Mason of Texas

You never know what you’re going to find in a statute book.


MasonThe Legal Genealogist is the daughter, granddaughter, and great granddaughter of Texans, so it’s always fun to have time to poke around in old Texas records.

And I was poking around last night in a book of old Texas laws.

Really old Texas laws — those of the Republic of Texas.

Not because I was looking for anything in particular but just because it’s fun. You never know what you’re going to find.

Like the story of John T. Mason.

Right there, in the front of volume I of this two-volume set of Texas Republic laws, is the Constitution of the Republic of Texas.

Which contains this provision:

whereas the protection of the public domain from unjust and fraudulent claims, and quieting the people in the enjoyment of their lands, is one of the great duties of this convention; and whereas the legislature of Coahuila and Texas having passed an act in the year 1834, in behalf of general John T. Mason of New York, and another on the 14th day of March, 1835, under which the enormous amount of eleven hundred leagues of land has been claimed by sundry individuals, some of whom reside in foreign countries, and are not citizens of the republic, — … It is hereby declared that the said act of 1834, in favor of John T. Mason … and each and every grant founded thereon, is, and was from the beginning, null and void; and all surveys made under pretence of authority … are hereby declared to be null and void …1

Uh oh.

So… who was John T. Mason and what was wrong with his … um … land grab?

Turns out he was a native Virginian, son of Stevens Thompson Mason, a Continental Army officer and later United States Senator from Virginia.2

He was born in Loudon County, Virginia, in 1787, and was just 25 when he moved to Kentucky. There, he became United States marshal by appointment of President James Monroe. He was named as secretary of the Territory of Michigan and superintendent of Indian affairs in 1830 by President Andrew Jackson.3

And then came the land situation.

Mason resigned from his U.S. government jobs in 1831, and took a job as confidential agent for the Galveston Bay and Texas Land Company — a New York company. This was a major land speculation operation involving millions of acres of land, shares being sold to stockholders, and grants being promised to those who would migrate into Texas and take up residence there.4

And it was John Mason’s job to represent this company and see to it that everything went smoothly.

Except for one little hitch.

There was an 1830 Mexican law barring immigration to Texas from the United States. The New York company couldn’t deliver title to the people it was recruiting.5

Mason headed off to Mexico and secured extensions of the underlying land rights. By 1833, he’d managed to convince the Mexican government to repeat the law against American colonization. He then resigned from the land company, bought some 400 leagues of land — nearly two million acres — for himself, and was doing his own land office business: literally and figuratively.6

In the meantime, in reliance on the laws he’d secured, the New York land company had issued titles for more than 916 square leagues of land — nearly four million acres — by 1835.7

And then the house of cards came crashing down. Mason’s land ownership and all the grants dependent on it and on the laws he’d secured were expressly annulled by the Constitution, adopted 17 March 1836. His land business was pretty much destroyed.8

He didn’t turn his back on Texas, however. He stayed there and eventually supported the Texas revolutionary cause. And he paid the ultimate price for his Texas loyalty — he contracted cholera there and died in Galveston in 1850.9

Now think about that.

Here we have the story not just of one man, but of a company, its shareholders, the immigrants it brought to Texas, all their land grants and titles and the years of lawsuits that followed as people tried to settle who owned what.

And all from one small paragraph in one small section of a single document in a set of statute books.

You never know what you’re going to find in a statute book…


  1. §10, General Provisions, Constitution of the Republic of Texas, in Laws of the Republic of Texas, in two volumes (Houston : p.p., 1838), 1: 20-21; digital images, University of North Texas Libraries, The Portal to Texas History ( : accessed 15 July 2014).
  2. Wikipedia (, “Stevens Thomson Mason (Virginia),” rev. 16 Mar 2014.
  3. Robert Bruce Blake, “Mason, John Thomson,” Handbook of Texas Online, Texas State Historical Association ( : accessed 15 July 2014).
  4. Andreas Reichstein, “Galveston Bay and Texas Land Company,” Handbook of Texas Online, Texas State Historical Association ( : accessed 15 July 2014).
  5. Ibid.
  6. Blake, “Mason, John Thomson,” Handbook of Texas Online.
  7. Reichstein, “Galveston Bay and Texas Land Company,” Handbook of Texas Online.
  8. Blake, “Mason, John Thomson,” Handbook of Texas Online.
  9. Ibid.
Posted in Constitutions, Primary Law, Statutes | 2 Comments

Civil law meanings

You can see it, right there.

It’s the very last section of the law.

LACC3549And there, Louisiana’s law says, “When the substantive law of this state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies.”1

Sure it does.


Okay… what the #$%@$# does that mean?

Oy, for the woes of a common law-trained genealogist2 in a civil law world.

For Louisiana, bastion of civil code jurisprudence in the United States, talks funny. Using words that just aren’t used, that way or at all, anywhere else.

As explained by Claire Mire Bettag CG, “Unlike common law, which is rooted in ancient English law, civil law derives from Roman law. It is usually written as a code and then adopted legislatively as a comprehensive body of law.”3 Which means it uses words that are drawn from Latin, and not the kind of legal Latin you’ll find in common law jurisdictions.

Words like peremption. That’s not a misspelling. Really.

And prescription. Which doesn’t mean what you might think.

These terms are flip sides of a coin in civil law jurisdictions — not just Louisiana, but places like Puerto Rico and Quebec and, oh, most of the world.

Prescription is “a mode of barring actions as a result of inaction for a period of time.”4 The common law equivalent: statute of limitations, defined by Black as a “statute prescribing limitations to the right of action on certain described causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right accrued.”5

Peremption is a “period of time fixed by law for the existence of a right. Unlike … prescription, which merely prevents the enforcement of a right by an action, peremption destroys the right itself. Also, unlike prescription, peremption may not be renounced, interrupted, or suspended.”6 And this concept doesn’t have an exact common law equivalent.

So the statute means that whenever Louisiana law applies to a case in Louisiana’s courts (rather than the law of some other state, which could happen if, say, a Texas resident sued in Louisiana because of a car accident caused in Texas by the Louisiana defendant), then Louisiana’s laws about how long you can wait before you sue — and whether you can sue at all at this time — apply too.

The language of the law.

Which changes if you happen to cross the border into a civil code jurisdiction.


  1. Louisiana Civil Code §3549(A), Louisiana State Legislature ( : accessed 14 July 2014).
  2. Or lawyer!
  3. Claire Mire Betagg, “Civil Law Concepts and Genealogy: Learning from the French Model,” National Genealogical Society Quarterly 95 (September 2007): 179-196.
  4. N. Stephan Kinsella, “A Civil Law to Common Law Dictionary, 54 Louisiana Law Review 1265, 1280 (May 1994); PDF version, Digital Commons @ LSU Law Center ( : accessed 14 July 2014).
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1122, “statute of limitations.”
  6. Kinsella, “A Civil Law to Common Law Dictionary, 54 Louisiana Law Review at 1285.
Posted in Legal definitions, Statutes | Leave a comment

Next in an occasional series on copyrights for genealogists.

Reader Lee was confused about his right to use images of articles and other contents of newspapers from his state that he was accessing through microfilmed copies at his local library.

Microfilm_readerHe explained that the state’s library and archives tried to microfilm all of the state’s newspapers in the 1960s and 1970s, and that the “reels indicate that the state filmed them and lists the date, but … do not contain a copyright notice.”

Today, the films are “at local libraries around the state and are used regularly for historical research.”

So, he asked:

• “Does the state library and archives own a copyright on these microfilmed copies of the newspaper?”

• “Which date counts for copyright? The date the paper was published or the date the state microfilmed it?”

Good questions.

With relatively easy answers.

No, the state library and archives doesn’t have a copyright on the microfilmed copies. In fact, a microfilmer isn’t ever going to qualify for a copyright under American law in anything the microfilmer didn’t add to the originals it was copying.

The concept here is a fundamental one of American copyright law: you can only get a copyright on material that is original. The statute couldn’t be clearer: “Copyright protection subsists, in accordance with this title, in original works of authorship…”1

Now what exactly has to be shown for something to be considered original has been a hot topic for the courts to decide. But two court decisions have pretty well answered the question.

First, the U.S. Supreme Court decided a case involving a telephone directory that had been produced by a local telephone company and then copied by another company that specialized in publishing regional phone books. And there, in Feist Publications, Inc. v. Rural Telephone Service Co., the Court said:

The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. … Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. …

Originality is a constitutional requirement.2

The Feist Court went on to explain that it didn’t matter how much effort a company put into compiling its information — how much “sweat of the brow” work it did. If it wasn’t original, it wasn’t copyrightable.

Now some people tried to argue that the Feist case only applied to factual compilations, since that was the type of publication involved there. But some years later, a federal trial court in New York decided a case involving artistic works and came to the same conclusion.

In Bridgeman Art Library v. Corel Corp., the issue involved photographs of art works from European museums. All of the art works themselves were out of copyright, but the company that produced the photographs claimed a copyright in the photos. The court rejected the claim:

In this case, plaintiff by its own admission has labored to create “slavish copies” of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality — indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.3

What counts, then, for copyright purposes is not the microfilming — that’s the same sort of slavish copying that simply doesn’t qualify for copyright protection. What counts is whether the original is still under copyright protection. So the answer to the second question is, the copyright is measured from the original publication of the newspaper, not the date on which it was microfilmed.

Since Lee was using only newspapers published before 1923 — and since everything published in the United States before 1923 is now out of copyright and in the public domain4 — he has nothing to worry about.

So… does that mean there are never restrictions on our ability to use microfilm?

No, because there are circumstances where the content is protected one way or another:

• The microfilm may be a licensed copy of material that is still copyright-protected. An example would be a microfilm of a newspaper published in 1990. (Copyright for a work of corporate authorship of this type is 95 years from the date of publication.5)

• The microfilm might be of an unpublished manuscript of an author who died less than 70 years ago. (Copyright for an unpublished work is the life of the author plus 70 years.6)

• The microfilm might be of an unpublished manuscript created by an author in 1900 but whose death date is unknown. (Copyright lasts for 120 years from the date of creation in that case.7)

• The microfilm might be made available only under specific terms and conditions — imposing contract law, not copyright law8 — that we have to abide by.

But as to the typical newspaper microfilm… a copy of an original has only the same protection as the original, and if it’s out of copyright, it’s out of copyright. Period.


Image: University of Haifa Library, Wikimedia Commons

  1. “Subject matter of copyright: In general,” 17 U.S.C. §102(a).
  2. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345-346 (1991).
  3. Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, 197 (S.D.N.Y. 1999).
  4. See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center ( : accessed 13 July 2014).
  5. See ibid.
  6. See ibid.
  7. See ibid.
  8. See generally Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 ( : accessed 13 July 2014).
Posted in Copyright | 11 Comments

Promethease: a place to start

It is and has always been a common question among people thinking about DNA testing, and it’s one that’s perplexing reader Madge Gunia.

“Where should I go for info on health and family members?” she asks. “I am an adoptee who would like to know who I am, but also, I would like to know genetic health issues.”

And, now that 23andMe has its health-related reporting on hiatus, courtesy of the FDA’s 2013 cease and desist order,1 it’s one that doesn’t have an easy answer.

PrometheaseIt’s not impossible.

But it sure is hard.

Because one option we do have now to get some basic health information without spending thousands of dollars for a medical geneticist is to use a web-based program called Promethease.

And that takes some work, both in terms of just getting everything done and — more importantly — in terms of understanding the results.

What Promethease does is compare your raw autosomal DNA test data — and you can use your raw data from any of the three major test companies (Family Tree DNA, 23andMe and AncestryDNA) — to information collected from peer-reviewed scientific journals at SNPedia to “create a personal report linking your DNA variations to the information published about them.” It’ll cost you a whopping $5.00 to get a report.

Among the specific DNA markers (called SNPs, or single nucleotide polymorphisms2) it looks at are ones now believed to raise the risk of Alzheimer’s disease, influence baldness, determine sensitivity to anesthetics, trigger obesity and type-2 diabetes, impact the risk of coronary heart disease, or result in lactose intolerance.

You’ll get the most complete results if you use test data from 23andMe, because the computer chip used by 23andMe is optimized to report on health-related matters. You’ll get many fewer results using data from Family Tree DNA or AncestryDNA where SNPs known to be medically significant are not included.

You will need to download your raw data from your testing company and then upload it to Promethease. Once it’s uploaded, you’ll be asked to pay for the report (you can pay by credit card or by Amazon Payments) and you’ll then get a status report telling you how long you might have to wait.

My status report said it would take 20 minutes total, including wait time. In fact, it took about 11 minutes, three minutes in a wait queue and then eight minutes to run the report on my 23andMe raw data.

And that’s where I hit the wall.

At 23andMe, where I was tested before the FDA ordered it to stop providing health-related information, I get a nice neat pretty chart telling me where I am at increased risk (coronary heart disease, type 2 diabetes, psoriasis, and breast cancer at the top of the list) and where I am at decreased risk (gout, Alzheimer’s disease and restless legs syndrome at the top of that list).

At Promethease, the results aren’t nearly so simple to understand. I have a whole slew of results, starting with a SNP that provides “an apparent resistance to several diseases such as invasive pneumococcal disease, bacteremia, malaria, and tuberculosis” on the good side, followed by one that poses “an increased breast cancer, type-2 diabetes, and aggressive prostate cancer risk” on the bad side.

Those are the results that come up first when I clicked on the report link that appeared when the testing was finished, but I have a ton of options to choose from — do I want to look at SNPs or Genosets? Do I want to see results that are good or the ones that are bad? Do I want to see a graph? A table?

It’s almost overwhelming. So if you decide to go this route, using all the help that’s available is the only way to go.

Start with watching the video linked on the opening page (you can find it here on YouTube). It will walk you through the process of running the report and then reading it so it makes sense. Read up on Promethease, including:

• The help page on how to read a Promethease report.

• “You Can Transform Your Genetic Ancestry Data Into Health Info, But Your Results May Vary,” by Dr. Barry Starr of Stanford University at KQED Science.3

• “Promethease – Genetic Health Information Alternative,” by Roberta Estes of DNAeXplained.4

• “My 23andMe Results: Getting a (Free) Second Opinion,” by cdwScience of the My Biomedical Informatics Blog.5

And you might want to join the Promethease Users Group on Facebook.

And understand that before you do anything else, you’re going to have to sign off on a set of disclaimers:

Before you may use Promethease to retrieve information about the human genome, you must read and agree to the following statements. Please read each statement and check the box next to each one and then click ‘I Agree’.

• I understand that the information provided in my Promethease report is based on and that my report is for educational and research purposes only.

• I realize that most published reports about DNA variations explain only a small part of the heritability of a trait, and they also don’t take into account how different variants might interact. In addition, published reports typically ignore environmental, dietary, microbial, medical history and lifestyle factors, any or all of which may well affect my true risk for any trait or disease.

• I am aware that I am strongly encouraged to discuss my Promethease report with a doctor, genetic counselor or other health-care provider prior to making any medical or reproductive decisions. I also acknowledge that I am advised to confirm any significant finding discovered in part through the use of Promethease by an independent, clinically validated test for use in connection with the medical trait in question.

• I have read and understand the Privacy Policy and the Legal Terms and Conditions of this website. I agree to these conditions.6

The privacy policy, basically, is that your raw data is deleted after 24 hours and your report after 45 days. The terms and conditions link takes you to the page for the SNPedia wiki, and has a lot of language that applies to the wiki, not to your Promethease report. But the bottom line:

Visitor will assume all risk for using SNPedia and Promethease, including but not limited to, unsupported or unreplicated research or medical data and information, the possibility of reading vulgar or adult material (unlikely), the possibility of being harassed by other visitors (unlikely), the possibility of downloading a computer virus (unlikely), and/or any other foreseen or unforeseen possibility.7

In other words, no promises here… but then there aren’t any at 23andMe either… and hey… it’s only $5.00. And it’s a place to start.


  1. See Judy G. Russell, “23andMe suspends health tests,” The Legal Genealogist, posted 6 Dec 2013 ( : accessed 12 July 2014).
  2. ISOGG Wiki (, “Single-nucleotide polymorphism,” rev. 10 Mar 2014.
  3. Dr. Barry Starr, “You Can Transform Your Genetic Ancestry Data Into Health Info, But Your Results May Vary,” KQED Science, posted 30 June 2014 ( : accessed 12 July 2014).
  4. Roberta Estes, “Promethease – Genetic Health Information Alternative,” DNAeXplained, posted 30 December 2013 ( : accessed 12 July 2014).
  5. cdwScience, “My 23andMe Results: Getting a (Free) Second Opinion,” posted 27 February 2011, My Biomedical Informatics Blog ( : accessed 12 July 2014).
  6. Promethease, ( : accessed 12 July 2014).
  7. Terms of Use,” ( : accessed 12 July 2014).
Posted in DNA | 8 Comments

Like grandfather, like grandson?

The apple, it is said, doesn’t fall far from the tree.

As a saying, it’s used to indicate that traits we see in the younger folks can often be traced back to the older folks of their family.

If little Johnny is a bit of a hellraiser, well, just look at his Dad when he was a boy. If Susie is a bit of a flirt, well, just remember what her mama was like as a girl.


BertGilbert Fleetwood Cottrell was born on the 10th of October 1892 in Iowa Park, Wichita County, Texas.1 He was the eighth known child of Martin Gilbert and Martha (Johnson) Cottrell — and The Legal Genealogist‘s great uncle, older brother to my grandfather Clay Rex Cottrell.2

His first appearance in the records is as a seven-year-old in the 1900 census there in Iowa Park, though I’m sure he would have been dismayed to know he’d been recorded as a little girl named Birdie rather than a little boy called Bertie.3 After his parents separated, he lived with his mother and siblings in Tillman County, Oklahoma.4

And in 1913, he joined the Army.5 He spent time in the Quartermaster Corps at Fort Yellowstone, Wyoming,6 before being ordered to the Philippines:

The following named enlisted men of the Quartermaster Corps will be sent to Fort McDowell, Cal., in time to report to the commanding officer and be sent on the transport scheduled to leave September 5, 1914, to Manila for assignment to duty in the Philippine Department in the capacity indicated: …
Private First Class Gilbert F. Cottrell, Fort Yellowstone, Wyo., as packer.7

He was still in the Army in 1920 when he was enumerated at Camp Zachary Taylor, Kentucky, as 27-year-old Gilbert F. “Cotterall”, a sergeant in the United States Army, born TX.8 The camp was a military training camp that opened in 1917 to train soldiers for U.S. involvement in World War I. It was closed three years later.

And he was still in the Army when he married a Kentucky girl, Myrtie Hart, in Clark County, Indiana, on the 15th of May 1920.9 That relationship quickly soured, Bert left the Army and went back to Texas, and in 1922, he took out a marriage license in Victoria County, Texas, to marry a German girl, Hertha Musch.10

He and Hertha spent their entire lives in the Houston area. You can find them there on the 1930 census11 and the 1940 census.12 Bert died there 44 years ago today, on 12 July 197013 and Hertha in 1990.14 They’re buried there, in the Earthman Resthaven Cemetery.15

There’s just one hitch.

There’s not a shred of evidence that Bert ever divorced Myrtie.

And, in fact, there’s a wonderful family story that Bert rid himself of this unwanted spouse by simply putting her on a train back to her family with instructions never to darken his doorstep again. And, the story goes on, many years later there was a flap with the Social Security Administration when two women tried to collect benefits as Bert’s widow…16

So what does this have to do with apples and trees?

Well, I’m putting together this talk for the Federation of Genealogical Societies Conference in San Antonio, coming up in August. The title is That Scoundrel George. It’s about Bert’s grandfather, my second great grandfather, George Washington Cottrell. The one who qualifies me for membership in the Daughters of the Republic of Texas.

See, all I need to do to join the Daughters of the Republic of Texas is prove that I descend from someone “male or female, regardless of age, who established residence in Texas prior to the nineteenth day of February, eighteen hundred forty-six (19 February 1846).”17

And I can sure prove George was a resident of the Republic of Texas.

I can prove he was indicted by the Republic of Texas.

For bigamy.18

I love my family.


  1. See Draft Registration Card, Gilbert Fleetwood Cottrell, no. U2688 (stamped), Local Board No. 10, Houston, Harris County, Texas; Selective Service Registration Cards, World War II: Fourth Registration (Texas); Records of the Selective Service System, Record Group Number 147; National Archives, St. Louis; St. Louis, Missouri; digital images, “World War II Draft Registration Cards, 1942,” ( : accessed 11 July 2014).
  2. See 1900 U.S. census, Wichita County, Texas, Justice Precinct 6, population schedule, enumeration district (ED) 127, p. 238(A) (stamped), dwelling 86, family 86, “Birdie” Cottrell; digital image, ( : accessed 4 Feb 2012); citing National Archive microfilm publication T623, roll 1679.
  3. Ibid.
  4. 1910 U.S. census, Tillman County, Oklahoma, Frederick Ward 1, enumeration district (ED) 248, p. 41(A) (stamped), sheet 4(A), dwelling 71, family 74, Bert Cottrell; digital image, ( : accessed 29 Sep 2012); citing National Archive microfilm publication T624, roll 1275.
  5. Entry for Gilbert Cottrell, “Department of Veterans Affairs BIRLS Death File, 1850-2010,” database and index, ( : accessed 11 July 2014).
  6. See “Washington Army Orders,” Galveston (Texas) Daily News, page 4, col. 3 (“Privates Gilbert F. Cottrell and Charles M. Tellman, quartermaster corps, now in confinement at Fort Yellowstone, Wyo., are assigned to that post”).
  7. U.S. War Department, Special Order 198, 22 August 1914, in Special Orders, 1914, vol. 2 (Washington, D.C. : War Department, 1914); digital images, Internet Archive ( : accessed 11 July 2014).
  8. 1920 U.S. census, Jefferson County, Kentucky, Camp Zachary Taylor, population schedule, enumeration district (ED) 18, p. 268(B) (stamped), dwelling B79, family 159, Gilbert F “Cotterall”; digital image, ( : accessed 15 Oct 2011); citing National Archive microfilm publication T625, roll 577.
  9. Clark County, Indiana, Marriage License and Return, Marriage Book 50: 482, Gilbert F. Cottrell and Myrtie Hart, 15 May 1920; digital images, “Indiana, Marriages, 1811-1959,” FamilySearch ( : accessed 11 July 2014).
  10. “Licensed to Wed,” Victoria (Texas) Advocate, 9 June 1922, page 2, col. 3.
  11. 1930 U.S. census, Harris County, Texas, Houston, population schedule, enumeration district (ED) 142, p. 158(B) (stamped), sheet 18(B), dwelling 248, family 249, Gilbert F. and Hertha Cottrell; digital image, ( : accessed 11 July 2014); citing National Archive microfilm publication T626, roll 2351.
  12. 1940 U.S. census, Harris County, Texas, Houston, population schedule, enumeration district (ED) 258-34, sheet 6B, household 138, Gilbert and Hertha Cottrell; digital image, ( : accessed 11 July 2014); citing National Archive microfilm publication T627, roll 4191.
  13. Texas Department of Health, Death Certif. No. 49224, Gilbert F. Cottrell (1970); Bureau of Vital Statistics, Austin.
  14. Social Security Death Index, entry for Hertha Cottrell, Houston, Texas, 1990; database and index, ( : accessed 11 July 2014).
  15. Earthman Resthaven Cemetery, Harris County, Texas, Gilbert F. Cottrell marker; digital image, Find A Grave ( : accessed 11 July 2014). See also ibid., Hertha Gertrude Elizabeth Musch memorial # 86911056.
  16. Email, C.C. Barrett to J.G. Russell, 29 Sep 2002.
  17. Membership eligibility,” Daughters of the Republic of Texas ( : accessed 11 July 2014).
  18. Colorado County, Texas, District Court Minute Book AB: 185 (1843); FHL microfilm 1927723.
Posted in My family | 15 Comments

Precursor to the Magistrate

On the fifth day of June, 1891, J.D. Shaw appeared in front of a judicial officer in the Western District of Arkansas and swore out a complaint.

Comm“I do solemnly swear and believe from reliable information in my possession,” he said, “that Chas Lea a white man did, in the Choctaw Nation, Indian County, … on or about the 2nd day of June 1891, feloniously steal, take and carry away from the lawful possession of W A Ledford one horse of the value of one hundred DOLLARS, against the peace and dignity of the United States…”1

As a result of the complaint, an arrest warrant — a writ of capias2 — was issued for Lea.

And the man who took the complaint and issued the arrest warrant was one James Brizzolara, born in Virginia and appointed, in Arkansas, as a United States Commissioner for the Fort Smith Division.3

So what the heck was a United States Commissioner? Black’s Law Dictionary explains that the United States Commissioners were:

Officers appointed by and attached to the circuit courts of the United States, performing functions partly ministerial and partly judicial. To a certain extent they represent the judge in his absence. In the examination of persons arrested for violations of the laws of the United States they have the powers of committing magistrates. They also take bail, recognizances, affidavits, etc., and hear preliminary proceedings for foreign extradition.4

The history of the job goes back to the early days of the Republic. In the Judiciary Act of 1793, the circuit courts and the district courts of Maine and Kentucky were allowed to appoint “discreet persons learned in the law” to take bail in federal criminal cases.5

That authority was expanded in 1812 to allow the circuit courts to appoint “such and so many discreet persons, in different parts of the district, as the court shall deem necessary, to take acknowledgments of bail and affidavits.”6

It wasn’t until 1817 that the folks so appointed were first called Commissioners by the law. In a statute passed that year, the term was used and the commissioners’ authority was expanded again to include the taking of depositions for later use at a civil trial.7

Over the years, more and more authority was given to commissioners, to act particularly in the enforcement of specific laws, such as:

• the Fugitive Slave Act of 1850;8

• the Civil Rights Act of 1866;9 and

• the Chinese Exclusion Act of 1888.10

In 1896, Congress abolished the old commissioner system and created a new official position of United States Commissioner, with the appointments to the post made by the district courts, not the circuit courts.11 Fees to be charged by these Commissioners for the work done were set by law.12

So these officers were known as United States Commissioners, and you’ll see them referenced that way, in most of the older judicial records right up until 1968.

That’s when Congress completed overhauled the system:

In the mid-1960s members of the congressional judiciary committees and judges on the Judicial Conference of the United States recognized the need for revisions to the commissioner system. Commissioners were still paid by a fee system, the appointment process varied from court to court, and there were no uniform criteria for selection. Members of Congress and federal judges also wanted to relieve the congestion of the federal court dockets by expanding the judicial responsibilities of the commissioners.13

The result was the passage of the Federal Magistrates Act of 1968, changing the name and greatly expanding the role of these federal officers.14 Other statutes have added to the magistrates’ duties, and the Judicial Improvements Act of 1990 changed their official title to United States Magistrate Judge.15

So when Commissioner James Brizzolara acted in 1891, he was acting under the authority of the Circuit Court. And he had a solid background to hold the job. He’d been the city attorney and the mayor of Fort Smith. A Union veteran of the Civil War, he’d served as chief assistant United States Attorney for the Western District of Arkansas until he resigned in 1878 to take the appointment as United States Commissioner. And he held that title until Congress abolished the job.16

And what happened to Lea?

He was promptly arrested, pleaded guilty to the charge and was bound by Commissioner Brizzolara over to the jail to await further action.17

And further the file sayeth not.


  1. Complaint, U.S. District Court for the Western District of Arkansas, U.S. v. Charles Lea, Jacket 0257, Defendant Jacket Files for U.S. District Court Western Division of Arkansas, Fort Smith Division, 1866 – 1900, Record Group 21, National Archives, Fort Worth; digital images, “Fort Smith, Arkansas, Criminal Case Files, 1866-1900,” ( : accessed 10 July 2014).
  2. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 168, “capias.”
  3. See U.S. Department of the Interior, Official Register of the United States: Containing a List of Officers and Employees in the Civil, Military, and Naval Service, on the First of July, 1891, Vol. 1 (Washington D.C. : U.S. Government Printing Office, 1892), 946; digital images, Google Books ( : accessed 10 July 2014).
  4. Black, A Dictionary of Law, 229, “commissioners of circuit courts.”
  5. § 4, 1 Stat. 333 (2 Mar 1793).
  6. 2 Stat. 679, § 1 (20 Feb 1812).
  7. 3 Stat. 350 (1 Mar 1817), incorporating 1 Stat. 73, § 30 (24 Sep 1789).
  8. 9 Stat. 462 (1850).
  9. 14 Stat. 27 (1866).
  10. 25 Stat. 504 (1888).
  11. § 19, 29 Stat. 140, 184 (1896).
  12. Ibid., § 21.
  13. Federal Judicial Center, “History of the Federal Judiciary: Magistrate Judgeships” ( : accessed 10 July 2014).
  14. 82 Stat. 1107 (1968), codified at 28 U.S.C. § 636.
  15. 104 Stat. 5089 (1990).
  16. Glenn Shirley, Law West Of Fort Smith: A History Of Frontier Justice In The Indian Territory, 1834-1896 (New York: Holt & Co., 1957), 34; digital images, Internet Archive ( : accessed 10 July 2014).
  17. Final mittimus, 8 June 1891, U.S. District Court for the Western District of Arkansas, U.S. v. Charles Lea, Jacket 0257, Defendant Jacket Files for U.S. District Court Western Division of Arkansas, Fort Smith Division, 1866 – 1900, Record Group 21, National Archives, Fort Worth; digital images, “Fort Smith, Arkansas, Criminal Case Files, 1866-1900,” ( : accessed 10 July 2014).
Posted in Legal definitions, Statutes | 6 Comments

Questions to ask

So The Legal Genealogist was out in St. Louis yesterday for the Midwestern African-American Genealogy Institute.

It was the second annual institute, and my time first there… and it was a joy.

MAAGI2What a great group of people — instructors, students, all first-rate. Active minds and willing hearts make for an unbeatable combination, especially when folks have helping hands reaching out for each other … and for their family’s truth.

The Institute offers four tracks: Fundamental Methods & Strategies for African American Research, coordinated by Shelley Murphy; Technology and Social Media, coordinated by Bernice Bennett; Pre & Post Emancipation Records, coordinated by Janis Minor Forté; and Genealogy as a Profession, coordinated by Angela Y. Walton-Raji. Instructors included folks like Thomas MacEntee of Illinois, Nicka Smith of California, and yours truly.

(You’ll see some of us in this photo: (L-R) Nicka Smith, me, Bernice Bennett, Shelley Murphy, and Thomas MacEntee.)

I was honored to be chosen to lead two sessions: one on public records and the law; and the other on slavery and the law. And there are two key lessons I hope the students took away from those sessions.

1. Always ask why.

When we come across that record, and we’re trying to figure it out, we need to always ask why it was created. In so many cases, the reason it was created was because of the law.

Case in point: in 1827, Martha Prater executed a bond in Gallatin County, Illinois. She did so, she said, to be faithful to the will of her late husband who had directed that all of his slaves be freed at the time of his death. So, she said:

I Martha Prater of the County of Gallatin and State of Illinois am held and firmly bound … in the penal sum of Twenty Three thousand Dollars… The condition … is that … Martha Prater has this day emancipated and set at liberty … negro or mulatto slaves… Now if none of the … slaves shall become hereafter a charge on the said County of Gallatin or on any other County in this State to which they may hereafter go & settle, then the above bond to be void, otherwise to be and remain in full force and virtue.1

The bond is a wonderful document for African American research because it lists, by name and age, each of the 23 slaves she had freed, and their relationships to each other. Now you might expect to find that information in the deed emancipating the slaves. But in a bond?

Why was the bond even executed?

It was because of the law. Northern states weren’t friendly to slave emancipations. There was a fear of freedmen becoming public charges or, worse, turning to vagrancy or crime.

So by 1819 Illinois had passed a law. Anyone who brought slaves into Illinois and emancipated them there “shall give a bond to the county commissioners of the county where such slave or slaves are emancipating, in the penalty of one thousand dollars, conditioned that such person so emancipated by him, shall not become a charge on any county in this state…”2

2. Always ask what.

The flip side of the coin is when we find the law — something we come across in a statute book or in our reading. We need to ask ourselves what records might have been created because of that law.

Case in point: New Jersey in 1804 was the very last of the Northern states to abolish slavery. It didn’t free the slaves of the Garden State all at once but, instead, through a gradual process. It provided that any child born to slaves after 4 July 1804 would be free but would remain the servant of the mother’s owner until age 25 if male and age 21 if female.3

Which raises the obvious question: how was anyone to know when one of these free children reached the age to be free of service?

The law answered that question: it required that the person to whom the child would owe service had to register the child’s birth. And that, of course, means records. Those lovely amazing birth certificates now so carefully preserved by, and some of which are available in digital format from, the New Jersey State Archives.4

If you have the record, ask why it was created. If you have the law, ask what records would have been created because of it.

Lessons from the road.


  1. Gallatin County, Illinois, Slave Register 1: 72-75, Prater bond (1827); Illinois State Archives, Springfield; FHL microfilm.
  2. “An Act Respecting Free Negros,” in Laws … of the State of Illinois … 1819 (Kaskaskia: p.p., 1819), 354-355; digital images, Google Books ( : accessed 9 July 2014).
  3. “An Act for the gradual Abolition of Slavery,” in The Public Laws of the State of New-Jersey: Since the Revision … in 1800 (Trenton : p.p., 1805), 27; digital images, Google Books ( : accessed 9 July 2014).
  4. See Judy G. Russell, “Born free,” The Legal Genealogist, posted 21 May 2014 ( : accessed 9 July 2014).
Posted in General, Methodology | 8 Comments

The prothonotary

The story is told of President Harry Truman being introduced to a prothonotary in Pittsburgh, Pennsylvania, and, in typical Trumanesque fashion, asking the question.

“What the hell is a prothonotary?”1

Old Wooden Fence At Green FieldA somewhat less elegant form of the question by reader Sam Jones, who was told that certain records he wants to see in Luzerne County, Pennsylvania, are held by the Prothonotary there.

Sam could have found the answer he needed on Wikipedia, which says that the “word prothonotary is recorded in English since 1447, as ‘principal clerk of a court,’ from L.L. prothonotarius (c. 400), from Greek protonotarios ‘first scribe,’ originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek protos ‘first’ + Latin notarius (‘notary’); the -h- appeared in Medieval Latin. The title was awarded to certain high-ranking notaries.”2

Or he could have found it at the website of the Pennsylvania State Archives, with some of the history of the term:

The prothonotary or chief notary is the officer responsible for maintaining the records of the civil division of the court of common pleas in each judicial district. These records relate to civil proceedings, divorce, equity and also include various types of reports filed by the county, municipal governments and school districts.

The 1682 Frame of Government made provision for the erection of county courts. … In 1707, Governor John Evans’ ordinance established two separate courts in each county – quarter sessions and oyer and terminer to hear criminal cases and deal with administrative matters, and common pleas to hear civil and equity cases. The term “prothonotary” appeared for the first time in this ordinance, and it was ordered that all writs and processes of the court of common pleas were to issue out of his office under the county seal and all returns were to be made to that office. A number of early laws defined the officer’s duties and responsibilities. Numerous laws were passed during the provincial period and in the eighteenth, nineteenth and twentieth centuries which continued this basic judicial structure on the county level with occasional jurisdictional changes. …

Before the 1701 Charter of Privileges, there was no clear indication how the clerk of each county court was chosen or his length of service. That document provided that each county’s justices nominate three people, one of whom would be selected by the governor to be “clerk of the peace.” This person also served as prothonotary when that office was established. The 1790 Constitution vested that power in the governor alone. It was not until the Constitution of 1838 that the office became elective with the individual serving a three year term, The Constitution of 1873 continued that practice, but a 1909 amendment increased the term to four years. …3

He could have found a basic definition in the law dictionaries: Black and Bouvier both define it as “The title given to an officer who officiates as principal clerk of some courts.”4

He could even have found a good explanation on the Luzerne County website, along with the Harry Truman story:

If you don’t know what the word “prothonotary” means, you are not alone. Apparently, United States President Harry S. Truman had the same question. A story has been often told that, in 1948, President Truman was introduced to a prothonotary in Pittsburgh and did not know what the term meant. Nearly 60 years later, the question still arises – what is a prothonotary?

The prothonotary is the Chief Clerk of the Civil Court. The word is of Greek origin, and it means “First Clerk.” The prothonotary’s office of Luzerne County is responsible for filing, storing, and distributing official civil documents. The prothonotary’s office also issues passports and maintains naturalization records. Pennsylvania is one of the few states in the United States which still uses the term “prothonotary” to describe its clerk of civil records.5

But we can all be glad he didn’t look at any of those places. Because then we wouldn’t have gone and read on.

“Few” states? Oh, yes, Luzerne County. “Few” states, for sure. As in two, to The Legal Genealogist‘s knowledge, Delaware being the other.

Where one of the official, set-in-stone-in-the-statute-books functions of the Prothonotary is to “issue a warrant, under his or her hand and official seal, to each of the fence viewers of the Prothonotary’s county, and notify the public of their appointment by as many advertisements, signed by the Prothonotary and posted in each hundred, as there are viewers therein.”6

Um… fence viewers?

Well, yes. Delaware law, see, provides that “The Superior Court shall annually appoint not more than 8 nor less than 5 persons in each hundred to be fence-viewers. The fence-viewers shall be the sole judges of the sufficiency of any fences, of the charges of making or repairing partition or other fences, and how borne, and of damages by animals trespassing.”7

Now a hundred is “a geographic division, smaller than counties and roughly equivalent to the division ‘townships’ in Pennsylvania and New Jersey. Delaware is the only state which currently uses this division.”8

So every year in all 33 of Delaware’s hundreds, between five and eight people are chosen to go out and look at fences. For which task they are paid the princely sum of eight dollars a day (except for the chair of each hundred, who gets a whopping nine dollars) and seven cents a mile for travel.9

And that’s been the law in Delaware since at least 1852.

Which means, of course, there should be records…

Genealogy and the law. You gotta love it.


  1. Law Firm of Peacock Keller, “What’s a Prothonotary?,” Peacock Tales, posted July 2005 ( : accessed 7 July 2014).
  2. Wikipedia (, “Prothonotary,” rev. 30 Dec 2013.
  3. County Office Descriptions: Prothonotary,” Pennsylvania State Archives ( : accessed 7 July 2014).
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 958, “prothonotary.” And see 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 ( : accessed 7 July 2014), “prothonotary.”
  5. History of Prothonotary,” Luzerne County, Pennsylvania ( : accessed 7 July 2014).
  6. Delaware Code §2322.
  7. Delaware Code §1303(a).
  8. Hundreds in Delaware,” Delaware History, Research Guide, University of Delaware Library ( : accessed 7 July 2014).
  9. Delaware Code §1303(d).
Posted in Legal definitions, Statutes | 7 Comments

Updating GenForum now

There are an awful lot of reasons why genealogists should love Greg Boyd.

Start with the fact that his Arphax Publishing Company has some of the most useful map books on the planet — the Family Maps series of Land Patent Books and the Texas Land Survey Maps series — county by county, state by state, maps showing original settlers whose purchases are indexed either in the U.S. Bureau of Land Management database or the Texas General Land Office database.

GenForumGo on to his groundbreaking website, where the records underlying those maps are accessible through a single interactive map where you can look for, say, every Zinkelschmidt in the areas covered by the database all at once. Or where there is another searchable database of more than 100,000 landowners shown on a collection of nearly 4,000 historical maps.

Those by themselves would endear him to The Legal Genealogist. Not to mention the fact that he’s also in that not-terribly-large corner of the genealogical community where researchers also have law degrees.1

And then there was Greg’s comment yesterday on Facebook.

“Hey genealogy buddies,” he wrote, “here’s an idea that some of you should consider. September 30th will be the last day EVER for Genforum entries. You could literally have the last word on any message threads where bad information has been spread over the years.”2

Oh, my.

What a great idea.

GenForum is the message board system of — and is among the services that is shuttering as of September 30th.3 The GenForum message boards date back to the internet equivalent of the Dark Ages — some boards there have messages dating back into the 1990s, and the number of messages on active boards runs to the thousands — 39,302 on the Jones Family Genealogy Forum, for example.

As Greg notes, the GenForum boards aren’t going away completely, but after September 30th, we won’t be able to post any more comments or queries there. The boards will be read-only — meaning people will still be able to see what’s there, review what’s been posted, even contact posters who’ve left valid email addresses.

But no additional, new, updated or corrected messages can be posted after that date.

Meaning we have 85 days left to review those boards, the ones important to us and to our families.

Eighty-five days to ask our remaining questions, post links, update our contact data.

Eighty-five days to put the word out to people researching the same surname, or geographical area, or ethnic group.

Eighty-five days left to get the last word in.

Because when the clock ticks over to the first of October, nobody else is going to be able to weigh in on that ranging debate about whether Robert and Anna were the parents of James — or whether Stephen and Sally were. Nobody else is going to be able to dispute that claim about William Jr. being the son of William Sr., rather than just a younger family member living in the same area at the same time.

Here are a few of the things that might be most important to add to the GenForum boards in these next 85 days:

• Queries to people in particular family lines for DNA testing.

• Queries about locations of specific records — like Family Bibles — once reported to exist.

• Follow-ups on records mentioned in older messages.

• And, of course, our latest (and last!) conclusions on specific issues of family history (that William Sr. and Jr. debate, for example), citing sources.

But the most important of all is the one Greg highlighted: “be sure to use an email address with your account that you plan to keep the rest of your life. If they have an old address on record, you might consider changing your settings to reflect your latest.” You might even want to create a new one, just for this purpose, add it to your account record there, or post it in a form that won’t be so easily harvested by spammers (such as “yourname (at) service dot com” rather than “ This email address is being protected from spambots. You need JavaScript enabled to view it. ”).

Because, as Greg notes, even though the GenForum boards aren’t nearly as active today as they once were, posts to those boards still show up very high in the search results on Google and other search engines, making them an excellent way of reaching people looking at the same families — and giving them a way to reach you — well into the future.

“Just a thought,” he said.

Thanks for that thought, Greg Boyd.

Let’s get cracking…


  1. Others include my dear friends Donn Devine CG, of Delaware, who was recently named a Fellow of the National Genealogical Society, and Michael Ramage CG, of Pennsylvania, who serves as vice president of the Board for Certification of Genealogists.
  2. Greg Boyd, status update, 6 July 2014, Facebook ( : accessed 6 July 2014).
  3. Others are,, and all of Ancestry’s YDNA and mitochondrial DNA (mtDNA) testinng. This does NOT include the AncestryDNA service — the newest autosomal DNA testing that it has been offering since 2012 — which will continue.
Posted in General | 8 Comments

What’s your number?

So… did you test with National Geographic’s Geno 2.0 project?

If so, the International Society of Genetic Genealogists (ISOGG) — and The Legal Genealogist — and the entire genetic genealogy community — we all have a question for you:

What’s your number?

Geno20hapTurns out that within the past few days, the Genographic Project has started reporting the percentage of participants within the Geno 2.0 project database with particular paternal and maternal haplogroups.

Now a haplogroup is “a genetic population group of people who share a common ancestor on the patrilineal or matrilineal line. Haplogroups are assigned letters of the alphabet, and refinements consist of additional number and letter combinations.”1

And haplogroups come in two flavors: YDNA — from the Y chromosome that only men have and that is passed down from father to son to son largely unchanged through the generations2 — and mitochondrial DNA (mtDNA) — the kind we all receive from our mothers but that only women pass on to their children, again largely unchanged through the generations.3

So all of us who’ve tested with the Geno 2.0 project have an mtDNA haplogroup reported, from the mtDNA we received from our mothers, and “(u)nderstanding the evolutionary path of the female lineage has helped population geneticists trace the matrilineal inheritance of modern humans back to human origins in Africa and the subsequent spread across the globe.”4

And any man who’s tested will also have a YDNA haplogroup reported — and as more and more of the Y chromosome is mapped and differences detected, we can hope for a deeper understanding of the male inheritance of modern humans as well.

And that’s part of where this number bit comes in.

Knowing the frequency with which certain haplogroups appear, and where they appear, can help population geneticists develop and test theories about human migration over time. This is one of a series of efforts made be genetic genealogists to gather information about how common haplogroups are and how they’re distributed worldwide. Some nine years ago, for example, Dr. J. Douglas McDonald, a professor of Chemistry at the University of Illinois at Urbana-Champaign produced maps of the distributions of YDNA and mtDNA haplogroups around the world. The copyrighted maps can be found online here.

And as genealogists, we’d like to know more about how frequently a particular haplogroup appears, to help us understand the significance of a match or a mismatch within, say, the H3 mtDNA haplogroup (1.6%) or the R-L21 YDNA haplogroup (4.8%) as compared to one in, say, the V3b mtDNA haplogroup (less than 0.1%) or the R-V88 YDNA haplogroup (0.1%).

Right now, the percentages are being reported individually, on the dashboard for the results of each person who has tested. And as genetic genealogists, we’d like to know the big picture: what are the percentages for all the haplogroups?

So ISOGG under an initiative by Dr. Tim Janzen is in the process of collecting the individual information about each reported haplogroup, and collecting it in Excel spreadsheet form for everyone’s use. The links to the spreadsheets are on the ISOGG Haplogroup wiki page under the link titles Geno 2.0 Y haplogroup percentages from the Genographic Project and Geno 2.0 mtDNA haplogroup percentages from the Genographic Project.

So… have you tested with Geno 2.0? If you have, ISOGG would love to know your number. Here are the steps:

1. Log in to your Genographic 2.0 results.
2. Click on the link at the top for Dashboard.
3. Scroll down to your Deep Ancestry results. Record your haplogroup name and the percentage.
4. Take a look at the ISOGG spreadsheet(s). Is your haplogroup reported?

a. If so, terrific! You’re done.

b. If not, report it! Let ISOGG know. You can post your number on the ISOGG Yahoo group list in the thread started by Tim Janzen if you’re an ISOGG member. If you’re not an ISOGG member, feel free to post your results in the comments to this blog post or, for email subscribers, just hit reply and email them. I’ll collect them and send them along.

You’ll be helping us all know more.

And besides, “Hi, I’m H3 1.6%, what’s your number?” beats the heck out of “Hi, I’m Pisces, what’s your sign?”, doesn’t it?


  1. ISOGG Wiki (, “Haplogroup,” rev. 5 July 2014.
  2. ISOGG Wiki (, “Y chromosome DNA tests,” rev. 5 Mar 2014.
  3. ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 30 Mar 2014.
  4. ISOGG Wiki (, “Mitochondrial DNA haplogroup,” rev. 4 Mar 2014.
Posted in DNA | 39 Comments