… at least not in that place

After yesterday’s blog post about guardianships in early 20th century Maryland, reader John Roose said one line in that post explained a point for his research.

The line: “Remember: the notion of formal adoption under the law didn’t even start in the United States until the 1850s.”1

“That helps explain the difficulty we’ve had looking for adoptions in SC, NC and/or TN,” he said. “Knew about the informal adoptions within families and (we thought) informal/unrecorded on occasion by others. No wonder we have been unsuccessful searching for the laws applicable in the early 1800’s!”

Yes, but…

Let’s look at this a little more closely to be sure we’re all on the same page.

Illinois statute

Because John’s point that there’s not going to be any success looking for formal laws of adoption in the United States before the passage of the first formal laws of adoption in the United States is absolutely correct. But that doesn’t mean there won’t be any earlier records

Looking first at the laws… we all have heard frequently about one of those first formal adoption laws: the 1851 Adoption of Children Act in Massachusetts is generally credited as being “the first modern adoption law, recognizing adoption as a social and legal operation based on child welfare rather than adult interests.”2

That turns out in fact not to have been the very first adoption law here — just the first one focusing on the interests of the child. There were statutes a little bit earlier that allowed for adoption, although they tended not to use that term. In Mississippi, for example, an 1846 law passed to allow for the legitimization of children born out of wedlock also provided that the Circuit and Chancery Courts “shall have power upon application of any person, and sufficient reasons shown, to make any other person the heir of said petitioner.”3 In 1850, Texas actually used the term when it allowed “any person wishing to adopt another as his or her legal heir, (to) do so by filing in the office of the clerk of the county court in which county he or she may reside, a statement in writing … that he or she adopts the person named therein as his or her legal heir…”4

And, of course, the absence of formal laws of adoption in the United States will surely explain why you won’t find a whole lot of court records documenting the adoptions of children before those laws began to be passed in the mid-1800s.

So… does that mean there won’t be any records that prove adoptions before those laws began to be passed? No. It’s more a matter of considering what can be found — and where.

First off, there may be evidence of an adoptive relationship in a will or other estate paper. In a will executed in 1684 and probated in 1686, Henry Bennett of Anne Arundel County, Maryland, left his entire estate to two girls “infant(s) living with testator.”5 And think as well about deeds or land partitions resulting from an estate — there may be explanations in those documents about relationships as well.

Secondly, and more commonly, the evidence may come in a private law, enacted to make a child the legal heir of the person who raised the child. In 1867, for example, a private law was passed by the Illinois Legislature:

WHEREAS, on the night of the second of July, 1865, a foundling was left with Grayson F. Middleton, of Morgan county, Illinois; and, whereas, said child has been adopted, and christened Grayson Smith Middleton; and, whereas, said Middleton desires to make said adopted child his heir-at-law; therefore,

 

Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the said Grayson Smith Middleton shall be, and is hereby made and constituted a legal heir of said Grayson F. Middleton, with full power and authority to take, hold and enjoy and transmit any and all property that shall or may descend to him from Grayson F. Middleton, in the same manner as if he had been a natural born child of said Grayson F. Middleton.6

So don’t give up on the possibility of finding record evidence of adoptions before there were formal laws of adoptions.

Just look in different places — the probate and legislative records, more than the court records.


SOURCES

  1. See Judy G. Russell, “The rules of guardianship,” The Legal Genealogist, posted 11 Dec 2018 (https://www.legalgenealogist.com/blog : accessed 12 Dec 2018).
  2. See “Timeline of Adoption History,” The Adoption History Project (https://pages.uoregon.edu/adoption/index.html : accessed 11 Dec 2018).
  3. §3, Chapter 60, in Laws of the State of Mississippi, … 1846 (Jackson, Miss. : State Printers, 1846), 231; digital images, HathiTrust Digital Library (http://www.hathitrust.org/ : accessed 12 Dec 2018).
  4. §1, Chapter 39, in Laws … of The State of Texas, vol. III (Austin : Wm. H. Cushney, Printer, 1850), 36; digital images, HathiTrust Digital Library (http://www.hathitrust.org/ : accessed 12 Dec 2018).
  5. See Jane Baldwin, compiler, Maryland Calendar of Wills: Wills from 1685-1702 (Baltimore : Kohn & Pollock, 1906), 2: 6; digital images, HathiTrust Digital Library (http://www.hathitrust.org/ : accessed 12 Dec 2018).
  6. An Act to make Grayson Smith Middleton heir-at-law of Grayson F. Middleton (21 Feb 1867), in Private Laws of the State of Illinois, … 1867 (Springfield, Ill. : Baker, Bailhache & Co., Printers, 1867), 2: 85; digital images, Google Books (http://books.google.com : accessed 12 Dec 2018).
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