Part 1: How old did folks have to be

A reader asks a wonderful question: how old did folks have to be to do certain things? Part 1 of the answer looks at Colonial charters.

How old did you have to be?

Blog reader Howard Swain correctly notes that “(i)n Colonial times as well as today, a person had to be a certain (age) to be allowed to do something — be taxed, serve in the military, witness a document, etc. In genealogy sometimes we can find no birth date for a person. But we may have a date at which he was taxed, witnessed a document, etc. So, to use that to put a bound on when he had to have been born by, we need to know the ages at which it was legal to do various things. … I have a feeling that many assume that the age for many of these things was 21, which clearly is not true.”

Howard adds that many online resources for these sorts of ages don’t cite sources, leaving us wondering where they got their information and whether they’re accurate or not.1

So… how old DID you have to be to do things?

Any question like this is going to be one that brings joy to the heart of anybody trained in the law. That’s because the answer, of course, is one of those wonderful lawyerly-type answers that drives everyone else totally batty.2

Ready?

You sure?

Answer: It depends.

(Cue in the groans and the eye-rolls.)

Okay. Let’s work through this piece by piece. The reason it depends is because there are at least three sources of law that might exist at any particular time for any particular place that could provide the answer.

First, there may be some fundamental document like a colonial charter or a state or national constitution with some specific age provision. If there is, it’s going to trump any other source of law.

Second, there may be a statute that sets a specific age. If there is, and it isn’t trumped by some fundamental document, then it will control.

Finally, if there’s nothing in any fundamental document and nothing in any statute, then in most of what’s now the United States,3 the common law rule will control.

We’ll take these one by one over a period of some time. Today, we’ll look at colonial charters.

Only a few colonial charters have specific age-related provisions. In the colonies governed by those charters, however, those provisions will control for the time period they were in effect.

The Carolinas:

In 1669, the eight Lords Proprietor of the Province of Carolina, which included most of the land between what is now Virginia and Florida, adopted what was called the Fundamental Constitutions of Carolina. The problem is the provisions were particularly unpopular in what became South Carolina, never were ratified by the assembly, and were only followed in some measure and in some areas between 1669 and 1719.4

But the Fundamental Constitutions had three key age-related provisions: (1) Paragraph 101 required every man aged 17 and above to be recorded once, and only once, as a church member;5 (2) Paragraph 116 required “inhabitants and freemen of Carolina above seventeen years of age, and under sixty, … to bear arms and serve as soldiers” in the militia; and (3) Paragraph 117 required an oath of loyalty from every inhabitant aged 17 and older.6

In those early years, then, and particularly in the northern areas governed by the Lords Proprietor of the Province of Carolina, look for these records and consider the age of 17 as a key.

New Jersey:

New Jersey was originally two colonies, the Colony of East Jersey and the Colony of West Jersey. The fundamental documents of both contained some age-related provisions.

In East Jersey, the 1683 Fundamental Constitutions required the ruling Proprietors to be 21 years old in order to vote (section XIII), jurors were required to be age 25 (section XIX), and whenever any names were to be drawn by lot for elections or jury service, the drawing was done by a boy under the age of 10 (sections III and XIX).7

Find a proprietor on a voting list and you know he’s 21 or older; find a juror, he’s 25 or more; find a boy’s name in a record showing a drawing by lot and he had to be nine years old or younger. At least until we get to the early Constitutions.

In West Jersey, the 1664 Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, to and With All and Every the Adventurers and All Such as Shall Settle or Plant There made the age of 14 a very important age. Land grants were restricted to those who came over with their own arms and supplies, or to servants “male or female, exceeding the age of fourteen years” who would either entitle their masters to land or themselves be entitled to land at the end of their service.8

Find any name on a list as a person for whose service land was issued under that Agreement and you know he or she had to be 14 or older.

Pennsylvania:

In Pennsylvania, it was clear from the outset that a person was not of full age until the age of 21. That age was the key age set out even for the “Governour” under Penn’s Charter of Libertie of 25 April 1682, the Frame of Government of 5 May 1682 and the Frame of Government of 2 February 1683. The Frame of Government of 1696 set 21 as the voting age.9

No need to consult the statutes or the common law for the early days in Pennsylvania for those questions.

Rhode Island:

Meeting between the 16th and 19th of March 1641, some 22 years before the Charter of Rhode Island, the General Court of Election at Portsmouth issued an order that the Justices of the Peace take an oath of fidelity “or some other strong cognizance” from “all men or youth above fifteen years of age.”10

Find any name on the court’s early lists, and you know that man is aged 15 or above.

We’ll go on, in later posts, to review early constitutions, then statutes, then common law rule (and we’ll gather ‘em all up into a permanent reference file when we’re done). And as we travel down this road, at every step, we’ll see that the answer is always the same: it depends.


SOURCES

  1. An example is “English Common Law, 18th Century Virginia,” USGenWeb (http://www.usgenweb.org/research/misc.shtml#law : accessed 16 Jan 2012).
  2. There’s an old joke about the guy in a hot air balloon who gets lost in a fog off the coast of New England. The fog is so thick he can’t see anything at all. Finally the fog clears just enough that he spots a man standing on a spit of land. “Hey,” he shouts down. “Can you tell me where I am?” “Sure,” the man on the ground replies. “You’re in a hot air balloon off the coast of New England.” And with that the fog rolls back in and covers everything again. And we all know the man on the ground is a lawyer… because the answer is absolutely true… and totally useless.
  3. Louisiana in particular has a legal system partially based on French and Spanish codes, as opposed to English common law, and is usually called a Civil Law jurisdiction. See generally Henry Plauche Dart, The Sources of the Civil Code of Louisiana, Address Delivered to the Louisiana Bar Association, 2 June 1911, pamphlet (New Orleans : J.G. Hauser, 1911), reprint from the Louisiana Bar Association Report, 1911; digital images, Google Books (http://books.google.com : accessed 16 Jan 2012.)
  4. William MacDonald, editor, Select Charters and Other Documents Illustrative of American History 1606-1775 (New York : MacMillan, 1906), 149-150; digital images, Google Books (http://books.google.com : accessed 16 Jan 2012).
  5. Ibid., 166.
  6. Ibid., 168
  7. Aaron Leaming and Jacob Spicer, The Grants, Concessions and Original Constitutions of the Province of New Jersey, the Acts passed during the Proprietary Governments, 1758; reprint (Clark, N.J. : Lawbook Exchange, 2002); online, New Jersey Digital Law Library, Rutgers-The State University (http://njlegallib.rutgers.edu/statutes/LS.php : accessed 16 Jan 2012).
  8. Ibid.
  9. “Colonial Charters, Grants and Related Documents,” Yale Law School Avalon Project (http://avalon.law.yale.edu/subject_menus/statech.asp : accessed 16 Jan 2012).
  10. III Records of the Colony of Rhode Island and Providence Plantations in New England (Providence, 1856), Vol. I, pp. 111 – 115; reprinted online, Yale Law School Avalon Project (http://avalon.law.yale.edu/17th_century/ri04.asp : accessed 16 Jan 2012).
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6 Responses to Part 1: How old did folks have to be

  1. Pingback: What I Am Reading Right Now « The Ancestral Archaeologist

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  3. Jan Tennant says:

    How old did someone need to be in order to be a witness in a trial in Monmouth NJ in 1684/85?

    • Judy G. Russell says:

      The common law rule was that a witness in a trial had to be of the age of reason, and that could vary depending on the child. The child had to be shown to understand personally the difference between telling the truth and telling a lie and not much more. The whole notion that children couldn’t be trusted as witnesses really only began in the 18th century when Hale started writing about it. So the answer is: old enough to understand the oath to tell the truth — which doesn’t narrow it down much, I know.

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