The case of the Freeholder

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

Northwest Ordinance, 1787

All over early records — in court records, on jury lists, in land records and so much more — genealogists come across the term “freeholder”:

     • To be a grand juror in 1705 Virginia, you had to be a freeholder.1

     • To be a coroner in 1715 North Carolina, you had to be a freeholder.2

     • A Maryland freeholder in 1723 could pay a fine instead of being whipped or put in the stocks for cursing, swearing or drunkenness. 3

     • A freeholder in 1725 Pennsylvania couldn’t be arrested for debt.4

     • In 1764 New York, you had to be a freeholder to be chosen as a tax assessor in Orange County.5

     • In 1773 Georgia, only freeholders could serve on a jury to review the placement of dams and barriers that might impact neighboring landowners.6

     • In 1780, the Massachusetts Constitution expressly provided that you couldn’t vote for state senators unless you had a freehold valued at 60 pounds or more.7

     • You couldn’t be an official in the territorial government of the Northwest Territory of 1787 unless you were a freeholder. To be governor, you had to own 1000 acres; to be territorial secretary or a judge, 500 acres; to be a legislator, 250 acres. And you couldn’t vote for the legislator if you weren’t a freeholder with 50 acres.8

     • In 1880, the U.S. Supreme Court said it was perfectly okay to limit jury service “to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.”9

     • You couldn’t even be a school board member in Alabama in 1896 unless you were a freeholder.10

     • Even today, in Louisiana, when land is required for a railroad, canal, utility or similar use, only a freeholder can serve on the jury to set the amount that will have to be paid to the landowner whose property is taken for that use.11

     • Even today, in Florida, you have to be a freeholder to vote in special elections, such as those to issue local bonds for capital projects;12 create a new sewer or water district;13 or to create special neighborhood improvement districts.14

     • And, even today, in Texas, if folks want an election to decide “if horses, mules, jacks, jennets, donkeys, hogs, sheep, or goats are to be permitted to run at large in the county,” they need a petition signed by at least 50 freeholders.15

So…. what is — and what was — a freeholder?

Heh heh… The Legal Genealogist just loves it when the answer is that most wonderful — and annoying — of lawyerly answers: it depends.

The hitch is, the word’s meaning changes depending on the time and the place.

Historically, the term meant a person who possesses a freehold estate.16 Okay, then, what’s a freehold estate? It’s an ownership interest in real property with an uncertain duration.17 So it can include a life estate (“to my wife for her lifetime and then to my son John” because it’s uncertain how long the wife will live) and a fee simple estate (“to my son John” because it’s uncertain how long John will live or whether he’ll sell the land next week).

Because its term has to be uncertain, it doesn’t include any estate with a definite length (“to my wife during the minority of our son John” because it’s known when John will turn 21) and it doesn’t include any lease that expires in a specific time — not even those 99-year leases. And it doesn’t include anything less than an ownership interest — if you’re a serf on the land, you’re not a freeholder, and if the landowner can evict you at will — that’s a copyhold18 — you’re not a freeholder either.

That’s the usual and ordinary meaning of the word freeholder, and it’s the way you’ll see it in most old records. Sometimes the freehold has to be a certain size — as in the Northwest Territory — or of a certain value, as in the Massachusetts Constitution of 1780. But it always means some type of ownership interest in land of uncertain duration.

Except, of course, in New Jersey. Oh, the word was used in the ordinary land-ownership-uncertain-duration sense in New Jersey, all right, but the word came to mean something else as well. It all started with the New Jersey Constitution of 1776. In Article IV, it provided:

That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large.19

This was interpreted as meaning that only freeholders — those with clear estate, another term for freehold — could vote and only freeholders could hold office — and those elected became known as chosen freeholders.

Initially, the governance of the counties in New Jersey was handled by what was called a Board of Justices and Chosen Freeholders. But by 1798, there was more than enough work for the judges to deal with without bothering with tasks like setting tax rates, so the Legislature divided the functions. The task of running the counties on a day-to-day basis was put into the hands of the Boards of Chosen Freeholders.20

Those elected county officials continued to be called chosen freeholders through the statutory revision of 1846,21 the revision of 193722 and through to today’s N.J. Stat. 40:20-1. But the requirement that a Freeholder be a freeholder disappeared in the Constitution of 1844.23

So a lower-case freeholder was and is one who owns a freehold, but an upper-case Freeholder is an elected New Jersey county official, who doesn’t have to be a freeholder at all.


 
SOURCES

  1. An act concerning Juries, Laws of 1705, Chap. XXXII, 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: 367.
  2. “Coroners Appointed,” North Carolina Laws of 1715, chapter XI, § II, in Walter Clark, compiler, State Records of North Carolina, Vol. 23 (Goldsboro, N.C. : Book & Job, 1905), 14; online version, “Colonial and State Records of North Carolina,” Documenting the American South (http://docsouth.unc.edu/csr/ : accessed 30 Jul 2012), University of North Carolina, Chapel Hill.
  3. “An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers; and for repealing the Laws heretofore made for the Punishing such Offenders,” § 4, Archives of Maryland, Proceedings and Acts of the General Assembly, October 1720-1723, 34: 734; online version, Maryland State Archives (http://www.msa.md.gov/ : accessed 30 Jul 2012).
  4. Act of 29 March 1725, § 1, in Purdon’s Digest of the Laws of Pennsylvania, 10th ed. (Philadelphia : Kay & Brother, 1873), 1:48; digital images, Google Books (http://books.google.com : accessed 30 Jul 2012).
  5. Act of 20 October 1764 in The Colonial Laws of New York from the Year 1664 to the Revolution, 5 vols. (Albany : James B. Lyon, State Printer, 1894), 4: 826-827; digital images, Cornell University Library Historical Monographs Collection (http://ebooks.library.cornell.edu/c/cdl/ : accessed 30 Jul 2012).
  6. Act of 29 September 1773, § 2, in Robert & George Watkins, editors, A digest of the laws of the state of Georgia From its first establishment as a British province down to the year 1798, inclusive, and the principal acts of 1799 (Philadelphia : R. Aitken & Co., 1800), 182-184; digital images, Internet Archive (http://www.archive.org : accessed 30 Jul 2012).
  7. Massachusetts Constitution of 1780, Chapter I, section 2, article II; National Humanities Institute (http://www.nhinet.org : accessed 30 Jul 2012).
  8. An Ordinance for the Government of the Territory of the United States North-West of the River Ohio,” 13 July 1787, Documents from the Continental Congress and the Constitutional Convention, 1774-1789; digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/index.html : accessed 18 Jul 2012).
  9. Strauder v. West Virginia, 100 U.S. 303, 310 (1880) (emphasis added).
  10. Act of 9 December 1896, § 5, in Acts of the General Assembly of the state of Alabama Passed at the Session of 1896-97 (Montgomery : p.p., 1897), 372; digital images, Google Books (http://books.google.com : accessed 30 Jul 2012).
  11. Louisiana Civil Code, RS 9:3182, Louisiana State Legislature (http://www.legis.louisiana.gov : accessed 30 Jul 2012).
  12. Section 12, Article VII, Florida Constitution.
  13. Florida Statutes § 153.53.
  14. Florida Statutes § 163.511.
  15. Texas Agriculture Code, Title 6B, Chap. 143B, Texas State Legislature (http://www.statutes.legis.state.tx.us : accessed 30 Jul 2012).
  16. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 520, “freeholder.”
  17. Ibid., “freehold.”
  18. Ibid., 276, “copyhold.”
  19. Article IV, New Jersey Constitution, 1776, State of New Jersey (http://www.state.nj.us : accessed 30 Jul 2012).
  20. Act of 13 February 1798, in Laws of the State of New Jersey (Trenton : p.p., 1821), 317; digital images, Google Books (http://books.google.com : accessed 30 Jul 2012).
  21. Act of 16 April 1846 in Laws of the State of New Jersey (Trenton : p.p., 1846), 182; digital images, Google Books (http://books.google.com : accessed 30 Jul 2012).
  22. See R.S. 40:20-1 (1937).
  23. See New Jersey Constitution, 1844, New Jersey Archives (http://www.nj.gov/state/archives : accessed 30 Jul 2012).
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4 Responses to The case of the Freeholder

  1. Sharon Meeker says:

    I lived in New Jersey as a kid and listened to the local news on the county radio station with my parents every day. I remember wondering why the radio was always talking about “Board of Frozen Cheeseholders” and what exactly that was. My mother explained it to me, but then it became a long standing family joke.

  2. Love this post Judy. Thank you.

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