The laws of time and place

Look for the codes

It’s one of the most common questions The Legal Genealogist gets:

What were the laws of a particular place at a particular time?

Now I’m sure this question has nothing to do with the fact that it’s my mantra, repeated over and over and over, that we can’t understand the records unless we understand the law, and not the law in general, but the law at the specific time and in the specific place where the record was created.

This time around, the question was from reader Sharon Sinclair, and her specific issue: “How can I find out what the laws of descent and distribution were in Ohio in 1904?”

Finding the laws, and finding the right laws, of that time and place can be a challenge. Doing online research for statutes truly isn’t difficult, but it may mean looking in a number of sources to get a definitive answer — and finding those sources in places where we as genealogists don’t look often enough.

The sources we need are either — or both — the compiled laws of the jurisdiction (the state or the federal government) and the session laws.
Let’s define terms here.

Session laws are purely chronological publications of laws passed in each session of the legislature.¹ In the federal system, for example, the laws are published after every session of Congress in what are called the Statutes at Large.² The books begin with the very first law passed and signed into law in the session and continue through the very last law passed and signed into law in the session.

You can imagine that, if there was an inheritance law passed in year one and that was amended in year three and amended again in year eight, pretty soon you’d need to look at a bunch of books just to find out what the whole inheritance law was in that state. So, every so often, the legislatures would order the laws codified.

Codification is the “process of collecting and arranging the laws of a country or state into a code, i.e., into a complete system of positive law, scientifically ordered, and promulgated by legislative authority.”³

The codification, then, called compiled laws or codes or revised laws or whatever term is used in that jurisdiction, puts all of the inheritance laws from the jurisdiction in order in one place so they can be more easily consulted and understood.

Each jurisdiction will organize, or codify, its laws on its own schedule. Except for the federal government, which began codifying its laws on a fairly regular basis back in the 19th century, the frequency of codification was pretty uneven around the country. But even with the hit-or-miss nature of codification, you’ll usually find some attempt to organize the laws every so often.

And it’s those codes, filled in by the session laws between the codes, that help us get the answers to questions like Sharon’s.

Here’s how.

First, I would look to see if I won the legal research lottery and found that there was a compiled set of statutes published for the year I was trying to research. If so, I can just check that one set of compiled statutes and have my answer.

In this case, I’m not going to be so lucky. It turns out that Ohio codified its laws — published a compiled set of statutes called The Revised Statutes of the State of Ohio — in 1880, and an updated version with laws in force as of 1 January 1890 was published in 1889.⁴ It published its next set of compiled statutes in 1910, and an annotated version from 1912 is readily available online.⁵

So what I would do would be to look at the compiled laws both before and after that target date of 1904 and see if they’re the same. If they are, then chances are they didn’t change in the interim. To be 100% sure, I could also look at the session laws for each year in between the two sets of compiled laws, just as a doublecheck that the law wasn’t amended to something different and then amended back.

And just looking at one part of the inheritance law — who inherits if there’s no will and we’re talking about real estate received from a family member — what I found was the statute in 1910 was word-for-word identical to the statute in 1890. First, the property would go to the children of the deceased in equal shares. If there were no children, or legal representatives of children, then it would go to the widow or widower. If no children or widow or widower, then to the brothers and sisters of the deceased who are also related to the relative from whom the property came. And so forth.[6. Compare §4158, “Descent and Distribution,” in The Revised Statutes of the State of Ohio, at I: 1050-1052, with §8573, “Descent and Distribution,” in Page and Adams, compilers, The Annotated Code of the State of Ohio, at 4:83-84.

Again, this is only one part of the statutes. I’d have to check each section that was relevant to the specific inheritance question Sharon was trying to answer. If I found a section that was different between the two, I’d have to check the session laws to see when exactly the change was made if it and if it affected my 1904 research question. And, again, to be absolutely sure the Ohio Legislature didn’t do something goofy like amending the statute between the two codifications to something different and then amending it back, I might check the session laws anyway.

But here’s the key tip for anyone trying to do this kind of research: look for the codes.

SOURCES