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

Linking trees and DNA

Big news on the genetic genealogy front today — an announcement from MyHeritage that it has partnered with 23andMe to provide a tie-in between the DNA information of 23andMe and the family trees and matching technology of MyHeritage starting early next year.

MH23andMeAccording to MyHeritage:

23andMe will provide its 750,000+ customers special access to MyHeritage’s family tree tools and matching technologies directly from its website. Eventually they will replace 23andMe’s own family tree editor. 23andMe’s customers will enjoy automated family history discoveries by MyHeritage such as Smart Matches™ and Record Matches, bringing them significant new opportunities to grow their family trees and to enrich their family history. This will be directly beneficial to all users of MyHeritage as well.

MyHeritage users will be able to purchase 23andMe’s Personal Genome Service® in addition to the DNA tests already offered by MyHeritage that are powered by MyHeritage’s other DNA partner, Family Tree DNA. The product integration that is planned between MyHeritage and 23andMe will take this a step further by allowing the use of DNA to prove or disprove matches found by MyHeritage; and the use of MyHeritage trees, records and matching to attempt to map better connections found by DNA.

The 23andMe Personal Genome Service® is a comprehensive genetic scan that analyzes saliva samples, enabling users to gain deeper insights into their genetics and ancestry.

MyHeritage and 23andMe plan to have the first phase of integration completed by early 2015.1

A press release issued jointly by MyHeritage and 23andMe2 adds these comments from the two companies:

• “We believe this collaboration with MyHeritage will offer our customers a vastly improved opportunity to build their family tree and discover new connections,” said Andy Page, President of 23andMe. “Given MyHeritage’s technology leadership in the ancestry space and vast global reach, we are excited about the value this relationship will bring to our customers around the world.”

• “Combining genealogy with DNA-based ancestry is the next evolution in uncovering family history,” said Gilad Japhet, Founder and CEO of MyHeritage. “DNA testing can connect you to relatives you never knew existed, who descend from shared ancestors centuries ago, but family trees and historical records are critical to map and fully understand these connections. We have great respect for 23andMe’s technology and values, and its pioneering approach to genetics represents strong potential value for our users in the future.”

What does this mean for genetic genealogy?

The Legal Genealogist loves it. Because I get to give my favorite answer:

It depends.

Matching DNA results to well-documented family trees is the ultimate goal of genetic genealogy. We all hope to see that happen. But the operative phrase here is “well-documented family trees” — if the paper-trail research is wrong, linking the DNA results to the wrong people poses a serious risk of adding what looks like a scientific imprimatur to what is essentially genealogical garbage.

And we all know what happens then. It’s known as GIGO: garbage in, garbage out.

How much integration there will be between the DNA data of 23andMe on one hand and the family trees of MyHeritage on the other hand is yet unknown… and what system will be in place to correct an erroneous assignment of a link between two people to a particular line based on an erroneous paper trail is also unknown.

Properly used, properly understood, a system to verify family trees through DNA is a Good Thing.

Otherwise, well… remember GIGO.


  1. MyHeritage Announces Major Collaboration with 23andMe,” MyHeritage Blog, posted 21 Oct 2014 ( : accessed 21 Oct 2014).
  2. See “23andMe and MyHeritage Announce Strategic Collaboration and Product Integration,BusinessWire, posted 21 Oct 2014 ( : accessed 21 Oct 2014).
Posted in DNA | 8 Comments

Access to Tennessee adoption records

The question came up at the Tennessee Genealogical Society seminar this past Saturday, as it so often does.

How can we as genealogists get access to adoption records?

The particular question in this case was directed to adoptions in Tennessee. And The Legal Genealogist gave the lawyer’s favorite answer to almost any question:

TN.adoptIt depends.

And, in Tennessee, the big part of what it depends on is the date of the adoption.

There’s a bright orange dividing line in Tennessee law between adoptions that occurred before 16 March 1951 and those that occurred after that date. That’s because those pre-1951 adoption records were never sealed by statute, but only by the internal practices of the Tennessee Department of Children’s Services.

When it changed the adoption law in 1995, effective 1996, the Tennessee Legislature said:

It is the intent of the general assembly that all adoption records, court records, sealed records, or sealed adoption records, and post-adoption records and other records or information, except as may otherwise be provided in this part, and that are contained in any information source on and after January 1, 1996, and that were in existence on March 16, 1951, be made available to eligible persons as provided in this part, and that to that end this is remedial legislation.1

The eligible persons for those pre-1951 adoption records were identified by the statute as the adopted person, the parents and siblings of the adoptee, lineal descendants and ancestors of the adoptee, and legal reoresentatives of the adoptee or those family members.2

In addition to the general provision that pre-1951 adoption records were to be available, the law also made public records of “an organization known as the Tennessee children’s home society-Shelby County division”3 — a scandal-ridden adoption mill implicated in kidnapping of children and illegal adoptions.4

For adoptions after the 1951 bright line date, the new law provided that:

• “All adoption records … shall be made available to the following eligible persons: (i) [a]n adopted person … who is twenty-one (21) years of age or older …; (ii) [t]he legal representative of [such] a person …”5

• “Information … shall be released … only to the parents, siblings, lineal descendants, or lineal ancestors, of the adopted person …, and only with the express written consent … [of] the adopted person….”6

• Any parent, sibling, spouse, lineal ancestor, or lineal descendant of an adoptee could register a “contact veto” that would prevent contact by the adopted person.7

The law further provided that any adoptee over age 18, the adoptive parents or guardian of an adoptee under age 18 and “biological or legal relatives” or “lineal descendants” of an adoptee were entitled to receive non-identifying information, including:

“(1) The date and time of the birth of the adopted person and such person’s weight and other physical characteristics at birth;
(2) The age of the adopted person’s biological relatives at the time of such person’s birth;
(3) The nationality, ethnic background, race and religious preference of the biological or legal relatives;
(4) The educational level of the biological or legal relatives, general occupation and any talents or hobbies;
(5) A general physical description of the biological or legal relatives, including height, weight, color of hair, color of eyes, complexion and other similar information;
(6) Whether the biological or legal parent had any other children, and if so, any available nonidentifying information about such children; and
(7) Available health history of the adopted person, and the person’s biological or legal relatives, including specifically, any psychological or psychiatric information that would be expected to have any substantial effect on the adopted person’s mental or physical health.”8

The statutory change was challenged in court but the law was upheld by the Tennessee Supreme Court in 1999,9 and by the federal courts.10

So the rules in Tennessee vary depending on which side of the 1951 bright line the case falls on. For Volunteer State adoption records, a request must be made in writing to

Department of Children’s Services
Post Adoption Unit
436 6th Avenue, NW
8th Floor, Cordell Hull Building
Nashville, Tennessee 37243-1290
(615) 532-5637

And for more information on access to Tennessee adoption records, there are rules, forms and more available on the website of the Tennessee Department of Children’s Services.


  1. Tenn. Code §36-1-127(a)(2).
  2. Tenn. Code §36-1-127(b)(3).
  3. Tenn. Code §36-1-127(a)(3).
  4. See Wikipedia (, “Tennessee Children’s Home Society,” rev. 21 Aug 2014.
  5. Tenn. Code §36-1-127(c)(1)(A).
  6. Tenn. Code §36-1-127(c)(1)(B).
  7. Tenn. Code §36-1-128.
  8. Tenn. Code §§36-1-133(b)

    Some types of information require a court order, even for the adoptee. Identifying information won’t be disclosed without specific court permission if, for example, the pregnancy resulted from rape or incest.[8. Tenn. Code §36-1-127(e)(2).

  9. Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).
  10. See e.g. Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997).
Posted in Court Cases, Records Access, Statutes | Leave a comment