Preponderance of the Evidence in a Civil Trial

[Steve Whitlock]

(03-25-2020 12:04 AM)David Lockmiller Wrote:  

(03-22-2020 05:06 PM)Steve Whitlock Wrote:  I shared the above post with a research teammate, Richard "Rich" Hileman, a retired trial lawyer and genealogist, because I thought he might find it interesting.

Perhaps he anticipated that I have no clue as to the Fehrenbacher book, and I thought Rich's explanation might help others who may not be familiar with the Fehrenbachers.

"As for the Fehrenbacher’s rating system, I have my own peeve with that. I don’t know what you know about their book, so sorry if I go over ground you already know. It’s a great book in that it collects, thousands of recollected words of Lincoln reported by others. Then they have a grading system. The first three grades, a, b, and c are objective. A is a recollected direct quote attributed to Lincoln and recorded within a few days of when it is claimed Lincoln said it—e.g. all the reports of the Lincoln-Douglas debates. So As are claimed by the Fehrenbachers to be the most reliable recollected Lincoln statements. B is an indirect quote recorded within a few days. C is a quote attributed to Lincoln but not recorded contemporaneously. Those are their three objective categories. The next category is D which is “a quotation about whose authenticity there is more than average doubt.” Lots of things reported by Herndon they put in this category, including Herndon’s statement that Lincoln told him his mother was illegitimate. Their argument for this is ridiculous. I’ve got to conclude now, but if you’re interested in their argument, let me know and I’ll get back to you on it.

Take care.

Rich"
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I was blind, but now I see, sort of.

Steve W.

I agree with what your research teammate, Richard "Rich" Hileman, had to say about the Fehrenbacher’s rating system. I believe that such a system has prohibited far more truth being told expansively about Abraham Lincoln by accomplished Lincoln historians, such as Doris Kearns Goodwin in "Team of Rivals" on two occasions in her book.

According to Henry Wing (the only witness and participant in the conversation with President Lincoln on May 7, 1864, after the members of the cabinet had exited the room), the following conversation took place:

“You wanted to speak to me? said Mr. Lincoln.

“Yes, Mr. President. I have a message for you – a message from General Grant. He told me I was to give it to you when you were alone.”

In an instant the President was all awareness, intent – “Something from Grant to me?”

“Yes,” blurted out Henry. “He told me I was to tell you, Mr. President, that there would be no turning back.”

The harried man had waited long – three years – for such a word – the one word that could have brought him help in his despair; and his long arm swept around and gathered the boy to him, and bending over he pressed a kiss on his cheek. “Come and tell me about it,” he said.

Who, in that moment standing in Henry Wing’s place, would not have remembered precisely the response in words and acts of President Abraham Lincoln?

Is "Lincoln truth" to be lost forever because the truth does NOT satisfy the subjective "objective" criteria imposed upon subsequent Lincoln historians by the "Fehrenbacher" standard for truth regarding what President Lincoln has actually said and done? It should not be so, in my opinion.

In essence, the Fehrenbachers appointed themselves as arbiters of the truth for all things considered "Lincoln history." As Richard "Rich" Hileman wrote in the post above:

The next category is D which is “a quotation about whose authenticity there is more than average doubt.” Lots of things reported by Herndon they put in this category, including Herndon’s statement that Lincoln told him his mother was illegitimate. Their argument for this is ridiculous.

Rich Hileman added that "if you’re interested in their argument, let me know and I’ll get back to you on it." I would be interested to hear what Rich Hileman has to say specifically on this subject.

There is not a single "Lincoln history" source for "Henry Wing" listed in the index of the Fehrenbachers' book. Thus, there is no credibility rating in the book by the Fehrenbachers of any "Lincoln history" statement attributed to Henry Wing. In effect, the Fehrenbachers "ghosted" (modern terminology meaning: "stopping all communication and contact without any apparent warning or justification") Henry Wing as an accredited source of "Lincoln history" by any Fehrenbacher-approved authenticity standard of qualification for use by subsequent Lincoln historians.

It is this ironic conclusion alone that accounts for the description by Doris Kearns Goodwin, in her "Team of Rivals" text, describing Henry Wing as an anonymous "reporter" who merely relayed the words of General Grant to President Lincoln in the early morning hours of May 7, 1864. The same reasoning and conclusion applies to the subsequent conversation between President Lincoln and Henry Wing regarding the soldier vote in which Doris Kearns Goodwin refers to Henry Wing as a "visitor" to the White House. The only way one can determine from the work of Doris Kearns Goodwin that both the "reporter" and the "visitor" to the White House were one and the same person, Henry E. Wing, is to read both footnotes referenced by the page number in the text and make this connection.

David,

You asked for Rich's comments on the subject. He sent the following from a working draft he is writing about Nancy Hanks in response. I'm including the word document he sent as well because of some better presentation scripts. That's the title I wrote, not Rich.

"Rich Hileman added that "if you’re interested in their argument, let me know and I’ll get back to you on it." I would be interested to hear what Rich Hileman has to say specifically on this subject."

"Although Lincoln revealed nothing about his maternal grandmother in either of his autobiographies, certainly not whether she was a daughter or daughter-in-law of Joseph and Ann Lee Hanks, he did tell one man, his law partner of seventeen years William Herndon, and almost certainly told another, John Locke Scripps, some facts about her. Immediately after Lincoln’s death, Herndon began gathering material for a biography of Lincoln. One of his first correspondents was John Locke Scripps, one of the publishers for whom Lincoln had prepared his more detailed campaign biography in 1860. In a letter to Herndon dated June 24, 1865, Scripps told Herndon that,

Mr. Lincoln communicated some facts to me concerning his ancestry which he did not wish to have published, and which I have never spoken of or alluded to before. I do not think, however, that Dennis Hanks, if he knows anything about these matters, would be very likely to say anything about them. (Emphasis supplied)


These undisclosed facts could not have concerned Lincoln’s father’s family, because Lincoln was expansive about his paternal ancestry. Moreover, Scripps explicitly stated that Dennis Hanks, a Hanks family member, might know something about them, although if he did, Scripps didn’t think he would be likely to say anything about them. This means the facts Lincoln told Scripps concerned his mother’s family. Scripps told Herndon nothing more, and died a few months after his letter to Herndon. It is significant that Scripps said “some facts,” and “these matters” not “a fact” or “something.” Scripps no doubt wanted to know more about Lincoln’s mother and her family than Lincoln had revealed in either of his autobiographies, and he got it—but only in private. Lincoln told Scripps more about his mother and her family than he had revealed publicly in order to explain to Scripps why it was important to avoid the subject as much as possible in public. What he told Scripps was enough to lead Scripps to use the plural phrases “some facts” and “these matters.” Whatever Lincoln told Scripps, there was much more to keep private about Lincoln’s mother’s immediate family than that she was illegitimate.
Scripps’s letter was not a surprise to Herndon. According to Herndon, sometime in the early 1850’s, while he and Lincoln were riding together to a court case that involved inheritance, Lincoln said to Herndon something like this:

Billy, I’ll tell you something, but keep it a secret while I live. My mother was a bastard, was the daughter of a nobleman, so called, of Virginia. My mother’s mother was poor and credulous, and she was shamefully taken advantage of by the man. My mother inherited his qualities and I hers. All that I am or hope ever to be I get from my mother, God bless her. Did you never notice that bastards are generally smarter, shrewder, and more intellectual than others? Is it because it is stolen?

[discuss all Herndon’s versions; make this chapter about credibility of Herndon’s statement]

Herndon’s account of this statement by Lincoln has been challenged, and even deemed “doubtful” as a genuine statement by Lincoln. One sort of challenge is the complaint that Herndon, relating the story years later, could hardly have remembered what Lincoln said to him word for word in such detail. This complaint can be immediately granted. But that has nothing to do with judging whether Lincoln did or did not relate the core content of the statement, that his mother was illegitimate, to Herndon. That is not a statement Herndon would be likely either to forget or misremember. Even if Herndon embellished the statement, a judgment for which we have no evidence, that would give no reason to doubt its essential content—the disclosure that Lincoln’s mother was illegitimate. Herndon’s claim that Lincoln told him this has also been challenged, not on the slightest evidence that his account of the conversation is false, or that Nancy Hanks was in fact not illegitimate, but on one unsubstantiated or irrelevant claim or another, such as that Herndon was a liar, or Herndon was a drunk, or Herndon wanted to smear Lincoln. All this when the plain facts are that Herndon, drinking problem or not, was an educated, intelligent, and courageous man who was devoted to Lincoln. He was an ardent abolitionist—which caused a permanent estrangement from his father—in a time when abolitionists were the victims of violence. He had been chosen by Lincoln as a clerk in his practice and later as his law partner—a serious relationship in which unqualified trust must exist between the partners both as to their own affairs and their mutual knowledge of the confidential affairs of their clients. For their partnership to have lasted seventeen years means that such trust in fact did exist between Lincoln and Herndon. Lincoln choosing Herndon as a clerk and lasting partner is an endorsement of character that cannot be slighted. That Lincoln would confide in Herndon on so sensitive a personal matter is not in the least surprising, and there is no evidence that he did not.
An important example of a challenge to Herndon’s account is that of Don and Virginia Fehrenbacher in their Recollected Words of Abraham Lincoln. In this work, the Fehrenbachers attempt to grade accounts of Lincoln’s statements as reported by others from most reliable, A, to least reliable, E. The first three categories, A, B, and C, are purely objective, while the last two, D and E, as the Fehrenbachers admit, are not. Had the Fehrenbachers stopped with the three objective categories, their work would be an irreproachable contribution to weighing the possible reliability of recollected statements about Lincoln. A not unreasonable critic might complain, however, that by venturing into the two admittedly subjective “evaluative” categories, the Fehrenbachers rushed in where even the rashest of angels should fear to tread.
The Fehrenbachers grade Herndon’s account of Lincoln’s statement to him that his mother was illegitimate as a D, “A quotation about whose authenticity there is more than average doubt.” The statement clearly falls in their objective category C, “A quotation recorded noncontemporaneously,” because Herndon is not known to have recorded this conversation at the time it took place, or to have recounted it until after Lincoln’s death—just as Herndon said Lincoln asked him not to do. But the Fehrenbachers go further and attempt to argue that the statement is of more than average doubt. One problem with their conclusion is that their argument is not based on any evidence whatsoever that the recollected statement itself is false, that is, that Nancy Hanks was not illegitimate and therefore Lincoln would not have made such a statement. Nor is it based on any evidence that Herndon fabricated or misremembered the statement, although their judgment about the statement entails a claim that Herndon did one or the other. But there is no doubt whatever that Herndon loved Lincoln. He considered Lincoln the greatest American who had yet lived and his closest personal friend. He owed his entire professional life to Lincoln, and both men fully expected to continue as law partners when Lincoln returned from the presidency. Any claim that Herndon fabricated or misremembered Lincoln’s disclosure, at least as to its essential content that his mother was illegitimate, must strike the fair minded as highly implausible, even impossible.
The Fehrenbachers’ base their argument on alleged inconsistencies between some of Herndon’s statements about Lincoln. But the form of their argument is a simple and obvious logical fallacy, and their claim that the cited statements by Herndon are inconsistent is false:

Nancy Lincoln’s parentage is indeed obscure. She may have been illegitimate, or at least Lincoln may have believed that she was. Such a revelation, even to his partner, is not consistent, however, with Herndon’s repeated assertion that Lincoln was the most reticent and secretive of men. Furthermore, writing in 1889, Herndon declared that Lincoln was “always mum about his mother,” and that he, Herndon, never dared mention “Hanks” in Lincoln’s presence.

The form of this argument is that H said A and B; B is inconsistent with A; therefore B is of more than average doubt. But this argument form works just as well the other way around: H said A and B; B is inconsistent with A; therefore A is of more than average doubt. The Fehrenbachers’ argument form is one of the simplest and most obvious logical fallacies, one that even has a name—begging the question. They merely pick which of the allegedly inconsistent statements by Herndon seems to them to be of “more than average doubt.”
Logically fallacious reasoning is not the only, or even most serious problem with the Fehrenbachers’ argument. The major premise of their argument is that certain of Herndon’s statements are inconsistent while on their face there is no material inconsistency between them at all. Far from it. Telling Herndon that his mother was illegitimate is not inconsistent with being “always mum” about her. The illegitimacy of Lincoln’s mother explains why he would be “mum” about her, as he was in his campaign biographies. Nor is confiding in his trusted partner inconsistent with being reticent and secretive in general. Telling a trusted friend a potentially embarrassing personal matter and to keep it secret until after your own death is an example of being secretive. Even the “most reticent and secretive of men” occasionally tell a secret, and when they do, it is to the people they know they can trust the most. Lincoln trusted Herndon with the protected confidences of their clients. That he would trust Herndon with a personal confidence is not surprising; it is consistent with their long professional and personal relationship.
In their argument, the Fehrenbachers also suggest that perhaps Lincoln could have merely believed his mother to be illegitimate without knowing that she was. This is another sort of attack on Herndon’s statement that can only be described as bizarre. The idea appears to be that Lincoln was so badly misinformed about his mother’s ancestry that he incorrectly believed she was illegitimate when she was not. Either, being the easily duped dullard that he was, he was lied to and told that his mother was illegitimate when she was not, or he somehow got the wrong end of the stick and inferred or imagined her illegitimacy himself. To account for Lincoln falsely believing that his mother was illegitimate when she was not, we are required to suppose that he had no actual conversations about it with his own parents or any of his mother’s aunts and uncles, but instead inferred it on his own from some unknown false clues, and lacked the interest or courage to confront his father—or his mother—or any of the rest of her relatives to determine the truth of the matter. The common error of course is to mistakenly believe that one’s mother is legitimate when she is not, because it is illegitimacy which may be concealed not legitimacy. Actual cases of a mistaken belief that a parent is illegitimate, when that parent is not, must be extremely difficult if not impossible to find. The idea that Lincoln could have mistakenly believed his mother to be illegitimate when she was not is patently absurd. A defender of Nancy Hanks’s legitimacy is better served to retreat to the claim that Herndon somehow grossly misunderstood what Lincoln told him, or was a malicious liar determined to falsely smear his friend and partner’s mother.
No reasonable doubt can be cast on Herndon’s account that Lincoln told him his mother was illegitimate except by proving that she was not. Without such proof, Herndon’s account of what Lincoln told him, the account of a devoted and trusted friend, must be accepted as probative genealogical evidence."
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Steve W.

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The letter that Rich referred to from Scripps to Herndon would be this:

Northern Illinois University

Digital Library

39. John L. Scripps to William H. Herndon.

Chicago June 24th 1865

My Dear Herndon:

Yours of yesterday is at hand, and its tenor induces me to reply more specifically to your previous note of inquiry respecting my little campaign Life of Lincoln. I believe I try to satisfy my conscience in whatever I do; and I assure you I never performed a work more conscientiously in my life than the production of that biographical sketch. I am also very sure that Mr. Lincoln was equally sincere and conscientious in furnishing me with the facts connected with his own and his family's history. The chief difficulty I had to encounter, was to induce him to communicate the homely facts and incidents of his early life. He seemed to be painfully impressed with the extreme poverty of his early surroundings — the utter absence of all romantic and heroic elements, and I know he thought poorly of the idea of attempting a biographical sketch for campaign purposes — "Why Scripps" said he, on one occasion, "it is a great piece of folly to attempt to make anything out of my early life. It can all be condensed into a single sentence, and that sentence you will find in Gray's Elegy:

‘The short and simple annals of the poor.’
That's my life, and that's all you or any one else can make of it."

Mr. Lincoln communicated some facts to me concerning his ancestry which he did not wish to have published, and which I have never spoken of or alluded to before. I do not think, however, that Dennis Hanks, if he knows anything about these matters, would be very likely to say anything about them. At all events, if his statements conflict with those of the biography, it is a question of veracity or of memory between him and Mr Lincoln.

To show you how careful I was in the matter let me relate an incident:

When the pamphlet was printed, I sent a few copies to Mr. Lincoln, and in an accompanying note, I said to him, I was in doubt only as to one statement I had made — and that was as to whether or not he had read "Plutarchs Lives". I had trusted somewhat to my memory on the subject of his early reading; and while I was not certain he had enumerated this book among them he had read in his boy hood, yet as I had grown up in about such a settlement of people as he had in Indiana, and as I had read Plutarch in my boy-hood, I presumed he had had access to it also. If I was mistaken in this supposition, I said to him, it was my wish that he should at once get a copy, and read it, that I might be able to testify as to the perfect accuracy of the entire sketch. Mr Lincoln did not reply to my note, but I heard of his frequent humorous allusions to it.

I have no copy of the campaign Life on hand, nor can I find one. Soon after the death of Lincoln, I succeeded in finding a copy, but I let Dr Holland have it. Can you find me a copy in Springfield? By the way, are you preparing a life of Lincoln? I am afraid neither Holland nor Dale Owen, will give the time and
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attention to the subject necessary for such a life of Lincoln as we want and ought to have.

Very Truly Yours
J. L. Scripps.

Library of Congress: Herndon-Weik Collection. Manuscript Division. Library of Congress. Washington, D.C. 2207 — 8; Huntington Library: LN2408, 2:289 — 92