Law Day 2015

It’s May 1, officially declared as Law Day in the United States,1 and for this self-proclaimed law geek it’s definitely my kind of holiday.

LawDay2015Law Day as a day to celebrate the rule of law and its role in creating and protecting American freedoms was first recognized in 1957 with a proclamation by President Dwight D. Eisenhower. In 1961, a joint resolution of Congress called for an annual proclamation of Law Day, and this year’s proclamation can be found here.

Each year the American Bar Association chooses a different theme for Law Day. And for 2015, it’s Magna Carta: Symbol of Freedom Under Law.2

The Magna Carta. Written 800 years ago this year. Forced on a King by his barons when he seemed to be ignoring their rights — and the rights of all people — under the law.

Much of what was written in the Magna Carta — in England in the year 1215 — seems to have little application to us here — generations away in the 21st century and an ocean away in the United States.

But some of it still forms the fundamental foundation of our laws:

• “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.”3

• “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”4

• “To no one will we sell, to no one deny or delay right or justice.”5

And we can see its effects in the earliest elements of our laws.

Just as one example, since The Legal Genealogist is winging off to Atlanta today, to join the Georgia Genealogical Society at tomorrow’s “Your Ancestors and the Law” conference, consider the 1777 Georgia Constitution. Here are some of the provisions of that document that might not exist, but for the Magna Carta:

ART. LI. Estates shall not be entailed; and when a person dies intestate, his or her estate shall be divided equally among their children; the widow shall have a child’s share, or her dower, at her option; all other intestates’ estates to be divided according to the act of distribution, made in the reign of Charles the Second, unless otherwise altered by any future act of the legislature.

ART. LIV. Schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.

ART. LVI. All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State; and shall not, unless by consent, support any teacher or teachers except those of their own profession.

ART. LIX. Excessive fines shall not be levied, not excessive bail demanded.

ART. LX. The principles of the habeas-corpus act shall be a part of this constitution.

ART. LXI. Freedom of the press and trial by jury to remain inviolate forever.6

In short, much of what we are as a nation — much of the law we have — much of the record base we have because of the law — can be traced back to the Magna Carta.

And that, to this genealogist, is worth celebrating.

Happy Law Day 2015!


SOURCES

  1. See 36 U.S.C. §113
  2. See “Law Day: Research Guide,” Library of Congress (http://www.loc.gov/ : accessed 30 Apr 2015). See also American Bar Association, “Law Day 2015” (http://www.americanbar.org : accessed 30 Apr 2015).
  3. Magna Carta, paragraph 38; translation, “The Text of Magna Carta,” Fordham University Internet History Sourcebooks Project (http://legacy.fordham.edu/Halsall/index.asp : accessed 30 Apr 2015).
  4. Ibid., paragraph 39.
  5. Ibid., paragraph 40.
  6. Georgia Constitution of 1777, in Francis Newton Thorpe, The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States (Washington, D.C. : Govt. Printing Office, 1909), II: 777, 784-785; digital images, Google Books (http://books.google.com : accessed 30 Apr 2015).
Posted in General | 2 Comments

The pony homesteads

Tucked away in the records of Elbert County, Georgia, are some of the neatest genealogical records imaginable.

ElbertIn them, you can find that, in January 1874, Garnett Adams was the head of a family consisting of himself, a wife, and two minor children, and that he had 22 acres of land worth $110, one horse worth $80, a cow and calf worth $13, seven hogs worth $10.50, some corn and pork on hand, two beds with bedsteads and bedding, farming tools, ordinary cooking utensils and table crockery, wearing apparel and a family Bible he valued at exactly thirty cents.1

Or you can find that, in November 1882, L. A. Beasly was 30 years old, married to Letty, aged 30, with children Walton, 12, James, 10, Asbury, 8, Ella May, 5, Tissa, 3, and Yancy, six months of age. He claimed 50 acres of land, and five more acres for each child, one horse or mule, one cow and calf, 10 hogs, provisions, beds and bedding, a loom and spinning wheel and sewing machine, common tools, wearing apparel, a family Bible and family portraits, and school books for the children.2

Or you can find that, in March of 1879, Adam Daniel was 40 years old, his wife Becca was 35, and they had six minor children under the age of 16: Green was 15; Ben, 13; William, 11; Jennie, 9; Ella, 6; and the baby, Massa, was 11 months old. Daniel claimed a sorrel horse, a cow and calf, four hogs, $75 in provisions, two beds with bedding, a single barrel shotgun, wearing apparel, and ordinary household furnishings.3

What a window into the lives or ordinary every-day families of Elbert County!

So… what the heck are these records anyway, and where can you find them?

This particular set of records, from Elbert County — a county along the northeast Georgia coast — happens to be available online. The Legal Genealogist was doing the usual poke-around-in-the-records bit last night and came across them at FamilySearch.org.

And they tickled my fancy because of the title: the pony homesteads.

Now we all have a pretty good idea what a homestead is — at least when we’re talking about the federal Homestead Act of 1862 and the right of individuals to claim and settle on tracts of federal land.

But what’s a pony homestead?

It turns out that things are a bit different in Georgia:

The homestead laws of the State differ materially from those of most States, the exemption being … somewhat of the nature of a trust estate in charge of the court for the benefit of dependents… The aggregate value of the homestead is $1,600 and the ordinaries4 of the several counties have general and exclusive jurisdiction in setting it apart. The following persons are entitled to an exemption: Heads of families, guardians, trustees of families of minor children, aged and infirm persons, or persons having the care and support of dependent females of any age who are not heads of families. The right to the homestead may be waived except as to wearing apparel and three hundred dollars’ worth of household and kitchen furniture, and it is the custom to embrace such a waiver in all promissory notes. In lieu of the $1,600 homestead, what is known as the “pony homestead,” setting apart certain specific articles, may be taken. Should the husband refuse to apply for the exemption, it may be set apart out of his property on the petition of the wife or her next friend.5

Stated a bit more plainly, there were statutes and even constitutional provisions in Georgia that set aside certain property that a creditor couldn’t get to if the debtor ran into financial trouble. The debtor could give away — waive — the protections of most of the statutes and even the constitutional homestead — but not this particular smaller protection, covering up to $300 in household and kitchen furniture and provisions.6 The provision, and all of the homestead laws, were “enacted to prevent families from being thrown out of house and home, and thus keep them from becoming charges upon the public.”7

But to get the benefit of this and all the homestead exemptions, the debtor — the head of the household or other person claiming the protections of the law — had to file a schedule of property with the ordinary, the predecessor to today’s probate court. And it’s those schedules that you’ll find in this record set.

The statutory protections began as far back as the laws of 1822 and, at various times, included land, one farm horse or mule, one cow and calf, up to 10 hogs, household furniture, the arms and equipment needed by a militiaman, cooking utensils, wearing apparel, the family Bible, religious works and schoolbooks, family portraits, the library of a professional man, and a family sewing machine.8 Only up to $300 worth of household items was considered the pony homestead, totally exempt even from waiver, but the filings covered all of the exempt property.

Lots of these records still exist today, though only the Elbert County records are readily available online. The Family History Library catalog turns up 47 results when you search with the keywords “pony homestead.”

And, by the way, the law still exists, in largely unchanged form, even today. Chapter 13 of Title 44 of the Georgia Code sets out the exemption from levy for modern property — and it follows pretty much the same pattern, requiring pretty much the same records. 9

Genealogists of the future will be delighted…


SOURCES

  1. Elbert County, Georgia, Probate Court, affidavit of Garnett Adams, 19 January 1874; Probate Court, Elberton; digital images, Georgia, Elbert County Records, “Pony homestead exemptions box 20, A-G 1790-1900,” FamilySearch (https://familysearch.org : accessed 29 Apr 2015).
  2. Ibid., affidavit of L. A. Beasly, 22 November 1882.
  3. Ibid., affidavit of Adam Daniel, 10 March 1879.
  4. Formerly the officer charged with handling probates, now the probate court.
  5. Department of Agriculture, Georgia: Her Resources and Possibilities (Atlanta: Franklin Printing & Publ., 1895), 10-11; digital images, Google Books (http://books.google.com : accessed 29 Apr 2015).
  6. Preliminary Inventory WP-01, Georgia Department Of Archives and History, Atlanta (http://georgiaarchives.org/ : accessed 29 Apr 2015).
  7. Mathis v. Western Union Tel. Co., 94 Ga. 338, 346 (1894).
  8. See §3416 in Park’s Annotating Code of the State of Georgia, 1914 (Atlanta: Harrison Co., 1915), II: 1817-1819; digital images, Google Books (http://books.google.com : accessed 29 Apr 2015).
  9. See Chapter 13, Title 44, 2010 Georgia Code, Justia US Law (http://law.justia.com : accessed 29 Apr 2015).
Posted in Legal definitions, Resources, Statutes | 4 Comments

Let’s review: terms of use

Three years ago, The Legal Genealogist began an occasional series on terms of use.

And every single time I sit down with anybody and talk about copyright issues and when we can and can’t use materials, the conversation bleeds over into terms of use: the rules that may apply to control how information and documents can be accessed online or in person or what use can be made of the information and documents after they’re accessed.

It’s clear that this is something that confuses people greatly, so let’s take a minute and revisit the basics on this issue of terms of use, particularly as it affects genealogists and the repositories — online and off — that we use on our research.

Let’s go back over the six basic questions.

What are terms of use?

Easy answer: they’re the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.

The phrase “terms of use” isn’t defined in the old legal dictionaries. The closest they come is the definition of “use” by Black to include “the right given to any one to make a gratuitous use of a thing belonging to another.”1 Wikipedia says terms of use, terms of service and terms & conditions are all the same thing (they are) and defines the phrase as “rules which one must agree to abide by in order to use a service.”2 That’s a pretty fair definition.

But, you’re thinking, if it’s rules, how can it be considered a contract? Nobody gave you a choice about the rules when you subscribed to, say, GenealogyBank.com or Ancestry.com, did they?

Actually, they did. Exactly the same kind of choice you have in a lot of things in life: take it or leave it. When you created your account with one of the many services we use around the web, commercial and non-commercial, there comes a point in the join-up or subscription process where there’s a button or a check box or something. It always says something like the example shown in the graphic below: if you click on it or check the box, you’ve agreed to be bound by what the terms of use are.

TOS

It’s a little like your relationship with the TSA. You don’t have to go through security at the airport. Of course, that means you don’t fly, either.

What kinds of places have terms of use?

Just about every place — online or off — has some kind of terms of use.

I haven’t found a single genealogical repository website that doesn’t have detailed terms and conditions posted on the website. Ancestry.com, findmypast.com, Fold3.com, GenealogyBank.com, MyHeritage.com, and more have terms and conditions.

Non-profit online repositories are no different. Check out FamilySearch.org or even EllisIsland.org if you don’t believe me. Government-related websites have them too. Look at the New York Public Library or the digital collections of the Omaha Public Library. And even places dedicated to the free exchange of information have ‘em — Wikipedia itself has terms of use.

Physical repositories are no different. In one way or another, they control access to and/or use of materials we need. Some of them relate to security. You can bring a computer, but not a computer bag, into the search room of the North Carolina State Archives. Some of them deal with how copies are made. You can’t use your own camera to copy a document at the West Virginia State Library and Archives (copying can only be done by staff, for a fee). And some restrict use of what you find: you need specific permission to publish anything you find in the Southern Historical Collection of the Wilson Library of the University of North Carolina at Chapel Hill.

What’s included in terms of use?

Are you really sure you want to know? Contract terms can be really ugly.

Let’s take an example that’s about as benign as I can imagine: the New York Public Library’s website. I love the NYPL. It’s a great institution with a great staff and they do about the best job of providing access to vast amounts of information to people in the City and environs that you can imagine.

And their terms of use for their website and image use scare even me.

     • You can use low resolution images from the website and library but they can “only be used for personal, educational, or research purposes. They may not be used for commercial purposes.”3

     • High resolution images require permission and payment of a fee. “(I)mages are not to be used in any manner without the express written permission from NYPL. All images are provided pursuant to this Policy and the written Licensing Agreement you will receive. Image usage without prior payment and NYPL’s express written permission is strictly prohibited.”4

     • “Images or image files … cannot be distributed or re-sold independent from the specific use for which permission is granted and may not be used in a manner allowing permanent storage or re-use by third parties. No Licensing Agreements may be sublicensed, transferred or assigned. You agree not to make, authorize, or permit any use of any image except as specifically set forth in the written Licensing Agreement that you will receive.”5

     • “Failure to comply with any of the provisions of this Policy statement and in the written Permissions statement that you will receive may result in immediate revocation of the Permissions granted.”6

     • If you and the library disagree, “A material part of this Agreement is our mutual agreement to arbitrate disputes,” (meaning you can’t sue them), “the agreement shall be interpreted under, and governed by, the laws of the State of New York” (even if you live in New Jersey or Connecticut) and “If NYPL is obligated to go to court, rather than arbitration, to enforce any of its rights, you agree to reimburse NYPL for its legal fees and disbursements if NYPL prevails.”7

     • If you and NYPL get into a legal tussle over using the website, you “agree not to commence any litigation relating to the use of any of the NYPL Websites, except in courts located in New York City. Users also waive any objections to venue of any such litigation in courts located in New York City and agree not to plead or claim that New York City is an inconvenient forum.”8

     • If something you do makes somebody else get into a legal tussle with NYPL, you agree “to defend, indemnify and hold NYPL and its Trustees, officers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees.”9

YIKES!

And that’s from a library!

Commercial sites have terms like “even if you live in New York, we can sue you here in California and you can only sue us in California”, or “we can wipe out your account, delete everything you have online with us and if it turns out we’re wrong, we’ll apologize but you don’t get any money from us.”

Are terms of use enforceable?

Yup. As I said before, this is just a contract between you and the repository and courts enforce these just the way they do any contract. They look for evidence that you knew what the terms were and you agreed to them.

Most websites use the button or check box system. In court cases, it’s called a “clickwrap”10 or “click-through”11 because you can’t get to what you want until you click. And federal and state courts enforce clickwraps all the time.12

They even usually enforce them where you don’t have to specifically click through but the terms are clear on the website page where you sign up; that’s called a “browsewrap.”13

Can a website or repository change terms of use?

Yup. Most of the terms of use say they can and some even say they can do it without telling you they’re doing it. The argument is that if the original contract says they can change terms without telling you, then it doesn’t violate their end of the deal if they change the terms without telling you.

But the courts aren’t buying that part very often: not telling you may well mean the changes won’t be enforced.14

What can happen to me if I ignore terms of use?

You did read the “we’ll revoke your right to use this website, sue you in our local courts and make you pay our attorney’s fees” part, right? And the “you live in New York but can only sue us in California” part?15 That’s what can happen.

Now remember… these are contract terms, not copyright terms. Something can be completely free of copyright and still be restricted by contract.

Bottom line: read — and be sure you understand — the terms of use of any site you use before you use it.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.”
  2. Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 1 Feb 2015.
  3. New York Public Library, NYPL Website Terms and Conditions (http://www.nypl.org/ : accessed 29 Apr 2015).
  4. New York Public Library, Permissions Terms & Conditions (http://www.nypl.org/ : accessed 29 Apr 2015).
  5. Ibid.
  6. Ibid.
  7. Ibid.
  8. NYPL Website Terms and Conditions.
  9. Ibid.
  10. Specht v. Netscape Communs. Corp., 306 F.3d 17, 22 (2d Cir. 2002).
  11. Vernon v. Qwest Communs., 2012 U.S. Dist. LEXIS 31076 (D. Colo. Mar. 8, 2012)
  12. See e.g. Kraft Real Estate Invs. v. HomeAway.com, 2012 U.S. Dist. LEXIS 8282 (D.S.C. Jan. 24, 2012); Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012); United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Durrett v. ACT, 2011 Haw. App. LEXIS 767 (Haw. Ct. App. July 12, 2011); Fieldtech Avionics v. Component Control.Com, 262 S.W.3d 813 (Tex. App. 2008); Adsit Co. v. Gustin, 874 N.E.2d 1018 (Ind. Ct. App. 2007).
  13. See Ticketmaster v. RMG Tech., 507 F. Supp. 2d 1096 (C.D.Cal. 2007); Major v. McCallister, 302 S.W.3d 227, 229-231 (Mo. Ct. App. 2009).
  14. Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008).
  15. See e.g. Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012).
Posted in Terms of use | 9 Comments

NGS streaming, Jamboree early bird

Time’s almost up!

HourglassTwo of the very best opportunities to learn about genealogy, the right way, and to network with others who absolutely positively will not roll their eyes when you talk about your ancestors are the huge conferences of the National Genealogical Society — in St. Charles, Missouri this year — and the Jamboree of the Southern California Genealogical Society.

And you have to move fast if you want to take advantage of either of them.

For NGS, most of the in-person opportunities for the May 12-16 conference are already sold out. Hotel rooms are booked, workshops and lunches completely filled.

So… rather than lose out altogether, you can still register for either or both of the online streaming tracks that NGS will offer this year. But you have to act now. Now. As in not later than tomorrow, the 29th of April.

That’s the deadline to register for Live Streaming at #NGS2015GEN. The cost for either track one or track two is $65 for NGS members or $80 for non-members, and you’ll be able to view the presentations through the 16th of August. Or you can bundle all 10 presentations for $115 for NGS members and $145 for non-members.

Track One, on Thursday, 13 May, is The Immigration & Naturalization Process and features presentations by Jeanne Larzalere Bloom, CG (The Journey to America: Federal Passenger Ship Records); Julie Miller, CG (Becoming an American: Naturalization Records); John P. Colletta, PhD, FUGA (Discovering the REAL Stories of Your Immigrant Ancestors); F. Warren Bittner, CG (Bads, Bergs, Burgs, and Bachs: Finding Locations in Germany); and David Rencher, AG, CG, FIGRS, FUGA (A Methodology for Irish Emigration to North America).

Track Two, on Friday, 14 May, is Methodology Techniques, and features presentations by Alison Hare, CG (The Time of Cholera: A Case Study about Historical Context); Elizabeth Shown Mills, CG, CGL, FASG, FUGA, FNGS (The Problem-Solver’s Great Trifecta: GPS+FAN+DNA); Thomas W. Jones, CG, CGL, FASG, FUGA, FNGS (When Does Newfound Evidence Overturn a Proved Conclusion?); Michael Ramage, JD, CG (Forensic Genealogy Meets the Genealogical Proof Standard); and Angie Bush (Using DNA as a Genealogical Record).

The deadline is Thursday, April 30th, for the early bird registration discount at the Southern California Genealogical Society’s Jamboree, to be held June 4-7 in Burbank, California. June 4th is DNA Day Plus! and Jamboree itself is the 5th, 6th and 7th.

The early-bird discount can be combined with SCGS Member discounts and reduced registration fees for attending both the Genetic Genealogy:DNA Day Plus! and Jamboree conferences.

And by the way when SCGS says DNA Day Plus!, it really means PLUS! There will be in-depth workshops that day on much more than just DNA. I’ll be offering a hands-on court records workshop, my friend and colleague Jay Fonkert is offering a methodology workshop — there’s a lot to choose from.

Time’s running fast on both of these, so don’t miss out!

Posted in General | 2 Comments

Now get your testing done

Exactly 62 years ago yesterday, Cambridge University scientists James D. Watson and Frances H.C. Crick announced they were sure that the structure of DNA was the double helix — an event “considered by many to be one of the most significant scientific discoveries of the 20th Century.”1

dna.dupTo remember that achievement, and to honor the completion in 2003 of the Human Genome Project, today continues to be recognized as National DNA Day 2 — a day that “offers students, teachers and the public many exciting opportunities to learn about the latest advances in genomic research and explore what they may mean for their lives.”

So… if you didn’t crack open the champagne yesterday, you can still celebrate today by getting your DNA tested… at some limited but still cool sales for the 2015 DNA Day.

At AncestryDNA, for US testers, the usual price of $99 for an autosomal DNA kit has been reduced to $79 until 11:59 p.m. Monday, April 27th. Shipping is extra. I hear tell that the £99 price for a test kit in the United Kingdom and Ireland is also down to £79 for this sale, but can’t confirm it because I can’t figure out how to convince Ancestry’s web servers not to automatically insist that I access through the .com site instead of the .uk site, so you’re on your own on that one.

At Family Tree DNA, the big push is for the Big Y — the just-about-everything-you-might-ever-want-to-know test for the direct paternal linme. Got to have a male for this test and it focuses less on how we group men together as part of genealogical families and more on how we tease them apart into twigs at the ends of branches of the human family tree.

It’s explained this way on the testing company website: “a direct paternal lineage test … designed … to explore deep ancestral links on our common paternal tree. It tests both thousands of known branch markers and millions of places where there may be new branch markers. We intend it for expert users with an interest in advancing science.”3

So the sale at Family Tree DNA is on the Big Y test — use coupon code DNADayBigY to take $100 off Big Y; the coupon is valid through 11:59 PM 4/30/2015, and since Family Tree DNA is in Texas, that’s likely Central Time.

And for whatever reason it doesn’t appear that 23andMe is playing along with a sale at all this DNA Day. Nothing on its website, nothing on its Facebook page. So the usual $99 price for a test kit is in effect there today.

Not as good a group of offers as we’ve seen in the past, but still not anything to sneeze at so… come on and sale away into the world of genetic genealogy. Get your DNA tested.


SOURCES

  1. U.S. Senate S. Con. Res. 10, 108th Congress 1st Session (27 Feb 2003).
  2. National Human Genome Research Institute, “National DNA Day” (http://www.genome.gov/ : accessed 24 Apr 2014).
  3. Big Y,” FTDNA Learning Center, Family Tree DNA ( : accessed 25 Apr 2015).
Posted in DNA | 6 Comments

Welcome to the club

Ben Affleck was “embarrassed” to discover that he had slaveowning ancestors. “The very thought left a bad taste in (his) mouth.”1

No foolin’.

That’s about the reaction all of us would have — should have — on first discovering the reality of slave ownership in our own families.

It’s certainly the reaction The Legal Genealogist had back long ago when I first discovered that reality in my own family.

I never thought, when I started researching my ancestry years ago, that slavery would be any kind of an issue for me. After all, my father’s family emigrated from Germany in 19252 and, looking at my baby book, with information carefully entered by hand, my mother’s family surely came to the United States after the Civil War. Her great grandparents, she had written, were born in Ireland and in Wales.3

1860 slave census, Attala Co., MS

And that might have been true… if Ireland and Wales were small towns in Mississippi.

For it was in Mississippi that her great grandparents, my second great grandparents, Gustavus Boone and Isabella (Gentry) Robertson, were born. Where, for many years, they lived.4

And where, in both 1850 and 1860, Gustavus was recorded as a slaveowner.5

I can just barely wrap my head around the concept of owning another human being in America in, say, 1790 or 1800. That’s before the Abolition of the Slave Trade Act passed in England in 18076 and before the abolition movement in the United States really started to gain steam.

Although there certainly were abolitionist efforts well before then, it was 1833 before a major group — the American Anti-Slavery Society — organized in Philadelphia.7 So maybe, just maybe, some folks really didn’t “get it” when they were confronted by others who said it was wrong.

But by 1850? 1860? Nope. Can’t do it. Can’t condone it. And, on a deeply personal level, can’t forgive it.

Now, we’re often warned, as genealogists, not to engage in presentism — judging the past by the standards of today.8 It’s critical when we’re trying to evaluate the records of a time that we don’t judge those records by expectations of what one of those records should look like today.

But to me it’s a whole ‘nother story when we’re talking about passing moral judgments on the actions of our own ancestors at certain times. I’m not engaging in presentism when I take issue with this handful of my ancestors for their slave ownership that late in American history as much as I’m rejecting moral relativism. It was wrong… and they had to know it was wrong.

What has been passed down to me — this northerner my southern grandfather would have called a Yankee… in three syllables… and the first syllable wasn’t “darn” — are the “feel-good” slavery stories. How my ancestors cared for their slaves and took care of them, how their slaves loved them and stayed with them even after Emancipation.

And whether these stories are true or merely the “feel-good” versions of a terrible reality, I absolutely understand what it is like to be embarrassed at the very thought of slaveowning ancestors. To have the very thought leave a bad taste in my mouth.

So welcome to the club, Ben.

Now pull up a chair and let’s talk about what we do about this.

Because what we don’t do … what we can never do … is deny the reality of the past.

Because when we try to deny the reality of the past, we are in effect writing out of our history the lives of those who were enslaved.

And they deserve better.

Somewhere in this world there may be descendants of the women, aged 30 and 50, who served my third great grandparents and their children in 1850.

Somewhere in this world there may be descendants of the woman aged 25 and her daughter aged three who served my third great grandparents and their children in 1860.

Somewhere in this world there may be descendants of those two women, the slaves of 1860, who — I firmly believe — are the Ana and Mary Robertson, aged 36 and 13, shown as black, born in Mississippi, and recorded in the household next door to my third great grandparents and their children in 1870.9 Who likely are the Annie Robertson and Mary Shirrell of Lamar County, Texas, in 1880.10

As descendants of slaves and slaveowners alike, we should talk.

Learn each other’s stories.

Help finish each other’s tales.

Not as sources of embarrassment.

Not as anything to be ashamed of.

Not as something to try to hide.

But as interesting people whose ancestors’ lives intersected our ancestors’ lives.

So how about this club, Ben?

A club made up — for all we know now — of kin.

A club of cousins, perhaps.

A club of family.

If nothing more, then the “same human race” club.

Welcome to this club, Ben.

Come join us.


SOURCES

  1. ‘Embarrassed’ Ben Affleck Admits to Asking PBS to Hide Slave-Owning Ancestor’s Past,” NBCNews.com posted 21 Apr 2015 (http://www.nbcnews.com/ : accessed 24 Apr 2015).
  2. Manifest, SS George Washington, Jan-Feb 1925, p. 59 (stamped), lines 4-6, Geissler family, 4; “New York, Passenger Lists, 1820-1957,” digital images, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication T715, roll 3605.
  3. Family tree pages, undated pamphlet-form baby book for Judy Eileen Geissler; privately held by Judy G. Russell, Avenel, New Jersey, 2011. Entries in the family tree were handwritten by Hazel (Cottrell) Geissler shortly after the birth of her second daughter.
  4. 1850 U.S. census, Winston County, Mississippi, District 8, population schedule, p. 373 (stamped), dwelling 809, family 816, Gustavius Robinson; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication M432, roll 382. Also, 1860 U.S. census, Attala County, Mississippi, Township 14, Range 8, population schedule, p. 76 (penned), dwelling 455, family 494, Gustavus B. Robertson household; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication M653, roll 577.
  5. 1850 U.S. census, Winston County, Mississippi, slave schedule, p. 59 (penned), col. 2, lines 32-33, Gustavius Robinson, slave owner; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication M432, roll 390. Also, 1860 U.S. census, Attala County, Mississippi, Township 14, Range 8, slave schedule, p. 26 (penned), col. 2, lines 14-15, Gustavus B. Robertson, slave owner; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication M653, roll 595.
  6. “Abolition of slavery,” National Archives-UK (http://www.nationalarchives.gov.uk/slavery/about.htm : accessed 24 Apr 2015).
  7. “Abolition, Anti-Slavery Movements, and the Rise of the Sectional Controversy,” Library of Congress American Memory (http://memory.loc.gov/ammem/aaohtml/exhibit/aopart3.html : accessed 24 Apr 2015).
  8. Elizabeth Shown Mills, Evidence Explained: Citing History Sources from Artifacts to Cyberspace, rev. ed. (Baltimore : Genealogical Publishing Co., 2009), 20.
  9. 1870 U.S. census, Lamar County, Texas, Beat 2, population schedule, p. 253(B) (stamped), dwelling/family 308, Ana and Mary Robertson; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication M593, roll 1594.
  10. 1880 U.S. census, Lamar County, Texas, Paris, population schedule, enumeration district (ED) 81, p. 213C (stamped), dwelling 166, family 202, Nathan Shirrell household; digital image, Ancestry.com (http://www.ancestry.com : accessed 24 Apr 2015); citing National Archive microfilm publication T9, roll 1314.
Posted in My family | 49 Comments

To be judged the reputed father

Anyone who regularly reads this blog knows that The Legal Genealogist is a huge fan of Michael D. Lacopo’s compelling story of identifying his grandfather, his mother’s father, through an amazing combination of genealogical sleuthing and DNA testing.1

hoosier1His blog is aptly entitled Hoosier Daddy, and if you haven’t read it yet, do yourself a favor and waste no more time. Get over there, start back at the very beginning and read through to this week’s posting.2

So… what about a much earlier Hoosier daddy?

Say… around 1838?

The 17th of February, 1838, to be exact…?

What would the law have said about an illegitimate child — and that child’s father — back then?

In honor of my imminent boarding of a flight this morning that’s the first leg of a journey that will take me to Terre Haute, Indiana, later today, and on the 2015 Indiana Genealogical Society‘s conference on the campus of Indiana State University tomorrow, let’s take a look at the Hoosier daddy, 1838 style.

First off, where to find the law?

The Revised Statutes of the State of Indiana, Adopted and Enacted by the General Assembly at Their Twenty-second Session is the official version of the Revised Indiana Code of 1838.3 It’s not the first codified version of Indiana’s statutes — that was done for the first time in 1823 and published in 1824.4 But it is the first one with this particular statute.

The law begins by providing that any unmarried woman resident in Indiana who was pregnant or who delivered a child out of wedlock (a bastard child, in the language of the statute) had the right to file a complaint with any justice of the peace accusing any person of being the father of said child.5

The justice was to hold at which both sides could be heard, personally or through an attorney, and to ask questions. At the end of the hearing,

if … such accused person shall satisfactorily appear to be the father of the child so begotten, he shall pay or cause to be paid to the woman complaining, such sum or sums of money or other property as she may agree to receive in full satisfaction; and shall further enter into bond with the overseers of the poor of the township in which such woman shall reside, and their successors in office, conditioned to save such county free from all charges toward the maintenance of said child; and in case such person shall so comply with the requisitions of this act, then the justice shall discharge such person, on his paying the costs of prosecution.6

Now the man didn’t have to accept the outcome of the hearing. He could insist on a jury trial and, if he posted bond with sureties (or was locked up pending the trial), he’d get that jury trial. The record before the justice of the peace would be admitted in evidence to the jury, the mother of the child would be allowed to testify and all other evidence as to her credibility was to be received.7

If found guilty by the jury, or if he confessed in court that he was the father, then the man

shall be judged the reputed father of such child, and shall stand charged with the maintenance thereof, in such sum or sums as the court shall order and direct, with payment of costs of prosecution; and moreover be liable to the suit of the complainant for damages; and the court shall require the reputed father to give security to perform the aforesaid or der, and in case the reputed father shall refuse or neglect to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the proper county, there to remain until he shall comply with the order of the court, or until such court shall, on sufficient cause shewn, direct him to be discharged.8

If Dad didn’t pay up, or he fled (or escaped) to another jurisdiction, then the people who signed for him — his sureties on his bond — were on the hook “in the same way and manner as … against the principal … so far as related to the support of said child.”9

In short, the statute was an early form of child support order, the whole thing designed to keep the kid from becoming a drain on the public.

And, from a genealogical point of view, the perfect vehicle for the creation of records. Lots and lots of records.

Check the court records. You might just find your earliest Hoosier daddies.


SOURCES

  1. See Judy G. Russell, “Go read this,” The Legal Genealogist, posted 4 Dec 2014 (http://www.legalgenealogist.com/blog : accessed 23 Apr 2015).
  2. Of course, if Michael doesn’t hurry up and write up the installment where his mother finally meets her father, there may never be another posting, but hey… patience is not my long suit.
  3. See William Wheeler Thornton, Indiana Statutory Construction and Citations (Indianapolis, Bowen-Merrill Co., 1887), 1028-29; digital images, Google Books (http://books.google.com : accessed 23 Apr 2015). See also ibid.; digital images, HathiTrust Digital Library (http://www.hathitrust.org/ : accessed 23 Apr 2015).
  4. Ibid. See also Wikipedia (http://www.wikipedia.com), “Indiana code,” rev. 2 July 2014.
  5. §1, “An Act providing for the support of Illegitimate Childre”n (17 Feb 1838), Chapter LI in The Revised Statutes of the State of Indiana, Adopted and Enacted by the General Assembly at Their Twenty-second Session (Indianapolis: Douglass & Noel, printers, 1838), 330; digital images, Google Books (http://books.google.com : accessed 23 Apr 2015).
  6. Ibid.
  7. Ibid., §§ 3-5.
  8. Ibid., §6.
  9. Ibid., §12.
Posted in Resources, Statutes | Leave a comment

Don’t forget the appeals

One of the most powerful sources of genealogical information on the face of the earth is the military pension file.

Chock full of detail on everything from the military service of the soldier or sailor himself to the details of his family, military pensions often give us insights into family history that just can’t be found anywhere else.

DOISo it’s no wonder that any genealogist — The Legal Genealogist included — is thrilled to find the name of an ancestor or collateral relative on any list of those who were awarded pensions for military service.

And also no wonder that any genealogist — The Legal Genealogist included — is disheartened and discouraged on discovering that any particular family member didn’t live long enough to file for a pension.1

Where we occasionally go wrong, however, is in not pursuing the matter all the way when we think that a family member was alive at a time when he or she could have applied for and received a pension — but we don’t find the name on the pension list.

Because not everybody who applied for a pension got it.

And the records created when someone didn’t get a pension are still well worth the effort of tracking them down.

Here’s one clue to getting into those records that you might not have thought of before: the Decisions of the Department of the Interior in Appealed Pension and Bounty-Land Claims.

Up until 1930, administration of the military pension program was in the Department of the Interior. It was only in 1930 that the Bureau of Pensions was transferred to the Veterans Administration.2

And — starting in 1887 and running through to 1930 — the Department of the Interior prepared and published its decisions in appealed cases involving military pensions.

There were 22 volumes of decisions published and a quick online search turns up all of them, digitized, online, free. The best collection is at HathiTrust Digital Library, an online partnership of academic and research institutions, where you can find all but volumes 19 and 21-22 in full text in this collection from the University of Michigan. Volume 19 is at HathiTrust as well, in the collection from Harvard University, and the last two volumes (21-22) can be found here in the collection from the University of California.

You can also find some of these volumes digitized online at Google Books and at Internet Archive.

So… what might you find in one of these volumes?

Well, the most important thing you might find is the name of one of your relatives — someone who either applied for a pension and was denied, or who was a family member of a soldier ot sailor or a witness who just happened to be mentioned in the course of the opinion. Finding that reference can alert you to the fact that there’s a file out there that needs to be obtained and reviewed.

And although the opinions themselves tend to be brief and provide only snippets of information, those snippets alone can be pure gold.

• Andrew J. McIntire, who served in Company D of the 26th Kentucky Volunteers, had two neighbors submit affidavits that he’d been treated for lung ailments secondary to measles right after he was discharged from the service, but it wasn’t enough to convince the Interior Department that it was service related.3

• Joshua Pyle, who served in Company K of the 124th Pennsylvania Volunteers, became totally deaf as the result of concussion in the Battle of Antietam. In 1869, he was killed when he was hit by a train, and his widow Elizabeth argued that he wouldn’t have died if he hadn’t been deaf. The argument didn’t work: “such bald assumption is necessarily hypothetical,” the department said.4

• Walter Ingerick enlisted in the 143rd Regiment of the New York Volunteers in 1862 and died in service in 1864. Both of his parents sought a pension as his dependents. The father was given a pension; the mother was not because at the time of her son’s service “she abandoned her husband without good cause, and entered upon a life of shame and adulterous intercourse with one Lamen Hinckly.”5

See?

Even when a pension application is turned down, the facts you may find may be appealing indeed.


SOURCES

  1. See e.g. Judy G. Russell, “Chasing that pension file,” The Legal Genealogist, posted 20 Mar 2013 (http://www.legalgenealogist.com/blog : accessed 22 Apr 2015).
  2. See “History of Interior,” U.S. Department of the Interior (http://www.doi.gov/ : accessed 22 Apr 2015).
  3. Andrew J. McIntire, “Decisions of the Department of the Interior in Cases Relating to Pension Claims” (Washington, D.C.: Govt. Printing Office, 1887), I: 20-21; digital images, HathiTrust (http://www.hathitrust.org/ : accessed 22 Apr 2015).
  4. Ibid., Elizabeth T. Pyle, I: 27-29.
  5. Ibid., Jane Ingerick, I: 394-395.
Posted in Resources | 13 Comments

Now online

So… did you forget the webinar last night from the Board for Certification of Genealogists?

Did you encounter one of those oh-so-common problems, like life getting in the way of genealogy?

Are you sitting there this morning wishing you could have spared that hour last night to hear Jean Wilcox Hibben explain “Certified or Certifiable? Why a Genealogist Would Go Through All that Trouble”? She provided a lot of answers to questions about what the benefits of becoming Board-certified are, and what it means to work to standards, and even what the personal and financial rewards of certification can be.

BCG.webinarOr perhaps it was Jim Baker’s webinar that you now regret missing — his presentation “Elementary, My Dear Watson! Solving Your Genealogy Puzzles with Clues You Already Have” talked about how naming patterns, birth/marriage witness data, inheritance data, sibling research, timelines, family migrations and more can all contribute to a successful resolution to our problems.

Maybe you wish you could have sat in when F. Warren Bittner spoke about “Complex Evidence What it is, How it Works, Why it Matters.” He really showed how to take clues from a wide variety of sources, and weave them together in a compelling way to establish identity and prove relationships.

Or perhaps you wish now that other chores hadn’t had to take priority when Michael Hait talked about the administration of testate and intestate estates and the records created as a result. His presentation “‘Of Sound Mind and Body’ Using Probate Records in Your Research” showed why probate records are a key element of reasonably exhaustive research.

You might have wanted to know more about the kinship determination project — the KDP that is requirement 7 in a BCG applicant’s portfolio. And maybe you had other obligations when The Legal Genealogist presented “Kinship Determination: From Generation to Generation” back in October 2014.

You could have just been busy the night that Thomas W. Jones covered the changes in genealogy standards from the old BCG Standards Manual to the new-in-2014 Genealogy Standards book. His discussion of “Fine Wine in a New Bottle: Guidelines for Effective Research and Family Histories” was a must… except when life gets in the way.

So what do you do when life gets in the way?

You sit in afterwards when life gives you a break.

And now, finally, BCG has made it possible for you to do just that.

The first five webinars in the BCG webinar series are now available online; the sixth — Jean Hibben’s — will follow soon. Some in the series are and will be free. Most are or will be available to view or purchase for a reasonable fee — a fee, by the way, that’s necessary to ensure that the series continues.

So come on over to the BCG website and check out the BCG Webinars page.

You won’t be sorry.

Posted in General | 2 Comments

Where to find them

One of The Legal Genealogist‘s standard recommendations to folks heading out on research trips is to tuck a copy of the state’s records access laws into their research bags, in case they encounter a clerk or other official who hasn’t read it lately.

Then, when the clerk or official starts to say no to a request for access to records, the researcher can pull it out and — gently and politely and never ever confrontationally — ask the official to point out where in the law it says that this particular record can’t be accessed.

This isn’t for those times when the clerk says that the records can only be seen on Thursday afternoons from 1-4 p.m. or that there’s a fee for copying the records or that you have to wear white gloves (or can’t wear white gloves) when you handle the records. Those are all time, place and manner restrictions that may very well be within the official’s discretion.

No, the law comes out of the research bag when the answer flatly is “no: you can’t see those records at all.”

So… where do you find the state’s records access laws to tuck into your research bag to take with you?

LLSDCModern state law research can always start here: the State Legislatures links page of the Law Librarians’ Society of Washington, D.C.

This absolute gem of a website with its Legislative Source Book has a ton of information about legislative research resources, but this one page is what we need here: it pulls together all of the websites for all of the state legislatures across the country, with links directly to the state statutes and state administrative rules for each state.

When you land on the website for the state of interest, by clicking on a link for its code or statutes or laws (the terms are interchangeable), you will need to search for the access law, and there you may need to be a little creative.

The problem is that not every state uses the same language in its statute, and the laws aren’t all called records access laws. So you may need to think about the possible terms to use when you’re looking for whatever law the state has. Options to use include:

• Open records;

• Public records;

• Records access;

• Freedom of information;

• Inspect records;

• Right of access;

• Right to inspect.

And remember that you may need to use the advance search features of the legislative website if it offers them so that you can do what’s called boolean searching — where you search for one word within a certain distance of another.

Another tool to use to locate the exact section of the state statutes or laws that talks about records access is the Open Government Guide of the Reporters Committee for Freedom of the Press. It provides links to each of the states and then to the code or statute sections for each state. (Use the link for “View the PDF” on the right of each page.)

The only hitch there is that the guide hasn’t been updated since 2011 for most states and you’ll need to bring your research up to date — five years is a long time in legislative terms! Still, doing the research when you know that Indiana’s access law was in Indiana Code § 5-14-3 in 2011 is a whole lot faster than starting from scratch to find where in the code the law appears today. (FYI: it’s still there.)

And, by the way, don’t forget that some states have more than just a statutory commitment to records access; they’ve actually enshrined it in their constitutions. An example is California where, in 2004, voters added a Sunshine Amendment to the state constitution in Article I, §3(b): “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

Just another way that knowing the law makes us better — and more effective — genealogists.

Posted in Records Access, Resources | 9 Comments