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

The Legal Genealogist really doesn’t care if Zsa Zsa Gabor ever really said it, or if it’s just something that sounds so much like something Zsa Zsa Gabor would say that it’s just attributed to her.

keephouseBut it’s a great quote, and it goes something like this:

“I am a marvelous housekeeper,” Zsa Zsa is supposed to have said. “Every time I leave a man I keep his house.”1

See what I mean?

It really doesn’t matter if the words are hers or not.

What does matter is how we’d interpret the words if we ran across them in a very different context.

Say, for example, in a description of an English or colonial American businessman.

In which case “keeping house” doesn’t mean anything even remotely like what we might think of when we think of the words.

Keeping house is a concept from English bankruptcy law, and it became part of English law in 1571.2 Under a law enacted in that 13th year of the reign of Elizabeth I, a merchant or trader who was a debtor couldn’t try to hide away from his creditors — “beginning to keep house, so that he cannot be seen or spoken to by his creditors, is an act of bankruptcy.”3

So, a merchant would be considered bankrupt if — to avoid being hounded by bill collectors — he hid himself away in his house.

As Black’s Law Dictionary explains:

“The English bankrupt laws use the phrase ‘keeping house’ to denote an act of bankruptcy. It is committed when a trader absents himself from his place of business and retires to his private residence to evade the importunity of creditors.”

“The usual evidence of ‘keeping house’ is refusal to see a creditor who has called on the debtor at his house for money.”4

Find somebody in your family tree keeping house in colonial America or in English court records?

He needed to pay up.


  1. See Wikipedia (, “Zsa Zsa Gabor,” rev. 8 Jan 2015.
  2. Bankruptcy Act, 13 Eliz. I c. 7.
  3. See Isaac ‘Espinasse, A Digest of the Law of Actions and Trials at Nisi Prius (Dublin : p.p., 1794), 552; digital images, Google Books ( : accessed 14 Jan 2015).
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 677, “keeping house.”
Posted in Legal definitions | 2 Comments

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

Today’s words are a matter of percentages.

percentage-sign-2It’s very hard for The Legal Genealogist — or anyone else here in the 21st century — to come to grips with the reality of the race-based distinctions the law made only a short time ago.

Even though we find it distasteful, the fact is the law pigeonholed people into various categories based on the percentage of African ancestry they had, and assigned names to those categories.

The language of the law then reflected those distinctions by having names for those the law regarded as non-white.

So we don’t like it. Not one bit.

But we can’t begin to understand the records if we don’t understand the language that was used.

Terms we may see in records we review in researching our families then may include:

• Demi-meamelouc: a person who was “1/32 black, (issue of) white and meamelouc.”1

• Griffe: a person who was “3/4 black, (issue of) Negro and mulatto.” 2

• Marabou: a person who was “5/8 black, (issue of) mulatto and griffe.”3

• Meamelouc: a person who was “1/16 black, (issue of) white and metis.”4

• Métis or métif: a person who was“ 1/8 black, (issue of) white and quarteron.”5

• Mulatto: “a person that is the offspring of a negress by a white man, or of a white woman by a negro”;6 a person who was “1/2 black, (issue of) white and Negro.”7

• Mustizo: “A name given to the issue of an Indian and a negro.”8

• Octoroon: “a person having one quadroon and one White parent and therefore having one-eighth Black blood.”9

• Quadroon: “A person who is descended from a white person and another person who has an equal mixture of the European and African blood”;10 a person who was “1/4 black, (issue of) white and mulatto”.11

• Sacatra: a person who was “7/8 black, (issue of) griffe and Negro.”12

• Sang-mêle: a person who was “1/64 black, (issue of) white and demi-meamelouc.”13

Words like these are hard to accept. Hard to deal with. But it’s part of our history and we have to know what the words meant when we see them.


Image: OpenClipArt, user laobc

  1. John Russell Bartlett, Dictionary of Americanisms: A Glossary of Words and Phrases Usually Regarded as Peculiar to the United States, 4th ed. (Boston : Little, Brown, 1877), 422 ; digital images, Google Books ( : accessed 12 Jan 2015). Bartlett added: “…these varieties exist in New Orleans, with sub-varieties; and experts pretend to be able to distinguish them.”
  2. Ibid. See also Dupree v. State, 33 Ala. 380 (Ala. 1859).
  3. Bartlett, Dictionary of Americanisms, 422.
  4. Ibid.
  5. Ibid.
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 792, “mulatto.”
  7. Bartlett, Dictionary of Americanisms, 422.
  8. Black, A Dictionary of Law, 795, “mustizo.”
  9. The Free Dictionary ( : accessed 12 Jan 2015), “octoroon.”
  10. Black, A Dictionary of Law, 970, “quadroon.”
  11. Bartlett, Dictionary of Americanisms, 422.
  12. Ibid.
  13. Ibid.
Posted in Legal definitions | 13 Comments

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

Today’s term is Saturday’s stop.

AJ-stop-sign-angled-2Yes, it’s that time of year again when The Legal Genealogist is frantically trying to stay ahead of the demands of teaching at a week-long institute — and never quite managing to stay ahead.

But we can’t have a blank space here in the blog pages, now can we? So here’s a tidbit to tide you over.

The term for today is Saturday’s stop.

And you may very well have had an ancestor prosecuted for violating the law of Saturday’s stop.

It was, Black’s Law Dictionary tells us, a “space of time from even-song on Saturday till sun-rising on Monday, in which it was not lawful to take salmon in Scotland and the northern parts of England.”1

Even-song, of course, was the time for evening prayers and would vary with the season.2

Now you couldn’t have gotten through the day without knowing that, now, could you?

Image: OpenClipArt, user AJ

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1063, “Saturday’s stop.”
  2. See generally W.K. Lowther Clarke, “Evensong Explained, with Notes on Matins and the Litany,” Project Canterbury ( : accessed 11 Jan 2015).
Posted in Legal definitions | 3 Comments

Yes and no

DNA is so often a matter of bad news mixed in with the good, isn’t it? And this past week’s news out of Salt Lake City has been no exception.

The bad news

Let’s get the bad news out of the way first:

There isn’t going to be a chromosome browser at AncestryDNA.

This very simple tool for comparing autosomal DNA — the type we all inherit from both of our parents and that helps us find cousins to work with on our family histories1 — is a staple of the features of two of the genetic genealogy DNA testing companies (23andMe and Family Tree DNA) and perhaps the single most commonly used tool by genetic genealogists.

Now this is not exactly a surprise that we’re not going to get one at AncestryDNA. Their staff has never been sold on it, has hemmed and hawed when pressed on it, has offered all kinds of arguments why it poses problems.

But finally somebody came flat out and simply said no. And it’s somebody who’s in a position to know.

One of the speakers at the Association of Professional Genealogists’ Professional Management Conference in Salt Lake City this past week was Howard Hochhauser. His title at Ancestry: Chief Financial Officer and Chief Operating Officer.2

He offered some of the usual reasons AncestryDNA’s team offers when asked about the chromosome browser, and echoed science officer Catherine Ball’s privacy concerns — the argument that if you and I match, and you know what segment we match on, and you know that segment carries the marker for a disease, you know I have that marker. (Apparently the notion that I might be perfectly willing to allow that level of disclosure by opting in hasn’t occurred to the AncestryDNA decision makers…

But Hochhauser went beyond where AncestryDNA usually goes when asked about this and simply said no. It isn’t going to happen. The resources they’d need to devote to making a chromosome browser available are resources they want to spend for other things, like growing the database.

No surprise, and frankly I’d prefer getting a flat-out truthful answer rather than the hemming and hawing — but it’s still disappointing.

The good news

The good news is that an ad hoc committee of genetic genealogists who have been working to complete an ethical code for integrating DNA testing into our genealogical research has finished the first phase of its task and has released the first-ever set of comprehensive ethical standards for DNA testing for genealogy.

genethicsThe draft standards were released for public comment in 2014, more than 75 comments were received, reviewed and — where appropriate — incorporated into the final version, and it’s now available online and as a downloadable PDF at

That announcement came yesterday at the first-ever Colloquium of the Salt Lake Institute of Genealogy (SLIG) when Blaine T. Bettinger, who blogs as The Genetic Genealogist, presented a paper on the topic.

Bettinger has spearheaded the effort, along with CeCe Moore, David Bachinsky, Traci Barela, Katherine Borges, Angie Bush, Melinde Lutz Byrne, Shannon S Christmas, George T. Cicila, Michael Hait, Tim Janzen, James M Owston, Ana Oquendo Pabón, Ugo Perego, Steven C. Perkins, Ann Turner, Debbie Parker Wayne, and Jennifer Zinck.

The standards are “intended to provide standards and best practices for the genealogical community to follow when purchasing, recommending, sharing, or writing about the results of DNA testing for ancestry.”3 They’re not designed to replace good personal judgment. The code expressly notes that it remains “ultimately the responsibility of those taking a genetic genealogy test (“tester”) to understand and consider these standards before ordering or agreeing to take any genetic genealogy test.”

The standard provide a number of clear mandates:

• Testing is undertaken only with the informed consent of the person tested.

• Those tested understand that DNA testing “can reveal unexpected information about the tester and his or her immediate family, ancestors, and/or descendants. For example, both DNA test results and traditional genealogical records can reveal misattributed parentage, adoption, health information, previously unknown family members, and errors in well-researched family trees, among other unexpected outcomes.”

• Information about another’s test results is shared only with the other’s consent.4

These and all the provisions of the standards are entirely consistent with the best practices of genealogists on all ethical issues,5 and — for what it’s worth — carry The Legal Genealogist‘s unqualified support.


  1. See ISOGG Wiki (, “Autosomal DNA,” rev. 11 Jan 2015.
  2. “LEADERSHIP: Meet the management team,” (ttp:// : accessed 10 Jan 2015).
  3. “Genetic Genealogy Standards,” ( : accessed 10 Jan 2015).
  4. Ibid.
  5. See e.g. “Standards for Sharing Information with Others,” 2000, PDF, National Genealogical Society ( : accessed 10 Jan 2015).
Posted in DNA | 16 Comments

One we lost

Name: Willie, perhaps Wilhemina, but more likely just plain Willie.

Born: 11 January 1895, most likely Provo, Utah.

Died: most likely, March 1896.

Buried: most likely, March 1896, City Cemetery, Provo Utah.

Not much to tell the story of this little girl, is it?

She lived, she breathed… she died.

ProvoCityCemeteryWillie was the ninth of 10 known children and sixth known daughter of my great grandparents, Martin Gilbert Cottrell and Martha “Mattie” Johnson.1

There are only recorded family memories to tell of her name. She had an older brother named Sammie,2 so, we think, Willie is a safer bet than anything fancy like Wilhelmina.

Only those recorded family memories tell of her birth — 11 January 1895, 120 years ago tomorrow.3 They tell us nothing of her life. Whether she was dark or fair. Whether she was blue-eyed or brown. Whether she was hearty or frail as an infant. Whether she learned to crawl or to walk. Whether she was babbling or talking or even able to say mama and daddy by the time our family lost her, at just 14 months of age.

They don’t us how it came to be that Willie died in Utah. The family was not a Utah family at all — Martin Gilbert Cottrell, or M.G. as he was called, was born in Texas,4 he and Mattie married in Texas,5 they were in Texas before and after Willie’s birth and death,6 and we’re not entirely sure what they were doing in Utah. M.G. had taken a job as a traveling salesman for the Wrought Iron Range Company7 and it may be that the family traveled with him for a time.

Two of the known children — Sammie and Willie — died young, and the family notes say that Sammie was the one who died in Utah and Willie in Texas.8 That can’t be correct. Sammie died on 11 April 1892 and was buried in the family plot at Highland Cemetery in Iowa Park, Wichita County, Texas.9

There is a burial of a Cottrell child recorded in the Provo, Utah City Cemetery.10 That has to be Willie, but the record is singularly uninformative. No first name. No date of birth. No date of death. No parents’ names except for the surname Cottrell. No cause of death. No block and lot number for the grave, only feet north and feet west — of what, it does not say.

Not much to tell the story of this little girl, is it?

She lived, she breathed… she died.

We hope that the fact that her name survived to be passed on to the children and grandchildren of a brother — my grandfather — born after her death11 — means that she was dearly loved and greatly missed.

And at least she is, today, remembered by her kin… here in Utah… 12

Rest in peace, little girl.


  1. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson, 1980s; copy of notes privately held by Judy G. Russell.
  2. See Judy G. Russell, “Remembering the birthday boy,” The Legal Genealogist, posted 5 May 2012( : accessed 9 Jan 2015).
  3. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson.
  4. Texas Department of Health, death certif. no. 13603 (1946), Martin Gilbert Cottrell, 26 Mar 1946; Bureau of Vital Statistics, Austin.
  5. Marriage license and return, M G Cottrell-Mattie Johnson, 27 Aug 1874; County Clerk’s Office, Weatherford.
  6. See 1880 U.S. census, Clay County, Texas, Precinct 4, population schedule, enumeration district (ED) 164, p. 492(B) (stamped), dwelling 17, family 17, M.G. Cottrell household; digital image, ( : accessed 4 May 2012); citing National Archive microfilm publication T9, roll 1296. Also, 1900 U.S. census, Wichita County, Texas, Iowa Park, population schedule, enumeration district (ED) 127, p. 238(A) (stamped), dwelling 86, family 86, Martin “Catrell” household; digital image, ( : accessed 4 May 2012); citing National Archive microfilm publication T623, roll 1679
  7. See Ballenger & Richards 25th Annual Denver City Directory (Denver : Ballenger & Richards, 1897) 300, entry for Martin G. Cottrell; digital image, ( : accessed 7 Mar 2014).
  8. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson.
  9. Highland Cemetery (Iowa Park, Wichita County, Texas; on Rodgers Road 0.1 mile west of the intersection with Bell Road North, Latitude 33.96704, Longitude -98.6595041), Sammie Cottrell marker; photograph by J.G. Russell, 9 Nov 2002.
  10. Sexton’s Record, March 1896, Provo City Cemetery; digital images, City of Provo Public Documents ( : accessed 10 Jan 2015).
  11. Clay Rex Cottrell was born 20 April 1898. See Virginia Department of Health, Certificate of Death, state file no. 70-026729, Clay Rex Cottrell (1970); Division of Vital Records, Richmond.
  12. Two of us are here in the Beehive State today. The Association of Professional Genealogists Professional Management Conference ended yesterday; the Salt Lake Institute of Genealogy gets underway today with a colloquium. I’m teaching at SLIG; my cousin Paula is attending a class.
Posted in My family | 9 Comments


The law had a bang-up day yesterday at the APG PMC in SLC.

And if you don’t know what those initials stand for, you’re really missing out.

effdateAPG is the Association of Professional Genealogists.1 There’s a ton of information about APG available on its website, a directory listing members if you’re thinking about hiring a professional to help with your research, and a ton of members-only benefits that you really shouldn’t pass up if you’re a professional genealogist or even a professional-genealogist-in-training.

PMC is the annual Professional Management Conference, a two-day conference focusing on topics of interest to the professional genealogist.2

And SLC is Salt Lake City, home to this year’s PMC Conference, next week’s Salt Lake Institute of Genealogy and, of course, the Family History Library and its world-class resources for genealogical research.

So how is it that the law had such a good day at the APG PMC in SLC?

Well, the talks at the PMC each year are many and varied. Some of them are aimed at the business side of professional genealogy — talks like yesterday’s “Taxes and the Professional Genealogist” by James M. Beidler or today’s “Time Management for Genealogists” by Angela Packer McGhie. Some of them are skills-oriented like the three-part “You’ve Got Options: Many Ways to Cite Right” workshop by Thomas W. Jones, Ph.D., CG, CGL, co-editor of the National Genealogical Society Quarterly.

And some of them are general genealogical topics that professionals — and, in fact, all genealogists — need to know more about. “DNA and Genealogical Proof,” presented by Angie Bush. “Mind Maps for Genealogy,” presented by Ron Arons. And “Finding the Law,” presented by The Legal Genealogist.

It was great fun. We got to talk about the general legal system in the United States, how some types of laws win out if there’s a conflict with others. We got to talk about the resources that help us find the laws we’re looking for. Places like the amazing website from the Library of Congress, Century of Lawmaking for a New Nation.3 And we got to talk about finding the right laws — the ones in effect at the time a record was created and in the place it was created.

And that gave rise to a great question from a participant in yesterday’s presentation. He asked about the time when new statutes took effect: would all the laws passed at one session of the legislature take effect at the same time, for example? And how would we know?

When a law became law can be critically important in analyzing a document: was this the law in effect at the time, or was that the law? And there are a couple of general rules:

• Laws generally take effect when they’re signed by the President (if federal) or Governor (if state or territorial). With federal laws published in the Statutes at Large — the ones you’ll find on the Century of Lawmaking website, each law has the date on which it was signed in the marginal notes. So, for example, the Homestead Act of 1862 became law on 20 May 1862, the day it was signed by President Lincoln.4

Some laws don’t take effect right away but, instead, have some different effective date written into the laws themselves. They may contain a date certain. In Virginia, for example, the legislature that met in October 1785 completely rewrote the probate code and changed the basic rules of inheritance. And because it wanted to give Virginia residents plenty of time to rewrite their wills and other legal documents to conform to the new law, it specified that the statute wouldn’t take effect until 1 January 1787.5 Or it might be something like a date like 90 days from the passage of the act.

Bottom line: read the statute carefully to see if it contains an effective date. If it does, that controls. If it doesn’t, then look for the date it was signed into law.


  1. See the organization’s website. Association of Professional Genealogists, accessed 8 Jan 2015.
  2. See “2015 APG Professional Management Conference,” Association of Professional Genealogists ( : accessed 8 Jan 2015).
  3. “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory ( : accessed 8 Jan 2015).
  4. “An Act to secure Homesteads to actual Settlers on the Public Domain,” 12 Stat. 392 (20 May 1862); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory ( : accessed 8 Jan 2015).
  5. “An act concerning wills, …” Chapter LX, Laws of 1785, in William Waller Hening, ed., The Statutes at Large … of Virginia (Richmond: p.p., 1823), 12:138 et seq.
Posted in General, Statutes | 7 Comments

Thank you for your support

Once again, the genealogists beat out the lawyers.

Once again, it was a genealogy blog, rather than a strictly law blog, that took the top honors in vote-getting1 in the niche category of the prestigious American Bar Association Journal‘s 2014 Blawg 100 “competition.”

In that niche category, the winner and still champion for the second year in a row — The Legal Genealogist.

2014blawgThis tale began back in November 2013 when I got an email with a return address of — and I almost deleted it. I figured it was a pitch for membership in the ABA and, since I’m not in active law practice any more, and don’t have an active law license, I had my finger on the delete key when I realized it was about something else altogether.

“Congratulations,” it said. “Your blawg has earned a spot in the ABA Journal’s Blawg 100, our 7th annual list of the best in blogs about lawyers and the law.”2

That was definitely cool.

Then I found out about the fan voting part — the fact that voters in each category could choose a blog for the top honors. It was only because you, dear readers, turned out in force that I was saved from the ignominy of losing out to a blog about wills and trusts.

Talk about a sigh of relief… I mean really! If a blog about dead people is gonna win, it should be about dead people and their family history, right?

Then in November 2014 in came the email from the American Bar Association Journal for 2014.

A second nomination. That’s definitely cool.

And you can imagine my joy when I saw that there was a new category for law professors and that the guy who gave me such a run for the money last year was moved to that new category.

I figured 2014 would be a snap.

Until the votes started rolling in…

Now really. I wouldn’t have minded losing to the winner in the Criminal Justice category — a blog I hope many genealogists voted for — Defrosting Cold Cases by cold-case consultant Alice de Sturler. Or to the winner in the Legal Research / Legal Writing category — my own favorite law blog and one I know many genealogists supported — In Custodia Legis, the blog of the Law Library of Congress.

But I did not want to lose to a blog about agriculture law.

And you, dear readers, didn’t let that happen. The announcement came yesterday, and once again The Legal Genealogist came out on top in the niche category.3

As a matter of fact, The Legal Genealogist was the second highest vote-getter of all 100 nominees in all categories, across the board, second only to Top Class Actions, a blog about class action lawsuits.

That blog is described as a kind of searchable database of class action filings and settlements produced by a staff of news writers. I’m one genealogist with a law degree. And you — you, dear readers — you still almost outvoted those guys!!

I’m amazed.

And humbled.

And very very grateful.

Thank you so much!


  1. Or ballot-box-stuffing.
  2. Trust me — I’m as pained by the “blawg” spelling as you are.
  3. Sarah Mui, “Blawg 100 popular vote getters,” ABA Journal online, posted 7 Jan 2014 ( : accessed 7 Jan 2014).
Posted in General | 37 Comments

More on the law of strays

Okay, so The Legal Genealogist is having some fun with this topic, but hey… if you can’t have fun with a blog on genealogy and the law, where can you have fun?

Don’t answer that.

At least if it isn’t legal.


We’re talking about strays, or estrays, and the law.

First, some background for our hypothetical.

Group Of Farm Animals : Cow, Sheep, Horse, Donkey, Chicken, LambLet’s say your ancestors were neighbors of my ancestors, who lived in Kentucky in the 1850s. And let’s say that, in 1855 or so, one of those ancestors found two stray cattle roaming around and decided to take them up (capture them), in the hopes of being able to keep them if the owners never stepped forward to claim them.

The law in Kentucky had the same basic concept as the law we’ve been talking about in Massachusetts,1 that stray cattle could be taken up by anybody who found them, at least if he was a landowner, long-term tenant or keeper of a toll-gate.2

Under Kentucky law, you had to publicly announce within a set time that you’d found the stray beasties, there had to be a record made in court with the value of the animals assessed at the time, and the owner had to come forward within a specific time to claim them and would have to pay all fees and costs to get the cattle back.3

The big difference between Kentucky in the 19th century and Massachusetts in the 17th century was that Kentucky simply let the finder keep the animal if the owner didn’t show up and claim it,4 while Massachusetts expected the finder to pay the town some portion of the animal’s value.5

The end result in either case, if the owner didn’t show and the finder wanted to keep the stray, was that the finder became the new owner of the animal.

With that background, here’s today’s question, posed with the help of Kentucky attorney and blog reader Foster Ockerman, Jr.:

What sound would the two stray cattle your ancestor took up have made?

Sounds like a ridiculous question, doesn’t it?

I mean, okay, so maybe we didn’t all grow up on a farm, but we can all easily define the word cattle, can’t we?

“Cows, bulls, or steers that are kept on a farm or ranch for meat or milk,” according to Merriam-Webster.6 The Oxford Dictionaries website agrees: “Large ruminant animals with horns and cloven hoofs, domesticated for meat or milk, or as beasts of burden; cows.”7 “Any of various domesticated ruminant mammals of the genus Bos, including cows, steers, bulls, and oxen, often raised for meat and dairy products,” says the Free Dictionary.8

So easy answer, huh?

Moo, of course.

Except maybe it wasn’t moo at all.

Maybe it was baaaaaa.

Maybe it was oink.

Maybe it was a bleat.

Or a bray.

Or even a neigh.

Because the word “cattle” in the Kentucky statute didn’t just mean cows. The term as it was generally understood by lawyers at the time included “domestic animals generally; all the animals used by man for labor or food.”9 And the Kentucky law specifically mentioned some I sure wouldn’t think of as “cattle”: horses, mules, jacks and jennets.10

Even today, Kentucky law defines the term “stray cattle” to mean “any animal of the bovine, ovine, porcine, or caprine species for which the owner is no longer claiming ownership or for which the owner cannot be determined, but not including any member of the equine species.”11

In other words, horses and donkeys aren’t cattle today, since the law was amended in 2010.

But pigs and sheep and goats are cattle.

And, of course, cows too.

So your ancestor who took up those cattle?

He might have ridden one home and made bacon of the other.

The things you learn when you want to understand family history…


Note: Major league thanks to reader Foster Ockerman, Jr., who alerted me by email that, as he put it, the law used to say a horse was a cow.

  1. See generally Judy G. Russell, “A beastly problem,” The Legal Genealogist, posted 5 Jan 2015 ( : accessed 6 Jan 2015).
  2. §1, Chapter XCVI, “Strays,” in The Revised Statutes of Kentucky (Frankfort, KY: State Printer, 1852), 652-653; digital images, Google Books ( : accessed 6 Jan 2015).
  3. Ibid., §§1-6.
  4. Ibid., §3.
  5. §3, Chapter 9, “Act Relating to Strays and Lost Goods,” 15 June 1698, in Acts and Resolves … of the Province of Massachusetts Bay (Boston: State Printers, 1869), I: 326-327; digital images, Google Books ( : accessed 4 Jan 2015).
  6. Merriam-Webster Online Dictionary ( : accessed 6 Jan 2015), “cattle.”
  7. Oxford Dictionaries Online ( : accessed 6 Jan 2015), “cattle.”
  8. The Free Dictionary ( : accessed 6 Jan 2015), “cattle.”
  9. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 180, “cattle.”
  10. §2, Chapter XCVI, “Strays,” in The Revised Statutes of Kentucky (1852).
  11. Kentucky Revised Statutes (2010) §259.105(2).
Posted in Legal definitions, Statutes | 7 Comments

Part two

The Legal Genealogist knew it was going to happen.

Knew it.

Would have taken a bet on it.

Could have avoided it.



So about a nanosecond after yesterday’s post ran about the laws in colonial Massachusetts about handling stray animals, the question pinged through to my email inbox.

I won’t name the reader — at his / her / its request — who began the email by explaining: “I realize in your post you were writing about strays but the word I keep seeing references to in court records and laws is estrays.”

“Go ahead and shoot me for asking a dumb question but… What’s the difference?”

Now, I knew this was coming.

I really would have taken a bet on it.

I knew somebody would ask, and should have put it in the post.

Since I didn’t, I kind of have to ask…

Are you sure you really want the answer?

Really sure?

Really absolutely sure?

Okay, then.

The difference between stray and estray is …

– You’re ready, right?

– You’re sure?

– No reader’s remorse or anything like that, okay?

– You really want to know?

Okay then.

The difference between stray and estray is …

– One letter.

In case you hadn’t notice, estray begins with an E. Stray doesn’t.


The Black’s Law Dictionary entry for estray reads:

Cattle whose owner is unknown…. Any beast, not wild, found within any lordship, and not owned by any man…. Estray must be understood as denoting a wandering beast whose owner is unknown to the person who takes it up. … An estray is an animal that has escaped from its owner, and wanders or strays about; usually defined, at common law, as a wandering animal whose owner is unknown. An animal cannot be an estray when on the range where it was raised, and permitted by its owner to run, and especially when the owner is known to the party who takes it up. The fact of its being breachy or vicious does not make it an estray.1

And the Black’s Law Dictionary entry for stray: “STRAY. See ESTRAY.”2

So an estray is a stray.

With (can I get away with this?) a stray E at the beginning.


  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 438, “estray.” And breachy, by the way, is a term that means “apt to break fences or be wild —used of domestic animals.” Merriam-Webster Online Dictionary ( : accessed 5 Jan 2015), “breachy.”
  2. Ibid., 1127, “stray.”
Posted in Legal definitions | 18 Comments

The issue of the strays

Reader Teresa Kahle was puzzled by some early New England records reflecting the handling of stray animals.

“In Suffolk Deeds, I’m seeing many notices regarding the finding of stray animals like cows and horses,” she wrote.

estrays“It says they are ‘cried’ at Boston and Dedham ‘to lawe’ and ‘prized’ at a certain monetary value by other men of the community. What’s going on there? Did a man who found a stray, advertised that he found it, get to keep it and the prized part is an appraisal for tax purposes? Or are the men prizing actually buying the strays from the men who found them? Seems like quite a racket!”

The example that she quoted to The Legal Genealogist is the one you see illustrating this post:

Jno Dwight Constable of dedham: informed me & desired might be Recorded that [ ] fisher of dedham :the 6. 12/mo 55 tooke up a strajed Cowe wch was for Coulor black bodied bobtajle some gray haires on his left flancke was Cryed at Boston & dedha[] to law. & Prised by michael metcalf. & Thomas metcalf at 3lb 10s within a weeke. Edw. Rawson1

These early Massachusetts records were printed in the late 19th century after local lawyers and residents realized that the records were deteriorating due to the passage of time and to exposure to heat and light. This first book, called Liber I, covers some of the very earliest activities of our colonial ancestors.

So… what exactly did it mean that this Dedham resident had taken up a stray cow, that the cow was “cryed” at Boston and Dedham, and that it was “prised”?

The answer, of course, is found in the law.

The very first Massachusetts statute dealing with stray animals was passed by the General Court — the early colonial legislature — on 3 May 1631. it simply provided that the owner of stray beasts would be liable for any damages that they caused to the crops of others.2

In November 1637, the law was changed, and any person taking up a stray animal was required to give notice to the constable of the town within three days.3 By 1647, animals in the colony that were kept in the common areas were required to be branded4 and public pounds were established in some communities for dealing with the problem of stray animals.

But the general system in operation throughout the colony was the one reflected in the Suffolk deeds: a person taking up a stray would give notice to the constable of the town with a description of the animal. The town crier would inform the townspeople that the animal had been taken up and provide a description that would enable the owner to claim it. Finally, the animal would be valued — “prised” — as of that moment and that would help determine who got what portion of the animal’s value if the owner didn’t ever claim it.

That system was fully set out in the laws by the end of the 17th century and you can read the details in the “Act Relating to Strays and Lost Goods” adopted in 1698.5 Here’s what that law required:

• Anybody who took possession of a stray animal had to report a full description to the town clerk within 24 hours.6

• He also had to have the description posted “in some publick place” and “cryed by the constable or public cryer in such town, on three several days, as a publick meeting of the inhabitants thereof”.7

• He also had to report to the local justice of the peace who would appoint two men to value the animal.8

• The owner had a year to claim the stray, and had to pay all the fees for the town cryer, the clerk, the justice of the peace and the appraisal — and “such necessary charges as shall have arisen for the keeping of such strays.”9

• If nobody claimed the stray, then the finder could pay half the value (after expenses were deducted) and keep the beast. The money went to the town treasury.10

It makes perfectly good sense when you think about it.

First, the citizens needed to find a way to deal with the problem of stray animals. On one hand, they didn’t want animals just wandering around. On the other hand, they didn’t want to encourage people to swipe animals owned by others — and they didn’t want fights breaking out over who got to keep any animals that did stray.

The system that they chose — requiring public notice that a stray animal had been found and then a system for taking care of the financial end of things — simply made good sense.

The “crying out” part of the law reflects the reality of life in early America. Most people sure weren’t getting a newspaper. They certainly were getting their news on the Internet either. But they all needed to know what was going on. Sure you could post a notice in some public place, and the law did require that. But what about all the people who couldn’t read? Telling them the news, rather than expecting them to read it, was the way around that problem. Hence, the crying out.

Great question … and it sure points out how important animals were to our early ancestors, doesn’t it…?


  1. Suffolk Deeds: Liber I (Boston: Rockwell & Churchill. 1880), 2-3; digital images, Google Books ( : accessed 4 Jan 2015).
  2. Records of the Governor and Company of the Massachusetts Bay in New England: 1628-1641 (Boston: State Printer, 1853) I: 86; digital images, Google Books ( : accessed 4 Jan 2015).
  3. Ibid., 211.
  4. Records of the Governor and Company of the Massachusetts Bay in New England: 1642-1649 (Boston: State Printer, 1853) II: 190, 225; digital images, Google Books ( : accessed 4 Jan 2015).
  5. Chapter 9, “Act Relating to Strays and Lost Goods,” 15 June 1698, in Acts and Resolves … of the Province of Massachusetts Bay (Boston: State Printers, 1869), I: 326-327; digital images, Google Books ( : accessed 4 Jan 2015).
  6. Ibid., §2.
  7. Ibid., §1.
  8. Ibid., §2.
  9. Ibid., §3.
  10. Ibid.
Posted in Resources, Statutes | 7 Comments