Alfred Brophy is the author of Reparations Pro and Con, which talks about visits to slave cemeteries as one type of reparation for slavery. He is also a contributor to Oxford’s African American National Biography and author of Reconstructing the Dreamland: The Tulsa Riot of 1921. In the article below he looks at the controversy over the right to visit Thomas Jefferson’s grave.
The latest controversy over Thomas Jefferson and Sally Hemings–the enslaved woman whom Jefferson owned and with whom he, presumably, had several children–erupted last summer when Jefferson descendants had a reunion. While the Hemings descendants came to the reunion, they were not permitted to visit Jefferson’s grave, near Jefferson’s home of Monticello. The cemetery is on land owned by some of Jefferson’s lineal descendants and managed by the Monticello Association.
For years the white descendants of Jefferson have been wary of claims by those who are descended from Sally Hemings that Jefferson is also their ancestor. But as DNA evidence has made the claims that Jefferson and Hemings had children together substantially stronger, the relations between the groups have warmed, in some ways. Yet, as the Dan Barry reported in the New York Times on Monday (“Atop a Hallowed Mountain, Small Steps Toward Healing“), in 2002 the Monticello Association voted in 2002 to not extend membership to Hemings’ descendants. That led to a rift between the two groups.
When the summer 2007 reunion was being planned, a member of the Monticello Association suggested a visit to Jefferson’s graveyard. The request was denied, citing, apparently, the fragile state of the graveyard (especially the grass). And that has led to further hard feelings.
But this is not just a dispute about private property and the rights of property owners to keep the public off their grass. For Virginia, like many states–especially southern states–has a statute that gives the public a right to visit cemeteries. Virginia’s statute is the most comprehensive of any state; it provides for rights of access by relatives of the people buried in the cemetery (“family members and descendants of deceased persons buried there”), as well as researchers (“any person engaging in genealogy research”), so long as they give “reasonable notice to the owner of record or to the occupant of the property or both.” Of course, the landowners can limit the amount of the visits and the time. Virginia law is careful to require that the access be “reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research.” Va. Code Ann.§ 57.27.1 (1993).
It’s no surprise that no one has mentioned Virginia’s graveyard access statute; it is an ancient and obscure right. Most people believe–with good reason–that private property owners can keep everyone off their land. But this is an unusual exception to that right of private property, what English jurist William Blackstone called the “right of sole and despotic dominion.” It has been recognized consistently by courts and legislatures for generations, although it has also been largely forgotten about.
The Hemings descendants can get access to the grave, if they persist in their request. This may have to end in a lawsuit, which might first settle the long-running claims about whether they are related to Jefferson, then set the terms for access to the cemetery. But lawsuits are costly and so often promote more anger and bitterness than they solve.
This, like almost all disputes, is much better settled outside of court. And it is a chance to remind us all of the many, often forgotten, ways that slavery is connected to our past. In the wake of the Civil War, it was easy to forget how central slavery was to our nation’s economic and cultural development. Many people, North and South, wanted to move on and forget about that national sin. Cemeteries, where we remember our common ancestors, offer a vantage for viewing how connected we all are, black and white, to the institution of slavery.
Perhaps when the Hemings’ descendants visit Jefferson’s grave, they will inspire other families to seek out cemeteries where their ancestors are buried. Perhaps the descendants of President Washington’s slaves will visit the slave cemetery at Mount Vernon. Maybe throughout the south, descendants of enslaved people will be crossing the plantations where their ancestors labored and are buried. The image of descendants of enslaved people visiting plantation cemeteries to honor their ancestors will remind us of our common bonds and our common mission today.
Maybe the best reason for encouraging visits to Mr. Jefferson’s grave is to honor his memory. For I suspect that Jefferson would have wanted his descendants–and a lot of other people, too–to visit his grave. One might gage his attitude by his writings about Virginia’s “natural bridge.” In his _Notes on the State of Virginia_, Jefferson called the natural bridge “the most sublime of nature’s works.” In 1774 he purchased the land in Rockbridge County where the natural bridge is located. Then in 1815, he wrote about the bridge that “I view it in some degree as a public trust, and would on no consideration permit the bridge to be injured, defaced or masked from public view.” Perhaps Jefferson would also consider his grave a public trust, which should be open to view, as well.
I hope that Mr. Brophy’s books are more accurate than this article. Here are some corrections that need to be made:
1. The reunion that Mr. Brophy cites was not a reunion of Jefferson’s descendants, but a reunion for the descendants of ALL the people who had lived and worked at Monticello.
2. The Graveyard is not owned by SOME of the descendants of Thomas Jefferson, but by ALL of the descendants of Thomas Jefferson.
3. The DNA evidence proved only what has been known for almost 200 years – namely that A Jefferson fathered SOME of the Hemings children. The DNA tests cannot pinpoint exactly who fathered the children for two reasons: (a) Jefferson had no male children who bore children, and (b) the DNA markers necessary to pinpoint exactly who fathered the children mutate over several generations to the point where a paternity test would be useless. In fact, theoretically, Jefferson’s grandfather could have been the father of the children (which we know can’t be true).
4. The Monticello Association has NEVER barred access to the cemetery to descendants of individuals buried there.
5. Suggesting that the Hemings go to court and sue for admittance to the Graveyard is an interesting idea, but I strongly suspect that it would fail for exactly the same reason that the Association refused them membership – namely that of being unable to prove that they are descended from Jefferson. If their lineage to Jefferson is so solid, why haven’t they joined other genealogical societies such as the Signers Of The Declaration Of Independence, the Sons Of The American Revolution, and the Daughters Of The American Revolution? Could it be that those organizations also feel that their evidence is too weak to support their claim?
6. At one point in time, the Graveyard was open to the public, but unfortunately the public took advantage of it and chipped pieces of his gravestone off to take home as souvenirs. This is the third gravestone that has been placed over his grave, and, since the building of the fence, the gravestone has remained intact. If the family had wanted to keep the public from viewing his grave, they would have built a wall instead of a fence.
Thanks for joining the discussion, Mr. Moyer. I particularly appreciate your willingness to discuss this, given your position as president of the Monticello Association.
Hmm. The central place of our disagreement is (I guess this is obvious), whether Hemings’ descendants are also Thomas Jefferson’s descendants. For example, your statement that “the Monticello Association has never barred access to the cemetery to descendants of people buried there” is accurate only if Hemings’ descendants–who have been denied membership in the Monticello Association and a right to visit the grave last summer–are not Jefferson descendants. But the Association is the group making the determination of whether Hemings’ descendants are related to Jefferson, so this rather quickly becomes circular.
Are Hemings’ descendants also descendants of Thomas Jefferson? Here the evidence is a combination of DNA and more traditional historical evidence. The DNA evidence links Hemings descendants and Jefferson’s family, but does not firmly (as you point out) link Thomas Jefferson as the father. To refine the case made by DNA, scholars have looked to other evidence, like where Hemings and Thomas Jefferson were at the time of conception of Hemings’ children. The Thomas Jefferson Foundation’s report maintains that the case has been convincingly made. Their report is available here: http://www.monticello.org/plantation/hemingscontro/jefferson-hemings_report.pdf
There is also a minority report, which disputes the majority report. It is available here:
http://www.monticello.org/plantation/hemingscontro/minority_report.pdf
This is the key question that a court interpreting the Virginia cemetery access law would have to confront in deciding whether Hemings’ descendants are entitled to use the law to access Jefferson’s grave. This is a civil not a criminal case, so the question is: “are Hemings’ descendants more likely than not descended from Thomas Jefferson?” The question is not, “is there some plausible theory that they are descended from someone other than Thomas Jefferson?” Given the standard for access, it seems likely that the Hemings descendants will meet that standard.
I take it there might be some other important issues that would flow from a court’s determination of paternity, however. The Monticello Association’s website reports that lineal descendants of Jefferson are entitled to be buried in the graveyard. (I’d like to see the deed from the Thomas Jefferson Randolph family to the Monticello Association to know more about the nature of this right.) So a determination of paternity might allow Hemings’ descendants to be buried there as well.
While a lawsuit might put an end to the conflicting claims about paternity, I’m no fan of lawsuits. They are costly in time, money, and good will. I hope the question of access for Hemings’ descendants will be settled in a positive and forward-looking way, which preserves the integrity and solemnity of Mr. Jefferson’s gravesite, while at the same time recognizing the right that Hemings’ descendants have to visit the grave. Our country is indebted to Mr. Jefferson for many lessons about humanity and politics, and now, generations after his passing, he is still teaching us about our common bonds and about access to property, too.
[…] slavery as well. (I did write about Harvard’s non-investigation recently and a little about a potential lawsuit by Sally Hemings’ issue to get access to Thomas Jefferson’s grave and here a few weeks […]