William C. Davis, past director of the Civil War Institute at Virginia Tech and a prolific writer of civil war books, exchanged the following correspondence with me.
Note: The Cincinnati Commerical did not, in fact, print this piece, only the Congregational –controlled anti-slavery Independent printed it, invoking as the piece’s narrator, an unidentified “correspondent” of the Cincinnati Commericial, who claims to have spoken to an unidentified ex-slave. The words supposed uttered by this ex-slave can hardly be assumed to be objectively true. The Custis will did not leave the slaves $50 each, and it did require the labor of the slaves to pay debts and legacies with the condition they be manumitted no later than five years from the testator’s death which happened. The statement about the whipping by this time was old news having been recycled by the New York Tribune.
There is no evidence that Lee sold a slave “south.” General Lee “was a slave holder” only in the sense that he had inherited “Nancy and her children” from his mother, which means, given the fact he was a professional soldier all his adult life, that his mother expected him to take care of her servant, a custom of the times.
Joe Ryan comments
Professor Davis gives us a list of psychological circumstances as the basis of his suggestion that Lee was an irritated man and, therefore, Davis argues, of a mind that could have ordered a slave whipped. But the test the judicial process requires, as opposed to that of the historians, is not could have but might have.
Professor Davis’s list is not legally sufficient evidence to make a prima facie case that it is more likely than not that, in fact, Lee ordered Mary Norris whipped. (Making a prima facie case shifts the burden to Lee of producing evidence which rebuts the inference.) Now, if there was evidence that Lee was in the habit of whipping slaves, or the sworn statement of a percipient witness to such a whipping is received in evidence, which the New York Tribune’s “statement” is not, then the issue becomes a question of fact and the jury is authorized to take the psychological circumstances into consideration, in deciding that, as a matter of fact, despite his unequivocal denial, Lee probably ordered Mary Norris whipped.
Nor is Professor Davis correct when he tells us Mrs. Pryor simply went “where the evidence took her.” On the contrary, she went out of her way to avoid letting the evidence guide her: She manufactured some “evidence,” misrepresented the substance of other evidence, and intentionally hid from view exculpatory evidence; a method, had she tried her case to a jury, that gets the lawyer nowhere.
Professor Davis’s second paragraph makes plain his blindness of the reality of the trial court. The American trial court is unique in the history of human affairs. It is the only forum that humans have devised where objective truth rules; controlled as it is by the judge, the advocate who attempts to do in front of a jury what Mrs. Pryor here has done with her book, will most certainly be caught in the act of deception and find her case thrown out of court, as rarely can twelve persons sitting together in the jury box as the exclusive judges of the facts be fooled in the trial process.
The professor’s lawyer is plainly not a trial lawyer; he is of the majority of lawyers who rarely, if ever, present their cases to a jury, confining the presentation of their cases to a judge sitting without a jury, or to an arbitrator, for a “decision.” Trial lawyers routinely present their cases to a jury and receive a verdict in return, which the trial judge may or may not transform into a judgment.
The dictionary defines “fib” as “a lie about something unimportant.” If Wesley Norris actually told a New York Tribune reporter that he “escaped” from Lee’s clutches, a fact not established in the evidence, he was not telling a fib. He was telling a lie. And, no, Professor, experienced trial lawyers─I can’t speak for historians─don’t sometimes “fib” or “tell untruths” in the trial court. For we know it will go hard on us, if we do; because our adversary, if not the judge, will catch us in it and show it to the jury as I am doing here.