A Book With No Credibility–Chapter Twelve

Here Adams takes his historical disinformation campaign to the case of United States vs. Jefferson Davis.

He claims, “The New York Times ran this editorial on the captured leader of the South.  He was ‘a murderer, a cruel slave owner whose servants all ran away, a liar, a boaster, a fanatic, a confessed failure, a hater, a political adventurer, a supporter of outcasts and outlaws, a drunkard, an atrocious misrepresenter, an assassin, an incendiary, a criminal who was gratified by the assassination of Lincoln, a henpecked husband, a man so shameless that he would try to escape capture by disguising himself as a woman, a supporter of murder plots, an insubordinate soldier, an unwholesome sleeper, and a malingerer.’ ”  [p. 177]  He doesn’t cite an actual Times editorial.  He cites Edward Eckert, Fact Distorting Fiction.  There’s a reason for that.  He incompetently flubs the reference.  What his reference actually says is, “From 1863 to the end of the war the New York Times depicted Davis” using those terms. [Edward Eckert, Fact Distorting Fiction:  The Prison Life Annotated by Jefferson Davis, p. xiv]  That means that it was in several stories and editorials for two years, not in one editorial as Adams said.  Eckert’s source, by the way, is Grady McWhiney, “Jefferson Davis–The Unforgiven,” an article In the Journal of Mississippi History’s May, 1980 edition.

Adams claims, “The federal government dropped the case because it became increasingly clear that it could not win.  As time passed and reason replaced war passion, it became obvious that Jefferson Davis had a formidable defense, both in the substance of his defense and perhaps, even more important, in the great criminal defense lawyers who would defend him.”  [p. 178]  This is untrue.  The basic problem regarding getting a guilty verdict is given to us by Roy F. Nichols, in what is the standard for the history of this incident:  “Their decision raised the question which those who advocated the ‘constructive presence’ theory had wished to avoid, namely, could a jury be procured in Virginia or any state of the late Confederacy which would find Davis guilty?”  Roy F. Nichols, “The United States vs. Jefferson Davis, American Historical Review, Vol. 31, No. 2, January, 1926, p. 267]  There were certainly other difficulties for the prosecution, and Nichols details them.  They had nothing whatsoever to do with the feeling that secession was in any way legal.  Adams’ claims to the contrary simply hold no water.  The basic difficulty was the fear that any jury in a former confederate state would not vote to convict no matter what the facts were and no matter what the law was.

Adams writes, “The case against Jefferson Davis had to be examined in the light of history, and upon legal precedents and procedures.  And it might show that secessionists weren’t traitors at all.” [p. 180]  I may not be a lawyer, but it seems to me the case against Jefferson Davis had to be examined in the light of the law, such as United States Laws declaring various states to be states of the United States, and the Constitution’s Supremacy Clause, detailing that the Constitution and Laws of the United States remain supreme law of the land, no matter what any state may say.  And since by the Constitution and those laws all the confederate states remained states in the United States, their act of fighting a war against the United States was treason, making the confederates traitors.

Adams continues, “Maybe a state and its people, acting through democratic processes, did have the right to withdraw from the Union.  What had the Founders said?  Jefferson had said while president that if any of the states, alone or in combination, wanted to withdraw, then they should go in peace, as brothers and friends.”  [p. 180]  Jefferson never said anything as President that said there was such a possibility that a unilateral secession would be legal.

Let’s see what some of the Founders said:

Elbridge Gerry of Massachusetts asserted, “We never were independent States, were not such now, and never could be.” [Records of Federal Convention, Vol 1, p. 467]

Several delegates of the Massachusetts convention maintained the federal government under the Constitution would be able to protect the Union from the acts of “designing and refracting states.”  [Elliot’s Debates, Vol II, p. 35, Vol IV, pp. 59-60]

In South Carolina, Charles Cotesworth Pinckney urged his colleagues to “consider all attempts to weaken this Union by maintaining that each state is separately and individually independent as a species of political heresy.”  [Elliot’s Debates, Vol IV, p. 301]

In North Carolina, Samuel Johnson said, “The Constitution must be the supreme law of the land; otherwise it would be in the power of any one state to counteract the other states and withdraw itself from the Union.” [Elliot’s Debates, Vol IV, pp. 187-188]

“Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.”  [James Madison to Nicholas Trist, 15 Feb 1830]

Since Adams brought up Thomas Jefferson, let’s see what he had to say:

“After plunging us in all the broils of the European nations, there would remain but one act to close our tragedy, that is, to break up our Union; and even this they have ventured seriously & solemnly to propose & maintain by arguments in a Connecticut paper. I have been happy, however, in believing, from the stifling of this effort, that that dose was found too strong, & excited as much repugnance there as it did horror in other parts of our country, & that whatever follies we may be led into as to foreign nations, we shall never give up our Union, the last anchor of our hope, & that alone which is to prevent this heavenly country from becoming an arena of gladiators. Much as I abhor war, and view it as the greatest scourge of mankind, and anxiously as I wish to keep out of the broils of Europe, I would yet go with my brethren into these, rather than separate from them.” Thomas Jefferson to Elbridge Gerry, 13 May 1797

“Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusets [sic] & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others.”  Thomas Jefferson to John Taylor, 4 Jun 1798.

“I regret that I am now to die in the belief, that the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be, that I live not to weep over it. If they would but dispassionately weigh the blessings they will throw away, against an abstract principle more likely to be effected by union than by scission, they would pause before they would perpetrate this act of suicide on themselves, and of treason against the hopes of the world. To yourself, as the faithful advocate of the Union, I tender the offering of my high esteem and respect.”  Thomas Jefferson to John Holmes, 22 Apr 1820.

Jefferson, in fact, believed secession to be an “error of opinion:”  “We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”  Thomas Jefferson, First Inaugural, 4 Mar 1801.

Adams continues, “More recently, on 30 April 1839, there had been a great celebration on the fiftieth anniversary of the inauguration of President Washington.  Former president John Quincy Adams gave the jubilee address.  He ridiculed the claim by South Carolina to nullify a federal law, as had recently been attempted, but then concluded, ‘If the states ever lost their fraternal affection, gave way to cold and indifference, or a collision of interests should foster hatred, and the bonds of political association should sever, it would be far better for the people of the disunited states to part in friendship from each other than to be held together by constraint.’ ” [p. 180]

The speech is called the Jubilee of the Constitution Speech and Charles Adams quotes a part of John Quincy Adams’ speech.  Here’s a more expanded quotation:  “The Constitution had already ‘formed a more perfect union’ of the people of the United States; but it was not yet consummated or completed. The people of Rhode Island had taken no part in the formation of the Constitution, and refused their sanction to it. They had virtually seceded from the Union. North Carolina had been represented in the Convention at Philadelphia, but her people had refused to ratify their constitutional act.

“Recent events in our history, to which I wish to make no unnecessary allusion, but to which the rising generation of our country cannot and ought not to close their eyes, have brought again into discussion questions, which, at the period to which we are now reverting, were of the deepest and most vital interest to the continued existence of the Union itself. The question whether any one state of the Union had the right to secede from the confederacy at her pleasure, was then practically solved. The question of the right of the people of any one state, to nullify within her borders any legislative act of the general government, was involved in that of the right of secession, without, however, that most obnoxious feature of the modem doctrine of nullification and secession–the violation of the plighted faith of the nullifying or seceding state.”

And

“The questions of secession, or of resistance under state authority, against the execution of the laws of the Union within any state, can never again be presented under circumstances so favorable to the pretensions of the separate state, as they were at the organization of the Constitution of the United States.  At that time Rhode Island and North Carolina might justly have pleaded, that their sister states were bound to them by a compact into which they had voluntarily entered, with stipulations that it should undergo no alteration but by unanimous consent.  That the Constitution was  a confederate Union founded upon principles totally different, and to which not only they were at liberty to refuse their assent, but which all the other states combined, could not without a breach of their own faith establish among themselves, without the free consent of all the partners to the prior contract.  That the confederation could not otherwise be dissolved, and that by adhering to it, they were only performing their own engagements with good faith, and claiming their own unquestionable rights.”

And

“The right of a single state, or of several of the states in combination together, to secede from the Union, the right of a single state, without seceding from the Union, to declare an act of the General Congress, a law of the United States, null and void, within the borders of that state, have both been at various times, and in different sections of the Union, directly asserted, fervently controverted, and attempted to be carried into execution. It once accomplished a change of the administration of the General Government, and then was laid aside. It has occasionally wasted itself in abortive projects of new confederacies, and has recently proceeded to the extremity of assembling a Convention of the people of one state in the Union, to declare a law of the United States unconstitutional, null, and void. But the law was nevertheless executed; and in this, as in other instances, a temporary turbulent resistance against the lawful powers of Congress, under the banners of State sovereignty, and State rights, is now terminating in a more devoted adherence and willing subserviency to the authority of the Union.

“This has been the result of the working of the Institution, and although now, as heretofore, it has been effected by means and in a manner so unforeseen and unexpected, as to baffle all human penetration, and to take reflection itself by surprise; yet the uniformity of the result often repeated by the experience of half a century, has demonstrated the vast superiority of the Constitution of the United States over the Confederation, as a system of Government to control the temporary passions of the people, by the permanent curb of their own interest.

“In the calm hours of self-possession, the right of a State to nullify an act of Congress, is too absurd for argument, and too odious for discussion. The right of a state to secede from the Union, is equally disowned by the principles of the Declaration of Independence.”

As we see, John Quincy Adams rejects the notion that a state could secede on its own without the consent of the people of the other states.

Adams claims, “The procedure for joining the Union also applied to withdrawing from the Union.”  [p. 180]  If that’s the case, then Adams just sunk his own case, since no territory can be part of the United States without the approval of the other states.

As we’ve already determined, there is no right to unilaterally secede.

Adams writes, “In October 1861, a Southern privateer, Savannah, was captured and its crew put on trial in New York for piracy.  If it was a war that was being waged, they would be prisoners of war; if it was only an insurrection or a rebellion, they were guilty of treason and could be tried, convicted, and hanged.  Lincoln believed this, as would be expected, but a jury in New York acquitted the crew because to them, this was a war, and the members of the crew were indeed prisoners of war, not pirates.  The treason charge failed.”  [p. 184]  Adams apparently forgets he charged there were no trials by jury under Lincoln.

Adams is wrong about the charge.  They were tried on a charge of piracy.

“The officers and men of the Savannah and the prize crew from the Albatross were put on trial in Philadelphia and New York for piracy, a crime for which the only prescribed punishment was death by hanging.  Jefferson Davis wrote to Lincoln in protest, claiming that the men were entitled to be treated as prisoners of war, and warning that for every privateersman hanged in the North, he would execute one Union prisoner of war.  In the end, the threat proved effective, for despite a guilty verdict in one of the trials, all of the privateersmen were transferred from the Judiciary to the War Department, and eventually they were quietly exchanged.”  [Craig L. Symonds, The Civil War at Sea, p. 79]

Here’s another account:

“On July 16, a federal grand jury in New York indicted as pirates twelve crew members from the Charleston privateer Savannah.  In August, a grand jury in Philadelphia did the same for five men from the privateer Jefferson Davis.

“The trials that ensued in October were national spectacles.  The nation’s most prominent lawyers argued before packed courtrooms.  National political figures sat in the galleries.  Supreme Court Justice Benjamin Grier presided in Philadelphia, where the first piracy trial started on October 22.  After just three days of argument in the courtroom, the jury took a half hour to return a verdict of guilty against William Smith, the captain of the prize crew from the Jefferson Davis.  The court sentenced him to death by hanging.  In the subsequent days another Philadelphia jury returned guilty verdicts against three more men from the same crew.

“The New York trial of the officers and crew of the Savannah began a day after the commencement of the Philadelphia trial.  It had all the same pomp and circumstance.  Supreme Court Justice Samuel Nelson presided.  But the New York trial produced a very different outcome.

“For the defense, the renowned criminal defense lawyer John Brady teamed up with the dean of the New York bar, Daniel Lord, and a rising young lawyer named Algernon Sullivan.  They squared off against the government’s hired gun, William Evarts, whose mentor Lord was now his adversary in one of the biggest cases of their careers.

“From the start, the case proved to be a bitter fight.  Even before the trial began, secretary of State Seward threw the defense lawyer Algernon Sullivan into prison for seditious contact with the enemy.  (Sullivan had corresponded with Confederate officials in Virginia on behalf of his clients.)  Daniel Lord represented John Harleston (the first mate of the Savannah and the son of one of Lord’s Yale College classmates) and insisted that the government’s position was hypocrisy through and through.  Right down the hall in the very same courthouse, Lord spluttered, federal judge Samuel Betts was condemning Confederate vessels captured by a Union blockade force that presupposed a state of war between North and South.  But if the confederacy was capable of carrying on a war, then it ought to be able to commission privateers, too.”  [John Fabian Witt, Lincoln’s Code:  The Laws of War in American History, pp. 161-162]  The jury did not acquit the crew.  Adams is wrong again.  The jury failed to reach a verdict.  Prosecutors could have retried the crew, but that’s when the Lincoln administration intervened and had them quietly released due to Jefferson Davis’ threat.

Adams next brings up the propaganda piece by Albert Bledsoe called, Is Davis a Traitor?  Adams calls Bledsoe “a law professor from the University of Virginia.” [p. 184]  Once again, Adams shows his lack of credibility.  Bledsoe was a former lawyer who was a professor of mathematics at the University of Virginia and an official in the confederate war department.  This is what Adams tries to pass off as a constitutional expert.

Adams next writes, “Shortly after Bledsoe’s book came out in 1866, the attorney general decided to bring in outside, independent counsel to try Davis (as in the Watergate case more than a century later).  They needed someone of great stature to stand up to the lawyers defending Davis.  They chose as their leading trial prosecutor John J. Clifford.  But after reviewing the case, Clifford withdrew, arguing that he had ‘grave doubts’ about the case and that the government could ‘end up having fought a successful war, only to have it declared unlawful by a Virginia jury.’ ”  [pp. 185-186]  Adams again shows a lack of honesty and credibility.  First of all, there were three special counsels:  William M. Evarts, John H. Clifford, and Lovell H. Rousseau.  [Nichols, op. cit., p. 267]  Clifford did withdraw from the case, but not after he reviewed the case.  He was the one who argued that a jury in a former confederate state couldn’t be trusted to deliver a guilty verdict no matter what the law or the evidence.

Adams writes, “A year passed after the withdrawal of John J. Clifford.  another special counsel was appointed to handle the case, the famous author and lawyer Richard Dana of Boston, who had written the great novel Two Years Before the Mast.  But he too decided the case was a loser.”  [P. 186]

Nichols writes, “With reorganization accomplished, Evarts and Dana went over the case.  Evarts’s state of mind is best illustrated by a statement in his letter to Dana asking him to be his associate:  “It may be that the trial will take place at the end of November, more likely in May next, as likely as either, not at all.”  This letter, written October 17, indicates uncertainty which may or may not have been dispelled by the Attorney General’s words of October 25.  At any rate Evarts and Dana came to the conclusion that before a trial could be brought on a new indictment must be found and that no trial should take place except before Chase.  These difficulties did not seem insuperable.  Chandler and Wells busied themselves about the indictment and the Chief Justice offered to hold court two weeks earlier than the date set, in order that the trial might be held before his Supreme Court duties called him back to Washington.  O’Conor was unwilling to accept this earlier date, presumably because it would mean a hurried trial, or one which might have to be finished before Underwood if Chase had to leave, and also because of the fact that the letter of the Chief Justice got into the papers and its tone offended Davis’s friends.” [Nichols, op. cit., p. 276]  That doesn’t sound like someone who thought the case was a loser to me.

Nichols continues, “Thus spurred on, Chandler and Wells finished their work and Evarts and Dana came to Washington.  They reviewed all the evidence and testimony taken and Dana drew up an elaborate document detailing many overt acts and covering many pages.  The Richmond grand jury made this an indictment against Davis on March 26, 1868.  It had taken the United States legal force nearly three years to make the first formal move toward prosecution.” [Nichols, p. 278]

Dana did share the concern that a jury in Virginia would not convict no matter what the facts or the laws were, so he did give a letter to Evarts on “the advisability of closing the case without further proceeding.”  [Nichols, p. 281]

Adams describes the letter:  “He wrote a lengthy brief, given to the president, taking Clifford’s position.  Dana argued that ‘a conviction will settle nothing in law or national practice not now settled … as a rule of law by war.’  Thus, as Dana observed, the right to secede from the Union had not been settled by civilized means but by military power and the destruction of much life and property in the South.  The North should accept its uncivilized victory, however dirty its hands might be, and not expose the fruits of its carnage to scrutiny by a peaceful court of law.”  [p. 186]  Again, Adams shows a despicable lack of integrity.

Here’s what really happened:

“Shortly after this episode Evarts took over his duties as attorney general.  He had not been long in office before Dana called his attention to the advisability of closing the case without further proceeding.  In order to facilitate this step Evarts asked his associate for another ‘spontaneous’ letter setting forth the reason for stopping the prosecution.

“When the fall term approached he sent Dana’s letter to the President for his private consideration.  After the election there was no need for secrecy and on November 6 Evarts read the letter to the Cabinet.  The communication contained an opinion similar to the one Clifford had given nearly three years before; an opinion which had been bothering the government legal force ever since.  Dana summed up this argument as follows:

” ‘. . . by pursuing the trial, the Government can get only a re-affirmation by a Circuit Court . . . of a rule of public law settled for this country in every way in which such a matter can be settled [i.e., by war], only giving to a jury drawn from the region of the rebellion a chance to disregard the law when announced.  It gives that jury a like opportunity to ignore the fact that Jefferson Davis took any part in the late Civil War.  And one man upon the jury can secure these results.  The risks of such absurd and discreditable issue of a great state trial are assumed for the sake of a verdict which, if obtained, will settle nothing in law or national practice not now settled, and nothing in fact not now history, while no judgment rendered thereon do we think will be ever executed.’ ” [Nichols, p. 281]  As we can see, what Adams would like us to believe is quite different from what is the actual truth.

Adams continues, “President Johnson then appointed a new attorney general but he wanted no part of the case and left it to the staff already working on it.”  [p. 186]  As we’ve seen, the new AG was Evarts, who was appointed BEFORE this, and who was working very closely with Dana on the prosecution.  Adams lacks credibility again.

In every situation, Adams has proved he has no credibility in what he claims happened.  He next brings up the issue of secession of Quebec and the Canadian Supreme Court, as if that has any bearing on the United States Constitution.  It’s another Adams red herring fallacy and further shows Adams’ lack of seriousness as a scholar.