Happy World Book and Copyright Day 2014

So you have The Legal Genealogist‘s official permission — as if you needed it! — to go ahead and read a book today.

book.dayAnd to honor the legal scheme — the notion of copyright — that encourages authors to write and publishers to publish, all around the world.

It’s World Book and Copyright Day 2014.

This special day is courtesy of UNESCO — the United Nations Educational, Scientific and Cultural Organization.

And it’s a celebration that aims to promote reading, publishing and the protection of intellectual property through copyright.

And the message for today, from Irina Bokova, Director-General of UNESCO:

The history of the written word is the history of humanity.

The power of books to advance individual fulfilment and to create social change is unequalled. Intimate and yet deeply social, books provide far-reaching forms of dialogue between individuals, within communities and across time.

As Malala Yousafzai, the Pakistani schoolgirl who was shot by the Taliban for attending classes, said in her speech at the United Nations:

Let us pick up our books and our pens. They are our most powerful weapons.

On World Book and Copyright Day, UNESCO invites all women and men to rally around books and all those who write and produce books. This is a day to celebrate books as the embodiment of human creativity and the desire to share ideas and knowledge, to inspire understanding and tolerance.

Books are not immune from a world of change, embodied in the advent of digital formats and the transition to open licensing for knowledge-sharing.

This means more uncertainty but also new opportunity — including for innovative business models in the world of publishing. Change is raising sharp questions about the definition of the book and the meaning of authorship in the digital era. UNESCO is leading from the front in the new debates about the dematerialization of books and the rights of authors.

By championing copyright and open access, UNESCO stands up for creativity, diversity and equal access to knowledge. We work across the board – from the Creative Cities of Literature network to promoting literacy and mobile learning and advancing Open Access to scientific knowledge and educational resources. …

In all of this, our goal is clear – to encourage authors and artists and to ensure that more women and men benefit from literacy and accessible formats, because books are our most powerful forces of poverty eradication and peace building.1

There are some really neat resources available that are highlighted by UNESCO because of this special event today:

• for the Memory of the World program, an online register of priceless world heritage items ranging from the 1703 Census of Iceland to the Woodblocks of Vietnam’s Nguyen Dynasty.

• the World Digital Library, with thousands of items ranging from maps to photographs and spanning centuries of world history.

• UNESCO’s own Open Acces Repository, for documents and reference materials on its activities.

So… what about the copyright part? It’s easy to celebrate books, not so easy to make the mental jump to celebrating copyright. We tend to think of copyright as something that stands in our way, keeping us from using something we want, and it often is just that. But it’s also the legal scheme that allows authors and publishers to get paid for their work. And without authors writing and publishers publishing, we don’t have all those books.

So we should celebrate copyright today as well. And some resources to use as we do:

United States: U.S. Copyright Office. Make sure to grab at least the key circulars:

Canada: Canadian Intellectual Property Office. And Canadian genealogists who aren’t members of the Ontario Genealogical Society may want to join just to get the May issue of Families, the OGS Journal. It’s got a terrific article written by Margaret Ann Wilkinson, “Recent Developments in Canadian Law Affecting Genealogists,” covering copyright, privacy rights and more, that makes the whole price of membership worth it all by itself.2

United Kingdom: UK Intellectual Property Office.

European Union: The EU legal framework and see the discussion of the EU plan to modernize copyright law at the Creative Commons blog.

• And around the world everywhere else (since there’s no way to list them all in one blog post): see the list of copyright offices at the World Intellectual Property Organization.

Books. And copyright. Celebrate them both.


SOURCES

  1. World Book and Copyright Day message,” Irina Bokova, Director-General, UNESCO (http://www.unesco.org : accessed 22 Apr 2014).
  2. Margaret Ann Wilkinson, “Recent Developments in Canadian Law Affecting Genealogists,” Families, Journal of the Ontario Genealogical Society 53 (May 2014): 3-15.
Posted in Copyright, Resources | Leave a comment

More than fighting words

The indictment was returned in the fall term of court.

The time: October 1878.

The place: Mitchell County, North Carolina.

Henry Masters, foreman of the Grand Jury, signed the document as a true bill, and it was handed up to the judge of the Superior Court:

The Jurors for the State upon their Oaths present, that Harrison Street and Simon Street on the first day of Sept in the year A.D. 1878 with force and arms, at and in the County of Mitchell did unlawfully assemble together to disturb the peace of the State; and so being then and there unlawfully assembled together, did make an AFFRAY, by then and there fighting together by mutual and common consent, in public view, to the terror and disturbance of divers citizens of the State then and there being, in contempt of the State and its laws, contrary to the Statute in such case made and provided, and against the peace and dignity of the State.1

affrayNow the records don’t say whether Harrison Street and Simon Street were brothers, cousins, distant kin or folks who just happened to share a surname. And the 1880 census gives us too many Harrison Streets and Simon Streets to choose from to be sure just which of the Street boys these two were (there are, for example, at least two Harrisons who are possibilities — a 34-year-old2 and a 20-year-old3).

They do tell us who the witnesses were: Milton Ledford, a 30-year-old from Harrells;4 and another Street — Samuel, a 21-year-old from Harrells.5

And they tell us that the court sent out warrants and subpoenas for everybody.

Arrest warrants were issued for the defendants on 10 October 1878, directing that they be summoned to appear for trial at the courthouse in the county seat of Bakersville on “the first Monday after the fourth Monday in March 1879”6 — an odd but precise way of designating 1 April 1879, the day when the spring court term would begin in Mitchell County.

Witness subpoenas were issued for Samuel Street and Milton Ledford on 30 December 1878, ordering them to show up to testify that same “first Monday after the fourth Monday in March 1879.”7

On 23 December 1878, Harrison signed an appearance bond, promising to show up for trial, in the amount of $200 with John Street as his surety. On 15 January 1879, Simon signed an appearance bond, promising to show up for trial, in the amount of $200 with Joseph Street as his surety.8 (Sounds more and more like a family affair, doesn’t it?)

And the records also tell us Harrison and Simon were found guilty — fined a whole whopping $2 each plus court costs by Judge J. F. Graves.9

Cool.

Now just what exactly were they found guilty of?

An affray, Black’s Law Dictionary tells us, in the criminal law, was “the fighting of two or more persons in some public place to the terror of the people.”10 And, the definition continues:

It differs from a riot in not being premeditated; for if any persons meet together upon any lawful or innocent occasion, and happen on a sudden to engage in fighting, they are not guilty of a riot, but an affray only; and in that case none are guilty except those actually engaged in it.11

So: “To constitute this offence there must be, 1st, a fighting; 2d, the fighting must be between two or more persons; 3d, it must be in some public place ; 4th, it must be to the terror of the people.”12

In other words, people must be affronted for there to be an affray, “for if the fighting be in private, out of the hearing or seeing of any, except the parties concerned, it is no affray but an assault.”13

And I can’t resist it — I just can’t — here what we have is … a Street fight.


SOURCES

  1. Mitchell County, North Carolina, Superior Court, Indictment no. 51 (1878), State v. Street and Street; North Carolina State Archives, C.R.066.325.3; digital images, “North Carolina, Civil Action Court Papers, 1712-1970,” FamilySearch (https://familysearch.org : accessed 21 Apr 2014).
  2. 1880 U.S. census, Mitchell County, North Carolina, Harrells Twp., population schedule, enumeration district (ED) 148, p. 75(C) (stamped), dwelling 25, family 25, Harrison Street; digital image, Ancestry.com (http://www.ancestry.com : accessed 21 Apr 2014); citing National Archive microfilm publication T9, roll 973.
  3. 1880 U.S. census, Mitchell Co., N.C., Red Hill Twp., pop. sched., ED 149, p. 89(B) (stamped), dwell. 96, fam. 101, Harrison Street.
  4. 1880 U.S. census, Mitchell Co., N.C., Harrells Twp., pop. sched., ED 148, p. 76(A) (stamped), dwell. 42, fam. 42, Milton Ledford.
  5. Ibid., p. 79(C) (stamped), dwell. 98, fam. 99, Samuel Street.
  6. Mitchell County, North Carolina, Superior Court, capias writs, Indictment No. 51 (1878), State v. Street and Street; North Carolina State Archives, C.R.066.325.3; digital images, “North Carolina, Civil Action Court Papers, 1712-1970,” FamilySearch (https://familysearch.org : accessed 21 Apr 2014).
  7. Ibid., subpoena.
  8. Ibid., capias writs, reverse sides.
  9. Ibid., bill of costs.
  10. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 51, “affray.”
  11. Ibid.
  12. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 21 Apr 2014), “affray.”
  13. Henry Potter, The Office and Duty of a Justice of the Peace: And a Guide to Sheriffs, Coroners, Clerks, Constables, and Other Civil Officers, According to the Laws of North-Carolina…, 2d ed. (Raleigh: J. Gales & Son, 1828), 14; digital images, Google Books (http://books.google.com : accessed 21 Apr 2014).
Posted in Legal definitions | 2 Comments

Standing with Boston

Let this be a day of joy and accomplishment and, above all else, of peace in Boston.

Boston14

Posted in General | Leave a comment

How to begin with DNA testing

Reader Elizabeth and her half-brother share a mystery parent: a father who was absent from their lives and about whom they know next to nothing.

And when Elizabeth finally found that birth father as an adult, she discovered that the problem of understanding her heritage was bound up in Murphy’s Law1 — he turns out to have been adopted and knew nothing about his origins.

Adult And Child Hand Print“In other words,” Elizabeth writes, “half of me is a complete genealogical mystery. Our father died a few years ago, leaving us with no information on his ethnicity, but many questions! We want to find out anything we can about our father’s lineage, (but) how to proceed so that we may get the fullest picture possible about our father’s heritage and any medical information?”

In this case, DNA testing can help a lot — and may fill in many of the missing gaps in this family’s information.

Let’s start with the great advantage here of having one half-sibling of this pair who is male.

Having a father-son relationship between the mystery parent and one of these half-siblings means being able to test YDNA — the kind of DNA that only men have. It’s contained within the gender-determinative Y chromosome that’s passed down through the generations from father to son to son, so only men can take this test and it provides information on the direct paternal line.2

Doing the YDNA test will provide several pieces of information that may help with this puzzle. The siblings will get:

• Their paternal haplogroup: what broad branch of the human family tree their father’s family came from;3

• Data about deep ancestral origins: where other descendants of their paternal ancestors are present today and about their likely migration paths;4

• The possibility of detecting a likely surname of their biological grandfather — if most or many of the male sibling’s matches all share a surname or set of surname variants; and

• A list of others whose YDNA matches their paternal YDNA, who may be genetic cousins close enough to help answer their questions.

But the YDNA test will only provide information about the siblings’ father’s father’s father’s line. And there are all of those ancestors on their father’s mother’s side as well. How to test for those?

Both siblings should do autosomal DNA testing to get that information. Autosomal DNA, remember, is the DNA in what are called the autosomes, the 22 pairs of chromosomes we all have containing DNA randomly jumbled and passed down equally from our mothers and fathers.5 The test helps us locate cousins because it contains segments from many different ancestors whose DNA, by chance, managed to survive that jumbling process (called recombination).6 It’s the kind of testing done with the Family Finder test at Family Tree DNA, the AncestryDNA test from Ancestry.com or the test from 23andMe.

And why should both siblings test? Two reasons. First, because since these half-siblings share only a father and not a mother, anyone who is an autosomal match to both of them is likely to be a relative on their father’s side. There are, of course, exceptions, especially if both of their mothers have colonial ancestry. This process of triangulation — looking at the matches they have in common with each other — is a wonderful tool, because the closer matches that they share should point them swiftly to their father’s side of the family.

The second reason to test them both in that, because of that random jumbling process, even full brothers and sisters don’t have exactly the same autosomal DNA. One might get more DNA from, say, their paternal grandfather than the other will, and the other might get more DNA from their paternal grandmother. So the only way to find as many matches as possible — and to find the very best matches — is to “Test as many people as you can.”7

And, of course, more than just testing both siblings is testing as widely as possible in terms of testing companies and databases. When you’re looking for a cousin needle in the DNA haystack, you don’t want to miss out on a critical match because you tested with company A and your most important match only tested with company B. Using third party database sites like YSearch and Gedmatch can really help spread the word around that you’re looking for matches.

And what about the health information? How to get that?

This is harder now that the FDA has cracked down on 23andMe for providing health data analysis without the necessary approvals.8 So the siblings won’t get any health-related reports from any of the three autosomal testing companies right now. But that doesn’t mean they can’t get some information.

There’s a third-party utility site called Promethease that offers to do fundamentally the same thing that 23andMe was doing: run your raw test data against a known database of possible medical issues and give you an overview of what may be lurking in your genes. You can read more about Promethease at SNPedia, and Roberta Estes of DNA-eXplained has a great overview of the Promethease reporting system on her blog, with a review of her own results.9 Any results from the Promethease test that concern the siblings can then be reviewed with medical professionals and even genetic counselors.

So the plan for this mystery parent:

• Step 1: The male sibling should take the YDNA test. Family Tree DNA is the best in the YDNA business, has the biggest databases and the most active surname projects. For YDNA, realistically, it’s the only game in town.

• Step 2: Both siblings should do autosomal testing and test as broadly in terms of testing companies as possible. The least expensive way to do that right now is to test first with AncestryDNA ($99), transfer the raw data to Family Tree DNA ($69) and then test when funds allow with 23andMe ($99).10

• Step 3: Both siblings should get their results — both YDNA and autosomal DNA — into every database they can to keep the hunt going for paternal-side relatives. That includes sites like YSearch for YDNA and Gedmatch.com for autosomal DNA.

• Step 4: Both siblings can run their raw data files from the autosomal tests through the Promethease system to get some basic health data, and then follow up if need be with medical professionals.

• Step 5: Last but never ever least, the siblings need to work patiently and thoroughly with all of their matches to develop the paper trail genealogy that will help reveal their father’s side of the family. DNA testing only produces effective results when it’s used with, not instead of, the hard work of doing the basic paper trail analysis.


SOURCES

  1. “Murphy’s law is an adage or epigram that is typically stated as: Anything that can go wrong will go wrong.” Wikipedia (http://www.wikipedia.com), “Murphy’s law,” rev. 20 Mar 2014.
  2. See ISOGG Wiki (http://www.isogg.org/wiki), “Y chromosome DNA tests,” rev. 5 Mar 2014.
  3. See ISOGG Wiki (http://www.isogg.org/wiki), “haplogroup,” rev. 4 Mar 2014.
  4. Paternal Lineages,” Family Tree DNA Learning Center (https://www.familytreedna.com/learn/ : accessed 19 Apr 2014).
  5. ISOGG Wiki (http://www.isogg.org/wiki), “Autosomal DNA,” rev. 31 Mar 2014.
  6. ISOGG Wiki (http://www.isogg.org/wiki), “Recombination,” rev. 1 Feb 2014.
  7. See Judy G. Russell, “Sibling rivalry,” The Legal Genealogist, posted 9 Mar 2014 (http://www.legalgenealogist.com/blog : accessed 19 Apr 2014).
  8. See ibid., “23andMe suspends health tests,” posted 6 Dec 2013.
  9. Roberta Estes, Promethease – Genetic Health Information Alternative, DNAeXplained – Genetic Genealogy, posted 30 Dec 2013 (http://dna-explained.com/ : accessed 19 Apr 2014).
  10. See Judy G. Russell, “2014: Most bang for DNA bucks,” The Legal Genealogist, posted 6 Apr 2014 (http://www.legalgenealogist.com/blog : accessed 19 Apr 2014).
Posted in DNA | 6 Comments

Easter at the Farm

We were not, as a whole, a particularly religious family.

There is no tradition of revivals. No great awakenings. No soaring sermons that come to mind when The Legal Genealogist thinks back to Easters past.

The nearest church to my grandparents’ Virginia farm was a Methodist chapel. I don’t recall ever having attended a single service there except for the funerals of my grandparents a quarter century apart.

Maybe it was because there were too many disparate faiths — too many Lutherans and Catholics who married into the Baptists and Methodists. Maybe it was because there were too many people — cousins by the dozens is a good way to think of my mother’s family.

Whatever the reason, we didn’t have the traditions so many people are writing about this weekend: the quiet reflections of Good Friday, the midnight masses, the Easter sunrise services, the triumphant organ music of Sunday morning.

No, what I remember of Easter morning, from the years when I was a child and my family could make it to Virginia, to the Farm (in capital letters), for Easter, was The Hunt.

Sometime before the kids were up and dressed — or at least before we were allowed out of the house — the adults would go to one of two pastures and hide Easter eggs and candy for us to find.

I remember that we usually had to dress up, even though as often as not the fields were muddy or wet.

I remember that the older kids were supposed to help the younger kids … or at least not muscle the littler ones out of the way when making a beeline for a particularly attractive egg.

I remember that, somehow, the number of eggs and the amount of candy seemed to even out among the cousins, older and younger — a feat I suspect had a great deal to do with the number of adults pointing the way for the younger cousins.

I remember.

Barry, Paul, Susan, Barbara, Kacy

Barry, Paul, Susan, Barbara, Kacy

(Clockwise from upper left) Diana, Judy, Kacy, Paul

(Clockwise from upper left) Diana, Judy, Kacy, Paul

(Clockwise from upper left) Mark, Barry, Gary, Paul, Susan, Tony, Kacy, Chris, Larry

(Clockwise from upper left) Mark, Barry, Gary, Paul, Susan, Tony, Kacy, Chris, Larry

Barry, Barbara, Sheila, Susan

Barry, Barbara, Sheila, Susan

I remember. Do you?

Posted in My family | 8 Comments

Survival of records

It is rarely the case, even in the worst of records disasters, that all is lost.

LandscapeYes, the courthouse may have burned, but some records usually survived, and people often came back in after the fire to re-record critical documents like deeds.

Yes, the flood may have taken out everything stored in the basement and first floor, but perhaps those second floor records made it through.

And, yes, there really are San Francisco records from the years before 1906.

From the years before that day, exactly 108 years ago today, when San Francisco was rocked by an earthquake of massive proportions.

The earliest tremor hit the city at 5:12 a.m., and what has been called the Great Earthquake — centering in San Francisco — hit 20-25 seconds later. According to the U.S. Geological Survey:

The earthquake was felt from southern Oregon to south of Los Angeles and inland as far as central Nevada. … The frequently quoted value of 700 deaths caused by the earthquake and fire is now believed to underestimate the total loss of life by a factor of 3 or 4. Most of the fatalities occurred in San Francisco, and 189 were reported elsewhere.1

The city was devastated, and its records seriously damaged.

But even in that terrible disaster, all was not lost.

You will find, today, online at FamilySearch, some records of pre-1906 San Francisco. There are, for example:

• Deed Books 001 (1847) through 226 (1863-1864).2

• Volumes 1-5 of certified land grants, 1847-1850.3

• Bond Book volume 17, 1897-1901.4

• Miscellaneous records, volume 2, 1848-1850.5

• Great Register volume 67, 1867, and 69, 1869.6

There is more — quite a bit more… if you know how to find it.

And for that we can all be grateful as genealogists, because there’s a book out there to answer all our questions about what did, and what didn’t survive, the 1906 earthquake.

Written by Nancy Simons Peterson, CG, the research director of the California Genealogical Society, Raking The Ashes: Genealogical Strategies For Pre-1906 San Francisco Research7 is the one and only go-to resource for those of us who need to research pre- and post-earthquake San Francisco.

It’s a 242-page paperback that takes the researcher through the issues of what did and didn’t survive, what workarounds exist for things that didn’t survive, what additional resources are available, and even what research techniques are particularly applicable to solving difficult problems of pre-1906 San Francisco.

For $25 ($20 for members of the California Genealogical Society ordering through the CGS website), it’d be a steal just for the research techniques discussion by itself.

You can get your copy through the California Genealogical Society website (the information page is here), through the website for the book (here) or even through Amazon (here).

And, by the way, at the book’s website, you will find not only more information about the book, but the author has painstakingly added updates even since the 2012 publication of the second edition.

The book has three parts:

• Original records: What Did and Did Not Survive, with Work-Arounds for Lost Records

• Continuing the Search: Additional Resources

• Research Techniques for Solving Genealogical Problems

And an appendix sets out Pre-earthquake Newspaper Collections: Titles, Local Sources and Dates of Coverage.

If you’re doing pre-1906 San Francisco research, you want this book for what it will tell you about what did and didn’t make it through that earthquake. And if you’re not doing pre-1906 San Francisco research, you want this book for what it will tell you about research techniques useful anywhere there was records loss.

Raking The Ashes: Genealogical Strategies For Pre-1906 San Francisco Research.

Highly recommended.


SOURCES

  1. The Great 1906 San Francisco Earthquake,” USGS, Earthquake Hazards Program, USGS.gov (http://earthquake.usgs.gov : accessed 17 Apr 2014).
  2. See “Land and Property Records,” digital images, “California, San Francisco County Records, 1824-1997,” FamilySearch (https://familysearch.org : accessed 17 Apr 2014).
  3. Ibid.
  4. See “Public Records,” digital images, “California, San Francisco County Records, 1824-1997,” FamilySearch (https://familysearch.org : accessed 17 Apr 2014).
  5. Ibid.
  6. Ibid.
  7. Nancy Simons Peterson, Raking The Ashes: Genealogical Strategies For Pre-1906 San Francisco Research, 2nd ed. (Oakland, California : California Genealogical Society, 2012).
Posted in General, Resources | 4 Comments

The clues in old New York

So The Legal Genealogist had a great time last time with a very attentive group of genealogists at the Connetquot (New York) Public Library, talking about the legal rights of widows and orphans and the records they left behind.

There really isn’t anything that’s better about the whole experience than getting great questions that stretch what you know, and make you learn more.

Raising stacks of golden coins isolated on white background.And one of those questions last night came from a woman who was puzzled by an estate document she found in a packet of loose papers in New York.

Like so many of our ancestors, hers had not left a will, so the estate was divided up according to what the law at the time provided.

And this particular estate document — a distribution order dated in the early 1700s — gave 100 pounds to each of four named persons who all appeared to be children of the deceased, but 200 pounds to a fifth.

And so, the descendant wondered, what might that tell us about this family?

Great question, because that tells us quite a bit about this family. It tells us not just that this person left five children, but it also gives us a bit of evidence of birth order: that one of them was the oldest son.

Because, at that time, in New York, the law provided for what was called a double portion:

After payment of their debts the surplus was to be equally divided between the widow and children, viz. : one-third to the widow and the other two-thirds amongst the children, provided the eldest son should have a double portion, and where there were no sons the daughters should inherit as coparceners, and if any of the children happen to die before it come to age his portion was to be divided among the surviving children.1

Exactly when New York abolished the double portion isn’t clear — there’s a disagreement among the authorities over when New York followed the double portion rule and when it gave all real property to the oldest son (the rule of primogeniture)2 — though everyone agrees that favorite treatment of any one child was gone from New York law entirely by the statute of 23 February 1786.3

New York wasn’t the only place where this rule was ever followed. The concept of the oldest son getting a double portion comes right out of Mosaic law and is usually traced to Deuteronomy 21:17.4 In the Jewish tradition, this right extended only to the firstborn son; an oldest surviving son who wasn’t the firstborn wouldn’t get a double portion.5

It was followed in Massachusetts, where early law gave the eldest son “a double portion” of “the whole estate reall, and personall.”6 This was also the law for a time in early Connecticut, Delaware and Pennsylvania.7

So whenever you see a court order in an estate where there wasn’t a will and one person is getting exactly twice as much as everybody else, stop and think and then check the law. It’s likely to be the result of a double portion rule — and that’s a clue to who the oldest son was in that family.


SOURCES

  1. Robert Ludlow Fowler, Decedent Estate Law of the State of New York, … (New York : Voorhis & Co., 1911), 443; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014). See also Lawrence M. Friedman, A History of American Law, Rev. Ed. (New York : Simon & Schuster, 1985), 66.
  2. Compare Fowler and Friedman, above, with Edward Eggleston, “Social Conditions in the Colonies,” 28 Century Illustrated Magazine 848-871 (May-October 1884); ; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  3. See John C. Spencer, editor, Alexis de Tocqueville’s American Institutions and their Influence (New York: A.S. Barnes & Co., 1851), 453; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  4. “But he shall acknowledge … the firstborn, by giving him a double portion of all that he hath: for he is the beginning of his strength; the right of the firstborn is his.” Deuteronomy 21:17, The Official King James Bible Online (http://www.kingjamesbibleonline.org/ : accessed 16 Apr 2014).
  5. See “Primogeniture,Jewish Encyclopedia (http://www.jewishencyclopedia.com/ : accessed 16 Apr 2014).
  6. See Hugh Seymour Tremenheere, The Constitution of the United States Compared with Our Own (London : John Murray, 1854), 12; digital images, Google Books (http://books.google.com : accessed 16 Apr 2014).
  7. Ibid., 14.
Posted in Legal definitions, Statutes | Leave a comment

Those good men, lawful and true

It’s a phrase you see all over the court records, just about every time there’s a jury involved in the case.

lawful.manThey are, the document will almost invariably inform you, good and lawful men.

Or lawful men, good and true.

Or even, in the wonderful world of legal Latin, legalis homo.

And that seems to make sense.

Until the moment somebody says: “Just what exactly is a lawful man?”

Um…

Er…

Good question.

The Legal Genealogist doesn’t suppose you’d settle for “somebody who’s entitled to serve on jury,” would you?

Didn’t think so.

Okay, then.

Just for that, we’ll start with the Latin.

Legalis homo is Latin for “a lawful man, a person who stands in rectus in curia; a person not outlawed, excommunicated, or infamous.”1 Which of course means we need to look up rectus in curia: “Right in court. The condition of one who stands at the bar, against whom no one objects any offense.”2

So there you have it.

What? Not good enough?

Oh, all right.

Back to English.

A lawful man, Black’s Law Dictionary tells us, is “a freeman, unattainted, and capable of bearing oath.”3

Which, of course, raises the question of what unattainted means. (Sigh.)

To be a lawful man, the person had to possess all his civil rights,4 such as the right to vote and right to hold land. If you had lost those rights, you were attainted.5

So what did this lawful man bit really mean in practice? It meant a man (since you had to be male to serve on a jury), who owned land or was at least head of a household (you generally had to be a freeholder though some jurisdictions allowed heads of household even if they didn’t own land), and who hadn’t have ever been convicted of any offense that disqualified him from service (perjury was a big one).

In early days, the phrase had to be included in the court records, whenever a grand jury brought in a criminal charge in the form of an indictment and whenever a trial jury was seated, in order to prove that the jurors who acted in the case were legally qualified. Just saying the jurors were good and lawful men was enough.6 Leaving those words out could get the case tossed out of court. 7

Lawful man.

It really does just mean “somebody who’s entitled to serve on jury.”


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 700, “legalis homo.”
  2. Ibid., 1007, “rectus in curia.”
  3. Ibid., 695, “lawful man.”
  4. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society (http://www.constitution.org/bouv/bouvier.htm : accessed 15 Apr 2014), “legalis homo.”
  5. Attainder initially meant “that extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony receives sentence of death for his crime.” Black, A Dictionary of Law, 103, “attainder.” It came to be used as a more general term for the loss of civil rights on conviction of a crime, without regard to the death penalty.
  6. See for example State v. Price, 11 N.J. Law 203 (1830), holding that the qualifications of grand jurors didn’t have to be included as long as they were described as good and lawful men.
  7. See Grandison v. State, 21 Tenn. 451 (1841), where the Tennessee Supreme Court said not saying that a grand jury of good and lawful men returned the indictment was enough to get the indictment thrown out.
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The notion of freedom dues

More than one reader wrote in response to yesterday’s blog post about children bound out, either voluntarily or involuntarily, as apprentices or servants, noting that they were confused about the issue of when, how and under what circumstances money changed hands in these transactions.

The Legal Genealogist had noted that, in many cases where a child was voluntarily apprenticed to a craftsman, “it was common for the master craftsman to charge a fee — often a hefty fee — to accept the child for training. Think of this as vocational school for colonials and early Americans.”1

Spinning WheelWhat was confusing to the readers was the fact that they had seen records in their own families about children who were placed with craftsmen in these voluntary apprenticeships and about children who were involuntarily placed with others by court order or by overseers of the poor because their own families couldn’t take care of them, often because they were orphaned — and who actually received money from those they served.

“Not sure if this was the usual procedure,” noted reader Gloria Neiger Bushong about the child of a Virginia Revolutionary War soldier who was bound out to a nailsmith by the Overseers of the Poor and who was to receive nine pounds when he reached the age of 21.

“My ancestor’s father paid a blacksmith to train his son, but the smith had to give the son tools and money at the end of the apprenticeship,” wrote reader John. “Was that an ordinary thing?”

The answer to these and other reader questions of the same kind: yes. This was the usual, ordinary procedure in any case where someone (other than a slave) was bound to serve someone else. And it applied to all kinds of situations: to the indentured servants whose passage across the Atlantic was paid by those they would have to serve for years; to children of the poor who were bound out by courts and overseers of the poor; to children whose parents sought out an apprenticeship for their youngsters.

Because they weren’t paid a wage during the years that they were serving — or learning and serving — all of these folks were supposed to receive something at the end when they were free of their obligations and setting out to make their own way in the world.

And you’ll find the evidence in both the records of the day… and in the law.

The term you’ll find used, in almost all of these situations, is dues and often freedom dues: an amount the master of any unpaid servant was to provide to that servant at the end of the term of service.

Unlike most of the terms we come across in legal documents, this one is one you won’t find in the law dictionaries. It pops up in places like the discussion of indentured servants on Wikipedia almost as an afterthought: “unlike slaves, servants were guaranteed to be eventually released from bondage. At the end of their term they received a payment known as ‘freedom dues’ and become free members of society.”2 But where you’re really going to find out what it was about is in the statute books.

In Pennsylvania, for example, the legislature passed a law in November 1700 “for the better regulation of servants in this province and territories” and it provided, in part:

That every servant that shall faithfully serve four years or more, shall, at the expiration of their servitude, have a discharge, and shall be duly clothed with two complete suits of apparel, whereof one shall be new; and shall also be furnished with one new ax, one grubbing hoe and one weeding hoe, at the charge of their master or mistress.3

In Virginia, in 1705, a statute governing servants and slaves provided that:

whereas there has been a good and laudable custom of allowing servants corn and cloaths for their present support, upon their freedom; but nothing in that nature ever made certain, Be it also enacted, by the authority aforesaid, and it is hereby enacted, That there shall be paid and allowed to every imported servant, not having yearly wages, at the time of service ended, by the master or owner of such servants, viz: To every male servant, ten bushels of indian corn, thirty shillings in money, or the value thereof, in goods, and one well fixed musket or fuzee, of the value of twenty shillings, at least: and to every woman servant, fifteen bushels of indian corn, and forty shillings in money, or the value thereof, in goods…4

In Maryland, a 1715 law provided that

Every man servant shall have at the Expiration of servitude, I new Hat, I good suit, (coat and breeches) either Kersey or broad-cloth, 1 new shirt of white linen, I pair of French Fall Shoes, and stockings, 2 houghs (hoes) and I Axe, 1 gun, value 20s. Women Servants: Waste Coat and Petty coat of new half thick or penistone, a new shift of white linen (Two suits), Shoes and Stockings, a blue apron, Two caps of white linen, and 3 barrels of Indian corn.5

The concept of freedom dues became so ingrained in the law the terms weren’t even always spelled out, as with an 1803 Maryland law requiring every boat pilot to take an apprentice. The law provided that “such apprentice shall have freedom dues, and the usual allowance to apprentices at the expiration of their time.”6

Over time these freedom dues came to be applied to all free servants and apprentices, and the terms were often set out specifically in the records creating the relationship of master and servant, master and apprentice, master and bound child. The customary items often varied depending on the nature of the relationship. A carpenter’s apprentice in 1709 Pennsylvania, for example, was to receive “one Broad axe, one hand saw, three augurs, one gouge, three chissells & three planes all new tools together with a good new suit of serve apparrell.”7 By contrast, two young sisters bound out as orphans in North Carolina in 1836 were to receive “14 months Schooling one common Bed and Necessary furniture three suits of good Nice Store Clothing one wheel and cards.”8

So this is an area where there was generally no difference between the voluntary and the involuntary placements: freedom dues were ordinary and customary.

Of course, not all masters paid up, or paid up in a timely way…

But we’ll leave that for another day and another blog post…


SOURCES

  1. Judy G. Russell, “The difference,” The Legal Genealogist, posted 14 Apr 2014 (http://www.legalgenealogist.com/blog : accessed 15 Apr 2014).
  2. Wikipedia (http://www.wikipedia.com), “Indentured servant,” rev. 4 Apr 2014.
  3. §III, Chapter XLIX, Laws of 1700, in The Statutes at Large of Pennsylvania from 1682 to 1801, volume II (Harrisburg: Clarence M. Busch, State Printer, 1896), 55; digital images, Google Books (http://books.google.com : accessed 15 Apr 2014).
  4. §XIII, Chapter XLIX, Laws of October 1705, in William Waller Hening, compiler, Hening’s Statutes at Law, Being a Collection of all the Laws of Virginia from the first session of the Legislature, in the Year 1619, 14 vols. (1819-1823; reprint ed., Charlottesville: Jamestown Foundation, 1969), 3: 451.
  5. Karl G. Geiser, Redemptioners and Indentured Servants in the Colony and Commonwealth of Pennsylvania (New Haven, Conn. : Tuttle Morehouse & Taylor, 1901), 72 n.4; digital images, Google Books (http://books.google.com : accessed 15 Apr 2014).
  6. §20, Chapter 63, Laws of 1803, in Clement Dorsy, editor, The General Public Statutory Law and Public Local Law of the State of Maryland, from the Year 1692 to 1839 Inclusive, volume I (Baltimore : John D. Toy, printer, 1840), 487; digital images, Google Books (http://books.google.com : accessed 15 Apr 2014).
  7. Harold B. Gill, Jr., Apprentices, in James M. Gaynor, editor, Eighteenth-Century Woodworking Tools (Williamsburg VA : Colonial Williamsburg Foundation, 1997), 155.
  8. Yancey County, NC, Court of Pleas Minute Book, 1 February 1836.
Posted in Legal definitions | 2 Comments

Apprenticed or bound out

So The Legal Genealogist was in Lakeland, Florida, this past weekend with the Imperial Polk Genealogical Society and one of the topics was the way the law dealt with widows and orphans.

And the question came up, as it often does, about children and this whole business of being bound out: placed by the courts or the overseers of the poor or the vestry of the local parish or some other local authority into someone else’s home.

ApprenticeWhat’s the difference, the questioner wanted to know, between being bound out and being apprenticed?

It’s a great question, because the language of the documents you’ll find dealing with children and these out-of-home placements in the decades and even centuries before adoption began to be formalized often sounds an awful lot like these two are exactly the same.

In Black’s Law Dictionary, for example, an apprentice is defined as a “person, usually a minor, bound in due form of law to a master, to learn from him his art, trade, or business, and to serve him during the time of his apprenticeship.”1 And the term bind out is then defined as “to place one under a legal obligation to serve another; as to bind out an apprentice.”2

So why do we as genealogists talk about one as apprenticeship and the other as binding out? What’s the difference?

The big difference between the two was the notion of voluntariness — not so much on the part of the child, of course, but on the part of the parent or parents.

A parent — usually a father — who wanted his child trained in a trade could voluntarily contract with someone who was in that trade to take the child in as an apprentice. The apprenticeship system in England can be traced as far back as the 12th century:

The parents or guardians of a minor would agree with a Guild’s Master craftsman the conditions for an apprenticeship which would bind the minor for 5–9 years (e.g. from age 14 to 21). They would pay a premium to the craftsman and the contract would be recorded in an indenture. In 1563, the Statute of Artificers and Apprentices was passed to regulate and protect the apprenticeship system, forbidding anyone from practising a trade or craft without first serving a 7-year period as an apprentice to a master (though in practice Freemen’s sons could negotiate shorter terms).3

Under this type of apprenticeship, it was common for the master craftsman to charge a fee — often a hefty fee — to accept the child for training. Think of this as vocational school for colonials and early Americans.

Binding out, on the other hand, wasn’t voluntary at all. A child whose parents couldn’t support him — usually (but not always) an orphan, meaning in the law a fatherless child4 — was simply ordered to be handed over to a freeman of the community to raise and train, to keep the child from becoming a public charge.

The law allowed for this type of involuntary binding out very early. That sort of binding out had been adopted in England as early as 1601, and eventually spread through the English colonies as well.5 An example would be the Virginia statute of 1656.6

So a child could be bound out as an apprentice — but the conditions under which that happened tell us much different stories about this child and this family.

That’s why, when we come across documents placing children into what look like apprenticeships, we need to look deeper. Is there a contract involved and, if so, did a father sign it? If so, then it’s likely a voluntary “train my son” apprenticeship.

Or was it just a court order entered at the request of, say, the overseers of the poor? In that case, it’s likely that one or both of the child’s parents were dead and the child was poor and being placed out mostly so as not to be a public charge.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 81, “apprentice.”
  2. Ibid., 138, “bind out.”
  3. Wikipedia (http://www.wikipedia.com), “apprenticeship,” rev. 8 Apr 2014.
  4. Black, A Dictionary of Law,857, “orphan.”
  5. See Wikipedia (http://www.wikipedia.com), “apprenticeship,” rev. 8 Apr 2014.
  6. See Act II of 1656, in William Waller Hening, Virginia Statutes at Large 1: 416-417 (1656).
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