Another open letter to my AncestryDNA cousins…

Please, please, please, dear cousins.

Please share your AncestryDNA autosomal testing data with your cousins.

You know.

People like me.

DNA.helixYes, I have tested with AncestryDNA.

Yes, I know that you and I match as second or third or fourth cousins there.

Yes, I know your family tree data and my family tree data seem to be pointing in a direction towards a match in this line or in that line.

But what neither of us can tell using the AncestryDNA site is… is that the right line?

The problem is that you and I might have it all completely wrong. Your tree, or mine, might be in error. We’re cousins, yes, but it may be in — say — the Robertson line and not the Jones line. Or the Cottrell line, not the Pettypool line.

To have a chance to nail it down with any degree of confidence, we need to combine the paper trail research with the actual DNA data: what DNA exactly do we really share?

The problem is, there’s no tool available at AncestryDNA that lets us take a look at the actual data:

How much overall DNA do you and I have in common? Are we at the high end or low end for second cousins? Are we really as likely to be second cousins once removed? Should we be looking a generation away for the common ancestors?

How big are the DNA segments we share? The bigger the segments, the more likely they are to be the result of actual shared inheritance, and not simply the roll of the genetic dice. Some segments are just too small to be meaningful.

Where are the segments we share, on what chromosomes? You and I aren’t likely to be cousins in the Robertson line if you and I don’t share any segments with any of my many Robertson kin who’ve tested. We may need to look at other possible lines to find our common ancestors.

So please… please, dear cousin. Share your actual testing data. There are two ways to do it, and both — at a basic level — are free.

First, please upload your data to the website I wrote about GEDmatch back in 2012 and even then called it a DNA geek’s dream site.

The only thing that’s changed since 2012 is that there are now some additional, fee-based goodies if you’re willing to pony up a little cash that I’m just starting to play with. But the overall basic functionality is still free. And it lets you really analyze your DNA results against those of others who’ve also chosen to upload to GEDmatch.

Read more about GEDMatch in my 2012 blog post here or in Kitty Cooper’s blog post here.

And second, please upload your AncestryDNA autosomal test data to Family Tree DNA. What’s called the Autosomal Transfer Program has two flavors, one paid and one free. The paid option, which only costs $39, is by far the better choice, but even the free one can get you started.

Family Tree DNA is a genetic genealogy DNA testing company that does autosomal testing as well as YDNA and mitochondrial DNA testing. What it offers that AncestryDNA doesn’t for autosomal testing is analytical tools. There, you can see how much DNA you have in common, how long your shared segments are, what chromosomes they’re on, who else you and a match share as a common match, and more. These are, really, the basic building blocks of using autosomal DNA data as part of good genealogical research.

The transfer system is explained on the Family Tree DNA website here, and there’s more that’s been written about it that you can read at, for example, Roberta Estes’ DNA-eXplained blog here, or Blaine Bettinger’s The Genetic Genealogist post here.

See, I really do want to work with you, cousin. But we can’t just click on shaky leaves. We need to look at the data. So… share with me, okay?

And if you’re that particular second cousin… I might even pony up the $39 fee for you…

Posted in DNA | 16 Comments

A second look at California’s 1850 law

(Note: In honor of, and to get ready for, The Legal Genealogist‘s trip to the San Mateo County Genealogical Society, this weekend, here’s a reprise of a second post about San Mateo’s sole traders!)

So last year The Legal Genealogist tackled the issue of California’s sole traders — women who, under an 1852 law, set up to do business in their own names even though they were married.1

That prompted a question from reader Stan Mitchell (and this answer, posted initially back then).

“My research includes Contra Costa County, California, and I’ve noticed that California Recorder’s Offices have registers for ‘Separate Property of Married Women’ or ‘Wives Property,’” he said. “If a women has an entry in one of these registers does it imply that she was a sole trader? Or did they have other uses too?”

Great question, and the answer is that those particular registers had an entirely separate purpose, and had nothing to do with the sole trader status of businesswomen in California.

We have to start here with the Spanish origins of California’s law. Remember that the Spanish Empire had laid claim to the land that became California as far back as the late 17th century, and those claims were taken over by Mexico after it won its war of independence from Spain in 1821.2

Then came the Mexican War with the United States, that finally ended with the Treaty of Guadalupe Hidalgo, signed on 2 February 1848. In that treaty, Mexico gave up its territorial rights to the land but extracted a promise from the United States to guarantee the property rights of the former Mexican citizens.3

And therein lies the tale. Because property rights under the Spanish law that Mexico had followed were not the same as under the common law inherited from England that the eastern United States knew and followed. And one of the biggest differences was in the law of property between husband and wife. The common law gave essentially all ownership and control over property to the husband. But Spanish law recognized separate property of husband and wife individually and community property owned by the two jointly.

The first Californians felt themselves obligated by the Treaty of Guadalupe Hidalgo to protect these property rights, and so wrote into the first Constitution of California, adopted in 1849, this language:

All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife’s separate property.4

And on 17 April 1850, the California Legislature passed a law putting this property scheme into effect.5

The 1850 Act began by recognizing the separate property rights of both husband and wife:

All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise, or descent, shall be his separate property.6

It went on to provide that “All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.”7

It did away with the wife’s right of dower in her husband’s estate and his right of curtesy in his wife’s estate.8 It provided for equal division of the community property if there was a divorce.9 If either the husband or wife died, the survivor got half of the estate if the decedent had descendants and all of it if there weren’t any descendants.10

Now the husband still had an awful lot of control. The statute gave him “the management and control of the separate property of the wife during the continuance of the marriage” but he couldn’t sell real estate or mortgage it without her written consent. Nor could he sell any of his wife’s personal property unless she joined in the sale.11

She had the right to ask the court to take that control away from him if she had “just cause to apprehend that her husband has mismanaged or wasted, or will mismanage or waste, her separate property” but that still didn’t give her management control. Instead the court could appoint a trustee — and the statute clearly expected that to be a man.12

So what does all this have to do with those record books Stan was wondering about?

Everything. Because §§ 3-5 of the statute provided:

      Sec. 3. A full and complete inventory of the separate property of the wife shall be made out and signed by the wife, acknowledged or proved in the manner required by law for the acknowledgment or proof of a conveyance of land, and recorded in the office of the recorder of the county in which the parties reside.
      Sec. 4. If there be included in the inventory any real estate lying in other counties, the inventory shall also be recorded in such counties.
      Sec. 5. The filing of the inventory in the recorder’s office shall be notice of the title of the wife, and all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.13

Read that last line again: “all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.”

That’s why those books recording women’s separate property exist:

     • When E.S. (Ella) Maynard went into the San Mateo County Court in October 1856 and filed her inventory of her property, she was permanently protecting from her husband John’s debts a separate estate consisting of more than 1,000 acres of land, “seven horses, six cows, 12 Chinese Sheep, two ploughs, three double and one single set of harness, two buggy waggons and a lot of fowls numbering one hundreds and twenty five or thereabout.”14

     • When Bridget Brophy filed her inventory in October 1858, she was declaring that 10 horses, 19 cows, 14 heifers, 14 calves, two yoke of oxen, one ox wagon, one spring wagon, one hay press, four ploughs, one harrow, one bull and a quantity of oats, barley and wheat were “not liable to be seized by attachment or execution for or on account of any debts due, contracted or owing by” her husband John Brophy.15

     • When Ann E. Keller declared in July 1865 that Block 174 in the eastern addition to Redwood City was hers, she protected it from any debts incurred by her husband George.16

     • And when Elizabeth Mead came into court in 1871, she was protecting the family farm of 104 acres and 15 head of horned cattle, six horses and colts, a spring wagon, farming utensils including harnesses, ploughs, harrows and rakes, about 150 chickens, about 50 turkeys, about 150 ducks, one piano and all the furniture.17

Separate property.

Separate debts.

And the wolves kept from the farmhouse door.

And I can surely be forgiven if I add — and some really cool records for 21st century genealogists…


  1. Judy G. Russell, “California’s sole traders,” The Legal Genealogist, posted 20 Feb 2013 ( : accessed 27 Feb 2013).
  2. Wikipedia (, “History of California to 1899,” rev. 22 Feb 2013.
  3. Article VIII, “Treaty of Guadalupe Hidalgo; February 2, 1848;” html version, Yale Law School, Avalon Project ( : accessed 27 Feb 2013).
  4. California Constitution (1849), Article XI, § 14; California State Archives ( : accessed 27 Feb 2013).
  5. See, generally, Walter Loewy, “Spanish Community of Acquests and Gains and Its Adoption and Modification by the State of California,” 1 California Law Review 32 (1912); online at (accessed 27 Feb 2013).
  6. § 1, “An Act defining the rights of husband and wife,” 17 April 1850, in Theodore H. Hittell, The General Laws of the State of California: from 1850 to 1864, Inclusive (San Francisco : Bancroft & Co., 1872), I: 516; digital images, Google Books ( : accessed 27 Feb 2013).
  7. Ibid., § 2.
  8. Ibid., § 10.
  9. Ibid., § 12.
  10. Ibid., § 11.
  11. Ibid., § 6.
  12. Ibid., § 8.
  13. Ibid., §§ 3-5.
  14. San Mateo County, California, Separate Property of Married Women and Sole Traders, Book 1: 1, Inventory of E.S. Maynard, 1 Oct 1856; County Recorder, San Mateo County, Redwood City, California; digital images, “California, San Mateo County Records, 1855-1991,” ( : accessed 27 Feb 2013).
  15. Ibid., Book 1: 19, Inventory of Bridget Brophy, 29 Oct 1858.
  16. Ibid., Book 1: 78, Inventory of Ann E. Keller, 7 July 1865.
  17. Ibid., Book 1: 98, Inventory of Elizabeth Mead, 14 June 1871.
Posted in Statutes | 1 Comment

Affirmative action 1850s style

(Note: In honor of, and to get ready for, The Legal Genealogist‘s trip to the San Mateo Genealogical Society, this weekend, here’s a reprise of this post about San Mateo’s sole traders!)

On the 29th of December 1856, Catherine Underwood went into court in San Mateo County, California, and swore to a remarkable statement:

That from this date henceforth she intends to carry on business in her own name. That said business which she intends to so carry on is the business of General Merchandizing … That said Merchandizing consists in the buying and selling of groceries dry goods shingles Posts and Rails &c …1

“So what’s so remarkable about that?” you might ask. Look at the date again. It was 1856. And a woman — a woman! — was going into business for herself.

And not just any woman, mind you, but a married woman. A married woman who, by 1860, would have not just a husband, Charles, by then age 32 and a farmer, but two small children — a girl age 3 and a boy just a year old.2

And she — she, not he — would be shown on that 1860 census with real property valued at $2,000 and personalty valued at $7,000.3

Nor was she alone.

On 19 November 1856, Anna Dorothea Panke went into court and swore she was going into business in her own name — the business of “arranging and giving of balls and concerts in the keeping of a barroom and saloon and in the buying and selling of wines and liquors also in the farming of land raising of crops and produce.”4

On 2 November 1857, Lucinda Ford told the local judge she was going into business for herself “ranching and sawing lumber, raising produce, buying and selling stock, manufacturing & selling lumber shingles posts & Rails.”5

And on 20 October 1859, Emma Church — then still a teenager — went into court and said she was going into business in her own name “farming and raising stock.” And on the 1860 census, you can find Emma, then 20, and her doctor-husband W. D. Church, and their five-month-old son William — and it’s Emma with the assets: $200 in real property; $500 in personal property.6

Okay… what’s going on here? Women — married women — in the 1850s just didn’t go into business for themselves.

Except, that is, in California.

Because on the 12th of April 1852, the California Legislature approved a statute that proclaimed, in section 1, that “Married women shall have the right to carry on and transact business under their own name, and on their own account, by complying with the regulations prescribed in this act.”7

Now a married woman had to jump through a lot of hoops in order to do this. She had to publish her intention for four weeks in the newspaper, she had to appear in court and prove that she wasn’t doing it to defraud her husband’s creditors, she had to get court approval and had to swear she was going into business with her own money to support herself and her children.8

If she managed to jump through all the hoops, then “the property, revenues, moneys, and credits, so invested, shall belong exclusively to such married woman, and shall not be liable for any debts of hor husband; and said married woman shall be allowed all the privileges, and be liable to all legal processes, now or hereafter provided by law against debtors and creditors, and may sue, and be sued, alone, without being joined with her husband.”9

And, if she pulled it off, she — and she alone — was responsible for supporting her children10 and her husband wouldn’t be responsible for any of her debts.11

California wasn’t the only state to recognize sole trader status for women. Colonial Pennsylvania and South Carolina had also done so,12 and Massachusetts passed a sole trader law in 1787.13

But nowhere was the law as expansive as early as in California. The woman’s husband didn’t have to be absent. She didn’t have to show she needed the money or she and her kids would starve — just that she would use the proceeds to support herself and the children. Many women with good and enduring marriages took sole trader status. It protected them — and their family asserts — just in case… and it gave them rights other states didn’t grant for decades.

Now not everybody played by the rules here. Clearly some of these women went into business in name only. For example, in 1857, Hannah Duffy, wife of James Duffy, went into court and swore that she was going into business in her own name, into buying and selling real estate and farming.14 But on the 1860 census, it’s James who was the farmer with $2000 in real estate and $500 in personalty. Hannah was undoubtedly occupied with their five children, ranging in age from 15 down to 3.15

And Bridget McEvoy, wife of John McEvoy, told the court in December 1857 that she was going into the “ordinary business of Farming and raising Stock.”16 Yet it was John who showed up on the 1860 census as the farmer with all the assets — $6,000 in real property and $4,000 in personalty. He and Bridget by then had six kids ranging from 12 down to one.17

For many California women, however, it was a means to the end of financial stability… and some independence… in their own names and their own right.

Affirmative action 1850s style.


  1. San Mateo County, California, Separate Property of Married Women and Sole Traders, Book 1: 3, Affidavit of Catherine Underwood, 29 Dec 1856; County Recorder, San Mateo County, Redwood City, California; digital images, “California, San Mateo County Records, 1855-1991,” ( : accessed 19 Feb 2013).
  2. 1860 U.S. census, San Mateo County, California, population schedule, p. 73 (stamped), dwelling 218, family 204, Underwood household; digital image, ( : accessed 18 Feb 2013); citing National Archive microfilm publication M653, roll 65; imaged from FHL microfilm 803065.
  3. Ibid.
  4. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 7, Affidavit of Anna Dorothea Panke, 19 Nov 1856.
  5. Ibid., Book 1: 10, Affidavit of Lucinda Ford, 2 Nov 1857.
  6. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 47 (stamped), dwell. 4, fam. 4, Church household.
  7. § 1, “An Act to authorize married women to transact business in their own name as sole traders,” 12 April 1852, in Theodore H. Hittell, The General Laws of the State of California: from 1850 to 1864, Inclusive (San Francisco : Bancroft & Co., 1872), I: 1024; digital images, Google Books ( : accessed 19 Feb 2013).
  8. Ibid., § 2.
  9. Ibid., § 3.
  10. Ibid., § 4.
  11. Ibid., § 6.
  12. Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Pres, 1986), 44-46.
  13. Jone Johnson Lewis, “Property Rights of Women:
    A short history of women’s property rights
    ,” Women’s History ( : accessed 19 Feb 2013).
  14. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 6, Affidavit of Hannah Duffy, 1 July 1857.
  15. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 74 (stamped), dwell. 230, fam. 216, Duffy household.
  16. San Mateo Co., Separate Property of Married Women and Sole Traders, Book 1: 11, Affidavit of Bridget McEvoy, 19 Dec 1857.
  17. 1860 U.S. census, San Mateo Co., Cal., pop. sched., p. 94 (stamped), dwell. 407, fam. 393, McEvoy household.
Posted in Statutes | 8 Comments

Next in an occasional series on copyright

October of every year is designated as Archives Month, and archives around the country try to do something special in recognition of Archives Month.

contractToday and tomorrow, for example, the National Archives is continuing its Virtual Genealogy Affair with talks by archivists and other experts on a wide variety of topics.

And yesterday the Pennsylvania State Archives hosted its annual Archives and Records Management in Harrisburg, with presentations ranging from cloud storage to data breaches to copyright issues.

It was that last topic that brought The Legal Genealogist to Harrisburg, and — as is often the case — one question that kept coming up time and again:

If a volunteer contributes articles or photographs to the newsletter or journal or website of a small archives — a genealogical society or an historical society, for example — who owns the copyright?

And the answer always seems to take the societies by surprise.

It’s the volunteer who owns the copyright.

First off, let’s call the volunteer the author. That’s the term the copyright law uses for the creator of any original work that is even eligible for copyright protection.1

And under the copyright law, unless the group putting out the newsletter or journal or website and the author agree otherwise, the author is also going to be the owner of the copyright. That protection comes into being automatically, the minute the work is created: “Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.”2 It doesn’t have to be registered in the Copyright Office3 and it doesn’t have to have a copyright notice on it.4

Now in many cases, who owns the copyright doesn’t matter. The author gives the publisher permission to publish the item and that’s all the society needs. The society then has what’s called a compilation copyright on the entire publication, and that protects the society against having the whole newsletter or journal or website copied willy-nilly by someone else.5

But let’s say, just as one very common example, the volunteer author wrote an article and took a photograph 10 years ago, and gave the society permission to include them in the newsletter. Now the society wants to put its newsletter online. But that original permission to publish in one print item probably doesn’t cover republishing digitally or online.6

So how can a society make sure it can use what its volunteers contribute well into the future, no matter how the technology changes, without running into problems?

One of three ways:

• It can make sure that all volunteer authors sign a broad permission to publish that covers all future uses and re-uses of the material. Something along the lines of “I hereby give the society my irrevocable permission to publish and republish this item in any format, print or otherwise, that exists now or may be developed now or in the future” would pretty much take care of it.7

• It can ask the volunteer author to sign a written agreement giving the society the copyright. The law is clear that “Any or all of the copyright owner’s … rights may be transferred,” as long as it’s “in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”8

• If it asked the volunteer author to prepare the article or photo, it can ask the author to agree that the specific item is a work for hire. That covers things “specially ordered or commissioned for use” as a contribution to a collective work or as part of a compilation.9 But it’s only a work for hire “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”10 If both sides agree, then the society would own the copyright.11

By the way, the answer does not change if the authors are paid for their articles or photographs. The law still automatically gives the copyright to the author unless there is a written agreement to transfer the copyright to the publisher or that the work is intended to be a work for hire.


  1. See “Who is an author?,” Frequently Asked Questions: Definitions, U.S. Copyright Office ( : accessed 28 Oct 2014).
  2. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 ( : accessed 28 Oct 2014).
  3. Ibid., PDF at p. 3.
  4. Ibid., PDF at p. 4.
  5. See U.S. Copyright Office, Circular 14: Copyright in Derivative Works and Compilations, PDF version at p. 2 ( : accessed 28 Oct 2014).
  6. See e.g. Jenn Webb, “The digital rights quagmire,” O’Reilly TOC, posted 4 Oct 2011 ( : accessed 28 Oct 2014).
  7. My usual “I do not give legal advice” caveat applies here. If you need guidance trying to write a contract, talk to a licensed attorney in your jurisdiction.
  8. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 6.
  9. 17 U.S.C. §101, “work made for hire.”
  10. Ibid.
  11. See U.S. Copyright Office, Circular 9: Works Made for Hire, PDF version ( : accessed 28 Oct 2014).
Posted in Copyright | 4 Comments

How old was he…?

So many times, in genealogy, our ability to construct an argument that this person is related to that person in just this way depends on figuring out just how old somebody was at the time of a specific event.

oregonAnd we often don’t have direct evidence of age in the form of a birth certificate or even a death certificate — even if we could be reasonably confident the information on the death certificate was correct.

So we rely, as researchers, on clues that we extract from other bits and pieces of information we can gather on our subjects.

Things like: how old would he be if he was in the militia? How old did he have to be to marry without parental consent?

And where do we find out how old he’d have to be?

Oh, The Legal Genealogist loves that question.

The answer, of coure, is in the law.

Some of the answers may come directly from a document like a colonial charter, or the statute creating a territory. Some will come from the laws passed by the legislature.

A handful of examples, drawn from early Oregon law, since Oregon is where The Legal Genealogist was this past weekend — and from a time so early it was still a territory of the United States:

• How old did someone have to be to vote in the Oregon Territory? He had to be 21 — and I use the term he with deliberation. The statute creating the territory in 1848 provided that you had to be a “white male inhabitant” to cast your ballot.1 It stayed the same under the Oregon territorial statutes: white, male, age 21 to vote.2

• How old did you have to be to claim federal land in Oregon under the Donation Land Act of 1850? It may surprise you to find teenagers in those early land records — because the law simply said you had to be above the age of eighteen years.3

• If you come across an Oregon court record that says John Smith was served with a copy of a court suit, how old did John Smith have to be? He could have been as young as fourteen under early Oregon law. All that the first civil procedure code required was that the papers be served to “some white person of the family, above the age of fourteen years, at the dwelling-house or usual place of abode of the defendant.”4

• If a witness was subpoenaed to come into court and testify, how old would that witness likely have been? Under Oregon law, unless the court went beyond the usual, the witness would have had to have been at least 10 years old.5

• If that same court file tells us that Joseph Jones is the one who served the subpoena for the witness, how old did Joseph Jones have to be? The evidence code said he’d have had to be at least 18 years of age.6

• And if the records of the trial where the 10-year-old testified say that James Johnson was a member of the jury, do we know how old James Johnson had to be? We do if we look at the statute: he had to be at least 21, but no older than 60.7

• To make a will disposing of real property — land — in early Oregon, a person had to be at least 21 years of age. But he could make a perfectly valid will disposing of personal property at the age of 18.8

• Men listed in a road order — the people responsible for building and maintaining the roads in a neighborhood — had to be between the ages of 21 and 50.9

• To marry in territorial Oregon, a boy had to be 18 years of age and a girl 15 years of age.10 Parental consent was needed if the boy was under age 21 or the girl under age 18.11

Now many of these age provisions give a wide range so it may well be necessary to combine several in order to narrow down an age and make a credible decision whether the individual was this age or that age.

But when no one document provides the answer, every clue we can get is a Good Thing.


  1. §5, Act to Create the Territory of Oregon, in The Statutes of Oregon (Oregon: Asahel Bush, public printer; 1855); digital images, Google Books ( : accessed 26 Oct 2014).
  2. Ibid., §1, Title I, at 64.
  3. Ibid., §4, Donation Land Act of 1850.
  4. Ibid., §29, Title 3, Civil Procedure, at 86.
  5. Ibid., §4, Title 1, Evidence, at 130.
  6. Ibid., §10, at 132.
  7. Ibid., §1, Chapter 1, Jurors, at 188.
  8. Ibid., §1, Chapter 1, Wills, at 384.
  9. Ibid., as to road crews, at 500.
  10. Ibid., §2, Marriages, at 534.
  11. Ibid., §5.
Posted in Constitutions, Legal definitions, Statutes | 2 Comments

Sometimes we just have to

The Legal Genealogist‘s light reading just before setting off for this trip to Oregon for the Genealogical Forum of Oregon’s fall seminar was the current issue of the National Genealogical Society Quarterly (NGSQ).

DNAIt’s one of the best ways to see how the Genealogical Proof Standard (the GPS, for short) is actually applied to solve some of our most complex genealogical problems.

You know, the kind of genealogical problems you and I have all over our family trees?

The ones we grapple with each and every day?

The ones we often refer to as brick walls?

Yeah, those.

The first and most essential step of the GPS is this:

Reasonably exhaustive research—emphasizing original records providing participants’ information—for all evidence that might answer a genealogist’s question about an identity, relationship, event, or situation.1

We apply the GPS to our research “to measure the credibility of conclusions about ancestral identities, relationships, and life events.”2 And each part of the standard “contributes to a proved conclusion’s credibility.”3

And, in particular, “Reasonably exhaustive research ensures examination of all potentially relevant sources. It minimizes the risk that undiscovered evidence will overturn a too-hasty conclusion.”4

So… what does this have to do with DNA?


More and more, we are all running into cases where DNA is an obvious candidate to be included among those “potentially relevant sources” and where it clearly can provide “evidence that might answer a genealogist’s question about an identity, relationship, event, or situation.”

Whether we can reliably place this man into that man’s family can often be proved or disproved using YDNA — the kind of DNA that only men have and that passes down the generations from father to son to son with very few changes over time.5

Whether we can reliably say that this child should be assigned to that mother can similarly often be proved or disproved using mitochondrial DNA (mtDNA) — the kind of DNA we all have and all receive from our mothers, who received it from their mothers, who received it from their mothers, again passing through the generations with very few changes over time.6

And whether we can reliably put this man together with that woman as brother and sister or cousins or relatives of any stripe may depend, in part, on whether the two people we want to tie together are close enough in time for DNA testing of available candidates to help shed light on their relationship. For that, we’d use autosomal DNA testing — looking at the kind of DNA we all inherit from both of our parents and that can help support a proof argument that two people do belong on the same branch of the family tree.7

So… what does this have to do with DNA and the NGSQ?

In this current issue, the NGSQ editors devoted their editorial to DNA testing. You’ll have to read the whole thing for yourself. (You are a member of the National Genealogical Society, right? If not, you should be, and you can read more about joining here. It may be the best $65 you ever spend in genealogy.)

But here’s the bottom line.

While recognizing that “Not every case requires genetic results” in order for the GPS to be met, editors Melinde Lutz Byrne and Thomas W. Jones noted the increasing utility of DNA testing, its extraordinary value in some of the complex cases reported in the NGSQ and said that “in 2014 the Quarterly for the first time deferred accepting a paper because the author’s conclusion seemed to need DNA-test support.”8

In other words, to meet the standards of genealogy’s best practices, to conduct reasonably exhaustive research, to resolve complex genealogical problems, to break down our personal brick walls — to do what we all want to do for our own families –sometimes DNA is something we just have to do.


  1. Board for Certification of Genealogists, Genealogy Standards (Nashville, Tenn. : Ancestry, 2014), 1.
  2. Ibid.
  3. Ibid., at 2.
  4. Ibid.
  5. ISOGG Wiki (, “Y chromosome DNA tests,” rev. 5 March 2014.
  6. ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 9 July 2014.
  7. See ISOGG Wiki (, “Autosomal DNA,” rev. 26 July 2014. See also Judy G. Russell, “Autosomal DNA testing,” National Genealogical Society Magazine, October-December 2011, 38-43.
  8. Melinde Lutz Byrne and Thomas W. Jones, “Editor’s Corner,” National Genealogical Society Quarterly, Vol. 102, No. 3 (Sep. 2014).
Posted in DNA, Methodology | 31 Comments

The infant terrorist

There is a special reason why The Legal Genealogist is so very happy to be in Portland for today’s seminar of the Genealogical Forum of Oregon.

Two special reasons, as a matter of fact.

One of them is named Beatrix, and she was born in July. She is the latest twig on our family tree, my great niece.


The other one is her older sister, Isadora (a/k/a “Isadorable”), who is just a little past two and totally in love with her baby sister.


And they are alive because of me.

It all began just a few years ago1 when their father, my nephew Ian, was an infant.

My sister’s first-born, he was a bit of a difficult baby — in part, perhaps, because he was the first-born, and the new mother’s tension over every sniffle and cry was being communicated to the infant.

She did her best to handle it all herself but finally, right around two o’clock in the morning when he was perhaps two months old, she called me in tears. He wouldn’t stop crying, he seemed colicky, she didn’t know what to do.

I had just read an article in a New York newspaper entitled, as I recall, “The Infant Terrorist.”

It described a child very much like Ian, and a parent’s lament very much like my sister’s. And it was hilariously well done.

I found it and read it to Ian’s mother as she sat, rocking him in her rocking chair.

She laughed as I read.

And the baby’s crying got softer.

We got to the parts about the crying and colicky issues, and she laughed out loud.

And the baby stopped crying.

Now the main thrust of the article was that babies (and children) do what they do just long enough to drive their parents right to the brink of infanticide … and — if they are to live to adulthood — then stop and do something else.

I figure I helped Ian stop and do something else, thus saving his life.

And since I saved his life, he thrived and grew and married and became a father on his own.

So, you can see, Ian’s children are alive because of me. Part of my legacy to my family.

Or at least that’s my story, and I’m sticking to it.

They are gorgeous, aren’t they?


  1. Okay, so it was a few decades ago.
Posted in My family | 22 Comments

Discounts on registration!

It’s really a bummer, not being independently wealthy, isn’t it?

Early birdSigh.

Somehow there’s always more genealogy we want to do than we have time or money for.

Life just isn’t fair!

But being an early bird can pay off, especially if you’re interested in hearing The Legal Genealogist over the next few months.

So here are some key early bird dates to keep in mind.

For folks in New Jersey, New York and environs

The early bird registration discount for the Genealogical Society of Bergen County’s Annual Seminar only runs through tomorrow, October 25.

The seminar will be held at the Bergen County Law & Public Safety Institute building in Mahwah on Saturday, November 22, and you can save yourself a few dollars by registering by tomorrow’s early bird deadline.

If you’re a GSBC member, the early bird registration is $40; for non-members, it’s $55. (And yes, you get the discount if you join GSBC when you register!) After October 25, registration goes up to $45 for members and $60 for non-members.

I’ll be talking about tracking down the family of a closed-mouthed 20th century immigrant using circumstantial evidence, women and the law, all those lovely records we get when someone dies, and, of course, my favorite topic: the family black sheep.

You can get all the details and register here at the GSBC website.

For folks interested in professional genealogy

November 15th is the early bird deadline to register for the Association of Professional Genealogists’ Professional Management Conference, to be held in Salt Lake City on January 8-9, 2015.

Early bird registrants for this two-day event — which offers a ton of great presentations not just for professionals but for any genealogist interested in becoming a professional or interested in ensuring that we work at a professional level for our own families — save a bunch of money.

The early bird registration fee for the whole conference is $165 for an APG member and $245 for a non-member; after November 15th, it goes up to $210 for a member and $310 for a non-member.

For those who are age 25 and younger (and you don’t have to already be a professional!), the early bird price is $100 — and that discount won’t be available at all after November 15th, so you really want to be an early bird here!!

Information on the full conference and registration details can be found here on the APG website. I’ll be talking about how to find all those laws I keep telling folks are important — and there are many other terrific speakers offering a full range of presentations!

For New Englanders

Early bird registration just opened for the 2015 New England Regional Genealogical Conference, to be held April 15-15, 2015, in Providence, Rhode Island.

This every-other-year conference is not to be missed and, in 2015, Lisa Louise Cooke and I will be co-anchoring what is clearly a star-studded speaker list.

Early bird registration is $120 through 28 February 2015.
Registration after 28 February 2015 is $150.

My topics will include using court records in genealogy, copyright law for genealogists, women and the law, records access and more, and the topic list for the conference as a whole — well, I can’t do it justice. You’ll just have to look it over yourself here.

More information on the 2015 NERGC can be found here and if you’re ready for that early bird discount, you can register online here.

Added: For Virginians!

My original post left one out… there’s still time to get the early bird discount for the Genealogical Research Institute of Virginia Fall Conference in Midlothian on November 8th!! You can save $5 by registering before November 1: the early bird registration fee is $47 for GRIVA members and $57 for non-members.

This all-day conference will include everything from copyright law to the sidesplitting antics of our misbehaving ancestors (really — trust me — they’re a hoot!) and I’ll be happy to see lots of Virginia friends there.

More information on the GRIVA event can be found here and if you’re ready for that early bird discount, you’ll need to get your registration postmarked by November 1 (the online form isn’t working, so use the mail!).

Posted in General | Leave a comment

Benefit of clergy, wager of “battle,” and petit treason

(Note: In honor of, and to get ready for, The Legal Genealogist‘s trip to the Genealogical Forum of Oregon this weekend, here’s a reprise of this 2012 post about Oregon’s criminal laws!)

Those readers whose ancestors helped settled the Oregon Territory will be pleased, no doubt, to know that, from its earliest days, Oregon’s statutes expressly abolished the “plea of benefit of clergy, wager of battle, and the distinction between murder and petit treason.”1

Oregon Territorial Statutes

Oregon Territorial Statutes

Then again, without a legal dictionary close at hand, maybe you’re not so sure…

The plea of benefit of clergy was an old English (and early American) method of getting out from under the death penalty in some cases. It started out in England as a way to get clergymen out of the secular — state-run — courts and into the ecclesiastical — church-run — courts for most offenses. But it morphed into a privilege first for anybody who could read and then for anybody who knew enough to ask for it to get out of a death sentence for first-time offenses.2

The reason for the concept in the first place was that the death penalty was originally the penalty of choice for just about any crime, including a variety of theft crimes. By colonial times in America, fewer offenses carried the death penalty but they still included grand larceny.3

So what exactly happened with the benefit of clergy? First the person had to be convicted of a felony. Then he had to claim benefit of clergy. Originally, he had to prove he could read — generally the first verse of Psalm 51 (“Have mercy upon me, O God, after thy great goodness; according to the multitude of thy mercies do away mine offences”).4 Later, in some colonies and in early state laws, that requirement was dropped. If the courts granted the benefit, the person was branded in the hand with a hot iron.5

By the time the Oregon Territory was passing its statutes — and the Territory was created in 18486 — the death penalty there was pretty much confined to first degree murder.7 Even second degree murder provided only for a life sentence.8 And so the benefit of clergy wasn’t part of Oregon’s scheme from the beginning.

Wager of battle, as it was spelled in the Oregon statutes, or battel, as it was typically spelled, was “a species of trial introduced into England, among other Norman customs, by William the Conqueror, in which the person accused fought with his accuser, under the apprehension that Heaven would give the victory to him who was in the right.”9 A law dictionary that was fairly contemporary with the Oregon statutes simply described this as a “superstitious mode of trial which till lately disgraced the English law.”10 So… um… er… no. Not part of the scheme of things on this side of the Atlantic.

And then comes petit treason. In English law, this was the “killing of a master by his servant; a husband by his wife; a superior by a secular or religious man.”11 As explained in Blackstone’s Commentaries on the Law:

Treason… in its very name … imports a betraying, treachery, or breach of faith. It … is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, … and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such his superior or lord. … for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons.12

So this was, in essence, a special breed of murder, and it carried a special penalty. A man convicted of petit treason was to be drawn to the place of execution and then hanged. A woman was to be burned at the stake.13 In some cases, such as the execution of Catherine Bevan of New Castle County, Delaware, in 1731 for the murder of her husband, the sheriff would hang the woman over the pile of wood in the hopes that she might strangle quickly and be spared the burning. In that case, the rope failed, the woman fell into the fire “and had to be pushed back into the flames, and held there by the sheriff and the crowd, while she died a lingering and horrible death, in conformity with the sentence of the Court.”14

Um… not that in Oregon either. Plain old ordinary murder, not petit treason, and plain old ordinary penalties.

See? Told you you’d be pleased to hear of the changes…


  1. Chapter XIII, General Provisions Concerning Crimes and Punishments, § 11, The statutes of Oregon: Enacted, and continued in force, by the Legislative Assembly, at the fifth and sixth regular sessions thereof (Oregon : Asahel Bush, public printer, 1855), 238; digital images, Google Books ( : accessed 15 Jul 2012).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 128, “benefit of clergy.”
  3. Linda Rowe, “The Benefit of Clergy Plea,” Research Division, Colonial Williamsburg ( : accessed 15 Jul 2012).
  4. Black, A Dictionary of Law, 128, “benefit of clergy.”
  5. Rowe, “The Benefit of Clergy Plea.”
  6. See “An Act to establish the Territorial Government of Oregon,” 9 Stat. 323 (14 Aug 1848.)
  7. Chapter III, Of Offenses Against the Lives and Persons of Individuals, § 1, The statutes of Oregon.
  8. Ibid., § 3.
  9. Black, A Dictionary of Law, 1230, “wager of battel.”
  10. 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 15 Jul 2012), “wager of battel.”
  11. Ibid., “petit, treason.”
  12. William Blackstone, Commentaries on the Laws of England, Book the Fourth: Of Public Wrongs (Oxford : Clarendon Press, 1765-1769), 75; html version, Yale Law School, Avalon Project ( : accessed 15 Jul 2012.)
  13. Wikipedia (, “Petty Treason,” rev. 10 Sep 2014.
  14. Charles H. Browning, Welsh Settlement of Pensylvania (sic) (Philadelphia : William J. Campbell, 1912), 170 n.*; digital images, Google Books ( : accessed 15 Jul 2012).
Posted in Legal definitions, Statutes | Leave a comment

The Beaver State

(Note: In honor of, and to get ready for, The Legal Genealogist‘s trip to the Genealogical Forum of Oregon, this weekend, here’s a reprise of this 2012 post about Oregon’s constitution!)

It was 1848 when it became a territory; nearly nine more years passed before it took the legal steps needed to allow it to become the 33rd state admitted to the union.1

It gave up its original motto — “She Flies With Her Own Wings” or Alis Volat Propiis in Latin — in favor of “The Union” in 1957, but took it back as the official motto in 1987.2 It’s called the Beaver State3 and the beaver is even depicted on the reverse side of its state flag.4

It is Oregon, the 9th largest state in size at 98,380 square miles and the 27th in population at 3.8 million in 2009.5 And, although the document has been amended many times, it’s had one — and only one — constitution for more than a century and a half.

The land that eventually became the State of Oregon was originally claimed by Great Britain, France, Spain and even Russia, based on early explorations in the area. Spanish claims over the area were relinquished to the United States by the early 1800s; Russia gave up its claims in separate treaties with Great Britain and the United States; France pretty much abandoned its North American claims after the Louisiana Purchase.6

Oregon Country

England and the United States — the two major players in the region — were the two most likely to come to blows over the territory and, by the Convention of 1818, agreed to share control over the area west of the Rocky Mountains while setting the northern border from Minnesota to the Rocky Mountains at the 49th parallel.7

The agreement was less than a ringing success. Nobody — least of all the settlers flooding into the region after the opening of the Oregon Trail around 18408 — accepted it as a permanent solution. The settlers themselves formed a provisional government in 1843, and control over the region became a hot political issue when Democrats urged the American government to seize control north to Parallel 54°40′ — prompting the slogan “Fifty-Four Forty or Fight!”9

In 1846, the issue was peacably settled by treaty between the United States and Great Britain that set the northern boundary between the United States and British Canada, for once and for all, at the 49th parallel.10

Oregon Territory 1848

It still took two years and an intervening massacre of a missionary couple that roiled public opinion before a territorial government was initiated11 and the area officially called the Territory of Oregon, established as a free territory on 14 August 1848.12

Originally, the Territory encompassed all of what is today Oregon, Washington and Idaho, and parts of what became Montana and Wyoming. In 1853, the Washington Territory was formed, taking with it what became Washington and parts of Idaho and Montana.13

The Oregon Territorial Legislature considered the question of trying for statehood in 1854, 1855 and 1856, finally passing a bill authorizing a constitutional convention at the end of 1856. Voters approved the notion at an election in June 1857 where 60 delegates were selected for a constitutional convention.14

Some 60 delegates met starting 17 August 1857 and agreed on a proposed constitution on 18 September. It was approved by popular vote on 9 November 1857 — and that was the legal step needed to ask for admission as a state.15 Congress then approved Oregon statehood on 14 February 1859,16 and that is when the one and only Constitution Oregon has ever had went into effect.

That Constitution, as it was originally adopted, is held by the Oregon State Archives, which has a terrific web exhibit called “Crafting the Oregon Constitution: Framework for a New State.” And the Oregon Historical Society’s copy of the draft of that 1857 constitution is online as a PDF file. The Oregon Bluebook has digital images of the 1857 Constitution online, and a print version is on Google Books as well.

The Constitution reflected the times in which it was written, and so it was decidedly anti-Negro and anti-foreigner and skeptical of both corporations and banks. It was ruthlessly penny-pinching, and rigorously separated church and state. Among its provisions:

     • Six separate sections of Article I, the Bill of Rights, both protected the free exercise of religion and yet provided that public money couldn’t even be used to pay for religious services (such as a chaplain) in either house of the Legislature.17

     • Only “white foreigners” who were or thereafter became residents could have equal property rights as native-born citizens.18 No Chinaman who was not a resident of Oregon in 1857 could ever hold or work on a mining claim.19

     • Only white male citizens could vote20 and suffrage was expressly denied to any “negro, chinaman, or mulatto.”21 The Constitution required a census in 1865, but only of all the white population of the State22 and apportionment of the state legislature was based only on the white population.23

     • The Governor was elected for a four-year term and could only serve eight out of any 12 years.24 He was also to serve as the state’s school superintendent.25

     • The budget had to balance: if any year ended with the state in the red, a special tax had to be assessed the following year.26 Salaries were set for top state officials: $1500 for the Governor and Secretary of State, $800 for the Treasurer, and $2000 for the Supreme Court justices.

The very first amendment to the Oregon Constitution came in 1902, when the initiative and referendum process was approved.27 Since then, more than 200 amendments have been adopted, many by way of citizen initiatives. Among those resulting from initiative and referendum are the direct primary system (1904); authorizing recalls of elected officials (1908); requiring indictment by grand jury (1908); abolishing poll taxes (1910); allowing women to vote (1912); and abolishing the death penalty (1914). All of the remaining racial qualifications in the original constitution were deleted by initiative in 2002.28

The current Constitution is online at the State Legislature’s website.

Note, by the way, that although the Constitution ratified in 1857 and effective in 1859 is the only Constitution Oregon has ever had, it’s not the only one ever presented to the voters. A draft new constitution was written in 1962, revised over the course of several years, and finally submitted to the voters in May 1970. It was overwhelmingly rejected.


Images via Creative Commons license
Oregon Country image: Wikimedia user Kmusser
Territory image: Wikimedia user Matthew Trump

  1. As to the territory, 9 Stat. 323 (1848). As to the state, 11 Stat. 383 (1859).
  2. Oregon Focus: State Symbols: Motto, Oregon Blue Book ( : accessed 13 Aug 2012).
  3. Ibid., “Oregon Almanac: State Animal.”
  4. Ibid., “Oregon Almanac: State Flag.”
  5. As to area, see “Table 17. Area Measurements: 2000; and Population and Housing Unit Density: 1980 to 2000” in United States Summary: 2000, Population and Housing Unit Counts, Part I, April 2004, U.S. Census Bureau ( : accessed 13 Aug 2012). As to population, see “State Rankings — Statistical Abstract of the United States,” U.S. Census Bureau ( : accessed 13 Aug 2012).
  6. See generally Wikipedia (, “Oregon Country,” rev. 3 Jul 2012.
  7. See “British-American Diplomacy: Convention of 1818 between the United States and Great Britain”; html version, Yale Law School, Avalon Project ( : accessed 13 Aug 2012).
  8. There are competing claims as to when the trail was open for wagon traffic all the way to Oregon; 1839 and 1840 are both cited. See generally Wikipedia (, “Oregon Trail,” rev. 2 Aug 2012.
  9. See generally “Oregon History: The “Oregon Question” and Provisional Government,” Oregon Blue Book ( : accessed 13 Aug 2012).
  10. See “British-American Diplomacy: Treaty with Great Britain, in Regard to Limits Westward of the Rocky Mountains ”; html version, Yale Law School, Avalon Project ( : accessed 13 Aug 2012).
  11. See “Whitman Massacre,” The Oregon Encyclopedia ( : accessed 22 Oct 2014).
  12. An Act to establish the Territorial Government of Oregon,” 9 Stat. 323 (1848); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory ( : accessed 13 Aug 2012).
  13. An Act to establish the Territorial Government of Washington,” 10 Stat. 172 (1853).
  14. Wikipedia (, “Oregon Constitutional Convention,” rev. 11 Dec 2011.
  15. Introduction, “Constitution of Oregon, 2011 edition,” Oregon State Legislature ( : accessed 13 Aug 2012).
  16. An Act for the Admission of Oregon into the Union,” 11 Stat. 383 (1859).
  17. Oregon Constitution of 1857, Article I, § 2-7.
  18. Ibid., § 31.
  19. Ibid., Article XV, § 8.
  20. Ibid., Article II, § 2.
  21. Ibid., § 6.
  22. Ibid., Article IV, § 5.
  23. Ibid., § 6.
  24. Ibid., Article V, § 1.
  25. Ibid., Article VIII, § 1.
  26. Ibid., Article IX, § 6.
  27. Oregon History: The Oregon System, Oregon Blue Book ( : accessed 13 Aug 2012).
  28. Wikipedia (, “List of Oregon ballot measures,” rev. 20 Feb 2012.
Posted in Constitutions, Primary Law | 4 Comments