 10 PaM,88 ; 
.Xoutrorede jurisprudence ; 9 Caii«e'« Celeb, 158; Dm 
marriaire, 294. 

The necessity for obtaining this declaration of nalljtj, 
seems lo have been constantly impressed on the minds 
of both parties. Another impression upon the mind 
of Zulime seems to have exerted the most powerful 



48 



THE GAINES CASE. 



influence on her life. The belief that the validity of 
marriages could only be manifested by public and 
authentic registers of marriage. The existence of these 
impressions on the minds of these parties, seems to 
accomit for the conclusion, upon which both[appear to 
have acted at a subsequent period, in reference to the 
validity of the marriage between them. 

The question then occurs, what effect, as evidence, 
does the subsequent conduct of Daniel Clark and wife 
produce upon the legitimacy of the plaintiff. The 
marriage in Pennsylvania was valid, without any dec- 
laration of nullity of the marriage between DeGrange 
and Zulime Carriere. That marriage coidd not lose its 
legal character; nor could the offspring of the marriage 
be deprived of their civil rights by any false impres- 
sions of the parties to it, arising from the state of, or 
their opinions of, the law of their -domicil. Lord El- 
don has said upon such facts: "I am exceedingly anx- 
ious to press upon your lordship's attention, this is 
what I take to be an indisputable proposition 
namely, that if you find there was a marriage duly cele- 
brated, actually had, that marriage cannot be got rid 
of by evidence of facts and circumstances done or ob- 
served by persons afterwards, thinking it proper to 
disentangle themselves from the connexion of mar- 
riage, actuated by caprice, dislike ofeach other, or 
base motive of inducing other persons to think lliat 
they may form matrimonial connexions with the parties, 
When once you have got clearly to the conclusion that 
a marriage has been had, that marriage must be sus- 
tained, let the consequences be what they may of sus- 
taining it with respect to third persons." 2 Biighs 
Rep. (JV. S.,) 489. 

The French jurists are agreed to this principle. In 
cause in which the solemn admissions and oath of the 
first wife were produced to establish that she was not 
a wife, and a declaration that her children were bas- 
tards, the Advocate Generel argues: "It is pretended 
Margaret Doreshas renounced her status, but without 
examining if it is her, or a fictitious representative who 
has spoken in these acts, whether they were prepared 
or fabricated by her husband, or whether she consent- 
ed freely, or executed them under a surprise, menace, 
or through fear of violence, it is sufficient to say this 
renunciation is vicious and produces no effect. The 
status of a wife is such that she cannot dispose of it. — 
All the efforts to weaken or to impair it are nugatory." 

This, then, brings back the question to the inquiry, 
is the evidence of the marriage sufficient? 

The defendants, to weaken the force of the testimo- 
ny of Madame Despau, have assailed her character.— 
We have seen that without her testimony the plaintiff's 
ase is established. The assaults upon her character 
have not been made by any evidence which the law 
recognises. The only question which can be raised 
upon her character is whether at the time of her depo 
sition she was entitled to credit as a witness. On this 
•question not an inquiry has been made. 

The witnesses (chiefly those who were conversant 
with the gossip in relation to Clark's impotence,) are 
interrogated as to Madame Despau's reputation. Carra- 
toy says nothing good was said of her. Tricou says, 
"her reputation was on the same footing as that of 
Madame DeGrange." The two daughters of Gardette 
place her in the same category as her sister. Courcelle 
answers to the same effect; and each testify that the re- 
poita were unfavorable to Z\ilirae. 



I This is the character of the evidence which the re- 
sources and industry of the defendants have been able 
to secure, to impeach the veracity of this witness. As 
to the legal quality of the evidence, the Com't will ob- 
serve that it relates to character a ta period more than 
forty years before the deposition was given. That it 
relates in no degree to the only issue that can be made 
on the character of a wslness — that of veracity. That 
it establishes no reputation in regard to veracity — that 
the evidence is wholly illegal. Pkillip Ev., 291, 292; 
13 John Rep., 504; Hill Sr Cowen JVotes, 768; 3 Serg. <J- 
R., 337; Green, Ev. 

The Court cannot fail to notice that every imputation 
upon Zulime Carriere has its origin in and during the 
connexion between her and Daniel Clark, and the de- 
plorable consequences of the concealment of the lawful 
character of that connexion. That so soon as that con- 
nexion was ended, the tongue of slander ceased to wag. 
The Court is advised, too, in the evidence, that there 
were malicious influences at work to set that tongue in 
motion. 

In reference to Madame Despau, no witness could 
have been better sustained. She has been followed 
from place to place, and her life examined for the last 
forty years, and with a single result — a result which se- 
cures her from disparagement in this tribunal. 

The defendants having betrayed their weakness in the 
attack upon Mad. Despau's character from the reputa- 
tion of witnesses, have sought to fortify themselves by 
a record of some proceedings between herself and 



It appears that Madame Despau and hei- husband 
lived unhappily together, and agreed to a divorce. 
Pending these proceedings to carry their agreement in- 
to effect, the husband advertises hi« property for sale. 
The wife enjoins the sale, claiming a community. The 
husband answers and prays the property may be sold, 
and he be allowed to give bond to deposit the pro- 
ceeds with a responsible person. This is allowed. 

More than a year after this, a petition, not supported i 
by oath, is filed, in which Madame Despau is charged 
to have gone to North America without the consent of 
the husband, and that she is living in adultery. Sup- 
plemental affidavits are filed to the effect that Madame 
pau had left the territory, and one affidavit declares 
that her conduct had not been very regular, and her 
husband had just reason to complain of her. In what 
respect, the aflSdavit does not stale. The decree of the 
court was made without the service of any process or 
upon any appearance of the parties to the petition up- 
on the proofs contained m these exparte affidavits. 

The decree is that the wife has forfeited her commu- 

ty. The ground of the decree is not declared. 

It is certainly not necessary for me to state to this 
court, that such a record is not admissible to impeach 

witness, even if the court had proceeded legally. 
That such a judgment can have no effect upon the 
character of a witness in any court. 

Thus far, I trust, I have satisfactorily shown to this 
court what is the language and meaning of the code 
of 1808, in reference to affiliation, and that this case 
fully meets all the requirements of that law. On this 
subject, the testimony on the record stands intact. Not 

breach can be made in it. It all tends irresistibly to 
the conclusion that the complainant is the legitimate 
offspring of Daniel Clark. No other parentage has 
bMti assigned her. All the witnesses concur on this 



THE GAINES CASE. 



point, except the Chevalier De la Crolz, and how does ' dlitinctly decided that the adjadlcatlon of a court npoo 

his leslinioiiy sitaiid before this court? It litut bi'oii ;llio viillilily of u iniirrlBije would Ijfl concludlv.* in any 
dlscnJiifd, m-i iisido, uiid enllrcly dwregurcled by tin- olher ccnfu-ven wb'-n li»(?llim;ir y wan iiivolviil. Hup- 
SupiMMi- Court. .\ii oxuuilimtlou of his two si-paralf pose I)i<;r.im<e had died after liis marriai?e wilh Zu- 
deposiii.ms oil the reconl, will show that eht>«riclure!' 'lime, c;iii thiro be a doubt that IiIh pro|H-ny would 
in wliicli the Court iudulurd in refi-rentv) to his tesli-l l>nve tjoiio to hU children by Ilarbara D'tirni t In the 

mony aro fully Juslitled. Iii.his le,-<tinioiiy before the J ca.se of Mctlretror it i< fully decided that a previ- 

Probalo Court, ho says Clark spoke to him, (Do la I ous marriaa;e makes a subseri'ient one void i;)»o /nrto. 
Croix)onhi8plantallon,ol his becomiiit; his executor; [It requires no decree of iuvalldity, no iw-iilenre of a 
ho also spokoof a youni? female, then In the fiiniily of, court, beaiuse it never had any fo^co or existence. 



Captain Davis, named .Myra, desirincr that De la Croix | Marriages are void, or voidable. For example, a mar- 
would act as her tutor, and that he (C!ark> would leave . rinsre may be avoided on u'ronnds of nwr relalionship, 
her asufllcient fortune to do away with the Htain of her the takini; the veil, or inipulency,duriii||Ufe lifetime of 
birth. Hero, he says noll^m^; about her beini? his th« P'lrties, though not afterwards ; but rtnarrias?e be- 
daughter. Subsequently he enlarges his statement, I ween parties, one of whom has a spou^te living, is ab- 



»nd now, in the testimony before the court, rohabili 
tales himself,— makes his testimony broader, and 
speaks of Myra as the bastard and illegitimate daugh- 
ter of Clark, and refers to several conversations with 
Clark on this subject. These discrepancies, so stri 



Rolutely void from the beginning. A marriage, accord- 
ing to the canon law, can only oxIhi between one 
man and one woman. The second marriaue, under the 
Knglish law, conferred no rights whatever, and the 
children were bastards ; but, on the continent, if either 



king and positive, justified the yuprome Coiu-t in I of the parlies had been deceived, the children were 
throwing discredit upon this testimony. I therefore | not necessarily illegitimate. On these points, (-2 f"i7/i- 
leave the Chevalier De la Croix entirely out of the : "■"'"f. p. 10, and Volhier on Marriage.) The positioDi 
case, as if his testimony had never been taken. I Ihca-fore, of Mr. Mazureau, so much relied ou by Col. 

Here, then, we have a coinpleto and compact Anss Preston, is not sound law. 
of testimony, showing the repeatetl public acknowledg- The fiicts in the cause establish conclusively the ex- 
nients of the legitimacy of this child by Clark— solemn j istence of the previous marriage of DeGrange. The 
acknowledgments, made shortly before his death. We j parties' own confession, his flight and escape from the 
have proof of the marriage— of cohabitation. The Kountr)-, and, linally, the marriage certiflcate. It results 
mother is certain and undisputed, and the father is that ZulimeCarricre possessed tlie capacity of contract- 
rendered certain by presumptions, which gtarkie calls ing a marriage with Daniel Clark, which marriage we 
"infallible proofs." .^\nd now we have fulfllled the have shown did take place. 

requisites of the decision of the Supremo Courts, and Wo come now to the record of the Ecclesiastica 
thrown upon the defendants the burden of disproving Court, upon which the defendants mainly rely, to 
this raairiage, and the legitimacy of complainant. No 1 disprove the fact of DeGrauge's bigamy. Now, even 
one can read the testimony in relation to the I.-ist solemn [ 'f this record coidd be admitted as proof, the judgment 
acknowledgments of Clark— when the shadows of death b.v no means supports the conclusion of defendants, as 
were gathering around him, when the affairs of this ' it is a mere judtrment ofsuspension of proof and further 
world were fading before his eyes, when he withdraws j proceedings. It is ordered that further procee<liugs be 
his mind from the serious concerns of the future, to | suspended, with power to prosecute hereafter. This 
whisper in the ear of his most intimate friend his last has none of the force of res judicata, a final decree, 
dying injunction to protect and guard his legitimate ' But even if it were such a judgment, it would not be 

proof in anothersuit. If it had been a verdict of ac- 
quittal by ajury, it would not be admissible as evidence 
in another suit involving the rights of property. See 
1 Starkie 278, 1 Phillip. 338. There is a broad dis- 
tinction in this respect between the eflTects of a convic- 
tion and an acquittal. 

But it is contended that if not admissible as a Judg- 
ment, the declarations of the parties are good as 



child— without being satisfied on this point. These 
solemn circumstances add a force and gravity to the 
testimony, which leave nothing but the absolute con- 
viction of the legitimacy of this child. 

But we are told that there was an existing mar- 
riage, constituting an insurmountable b.-uTier to the 
marriage from which the complainant sprung— that 
she had another husband living. That Zulime had 

been married to a m.an named DeGrange previous to j evidence. In reply, we invoke the rule res inter alios 
the marriage with Clark, is fully admitted; but it u'at/a. These depositions were received in a proceeding 
equally clear that such m.vriage was void ab initio,'' post /item motam, a proceeding neither criminal nor 
by virtue of DeGrmicre's marriage with Madame D'Orsi. j civil, but of the nature of an ez paru inquirv, in which 
The proceedings in the suit in 1806 against the name ' it is not proved that the witnesses spoke 'under the 
of DeGrange, are conclusive on this point. The decision sonction of an oath, and exposed to the penalties of 
then rendered is rMjui/iifl^n of the previous marriage, i perjury. And who were these witnesses ? There is 

On this point I beg to reler to the leading case of the I Jerome DeGrange himself. Surely it will not be pre- 
Dutchess of Kingston, (20 State Trials, 598,> where it I tended that his testimony to his own innocence of a 
was determined that a judgment delivered in a court | crime which exposed hira to death, is entitled to the 
of competent jurisdiction, is admissible as evidence in [slightest weieht. He certainly will not be permitted 
another court, in relation to a in;irriage whose validity | to make testimony for himself. Madame D'Orsi, too, 
is brought up in that court. The record of the previ- , is exposed to the same objection, for she slates in her 
cus proceedings of a divorce between SlissChudleigh, I deposition, that since her sepjinition from DeGrange 
afterwards the Dutchess of Kingston, was admitted as \ she had married ; she had, therefore, the same interest 
proof in a prosecution for bigamy before the House of : which DeGrange had, to disprove his bigamy. And 
Ix)rds. So, loo, (in a case in 8 Modern Reports,) it was lasUy, we have the lesUmony of Madame DeGraage, 



50 



THE GAINES CASE. 



who was surrounded by circumstances and influences 
which nature could not resist, prompting her to save 
the father of her children from an iguomiuious death, 
and her family and name from the stain of a public 
execution. These depositions, therefore, possess no 
weight whatever as evidence, even if they were admis- 
f ible in this case. Colonel Preston has stated that the 
value of this evidence was incalculable. Babbage's 
calculating machine could not estimate its weight and 
influence in this tri^. I think, to ascertain its real 
value, that we shall have to look beyond the point 
where numbers lose their relations — to look from the 
infinite to the infinitessimal— from the maximum to 
the minimum. Approach this record, as men of sense, 
and you are compelled to throw it aside as belonging 
to the class de minimis lex non curat. 

I feel mortified to have to refer so frequently, and at 
such length, to matters so clear and palpable. I am 
continually reminded of Chief Justice Marshall's re- 
mark, that the Court ought to be presumed to 
know something. Of this class of unimportant and 
1 might almost say, frivolous grounds of defence 
in this case, is the Alimony suit instituted by Ma- 
dame DeGrange, in which her lawyers style her the 
wife of DeGrange. Is it seriously pretended that 
this allegation can prove anything in this suit ex- 
cept the tact that such a suit was brought, such 
proceedings were had, and such j udgmeut was ren- 
dered ? It is well settled that no pleadings or declara- 
tions can be evidence in another suit. Parties v/ho 
are usually represented by lawyers put anything in 
their petitions they see fit. It would be a desper- 
ate extremity, says a high authority, to hold parties 
responsible for what their counsel put in their plead- 
ings. Bills of Equity are notoriously filled with fic- 
tions, and it is well settled law that their allegations 
cannot be admitted as proof in another suit. No one 
would pretend that this record could be proof of the 
marriage of Zulime and DeGrange, because the judg- 
ment would not be one on tliat point. This record, 
therefore, simply proves the fact that alimony was 
sued for and obtained. Similar in chai-acter is 
the suit brought for alimony in the name of this 
complainant, in which her curator, Davis, sets forth 
that she is a natural child— in which is publicly 
asserted her illegitimacy. Such proceedings would, 
not be evidence even against Davis, much less can 
they be held against the infant whom he pretended to 
represent. So, too, of Mrs. Barnes's answer, which 
has been dragged into this case. That, too, is entirely 
inadmissible and irrelevant. Under the rules and de- 
cisions of this Court, such records must be entirely 
<li3regarded. 

Thus, then, may it please the Court, is every bar- 
rier to the marriage of Clark and ZuUme removed. 
All the evidence to invalidate this conclusion is incom- 
petent — it consists of mere excrescences of proof, and 
the capacity of these pai'ties to contract marriage is 
satisfactorily established. We have proved that the 
parties were legally married. But though there was no 
legal barrier— there was a barrier in public opinion, in 
strict propriety, in that refined delicacy of the Canon 
law, which enjoins that it is better not to contract a 
new marriage until the old one is dissolved by a 
judgment of a Court. They formed the marriage, and 
from a fear of public sentiment and delicacy, kept it a 
•ecret. Colonel Preston has entertained tlie Court 



with large drafts from the Spanish law, to show that 
clandestine marriages were invalid. This is altogether 
an inaccurate account of this matter. According to 
the Spanish law, marriages were required to be cele- 
brated in public by a Priest before witnesses, and per- 
sons entering into clandestine marriages were subjected 
to severe penalties— but so far from such marriages 
being invalid, I shall show that Col. Preston exposes 
himself to the anathemas of the Holy chiu-cb, by even 
pretending that such marriages are i valid. (Read a de- 
cree from the Council of Trent, to the eOect that 
though the parties to'a clandestine marriage were pun- 
ishable criminally, yet, whoever should attempt to set 
aside the same, shall be anathematized.) So much for 
the invalidity of clandestine marriages. But the mar- 
riage, in this case, took place in Philadelphia, and 
must be governed by the laws of Pennsylvania, where 
it would have been valid though the ceremony was not 
performed by a Court or m the presence of witnesses. 

Thus have I shown an unbroken chain of evidence, 
reaching from the birth of this child to the death of 
Clark, to establish the legitimacy. However unfaithful 
Clark may have been to the unfortunate Zulime, he 
has Jeft abundant proofs of his paternal disposition to- 
wards this child. He always had a distinct vision of 
her rights. No beguilement, no fact, no incident can 
be found in his history to contradict the presumption 
that this complainant was born in conjugal union. 
Throy all the other evidence aside, the birth, acknowl- 
edgments, education— the will, so vilely suppressed, 
and the many other circumstances supporting the 
claims of complainant — and put this case upon the tes- 
timony of Mesdames Despau and Caillavet, and it is 
amply sufiiMent to establish the legitimacy of the com- 
plainant. It would be sufficient, if she had been picked 
up in the streets, or thrown into a Foundling Asylum, 
and there permitted to live, until she had attained full 
age, with no acknowledgment of her parent, or further 
proof than the testimony of Mesdames Despau and 
Caillavet. 

To contradict this state of the facts, the counsel for 
the defence have indulged in much invective. Among 
other propositions equally inadmissible, it has been 
the favorite theme of some of the counsel, that the 
vast diflerence in the fortune and condition of Clai-k 
and Zulime forbade their marrige. To ascertain the 
force of this ai-gument it will be necessary to recur to the 
period when these transactions took place. The mar- 
riage occurred in the spring of 1802. At that time 
New Orleans was a small town, the capital of a Spanish 
Province. It was governed by that most debased of 
all Governments,— that of a Spanish Viceroy, far re- 
moved from the mother country. Corruption ruled the 
day, and the greatest laxity of morals prevailed among 
the people. Into such a colony as this was Daniel 
Clark thrown, full of strong passions and ambition. 
It is iu proof that he was a dissipated man, fond of 
pleasure and gaiety. Nor does it appear that the mer- 
cantile circle in which Clark revolved was remarkable 
for strict propriety and high honor. The letters in this 
case, passing between Clark, Coxe, Chew and Relf, 
show that these gentlemen were not over scrupulous 
in respect to their transactions. Frequent allusions 
occur in the voluminous correspondence on file, to the 
bribing of Spanish officers, cheating the custom house, 
smuggling, trading under false papers, circulating and 
suppressing reports of b political nature, to eflFect th« 



THE GAINES tASB. 



51 



market!*, &c. I would ciUI particular attention to tho 
Ictteriii' C'uxo, written in lliu bantlwriting of Cliirl<, to 
Chew nnd Keif, advising tlicm to remove tlio cuutcntii 
from certuin cti»k» on deposit in llio New Orleans 
custom hoiiMN Olid tnko them out of llie buck dtwr, by 
bribiri!,' certiiin ofllcers, filling up the enipty casks with 
cbeap crockery, etc. 

Mn. UiNCAN.— That was the conduct of your own 
client's fallier ; what had Chew and Keif to <lo with it V 

Mr. Campbei.i.. — It does not appear thnt Chew nnd 
Reir expressed any crreat inditnialiou ut the »u.;r(f03- 
tion. Such was tl)e !<ta:e of morals ul that time. Ilia 
also in proof, that (;iark was an ardent, impiilaivo, 
passionate raan. '/.ulirae is described by all the wit- 
nesses as boinff very beauliftil. Her family nnd con- 
nexions were highly respectable Madame Culllavct, 
one of her sisters, and ii witness in this ca.se, has 
reache<l even now an advanced jige, and her rtpiita- 
tiun has never been sullied by lite breath of suspicion. 
Her history has defied even tho inquisitive malice of 
Reir. Madame Despau, t.K), at that time was married 
very respect^ibly, and it uj.peiirs possessed a good pro- 
perty. At that lime t lien, and in this situation of the 
partieiD, wh:it great dilTerenco existed in tho relative 
position of Clark and Zulime, which would rend(>r 
their marriage a discordant and incongruous one? It 
is to tliai time, 1802, that we are to confine our views 
as to the probability of this marriage. But after, this 
the relative positions of the parlies were es.sentially 
changed. The cession takes place. Clark gains great 
distinction IVom his connexion with that interesting 
event. He becomes a citizen of u Republic, by whom 
his talents are held in high regard. He rises to the 
distinguishe<l post of first representative in Congress 
from the new Stale of Louisiana. In ^Vashington he 
attracw much consideration, is courted by the Presi- 
dent and members of the Cabinet, mingles with the 
best society of tho land— becomes a man of fashion, 
the intimalo friend of Robert Goodloe Harper, to 
whom he lends money. And now he is quite a diflur- 
cnt man from what bo was in 1802. Now he malves 
difBcultics in the way of acknowledging his marriage 
to Zuiime. Other and more brilliant connections liave 
excited his ambition. He looks higher, nnd the poor 
Zulinie has ceased to be a proper match for him. She, 
poor creature, has in the meantime descended in the 
scale of re:>pcct ability. She has kept her marriage 
with Olark a secret, whilst continuing her connection 
with him, and has consequently fullea into disrepute. 
Confining our view to that period, the counsel may 
well say that there was a censidemblo incompatibility 
between them ; that their positions were not such as 
to render thfir union a prubablo event. Bui wc are to 
look beyond this— to the year 1802, and contemplate 
the position of the parties. A beautiful woman, much 
admired and courted by the yoimg men of the country, 
ehe attracts the admiration of Clark, who is too honor- 
able and high-spirited a man to meditate her seduction: 
or who, even if prompted by the loose ideas of the 
times to propose an illicit intercourse, would have been 
rejected by one occupying the respectable position of 
Zuiime,— under such circumstances, is there any im- 
probability, founded upon the condition and relations 
of the parlies, of the marriage of Clark and Zuiime ? 

I come now to the matter of dales, in which the 
eotmsel for the defence attempt to show that it was 
impoisible that tho«e parties could have mot in Phila- 



delphin at tho time Indicated. Their chief nillance U 
(m Coxo's depoKltion. Coxe Rpeakt of (.lark'n Ixilolj 
in Phlhulelphia In April and .Inly, li-02. .N..w, by rt- 
ferring to the letters, it will be seen that on 7th Nov., 
1801, Chew and Uelf write that Clark hiid left Now 
Orleans for Phlladelphio. On 18lh January, 180-2, we 
find Clurk in Philudelphia, writing a running letter '.o 
Chew and Uelf, which w signed by Coxe. On 23d 
April, 1802, it appeju-s thnt Clark left Philudelphia, to 
return to New Orleans. From 3d to 9lb March, we 
have on file a ninning letter from Clark to (hew and 
Relf; and there is a letter of Coxe's, stating that Clark 
len on tho 23d April. Now, where was Zuiime at thU 
time? She is here on 9ih November, 1801 ; she loavM 
shortly afterwards for Philadelphia, where she arrive*) 
according to Coxe's testimony, In the early part of the 
year 1802. She goes first to New York, to got proof of 
DeGrange's former marriage; failing in this, she re» 
turns to Philadelphia, where, no doubt, the marriage 
then look place. Tliore is, then, no incompatibility of 
dates— no dilficulty whatever of assigning the proper 
time when this marriage occurretl, or of bringing the 
parties together, so that it could occur. 

Coimecled with this branch of tho subject, is a con- 
sideration, to which I shall advert briefly, without 
dwelling upon it at much length. In the relations ex- 
isting between Clark and Coxe, the latter seems to have 
occupied the position of a mentor, who assumed a 
lordly tone towards Clark, reproving his follies, check- 
ing his extravagances, and counseling him in bia 
afl"airs, with almasl a paternal assumi)tion. Now, 
such being the relations of the parties, is it at all prob- 
able that Clark would consign his mistress lo bis sedate 
counsellor, Coxe? Coxe was n demure, well-condi- 
tioned, decorous man, whom Clark always approaches 
with respect,— never failing in his letters to tender his 
respects to Mrs. Coxe, and to obstTve a nice regard for 
all the proprieties. Now, is it within the range of the 
faintest probabilities, tliat Clark would ?ekct such a 
man as Daniel W. Coxe, to superintend the accouch- 
moiitofhis adulterous bastard. — the piitnm and pnr- 
lector of his cast-ofl" concubine? No; they might 
swear it a thousand times, and against such a mon- 
strous pretension, we should be compelled to take re- 
fuge in credulity. We should no longer entertain any 
doubts of the competency and suClcieucy of the testi- 
mony of one witness, to an event thus renden-d prob- 
able by circumstances of so strong a nature as this. 

I think it has not only been satisfaslorily "iiown that 
a marriage took place between Clark and the mother 
of this complainant, but also that there were strong 
reasons for concealing such marriage and keeping it a 
secret. The marriage being proved, no subsequent 
acts of the party could afiea tho status of the child. 
The law takes this matter in its own hands. It do«i 
not allow the caprices or passions of individuals lo 
dispossess a child of the ftaliw in which it is placed. 
It may have been the pride of Clark, or the policy of 
Zuiime, to conceal the fact that this child was bom in 
conjugal union, but the law comes m to correct the 
consequence of their errors, and to protect and es- 
tablish the true condition of their child. 

The defendants in Una case further set up the plea of 
honafide purchasers. Bui it is clear that such a plea is 
not good in opposition to a title created by law. The 
legal title being once established, under tbe dixposi- 
tiona ot the law, no subsequent acquiiitions can invsd* 



59 



THE GAINES CASE. 



that right. A pai'ty cannot transmit a gi-eater right than 
he possesses. The purchasers of the estate of Daniel 
Clark never dispossessed the heii- of her legal rights, 
and those who hold under them, have acquired no 
further title than theu* vendors possessed. [On this 
point Mr. Campbell cited numerous authorities. He 
then proceeded to argue that the parties must set up 
and prove possession and payment, which had not been 
done in this case. He referred to the pretended partner- 
ship of Chew and Relf with Clark, and the suspicious 
vai-iation in the act of partnership, which, he said, was 
a mere executory contract, which had never been 
carried into effect. He also chai-ged Relf with an 
attempt to corrupt the testimony in the case by his 
letters to Bellechasse, from whom he hoped also to 
snatch the remnant of property, which had been placed 
by the assignment to Bellechasse, beyond his reach. 
He referred also, cursorily, to the plea of prescription as 
not being applicable to the case, and concluded as 
follows :] 

Thus, may it please your Honors, have we establish- 
ed the status of this child, and shown that the defend- 
ants are not protected by any law from the consequen- 
ces of that status., to wit : the recovery of the property 
of Daniel Clark, belonging to him at the time of his 
death. We have proved to you that Clark did make 
a will in 1813, that he showed it to his friends, and fre- 
quently spoke of its provisions as being intended for the 
benefit of this complainant. When that will had been 
made, just as the breath was passing from Clark's 
body, Relf gathered up the keys, and was seen in the 
room where the will was indicated by Clark as having 
been placed. We have shown that Relf made a vari- 
ation in the act of partnership of 18-20, and that he 
sought, through his correspondence with Bellechasse, 
to defraud the estate, and corrupt the testimony so as 
to prevent the recognition of this complainant's rights. 
And now we think a case of fraud is made out, which 
the subsequent purchasers must inherit. They sit in 
the seat of their grantor ; they are affected by all the 
previous frauds and misconduct of their vendors. They 
must restore the property of v/hich this complainant 
has been so unlawfully dispossessed, and thus te: 
nate the long period of privation, of suffering, of toil, 
and persecution, to which she has been exposed in the 
wearisome and exhausting prosecution of her rights. 
ARGUMENT OP GKEER B. DUNCAN, 
For Defendants. 

One of the Judges of this honorable Court having 
expressed a desire that we shotild show wherein this 
case differs from that of Patterson's, I shall proceed 
consider that case in two aspects. First: as to the 
facts in the record, and the circumstances connected 
with its concoction ; its fraudulent design and unlawful 
purpose, so far as the parlies to it were concerned. 
Secondly : the law of the case, per se, and as differing 
from the present case. The proofs and trial in the Pat- 
terson case were collusive ; the proofs in this case are 
taken in real contestation, and the trial will be one of 
fair and open battle. There are no previous agreenicuts 
or understandings in this case. There is no more in 
common between the two cases, than there is between 
righteousness and fraud— between honor and disgrace — 
between virtue and vice— between light and darkness— 
between honesty and crime— between heaven and 
Jiadee. 



What are the facts ? A suit is instituted against fifty 
and more persons in the same Bill in Chancery — Patter- 
son being one of them. The principal defendants were 
the executors, and old friends of Clark, Chew and Relf. 
rVll the other defendants, who derived their title from 
them, naturally looked up to them, and consulted with 
them on their defence. Patterson withdrew from the 
other defendants — went to trial alone, without even ad- 

ig his co-defendants of his intention, or asking their 
cooperation ; and now, it is pretended that the other 
defendants are bound by the judgment rendered against 
him. In 1840, whilst defendants were engaged in con- 
sultations on theu' defence of this case— on 21st April, 
Patterson breaks loose from forty co-defendants— dis- 
misses his then counsel — engages another not before 

•loyed in it— on 21st April, 1840, files an answer. 
To this answer there was no replication. Two days 
after the case is brought to trial. On the next day, 24th 
A]3ril, trial closed, and the case was taken under con- 
sideration by the Court. On 25th April, 1840, two 
papers were filed in the case, one being a supplemental 
answer of defendant — thus patching up their case after 
it has gone to the Court. On the same day the decree 
of the Court is rendered ; on the same day it is signed. 
This decree was written by the counsel for complain- 
ant — it is in his handwiiting, and was handed up to 
the Judge the day before it was entered up and signed. 
The Court grants the prayer of defendant for an appeal 
— by agreement of parties, bond and security are dis- 
pensed with; Patterson expressly waives and dis- 
penses with other parties to the hearing, or deci- 
sion. It is necessary to discharge Preston, who 
would not cooperate in such an arrangement ; the 
parties, too, must not appear too loving ; they must 
make a show of fight. The consideration of this agree- 
ment with Patterson is the security of his property — 
the quiet of his possessions. The proofs develop the 
whole conspiracy. Patterson tells us the property con- 
tinues to be his. Complainants have promised never 
to disturb him. The object in view was not Patterson's 
small lot,— it was to forstall the opinion of this Court ; 
they expected points to be adjudicated against these 
defendants without their having had the advantage of 
a hearing ; they expected to alai-m other defendants, to 
procure compromises, and to excite the cupidity of 
adventui'ers and capitalists. The chaiges, in this case, 
between these friendly parties are very serious — on the 
complainants' side, fraud is chai'ged against defend- 
ant,— and the latter responds by impugning the virtue 
of complainant's mother. Yet, how friendly, agreeable 
and complacent they are ! Patterson proves that Mrs 
Gaines promised not to take the property from him 
which she had recovered; she gave him a writing to that 
effect,— General Gaines and wife paid the costs of 
the proceeding. He says, too, that interviews were 
held between them — frequent interviews. The same 
offer was made to Judge Martin, who Indignantly 
declined it. Defendant is indemnified against all fees 
and costs. Neither he nor his counsel ever consulted 
with the other defendants. The very testimony upon 
wliich the opinion of the Supreme Court is founded, 
is not filed in the Circuit Court until the lapse of at 
least one hundred and ten days after the decree was 
made final in the Circuit Court. There is, therefore, no- 
thing in common between this and Patterson's case. 
Again : the answer of Patterson was put in not un- 



THE GAINES (-ASE. 



58 



der oath. This fact la n promlnont feature, in the 
opliiioiuif the Supreme Court. Howard, 5t*4. Tlie 
Supreme Court express their surpriso that the cii«e 
wiw tried as it was, •' at the eunu-wt do»ire of botli par- 
ties ; " that no suK^estion waj» made in llio court below 
that it would direct un issue to be made for the trial of 
the lej{itinnicy of Mrs. Gaines liy u jury. 6 Howanl, 
584. In Ihia resiK-ct, too. our case dilTers fKira that of 
Patterson. (Jur luiswer is under oath. In the Patter- 
son caae Madame Uespau, llie witnesfito the marrlaKe, 
Stands, says the Supreme Court, uncontradicted and 
unlmpeached. Wo have shown that Madame Despau 
is not a witnesa to the truth, and is not to l>e believed. 
The decision of the Supreme Court of tlie United Slates 
may be made a subject of criticism and examination, 
especially in cases depending eitlier upon generai prin- 
ciples of civil law or the textual provisions of our code, 
there being no civilian on the bench. The case of 
Gait et at vs. Galoway et al, 4 Peters, 344, is an illus- 
tration of one of the errors into which our Supreme 
Court fails through ignorance of llie Stale jurispru- 
dence. In that case it was decided that a sale made by 
an agent was not good because the principal was dead 
before the act was done. This would not be good law 
in Louisiana. Suppose such a case were to arise in 
this State, would not the court be bound to decree ac- 
cording to our jurisprudence ? To declare that the Su- 
preme Court would not correct an error when con- 
vinced of it, would be a gross contempt of court. 

The following reasons are urged why this court 
should review and correct the errors in the Patterson 
case: 1. The judgment was rendered by but Ave 
judges, not one of whom was conversant with civil 
law. 2, The court was not aided on either side by a 
lawyer who had ever practiced law in Louisiana. 3. 
On a late occasion, ajudi,'e of the Supreme Court, in 
giving a dissenting opinion in a Louisiana case, de- 
clared most solemnly thai if the opinion in question 
had not been pronounced by his brother judges, he 
should not have suppos<M there could ha\e been any 
difficulty in the question. In the Patterson case, as the 
evidence was arranged, I see not how the court could 
have reached any other conclusion. 4. One of the 
judges of the same court giving his own and theopin 
ion of the Circuit Judge, now sitting in this case, de- 
clares il to be unjust to either party to determine a 
case relative to the title of a fragment of a largo grant, 
when ail the parlies to be affected by such decision are 
not before the court. 

This case, therefore, ought to be heard, without 
reference to the Patterson cjise. ^Ve have shown that 
that case was a fraud, and this complainant ought not 
to profit by her wrong. It is to bt* regretted that we 
have not the ancient writ of "Leproso .^movendo," to 
extirpate this case from the records of this court. 

Since the decision in the Patterson case, the plaintiff 
has amended her pleadings, and set up that judgment 
as a fact, to which w^e respond that it was a fraud. 
We dcnounceil it as an unclean thing,— that it was not 
a fair trial, even between the parties, — that the court 
was imposed upon. 

In the Patterson case, the court decided that the 
testimony of .Madame Despau, being su^ained by cor- 
roborating circumstances, must outweis,'h the answer 
of defendants under oath. We show that JIadame 
Despau cannot be received as a channel of truth,— 



that nho Is not corroborated, and that !>he U contra- 
dicte<l by every well atleBt«-d liiot in the pcord. 

Let as proceed to an examiimtion tif ihl* cafe: 

1. Was Daniel Clark ever marrie<l to Zulinie, n«e 
Carriero? We hold the negative; the complainant, 
holding the afllrmatlve, must pr<jve it. Thin Is the 
more incumbent, an the preteiule<l marriage was kept 

secret from the world, and wiw noi m:uiifesi.-d by 
the usual evidences of such facts in all Christian lands. 

Madame Despau sweam positively that they were 
married. Is it not strange that there shouM bo no 
other evidence of such a fact In the history of a man 
like Daniel ' Clark ?— no evidence of his intimalo 
friends — nuihing during the twelve years after It oc- 
curred, aniitlst his family and friendly letters, which 
are as abundant as the leaves of tlx; forest, having the 
most distant reference to this important fact? I>et us 
examine Madame Despau, whoso statement, under 
oath, is opposed by that of the defendants also under 
oath. 

In equity, the answer of the defendant is conclusive 
in his favor, unless overcome by testimony of two 
opposing witnesses ; or, of one witness swearing posi- 
tively, and such other facts as are equal to the unqual- 
ified testimony of another witness. Story's Equity, 
vol. 2, 743^; 2 Ak., 10-140; I Vesay,97; IJohns, 
Chun., 459-462, and other authorities. 

The witness Despau was examined under oath In 
June, 1803. Then she answers without hesitation that 
Clark was married in Philadelphia in 1803, by a (Jalholic 
priest, and that she was present at the marriage. On 
16th October, 1845, she Is again e.xamined. It is a 
powerful instrument in the investigation of truth, to 
compare statements made by different witnesses at 
different limes, and see if they agree in material points. 
If there are small differences in the accounts of the 
same transaction, it is considered by the best writers as 
indicating the absence of collusion ; on tlie other hand, 
when there is a striking similitude in the very language 
of the witnesses, it raises a suspicion of collusion. The 
two depositions of Madame Despau, tiJten six years 
apart, and before different magistrates, not only 
agree in general facts, but the very same language is 
employed by her. In this the.'e was either collusion 
or a miracle. The inference is irresistible, that she had 
taken advantage of the publication of her testimony. 
It was no doubt prepared for her, and she signed it, 
the magistrate who took the same abusing the trust 
and conlldence of this court. All the facU show that 
there was deliberation and preconcert in this testimony, 
and that it was a family aSuSr. 

The original bill in this case was filed Sfilh July, 1836. 
On 11th DecembiT, 1848, the last amended bill was 
tiled. Thus they had thirteen years and over foor 
months to conform their averments to their effects. 
And yet, in their amended bill, we find this clause: 
"That the said Daniel Clark was lawfully married with 
Zulime, n^e Carriere, at the city of Pliiladelphio, in the 
State of Pennsylvania, in or about the latter part of 
the year 1802, or the early part of the year 1803." 

Here is a considerable margin reserved. Of this I 
shall not complain, b\it allow them the grace of six 
months, making our field of inquiry from Isl of Co 
lober, 1602, to 1st April, 1803. This is a liberal con- 
cession, considering that the complainant has been 
aided by her mother, who conld hardly have forgotteo 



54 



THE GAINES CASE. 



that most memorable of all days m a woman's life 
that of her marriaee. We take issue on this point, 
and aver that Clark was not married to Zulime Car 
riere in 1802. Madame Despau's testimony, which 
had been previously taken, fixed definitely the time 
of this marriage; but in 1S49, the complainant hav- 
ing penetrated the muniments of the defendants, 
deems it proper to take the testimony of Madame 
Despau. How does she answer these interrogatories ? 
She repeats the old story with an essential varia- 
tion. She now, on the 19th of aiarch, 1849, swears. 
"I was present at this marriage. This, to the best 
of ray recollection, was in the year 1803; although 
there are some associations in my memory, which 
make me think it not improbable that the marriage 
may have taken place in the year 1802. My impres- 
sion, however, is that the marriage took place in the 
year 1803. It was, I remember, a short while pre- 
vious to Clark's going to Europe." 

Is not this a cunningly devised effort to save a wit- 
ness. In her two previous depositions she swore post 
lively it was in 1803, now she believes it was in 1803, 
and refers to "associations," etc. In 1839 and 1845, we 
hear nothing of these associations. Who put this 
notion in her head in 1849 ? I answer,, it had been 
discovered by complainant that we shouM prove that 
Clark had been in Philadelphia in 1802, but iiot in the 
latter part, or in any part of 1803. Hence the neces- 
sity for this ansv/er, to retreat fj'om her former position, 
and at the same time to do it in such a delicate man- 
ner, and with such tact as to appear to glide naturally 
towards the truth. But even this, her last retreat will, 
I apprehend, prove an ignis fatuus to the complain- 
ants, leading them into a morass from which they can- 
not escape. 

The parties must be held to their pleadings. Madame 
Despau still adheres to 1803, though she states the 
marriage was pi-evious to a certain fact, which she 
must have known rendei-ed the other statement utterly 
untrue. Clark left New Orieans for Europe via Phila- 
delphia, in June, 1802. He was in New Orieans, 15th 
of June. Ke arrived at Wilmington 20th July, 1802. 
Here he was detained in quarantine five or six days. 
He was then on bis way to Europe, about a business 
which gave him great distress of mind. On arriving at 
Philadelphia, Coxe says he commenced making pre- 
parations for an immediate departure for New York, 
whence he would proceed to Europe. Coxe writes to 
Chew and Relf from Philadelphia, 6th August, 1802, 
that Clark was to leave the next day for New York. 
Clark writes to Chew and Relf from New York, on 
13th August, 1802, that he would leave the Tuesday 
following, which would be 17th August. Coxe, there- 
fore, was very near the fact, when he stated that Clark 
left previous to the middle of Aug\ist. Clark, then, 
was in New Orieans from 1st to 27th Jime, 1802, and 
after that time was not in Philadelphia, except from 
28th July to 7th of August, or ten days. Is it to be 
believed that in that time, he satisfied himself of the 
invalidity of Zulime's previous marriage with De- 
Grange, had the marriage ceremony performed, as 
testified by Madame Despau, kept it unknown to his 
friends— then abandoned his wife, without mentioning 
the fact to his family, his mother and sisters, but leav- 
ing the poor stranger alone and unfriended, in a for- 
•ign country. 



I have shown that within the last six months of 
1802, Clark was in Philadelphia. I will hereafter show 
that those were the only six months he was there, and 
that he could not have been married to Zulime at that 
time, for the very good reason that she was not there. 

Clark sails for London, 17th August, 1802. On the 7th 
October he writes from Liverpool. On the 1 3th and 22d 
of October, he writes from London. On the 16th of 
November, he writes from Paris. On the 23d Decem- 
ber, 1802, he writes from the River Mersey. It is clearly 
proved, that he sailed direct from England to New- 
Orleans. R. D. Shepherd says he knows Clark arrived 
here in mid winter, in 1802-3, in a vessel direct from 
Europe. The same fact is proved by Coxe. in a 
letter, in 1807, Clark refers to his return from Europe 
as occurring in March, 1803. In the face of such tes- 
timony as all this, what is the declai-ation of Madame 
Despau worth, when she swears before this Court, that 
she saw Daniel Clark, in Philadelphia, in the latter 
part of the year 1802 or the commencement of 1803. 

To make this matter still clearer, we will show that 
Clark was in Philadelphia during no pai't of 1803. 
Coxe and Clark were old, intimate friends ; they were 
acquainted from 1791 till 1813, the time of Clark's 
death ; they were partners from 1792 to 1811. When 
Clark went to Philadelphia, he was always the guest of 
Coxe. In 1802, Clark confided to Coxe his mortifying 
connexion with Madame DeGrange, and entrusted her 
to his care during her accouchement. He consulted 
Clark in relation to his anticipated maniage with a lady 
of high family connexions. 

Clark could not have been in Philadelphia, without 
Coxe knowing it ; and Coxe positively asserts he was 
not there during any part of that year. But, on this 
point, let Clark speak for himself. He has been in his 
grave for thirty-seven years ; but I summon him back 
to rebuke this ill-planned conspiracy against his good 
name and character. 

[Mr. Duncan here sketched, with gi-aphic ability, the 
political situation of affairs in this countiy, just previous 
to the cession of Louisiana, by France ; and dwelt upon 
the serious duties imposed upon Clark, who was then 
American Consul, to remain at his post here, watching 
the progress of events.] 

The records of the office of Secretary of State, show 
that there were seventy-two letters on file from Clai-k. 
but two of which were in 1802— one the 1st and one the 
22d June, 1802. There are no more from him, until 23d 
December, 1802, when he writes from the River Mersey, 
to Ur. Madison. His next letter is dated New Orieans, 
8th March, 1803, and so on his letters follow one another, 
at a few days interval, through the whole year, 1803 ; 
but one, that came from Natchez, being written out of 
New Orleans. 

It is, therefore, shown by his own works that it was 
impossible for Clark to have been in Philadelphia, in 
1803. Was testimony ever more crushing, more deso- 
lating, more terrible upon a witness, who has sworn 
more than once that Clark was married in her presence, 

Philadelphia, 1803? 

[Mr. Duncan then proceeded to examine the record 
of the divorce suit of M. Despau against his wife, the 
witness— showing that she admitted the allegations 
made against her by her husband. Several cross suits 
arose out of this affair, until finally, February 8, 1808, 
the husband flies an amended petition, alleging that 
his wife had utterly forsaken her children : 



THE GAINES CASE. 



55 



"That the dnpraved conduct of Sophia Carritre MW 
foiiiiniio to lend on by scandalously teMag out from 
thin Territory, whore k1>(> loft her chlldrun to the carool' 
nubudv, entitio your pelititvuer U) pruy yuur lionoriiblu 
Court to render void the conserviitory opposition form- 
ed, in cou$€qucnce, in sjiiteof all Intra and regulations., 
hertcaiting a waniitrinfr and rambliso Liri, with- 
out any RBOARD FOR THE PR1NCIPI.1£S Of HONOR AND 
DKCCNCV — LIVISO IN OPKN ADULTERY.''] 

I'nder that noble and vcnernbio system of laws upon 
which our present system rest*, the fuels alleged here 
against the wife, if proved, worked a forfeiture of all 
her marital rights- Accordingly, on February 1"2, 1808, 
we And a judi^ment of forfeitiu^ entered up against 
said Sophia Carriiire (Madame Despau) by that man 
who wo8 equally prompt on the battle field to rejK'l an 
invading foe, und energetic in Iho di.s:hnrge of his 
Judicial duties, the incorruptible Joshua I^ewis. 

Is this woman, thus described by her own husband, 
and thus condemned by Judge Lewis, to be believed in 
opposition to a man of Daniel Cliu-k's high und honor- 
able bearing ? In conflrmution of this record, wo have 
the testimony of !?lephen Camiby, of Mndumo Ducor- 
nau, nee VillertS one of the best families in Loui- 
siana, of P. J. Tricou, of Madame Duchnnfour, the stop- 
daughter of the complainant's mother, of Madame 
Bournes, of M. Courcelles, of Jlrs. VValkins, widow of 
the distinguished physician, — H. J. Domingo, who 
knew both the sisters asfcmmes gailantes. Such is the 
character of the witness who is brought forward to 
swear away the characters of high-minded and honor- 
able men, who have lived in this community for up- 
wards of fifty years, without spot or blemish upon their 
reputations— reputations made by honest, careful, 
attentive regard to their own respective business and 
occupations. This is the character of the witness pre- 
sented here to swear away the property of men who 
have acquired it by hard induslrj-, as tlic fruits of enter- 
prise and economy, to be giveu with their own untar- 
nished names to their children, who are to occupy their 
places. 

I have thus far shown that the fact asserted by com- 
plainant's chief witness, and which is the pivot of her 
case, that Clark was married in 1803, is utterly un- 
founded,— is contradictol by Clark's own acts. I shall 
now show that this statement of Madame Despau is 
also contradicted.by the acts of the other party to this 
marriage. [Mr. Duncan here referre<l to the suit 
brought by Zulime Dellrange against her husband, 
Jerome, for alimony, in 1805, two years after her pre- 
tended marriage with Daniel Clark, which suit she 
prosecutes to a judgment, and obtains §5(10 per annum, 
as alimony, aguinst his estate.] In her petition in this 
suit, she alleges •• she has been barbarously treated by 
her husband, and likewise that she has been deserted 
by him for three years past, to wit, from the 'Jd day of 
September. 180'2,even until this day, although she has 
been told that the said Jerome DeGrange returned from 
France to New Orleans, some time in the course of last 
month, and is now in the city t>f New Orleans." Thus, 
we are to take it for grante<l, tlint from Hth November, 
1794, to 2d September, 180i Jerome continued to 
live with Zulime DeGrange, as her husband. There is 
another suit of Madame LeCJrange against her hus- 
band, brought 24th June, 1806. The petition cannot be 
found. The suit was for a divorce, and a decree was 
rendered in her behalf on the 24th July, 1806. How. 



then, could ehu have been the wife of Clark pivvloiw 
to this time 1 Would the proud Clark have ullowcd 
hi'< wife to priweeiUe buch u niuii an IX-Gruni,'" f'W a 
siip[>ort? 

I'orlunalely, there is evidence to vindicate the char- 
iicler of the ajuiplainanl's mother ugulunt the bUwlinu 
imputation which is cafl up<m her by her own 
daughter, of having three living hu-bands at the same 
time. The Supreme Court, In the Putlersoii cu«e, say* 
"that the conduct <>f the purlieu, in not promuluiiting 
their marriage, and not occupying the same Iioum 
upon their return to New Orlemis, tc, would be a good 
objection, until it has been reasonably accounte<l for." 
I think this living of the jMirties opiu-l is not so difficult 
to exploin us tlie above transactions of Zulime. 

To settle the question of bigamy as to DeGrange, we 
introduce the records of a prosecution avalnxt De- 
(Jrunge before the Ecclesia-stical Court. This was a 
solemn investigation, under peculiarly impres.-ive cir- 
cumstances. This trial commenced September 4, 
1802. [Mr. Duncan here recapitulated the testimony 
of Jerome DeGrange, of Madame D'Orsi, Madame 
Vllur. and Zulime DeGrange, all negativing the charge 
of bigamy against DefJrange.] The decree of that tri- 
bunal dismisse<l the charge against DeGrange. Madame 
Di-spau's stor>- is, that hearing that DeGrange was 
a married man, they (Zulime and herself) went to 
New York to get proofs of his previous marriage, 
which she was imable to do, u-s the records had been 
burnt. They went to Philadelphia, where Dr. Gardette, 
assuring them he had witnesseil DeG range's marriage, 
the scruples of Zulime were overcome, and she was 
married to Clark. This was Madame Despau's state- 
ment in 1849. Zulime gave quite a diflerent account 
ofit in 1802, when ever>thing was fresh in her memory. 
She says that about a yeiir before, which would be in 
Mil, she procee<led to New York lo ascorlaiu the truth 
of the report of DeGrange's bigamy, and whilst there, 
she I earned '■'■on\y that he had courted a woman whose 
father not consenting to the match, it did not lake 
place." Which of these accounts of the same transac- 
tion, at forty-seven years' difierence of time, shall we 
believe? Madame Despnu enlarges her story, she 
says, DeGrange's wife arriving here, he was an-sted, 
tried for bigamy, convicted und imprisoned, and es- 
caped by the connivance of Le Briton D'Orgenois. 
They cannot get the record proof of these proceedings, 
because the records were oirried off by the Spanish 
officers after the cession. Even this tact would not 
allow them to introduce secondary evidence, because 
if such record existed, either in Spain or Cuba, they 
were bound to introduce it. 

This ecclesiastical record contradicts all these state- 
ments. The records in the two suits by Zulime against 
Jerome, in 1805 and 1806, als<i contradict this story of 
DeGninge's llight ond escape from the counlrj-. What 
cause hod he to fly the country, after his acquittal be- 
fore the competent Court ? 

In the suit, in 1805, the citation is returned, served on 
DeGrange ; and Jacob Hart testifies that he was here in 
1806-T. It is unfortunate that the petition for divorce, 
in 1805, cannot be found. It is easy to imagine who 
had an interest in its destruction. Is it not mort> pro- 
bable that the ground of that application was her deser- 
tion, rather than the bigamy of which DeGrange, but a 
few years before, had been acquitted— in fact, on her 
own te«timony ? In 1806. they took another trip to the 



56 



THE GAINES CASE. 



North, to get proofs of the marriage with Clark— he 
having refused to promulgate their raan-iage. Why 
did she wait for him to promulgate the marriage; why 
did she not assume the prerogatives of a wife, enter 
and take possession of Hie homestead? She had 
Madame Despau with h'jv to back her pretensions. A 
Mr. Dorsier, of New Orleans, too, it is said, was present 
at the marriage. He could prove it. When they get to 
Philadelphia,they find that the priest,who married Claik 
and Zulime, had gone to Ireland. What of that! Could 
they not send to Ireland for his deposition ? These are, 
certainly, very strange people. At one time, Zulime 
goes to New York, in search of evidence that DeGrange 
was a married man ; and, the consequence is, that in 
Philadelphia, she falls in with Clark, and marries him. 
At another time she goes to Philadelphia in search of 
evidence that Clark was a married man — failing in 
which, she marries Dr. Gardette. Hei- missions to Phila- 
delphia seem to have had a very peculiar effect upon 
her —it seems to have been the very Palace of Venus, 
in the bower of love. Jladame Despau says her sister 
Zulime was 19 or 20 years of age, when she married 
Clark. If this event took place in 1803, she must have 
been but 10 or 11 years old, when she married De- 
Grange in 1794. 

[Mr. Duncan next commented on several of the dis- 
crepancies in this testimony.] 

I now take up the other sister, Madame Caillavet. 
In 1849 she testifies that she was intimate with Clark, 
her intimacy growing out of his marriage with her 
sister. She was not present at the marriage, but it is 
within her knowledge, both from information derived 
from her sisters at the time, and from the statements of 
Mr. Clark, made to her during his lifetime, that a mar- 
riage was solemnized. In her previous deposition, 
taken May 2-2, 1835, she says: "The preliminaries of 
the contemplated marriage were settled by the hus- 
band of the witness, at his house, in the year 1802 or 
1803, in the presence of witnesses who went to France 
some time after the said arrangement, but previous to 
the said mari-iage alluded to. Witness has constantly 
resided in Fi-ance since she went there, and she re- 
tui-ned here within the last fifteen days. " 

How can these statements stand together ? She states 
she heard of Clark's marriage with her sister by a let- 
ter received secretly from her sister. Sh9: says in 
another deposition, that she heard it from Clark him- 
self. She says that her sister Zulime heard of De- 
Grange's bigamy in 1802, and came immediately to 
reside with her family. Zulime says that in 1802, 
these reports of DeGrange's bigamy gave her no unea^ 
siness. She says, that to her knowledge, DeGrange's 
previous wife came to New Orleans, and while there, 
fully established her pretensions. The pretended wife 
of DeGrange contradicts all this under-oath. We have 
a guaranty of this lady's respectability in the fact, that 
she was then a visitor in one of the best families then 
or now in Louisiana — that of Bernard Marigny. This 
witness, Madame Caillavet, flies into a passion about 
her testimony taken in 1835, before G. Preval, and 
says it was mistranslated and garbled. The gentleman 
who took that testimony, speaks the Fi'ench as his 
mother tongue. Further, the very fact which she says 
she did not state on that occasion, as a proof that the 
deposition was garbled, is not to be found in that depo- 
altiou. 



I come now to the testimony of the defendants. We 
have proved, i st, that Clark, dui-ing the whole year 1803, 
was in New Orleans, except the months of January 
and February, when he was on the seas. 2. We have 
shown that in September, 1802, Zulime DeGrange 
acknowledged that she was the wife of Jei'ome De- 
Grange. 3. We have shown tliat the subsequent con- 
duct of Clark and Zulime negatived the presumption 
that they were ever married. We instance the suit of 
alimony, the suit for a divorce, brought by Zulime 
against DeGrange in 1805 and 1806, and finally her mar- 
riage with Dr. Gardette, by whom she had three chil- 
dren. If Clark was then living and was married to 
this complainant's mother, then did she live for twenty 
years in open adultery with Dr. Gardette. You expose 
Clark to the imputation of deceiving and abandoning 
your mother, and finally of imposing her upon Dr. 
Gardette as an unmarried woman, and you expose 
your mother to the penalties of the laws of Pennsyl- 
vania for the prevention of adultery and fornication. 
Here we find a terrible and fierce hue and cry against 
Jerome DeGrange, on the alleged ground that he had 
imposed himself upon Zulime in marriage, when he 
had another wife. They say that the community was 
aroused, the good old Catholic Patriarch of Louisiana, 
the venerable and venerated Father Antoine, took part 
in the proceedings. DeGrange was, they say, arrested, 
cast into prison, from whence he secretly escaped— left 
the country, and was never heard of again ! The mon- 
ster— the brute ! ! And yet the same parties wish us 
to believe that this lady. Madam DeGrange, did the 
very same thing in 1808, when she married Gardette, 
having herself then a lawful living husband, Daniel 
Clark! And yet they come here and appeal to the 
equity of this Court ! 

3. Her subsequent acts preclude the idea of her hav- 
ing plighted hei' troth to Daniel Clark. She performed 
none of the dutiesof wife— ministered not to his afflic- 
tions-attended not his sick and death-bed — she fol- 
lowed not his remains to the grave, and watered it 
not with her tears. She never sets up any claim as 
his widow, until a third of a century after Clark was 
in his grave, when she comes forward before Christy, 
Notary, I'ecords her acceptance of Clark's succession, 
and on the same day conveys all her rights, as the 
widow of Daniel Clark, to her daughter, Myra, this 
complainant, by virtue of which the latter claims a 
moiety of Clark's estate. This, after she had worn 
mom-ning, and claimed her rights as widow of Doctor 
Gardette! After her marriage with Dr. Gardette, Zu- 
lime seems to have fallen into happier influences. Her 
husband was an honorable man, and exei'cised over 
her a proper influence. She became an exemplary 
wife and mother— she raised a family of children by 
him— she was introduced into the best society, and 
was respected by all persons who knew her— she 
lived with Dr. Gardette until his death, being a period 
of twenty years, and received all the rights of his 
widow— she had fully redeemed the faults of her youth. 
But this does not suffice this complainant, who insists 
upon her degradation, upon making her children, by 
Dr. Gaidette, " adulterous bastards," to gratify this 
fell desiie for property. 

In further confirmation of these facts, which negative 
the allegiilion of this marriage, we have the declara- 
tion of Zulime to Mr. Coxe, in Philadelphia, when 
she states that Clark's engagement to Miss Caton waa 



THE GAINES CASE- 



i7 



u violutiou uf Lis pruiulati to luurry hot, and that bliu 
uow coii!<'ulored IiltbuU" ui Uborly U> marry sonio oiio 
else, alluding, dimbtlusw, to Dr. iJiirdettu, who, ut tlw 
inuiiK'iil ut° tbis di»clusiu°u, t>iili-ri-d Ibu ruoiii. Thero 
wus no motive for uoiicoulmeiit on this occaaioa ! 

Cuu we believe tliut tbi» woman, wlio Tfareil so much 
the cuntamiimlint; touch oX llit> bi^lmi^^l, DeUrauge, 
uiid who, uCcordiiiK to ber Hislerit, j>ul lierttell' to so 
much trouble to st'curo his cuiivictiuii uud puiiisbmeiiL, 
would rush, herself, into the same horrible crime? 
No I The circumstances sueifest uii easy and satislnc- 
tory explauatiou. Clark had, ito doubt, in the ardor 
of his devotions, promise*! to marry her. She clung 
to this hope until it was dissipated by his allenlions to 
Miss Caton, when she (Zulime) very prudently and 
properly marrie<l Dr. Gardelte. 

[Mr. UuDcau Uien proceeded to dwell upon the high 
aud honorable diameter of Clai'k, as utterly inconsis- 
tent with the act attributed to him of imposing upon a 
woman and the public ; be aL-so referred to the concur- 
rent statement of all the witnesses, that he was always 
considered in the comuiunily a bachelor, concluding 
that Clark either lived uud dii.-d unmarried, or eUc 
be was one of the most corrupt and diuigcrous men 
that Providence Und ever sutfered to prowl about so- 
ciety to contaminate it with his i)resence.] 

Clark lived for more than ten years al^er this alleged 
marriage, and yet there were no proofs whatever of 
their living together us husband und wife. Madame 
Uespau says be took tea with them almost every even- 
ing ; that Clark furnisli<-d a house for tbem. This was 
at the very time that Win. Despau was suing bis wife 
for abandoning her children, and " leading a wondering 
aud rambling life," living in open ailultery. Madame 
Uespau says Clark stated that he had told Coxe, Davis 
and Relf of his mairiagc. -Ul these gentlemen deny 
the truth of this statement. 

Clark was a land speculator. He bought and sold 
land. He knew the rights of wives, uud that it was 
necessary for them to join in soles by husbands. In 
which of his numerous sales, does Zulime join him V 
None ; no, not one. And yet this complainant would 
show that he committed a gross fraud upon all persons 
to whom he sold, iu not securing the renunciation of 
his wife. 

[Mr. Duuean next referred to Clark's courtship of 
Miss Caton, as conclusive that he was not miu-ried, ond 
quoted tlie letters and evidence referring to that fod.] 
No one would believe that Clark would oildress a lady 
whilst he hod a wife living. The presiding Judge of 
this Com-t intimated Uiat the children of Mrs. Uarues 
were estopped I'rom denying the declarations of their 
mother. Shall not this complainant be estopped from 
denying the acts and words of her father ? 

It is equally clear, from Clark's own lettei-s to Coxe, 
that he had, previously to his olliiir with Miss Caton, 
been addressing Miss Lee, of riiiladelpbia. (Read 
letter of Mrs. Coxe, referring to this affair.) Would 
Clark have received such letters, and kept up such a 
correspondence as this, when be was, in trutli, a mar- 
ried man,— would he ploy off such au imposition upon 
these highly resi)ectable people '! 

Next, we have Clark, iu ISiX engaging himself to 
Madame Lambert. (Read evidence on that point) 
At or about the same time, Clark was puyiug hib ad- 
ikesses to another lady. Miss Chew. What hU)s that 
lady in answer to the query if Clark was a uiarri<-d 



man V " Ho certainly was not a married man ; he g»ve 
ine every jiroof of Ibutu genlliMuun could give a lady." 
And we liavd lhi< letter from Clark's own Killer, dated 
Liverpool, .May 3, letHi, relerrlir.; to a tuili.'ltu pri-pared 
for him, which she hoped may be intended for a Mfb. 
Clark : " ."^o much ilo I wish to seo and hear that 
name worthy of you ;" aud Clark's reply, precluding 
all idea of soon forming a matrimonial alliance. TliUi 
was two years after the complahiant was born. Tlien, 
t(K», we have the fact, that Clark was frequently in Phil- 
adelphia after Zulime's marriage to Dr. Canlctasand 
never hear of his objecting to another man's living 
with his wife. Who that knew Clark believes so pre- 
jMjsterous a story as this? To complete this evidence, 
so far as the acts of Daniel Clork uro concerned, wo 
have his will of 1811, which he could not havi; made 
if he had been a married man, and which gives bis 
whole estate to his mother. In this connection, Mr. 
Duncan referred to the interview between Mr. Mazu- 
reau and Clark, respecting the latWr's inability to 
make a will in favor of complainant, und inferred what 
the other proofs confirm — that he followed Mr. Mazu- 
reau's advice, and made confidential assignineiiLs to se- 
cure his natural child ; and, having done nil that nature, 
and more than the law required of him, turned his 
tbougbts to his mother, aud gave her the n-maiuder of 
his property. He then jjroceeded to show the great 
SDciid disparity between the parties: Clark, a di»- 
tinguished aud high-spiritwd man ; und Zulime, a 
woman of tainted rejjutatiou — a feinme gaitanU. Ho 
cited the testimony of the various witnesses on this 
point — all proving that their connexion was one of 
illicit love ; and that if it had been suggested that he 
1 was married to her, he would have turned away with 
loathing and disgust. 

He then proceeded to comment on the New Vork 
marriage certificate, couteudinif lliat it hud been in Iho 
possession of the complainant in 1*10, previous to the 
trial of the Patterson case, and yet was not filed iu thai 
case. It was, too, suspiciously kept seca-t ; aud the 
] fact to be proved by it, was sought to bo proved by 
oUier testimony. After all, the certillcato only proved 
that one Jacob l^Grange, not Jerome, was married. 

But if DeGrangc had committed bianimy, she could 
not marry until her marriage was annulled by a judg- 
ment of a court. He then dwelt upon the hone!<ty and 
legality of idl the proceedings of Chew and Relf, as 
executors, in the disposition of Clark's effects, imd 
j (juoted largely from Clark's letters, to prove his embar- 
: russments and the worthlessncss of his estate. In hia 
i letters to Cpxe, he soys he is only enabled to sustain 
' himself by getting a continuation of his cretlil on the 
U>uisiana Bank, through Relf's infiucnce. He also 
offers to transfer all his property to Coxe for 5-.a,00(l. 
I Read numerous other lettei-s, showing how Clark's 
1 colossal fortune bad shrivelled up— how imreal it was, 
' aud how, after weeping over the prostration of bis 
golden hopes, he sunk under the pnssure of his em- 
barraosmcnt into the grave, a broken-hearted man. 
. Ami yet, when writing llicse desponding letters iu 1813, 
j we are told that Clark was rioting in wealtli, uud i>omp- 
I ously prepariug ^ the charter of MyTa's social birth- 
I right :'' 

I Mr. Duncan then proceeded to defend tlie characters 
I of Chew aud lielf finjui the imputations cast upon tbem. 
;They weiv m.n who have lived in Ibis conimuaity fur 
I near sixty yoai-^, without reproach and without bkau<>. 



58 



THE GAINES CASE. 



The language uttered against them could only proceed 
from an advocate who is a stranger in this community. 
These gentlemen have raised famUies here— they have 
served their countiy on the battle-field— they have 
lived to advanced age, without spot or blemish. These 
vile charges have long since sunk into the very gutters, 
and he who attempts to resuscitate them, will find that 
to touch them will only drag down the one who tries 
it to the level where the charges lie, too low even for 
the notice of honorable men. Mr. Duncan then pro- 
ceeded to show the respective positions of complainant, 
as claiming under proceedings tainted with all sorts of 
fraud, and the defendants being bona fide pm-chasers 
of the property. This suit could not be maintained, 
without biinging dishonor on complainant's parents. 
(5 Robinson,20.) 

Mr. Duncan then strongly reprobated the violent 
language employed by the sohcitor of complainant 
(Mr. Wright) and especially his sneering allusions to 
the Catholic religion, its forms and ceremonies, in con- 
nexit.u with the ecclesiastical record introduced by 
defendants. 

He then proceeded to answer some of the points 
made by Mr. Campbell, and passed to the plea of 
prescription, which he contended amply protected the 
defendants. The succession must be accepted. This 
was not accepted until near forty years after the death of 
Clark. What became of his estate in this long period ? 
It was either a vacant, or one administered by Chew 
and Relf; if the latter, you must take it cum onere ; 
if the former, prescription ran even against absent 
minors. (9 La. Rep. 140 ; Poultney's Heirs vs. Cecil.) 
He also contended that it would be necessary to prove 
against Chew and Relf an intention to appropriate to 
their own use the property of Clark. The quo animo 
was the question, and en this point he cited a great 
many authorities. Mr. Duncan concluded his able and 
extended argument thus : 

1 have done. I call upon this court to vindicate the 
characters of defendants, so long, so wantonly, so cruelly 
outraged. I have dischaiged my duty. Let heaven 
and earth bear witness that you do yom's. 

SPEECH OF MILES TAYLOR, 
For Defendants. 

May it please the Court : I deeply regret that my nu- 
merous avocations and the short time which I have 
been able to give to this case, will prevent my doing 
justice to the astute and able arguments of the com- 
plainant's coimsel. I must, therefore, bespeak the in- 
dulgence of the Coui-t for an argument which I fear 
willuotbepresented with that distinctness and lucid 
order which the natm-e and imi)ortance of the suit de- 
mand. 

The fli'st dilHculty we encounter in the discussion 
of this case, is the judgment in the Patterson suit; a 
judgment which I hope to prove to your Honors, is 
founded upon proceedings that entitle it to no confi- 
dence — a suit and a Judgment which were not serious 
between the parties, and which cannot have the force 
of res judicata. 

Judge McKinley: I consider this a proper occasion 
to state that I will not consent to review and reverse a 
decision of the Supreme Court. I shall consider this 
Court bound by the decision of the Supreme Com-t in 
all points determined in the Patterson judgment. I sta- 
ted this before the argument commenced, and warned 



gentlemen to confine themselves to those points which 
did not arise in the Patterson case. 

Judge McCaleb : I consider it proper to say that I 
shall deem it my duty to examine if the decision in the 
Patterson case does not conflict with our own jmlspru- 
dence, by which the decision in this case ought to be 
controlled. 

Judge McKinley would repeat that he could not re- 
verse the judgment of the Supreine Court. That tri- 
bunal did not seem to be held in great respect by some 
persons in this city, and he (Judge McKinley) had 
been charged with having come here to sit in this 
case, and with corruption for Intimating that such 
would be his decision. 

Mk. Taylor: Far be it from me to imply the 
slightest suspicion that yom- Honor is not perfectly cor- 
rect in the view which you have taken of your duty. 
The point of my remark was, that the proofs we now 
exhibit plainly show that the Patterson case was not a 
serious but a collusive one, and therefore entitled to 
no respect from this coujt. But we will go further, 
and meet the views of his Honor, the Circuit Judge, by 
showing that the case in the record presents many fea- 
tui-es which did not appear in the Patterson case._ I re- 
fer particularly to the new facts of the ecclesiastical re- 
cord, the alimony suit, and other proofs to which I 
shall call the attention of the com-t at some other 
time. 

The first position of complainant's counsel to which 
I shall refer is, that the marriage of Daniel Clark and 
Zulime Carrifere being proved, the status of the child 
is established. To prove this maiTiage, besides the 
testimony of Madame Despau, which has already been 
commented on by ray colleague, the counsel has refer- 
red to the cohabitation of the parties. I did not think 
that my learned opponents would be guilty of this 
temerity. The history of this case gives but little sanc- 
tion to the pretence of cohabitation. Such cohabita- 
tion, to have any weight as proof, must be public, re- 
puted, and known as such. In this case, the marriage 
was secret, — it was kept from even the most intimate 
confidential friends of Clark. The issue was concealed 
—it was abandoned to the care of strangers; the 
mother avoided it with imnatural horror, as a living 
proof of her sin — a stain upon her reputation. Colonel 
Davis found it neglected and suffering. His pity was 
aroused, he took the child under his protection. His 
amiable wife nursed it through all the weakness and 
sickness of its infancy. That child never knew a 
mother's care nor a father's pride. She grew into wo- 
manhood in blissfiU ignorance of her birth, returning 
the parental attention of Colonel Davis and his family 
with fihal love. She had attained full age, and formed 
a matrimonial alliance, before the secret of her birth 
was revealed to her. During ail this long time, there 
is not a scintilla of proof that this child was ever held 
forth to the world as the child of Daniel Clark. 

Mr. Campbell— 1 call the attention of the gentle- 
man to the deposition of Bishop Chase. 

Mr. Taylor— I will take that up in due order. 
Bishop Chase admits that he never went into the house 
of Colonel Davis. A difficulty existed between them. 

Thus, may it please the Court, does it appear that, 
but for that good Samaritan, Colopel Davis, the child 
— the lawfid child of the rich and powerful Daniel 
Clark— would have perished from desertion, from ac- 
ual neglect ! 



THE GAINES CASE. 



So much for tlio public report of the pnrciitaRO of previous dopoeitionN with Iho sliiglo vorlnncn oa U> 
this coinplniiiaiil, iind the innrringe of Uoiiinl Clnrlt. llio duto of tho iiiiirrlngi', to suit Hip nnifiiilod plcad- 

Irt'l us now iiimlyz« tlio dirt^cl lostlnioiiy by wliich into* in lhiMa<i>. All these iiro irrounda of objection t<> 
tlie cuniplainiiiil seeks to provuiliesc racls, upon which lhi!t<le|(o»iliuu, which inuhtd" privo ilofall cndilaiid 
her iu9e rests. This testimony consisU of tho de|>osi- 1 respocl. 

tion of Miidiirae De^pau, who swears thai she %vit- 1 |{„t, further, we show that thin witness is not to bo 
Hissed tlie nmrrin^o; thai of Mine, (."aillavet, another believed, bccnu-e of certain moral or perBonnl objec- 
aunt of coinplainiinl, who says she heard of tho mar- Uons, which «« wrii.u.sly to her crudlt. 
riaifo fi-om Clark himself, and an implication to that Ji dok M( Kim.ky.— The evidence to impeach this 
effect from the testimony of Boisfoniuine. witness must be such as wna not before the t^uprome 

In examining these depositions, 1 bei; to remind tho Court in the Patterson caxe. 
Court lliat the sluloini-nUs of witnesses are not, them- ; Mr. Taylor.— I refer partlctdarly, your Flouor, to 
selves, facts ; they are only tho evidence from which I ihe record proof of the aduiu-ry of this witness, 
the Court is to deduce facts. Tojudjieof the weii:ht of 1 jnuoE Mi Kisi.KV.— Will it bo seriously Insisted that 
surli tesilmony, wo must not only consult tho testi- this is a pro|ier Rround for rej(>cting this deposition? 
nioiiy itself, but look to the circumstances under which | if jt is, will it not apply as well to men as to women ; 
it was taken, the position and relations of tho witness, ! „„(! jf go^ would we not be hard off sometimes for wlt- 
U'hatcre<lit8hallbei{iven to thott^timony of Madame '„esses? Suppose a murder was to take place Inn 
Despau? She is tho sister of ctimplainanl's mother, j brothel, would not the occupants bo ^oo^l witnesses? 
Her testimony was taken by commission. .She was You must show what the reputation of the witness is 
not brouulit into court to be confronted by this i for truth and veracity. I would again call the atten- 
"tribunal, and to bo sultiected to the wholesomo tests of (jf.n of the counsel to the importance of dwcllinif upon 
oral examinations. She speaks French, and was aid- j the points in which the pn-sent case differs from thai 
cd in giving her testimony by her son or nephew. The of Patterson, lie has already dirt-ctcd our attention to 
deposition bears intrinsic evidence that it should bo | one difference— that as to the date of tho marriage, 
regarded with suspicion. It is written by a person j Mr. Taylor.— I shall clieerfully meet your Honor's 
who had some rhetorical fancies, and has marvellously , views, but must at present pursue the line of argument 
the appearance of a document previously prepared, to I which I liave marked out. 

whicti the deponent afllxed her signature and the| In considering the probabilities of this marriage of 
commissioner his jurat, and transmitted it to the court, | Clark and Madame PcGran^e, the complainant is rael 
as the evidence upon which this in>mense properly is by one consideration, which cannot be too serioxisly 
lobe wrested from its present proprietors and Riven to j estimated by this court. It is this: If Zuliroe De- 
the complainants. [.Mr. Taylor then commentetl on | Grange was married to Daniel Clark in 1803, or pro- 
the point previously discussed by Col. Preston nnd Mr. ' vious, her subsequent marriage to Dr. Gardetto in 1808 
Duncan, in relation to the discrepancy in the dates l)e-j would be a bigamy, a serious felony. Now, the pro- 
twcen Madame Despau's testimony and the complain- 'sumption of the law is in favor of innownce, and that 
ant's hill.] This testimony bears undoubted evidence j presumption is a strong circumstance at'ainst the pro- 
that the witness was practiced upon ; that her deposi- bability of the marriage of Clark and Z'llime. Con- 
tion was niatle up to suit the emergencies of the case ;i flrmatory of this, we have the scone between /ulime 
that it was the result of consultations between her and and Coxe in 1^7, when she presente<l herself before 
the complainant, and that, in fact, her deposition was ' Coxe, made inquiries about Clark's attentions to .Miss 
prepared for her by the parties. Madame Despau, j Caton,— stated tliat Clark h.id jiromi.sed to marry her, 
therefore, comes before this court in most question-' that she was rele.ised by his breach of his engagements, 
able shape, with small claims upon its confidence or and that she intended to marry somebody else, and ac- 



credit. 

Let us view this testim<iny in another aspect. Is it 
at all consistent with probability ? Are the facts sworn 
to such as may be reconciled with the ordinary conduct 
of men and women under similarcircumstnnces? 

The witness states that. In 1807 or *(*, she nnd her 
sister went to the North to get proof of the marriage 
to Clark. The priest had gone to Ireland. As soon as 
this fiict is discovered, she abanilons all hope, and 
surrenders herself, not to despair — but to tho arms of 
another husband ! She marries Dr. (Jardette ! Now, 
is there any probability in this whole story? What 
proofs did the sister want, when she had Madame Des- 
pau along with her, the livinc witness of the fact ? 
Could she not state the place where it occurred — the 
street, the house in which they resided, whilst in Phila- 
delphia ?— some fact or occurrence, however small, 
which might lend condrmation to her positive decla- 
rations? No, not one! To all interrogatories touching 
these ordinai-y facts of time, place, and circumstance, 
she gives one unvarying nan mi recorder ; she remem- 
bers nothing but what is contained in that deposition ; 
which, by the by, she has repeated, word for word, in 



cordingly we find that she shortly after married Dr. 
Gnrdette. 

But this is not the only circumstance tending to 
exclude all probability of this marriage. We present 
here the record of a suit brought by Zulime DeGnuigo 
subsequent to her pretended marriage with Clark, In 
which she claims alimony of Jerome DeG range, ollc-ging 
that he is her lawful husband, and is bound to support 
her as his legitimate wife. But counsel say this is not 
evidence, and they introduce a number of authorities 
to show that a Bill of Equity is not evidence, that the 
pleadings at common law are not evidence, and that in 
those systems of judicature it is the habit of lecal 
gentlemen to intto<luce fictions into their bills. This 
nde, however, is not applicable to procei-dings under 
tho civil law, as it prevails in I>»iuisiana. Our pleadings 
are simple and tnithful narrations of facLs signed by 
attorney of petitioners. No fictions are permitted by 
our law. The allocations contoined in such pleadings 
bind and conclude the parties not only in that suit but 
in all others between the parties. I refer the Court, 
on this pomt, to a decision in 6 JIartin, 208, which is 
perfectly conclusive ; also, to a recent unreported dcci- 



60 



THE GAINES CASE. 



Bion, of which I will furnish the Court a copy, to the 
same effect. 

The complainant in this case comes before this 
Coui-t — Firstly, as heir of Daniel Clark, and as such 
entitled to her legitime of his property ; and, secondly, 
as assignee of her mother, Zulime's rights in the com- 
munity, which marriage superinduced between her 
and Clark. Now I take it to be an indisputable pro- 
position, that the representative of Zulime Carri6re 
must be bound by her admissions ; that she, at least, 
cannot contradict the averments of her own mother 
and assignor. I refer now to her solemn decla 
rations made before the Ecclesiastical Coui't, convoked 
to investigate the charge of bigamy against DeGrange 
Her declarations, then and there made, were not loose 
and careless whispers in a private chamber, which 
might be misunderstood, forgotten, or perverted by 
corruption or failui-e of memory, but they were made 
in the broad day, under the sanction of an oath, before 
the most august tribunal, and imder the most solemn 
circumstances. It is there she states that DeGrange is 
her lawful husband, and that she had no reason to be- 
lieve that there was any impediment to theii- marriage. 
There is another fact to be deduced from this deposi- 
tion. Zulime states that she went to the North, not to 
contract a marriage, but to inquire into the truth of 
an alleged preexisting marriage. Now, under such 
circumstances as these, we are forced to believe that 
though a maniage with Clark might have existed, it 
is a conclusion so contrai-y to every principle of human 
natm'e,— so unnatural and extravagant, that the mind 
demands the most full, complete, and satisfactory evi- 
dence before it can yield its faith. Before, therefore, 
we can receive and credit this testimony of Madame 
Despau, we must beKeve that the mother of complain- 
ant was guihy of the two most serious crimes which 
can be committed in the eye of God and of law, — the 
crime of perjury, one which corrupts the fountains of 
law, of truth, and of justice,— and the crime of bigamy, 
which breakg up the domestic relation and unlosens 
that sacred bond upon which the virtue and happiness 
of society alike depend, the raaj'riage relation. So 
much for Madame Despau. 

We pass now to the other witness to the marriage of 
Clark, Madame Caillavet. She states that Clark declar- 
ed to her he had been married to her sister. This de- 
position is liable to the same objections we have urged 
against that of Madame Despau. She, too, did not un- 
derstand English. The interrogatories had to be trans- 
lated for her ; it does not appear that it was done by a 
sworn interpreter,— there is no satisfactory evidence 
that it was properly taken down. 

[Mr. Taylor then pointed out other discrepancies in 
the deposition of Madame Caillavet, from which he 
concluded that her testimony was altogether unworthy 
of belief.] 

According to this witness, Clark acknowledged that 
he was married to her sister. Even supposing that she 
told the truth, what weight can be attached to the de- 
claration of a party long since in his grave ? Such tes- 
jnony cannot bo impeached — it is not punishable for 
perjury— it is surrounded by none of those guards and 
pledges of truth which should entitle it to evidence. It 
is of the class of mere loose declarations, made,.no one 
knows where or when, and which only live in the per- 
verted memories of the parties interested, who in this 
case are the near relations of the complainant. 



Mr. Taylor then examined the testimony of Boisfon- 
taine, and showed that his reference to Clai-k's mar- 
riage did not necessarily imply the marriage with Zu- 
lime, and was liable to the same objections,on the score 
of loose declarations, as that of Madame Caillavet. 

So much for the testimony to the fact of Clark's 
marriage with Madame DeGranee. 

In regard to the legitimacy of the complainant, we 
are referred to the testimony of Bellechasse, the most 
important witness to that fact, who speaks of Clark's 
repeated acknowledgments of the legitimacy of Myi-a. 
These declarations are to be weighed with reference to 
the laws and customs then prevailing in the country. 
The Supreme Court considered Clark's declarations as 
suflScient evidence of the legitimacy of the complain- 
ant. But their Honors, no doubt, in aniving at this 
conclusion, were controlled by the usages and ideas of 
the, present, rather than of the age when the facts oc- 
cuiTed, to which this witness refers. 

This case is a remarkable one. The history of it may 
be divided into four epochs, dui-ing each of which, 
different systems of jui-isprudence prevailed. The first 
epoch, including all that portion of the case which re- 
lates to the pretended maniage of Clark and Madame 
DeGrange, occurred under the Spanish Government, 
before the cession, and is therefore to be considered as 
falling under the jurisprudence prevailing in Spanish 
colonies. Epoch the second, includes the period after 
the cession, when the laws of the State were in the 
transition from a Spanish colony to a territory of the 
United States. The third epoch commenced with the 
old code of 1808 ; and the fourth, with the present civil 
code of 1825. In the progress of our investigation into 
this case, it may be necessary to refer to each of these 
epochs. 

Under the laws of Spain, there were many provision s 
in regard to the offspring of lawless love. Natural 
childi-en were regai-ded in several aspects. The first 
class consisted of those boi-n of concubines living in 
the common building ; the second, those born out of 
the common building ; the third, of those born of the 
common women of the streets ; and the fourth, of in- 
cestuous or adulterous children. The laws of Spain 
permitted the legitimation of a natural child, not in- 
cestuous or adulterous. Under these laws legitimation 
might be made by will, or by act. The legitimation by 
will has been abolished by the code of 1808, but that by 
act was continued in force. In 1825 all the Spanish 
laws were abolished in this State. In 1835 an act of the 
Legislatui'e revived those portions of the Spanish laws 
which refer to legitimation. Under the Spanish law a 
father miglit legitimate his natural chOd, but it was 
provided that he should not mention it as a natural 
child. This recital would render null the act. It is 
with a view to this provision of the law that BeUe- 
chasse speaks of Clark's expressing his determination 
to make his will in favor of Myra, declaring her to be 
" his legitimate daughter." But that Bellechasse ever 
believed that Myra was his legitimate child, is utterly 
disproved by the conduct, the acts of the witness. 
Bellechasse was an honorable, chivalrous man. So 
was Pitot. They were intimate friends of Daniel 
Clark. They were present at Clark's death. They re- 
ceived his last dying injuuctions. Now can any one 
imagine that these men would stand by and see the le- 
gitimate child of theu- old friend bereft of hej- rightful 
inheritance; see the will of 1811 probated, and not 



THE OAINES CAAE. 



CI 



rniw tliolr voIchw lumlinl ouch Injuslico nnd wroiii; 
to Iho lawful chilli nf Ihrlr old rrii-iiU? Siirh comliicl, 
such Bik'iico would tH> nllocelhiT InconnHtont with the 
hi?h ro|mlntion of thoxo ■ffiitlfincii. If the positions 
of compluinant nre nt all loimblc, they xlamp with In- 
famy, with elprnal dishonor, the early and RUuinch 

fi-iend!) of herftithor. Judffo Pilot, tho very spntlemiin ^ Your own cj-rtitlcntp >iUosU tho marriiurt" 
to whom it is pretended Clark declared the lc:,'itimacy of Jerome I)e<;runt!e. One of the counsel 



pininnnt lulmlLs that her mother's flrnt huMmnd's name 
was JiTom*' — In the Latin Hienmymus. Now, It U nn 
unque-llotinlMe principle of law and lustlce, thai h<'fore 
a prior marrlai:e can l>e allowed to avoid a suli«e<|uent 
one. the proof, as to the Identity of the parties, must b«- 
eonrlusirr. Hut hero Is not even a primd facie cwm*. 
if .Iarol>, not 
or th«! com- 



Myra, and exhibited this pretendetl will of I8i;», is the plainant maintained that this misstatement of name 
.ludije before whom the will of IHll was probated. It | was a part of the fraucl of DeCranu'e, but I apprehend 
is a remarkable feature of this remarkable cas<\ that that t;entleman will not be permittwl to imp< ach their 
the complainant cannot succeed in her pretensions | own |)roof, and that if they do, ihe idea thai IM;raniro 
without covering all her relatives nnd friends with i had a prevision, a foreknowledge reachini; many years 
infamy. If her alienations and proofs in respect to her -Into the future, of what would como to paos In thin 
own father's conduct have any truth in them — if he {lone and complicated drama, is too pre|K>»terous to 
really did marry this lady, and desert her under the i justify my commentiiitf on it. 

circumstances develope<l in this record; ahandoninRl g^eondly: The testimony of Madame nenijTierel is 
his lesitimato child to the uncertainties and doubts I ^jj^^ ,„ ^..^ the "confession of Petiran^e, of 

which, even m the complainants showing envelope ] ^.^ ,„g ^„^^i^,^. r.^ j^ j,,i, evidence is to be 

heroricnn nnd history, then I would say that Daniel j ^^^,j,^,, ,,j „„ ,^p confession must flrst be made de- 
Clnrks Wends, instead of trncin? his oritrin to the | „„i,j. ^, ,„ ,h„ individual; nnd, secondly, it must bo 
kingsof Ireland, as some of the witnesses say ho was in I ^,„,p „t „,!„„, when the party wns not interesU-I in 
the habit of doin-, mi^Ut more- justly claim for him a de- 1 ,„„^i„g j, y^e c.nfession must bo made at an unsus- 
scent from a line ihrouch whoso veins (lowed the blood j pi^i^^, ,i^p j„ ,^1, ca«e, DeGran?e's declarations 
ol all the scoundrels that have lived since the flood I ,.p^p made after the proceedinas of the Ecclesiastical 
fuch conduct, on his part, should forever blot out the c^,„rt_i„„r, after the parties had acquire.1 an interest 
tribute to his virtues, inscribetl in monumental marble, ,„ jis^^oivp the compnct existini? between them. The 
pronounce its eternal falsehoo<xl, cffiice all written re- ,,„^p ^^ DeGrance had bi-en made desolate, the nup- 
cords of his worth, heap infamy upon his ashes, ,)„, ^^up,, h,„, ,,p^n despoilwl, his name disgraced, his 
and transmit his name, blackened and blurre<l, to Rf n- 1 ,,„^pg,jp ^^^ „„j happin.ss de-lroved. He miifht 
erations yet unborn, to be cursed, despised, nnd con- i.^.„jesire to have a relation, which brouicht upon him 
temned by all men. | ^ ^y^j, ^yg^^ „„(( distrrnce. dis-iolved. Hence the 

I pass to another proposition which I lay down in | p„nfpgsj„n, jf jt really was made— extorted from him 
this case. It is this: if such a marriace as is alleircd I .,, j^^ bitterness of his (?rief an.l despair-that he had 
did take place between Daniel Clark and Zulime Car- \ ^^^^ previously married. I.ord KIden lays it down 
ri.re, it was invalid on account of the want of capacity ,h„,„ marriage cannot be dissolved by the acts or 
in said /ulime to contract such marriase. It has been jcclarations of the parties made subsequently. In a 
asserted that the actual marriage bcinc proved, the „„,p„,„ criminal trial, confessions of this nature may 
burden of disproving it is thrown upon the defendanU. ,,p„(ip„i„P,l n<j„inst llie party making them, but inn 
This principle is laid down too broadly ;— it is extended controversy like that of legitimacy, in which the rights 
too far. As I imderstnnd it, the authorities go to this| a,,^ interests of other parties are involved, such decln- 
extent, thnt the celebration of the marriage being' mti^n^ cannot bo permitted to weich-the testimony 
provetl, its validity is presumwl. But such presump- n,„j,t be positive, direct, and conclusive. The con- 
tions cannot prevail over the positive proofs of a pre-j fpssj^n of DeGranee, as staleil by Madame Benguerel, 
existing marriage. And shall nil the presumptions be : ^^ ^^^ aner his unhappy voyage to Europe, in 1801 
in favor of the complainant, .ind none be admitted j —after the birth of Caroline Barnes, in 1802— which oc- 
ngainsl her ? The marriage to Dt>Grange being proved, i curred under such circumstanci-s, and at such n time, 
shall it not bo presumed to be valid, — or shall it, „,, to stamp it as the offspring of unlawful love. It was 
upon unsubstantial report, be stamped with infamy, after this child had been abandoned by its mother, and 
nnd the children springing ft-om it as adulterous bas-] ^ji-pn charge of by Coxe-abandoned because it was ne- 
tards ? The law will not allow the holy tie of marriage 1 cossa^^• to save her reputation to keep its birth concealed 
to bo stigmatized on light proof! Why, then, should . _it ^as after these occurrences that DeG range n-tums 
we not extend the same favorable c»nsideration to the ,„ xe„ Orleans when he flnds himself di^irraceil. his 
marriage with DeGrange, which is invoked in favor of ^.jfe „ wanderer from his boil, his pn.pi-rly all dissi- 
the pretended marriage with Clark, nnd with what , pa,ed, and then, no wonder, he seeks, by every and aQ 
propriety and conformity to the ordinary rules of rea- 1 me.ans, to rid himself of so hated and fatal a connection, 
son and justice shall we presume bigamy against Do- .ajomuch for Madame Benguerel's testimony as to De 
Grange. » Grange's confession of his previous marriage, which. 

And upon wh.it proof does this charge of bigamy ,00, comes imder that class of loose declarations to 
against DeGrange rest ? It consists, first, of a record or | ^^ich I have already referred. Then, too, we oppose 
certificate of a pretended marriaee. celebrated in New 1 ,„ ,^19 testimony, which has lain for thirty years in the 
York, of DeGrange to .Madame D'Orsi ; and, secondly, ' n,p^„r\- of Madame Benguerel. subject to all the Im- 
of the testimony of Madame Benguerel, as to the con- perfections and p.-rversions of humanity, the written 
fession of his bigamy by DeGrange. | confession of the s-itne man. made under oath before a 

On the first point, I have but little to say. The cer- ! solemn tribunal— declarations that have come down to 
tiflcate relied on is totally defective, as it describes [ us as they were made, through no luicertain or Imper- 
the marriage of one Jacobum DeGrange, and this com- 1 feet medium. 



f>i 



THE GAINES CASE. 



Judse McKisLET. ThU record possesses great weight, 
as far as the confession of complainant's mother is 
concerned, in connection with the claim to the mother's 
share of the property; but this would not affect her 
claim a^: heir. 

5lr. Tatlor. In matters of public interest, lite mar- 
riage, pedigree and legitimacy, a record becomes 
evidence to all the world. But, further, can the decla- 
rations of DeGrange. a third party, be ofifered against 
us ? He is a stranger to us in this suit ; can he be al- 
lowed to make testimony to deprive us of our property? 
If, too, we are to be concluded by the declarations of 
DeGrange, we should be benefitted by those of Zulime. 
She is a party in interest against us. She has some- 
thing in common with complainant ; we certainly 
have nothingn in common with DeGrange. 

I come now to another matter, which the counsel 
for complainant consider the turning point, the pivot 
of their case. I refer to the proceedings in the county 
cornl of Xew Orleans, by Zulime against Jerome 
DeGrange. The complainants say this was a suit for 
a divorce. This record furnishes nothing wMch favors 
the pretensions of complainant. The petition is lost. 
and we must, therefore, grope in the darkness for its 
grounds. The defendant excepts that the court has no 
jurisdiction of matters of divorce. The only further 
document in this suit is, the endorsement of the Judge 
— "judgment for plaintiff, damages 3100." Now, sup- 
posing this judgment was one of divorce, it must be 
shown that it was rendered on the ground of prior 
marriage, before it can avail the plaintiff. A marriage 
may be invalidated on other grounds under the Spanish 
law than previons marriage, such as impotency, 
non-consent, taking the veil, &c. 

Mr. CiJiPBELL. The testimony of Madame Despau 
shows that the judgment was one of divorce for big- 
aimy. 

Mr. Taylor. I am speaking now to the record, 
which it is not competent for Madame Despau to con- 
tradict, add to, or explain. I assert that this is simply a 
"judgment for plaintiff for §100,"' and that there is not 
the slightest ground to justify the presumption of the 
complainant's counsel that it was an absolute judgment 
of divorce, founded upon a pre-existing marriage, and 
that this record cannot to be eked out by the oral dep- 
osition of Madame Despau. 

JiDGE McCaleb. Are the names of the witnesses 
given ? Is Madame Despau one of them ? 

Mr. Docan. No, sir. Madame CaUlavet is one of 
them. 

Mr. Campbell. The record is deficient. 

Mr. Taylor. I will now cite to the court an au 
tbority bearing on this point. It is the case of the 
Dutchess of Kingston, aU-eady referred to by one of 
the counsel for complainant, reported in Howell's State 
Trials, vol. 20. The facts of that case were simply 
these: The Dutchess of Kingston, previous to her 
marriage with the Duke, had been married to a Mr, 
Harvey, who was supposed to be the heir of some 
Earldom. His prospects, however, were dissipated, 
and both parties became mutually desirous of sepa 
rating. .\ jactitation suit was, therefore, got up be 
tween them in the EcclesiasticalCourt, and a judgment 
rendered against the marriage. She then married the 
Duke of Kingston ; at his death the heirs objected to 
ber right to a share of his property, on the ground of 
bigamy. The matter came up before the House of 



Lords, when the record of the jactitation suit was 
introduced. It was excepted to, on the ground that it 
was inadmissible and collusive. The point was sub- 
mitted to the twelve judges, who determined that the 
record was not a competent evidence, that it might be 
attacked for collusion, and that the judgment of acourt 
of concurrent or exclusive jurisdiction is not evidence 
any collateral matter, nor proper to be cited as au- 
thority in any other suit. The record in the case intro- 
duced by complainants furnishes no evidence of the 
grounds of the decision. It does not show that the 
marriage was avoided on the grounds of the previous 
marriage, much less does it mention the name of the 
party with whom such previous marriage was con- 
tracted. 

I contend, therefore, that this record possesses no 
weight whatever as proof, becatise the pleadings do 
not show that the question of previous marriage was 
raised, — they do not indicate the name of the pretend- 
ed first wife, without which the defendant could not 
come prepared to maintain his defence,— they do not 
set forth time, place, names of parties, and dates, speci- 
fically. The judgment of this court is not one of di- 
vorce — it is simply one of damages. In every country 
there exists courts of exclusive jurisdiction in matters 
of divorce. Such courts existed under the Spanish 
laws. These laws were continued in force in the Ter- 
ritory of Louisiana until changed by legislative action. 
Now", I admit that, after the cession, the Ecclesiastical 
Court ceased to exist,— it could no longer discharge its 
previous powers. No court, with power to grant di- 
vorces, existed in Louisiana until such tribunals were 
established by the Legislature, which was some time 
subsequent to the proceedings in the suit referred to. 
All divorces previous to the creation of such courts, 
and subsequent to the cession, were made by the Ter- 
ritorial Council. Further, it should be borne in mind 
that these proceedings against DeGrange were had in 
his absence — that he was represented by a curator ad 
hoc, and was not here until 1805,— that it was not a 
serious contest, in which he had any opportunity of 
making a serious defence. This whole proceeeing has 
very much the appearance of a suit got up for a parti- 
cular end, and had DeGrange been present, it would, 
no doubt, have been regarded as a collusive suit. It 
grew up at a time when DeGrange had an interest in 
allowing a judgment of divorce to be entered against 
him — when he chafed under a connection of dishonor — 
whilst the other party possessed a like interest, and had 
been struggling for years to rid herself of a mes alliance. 
She had the most direct and positive interest a mortal 
could possess, to have this marriage set aside, whether 
we take it on the hypothesis of complainant, that she 
desired to rid hereelf of an obstacle to the publication 
of her marriage with Clark, or upon the other hypo- 
thesis, that DeGrange was an obstacle to the indul- 
gence of an illicit connection— her interest is equally 
strong and palpable. She might shrink from en- 
cotmtering that outraged husband, who, returning from 
France, found his once happy home polluted, and his 
peace destroyed. It was not until this unlawful inter- 
course commenced, — until she had fled from her home 
to a foreign land, to conceal the birth of an adulterous 
child.- had abandoned that child to strangers, that she 
commenced those proceedings for a divorce. Before 
she had attained this degradation, — in her oath before 
the Ecclesiastical Court, in her allegations in the ali- 



THE GAINE8 CASE. 



63 



moay suit,— she had eontndlcted all Ihe matters upon 
which it is imw preteinli-d she uhtalnwl her ilivnrce. 
She. no tloubU cuiict-ivtii thai l( she cuuM \iv n-lievi-tl 
of [K-Cruiige, she lui^hl cuiilract Ihu spleiklid alliance 
with Duiiiel Clurk. Heucc- ull those privLvdiugs. [On 
the point whellier parties could be penailtud to make 
testiniuny fur Iheinaelves in si^its lilfe lliis, Mr. Taylor 
introduced a number ot authorities ; and also cited the 
casts of McNeil n. Mctireuor, that a marriage oould 
not be annulled by the acts of the ponies. 

Let us now consider the c«>mpiainanl's rights, under 
another aspect. Let us admit the bii.'amy and conse- 
quent invalidity of the marriage of Jerome, and the 
existence and legality uf that of Clark and Zulime, 
and yet 1 contend the complainant cannot recover, it 
has been laid down in argument as on imqueslionable 
proposition, that marriage, celebrated according to the 
law where it is made, is valid elsewhere. This princi- 
ple has obtained generally, but not, as I shall presently 
show, universally. It brings up a question of the con- 
tlictof law, that extensive and inlea-stiiig branch of 
jurisprudence upon which the lucid mind of Judge 
Story, has cast such a tlood of light. This principle, it 
is adiailled by S?tor\, is subject to exceptions. In 
France, for instance, the Courts have assumed to annul 
marriages of certain of its citizens, who were married 
in foreign countries, according to the laws and usages 
of those countries. Even in England, this rule has its 
exceptions: For instance, it has been determined that 
parties moving from England to Scotland, and obtain- 
ing a divorce according to the laws of the latter country, 
return and fonn a second marriage, the offspring of 
such second marriage is declared illegitimate, though 
they were married according to the laws of Scotland, 
where the marriage was celebrated. Thus the Courts 
of England would not sanction and enforce a marriage 
which according to the laws of a sister kingdom wsa 
valid; much less would those courts refuse theirsanction 
to such marriages made in a foreign land. In this ca>e,ihe 
marriage was not one celebrated in a sister Slate, under 
the same general government, with only diffen-nt raimi- 
cipal regulations. It was a marriage in a foreign land 
between foreigners— Zulime was a citizen of a Spanish 
colony. Daniel Clark was not a citizen of the United 
Stales, — he was a stranger, domiciled in New Orleans. 
These parlies left the soil of Spain to evade its laws, — 
they went to Philadelphia, and were married accord- 
ing to the laws of Pennsylvania. Now, the laws of 
Spain forbade such a marriage until the previous one 
had been dissolved, and looked upon the oflCspring as 
adulterous. This marriage was contracted with a view 
to return and reside in the colony of Spain, and con- 
tiime their adulterous connexion. Now, it is held by 
the civil law that marriages made to evade the 
mimicipal law are invalid. Such was the law of Spain. 
This principle is recognized in the decisions of our 
Supreme Cotirt. If, therefore, by the Spanish law the 
marriage thus made was resnirded as adulterous, the 
childalso born on Spanish soil, was likewise adulterous. 
See Lebrelon roi. Muchett. 3 Martin. That was a case 
in which the parties resided in this Stale, and having 
some obstacle to their marriage here, went to Natchez 
and contracted marriage there. They ihen returned to 
Louisiana, and resided here. After this a large amount 
of personal property was left to the wife, and it became 
a question whether this property was controlled by the 
law of Mississippi, so as to ves; the whole property in 



the husband, or by the law of I^ouiidana, m a* to eoo- 
linue hiK » ife's riuhtit. It was decided that tlie rigbta of 
the miirriage, lhiiui;h celebrated in MiML-«i[>|ii. were 
controlled by the lawsuf Louisiana, and the wife kept 
her pro|>erty. 

And now I have said all that I bad to My touching 
the marriage of Znlime Carriere to Daniel Clark, the 
legitimacy of the complainant and her heirship. I 
think I have !<h<iwn that no such marriage was con- 
tracted, and if it wen-, it was not valid ; and further, 
that in the present case there i« a great Tariely of evi- 
dence not contained in the Patterson record, which, if 
it had been brought before the court, the dixLiion 
would have been quite ditt-rent. I come now to ex- 
amine a legal qutsiion, which willfprulecl the defend- 
anu from the present suiu Clark died in 1813. At hia 
death his will of Ij^II was produced. In that will he 
constituted his mother his universal legatee. There 
was no evidence that there was any legitimate descen- 
dant. Mary Clark entered into the possession of her 
son's whole property. The property was duly admin- 
istered and sold in her name to the present holders, 
without any notice. They are consequently bona fide 
holders without notice, and no recovery can be had 
against them. It is necessary here to note one fact. 
The common law does not apply here in questions of 
the title to real property. There is a great difference 
in this department of the law between the cinl and com- 
mon law systems. The common law is harsh and un- 
bending. So me of its rules, particularly in its early days, 
were rigid and unjusL They have been since modified 
and improved by provisions of the civil law, intnxluced 
through the Ecclesiastical and Chancery Courts, The 
principle of the common law is cartat emptor,— you. 
must take notice of all defects, and subject yourself to 
all Ihc latent frauds and impositions of the designing. 
The principle of the ci\-il law is directly the reverse. It 
presumes all men to be acting in good faith, and spreads 
an ample shield over all honest dealers. It makes 
various provisions against all disquieting of titles. 
.\mong other arrangements, it requirvs all parties to 
register their conveyances, and deprives them of all 
validity as to third parties, until registered. Innocent 
purchasers of property are, under the French and 
Spanish laws, fully protected against all preexisting 
sales not recorded, so as to be known to the worid. In 
applying the principle of the civil law in reference to 
bona fide purchasers, we must confine ourselves to the 
French law, as the contest ari«s since the code of ISO?. 
It is now the settled jurisprudence of France that pur- 
chasers of property under the heir in possession, ar« 
proU-cted against the pursuit of a nearvr heir who may 
afterwards appear and claim the estate. [Mr. Taylor 
then read two decisions of the Court of Cassation, 
foundetl on certain articles of the code o( Napoleon, 
which have been transferred to our code, settling the 
doctrine, that sales made by the apparent heir would 
be protected against any subsequent proceeding of a 
nearer relation, who appears and claims the estate, — 
and that though the sale of a thing belonging to another 
is null, yet, when a party, having an apparent title and 
heirshiii, enters upon the property, be is presumed to 
sell what belongs to him. and equity confirms Ute 
validity of his sales, and protects the purchasers.] 

Mr. Campbell : Must not the heir accept the estate 
judicially t Must there not be good faith in him ? 



C4 



THE GAINES CASE. 



Mu. Taylor : 1 do not fiud that It is made 'a quos- 
tion wliethei- the heir accepts judicially or not, or 
whether the heir was in good faith or not. 

Mr. Campbell : Merliu lays it down as essential 
that there should be good I'aith in the seller. In this 
case there are neither averments nor proofs of good 
faith. 

Mr. Taylor: I have great respect for the gentle- 
man's knowledge of Chancery law, but I must remark 
that the principles of that system are greatly modified 
when the court sits in the State of Louisiana. In the 
civil law there is a distinction between the sale of a 
particular piece of property and the sale of the whole 
succession. If the apparent heir sells the whole suc- 
cession, he sells only his own rights, and the person 
buying takes his rights, and the real heir may enter 
and recover the property ; not so when he sells a par- 
ticular piece of property belonging to the succession. 

As to the point that there are no pleas and proofs of 
payment, I rely upon the acts which are filed with the 
answers as aSbrdiug not only gODd prima facie proofs 
between these parties, but also as to other parlies. 
When a direct issue is made as to the reality of the 
consideration, then actual proof is required. [On this 
point Mr. Taylor cited some authorities.] On this 
question of purchasers in good faith, the Common 
Law has been in some degree infused with the spirit 
of the Civil Law, and we must therefore look to the 
Civil Law for a full interpretation of this principle. 
Here, at least, the doctrine of the Civil Law must pre- 
vail against the stringent principles of the old Common 
Law. 

[Mr. Taylor then applied the decision in the cases 
decided by the Court of Cassation, to show their exact 
similarity with the present.] Mrs. Clark being the in- 
stituted and apparent heir, accepted the succession, 
which acceptance, according to Pothier, might be made 
either by word or act. The executors, Chew and Relf, 
were never in possession as executors ; the law did not 
give them seizin, {^rt. 166, Code 1808.) When the 
executor has not seizin, his whole duty is limited to 
the performance of conservatoiy acts, such as the 
delivery of legacies and other conservatory acts. The 
apparent heii- sent Chew and Relf a power of attorney 
to act for her, and from that moment their power as 
executors ceased and determined. All the acts were 
therefore made by them as attorneys in fact, adding 
their description as executors. These mere useless 
words of description could not affect the substance of 
the acts, on the principle of the civil law, utile non 
utili vitiatur. Thus, it has been determined that where 
a man, having a power to sell certain property as agent, 
sold in his own name, it was valid. (2 Bill, p. 238.) 
[On this branch of the subject, Mr. Taylor entered into 
an extended and able legal argument.] 

I come now to the plea of prescription. There are 
some points in favor of this plea, which have not been 
brought distinctly before this Com-t. There are two 
kinds of possession of immovable property— one is a 
civil, and the other an actual and corporeal posses- 
sion. The only possession, with reference to precrip- 
tion, is a civil possession. In the bill of complaint, it 
is alleged that Chew and Relf entered into possession 
of the estate ; and, it is presumed, that then' posses- 
biou conlmued, until the contrary appears. [Read 
numerous authorities on this pouit.] The necessity of 
the rule, that possession accompanies the title, is 



shown in this State, by the gi'eat quantity of wild lands, 
which cannot be corporeally possessed. 

The Supreme Court considered that the reference in 
the titles should put the pm-chasers on an inquiry, and 
destroy the inference of good fath. This principle ia 
not in accordance with the law of Louisiana. See 
case of Fletcher's Heirs vs. Cavellier. And here that 
distinguished tribunal lost sight of the distinction to 
which I have referred between the civil and common 
law. The latter system presumes every thing in favor 
of legal owners. But would it not be monstrous to 
permit that law to override our State jurisprudence, 
and strip hundreds of persons of legal rights, acquired 
under our law ? 

Mr. Taylor next examined into the claims of Chew 
and Relf as partners of Clark, and this led him to re- 
mark upon the leputed wealth of Clark. Clark, it is 
pretended by the complainant, was a Croesus,— a mer- 
chant Prince. Some of the witnesses state that he 
assigned several hundred thousand dollars for the ben- 
efit of this complainant. And yet what are the facts '? 
In 1802, when it is pretended that Clark was a mil- 
lionaire, about to retire on his ample fortune, it is in 
proof that he was, in fact, on the very verge of bank- 
ruptcy,— he was then taking all the chances, encoun- 
tering all the perils of extended commercial trans- 
actions. For years before his death he was a deeply 
embarrassed man, and in his letters, he franlUy ac- 
knowledges that but for the assistance derived from 
Chew and Relf, who held high trusts, he would have 
been ruined. The complainant has filed what she calls 
a statement of Clark's property in 1811, made by him- 
self, in which he estimates himself 'as worth $400,000, 
upon which he owed but $5,000. This statement was 
a deliberate falsehood. 

[Mr. Taylor then exposed the banki-upt situation of 
Clark, and described in a graphic strain the embarrass- 
ed state of the countiy at that time, dwelt on Clark's 
losses, his inability to raise collections in Mississippi; 
his obligation to Relf for a continuance of facilities in 
the Louisiana Bank; and how, by various mishaps, 
his whole fortune was swallowed up.] 

In 1811, he speaks of being ruined, and avows his 
willingness to give up all his pi'operty for $20,000. 
Subsequently, he speaks of other embarrassments ; in 
a letter in 1812, written a few months before his death, 
he continues this desperate strain. He speaks of his 
intense misery, his agony, of the tortui'es that would 
give him no peace. He says he will leave his property 
to the care of Chew and Relf, and laments with the 
true feelings of a son, that his relations will be left 
destitute in a foreign land, and professes his deep obli- 
gations to Chew and Relf. 

Let us take another view of this matter. It is pre- 
tended by complainant that Chew and Relf were 
nobodies in the firm, that they owned none of the 
property. They cannot, at least, deny that Chew and 
Relf had character and reputation. The firm consisted 
of Coxe, Clark, Chew and Relf. Clai-k was the grasp- 
ing, ambitious man of the concern. He aspired to 
great eclat as a man of political weight and of fashion; 
and mingled with the great men of the land, whilst 
Chew and Relf remained at their posts, laboring with 
the patient, honest toil of merchants, whilst Clark was 
ministering to his appetites and his love of distinction. 
But when the storm came, and bankruptcy lowered 
on them, these humble and industrious merchants, by 



THE GAINES CASE. 



65 



piitienl labor, breasUil tlie porlln that envlron»"<l ilieiii ; 
niul llu'SK very men, now llio nbjccts of Buch nilhU'SH 
MliiniltTuncl bit^olciM iiixii.iMliim'*, nidi-il thulrold frii-nd, 
lit H linii" when uiiiny ii royul I'ortunn wi>nt down, nnd 
siived him from being crushed undor Iho weii^lit of liis 
di'bta. Them) Rcntlemen, on account of the confldiiK-c 
fell by the community, in them, could command re- 
sources fwhlch all Clark's pride and grandeur could 
not obtain. They did not mini(lu in the society of di.s- 
tini^uished political functinnarie.s and otreat men — 
they did not display their wealth and splendor in 
foreijnt lands ; but devoted the be^t part of their 
lives to the unobtrusive employment of relieving this 
estate of the heavy embarrassments with which 
Clark had incumbered it. One of the counsel has 
stated that Coxe, too, was not worthy of belief, and 
that ho shared the plunder of Chew and Relf. Rood 
God ! Can siicli an imputation be made in view of the 
fact that Coxo had withdrawn from the concern in 
181 1, — that he allowed his claim against this est.ite to 
sleep for years, and did not press it to a settlement 
until the war had concluded, and peace nnd pros- 
perity had begun again to smile on the land ? Not 
until 1819 did he require a settlement of his claim, and 
then he contented himself with taking back property 
the value of g'JO.OOO for the S1(X),000 due to him (Co\e.> 
Yet, gentlemen have the hardihood to say he robbed the 
orphan ! No language is sufficiently strong to express 
the indignation due to such an imputation. Clark then 
was hopelessly bankrupt. Had he lived a few years 
longer, under the embarrassments of the war, every 
vestige of his estate would have been swept away. 
Shall we then listen to this claim against honest, hard- 
working people, who bought under your father's will 
and allow you to enjoy the prosperity which has 
since dawned upon the country, though when your 
father died he was a ruined bankrupt— and all because 
your father chose to keep the whole worlil, including 
his own mother, in perfect ignorance of this marriage 
of your mother, and birth of yourself? He had pre- 
viously entrusted to his mother a child which he pro- 
nounced to be his illegitimate offspring— is it conceir 
able that he would have withheld from her the sacre<l 
secret of the birth of a child to him in lawful wedlock, 
who was to bear his name and inherit his fortune? 



Mr. Taylor next alUide<l to the point that the heir 
must take the estate subject to all the debts and 
chaises. He also contended that if the complainant 
should establish her heirship, she could only recover 
the residue of the estate after it had been administer- 
ed. When Clark died this was an insignitlcnnt town ; 
the properly was of little value. Since then the great- 
est changes ever known in population and the value of 
property have taken place. I*roperty, then almost val- 
ueless, has become of great value. In the event of a 
decree in favor of the complainant, and the setting 
aside of the acts of sale, how is the estate to l>e settletl 
up? Is she to take this pn>perty at its present im- 
mense almost fabulous value, or aw we to go buck and 
ascertain the value of the property when Clark died? 
She has no more right to this property at its present 
value than a mere stranger to his blo<id. The parties 
■who now hold the property were kept in ignorance of 
the marriage of your father and your heirship. Holy 
Writ says that " the fathers have eaten sour grapes and 
the children's teeth are set on edge." This complain- 
ant stands in the shoes of her parent and must inherit 



his n>iilt. Heriituationwu-scortMlnly an unhappy om; 
the i.tl-prlng of concublnaue. if not of a<l iliery ; born 
in seirel ; removed an<l abandiuHxl that the mother 
might receive no slain from her birth; di'prived of the 
caro and affection of either falhi-r or mother, and In- 
ilebted lo Btniiigeri) for support and nourishment: 
viewing it in this light, this romplaiiumfs history cer- 
tainly contains much lo excite our commissemtlon and 
sympathies. But when we takennothcr view of her caiM?; 
when wo see her coming forwiu-d, and in her avarice 
ofguin, charging her own mother with an act which 
would consign her to the penitentiary, — charging her 
father with a basedecepti.mof the public and of hi« in- 
timate friend.s, and a cruel imposition upon an unfor- 
tunate female, — charging her tattler's friends, who su»- 
tained him in the hour of his greatest neeil, when his 
fortunes' tottered, and bankruptcy stared him in the 
face, with fraud and robbery ; when we see her com- 
ing forward In take advantage of the crime of her 
mother and the fraud of her father, to wrest this pro- 
perly from the possession of these innocent defendants, 
who acquired it in goisl faith and have made it valua- 
ble by tlieir industry, — in such an aspect of this cji«e 
tlie complainant cea.ses to have any claims upon our 
favorable consideration, and tlie innocent defenilantn 
must alone command the sympathy and favor of all 
lovers of justice, equity and fair-dealing. 

E.S, 



SPRECII OF JOHN R. GRY! 
For tuk Complaisant. 
Maij If plrnse your Honnrs : W'e are now approach- 
ing the close of this long protracted and hard contested 
case. The duly of concluding the argiimenl for com- 
plainant, would be a clear and plain one, if it resLtl 
upon the merits of her case. But when we are required 
to follow the defendaiUs in their devious nnd draultory 
course of argument— when it is made incumbent on 
us to ri-diice their various grotmds to some method, 
so that they may be prcsentixl distinctly nnd cleariy to 
the minds of the Court, we find wu duty one of ex- 
treme difficidty and embarrassment. 

The facts in this case ,nre to be viewed in two a.s|)ecl» 
—first, with reference to the law by whicli this Court 
is governetl, Ihe law which prevails throughout nearly 
all the ?tat«>s of thi^ V'nion; and, secondly, with refer- 
ence to the local law of the State of I^i>ii->iana. I shall 
endeavor lo present my views on the points in this 
cn.«o, with as much melho<l as the very extended 
ground I shall have lo pass over will permit. 

Tlie judgment in the Patterson ca.-v, decreein? that 
this complainant was the lawful heir of Daniel Clark, 
has not, in my opinion, been touched by the argument 
f defendants' counsel. I have examinetl the recoitl 
in that case with the greatest assiduity and care, and 
can piTceive no difTcronce between it and the present 
case, except, in the introduction in this M^e, of the 
ecclesiastical reconl on one side, nnd the certificate of 
DeGrange's previous marriage on the other. Them are, 
it is true, hundreds of letters and the ilnposititms of n 
cloud of witnesses introiluc-d lo swell this rpcor<l tf> 
its present enormous dimensions — all to prove that 
Clark was not marri-, '. and which the Supreme Court 
woiUd not regard as of the slightest weight against thp 
evidence of one witness lo the fact of the marriage. 

Having laid the time of the marriage of Clark «n<l 
Madame DeGrange at one time, it is contended that 
we cannot prov." any olber time,— !h.-»t onr proofti mieo- 



66 



THE GAINES CASE 



coiTespoud with the allegations. To judge of the force 
of this position, it will be necessary to refer to the 
recoid, and inquire what are the material allegations 
of the bill, to see if weai'e bound down to the restrict- 
ive rule insisted upon by the defendants. [Colonel 
Grymes read the allegations in the original bill,— also 
in the sujjplemeutal bill, stating that tl}e marriage "tooli 
place on or about the latter part of the year 1802 or 
eaj-Iy part of 1803."] 

Now, even if this paragraph were struck out, there 
would be enough in the bill to justify a decree. Does 
this paragraph forbid our proving that the marriage 
occurred at any other time. [On this point Mr. Grymes 
cited Stephens' Pleadings 292, Chitty's Pleadings 266, 
and other authorities.] I mean to state principles and 
not consume the time in citations. I therefore content 
myself with reading to the Court the decision in 4 
Barnwell and Alderson, p. 438, as conclusive on this 
point,— these authorities show conclusively that the 
variance in this case is not fatal. The point is one of 
Chancery Practice, with which om- local law has no- 
thing to do. 

Having settled the doctrine on this point, we consider 
ourselves at liberty to prove that the marriage took 
place within the substantial averments of the bill,— or 
at any time prior to thebnth of complainant. 

2.— The second point of the defendants is, that 
theii- answer being sworn to, cannot be disproved, 
except by two witnesses, or one witness and corrobo- 
rating circumstances. We hold it to be an incontro- 
vertible proposition, that when defendants to a Bill in 
Chancery swear to facts, of which they could have no 
personal knowledge, such as negative proof, it is an 
issue of fact tendered on the one side, and accepted by 
the other, which admits of the ordinary proof, and in 
such case the answer cannot override the bill sustained 
by a witness. On examination of the answer, we find 
that Chew and Eelf, who reside in New Oilcans, deny 
that a marri;ige. which was a private one, celebrated 
in Philadelphia, did take place. Now, this fact is one 
of which it is impossible Chew and Relf could take 
their corporal oaths, so as to negative the allegations 
of the bill. See 9 Cranch 160, for the law on this point. 

Allegations of this sort in answers are mere deduc- 
tions, inferences, and not facts, of which the defendants 
could have a personal knowledge. This question, too, 
I hold is fully decided in the judgment in the Patterson 
cas. ( Col. Giymes read a very pertinent decision on 
this point, from 2d Marshall, 138.) It is therefore 
cleai", that to contradict the answer of defendant, it is 
only necessary tliat we should adduce one' witness ; but 
we do more— we introduce one witness and many 
Blrong coi'roborating circumstances. 

3. The third point of defendants was, that the' mar- 
nuQode facto of Clark and Zulime was not legal because 
of tlie previous marriage to DeGrange. tTnder this head 
we have to discuss— Orst, the Ecclesiastical Record; 
second, the Alimony Suit ; third, the Divorce Record : 

1. The Ecclesisastical Record of 1802 is produced, 
to prove the validity of DeGrange's marriage to Zulime, 
and to rebut the allegation of bigamy. How far is it 
available for that purpose 1 Though there was no judg- 
ment rendered, and thei'efore it cannot avail the i)ar- 
ties; yet, even if tliere were a final judgment, what 
would it prove fm-ther than the fact that a certain pro- 
ceeding took place before a tribunal called ecclesi- 
Btical. 



Judge JIcKinley. I would like to see the order in 
which the witnesses in that proceeding were sworn 
and examined. 

CoL. GuYMES. I will presently refer to them. 

These proceedings were had before a Court presided 
over by one Judge, the Vicar-Genera! of the Diocese. 
Now, I ask if this Court has been put in possession of 
a scintilla of law or authority, to prove that under the 
laws of Spain, the Vicar-General was constituted an 
ecclesiastical tribunal to try an individual for bigamy ? 
By the well-settled principle of the laws of Nations, and 
the practice of all tiur courts, whenever a foreign judg- 
ment is introduced, it must be shown that it was ren- 
dered by a lawful court. Even in insurance cases, it is 
always required that full proof shall be given that the 
prize-court was a lawful one. It nowhere appears in 
this record, that the laws of Spain authorized a court 
like this ecclesiastical tribunal, and therefore the defen- 
dants have failed to make the first proof necessary to 
give force to that record. 

And secondly, what proof have we of the authentica- 
tion of this record,-where does it come from,-in whose 
possession has it remained for the last forty-eight years, 
and are its custodians entitled to the confidence of 
this court? When a country passes from one govern- 
ment to another, as Louisiana, in 1803, passed from 
Spain to France, and fi-om France to the United States, 
the judicial records and public archives must pass 
with the cession, into the hands of the country receiv- 
ing the new territory. Did the record in this case so 
pass into the possession of the only officers recognized 
by the laws and constitution of the United States — the 
civil officers '! No. It has slumbered among the old 
church records, — the records of marriages and chris- 
tenings from 1802 to the present time, in the hands of 
individuals not known to, or recognized by our com-ts. 
For all this court may know this record may have been 
got up within the last five years. 

Mk. Duncan. I would ask Colonel Grymes if the 
treaty of cession did not guaranty the people of this 
State all the rights and their com-ts all the validity pos- 
sessed by them at the time of the cession ? 

Mr. Grymes. The treaty guarantied the religion, 
rights, and property of the people, but it did not pro- 
vide that they should have the same form of Govern- 
ment nor did it recognize any of their ecclesiastical 
tribunals. Our laws know nothing of such tribunals. 
Their jurisdiction is confined to their own sector de- 
nomination. The treaty did not guaranty that the peo- 
ple should have ecclesiastical courts. Under our law 
a chmch is no more than an individual. It is a pri- 
vate corporation. It derives all its life and vigor from, 
an act of the Legislature. Its custody, therefore, is no 
more than that of an individual, and in this the Cath- 
olic church does not differ from that of the Baptists, 
Presbyterians, or ftlethodists. Are such records, then, 
as this much vaunted ecclesiastical proceeding admis- 
sible as proof of a judgment (even admitting there was 
a judgment) involving rights of propertyand questions 
of pedigree ? 

Mr. Duncan. I would ask colonel Grymes if the 
Supreme Court has not decided that the coiu-ts of Loui- 
siana must take official notice of the laws of Sjjain ? 

Mr. Grymes. That is not the question now before 
the Court. I cannot undertake to say what the Supreme 
Court may or may not have decided. That tribunal 



THE CAINES CASE. 



67 



has decided that certttin of tbo Spanish Jnw«intiHt bo I clplo wm now Iho well wlab Uhod law of Uw 
tHk.'u ru.tic. ..r, but ild.HJs m.t un.l-rt«ke to .IfltTiul.... tJnIlcd Htatw Siipn-mo and Circuit to.irUs by whoM 
what portion of Ihoso lu*9 aro iipplicablo t» this SiaU- ruloi and d.-cl.-lon.t lhi«, bi-int; a q.iwlK.n of evl.U-nce, 
or not ; for It in well known that nil tl.o law. of Spain mu.t be d-..-rn.ino<l. Madam., Det.ranKu , OT.denc*, 
di<l not extend Ui this colony. Tho decrcM of Iho I "'•^"•''"■^■' 
Council of Tn-nt, for instanci", wore never in force in |"f inl'TL"! 
thU .''tate. But my point is, that Iherc is no proof that j 
this record is aiithenlic— that it was hauditl down in [ 
Iho leuttl cuslo<ly of officers known to our law*. If the 



Bishop was the custodian, ho is certainly not recog- 
nized us the le!?al depositary of judicial records. 

I have, therefore, shown that it is not proved that 
this record was that of n lawful court— that there Is 
no proof that it has been kept by ofllcers known to 
our laws, or properly authenticated ; that thero Is no 
jud!j;ment in the cas<<, but a mere order to su.spend 
proceeding. But if not proof of a judument, it is 
contended that the declarations in this record aro i^ood 
evidence. Lctusexaniine that point. It certainly will 
not be pretended that any other deposition but that of 
Madame DeGranste will avail the party. Gcrtainly they 
ore not serious in relyiii!; upon Det5runge's evidence 
in his own tuvor, against an accusation of felony; nor 
upon that of .Madame D'Orsi, who has married another 
man after her alleged marringo with DeRran'-'o. \Veare 
narrowed down, then, to the testimony of .Madame De- 
Granije. But is her deposition admissible in this case, 
when tho witness is alive, and may be brouslit into this 
court to testily ? Further, this deposition was taken in 
a proceeding, in which all the parties were interested. 
I need not point out the interest of the olher parlies, 
but will conflne myself to that of Madame Dei: range. 
Her husband was brought up for a crime, Iho penalty 



in this cuso not ailmissible, on tho score 
Mow anxious soever «he may havo been 

have this miirriage annulled, she did not desire that 
it should bo done at tlic sacrifice of the life of the father 
of her own children, and the eternal Inluuiy of her own 
name and family. 

Tho other record relied on by the defentlanls, Is 
that of the alimony suit, brought in IWI.'i, by Madame 
netJrango uguliist her husband. In this proa-eding, 
which is a simple civil suit, tho attorney of Madame 
DotJrange avers that sho is tho lawful wife of said Do 
Crange. On what principle of law can this petition b*' 
used as evidence to prove any tact alleged or denie<l 
in the Bill ? (On this point Col. Crymes citi-d CreitleyV 
Efiuity evidence, to the em-ct that a Bill cannot lie used 
as evidence to prove any fact alleged or denied in iho 
Bill.) Does not every lawyer know that there is not 
one petition in ten, in which the parties ever see tho 
petitions filed for them by their lawyers,— in which they 
know what their utUirnies put in their plejulings. 
Even if such declarations wcro made by tho parties 
thein«l ves, they would not be good evidence in another 
suit, according to the decision in tho cai-o of the Ban- 
bury Peerage, (I Phillips Kv. XtS.,) much lesscanthey 
he used when such declarations are made by tho at- 
tornies. 

Tho ihird record relied upon by tho defendanta i« 
that of the procei-dings for a divorce before tho County 
Court of New Oilcans, in which a judgment w.is ren- 
dered annulling the marriage to DeCranee. It will be 



of which was death. She was cited by the prosecutor I neceseary to direct your allcntion to the pleadinits in 
to testify against him. In those times a criminal ex- j t^j^ ^.a.a<.. U was said by the gentleman who last nd- 
ecution was a very terrible afliiir. It inflicted a lasting ' dres-^ed the Court for tho defence, that the County Court 
stain upon the family escutcheon. Its infamy extended | „,- jj^^ Orleans had no right to grant divorces. This 
to all the near relations of the party. Years could not ; record is inlro<luco<l by the defendants, ll is set forth 
wash it off from the name and history of the family, j,, ^,,,1 nnnexed to tho answer of Chew and Relf, and 
Such was the feeling under the Spanish Covernment n„^ ji f^rms or.o of the many discrepancies In the 
of that time. Under these circumstances, Madame jjj.fy„ge_ij,at i^ey geek to question and impugn their 
DcGrange was called up to testify. The question was | ^^^ testimony. They assort it was a Kood judgment, 
directly put to her, if she had heard her husband had^^nj^ by g^ j„ing, declare the competency of the 



Court by which it was rendered. Will they now be 



three wives, and did she believe it. Could she givei 

any other answer but n negative one to such " question j pp^^i,,^,,, p„n,e in,anda)nlradict their own records, 
as th.-it ? Could she make a declaration that would j ^„j g,,^^ ^^^ ,[,y rtivorco was not rendered by a valid 
consign her husband, the father of her children, to ex-j ^^j^^ rpn ,i,is p„int Col. G. read Cresley's Equity 
ecution and infamy, and involve herself and family in Evidence, 1 Phillips, 3-11.] 



disgrace ? 

But is this evidence admissible on the grounds on 
which heiirsay evidence is permitted in matters of 
pedigree? This rule of evidence, it must be homo in 
mind, docs not include every family tradition. It only 
extends to those fjicts of which the parties speak- 
ing had a personal knowledge; and to admit such 
evidence, It was indispensable to prove that the wit- 
ness was dead ; and further, that the statements were 
made at a time and under circumslajices when tho 
party had no interesl or motive to misstate the facts. 
[Col. Grymes cited the case of tho Berkley Peerage, 2 
Starkie, 605, in which the declaration of the Earl of 
Berkley, as to the legitimacy of his son, was not ad- 
missible to establiiiih the stntu.i of the child. The 
point went up before the twelve Judges, who united 
in excluding the testimony. Colonel Grymes read 
the opinion* of the Judges In this case.] This prin- 



Bul further, though it may be true that Iho Spiritual 
Courts had exclusive cognizance of questions relating 
to marriages, it is equally true that Temporal Courts 
could decide incidentally on tho validity of a marriage. 
There can be no question as to the competency of this 
Court to render this decree. The defendants have 
plende<l that it was a sentence annulling marriage. 
Its validity is therefore, settled, and all we have to 
inquire is, what ought to be the force and effect of 
such a judgment of dissolution of marriage. This 
matter is fully determined In the c;i.«e of Voorhies r. 
Bank of the United .^lale.s (ID Peters, -JTo,) where the 
principle is establi.-lu-d that the judgment of a Court 
of general jurisdiction is conclusive evidence of what 
it puri>orts to decide, until it shall l>e reversed on 
appeal or writ of error. Now, this loo is a question of 
evidence to be decided by the Common Law, a« settlf^ 
by the United States ConrtK. 



G8 



THE GAINES CASE. 



Th* defendants, however, say that the quesliun ia as 
to the force and effect of this judgment. They ac- 
knowledge that the petition was for a divorce, and set 
it up in their answer. Their object \n so doing was to 
show ttiat there was a previous maiTiage. What are 
the pleadings ? The petition is lost, but the plea ex- 
ists; it excepts to the jurisdiction of the court, as not 
extending to matters touching the validity of marriage. 
Now, a judgment is rendered in fa\or of the plaintiff, 
and damages assessed. Until the nullity of the mar- 
riage was declared, no damages could be recovered by 
a wife against her husband. According to the practice 
then prevailing, the court might accompany the judg- 
ment of divorce with damages. The issue, then, was 
joined on these pleas,— and they were more formal in 
their pleas then than they are now. The pleas were 
oveniiled. The defendant answered with a plea of 
not guilty, and the judgment was for the plaintiff, 
$100 damages. I maintain that such damages would 
not be given unless as a consequence on the annulling 
of the marriage, especiiilly by a cpurt presided over by 
that eminent jurist. Judge Woikman. What is the 
in-esistible inference from this state of facts V Why, 
that the plea to the jurisdiction had been overruled ; 
and the case being tried on its merits, a general judg- 
ment was rendered for the plaintiff on the whole issue, 
and a decree of the nullity of the marriage- entered. 
This judgment, according to the decision of the Su- 
preme Court, before cited, is conclusive. 

Judge McKinley. The counsel on the other side 
have suggested that the marriage might have been dis- 
solved on other grounds than the previous marriage. 

CoL. Grymes. Some proof must be giveu of ihat 
Your honor does not bear in mind that the Court had 
no jurisdiction of suits for the nullity of marriages, 
but only of those touching the validity of a marriage. 
The laws of all countries lay down grounds for di- 
vorces — such as iU-usage, crimes, and offences. But 
proceedings relating to the validity of marriages are 
quite different from those touching divorces. The 
former imply that the fnarriage was illegal at the com- 
mencement, ipso facto, whilst the latter arises on mat- 
ters subsequent to the marriage. The jilea, therefore, 
that the County Couit could not inquire into the vali- 
dity of the marriage was therefore overruled, and a 
judgment was lendei'ed for the plaintiff. 

Colonel Grymes then read several authorities to 
show that actions in nullity of marriage were within 
the jurisdiction of the civil courts. A previous mar- 
riage' does not dissolve the subsequent marriage, but 
it renders the junction impossible ; it makes it a 
meretricious, not a matrimonial union. The second 
marriage is void 2>»o facto, 2 Phill. Eccl. Rep. p. 
16, Shelmire on marriage. The civil law doctrine, 
on this subject, has been adopted iq every part 
of the world, that a second mai'riage, pending a 
preexisting one, is void <R!> initio. 1 take this oc- 
casion to notice an authority cited by Mr. Taylor in 
his argument, contained in an opinion of Sir Wm. 
Scott, to the effect that it is necessary, in a prose- 
cution for bigamy, to identify the parties. In that 
decision. Sir W^m. Scott, said that it too olten happens, 
that persons are anxious to be released from the nup- 
tial tie, and are not over scrupulous in discovering 
pretences ; and, therefore, the identity in proceedings 
for bigamy must be proved by other parties than 
themselves. This would have been good authority 



in the County Court of Orleans, where Madame De- 
Grange brought her suit. But can you present any 
thing agamst that judgment now? Can you, thirty odd 
years after it was rendered, inquire if the County Court 
was satisfied of the identity of the parties. No doubt, 
DeGrange might then have appeared and denied his 
identity, and had au issue made up on that point. But 
it is now too late to inquire collaterally into that mat- 
ter, and I must express my surprise that it ever was 
raised. 

Having settled, as I think, the preliminary questions 
in the discussion of this case, I pass to the substantial 
matters of fact upon which the decision must, in the 
main, depend. But here I must express the opinion, 
that it is hard upon this com-t, whose patience has 
already been sorely taxed by this trial, that we should 
be compelled to discuss questions which were so fully 
and conclusively adjudicated in the Patterson case. 
Such a question is, as to the fact of Clark's marriage 
to Zulime DeGrange. That a witness has sworn to 
that fact, is patejit on the record. This evidence is 
confirmed by the fact of the will of 1813, by Clark's 
acknowledgments to numerous of his friends, of the 
legitimacy of the complainant, by general reputation, 
and other corroborating circumstances — all establishing 
beyond the shadow of a doubt the status of this child, 
and entitling her to a decree of the court. I need not 
recapitulate the evidence on these points ; many of 
the facts are proved by the defendants' own witnesses. 
Even De la Croix saw the will of 1813. It was in a 
package, and was placed in a black trunk. I refer to 
his testimony in the Com-t of Pi'obates, when the com- 
ptainant was endeavoring to get proof of the destruc- 
tion of the will. The status and legitimacy of the 
child being established, her rights to fom--fifths of the 
property follow as the legal effect of that fact. 

To get around all this testimony, the defendants have 
taken various positions, in noticing which I shall be 
forced into the duty, by no means agreeable to my 
feeUngs, of reviewing and justifying the decision of the 
Supreme Com-t. First, they (the defendants) have un 
dertaken to prove that the marriage did not take place, 
because Clark was not in the place where it is alleged 
the marriage occurred, at(the time. It devolves upon 
us to show that both pai'ties were in Philadelphia at 
the time when we aver the marriage took place. They 
were there from December, 1801, to April, 1802. Let 
us examine the movements of the pai'ties about that 
time. Let us leave out of the question the testimony 
of the witnesses and be guided by the letters filed in 
the record. On 7th November we learn from a letter 
of Bradford to Chew and Relf, that Clark had left New 
Orleans 7th November, 1801. Next we have a letter 
dated Philadelphia, 18th January, 1802, written by 
Clark, but signed by Coxe, acknowledging the receipt 
of a letter from Chew and Relf, dated sometime in No- 
vember, 1801. We find another letter in the hand- 
writing of Clai'k, dated Philadelphia, 23d February, 
1802 ; another still, a long and continuous letter, run- 
ning from 23d February to 14th March ; and lastly, 
we have a letter from Coxe to Chew and Relf, stating 
that Clark had left 23d April, 1802, for New Orleans. 
Heie is clear and uncontradicted testimony, showing 
that Clark was in Philadelphia from January to 23d 
April, 1802. These are business letters, in which it 
appeai-s Clark usually acted as penman aud Coxe dic- 
tated and took the responsibility of the signatme. Ou 



THE GAINCS CABE. 



the 18th February, ie(W, we have a private luller from 
Clark to Chow niul Ki'll", In whicli hf refers to Iho dtalo 
of affiiirs In Louisiunn as boln? such, llmt he fears he 
will be compelleil U) return to his pout us American 
Consul eariier Uian he wishes. ActtirJingly, wu find 
ho iliU start for New Orii-aus on li3a April, 1«0-.'. 
[Colonel Grymes here amused the court by read- 
ing extracts from the letters in the record, wliich 
exhibited considerable laxity in some of the opin- 
ions and practices of the jiarties. Ho read one let- 
ter fh)m Clarlc, in which he advised Chew and Helf to 
supply all their ships with two sets of national |)aper8, 
[it being tlio purporto of the (Jovernment to favor the 
merchants in this particular.] In another letter, Clark 
directs Chew luul Uelfto direct his private letters ( nul 
to CoKO, ) but to Mr. Earle, showing that Cii.vu was not 
bis confidant— did not participate in his little private 
affairs. So great was his apprehension that Coxo might 
gi^t hold of bis private letters, that he would not even 
have them directed to himself, but to Mr. Earle. Even 
in a little application for the sum of 8"2000, he desires 
the matter to bo kept a secret from Coxe. He did not 
want Coxe to know he was spending money, because 
Coxe might be curious, and inquire into the objects of 
such expenditure, and thus his. whole secret would 
get out. What did ho want with the money ? Wo say 
he wanted it to defray the expenses of his marriage, 
which he desired to keej) from Coxe, the substantial 
member of the llrm. We have then shown that Clark 
was in Philadelphia at the time when this marriage 
occurred. Now, it will devolve on us to show that 
Zulime was in Philadelphia at this time, and here we 
will show that Coxe is evidently mistaken in his state- 
ments of dales. 

U is in proof that Zulime left here on the 9th No- 
vember, two days after the time of Clark's departure, 
as indicated by Bradford's letter. She makes a power 
of attorney to a person hero to attend to her busiiies.'*, 
and then proceeds to the North. They get to New York 
before Clark, owing to the ship ho sailed <m being 
compelled to put into Havana. They arrived at New 
York — from which they departed for Philadelphia, in 
pursuit of proofs of DeGrauge's previous miuriage. 
They went to Dr.Gardette, who informed them that he 
was a witness to the f^ct. It was about this time that 
Clark writes to Chew and Helf for money. Now, is 
there the slightest showing of improbability or impos- 
sibility against the positive statements of Madame 
Despau, that the parties were then and there married? 
Is it not clearly shown that the pirties were in Philadel- 
phia when, it is alleged, the marriage took place ? 
Against this positive evidence, and these strong pre- 
sumptions, scores of witnesses hav« been examined 
hero as to their belief whether Clarrk was a marrie<l 
man or not. 

But the defendants do not content themselves with 
this abortive effort to prove that the parties never came 
together at the time indicated for the marriage. 
They go further, and seek to discredit the testimony 
of Madame Despau on various grounds. First, they 
introduce the record of certain proceedings for a di- 
vorce, alleging incompatibility of humor, brought by 
M. Despau vs. Sophia Despau, his wife. The petition 
refers for the grounds of the application, to certain 
facts set forth in a petition of Madame Despau her 
self, for a divorce, in the Ecclesiastical Court. Front 
this, the defendants have leaped to the conclusion that 



llie cause of this matrimonial difficulty wan thn adul- 
l»'ry of Madame Despau. It U nol to be presume*^ 
that she would accuse herself of adultery. , 

Mr. Duncan. It may hare apiMiared oUicrwise than 
in her showing. 

Mr. OrymcK. Despau refrm to her petition, and the 
gentlemim would have us presume that she alleged 
her own adultery. But what do these proceedings 
amount to V The parties had agreed to a separation. 
Subsequently, Madame D«i<pBU leaves and goes to tho 
North with her sister. Dixa not the Juilitment of 
teparation authorize her to go any where she choose? 
And yet we tind him, in IHW, alleging against her that 
she had gone out of the territory without his cons«-nt. 

In her absence, the Judge enters up a Judgment 
against her, decreeing tho forfeiture of her property. 
There is not a word about adultery in the Judgment of 
the court. The husband, then, having got control of 
the community property, proceeded to dispose of it, 
and then goes off, leaving this lady and her children 

tirely destitute. Now, throughout this whole record, 
there is nol a scintilla of proof to affect the moral char- 
acter of Madame Despau— to cast a slain upon her 
name and reputation. She comes back Irom Phila- 
delphia, retires to the then secluded and sparsely set- 
tled county of Opelousas, where she opens a school, 
which is patronized by the most respectable people of 
that section of the State, as a means of livelihood for 
herself and the children whom Despau had robbed of 
their property and left on her hands. Is an old lady, 
who has ijassed through scenes like these, and reached 
the age of eighty years, rej<pected by all who knew her, 
to have her character blackened and polluted by a 
judgment like this, rendered against her in her absence 
and without proof? 

But it is attempted to impeach this witness's testi- 
mony, on the ground that she locates the dale of 
Clark's marriiige in 1803, because of an impression that 
it was just before the cession of Louisiana. Is not this 
very natural ? The subject of the cession of Louisiana 
Irom Spain to France had been much discussed 
throughout the country some time before the event. 
The heart of every Frenchman beat with joy at the 
idea of the restoration of this State to its first settlers. 
In December, 180-2, we find that Clark writes from the 
River Mersey, that General Victor and the Prefect 
Laussus were about to embark with a large army to 
take possession of New Orleans. This report, of course, 
had readied New Orleans. Now, is there anything 
strange that a person of French extraction, referring to 
this event, should speak of it as occurrins in 1803, when 
the French colors were run up in the Plaw D'Armes 
for a half hour, and then gave way to the (lag of the 
I'niled Slates? The rumors which had. no doubt, 
filled her eiirs in 1802. did nol make so strong an im- 
pression as the tangible fact of tho taking down of the 
flag, which occurred on 18lh December, 1803. This 
accounts for her fixing the marriage in 1803; but she 
also adds that it occurre<l shortly before Clark left for 
Europe. In June, 180-2, Clark writes fVom Cooper's 
Ferry. Ho is then on his way to Europe, for which be 
departs from New York 17lh August It is in the let- 
ter from Cooper's Ferry that Clark flrsl refenj to bis 
embarrassments, growing out of the cotton Oauds. 
There is, therefore, no room for discrediting Madame 

t Despau on this ground. Her testimony, considering 
the long time which has elapsed since th 



70 



THE G4INES CASE. 



tions. is consistent and reasonable. She stands before 
this court, free from any charges or suspicion — I won't 
say as a lady of virtue, because that is a relative term, 
but as a good, competent, lawful witness, whose depo- 
sition stands uncontradicted and unimpeached. 

Somebody else then must be discredited. Eelle- 
chasse's testimony is also assailed. The counsel for 
the defence are quite inconsistent in their objections to 
witnesses. lu some cases they object that the deposi- 
tions tontain discrepancies, in others they complain of 
the remarkable identity of the depositions with pre- 
vious statements of the same witnesses. It is hard to 
please them. The objections to Bellechasse are various. 
First, they say that he spoke with reference to the Span- 
ish Government and laws, in a Spanish sense, and 
that to be imderstood, we must refer to the laws and 
usages that prevailed under that Govei'nment; and 
that, as a man could not legitimate his child by an act 
in which it was referred to as a natural child, so, when 
Bellechasse spoke of the legitimacyof this complainant 
he had in view this feature of the Spanish law. There 
is something in all this too refined for my comprehen- 
sion. I know of nothing in the law which compels us 
fo go back to the French or Spanish customs and 
laws to understand what a witness who speaks a 
plain language means. Then again it is objected 
that Bellechasse's testimony is all stereotyped— that it 
was prepaied by some body else, and that the commis- 
sioner who took it was privy to this arrangement. 
The testimony was taken in the usual manner. The 
other party had their option in selecting the commis- 
sioner ; and I must confess, that this is the fiist time 1 
have ever known a commissioner to take testimony in 
a suit, to be thus attacked and impeached without a par- 
ticle of proof, as having been derelict in his duty, with 
having corruptly repaid the confidence placed in him by 
the court. Another objection to Bellechasse's testimony 
is founded on his friendship and intimacy with Relf 
which were inconsistent with his cognizance of the acts 
in which Relf is charged with having played a part. How, 
it is asked, could he believe that Relf, had suppressed 
his old friend's will and defrauded his daughter and yet 
afterwards keep up friendly relations with him? This 
suggestion renders it necessary that we should look more 
closely into the history and relations of these pai-ties 
■St that time. Chew and Relf, Clark and Bellechasse, 
■were on very friendly and intimate terms. Bellechasse 
was a man of note. He had been a colonel in the 
Spanish service. Mr. Jefferson appointed him a mem- 
ber of the Legislative Council of the State. He was 
called on to command the militia of the State, at an 
important and alarming period. He became also 
president of the Legislative Council. Subsequently, 
his speculation failed, property depreciated, and he 
was compelled to retire to Cuba, as manager of a 
plantation for a relative. It appears that Bellechasse 
did complain to Relf, because he had not sent for him 
to attend Clark dui'ing his last illness. This was cer- 
tainly vei-y discoui'teous and improper in Relf, but it 
was not such conduct as would have justified Belle- 
chasse in flying into a passion, and calling Relf a villain. 
There was, therefore, nothing which had occurred be- 
tween Relf and Bellechasse seriously to disturb their 
friendly relations. Hence the correspondence between 
them, which is contained in the record. Relf writes to 
Bellechasse that he was suspected of treason to the 
ITnited States. General Jackson suspected a great 



many persons in those times. Bellechasse replies to 
Relf 's letter in a friendly view. What was there to 
induce him to be the enemy of Relf? His not send- 
ing for him diu'ing Clark's illness was a breach of 
etiquette. Is there any proof that he (Bellechasso) 
suspected Relf of suppressing the will of 1813? 
None at all. He had, therefore, no cause for hostility 
against Relf, and Colonel Bellechasse stands before 
this Court completely justified, as a man of honor and 
truth— a man of great integrity, and strong national 
and political feelings, such as he was always esteemed 
in this country. His conduct to Relf was that of a 
gentleman, and not of a blackguard and bravo, as it 
would have been, if he had got into a passion, and 
hiM'led all sorts of hard names at Relf, for the dis- 
coLU'tesy of not sending for him during Clark's last 
illness 

I have shown that Bellechasse's testimony is perfectly 
coherent, and consistent with probability andthe facts, 
and that his friendly relations with Relf constitute no 
good ground for attacking it. The friendly corres- 
pondence between Relf and Bellechasse was previous 
to the discovery of the acts of the defendants, which 
were believed to be in fraud of complainant's rights. 
[Here he read extracts from the testimony of Belle- 
chasse, which detailed the circumstances attending the 
death of Clark, and the declarations of Pitot that the 
willof 1813 had been destroyed by Relf.] Preval, in 
his deposition, says he affixed the seals to Clark's pa- 
pers. He looked particularly for his last will, and 
searched a black trunk, where he was told it would 
be, but he could not find it. After he had sealed the 
papers, Mr. Relf handed him a sealed package, which 
he (Mr. R.) thought contained his will, and requested 
him to give it to the Court of Probates. Now, two 
things are shown by this testimony: 1st. That ho 
looked in the black trunk, and that he made strict 
search immediately after the death of Clark for his 
will of 1813. 2d. After affixing the seals, and not dur- 
ing the act it?elf, Relf gave him the package, and 
without telling where he obtained it. 

Mr. Duncan : I would call Colonel Grymes' atten- 
tion to the process verbal of Preval, which states that 
Relf gave him the package which was taken from a 
black trunk, and the process verbal was dated four 
days after Clark's death. 

Colonel Grymes: The deposition of Preval (taken 
in 1849,) says the seals were affixed on the day of the 
death of Clark, at the request of Relf. Pitot and De 
la Croix were the witnesses. So that Pitot must have 
known on that day the absence of the will of 1813, and 
that the only will found was that of 1811. I need not 
say olographic wills are usually marked on the envelope 
and with the date. 

It is not astonishing that De la Croix, when he found 
Clark dead, should visit Pitot, and from him should 
learn the loss of the will of 1813, and his indignation 
at the conduct of Relf. Thei'e is nothing in the record 
which affects the credibility of Bellechasse. He left 
New Orleans in 1814 and settled in Cuba. 

JrDGE McCaleb : The date of the process verbal of 
August 16th, might have been the day after it was 
commenced, as it is veiy usual for notaries to begin 
process verbaux on one day and continue them over 
to the nextv 

Mr. Grymm : So much for Bellechasse. 



THE GAINES CASE. 



71 



The crudlbilily of Mmlnmo C'ulllnvet U ullaiki-il bo- 1 
cause »lio hnd nwom Itiiit Clark had frenufiills (old 
lier ho was inarrlud to Zullmo, and this allack i.-i luuiid- 
ed uii a Hull' deposition taken before tlie Probate Court, 
in which she said that slio went tu France iininediately 
alter the date of her sister's murriuice, and therefore 
she could not have seen Clark. [Mr. G. rend her depo- 
sition und argued that it did not Klato that slio went to 
France, but tliat tier husband did so. This construc- 
tion of the ambiguous words is borne out by other 
depositions, which show lliut she iell in IbU7. Her 
testimony, therefore, is {K-rfeclly consistent and uiias- 
Builable.] 

Thus, may it pleuso your honor, have I established 
the birti), the paa-ntagc, and all the requisites uf a 
legal statuf of the complainant. I have shown the 
marriage other parents, her birth after such marriage, 
and her heirship to four-llflhs'of his estate. 

These facts being established, the law comes in and 
i-utilles her as only foiced heir to the whole of Clark's 
property, if he died intestate, and to fuiU'-Ufths if he 
made a will in favor of any one else. 

The next proposition of defendant's which we have 
to notice, is the plea of good faith. To determine this 
nuesiion, we must refer to the pleadings in tht 
There is no stalenient in the plea, and no evidei 
the record, which puis these defendants in the position 
of bona fide purchaser*, according to the rules of chan- 
cery, which alone are to govern here, as decided by the 
Supreme Court in the case of Livingston vs. Story. 
In that decision, the t^uprerae Court expressed its sur- 
prise, that a former judge of this court, now dead, 
should deny so clear a proposition as this. Referring 
therefore, to the chancery doctrine on this subject, 
what do we find to be the well settled principle in 
regard to possession in good faith. In the leading 
case of Urown r«. Cbilds, Justice Baldwin has laid 
down the whole law on this subject, with a clearness, 
a force, and perspicuity that are truly admirable, and 
render any furtlier exposition quite unnecessary. [Col. 
Grymes here read that decission, the chief point of 
which was that a party in possession, claiming as bona 
fide possessor, must have a legal title— an equitable 
title will not do. If he has the legal title, and has pur- 
chased without notice of an outstanding title, he will 
be protected. But this will not be done on a mere 
averment. He must set up payment specially; a mere 
recital of it in the deed will nut do. He must state thai 
his vendor was seized and in i)ossession— his interest 
must be vested in fee, and not a mere equitable pos- 
sessor.] 

This, so far as this Court is concerned, I api>rehend 
is the binding law. 1 cite also on this point, 2 Story's 
Rep., 456, 7 John, Chan. liep. 65. tThis decision 
establishes the point, that defendants must aver and 
prove actual payment before notice,) 7 Peters, 'J71. 

Here, for the first time, the local law of the State 
is introduced into the case. Up to this time it has 
been controlled by the general rules of evidence which 
obtain through the Union. That point is, whether 
these parties have really the It-ral title under the hiw 
of Louisiana. On this point, I read from 3 Toullier 
to 150, that where there is a donation exceeding 
the quantity disposable by law, that donation must 
be revoked and reduced to the disposable portion, 
when the forced heir presents himself; and holder* 



under the doueo have no better right* than he bad 
hliuseir-3 Toullier, No. 150. 

The counsel for the defence has quoted the deci- 
sions from the Journal du Palais of the Court of Oaa- 
to the elTecl that when the unlTcnHil legatee 
went into poss^~^ion of the property of a succesaiun, 
and another ond nearer relative afterwards appeared 
and demanded the j)ro|)erty, the then |M)!wt'W(ons who 
had purchased In g(»>d faith, would be protected. 
Now, sir, by reference to the decision in these casea, 
1 find that this opinion is based upon a decree of the 
Roman ICmiHiror, Adrian, as preserved by Ulpian. 

There was a great contest among the French com- 
mentators, on the construction of the article uf the 
Code, " That no one could sell the property of 
another." The Court of Cassation decided in fa- 
vor of the edict of the Roman Emperor— that when 
an apparent heir, acting as heir, sold the property of 
the succession, they wouUl protect the purchasers 
buying In good faith and without notice of the exist- 
emo of the true heir. Diiranton and Toullier ore 
against the Court of Caseation, which is sustained by 
.Merlin. 

The judgment of the Court of Cassation on articles 
of the Code Napoleon copied Into ours, are received in 
this State as authority, from the high character of the 
French courts, but not as of biIKliI^; effect. But 
when the courts travel out of the Code, and found their 
opinions on a Roman edict which is not in force-, then 
these decisions are not to be received In this State 
for luiy purpose. Wo have the opinions of Toullier 
and of the Court of Cassatiim— now who shall be the 
arbiter V W'e suppose it should be the Courts of the 
United Stales. To find out what is the local law, we 
must ap|>cal to the decisions of our own State courts. 
.And here we find, in a cose remarkably similar to this, 
that our Supreme Court fully endorses the doctrine of 
Toullier and adheres to the Code Napoleom which is 
identical with our own code on this point, in prefer- 
ence to the decree of a Roman Emiwror. [C<ilonel 
Grymes here read a decision from Vi Robertson, Lou- 
isiana Reports, in which the doctrine of Merlin and of 
the Ci>urt of Cassation Is repudiated, and that of Tuuil- 
ller, Uuranton and Tropling is adopted.] Such is our 
local jurisprudence on this subject, .'tml what now be- 
comes of this doctrine of the Roman Emperor and of 
the Court of Cassation, so much relied- on by the coun- 
sel for the defendant. The Supreme Court of the 
United Slates have decided the same point in the 
same w ay. 

And now I ask, if these defendants bring them- 
selves within the rule in 10 Peters. Are they purchas- 
ers in good faith who possess the legal title? Our 
courts have decided that the legal title does not pass 
in such sales as they hold und. r— that the party only 
conveys such interest as he had. The legal title to 
this succession vested in Mrs. Gainea as soon as 
Clark died. The title of the legatee who entered upoa 
the property was a mere conditional one (not a fee) 
dependant upon the a|>pearoncc ofa nearer heir. And 
here I conclude my remarks upon the only question 
of local law involved in this case. Ity reference to 
the operative clauses in the deeds in this suit, the 
court will perceive that in all the cases before th« 
court, the executors si-U the rights of Mrs. Clark, by 
virtue of the will— oil the rights of property which 



72 



THE GAINES CASE. 



the succession of Clark had or may have in the prop- 
erty conveyed by these premises. They only sold the ti- 
tle of Mrs. Clark in the succession— all the rest of the 
aeed was mere recital. There was therefore no legal 
title sold to any of the purchasers, it is a mere quit 
■claim, a sale of the equities and rights of the party. 

I pass now to the point of prescription by which 
defendants hope to retain possession of this prop- 
erty. In considering this point, there is some dis- 
crepancy in the position of the defendants. At one 
time they view_ the estate as accepted by Mrs. Clark, 
and at another as a vacant estate. We will accept 
either ground. First, let us assume that it is not a 
vacant estate — then the prescription is thirty years, 
2 Grenier's Donations, No. 652. Between two heirs, 
one in possession and the other absent, there is only the 
prescription of thirty years. [On this point Col. 
Grymes read the Code of 1808, art. 94. 8 Duranton, 
399. All showing that prescription did not run against 
parties until they possessed the faculty of accepting or 
renouncing, nor against minors and absentees.] 

Mrs. Gaines became of age in 1825. She was born 
in 1804 or 1805. The suit was brought in 1836, which 
would give her abundant time, ( nearly twenty years 
■within the time when prescription would begin to run.) 
This is on the hypothesis that it is not a vacant estate. 
But suppose we consider that it is a vancant estate. 

Mr. Duncan: I shall so consider it. 

Mr. Grymes: The gentleman is willing to consider 
it as a vacant estate. Then what becomes of the po- 
sition that Clark was seized and in possession ? Does 
the gentleman abandon his whole case ? It appears to 
me that the gentleman narrows his whole case down 
to the single point of prescription— if he fails in this, 
the case is gone. Well, let us see how the presciiption 
will apply as a vacant estate. In that case. Chew and 
Relf, not possessing for themselves, but for others, the 
old code, art. 45, provides that no prescriptions run in 
favor of persons acting in a fiduciary capacity. An es- 
tate is said to be vacant, when no person claims its 
possession, either as heir or under any other title. The 
only question, then, is, was this estate unclaimed by 
any one ? Old code, p. 162 ; arts. 74, 75, 77. The sue 
cession is accepted when the heir or legatee does any 
act which he could legally perform as heir ? This is a 
tacit acceptance. It is express, when in some written 
instrument he assumes to be the heir or legatee. Did 
Mrs. Clark accept the succession ? I refer to the act 
of attorney in favor of Relf and Chew, in which she 
expressly declares herself the heir and legatee of her 
son, authorizing them to take possession of his es- 
tate. 

In the account current between Coxe, and Relf and 
Chew, Mr. Coxe charges moneys paid during the year 
1814 to Mrs. Clark. [ Read the deed of sale from Relf 
and Chew, as executors and agents, and for themselves, 
to Coxe, of half the Maison Rouge claim, and cited 
authoi'ities to prove that these acts amounted to an ac- 
ceptance of the succession. 

That fact being established, the question comes up. 
When did prescription commence? We say the de- 
fendants can only claim its protection from 1820, the 
time of their purchase ; but Mrs. Gaines was a minor 
up to 1825, 6, or 7, as the court may determine. The 
court is to ascertain when complainant became of 
age. Some of the witnesses think she was born in 
1804; others, in 1805; others, again,^in 1806. I will 



take either period. If she was of age in 1825, then, 
for the fii-st time, prescription began to run — and this 
is admitting that Mi'S. Clark was in possession. We 
had 20 years from 1825, to make our claim against any 
body. This suit was commenced in 1836 — eleven 
years after she was of age. She was an absentee, and 
the shortest prescription against her is that of twenty 
yeai-s. They were cited in this suit long before the 
prescription had accrued. 

The counsel have talked a good deal about the partr 
nership between Clark and Relf and Chew. In 1841 
the articles were first published. They were set up by 
Relf and Chew in their answer in 1845. 

There is an allegation in the bill that Relf and Chew 
took possession of all the papers of Clark. They were, 
in fact, entitled to them, as executors. Their answer 
does not explain where these articles were found — 
whether among his papers or theirs. They bear date 
only a few weeks before his death. In that paper it is 
stated that he is to furnish a schedule of all the lands 
which are to go into the partnership ; and second, 
neither of the parties is to withdraw from the concern 
a sum beyond a certain amount, which is left in blank. 
There is to be a schedule of the debts of Clark, which 
are to be paid by the concern. But these schedules 
were never exhibited. They were signed with these 
imperfections. Is it not more probable that these arti- 
cles were still in the possession of Clark, not yet deliv- 
ered, because not fully executed ? 

This is a conditional contract, not executed. The 
basis of the agreement was determined ; but the par- 
ticulars were not fully arranged, and the death of Clark 
put a stop to the entire business. But none of the 
property claimed in this suit was intended to be in- 
cluded in this partnership. The property is limited to 
that held by Clark in connexion with Cox, and not the 
individual property of Clark. Not an acre of the land 
now claimed is embraced in these articles. The sale 
of the Maison Rouge claim is the only one made by 
Relf & Chew in their own names ; but this land 
originally belonged to Clark & Cox, and Cox, in pur- 
chasing it, required the warranty of Relf & Chew. 

There is another reason why these articles must be 
rejected. There is a material alteration, evidently 
made after their execution, and not accounted for. 
The addenda that the Henderson plantation just bought 
by Clark was not included in the partnership, was not 
on the paper when signed, but must have been addded 
after, and there is no proof when it was insertect 
[Aiithorities cited.] This vitiates the deed. 

The seventh proposition of defendants was the 
homologation of the executor's accounts by the Pro- 
bate Court. He cited 11 Rob., 120, Baldwin vs. Carle- 
ton, to establish the right of the minor to open such a 
judgment. (2 L. R. 147.) The executor who presents 
his accounts, and prays for a discharge, must cite the 
heirs. But in 1839, when the executors filed the ac- 
counts in the Probate Court, this court had already 
jurisdiction of the matter, and it could not be deprived 
of its jurisdiction in the manner sought here. 

And thus, may it please the court, have I attempted 
to reply to the arguments of the counsel for the de- 
fendants. It has been no light task to follow them in 
their desultory course. 

I think I have shown to this court the legal status of 
this complainant, that there are no equities in the de- 
fendants' answers, and that law and justice, and efquity 
entitle the complainant to recover this property. 



THE GAINES CASE. 



CONCLUSION OF THE TRIAI,. 

Tlio speech of Colonel (IryineM being concliiilod, Ihe 
cnsM' W118 «ubmilt(Hl to llio Court, when Jiiilu'e McKin- 
ley sIiiliHl ihnl the Cotirl would devote nil Us time lo 
its examination and consideration, in order that ii 
speedy jud^nionl might bo rendered. The Ctitirl then 
udjourned. 

The trial of this great suit commenced on Wednes- 
day, the !23il of January. The 23d, '24lh, 25lh, and 26lh 
of that month were consumed in reading the testimony, 
which is contained in a printtKl volume of twelve hun- 
dred pages. On Monday, the ifi?lh, the argument was 
opened by Mr. Preston, (by special leave,) for the de- 
fendants. Mr. Treslon spoht; the whole of Monday 
luid n portion of Tuesday. On that day Mr. Wright 
commenced his argument for the complainant, and 
closed on the ne.xt, when Mr. Campbell followed, also 
for the complainant. Ht- closed on Thursday, the 31st 
January. On Friday Mr. Duncan commenced his ar- 
gument, for defendants, and closed on Tuesday, the 5th 
February, when Mr. Taylor commenced, also for the 
defendants, and concluded on Wcilnestlay, the Cth Feb- 
ruary. On Thursday, the 7th February, Mr. Grymes 
commenced his argumfiit, for complainant, and closed 
it and the case on Saturday, the 9th February, when 
the case was given lo the Court. The reading of the 
testimony occupied four days, and the argument 
twelve days. 

JUDGMENT. 

On Thursday, the 21st February, a largo crowd of 
lawyers and others, attended the Court to hoar the deci- 
sion in this great case. 

Immediately on the opening of the Court. 
McKinley slated that, as he and his brother Judge had 
differed on the question, as to the force of the decision 
in the Patterson case, he* thinking that that judgment 
wasbinding, and Judge McCaleb not considering him 
self bound by that judgment, he (Judge McKinley) had 
determined to retire from the bench and allow the Dis- 
trict Judge to decide this case. He was induced to do 
this, because he was a Judge of the Supreme Court, 
and would have to sit in this case when it came up be 
fore that tribunal ; that he never knew a case in which 
the Supreme Court ovcrnded Its own decision, and he 
would consider it disrespectful to his brother Judges 
to undertake to review and reverse their judgment 
There was also another reason why he should leave 
the decision to be rendered by Judge McCaleb, who 
was better acquainted with the local or State laws of 
Louisiana than he was, and the case would go up to 
the Supreme Court with an opinion written by 
Judge familiar with the peculiar jurisprudence of this 
State. He thought this the most satisfactory 
it would lead to the early decision of this case 

Judge McKinley also suited that if, as defendants al 
leged, the Patterson case 



very curious msdc-up cams as the material evidence in 
that case did not differ fnim this. There was a great 
ileal of irrelevant and Inadmissible te«tim<my In the 
ciu<e, whicli he nliould exclude, leaving it. In no oaaen- 
lial pi.inl.iliirerent from that ollho Patterson case. 

Judge MiKlnley then ordered the clerk to enter up 
a minute, that the Circuit Judge retired from the bench 
during the decision of thlscn.«e. 

Judge McCaleb then read the following decision. 
MvRA Clark Caisks, Complainant, J 

v.i. Mn Kiiuily. 

Oitw & RitLf. and Others. ) 

When I consider the decicion of the Supreme Court 
)r the United States, hi the case of Oaines and »'ije 
18. Vnttrrsoju, (6 Howard) 1 feel the utmost diffl- 
di-nce hi a.Asuming, as I feel it my duty U) do, the ro- 
jKHisibility of examining de nnvu the merits of this 
controversy. I disclaim any want of respect for that 
deci.-ion, or for the high tribunal from V.liieh it crpina- 
led. Hut I feel most solemnly conviiio-d, that the 
rits of the present case, have not been fully and 
fairly settled by that decision. Apart from the new 
fuels and circumstances developed in the proL'ress ol 
the trial, which present the rights of the parlies in a 
dllTercnl light, the testimony of Patterson himself, who 
has been examined as a witness, disclases enough to lead 
my mind irresistibly lo the ctinclusion, that Iheie wat 
no serious contest before the ci.urt. It was a proceed- 
ing 111 which It Is perfectly apparent, that, whatever 
might be the result, the defendant was lo suffer no loss. 
His own slalembnt shows that he is now in possession 
of the very property which wius the subject of amlro- 
versy. In consideration of his willingness to aid tho 
complainants in obtaining a judgment of the court 
settling important principles of law in their favor, he 
has been rewardetl by a donation of the whole pro- 
jierty. Even the costs and expenses incurred in tho 
litigation have been paid by the victorious party. 

The counsel who argued Ihe cause and the courts 
which decided it, were ignorant of the private, amica- 
ble understanding that existed between the parties ; 
but Ihis fact does not, in my opiniim, relieve the case 
from a taint of collusion, which renders the judgment 
itseif, of no binding force as res adjudUata. It Is im- 
possible not to discern at a glance tlie advantages so 
willingly surrendered by the defendant by his refiwal 
to join with the other defendants in the resolute resist- 
ance thev have uniformly made to the claim asserted 
by the complainant. And it is apparent from his own 
testimony that nothingshort of a satisfactory a*sur nice 
that he woidd become tho gainer instead of the loser, 
by the part he has acted, w ould ever have operaU.-d as 
an inducement to place himself in a false position be- 
fore the high tribunal whose equitable relief he but 
nominally invoked. 

The complainant in this case sues as the only legiti- 
mate child of the late Danii'l Clark, who di^^i in this 
city on the 13th of .\ugust, 1813. She alleges in her 
bill that tho said Daniel Clark executed a will in 1813, 
in which he devised and bequeathed all his estate, real 
and pergonal, to her, the complainant, and "did also 
therein and thereby declare her to be his legitimate 
daughter, and did make and order therein other dis- 
positions and bequests ; " that the bill of 1813 ojieratevl 
a full ahd perfect rev.K-ation of the former will allegol 



I a ii»de-\ip case, it was aj to have been made hjr the said Daniel Vlark in 1811 i 



74 



THE GAINES CASE. 



that the said will of 1811 ought lo be set aside, and the 
said wUl of 1813 established and conliimed ; and the 
real and persoiml estatt; of said Claik declared to be 
descended to her," thfeBtfmplalnaut. "Yet," continues 
the bill, " your oratriXy^y the advice of her counsel, 
hereby declares that, for the purposes of this suit, she 
will not insist upon the said will of the said Daniel Clark, 
made ui 1813, except for the purpose of availing herself 
of the devise therein contained in her favor, but for 
the puipose of availing herself as far as in law it 
is competent to do, as a declaration of her father, 
the said Daniel Clark, of the legitimacy of your ora- 
trix, and for establishing her pretensions, in this 
bill set forth, as the forced heiress of the said Dan- 
iel Clark, and as such forced heiress, her rights to the 
legitime of four-flfths of the estate of sa*d Dauifil Clark 
which he held at his death. " In a preceding part of 
the bUl it is alleged that the will of 1813 alluded to, was 
"fraudulently concealed, suppressed or destroyed" by 
the defendant, Richard Relf, and the revoked will of 
1811 produced and procured to be admitted to probate, 
as the last will of the said Daniel Clark. The will of 
1811 is in the following words: 

"In the name of God, Amen! I, Daniel Clark, of 
New Orleans, do make this my last will and testament : 

First. I order that all my just debts be paid. 

Second. I leave and bequeath unto my mother, Mary 
Clark, now of Germautown, in the State of Pennsyl- 
vania, all the estate, whether real or personal, which I 
may die possessed of. 

Third. I hereby nominate and appoint my friend?, 
Richard Relf and Beverly Chew, my Executors, with 
power to settle everything relating to my estate. New 
Orleans, 20th May, 1811, Signed, Dauied Clark." 

This will was duly admitted to probate, and letters 
testamentary granted to the executors therein named. 
By virtue of these letters testamentary, and also by vir- 
tue of a full power of attorney from Mary Clark, the 
sole heiress and legatee mentioned in the will, it is con- 
tended, on behalf of the defendants, that the property 
in controversy was sold and purchased. 

Without noticing minutely the various allegations 
in the bill, and denials in the answer, I shall proceed 
to examine some of the most important issues which 
have been distinctly presented by the pleadings, and 
argued with great ability at the bar. 

The first and most important of these issues, in- 
volveithe legitimacy of the complainant. It has been 
raised by the positive denial in the answers of the 
defendants, and it is incumbent upon the complain- 
ant to prove it. She alleges that her father, Daniel 
Clark, was married to Zulime nee Carriere, in the city 
of Philadelphia, in the year 1803, and that she is the 
legitimate, and the only legitimate offspring of that 
marriage. The defendants deny that Daniel Clark was 
married to said Zulime at the time and place alleged, 
or at any other time or place, and they aver that, at the 
time said marriage is alleged to have taken jjlace, the 
said Zulime was the wife of one Jerome DeGrango. 
They also deny that the complainant was the child of 
Daniel Clark, and aver that if she be, she is an adulter- 
ous bastard, and incapable of inheriting the property 
of her father. 

The first question to be determined is, does the evi- 
dence on this record establish the marriage of Daniel 
Clark and Zulime Carriorc V It hii.= been my own de- 



sire to be relieved from the responsibility of deciding 
this question, by directing an issue out of chancery lo 
be determined by the verdict of a jury. I have re- 
garded this question as o!ie peculiarly proper to be de- 
termined by a jury. It is apparent to any one, who 
will look at the record, that the evidence of the wit- 
nesses is of the most contradictory character, and 1 
have thought that in a case where a conflict of evi- 
dence presented any barrier to the attainment of truth, 
it was peculiarly the province of a Jury to aid the con- 
science of the court, by passing upon the credibility of 
the witnesses, who have been examined in the cause. 

"When facts are to be decided," says Gresley in his 
Treatise on the Law of Evidence in Courts of Equity, 
(p. 522,) "which from their nature, demand publicity 
for their trial, as a question whether a party is the heir 
at law of an intestate estate, or where some person in- 
terested has a peculiar right to the fullest investigation, 
(as an heir who is questioning a bill; or when the 
Judge really feels a difficulty too great lo be removed 
by the mere substitution of the master's opinion for 
his own ; or where he thhiks it better that the respon- 
sibility of deciding should be thrown from himself 
upon that evanescent tribunal, a jury.) In these, and 
other cases, the Court of Equity calls in aid the Com- 
mon Law tribunal, to declare its opinion on a matter of 
fact. Some issues have, of late years, been granted 
almost of course, as an issue to try the validity of a 
modus, or an issue of devisavit vel non.''^ 

In as much as it will not be in my power ^to avail 
myself of the assistance of a jury in the present case, 
tor the want of a concurrence of a full court in the ne- 
cessity of sending any issue of fact out of Chanceiy, I 
shall proceed to the examination of the evidence on 
the record, with that candor which the importance of 
the case so imperatively demands. And I shall do so 
fully impressed with the correctness of the remark of Mr. 
Gresley in his Treatise just cited, (p. 468,) that "the 
credit which the court will ^ive to the testimony of an 
individual witness, or to the whole mass combined, va- 
ries so much, that the advisability of examining them 
and the topics of their examination, must be dictated 
by the facts, experience, and common-sense." "The 
disadvantage," he continues " under which the court 
must always labor, with respect to them is obvious ; it 
is quaintly expiessed in the Treatise of the Coiu't of 
Star Chamber, thus: 'Now, concerning the persons 
of witnesses examined in court, it is .a great imputa- 
tion to our English Courts, that witnesses are privately 
produced, and how base or simple soever they be, al- 
though they be testes diabolarcs, yet they make as good 
a sound, being read out of paper, as the best ; yea, 
though a lewd and beggarly man take upon him the 
name and person of an honest man, and be privately 
examined, this may easily be overpassed, not easily 
found out ; whereas, in flcclesiastical Courts, the wit- 
ness must be sworn in court, in presence of the proctor 
of the other side at least.' " 

These remarks of a learned and ingenious author, 
often appealed to by the able solicitors of the com- 
plainant, suggest the necessity of great care and cau- 
tion, on the part of the Chancellor, in weighing the 
testimony of witnesses who are never seen by the 
Court, and who, as it happens with reference to many 
whose testimony appears on the record of the case now 
under consideration, live beyond the piucess of the 
Coiut, and ppeak a foreign language. 



THE GAINES CASE. 



Thi' .inly wilnciw whoH«' Iwtiuioiiy Is rulkil on lo^ llclpaloil chnnRu of i<ovenirooul orcalotl dolny, but at 
pr..\ .. 11,., i„ct ..r ll.u iiuirriiino ol Mr. Cliirk will. Zulirau i l.-ii«tli, in IrtHJ, Mr. Jumcs Brown and Klit^im Fromen- 
< an i.r.', is Mii.Iiiiik^ lK".|)uii, ll.o uiii.l uf llio cin-tliii, us ll.«« '•■•iii..4il ..r my sinter, l)r..u;<lil ftuil «Jf«'i* 
plainanu She is ul l.'uM, Hit! only wilmss who s%vi'nni! Iho niiin« ■■! IKKnuiifis, in tlio Cily Court, 1 tliuiK, of 
l..th«racir>oni|)fr>kin:il k»o»l.".l«<'. ii.r Uwllmony i Nuw Orleans. Tl.., grounds of boid huU wen-, that 
lia-H lM*n taken III liirt-u diirorenl tini.s-ono In iHat),! Di'GranuL' Im.l iniix-^td himself upon litr at o Uine 
.)n.u in 184.5, ami ajraln in lfil». i when ho lm<l a In in<, hiwful wife. Judsrount la said 

In lt»39 oho says : " 1 was will ar.iiiaintod with the j nail was ren.l.r.-a uLf.iiiwl mild DeUrunHu. Mr. ClarK 
lalu Diuiiel Clark, of Now Orluaiw. IK- wiw married in ; still continui.l to il.-for promnlgallng his rourrlni^e Willi 
Philadelphia, in lt-o:t, by a Catholic priest. I was pre- ; my sister, wlilcli v.ry much fVeUod and irritated her 
sent at this marrimro. One child was burn .if that ! fueling.-!. Mr. Clark U-carae a member of the I ultcd 
marriage, to wit: Myra Claik, who niarri.d Willlimj | Slali» ConI,'re^^ in \m\. Wl.iUl ho was in Conu'reM, 
Wallace VVhilnoy, son olCen. 1. Whitney, olllio^jUite I my sister heard that he wan courting Miss Cia»n,of 
of New York. I wa.i presunl at her birth, and know | Jlaltim.ire. She wiu much dislresseil, though she couUl 
that Mr. Clark cluinu-d and acknowledged her to bo' not believe the report, knowing hen«elf to bo his wm-. 
his child. She was borr\ in IcOC. I neither knew, nor 
had any reason to believe that any other child 
besides Myra was born .>f that marriage. The cir- 
cumstances of her marriage with Daniel Clark were 
these: (By Afr, ii is .if course presumed that 
the witness means '/.iili 
in her. testimony she ' <\> 



tstill, his .strange conduct in deferring to promulgate 
his marriage wiih her had alarmed her. s?he and I 
sailed for Philadelphia, to get proof of his marriage 
with my sister. We could tind no record, and were 
told that the priest who married her and Mr. Llark 
though up to Uiis point '. had gone to Ireland. My sister Uieu sent for Daniel W . 

, .... not mention her name.) |Coxe, mentioned to him the rumor; he answered that 

Several years alter her marriage with DeGrunge, aAc he knew it to bu true, Ihal he, (Clark,) was engaged to 



hetird that he had alirinif itj/e; our famihj charged 
him tcith the crime ofbisamy in marrying said "Zutime ; 
he at first denied it, but nftcrwards admitted iL,and fied 
from the country. These circumstances became public, 
and Mr. Clark made proposals of marriage to my sister 
with the knowledge of all our family. It was considered 
ossentiiU, first to obtain reaird proof of DoUrangc 
having a living w ife at the time he marrie.1 my sister ; 
to obtain which, from the records of the Catholic 
Church in New York, (where Mr. DoGrange's prior 
marriage was celebrated,) we sailed for that city. On 
our arriviU there we found that the registry of mxr- 
riages had been destroyed. Mr. Cl.irk arrived after us. 
We heard that a Mr. Gardelte, then living in Philadel- 
phia, was one of the witnesses to Mr. DcOrange's 
prior marriage. We proceetled to that city and found 
Mr. Gardette. Ho an.swered, that ho was present at 
said prior marriage of ne(;range, and that ho after- 
wards knew DeG range and his wife by this marriage ; 
that this wife had sailed for France. Mr. Clark then 
said, you have no reason longer to refuse being mar 



her, (Miss Galon), .^ly sieter replied, that it could not 
be so. Uc then tol d her that she would not be able to 
establish her marriage with Clark, if he were disposed 
to contest it. Ho advi!?.>d her to lake couni^el, and said 
he would send one. A Mr. Pmyih came and t.jld my 
sister that slio couM not leiially establish her marriage 
with Mr. Clark, and prcten.lcd to retid to her a letter 
in English, (a languaen then unknown to my sister,) 
from Mr. Clark to .Mr. Co.\e, sUiling he was about to 
marry .Miss Caton. la conse.iuence of this Infonna- 
lion, my sister Zulimc came to the resolution of having 
no further connection or intercourse wiih Mr. Clark, 
andstion afterwards married Mr. Gardette, of Phila- 
delphia. The witness further states, that she bacame 
actjuaintctl with DeGraiigc in 1793. He was anobleman 
by birth, and marri.-d Ziilime when phc was thirteen 
years eld. Zulirae h.id two children by him— a boy 
and a giri ; the boy died, the giri is still living, (1KJ9>; 
her name is Caroline, and marri,--d to Dr. Barnes. Wit- 
ness was present at the birth of these children. The 
marriage of Zulime was a prirate ore. Besides the 



riedtome; it will, however, bo necessary to keep our! wilne.^-i, .Mr. Dorxier, of New Orleans, and an Irish 
marriage secret till 1 have obtained judicial proof of j«p»tlemin, a friend of Clark, from New York, were 
the niUlity of your and DeGraiige's marriage. They, ' present at the marriage. .9 Catholic priest performed 
the said Clark and Ihejaid Zulime were then married, i tAe ceremony. Befnrethedttection of the bi^uny of l)c 
Soon afterwiuds, our sister, Mailame Cjullavet, wrote Orange, Zulime had a son, who di.^l, and a daughter, 
to us from New Orleans, that DeGrange's wife, whom ' wdled Caroline, which bore his name, Caroline w.w 
he had married prior to marrying the said Zulime, had ' born in 1^1 ; witnei<8 vas present at her birth. a.« well 
arrived at New Orleans. We hastened our return to ' ^ that of her brother. The natural language of wit- 
New Orleans. He was prosecuted for bigamy, father ! "'"^ '" '^""*'! *"' hernrpheic is well aequainied leith 
Antoine, of the Catholic church, taking part in the pro- ' <*'• F.nglish language, and when in need of a translator, 
ceedings against Dellrange. Mr. DeG range was con- ! »*« "/T"''" '« Aim. 

demned for bigamy in marrying the said Zulime, and I I have, injustice to this witness, stated all the material 
was cast into prison, from which he secretly escaped ' fact^ detailed in hertestimony taken in 1839, before 1 
by connivance, and was taken down the Mississippi proceed to compare it with that subs<<iuently taken in 
river by Mr. Le Breton D'Orgenois,where hegot intoa 184.5 and 1(M9. Iler testimony taken in 1H45, is, forthe 
vessel, escaped from the country; and, according to most part, a repetition of what she slated in lJ*39, with 
the best of my knowletlge and belief, never alter- the aildiiion of some facu which may be important In 
wards returned to Louisiana. Thij happened in \im, ' weighing her credibility. For instance, she stales 
not a great while before the close of the Spanish that the first lime she saw Mr. Clark, wa--« in the latter 
government iu Louisiana. .Mr. Clark told us, thai be- ' part of 1802. ghe was shortly afterwords introduced 
forehe could promulgatchis marriage wiih my sister, ; to him by Col. BeUechasso. Zulime was married to 
it would be necessary that there should be brought by i Mr. Clark, as Miss /.uiime de r^rrtire. The last time 
her an action against the name of DpGrange. The an- ' she saw P«Grangr was in l!?03. In 1849, she e-ivs *tf 



76 



THE GAINES CASE. 



was well acquainted with Daniel Clark ; that her ac- 
quaintance with him commenced about, or not long 
after 1797. His marriage with Zulime, to the best of 
her recollection, took place in 1803, although there are 
some associations in her memory which make her think 
it not impossible that the marriage may have taken place 
in 1802. Her impression is that it took place in 1803. 
It was, she remembers a short time previous to Mr. 
Clai'k's departui-e for Em'ope. 

Let us first consider this evidence with reference to 
itself alone. It was taken at thi'ee different periods, 
and, we must presume, was not given without much 
reflection. In the year 1845, she says, that the first 
time she saw Daniel Clark was iu the latter part of 

1802, and even then, had no acquaintance with him, 
for she icas shortly afterward^ introduced to him by 
Col. Bcllechassc. In 1849, she says, her acquaintance 
with him commenced about, or not long after 1797. 
In 1839, she states, without any qualification what- 
ever, that Clark was married in 1803. In 1845, she 
again states this fact, and on both occasions, she refers 1 
to other facts with which she couples this important I 
event, so as to render it perfectly certain that the mar- ! 
riage did take place at the time and place stated by 
her. For instance, iu 1839, she says that the proposals 
made by Clark to Zulime, were made after the detection 
ofthebigamyiifDeOrangc. This she declares in un- 
qualified terms, was in 1803, and not a great while '■ 
before the close of the Spanish government iu Louis- 
iana. In 1845, she again says, that DeGrange was 
convicted of bigamy in 1803. In 1849, in referring to 
the conviction and escape of DeGrange, she, for the first 
time, omits to state the year, but says that it happened 
not a great while before the cessation of the Spanish 
government in Louisiana. In this deposition of 1849, 
we find this witness for the first time expiessing the 
slightest doubt about the marriage of Clark having 
taken place in 1803. She says, " to the best of my recol- 
leclion it was in 1803, although there are some associa- 
tions in my memory which make me think it not im- 
possible that the marriage may have takenplace in 1802 ; 
my impression, however, is, that it took place in 1803. 
It was a short time before Mr. Clark's departure for 
Europe." 

Now, it is evident that the doubt was thus started for 
the first time iu the mind of the witness, by the efforts 
which the defendants were making to show that it was 
impossible that the marriage could have taken place in 

1803, inasmuch as Daniel Clark was not in the city of 
Philadelphia during the whole of that year. The efforts 
of the defendants on this point were completely suc- 
cessful. Indeed, the solicitors for the complaint admit, 
that the marriage must have occurred about the last 
of 1801, or the firs't of 1802. They admit that if it did 
not take place between the mouths of November 1801, 
and August 1802, there was no marriage at all. This 
is a latitude of proof, which, I apprehend, the laws 
Which were in force at the time this marriage is alleged 
to have taken place, would never have sanctioned. In 
questions involving legitimacy, the time of mai-riage 
was of the utmost importance in cases like the one 
under consideration. With the conflicting evidence 
before us, we may all ask, when Zulime ceased to be- 
come the wife of DeGrange, and when she legally be- 
came the wife of Clark ? Let us, for instance, suppose 
that the marriage took place as Madame Despau has 
^decl'f.vd in one of her depositions, in 1803, about the 



time the Spanish government ceased in Louisiana, 
This we know historically, was near the close of 1803, 
and not, as conterided by the solicitor of the complain- 
ant, at the date of the treaty of St. lldephonse of 1800, 
which was a secret treaty and never known in Louisiana 
until a short time before the delivery of the country by 
Spain to the French authorities, by whom it was al- 
most immediately surrendered to the United States. 
We have, then, most conclusive evidence that the com- 
plainant was born in June, 1804. And the old code p. 
44, art. 8th, which contains substantially the provi- 
sions of the Spanish law, declares that the child who 
is born previous to the 180th day of marria-^e, is not 
presumed to be the child of such marriage. " And 
article 9th declai-es that it is the same, that is to say, 
the same presumption exists, v^ith respect to the child 
born 300 days after the dissoluiion of the marriage, or 
after sentence of separation." Now, we have record 
proof that DeGrange was here in New Orleans, as late 
as the 6th of December, 1805, and we have evidence of 
the same character, that the judgment against him 
which has been called a judgpjeut of divorce, (though 
the record does uot show the grounds upon which it 
was given,) was not rendered until July 24th, 1806. 
What can be the object of such legal presumptions, 
if the pai'ty who claims rights under a contract of mar- 
riage, can be permitted to fix the date thereof, at any- 
time within the space of eleven months. If time be 
important in a controversy of ttis nature, and the 
arguments show it to be important, then the com- 
plainant should be bound to fix definitely the date of 
the marriage, by virtue of which all her rights have 
accrued. This was in the contemplation of the Spanish, 
law, whose whole policy was opposed to clandestine 
marriages, and required a registry of marriages to be 
kepi. If it be beyond the power of the complainant to 
fix definitely the date of the marriage in this instance, it, 
is a misfortune, for which the authors of her being, and 
not the defendants, were responsible. The rule which 
has been followed in this case, is one which, in my 
judgment, is calculated to lead to dangerous conse- 
quences. Upon the testimony of Madame Despau 
alone, the Supreme Court of the United Slates have 
solemnly decided in the case of Patterson, that Daniel 
Clark was married in Philadelphia in 1803. The at- 
tention of the defence in this case, was naturally direct- 
ed towards that particular date, and they have shown 
most conclusively that the marriage never could have 
taken place at the time and place thus definitely fixed 
by the testimony of the only witness who pretends to 
any personal knowledge upon the subject. 

The evidence in the record shows most satisfactorily 
that the complainant was born while DeGrange was still 
in NewOrleans, and before any judgment of divorce was 
given againsUhim ; and the Supreme of this State in the 
case of Tate vs. Penne, (7 N. S. 554,) have said that 
the law considers the husband of the mother, as the 
father of all the children conceived during the mar- 
riage. In case of voluntary separation, access is al- 
ways presumed unless the contrary be proved : the 
presumption of paternity is at an end, when the re- 
moteness of the husband from the wife has been such 
that co-habitation has been physically impossible.— 
Code of 1808, p. 45, art. 7, 10 & 11. " The evidence," 
again remarks Judge Porter, who delivered the opin- 
ion of the Court, " creates a presumption of absence 
and nnn access : but that will not do in cases like this. 



THE GAINES CABE. 



77 



The legal presumptlnn uf tho husbiuid bolni; the father, you nut tu puiih Mr. D. for paynienL, but wait, conslstr 
oiiil (>r ucceM beliiK predumud in cuava of voluntary I unl with Nafi'ty, Kuch timo ilm hu muy And necewary. 
separiUioii, can only b« destroyed by evidence bring- \ Should hu b<' inclin«"d to kd owuy tj«!for«' tho sum 1« 
ill),' the piirtlog within tho exception tho law ban ere- j paid, you must Insist on wcurity." By a letter od- 
utod to the rule, uiimely, tho physical impossibility of ! dressed by Detlranjjo to Clark from Hordeuux, <in tho 
conneelion— mffTo; will not do. Now, that physical im- 1 vMth of July, 1801, it Is evident that the former wos in 
possibility can only bo shown by provini; tho residence t France about the time his wife was in Philadelphia 
ofthe husband and wile to bo so remoto from coch | not, as I solemnly believe, from the evidence, for the 
oilier that access was impossible." I purpose of procurini; evidence of the former morrlaKo 

These principles of law, thus clearly recognized, re- 1 of UeGrange, but of giving birth to Caroline, tho fruit 
pel the presumption of tho legiliraiicy of complainant, j of her illicit connection with Uanlel Clark. When we 
sought to be establislud by tho testimony of Madame consider this letter of Detirange— couched as it is In 



Despiiu; and they will apply with greater force to the 
inorils of this controversy, when we hereafter examine 
the question involsing Ihe legal validity of the marriage 
with Clark, contracted before an action of nullity had 
bi-en instituted, to set aside tho marriage with De- 
Grange. 

Let us now proceed to test the credibility of Mudamc 
Despuu, by other fads ond circumstances presented by 
the record. She states Ihiit she and her sister Zuiime 
went to New York, to obtain the record evidence of the 



the most friendly language, and containing a warm re- 
commendation of his wife to the kind consideration 
of Clark— in connection with the testimony of Coxe, 
detailing thu circumstances of Zuiime's introductioD 
to him in Philadelphia, and the birth of Caroline, 
which shortly followed, I confess I And little indeed tu 
justify the enthusiastic encomia so repeatedly bestowed 
by various wilnesses on this record, on the character 
of Clark, as an honorable, high-minded man. 

But there is another fact which conclusively shows 



former marriuge of DoGrange; but that, on their arri- that the testimony of Madame De.-pau, in relation to 
val, they found that the records had been destroyed ; the marriage of Clark and Zuiime, cannot be relied 
and yet, there has been offered in evidence, on the piut : on. I allude now to the suit for alimony, which was 
of tho complainant, a certificate of tlio marriage of Unstiiuted by Zuliine against DeGrangea«/irrAu<iiiii({, 
Jacob DeGrange with one Barbara Orci, signed by i on the 30th of November, IStlS— three years after it Is 
O'Brien, the very priest who solemnized the marriage, alleged the nlSirriage was solemnized. The solicitors 
and dated on the l\lh of September, 180C; and, from ^ for the complainant have strenuously resislwl the in- 
tbis certificate, it appears that the original record jcas troduction of the record of this suit, as evidence against 
to be found at p. 45 of the Register. Surely, if this be ! the complainant. I am unable to appreciate the force 
genuine, tho records were not destroyed, when the | of these olyeclions. Nothing is more common in the 
■witness and her sister sought for the desireil record courts of I^uisiiuio, than the introduction of such evi- 
proof, m 1801 — according to the position now assumed ■ deuce, to show llie capacity in which a party has cho- 
by the solicitors of tho complainant— or, in 1803, uc- sen to place himself before a court to assert a right, 
cording to the testimony of the witness herself. The The general principle in the English law of evidence, 
complainant, therefore, has proved too much. ] that allegations in a bill of chancery are not evidence 

But, let us turn to the acts and declarations both of •^""sl I'le complainant in the bill in another suit, 
Clark and Zuiime; and first, we will exaiaiue those of | ''f*'*' ' apprehend, upon tho fact that the courts of 
Zuiime. While proceedings were^nding in tlie Kccle- '. chancery, in England, are not courts of record. Here, 
siasticiU Court, in this city, against DeGrunge, for biga- »" "'"■ C""rts are courts of record, and it would be. In 
my, ho appeared, and took an affidavit as tto wife of De- •"> judgment, a dangerous principle to introduce into 
Grange ; and, in this affidavit, declares that she did not . our jurisprudence, that a porty shall be permitted, in 
believe that her husband was o bigamist. Strong objec- i " solemn judicial proceeding, to assert a fact one day, 
tions have been urged against the record of these pro- 1 a'"! <>" anoUier day be at liberty to deny it. I am clearly 
ccedings before the Ecclesiastical Court, as evidence, of opinion that the record in the suit for alimony, is 
My own opinion clearly is, thijt it is evidence to prove ' ?o«d evidence to show that, on the 30th of November, 
rem i>..i<im-thal such proceedings took place-and that 11805, Zidimc DeGrange applied to the late county 
Zuiime, under whom the complainant also claims, ap- court of Orleans to award her a judgment for alimony 
peared in Court, and took an affidavit as tAeici/e «//;<;- 1 against Jerome DeGrange, as her husband, and that 
Grano'f, and thalDeCrange himself was present in New 'j"''?ment was given in her favor, on the ii-lth of De- 
Orleans. This is important ts incontestible record evi- 1 cember, 1805. It was only as the viifc of DeOranft, 
dence, showing strong grounds for the presumption that '•»»' ^^^ had a right to ask for alipiony at the hands of 
Zuiime had not been previously married in Philadelphia ' "><^ co"""'' and » wouW •» most absurd to say that the 
to Daniel Clark. These proceedings before the Ecclesi- ; eminent counsel who filed her petition, and prosecuted 
asticttl tribunal t«x)k place several months after (as the , '^e suit to final judgmen^ would have acted without 
complainant's solicitor contends) the marriage was cele- 'authority from the plaintiff in the cause, 
brated. Madame Despau s\*'ear3 that DeGrange had\ Thetestimony of .Madame Despau derives no strength 
fled from the country, tehen Clark made proposals «/ or confirmation fri)m that of her sister, Madame Cailla- 
marriage to Zuiime ; and yet wo find him here in New vet. The statements of Uie two witnesses are, for the 
Orleans, appearing as defendant in these proceedings, most part, consistent with each other, but totally 
in the month of September, \S0-2. He was also here ; inconsistent with tl.ose facU which are clearly as- 
when Clark was on his way to Now York, on the '^th certained, well established, and about which there 
of June, 1802, as appears by a letter addressed by the can be no doubt on the mind of a Chancellor. It is 
latter to Chew & Relf, from Plaquemines. In reference : only necessary to refer to a few facta stated by Madame 
to a debt due him from DeGrange, he says : '• I wish Caillivet, to show how impoMiblo it is, consistent with 



THE GAINES CASE. 



truth, to give credit to her testimony. She states that : sincere without affectation ; if the deppsitions be con- 
"the preliminaries of the contemplated marriage (ofjformable to one anothei', and nofc c.orjpgrtgfl ; if tlin 
Clark and Znlime) were settled by the husband of wit- j number of tlic witnesses, the couforinijyiqf their de- 
tiess, at his house, in the year 1803 or 1803, in the pres- ' positions, common fame, and tl^e prc^tjajjjlity of the 
ence of witness, who went to France some time after the | circumslances confirm their evidence ; .1/, *beh- varia- 
said arrangements, but previous to the said marriage al-Hioiif, their disagreement, their contradicjitjii's render 
luded to.'''' Witness has constantly resided in France them suspected ; if the consequence , of the -facts be 



since she went there, and she retm-ned here within the 
last fifteen days. Now, the information of this witness, 
in reference to important facts connected with Clark's 
marriage, seems to have increased since she first gave 
this testimony. In her last deposition, she states that 
she heard from Clark himself that he was married to 
Zulime, and that Mtjra was his onlif lawful child. 
And yet, in the evidence first given, we are plainly 
told that she v^ent to France after the arrangements 
for, but prtvious to the marriage itself, and that she 
has constantly resided in France since she went there 



such as may I'equire a more exact (MMisideMion of 
what may render the witnesses suspected, ^s in crimi- 
nal prosecutions ; or if the facts be so slight. that it is 
not necessary to be so exact in the inquiry, as if the 
matter were only a bare action of slander or-defama- 
tion, in a quarrel between persons of a mean con- 
dition. Thus the right jmlgment that is to be made of 
the regard which ought to be had to the depositions of 
witnesses under all these views, depends on the rules 
which have been explained, and on the prudence of 
the Judges to make a right application of them, ac- 



until she returned within the few days previous to giv- 1 cording to the quality of the facts and the circum- 
ing her evidence. How she could have heard the declar- 1 stances. 

ations or statements alluded to from Clark, it is imposs- 1 T^e testimony of Bellechasse, so much relied on, is 
ible to say, as she does not pretend that she ever met j singularly inconsistent with the friendly relations 
him in Europe. The solicitor for the complainant has | ^.^ich existed between himself and the defendant, 
explained this part of her evidence, by saying that she , Rgif, f,,,- many years after the death of Clark. As late 
referred to her husband, who left for France after the i as 1822, he wi-ites the most friendly letters to Relf, in 
preliminaries were arranged. The plain grammatical | which we find not the remotest allusion to the fraud,, 
construction of the sentence does not justify this expla- which, in his deposition taken in 1834, he alleges was. 



nation ; and it is somewhat remarkable that she did not 
make it hei'self, when, in a subsequent deposition, she 
complained that her testimony had not been properly 
taken down. Other corrections were made, but 
nothing is said in reference to this manifest and pal- 
pable contradiction. 

" That which renders the testimony of a witness 
doubtful," says Gilbert, in his woik on evidence, 
(J). 150,) "is the attestation of the several circumstances, 
and yet no proof of any one of those circumstances, to 
fall in with what h(i attests. This may render such a wit- 
ness (standing alone, without any assistant proof,) to 
be very much suspected, and there must be great con- 
fidence in the integrity and veracity of the man, to be- 
lieve many circumstances in one man's testimony, 
when, if it were true, there might be a multitude of 
concurrent proofs to strengthen and confirm the evi- 
dence." 

"Another thing that may render a witness suspect- 
ed," continues this author, "is in the person himself; 
as if he who were a party to the crime, swears for his 
own safety or indemnity ; or be a I'elation or friend to 
the party." (Madame Caillavet, like Madame Despau, 
is an aunt of the complainant.) 

It is necessary, says Domat, (b. 3, lit. VI. 553, No. 15,') 
to add to all these rules, in i'elation to proofs by wit- 
nesses, that we ought to consider their condition, their 
manners, their estate, their conduct, their integrity, 
their reputation ; if their honor has received any 
blemish by a condemnation in a Court of Judicature ; 
if they are in a condition to tell the truth withoiu re- 
gard to the persons interested, or if it is to be feared 
that they ai-e under some engagement, or have some 
inclination to favor one of the parties, as if they are 
friends, or enemies to one or other of them ; if their 
poverty or wants expose them to the temptation of 
giving such testimony as may be agreeable to one of 
the parties, according as they have any thing to fear or 
hope for from him ; if their testimony appears to be 



committed by the latter, in suppressing the last will 
and testament of Clark. The solicitor of the complain- 
ant, who last addressed the Court, endeavored to ex- 
plain this manifest inconsistency, by saying, that na- 
mediately after the death of Clark, Bellechasse could 
not have known of the commission of any fraud by 
Relf, and that the witness, in speaking of the suppres- 
sion of the will, gave not his own, but the languag.$,of 
Pitot. A short extract from the testimony will show 
at a glance, the error into which the solicitor has fallen, 
" Pitot," says he, " as well as others, always spoke with 
the utmost indignation of the fraudulent suppression 
or destruction of the said last will of 1813, and t&e 
fraudulent substitution, in its place, of the provisional 
will of 1811, all of which, we attributed to interested 
villainy.'''' And yet we find that this devoted and con- 
fidential friend of Clark, who thus sympathized in the 
indignation expressed at the disappearance of the WlUj 
remaining on terms of cordial good will with the author 
of the '■'■villainy''' of which ho complains, and resorting 
to no means, either by word or deed, to expose' it, and 
thus vindicate the rights of the child of liis deceased 
friend. He remains silent upon the suljfject until' he is 
called upon to give evidence on behalf of the cdrfl- 
plainant, in 1834. 

Equally inconsistent with his conduct, is the testi- 
mony of Samuel B. Davis. It is difficult to belive'that 
this witness has disclosed all he knew in reference to 
whether the complainant was the legitimate or illegiti- 
mate child of Daniel Clark. From his peculiar posi- 
tion, as the immediate protector of the child during the 
life-time oft he father, it is reasonable to presume, that 
he possessed advantages for acquiring information not 
enjoyed by the other witnesses in this record, ami yet 
he states nothing definite. We infer from his evidence 
that his own belief was, that she was the legitimate 
child of Claik ; and yet, we find him keeping ter in 
utter ignorance of the circumstances of herbiiffi and 
true parentage, and making no effort to. a.ssert , her 



I- aim 



.^1 vet 



ur rec<i'-n>i.-;'l bun a* a mHrried 

.iDor known. .\n<rmlbe 

'.m, nrc.iind itie cvuch of 

■ winitil havu iKK-n 

., ,.n.- tUlim; her 

red. And whtn the 

.„,..„^ .,„! 1m- vHl 






,. ,,.„..., lUI^ 

■> u a worthy pfaiov- tunong 
ofiis diguUy, mystical eig- 

\ - I 1. !i'..':. iMiiU, 

•.-,11.1 



tlLT." 



iples; 



i:nk>? ca: 



V.ivtieDzode Mu'rivfrnw, \\h.'5,V:. : |' 

il' •-■laict, inul d;iiidc«il!i(.- uiv., '. .'■'■ 
it ■ iiii'^piiiiK illegitimate- ylili" ,1. 
'" '■ 'Viii^,, if there exists ,)'.?,. jil. 

-■'.'n them. 

, iiiiuer.thP'hcailof Imppdin, 

:o:-e'WJioofliei'wiEa th;ii! in 
■, . y:.,!^;i jinesl, uv sniiii' ..iber oiiiti.u ui ; (■.■.;, 
i.'iiaseli, or by licence ot' li«- iidinnry or twi. oi' ili.i.. 
viiDcsses, take it upon thnnrfclves to cpntn. •: a roai 
/•);.ge,such thi sacral synod r^ip.lered wholly uicapnijlr 
i.f contracting thus> .''.Qd decre^.l contract t)fU! is i.iiKl 
ii'ili and of no^ffect. 5 Ferrmis BibUotiioa, 01. Ti;. \ 
Tr.ipedirnenta Matrimonii, No. ' I . See sUso 1 Frebrero 

■ r-i' r the )a-ws '^t Spain the-e were different kinds i ' 

i; <.:;i<si>s nf illegitimate childvtn, iliat is to say, chil- | 

dreu who laborod under certsiu ':i\ il disabilities, and i 

iliey niigbt be such, although liorii in wedlock, i^ucli 

■wei-e children who were the ti iiit of clandestine m.'ir- 

'irigfjs. They could not inherit. And the policy of the 

law i» perfectly appai'ent. It was to prevent thrive iu- 

•livfiiii^iices vbii-li must necessari! v exist in ail conn- 

of commiiiiity of acquests and 

ties are permit 3d to contract a 

,,i,i1 r>(.> (>r mnke it known to thi; 

• '^ '•■-■^•■rri :;i)cl sold during 

u!iy rellnqi'ish 

.;^il rights. Thi 

..tely coftiea 1\u 

; ul" the comD.ii 

■ :!hor)ty dispose;! 

» .1 J sarut priijcipK;.'^ oi'.vuv iu ve.r.ieucc to clandestins 
iKii-iages, seem to have pre^vailed in Frwiceas well a 
i: f'pain. They geem to hav\e been coi:- mot! i.-_> i:o.;e 
tiies under the influence of thxi Caibi, 
wliere the law of community wu^ i.l 
consiitui <d what wfis sometime calit,:! i- 
tries, ioilroit tovviwun — the common la« ' oC liji l.i.'.d. 

Pothi^r.with his usu»<) clearneB.-. I)a.s'iii4,hi3 TmiU 

•hi Cnil'Tf 'If! .Mnrrin^^r. (p. 4(10 ari. Ill,) given as 

■ !- ■ ' ■' cfiapter 



(in which ft 
'he ehiW->' 



■ r"':ii cftildren ri'iuiol 1r 
!' -^n:. ;l i-iitsol ciVilparentagew!.' 

ii is iijciv'Jbent on thosctwho ulliick suet; 'ri ;:.'.geS;, 
to prove ilie i^landestineness. Varions oir umt^Jincef) 
may pioVe it 

1st. When tktwife hat nottal:snthe ii4iim nf irer hus- 
band liiring all the tiiiif of thCi/iirfii.ioHio/ iiii marriage. 
2d. When, in acts pass-jd by her, sin<^ h6r marriage, 
she lias aiwumed to net as a inaiden,i^ a- the wid'jw 
of B pi-evi'USjfiusband, 3d. When »■ sen ;inl-woman 
who ha* ffitii-iied her master, or a ittiin W'O iias mar- 
:.;..,i i.;. , ,i. »■•„.. i,, - .jways coiitiBned i;: appeir in 
'. i;apacity. / 
letdiiriijg tihoeii'irr: lifelioie 
! "/liieli. ,ntlK'-,:;i:.'u:ii,'eot'lhe 
p- ':e COiiCU- 

,, ..5 umushed 

•I, i'l childreii 

ttu^y b- ^uiiJcsv or the limit 

.oncealing the marriage, have 

, •lii; )r reyson,siioulv' it be do- 

^ the wido-.v whoh.u; 

■ '-'-eeof t^e 2(i'> !>• 

;./'.>:; e . ;u wiiioh Mu:; : 

sea»ni:i .■ , widow of the 

tie.ftsiir, ' 'hose marriage n 

cttajeti . firstcelebnitioii, .v!i? 'J -n. '•.'! 

io be K-h \ II cfloets of iier m-'irringe, ir,vl 

cowfrq .„'rv and other narri;i;49 e.ivi- 



. ue ., ear 1639, "••■ 

■ > ' A ">s have de- ■ 

']:■ 1/ :, ;,; - 'A oniortbt-:\ 

:ru 5 : "It is hereby dcchi^flA «ic cbii- , 

;.;h! bo born of auch maifiRiX^s )we i 

i- :>iit.«ec". i, hv the Ti-rties, «?t«^iiv'i.l.'"- . 

, , 'eir deativanda&itaoifesi; i^-_ 

,,:, concuoiuagelhan Ih*.!'.^'- ,^ 
,;,able of all inhw-'i-mee.s r""';.' 
I,-. ,.-'. una ;Kij-->.'!S.'\lieir poster-: 
htm Fuch marriages have been t 
ct. al the requestor llie partie-, 

bing w itnos*''3, '.it'd. have •. 

. lestineT, less, the; are duly contract; '-he? 
, ri,e naiu ralbond ; hut lUe decr'feial order , 
.v.i- AlU, whi<;h we htive juSt citf.d, o^f";;^ "= 
.1 oftivil effects, by declaring that the chrldrer. 
vtherefromare incapable of .my inheritance wbai- .^ 



'■ -a\' iieir.-, U)>: 
>'"lH,ccaH.><it. 



i yvoat Jiil; 

;r;mom:il . 

re.st in h'iv 
.i^ht to kii 
loi ■, and 1 



sliou hf IK 1 men raised, whether emV 
1!;, arf iclc, incapable not only e'l ti 



rh-.Mvon jisUiPrelVire..' 
,hei1ti»giin8etai\'gtl*i'' 



nb'ic concarn. 
■;t jurisprsidcnc 

;;r;Of e.i^ Miv.r 



ft.