The language of the law. Part Latin, part Anglo-Saxon, all confusing.
The Legal Genealogist survived the first two of this summer’s institutes — the Midwest African American Genealogy Institute (MAAGI) in Fort Wayne, Indiana, and the Genealogical Institute on Federal Records (Gen-Fed) in Washington, D.C. — and is now at institute number three, the Genealogical Research Institute of Pittsburgh (GRIP).
There isn’t much that as much fun to this law geek as a class full of bright, motivated genealogists who really want to learn about the law, and these teaching tasks are fun!
But it does mean that time to write blog posts is in short supply. So since nobody wants the blog to go silent, we’re going to continue as time permits to have some fun with legal alphabet soup.
So, for today, E is for “EMANCIPATION”.
Now I know most people here in the United States understand part of what this term means in the law — the Emancipation Proclamation is one of our cherished national documents. Issued on the first of January 1863 by President Lincoln, it had the legal effect of freeing those enslaved in what was then Confederate-controlled territory. It didn’t free anyone in Union states like Maryland nor in Confederate areas then under Union control1 — so it was really more of a promise of what was to come than an actual freeing-of-the-slaves at that moment.
Legally, of course, emancipation is the “act by which one who was unfree, or under the power and control of another, is set at liberty and made his own master.”2
So from a genealogical perspective we should understand that emancipation could be done on an individual basis, by an individual slavemaster during his or her lifetime or on death, as part of his or her will.
And that means records. Lots of records. And not always the records we might expect.
The manumission itself — and manumission is itself a legal term meaning the specific act of “liberating a slave from bondage and giving him freedom”3 — is only part of the story of the freeing of an individual enslaved person.
• In some cases, the manumission itself had to be ratified by the legislature or the court in that jurisdiction. In Virginia, for example, in 1691, an enslaved person could only be freed with the agreement of the House of Burgesses and payment to transport the freedman out of Virginia.4
• In other cases, even in northern states, a bond had to be posted to guarantee that the new freedman would not become a public charge.5
• And in many cases where the manumission was by will, the disappointed heirs of the testator would go to court to fight to keep the slaves as part of their inheritance or the estate’s creditors would try to overturn the manumission to get debts paid.6
So emancipation as a legal word can be a genealogical goldmine. But emancipation of the enslaved is only part of the story. Because the word has another implication that will also create records we want to chase down.
Minors who wanted (or needed) to be able to handle their own legal affairs could also be emancipated under the law. This was provided for expressly under the Civil Law — applicable in places like Louisiana7 — but sometimes ordered by a court even in a common law jurisdiction. You’ll see it even in modern statutes today.8
That means more records — when that 17-year-old heir wanted to take control of his inheritance, for example. Or when the 20-year-old wants to marry without parental consent. Or…
Emancipation.
Just another legal term that means lots of goodies for us to research.
SOURCES
- See “The Emancipation Proclamation,” Online Exhibits, National Archives (https://www.archives.gov/exhibits/featured-documents/ : accessed 17 July 2017). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 414, “emancipation.” ↩
- Ibid., 751-752, “manumission.” ↩
- See William Waller Hening, The Statutes at Large … of Virginia… (Richmond: p.p., 1812), 3:87-88; digital images, HathiTrust Digital Library (http://www.hathitrust.org/ : accessed 17 July 2017). ↩
- See e.g. “An Act Respecting Free Negroes…,” 30 March 1819, in Laws … of the State of Illinois… (Kaskaskia, Ill. : State Printer, 1819), 354-355; digital images, Google Books (http://books.google.com : accessed 17 July 2017). ↩
- See e.g. Fenwick v. Chapman, 34 U.S. (9 Pet.) 461 (1835). ↩
- See §267, “The Emancipation of Children,” in James Shouler, A Treatise on the Law of Domestic Relations, 3d ed. (Boston : Little Brown, 1882), 357; digital images, Google Books (http://books.google.com : accessed 17 July 2017). ↩
- See generally Wex, Legal Information Institute, Cornell Law School (http://www.law.cornell.edu/wex : accessed 17 July 2017), “Emancipation of Minors.” ↩
