CONVERSATIONS ON JEFFERSON AND JEFFERSONIAN POLITICS
Legal vs. Historical Evidence
From the H-SHEAR, subject: "Hemings-Jefferson: legal vs. historical evidence":Richard B. Bernstein:
Richard E. Dixon's posting to H-SHEAR illustrates the yawning gulf between those who would "defend" Thomas Jefferson from the "accusation" that he had any kind of sexual relationship with Sally Hemings and those who either are agnostic on the subject or give the relationship credence.The terminology Mr. Dixon uses is revealing. He says that those who give the relationship between Jefferson and Hemings credence are maintaining a "Jefferson paternity claim" -- the language of litigation, specifically paternity suits. He rejects any characterization of the 1873 newspaper interview with Madison Hemings as "memoirs" or "reminiscences" -- for he views that interview as testimony by the plaintiff in a paternity suit, in other words, biased testimony, not neutral recollection. Further, he applies the lawyer's standard of "hearsay evidence" (for those who were fortunate enough not to have to endure bar-review courses, "an out-of-court statement offered to prove the truth of what it asserts") in the arena of historical investigation.
It is notable that those who have taken on the task of "defending" Jefferson repeatedly use the similes, metaphors, and tropes of the courtroom litigator and the defense counsel. As a historian with legal training and experience, however, I am painfully aware of the differences between the historian's enterprise and the lawyer's enterprise.
For one thing, were we to apply the lawyer's standard of evidence to what we know of the past, historians would be crippled in any number of explanatory and interpretative enterprises.
Moreover, we must remember that, in the lawyer's enterprise, specifically as it relates to trials and lawsuits, the plaintiff (or prosecutor) puts forward a story, buttressed by evidence and argument. The defendant's task is simply to show that the plaintiff or prosecutor has not met his/her applicable burden of proof. In criminal cases, that standard of course is "beyond a reasonable doubt." In most civil cases (such as a paternity suit), that standard is "more probable than not." However, the defendant is not obliged to put in a competing story, though many defendants do so.
By contrast, historians of necessity consider and evaluate a range of competing stories about the past and competing explanations, weighing them as having greater or lesser explanatory and probative value.
In sum, historians and lawyers have different aims and methodologies. To apply the lawyer's methodology to an issue of historical interpretation is as inappropriate as to put chocolate sauce on a pastrami sandwich.
Originally posted on H-SHEAR, Jun 4, 2001.
Eyler Coates
Richard Bernstein finds the terminology Mr. Dixon uses "revealing," noting especially the use of such terms as "Jefferson paternity claim" and "hearsay evidence," and Dixon's objection to the use of terms, such as "memoirs" or "reminiscences" that were used to describe the Wetmore interview of Madison Hemings. Bernstein calls "Jefferson paternity claim" the "language of litigation, specifically paternity suits." Bernstein suggests further that these terms, and "the similes, metaphors, and tropes of the courtroom litigator and the defense counsel" are out of place "in the arena of historical investigation," and that there is a great difference "between the historian's enterprise and the lawyer's enterprise."
Mr. Dixon's task, as it is of all of us, I trust, is to discover the truth concerning the alleged paternity by Thomas Jefferson of the children of Sally Hemings. The purpose of all fields of learning is to discover truth, and different fields can rightly lend assistance to one another whenever a question falls within their purview. When we consider scientific evidence, such as DNA evidence, we must use the terms of the applicable science. Thus, when using DNA information, we run into such terms as "Y chromosomes," "haplotypes," "microsatellites," etc. We cannot adequately discuss DNA without these terms and the concepts they represent, nor can we competently discuss the meaning of DNA by using only terms familiar to the historian.
Similarly, when the discussion turns to topics such as "paternity," "ancestry," and the relative validities of various kinds of "evidence," fields such as Genealogy and the Law stand ready to assist in understanding the issues involved. If Thomas Jefferson stands accused of something which he and others say he is innocent of, we are forced into a consideration of forensic matters which are not necessarily a part of the equipment of the historian. It would be unwise for historians to say "We have our truths, and they differ from the truths in other fields." Indeed, historians were quick to adopt the DNA test results, and did not say "those are scientific investigations, and those are not a part of the historian's enterprise."
No one is suggesting that "the lawyer's standard of evidence" be applied to every piece of historical evidence in all cases everywhere, just as no one is suggesting that the scientific method be applied to every instance of historical investigation. But that shouldn't prevent historians from using legal, genealogical, and scientific information and techniques when it can assist in historical investigation. Were they to do that, that alone would assure that historiography as a discipline would soon fall behind in its advancement and be replaced by some better way of dealing with the information gained from studies of the past.
Moreover, this is not to suggest that the historian adopt every technique and procedure employed by the lawyer. Lawyering operates within an adversarial model, with a judge, jury, presentation of witnesses and evidence, etc. Although the lawyer's job may serve as an analogy in some respects to the historian's job, it would be foolish to force a comparison and say that because a historian cannot operate precisely like a lawyer, therefore there is no instance in which the lawyer can help the historian discover the truth about the past. One could say that historians act as judge, jury, prosecutor and defendant all at the same time, but such an analogy could at best only be useful for understanding the work of the historian, not for ascertaining the limits under which the historian works. It might also be noted that when all those jobs are vested in one person, that one person is much more subject to personal biases and prejudices than we hope obtains in a court of law. Nevertheless, to exclude the lawyer's methodology, language, and conceptual framework in historical determinations that are legalistic by nature, is to refuse assistance where it can be as useful as any other assistance, such as scientific analysis. It reminds one of the 17th century maxim, "I would rather be wrong with Galen then right with Harvey."
July 31, 2001
Richard E. Dixon:
Well, I doubt that there would ever be an occasion where one might put chocolate sauce on a pastrami sandwich, so it is hardly an apt metaphor to reject a legal standard to test historical evidence. It is particularly appropriate in this instance because we are dealing with a legal claim, a "paternity claim" by the descendants of Sally Hemings, which burden in most states is "clear and convincing " evidence.I had assumed, from reading several contributions by Professor Bernstein extolling the book by Annette Gordon-Reed, that her great strength of analysis came not from a background as an historian, but as a lawyer. Indeed, she accepts the Madison Hemings interview as "direct evidence," a misrepresentation, to be sure, but a legal imprimatur she perhaps hoped would save it from its evidentiary faults.
Professor Bernstein is more candid and comes quickly to a dismissal of a legal standard by defining the paternity claim as an "issue of historical interpretation." He asserts that this issue should be judged by an "historian," who will "consider and evaluate a range of competing stories about the past and competing explanations, weighing them as having greater or lesser explanatory and probative value." He doesn't make it clear the process by which one is chosen to be an "historian," but more important, it does seem obvious he will permit the historian a subjective standard in judging these competing stories.
The aim of the lawyer or of the historian should be the same, to employ the best methodology to assess the truth. In this case, where legal rights are to be decided, that should be a legal standard, not a subjective feeling.
Originally posted on H-SHEAR, Jun 4, 2001.
Richard B. Bernstein:
In insisting that the descendants of Sally Hemings are pressing a "paternity claim" against Thomas Jefferson, Mr. Dixon insists on treating a historical controversy as a lawsuit.But what is a paternity claim? At law, it is an action for damages or for equitable relief based on the legal obligations that would ensue if a claim of paternity could be established.
Now, some members of the Hemings family are insisting that they, as descendants of Sally Hemings and Thomas Jefferson, have a right to be interred in the Jefferson family cemetery at Monticello. Interestingly enough, given that the "Jefferson defenders" have stepped back from rejecting this argument outright to a fallback position of insisting that Sally Hemings's descendants are descended either from Randolph Jefferson or from Peter Carr (a nephew of Thomas Jefferson) or from Samuel Carr (another nephew of Thomas Jefferson) or any combination of the above, there is no legal dispute. They are Jefferson descendants and at least collateral descendants of Thomas Jefferson and thus entitled to be buried in that cemetery -- whether they are direct descendants of Thomas Jefferson or not.
So the legal analogy to a "paternity claim" falls.
In response to Mr. Dixon's question concerning my high opinion of Annette Gordon-Reed's 1997 study (a high opinion that also covers her several articles and essays published since 1997 on this subject, by the way), I answer thus:
Professor Gordon-Reed has used her lawyer's sensitivity to issues of evidence and credibility in the service of a historian's question: what is the range of probable and plausible explanations that we can find for the surviving historical evidence -- including oral testimony and family tradition and material that Mr. Dixon dismisses as "hearsay" but that historians consider evidence, when weighed appropriately -- concerning the nature of the relationship between Thomas Jefferson and Sally Hemings? Was it simply ownership by a master of an enslaved woman? Was it something more?
I did not say that, and I refuse to concede Mr. Dixon's claim that, historians use only or merely "subjective" standards. BUT there are professional historical standards (a different animal from standards of evidence used in courts of law) for weighing and assessing historical evidence (a different animal from evidence in courts of law.)
I am surprised by Mr. Dixon's assertion that lawyers and historians both use "the best methodology to assess the truth." For more than a decade now, I have taught my students that lawsuits are NOT concerned with assessing the truth. Of course they are not. Rather, they are concerned with assessing whether the prosecution in a criminal case has met its burden of proving a defendant guilty beyond a reasonable doubt or whether the plaintiff in a civil case has met its burden of proving a defendant liable by the applicable standard (whether "more probable than not" or "clear and convincing"). In such cases, when the defendant wins, the truth has NOT been established. All that has been established is that the prosecution or the plaintiff has not met the relevant burden. For example, when a defendant is acquitted in a murder trial, the true murderer is not identified or apprehended (unless you are watching PERRY MASON or MATLOCK).
Again, Mr. Dixon blurs the matter by insisting that this is a "legal matter" "where legal rights are to be decided," and again, he insists that those who do not share his view of this controversy are seeking to establish "a subjective feeling" and ignoring an applicable "legal standard."
I remind Mr. Dixon, in conclusion, of an observation made by the noted barrister and novelist John Mortimer, in his short story "Rumpole for the Prosecution" (in his book RUMPOLE A LA CARTE [New York: Viking, 1991]). The fictitious barrister Horace Rumpole muses that a trial before twelve jurors whose minds are apt to wander and a judge with his own freight of biases is a pretty blunt instrument for prying out the truth. Historians often do rather better than adjudicators in prying out the truth, and no amount of rhetoric about applicable legal standards can get round that basic truth.
Originally posted on H-SHEAR, June 5, 2001.
Eyler Coates
In insisting the Mr. Dixon is treating a historical controversy as a lawsuit, Mr. Bernstein is missing the whole point of this discussion. We are not trying to determine whether Thomas Jefferson was the father of Sally Hemings's children according to some preset historical model; we are trying to determine what is the TRUTH in this dispute. The Law has a long history of deciding disputed truths, and not least in the area of paternity. History, in general, only tries to understand the past, and when past happenings are disputed, it rightly draws upon whatever fields of knowledge it can in order to settle the dispute, whether it is science using DNA testing, or the Law using its settled principles to unravel the complex issues related to evidence as is before us. In using the Law to analyze the problem, the idea is not to use the adversarial legal procedures and courtroom practices, but to use the legal principles in order to analyze the evidence and weigh one piece against the other. The tactics or trial procedures by which evidence is presented in a trial are not relevant to this discussion. On top of that, Mr. Bernstein is mistaken with reference to the right of Hemings descendants to be buried in the Monticello cemetery as collateral descendants of Thomas Jefferson. The cemetery is reserved for direct descendants of Thomas Jefferson only.
It is surprising, if not shocking, to read that Prof. Bernstein teaches his students that "lawsuits are NOT concerned with assessing the truth." Surely he realizes that the whole purpose of THE LEGAL PROCESS is to arrive at the underlying truth in a dispute between parties. By narrowing the perception down to the different sides in a lawsuit, a myopic view might indeed be misled into thinking that the purpose of it all is to determine whether the prosecutor (or plaintiff) has proved its case. But the purpose of the whole procedure transcends such a microcosmic perception. It is to determine whether the person charged is, in truth, guilty or liable. The determination of truth in a lawsuit is concerned with the person charged before the bar, NOT the final resolution of responsibility for the act with which the person is charged. Finding the person who is really responsible for a wrongful act is the responsibility of law enforcement. Therefore, the Law and its principles are a powerful tool for ascertaining if guilt lies in the parties brought before the bar. Those principles are especially valuable for dissecting complex issues of evidence and evaluating the relative merit of different pieces of evidence. Historians have no comparable system for deciding such questions when they approach the extremes of complexity. This is not to say that all history should be viewed according to legal principles. But it is to say that the historian would do well to use legal principles to examine certain complex issues for which a vast body of law has been developed over many centuries when the level of complexity demands it. In the absence of such guidance, historians may indeed use their subjective feelings (read: bias and prejudice) to decide the issue in question, but they are much more likely to arrive at a just determination when they employ methods refined by legal objectivity.
August 1, 2001
Richard Dixon:
In reading Professor Bernstein's [June 5] nimble elevation of "historical evidence" over "standards of evidence' used in courts of law," to decide a paternity claim, I am reminded of a flat rock skipped over the water. Each time his argument loses momentum, he throws out a postulate and bounces up.Bernstein: "They are Jefferson descendants and at least collateral descendants of Thomas Jefferson and thus entitled to be buried in that cemetery--whether they are direct descendants of Thomas Jefferson or not."
The 1833 transfer of Monticello from Martha Jefferson Randolph and Thomas Jefferson Randolph reserved "to themselves the family graveyard with free access to the same." When Monticello was conveyed to the Thomas Jefferson Memorial Foundation in 1823, an extension to the graveyard was conveyed to two trustees to hold the property for "burial purposes only for the descendants of Thomas Jefferson."
Under Virginia law, the descendants of Randolph Jefferson, or the Carr brothers, are not in the line of descent for burial in either the first or the second section of the graveyard. I am not familiar with the "Jefferson defenders" who are "insisting that Sally Hemings's descendants are descended from..." Randolph or the Carrs. There are those who have advanced Randolph as a likely father, and the recent Scholars Commission (using historical evidence) did the same. The Foster DNA tests eliminated the Carrs as the father of Eston Hemings, but the issue remains who were the father(s) of Beverley, Harriet and Madison Hemings.
Bernstein: "...oral testimony and family tradition and material...that historians consider evidence...concerning the nature of the relationship between Thomas Jefferson and Sally Hemings"
It's tough for the paternity claimants to get by this first skip of the rock, the "relationship." There is no oral history of a "relationship" between Jefferson and Hemings. This would require the statements or events occurring during their lifetime to be preserved to the present day. As we know, there is nothing. There are those who rely on the Madison Hemings 1873 interview, but that is not oral history. There is a story passed down in the Woodson family that Sally Hemings had a son, Tom, their ancestor, who was fathered by Thomas Jefferson. The origin of the story is uncertain. In any event, we know from the DNA tests that the story is wrong. The descendants of Eston Hemings had a family story that they were descended from an uncle of Thomas Jefferson, which could not be true (unless uncle was a euphemism for one of the Jefferson's), but they have apparently discarded this oral history to now say they are actually descended from Thomas Jefferson. There is an Oral History Society, but the Hemings and Woodson stories don't qualify under its guidelines. These stories may provide leads for investigation, but the stories themselves do not prove anything.
Bernstein: "Historians often do rather better than adjudicators in prying out the truth, and no amount of rhetoric about applicable legal standards can get around that basis truth."
Historians and lawyers perform different tasks, as Professor Bernstein has previously noted, so this is a non sequitur. The specific issue is whether there is any proof that Jefferson fathered any of the children of Sally Hemings. This is not an issue to be left for a historian's interpretation. There are issues, ad infinitum, to which historians can apply their "historical standards," but paternity is a legal relationship defined by the laws of Virginia. It is not a status defined by historical interpretation. The only reason to argue that a historian's conclusion should be given any weight is an admission that the desired result cannot be reached by following the legal standards established for this legal issue.
Originally posted on H-SHEAR, June 8, 2001.
Richard B. Bernstein:
I thank Richard E. Dixon for his praise of my nimbleness; I had feared that I was merely plodding through a recounting of the baseline differences between historians' and lawyers' conceptions of issues of evidence.I also thank Mr. Dixon for adumbrating clearly the legal issues at stake in the dispute over access to the Jefferson family cemetery at Monticello.
However, and this is a big however, I insist on the difference between historians' understandings and uses of evidence in examining a historical problem or controversy and lawyers' understandings and uses of evidence in litigation. There is a world of difference between the two -- not to say that one is superior to the other in some realm of the Platonic ideal, which I never said, but rather that each set of understandings and methods is best confined to its proper realm.
In litigation, contrary to what litigants and their attorneys tell themselves and the finders of law and fact, there is no dispassionate quest for "the truth," and no willingness to reach conclusions contrary to one's initial or threshold assumptions. Here, perhaps, we ought to recall Sherlock Holmes's great advice that it's a mistake to assume your conclusion, for then you insensibly will find yourself twisting your facts to suit your theories instead of the other way round.
Mr. Dixon's definition of oral history, for example, would astonish such skilled historians who have made extensive use of oral history as the late T. Harry Williams. Williams's biography of Huey Long relied on oral-history interviews decades after the events those interviews described, and on multiple levels of hearsay within those interviews. The resulting book is still a landmark of historical scholarship and biographical use of oral history -- in large measure because Williams did for Long what Annette Gordon-Reed did for Hemings and Jefferson: cross-checking the oral history accounts against evidence in the historical record, evidence not accessible to the interviewees or memoirists or witnesses. That the evidence checked with and confirmed the recollections of those interviewees or memoirists or witnesses was good enough for T. Harry Williams and also was good enough for Annette Gordon-Reed.
Mr. Dixon also, sadly, insists (i) on cementing a historical controversy within the confines of a present-day lawsuit, and (ii) on his view that the methods of litigation are the ONLY way to resolve a historical controversy that has given rise to a present-day lawsuit.
Unfortunately for Mr. Dixon's position, he does not acknowledge two things:
First, this historical controversy would exist without the posited lawsuit.
Second, Mr. Dixon fails to acknowledge -- and perhaps is unfamiliar with -- the long and remarkable record of historians' bemusement by the ways that lawyers, laboring under the misapprehension that they ARE doing history (and doing it better than historians do it), make ghastly errors of fact and interpretation.
To cite four examples of such bemusement:
* The late Alfred H. Kelly, who was a noted constitutional historian and also an expert witness in the NAACP Legal Defense Fund's lawsuit that culminated in BROWN v. BOARD OF EDUCATION, wrote a classic article, "Clio and the Court: An Illicit Love Affair," that has been widely reprinted. Kelly's thesis can be deduced from his subtitle.
* So, too, in 1969, the historian Charles A. Miller published a classic study, THE SUPREME COURT AND THE USES OF HISTORY, anatomizing the ways in which Justices have used -- and misused -- history in resolving constitutional questions.
* In 2000, Paula Brandwein's RECONSTRUCTING RECONSTRUCTION (Durham, NC: Duke University Press, 2000) performed a similar service for the Supreme Court's shifting interpretations of the original intent, meaning, or understanding undergirding the Justices' interpretations of the Reconstruction Amendments.
* Finally, also in 2000, Jack N. Rakove contributed to the CHICAGO-KENT LAW REVIEW's symposium on the Second Amendment an excellent article voyaging into the "Twilight Zone of legal scholars' grapplings with constitutional and political and social history, showing that in these grapplings the legal scholars often let the greased pig get away.
Lawyers' forays into history -- usually termed by historians as "law-office history" -- bear little resemblance to historians' explorations of history. Historians approach their task as the Lewis and Clark expedition did, mapping the terrain and trying their dangedest to bring back useful information without letting their expectations blinker them from seeing what they don't expect to see. Lawyers, by contrast, approach their task as if they are playing the old children's game "scavenger hunt" -- somehow they always find what they expect to find and come back in triumph carrying tatters of "evidence" torn from its context and tailored to fit precisely into a brief.
Originally posted on H-SHEAR, June 8, 2001.
Eyler Coates
It is obvious that the way a historian utilizes evidence and the way a lawyer does the same, is quite different. The lawyer, in the ordinary practice of his trade, employs far higher standards of precision than does the historian. The legal system is designed to reach a decision, and to give the benefit of the doubt to the person charged, if the case is insufficient. The historian, on the other hand, uses whatever evidence that is available in trying to construct the story of the past, and is free to employ imagination to fill in the minor gaps. This allows for an enormous amount of subjectivity (read: bias and prejudice), but the consequences for living individuals is usually not as dire as it might be in a court case. A historian will frequently set down a description of events on the basis of evidence that would cause a lawyer to be laughed out of a courtroom. But since the lawyer's approach is almost infinitely stricter than the historians, as it turns out, on certain specific issues, the legal process is so much more likely to be closer to the truth, society awards vast sums of money, confines human beings in prisons for long years, and even snuffs out human life itself on the basis of its determinations. God forbid that such actions should be taken on the basis of the conclusions made by historians!
The historian, therefore, is free to guess, to extrapolate, to use his or her imagination to create an interesting story that probably resembles what actually happened. Most of the time, the events the historian is called upon to describe are not questioned as to whether they happened or not, but only how they happened, what were participants motives and reactions, and what were the consequences of the events. The historian fits the pieces together and sorts out contradictions based on the evidence itself, its context, and the probabilities realized from an overall view of the historical situation. When it is a question of whether some important event happened or not, the historian demands higher standards of exactness, and will rightly call upon the best knowledge from other fields, such as science for DNA results, carbon dating, etc. The Law can be useful to the historian also for evaluating a vast amount of contradictory evidence and determining which has greater probative value.
Bernstein mentions the "bemusement" that historians have with lawyers who think they are making history, without realizing that judges and lawyers very often do indeed make history, even when they are in error. For Bernstein to cite four "examples of such bemusement" without explaining how they relate to the question of Jefferson's paternity only suggests that Bernstein is trying to make his argument with a kind of ad hominem ridicule. No doubt, those who can think only in terms of analogies will find something there to satisfy their need. It would be more relevant to the discussion here to see an outline of actual facts in this controversy that Bernstein feels are better decided by historical methods than by the legal methods proposed by Mr. Dixon.
August 1, 2001
E. C. Walterscheid:
I am curious concerning the statement made by Mr. Dixon that legal rights are to be decided in this matter, What specifically are the legal rights to be decided and by whom? What is the applicable legal standard and who defines it? As one who now considers himself a legal historian, but who practiced law for 30 years, I find myself in strong disagreement with Mr. Dixon's view that a legal standard should determine the accuracy of historical interpretation. As Prof. Bernstein quite correctly points out, lawyers argue as advocates for a particular position, not for historical accuracy. Law-office history is rightly and justly decried, precisely because it is biased in favor of a particular advocacy. One might as well argue that the current movie blockbuster, "Pearl Harbor," is an accurate historical portrayal, but that doesn't make it so.Originally posted on H-SHEAR, June 5, 2001.
Timothy Kenslea:
Concerning the whole Sally Hemings controversy, Ed Walterscheid writes:"I am curious concerning the statement made by Mr. Dixon that legal rights are to be decided in this matter, What specifically are the legal rights to be decided and by whom? What is the applicable legal standard and who defines it?"
In a recent issue of AMERICAN HERITAGE, author Lucian Truscott IV (a verifiable Jefferson descendant) wrote that one big issue at stake is the claim of Hemings descendants to a privilege available to all Jefferson descendants -- burial in the family cemetery at Monticello. As I read Truscott's article, he believes that the family association that controls that access (not to be confused with the TJ Heritage Society that is making so much noise and news lately) will vote this summer, by a fairly significant majority, to recognize Hemings descendants' claim to that privilege. I suspect that is the "legal right" and the jurisdictional issue Ed is looking for, and helps those of us on the outside understand the intensity of the passions expressed in this recent exchange.
Originally posted on H-SHEAR, June 6, 2001.
William MacKay:
Mr. Dixon's point that cases in which legal rights are to be decided should be judged by legal standards is well-taken. However, I believe that he errs (understandably) on the side of professional pride when he dismisses historical evaluations as being "subjective" because they don't follow the guidelines of, I assume, the laws of the Commonwealth. Historical inquiry possesses traditions rich & substantial enough to be respected in their own right: The claims of Herodotus don't require the vouchers of Hammurabi. In terms of historical claims, legal standards too can be viewed as arbitrary or subjective: Different states have different laws at different times. Are we to "judge" Jefferson [how presumptuous!] on the basis of the laws of his time or those of ours?Of course, the bottom line is that in history [as I believe Clarence Darrow put it] there are no statutes of limitation. For several reasons, much of the relevant evidence would not admissible in a court of law. Therefore, it must operate by standards different from those of the courtroom. [Although the "subjective" process of evaluating historical occurrences described by Mr. Bernstein is not very different and much less secretive than the duties we entrust to a member of a jury.]
This does not, of course, negate the truth or relevance of Mr. Dixon's claim that legal paternity should be judged by the law. I only wish that the climate of discussion about the Hemings-Jefferson controversy would be more judicious and less adversarial.
Originally posted on H-SHEAR, June 5, 2001.
Richard A. Samuelson:
[Richard Bernstein wrote:]"Now, some members of the Hemings family are insisting that they, as descendants of Sally Hemings and Thomas Jefferson, have a right to be interred in the Jefferson family cemetery at Monticello."
This is an interesting claim. If the claim of Jefferson's paternity of Sally Hemings' children proves correct (and I suspect that it is), in what sense does that make the Hemingses part of the Jefferson "family"? I detect a creeping essentialism, and an obsession with genes.
Originally posted on H-SHEAR, June 6, 2001.
J. L. Bell:
Richard B. Bernstein wrote in response to Richard E. Dixon's latest posting to H-SHEAR: "It is notable that those who have taken on the task of 'defending' Jefferson repeatedly use the similes, metaphors, and tropes of the courtroom litigator and the defense counsel."In fact, Mr. Dixon has prepared for the courtroom in case Eston Hemings sues Thomas Jefferson under current Virginia law. Last year he created a long document titled TRIAL ANALYSIS OF THE JEFFERSON-HEMINGS PATERNITY, which contains such sections as "Legal Principles of Proof," "Evidence of Parentage," and "Burden of Proof for Child Born out of Wedlock." The text can be viewed at:
http://www.angelfire.com/va/TJTruth/trial.html
For those who want to download a version that looks pretty, go to:
http://www.jefferson-hemings.org/Dixon-TJ.pdfIn his H-SHEAR posting, Mr. Dixon claimed that besides Madison Hemings "there is no other voice, among the many Jefferson relatives and slaves who lived at Monticello, and the hundreds who visited there, to claim that Jefferson fathered any of Sally Hemings' children."
I find this statement hard to reconcile with how Israel Jefferson, a former slave laborer at Monticello, told a journalist in 1873 that Thomas Jefferson fathered Sally Hemings's children. I find it even harder to understand how Mr. Dixon could write the sentence above after including the Israel Jefferson document among the voices he discusses in his TRIAL ANALYSIS.
In that analysis, Mr. Dixon provides an unusual historiographical reason for not accepting Madison Hemings's and Israel Jefferson's accounts of their lives: they aren't punctuated properly. "The article does not pretend to be a record of his exact statement and contains no quotes," he writes of the Hemings account. "There are no quotes or any device to indicate these are Israel's words," Mr. Dixon adds (adopting a first-name reference he uses for no other man with the surname Jefferson). People who've read the documents in question know that they're presented as first-person accounts of the two men's lives.
Originally posted on H-SHEAR, June 5, 2001.
Richard Dixon:
J. L. Bell writes: "Mr. Dixon provides an unusual historiographical reason for not accepting Madison Hemings's and Israel Jefferson's accounts of their lives: they aren't punctuated properly."The Israel Jefferson interview by S. F. Wetmore in the Pike County Republican is of no probative value. It is the writer's words, consistent with the style of the Madison Hemings interview. There is no direct attribution of the comments of the interviewees. There is a serious question on the state of Jefferson's memory, since Wetmore recorded the birth date given him by Jefferson, as December 1797. Jefferson reaffirms the date later in the article by his recollection he was twelve years old on the completion of Thomas Jefferson's presidency. In a letter from Thomas Jefferson Randolph, in response to the Jefferson article, Randolph refers to the Monticello records to show a birth date of December 1800. The Monticello Report and the Gordon-Reed book also record the date as 1800.
Randolph, who knew Israel Jefferson, takes issue with the interview in other important particulars. Among them, he points out that the memory of Thomas Jefferson leaving "to take upon himself the responsibilities of the Executive of the United States..." was an event occurring a month before Israel Jefferson's birth. Israel Jefferson's claim that he was a waiter "at the family table" would have occurred when he was four years old. Randolph denies the claim in the interview that Israel Jefferson was a personal servant to Thomas Jefferson and stated that, "Israel was never employed in any post of trust or confidence about the house at Monticello."
Aside from the many issues of veracity or memory raised by the interview, the paternity claimants extract the statement that, "Mr. Jefferson was on most intimate terms with her (Sally Hemings); that, in fact, she was his concubine..." The interview supplies no details or illustration to support the allegation. It is offered as a memory of childhood. It rivals the emptiness of the Madison Hemings interview which fails to mention a single act of recognition to support his claim that Thomas Jefferson was his father.
The central failure of the paternity claim is the inability of its proponents to color in the gaps so that disconnected bits of information can be turned into evidence. Evidence, even if we advance the proposition that an "historian" can ruminate over the bits and come up with a plausible theory, is not the mere assertion of a position. If we lined up thirty Israel Jeffersons to say, "That's kind of what I remember," that is not evidence. Evidence is in the details, the observations of an event, the description of what happened and how, the perceptions induced by the senses from the circumstances. That is directly acknowledged at the end of the Israel Jefferson statement when he was made to observe that he could "confirm" Madison Hemings's claim that Thomas Jefferson was the father of Sally Hemings's children, "as any other fact which I believe from circumstances but do not positively know." Indeed, we don't even know the circumstances that induced Israel Jefferson's qualified belief.
Originally posted on H-SHEAR, June 7, 2001.