Some people eat, sleep and chew gum, I do genealogy and write...

Sunday, January 18, 2015

The Ins and Outs of Evidence for Genealogists -- Part Seven: An Unreliable Reliance

 It is probably important to make a few things clear in this continuing post in the series on evidence. To summarize my conclusions so far; the concept of evidence as employed by genealogists is basically a selection of facts that the genealogical researcher deems important and persuasive of some issue being resolved. Many of the words associated with the concept of "evidence" have been only relatively recently borrowed from the world of legal jargon. I find this incorporation of legal (and also scientific) terminology inappropriate and misleading.

During the years that the concept of evidence has been used by genealogists, the concept has been expanded, primarily through analogical borrowing from other disciplines. Genealogists began to use and write about terms such "direct vs. indirect" evidence, circumstantial evidence, and other related terms. Interestingly, these terms were not found at all in a search of the genealogical writings of the 19th Century. Here is a list of terms I have found in searching through the current genealogical writings:
  • direct evidence
  • indirect evidence 
  • circumstantial evidence
  • preponderance of the evidence
All of these terms were most definitely borrowed from legal terminology. The last term on the list, "preponderance of the evidence" was used by the Board for Certification of Genealogists until 1997 when it was abandoned for the Genealogical Proof Standard. See "BCG Abandons the Term "Preponderance of Evidence." I see no need to define or expand on these terms because I feel it is inappropriate to use them in a genealogical context. 

It seems that the origin of the use of this legal terminology can be traced back to a book by Noel C. Stevenson, J.D., FASG, a lawyer and a genealogist, back in 1985. Here is the citation to the book:
Stevenson, Noel C. J.D., FASG, Genealogical Evidence: A Guide to the Standard of Proof Relating to Pedigree, Ancestry, Heirship, and Family History, Aegean Park Press, 1985. 
This book is sometimes cited as a pivotal work in implementing legal terminology into a genealogical context. Although I find the book cited in a footnote in such works as the following,
Mills, Elizabeth Shown. Professional Genealogy: A Manual for Researchers, Writers, Editors, Lecturers, and Librarians. Baltimore: Genealogical Pub. Co, 2001.
I cannot locate a copy of the book either for sale or in any library. In fact, this early edition of the book is not listed on Stevenson, the author apparently updated the book about ten years after its first publication.

The current standard is adequately set forth in books such as the one by Christine Rose:
Rose, Christine. Genealogical Proof Standard: Building a Solid Case. San Jose, Calif: CR Publications, 2005.
There is no question that, at some level, genealogy has moved away from the legal concepts so recently incorporated into our vocabulary. But in many instances, the legal jargon is still being used. Most recently, an attempt to move beyond the background of legal terminology was published:
Anderson, Robert Charles. Elements of Genealogical Analysis. 2014.
I will talk more about this book in the future, but from the reviews of the book, Anderson's approach appears refreshing and almost entirely devoid of legal analogies. In fact, the word "evidence" may be missing from his book. I will try to find a copy of this book in the next few days.

Words and concepts have a way of becoming persistent long after their utility has passed. There are ways to analyze and write about genealogical research and our conclusions without resorting to inappropriate legal and scientific analogies. I can see a definite trend in the literature away from using terms such as "proof" but the idea of "evidence" is much more persistent.

In the next post in this series, I will attempt to point the way to establishing a consistent and useful terminology and methodology to genealogy that will reflect the realities of historical research without resorting to inappropriate analogies.


  1. What do you mean by "relatively recently borrowed from the world of legal jargon"?
    The use of the word Evidence in family history for instance has been used since at least 1887.
    W.P.W. Phillimore, M.A, B.C.I. used the word in his How to Write a History of a Family which was published in 1887.

    You seem to think such words were confined to the legal profession but certainly here in the UK they were in use by others for as long.


    1. I'm sorry that I wasn't clear. I was referring to the list of terms. The word evidence is, of course, a generic term used in a lot of different ways. However, genealogists started using the term with other legal terms in context that indicated a legal use.

    2. Did they or did the legal profession borrow the jargon from genealogists use or more likely simply adapted commonplace words but applying rigid criteria to their more generic meanings.

      To simply claim genealogists have borrowed legal jargon without showing when the particular term cam into use in the public arena and in the legal profession is like asking a jury to decide a case on the opening statement of the prosecution.

      For example the Online Etymology Dictionary
      states –
      “evidence (n.)
      c.1300, "appearance from which inferences may be drawn," from Old French evidence, from Late Latin evidentia "proof," in classical Latin "distinction, vivid presentation, clearness" in rhetoric, from stem of Latin evidens "obvious, apparent" (see evident).

      Meaning "ground for belief" is from late 14c.; that of "obviousness" is from 1660s and tacks closely to the sense of evident. Legal senses are from c.1500, when it began to oust witness. Also "one who furnishes testimony, witness" (1590s); hence turn (State's) evidence.”

      If that is accurate then the public used the term around 200 years before the legal profession started to use the term.

      This suggests that in fact the legal profession are misusing the term due to their narrow interpretation rather than the wider meaning used by genealogists.

      I am well aware that a single reference does not make a case but it does raise doubts to the argument.


  2. James, regarding Anderson's work, "In fact, the word "evidence" may be missing from his book."

    It is by no means missing, or removed from consideration. He does, however, critically review elements of Stevenson's later edition in context of legalistic use of the term.