Do you ever have proof in a historical context?

Proof is a highly subjective term. I have been reflecting on my years of trial practice recently and this idea of proof keeps coming up in my thoughts. In the genealogical community, if you do a search on the terms "genealogy proof" you will find there are even a few books on the subject.

• Mills, Elizabeth Shown. Genealogical Proof Standard in Action How to Build a Case When No Record Exists. Arlington, Va: National Genealogical Society], 2007. See also, Genealogical Proof Standard in Action How to Build a Case When No Record Exists. Arlington, Va.; St. Louis, MO: National Genealogical Society] ; Jamb Tapes, 2007.
• Jones, Thomas W. Mastering Genealogical Proof, 2013.
• Rose, Christine. Genealogical Proof Standard: Building a Solid Case. San Jose, Calif.: CR Publications, 2005.
• Stevenson, Noel C. Genealogical Evidence: A Guide to the Standard of Proof Relating to Pedigrees, Ancestry, Heirship, and Family History. Laguna Hills, Calif.: Aegean Park Press, 1979.

When I was representing a client in a trial either before a Judge or before a jury, I would attempt to "prove my case." This involved providing testimony on each of the facts that were in dispute. I would carefully choose my questions and my exhibits (documents) to support my clients' view of the facts. I was required to do this by the Rules of Professional Responsibility or Conduct. Rule 3.1 states as follows:

Advocate
Rule 3.1 Meritorious Claims And Contentions 

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

If the court decided in my clients' favor, then I won and "proved my case." But, wait. Then the opposing attorney could appeal the court's decision. On the appeal, the appellate court could reverse the decision of the trial court. Then I didn't prove my case at all and I lost (i.e. my clients lost). Wait again, its not over yet. Then I could make a further appeal to a higher court, such as the state supreme court (or in a Federal case to the U.S. Supreme Court). The Supreme Court could then reverse the ruling of the Appeals Court and I was back in the category of proving my case and winning for my clients. So I learned that "proof" was, and is, a very slippery term.

But according to some, we are supposed to gather our genealogical evidence and then use that evidence to prove our ancestry (or the ancestry of a client if we are being paid to do research). It is really comforting to have "proved" a certain family relationship, especially if the "proof" involves the use of DNA "evidence." Then we can write about our "proof" in a "proof statement" and follow the provisions of the "Genealogical Proof Standard." However, all this seems rather silly to me especially since I am so used to having proof be a very "slippery term." It reminds me of an oral argument I had before the Arizona Court of Appeals where the opposing attorney kept claiming that his client had proved their case in the courts below. The three panel, Appeals Court Judges, were extremely uncomplimentary in their questions and statements and tried to point out to him that the lower court "proofs" meant absolutely nothing when the case was on appeal. Of course, he lost his case and I won mine, but it was very uncomfortable watching an attorney be humiliated by the Judges.

So what do genealogists really mean when they throw around terms such as "evidence" and "proof?" They can't possibly be using the terms in a legal sense since, as I have repeatedly pointed out, there are no genealogical juries or judges and there is also no appeal to a higher genealogical court. There is an obvious reason why the so-called genealogical proof statements almost never get challenged: there is no one interested in your family history other than your family. At least there is no one willing to spend the time to go through the hoops to publish a rebuttal.

But it is interesting that such rebuttals do exist. I recall that for years and years I had a certain wife recorded for one of my Mayflower ancestors, Richard Warren. His wife had been "proved" to be Elizabeth Juett or Marsh. This was recorded in books published by the General Society of Mayflower Descendants (aka the Mayflower Society) in their books. Hmm. But in 2002 further "evidence" convinced the Mayflower Society that his wife's name was Elizabeth Walker after the discovery of the will of her father Augustine Walker. See Edward J. Davies, "The Marriage of Richard1 Warren of the Mayflower", The American Genealogist, 78(2003):81-86; Edward J. Davies, "Elizabeth1 (Walker) Warren and her Sister, Dorothy (Walker) (Grave) Adams", The American Genealogist, 78(2003):274-75. The "correction" was published as a sticker that was put in the front of the book about Richard Warren. See the following:

Wakefield, Robert S, Janice A Beebe, and General Society of Mayflower Descendants. Richard Warren of the Mayflower and His Descendants for Four Generations. Plymouth, MA: General Society of Mayflower Descendants, 1991.

Perhaps all of these genealogical proof statements are really just waiting around until someone spends the time and the effort to "disprove" them and replace them with more accurate "proof statements." By the way, if I argued to a jury in court that my client had "proved" his or her case, the opposing counsel would object and the Judge would tell me to rephrase my argument. The Judge would then instruct the jury that they were the ones to decided whether or not my case had been proved. All attorneys can do (and all genealogists can do) is present the "facts" and their arguments in favor of a particular decision. As I have now said twice; proof is a slippery term.

Some time ago, my friend, Tony Proctor, wrote a post on his blog, Parallax View, entitled, "Proof of the Pudding." This is a very good statement about proof and genealogy from a scientific standpoint. His post was written, in part, as a response to the books I cite above.

I fully realize that there is nothing I can write or say that will change the status quo in the greater genealogical community about the current usage of the terms proof and evidence, but I will still keep writing and talking about the subject, nonetheless. It would be really nice if all those practicing genealogy adopted a skeptical attitude towards all genealogical conclusions and the accuracy of all historical records, but that seems extremely unlikely. For the time being, we will still have people claiming that they have "proved" their ancestry and publishing their "proof" in books, journal articles and online family trees. We will also have a core group of "professional" genealogists that will continue to teach and preach proof and evidence to the masses.