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 | 7 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

That and $2.29 = coffee

It’s another one of those things that comes up all the time in genetic genealogy.

Someone, somewhere, will tell you that you don’t really need to do YDNA testing — the kind of DNA test that looks only at the male gender-linked chromosome and defines the genetic characteristics of our father’s father’s father’s line1 — or mitochondrial DNA (mtDNA) testing — the kind of test that looks at the type of DNA we all inherit from our mothers and that defines the genetic characteristics of our mother’s mother’s mother’s line.2

HapJAnd, that person will often insist, you can get “the same” information from doing an autosomal test with 23andMe — that’s the kind of DNA test that works across gender lines and helps identify cousins who share bits and pieces of DNA you both inherited from common ancestors3 — since, after all, you will get your haplogroup if you do.

A haplogroup, in case you were wondering, is “a genetic population group of people who share a common ancestor on the patrilineal or matrilineal line. Haplogroups are assigned letters of the alphabet, and refinements consist of additional number and letter combinations.”4 In plain English, it’s the general branch, sometimes even the twig, on the human family tree where you and your ancestors — male or female — can be found roosting.

So, if you know your haplogroup from testing with 23andMe, you don’t really need to shell out for the specialized YDNA or mtDNA tests, right?

Um… wrong.

For two reasons.

First and foremost, the haplogroup is just the general location on the overall human family tree where your ancestral line can be found. By itself, it’s not enough information to help you compare your results to another person’s results in anything more than the most general way that will be even remotely meaningful in genealogy.

I don’t want to understate the haplogroup. It’s absolutely true that if you are, say, mtDNA haplogroup U5, then you do not descend from the same common female ancestor as someone else whose mtDNA haplogroup is K. You may surely be cousins, but not along your direct female line: you’d need to look somewhere else in your ancestry for the common ancestor you both share.

The same is true for the YDNA haplogroup. My Robertson ancestors were haplogroup J. That means we don’t share a direct male ancestral line with all those other Robertsons who’ve tested and turn out to be haplogroup I or R.

But when you turn it around — say, we found another Robertson who was J — that by itself just isn’t enough information to say he’s kin to our Robertsons. Right now, in the Clan Donnachaidh DNA project, there are three separate — and totally unrelated — groups of Robertsons, each of which is haplogroup J, but whose DNA is so different from the other groups that there’s no realistic chance we descend from the same man.

To be able to quickly and easily compare one set of haplogroup J Robertsons to another set of haplogroup J Robertsons, we need some information about DNA markers called short tandem repeats, or STRs, that are patterns in the DNA.5 And to get the STR markers, you need to do dedicated YDNA testing.

Don’t misunderstand, please: it’s a really good thing that 23andMe gives people their haplogroup predictions when they do autosomal testing with 23andMe. I sure don’t want 23andMe to stop providing those haplogroup estimates. It’s just not the same thing, and not as genealogically useful for direct line male research, as having the STR data you get from YDNA tests.

The same problem exists with the mtDNA haplogroup predictions from 23andMe: they’re nice to have, but not as complete and not as useful as you can get from dedicated mtDNA testing. My mtDNA haplogroup prediction from 23andMe, for example, is H3: a fairly large branch on the female haplogroup family tree. Dedicated mtDNA testing can break it down further, to a smaller sub-branch of H3g.

And since mtDNA haplogroups change so very slowly over so many hundreds, even thousands, of years, even that smaller sub-branch is too broad to be really helpful. In reality, especially for women like me in haplogroup H, only the very highest level of mtDNA testing is really useful for comparing my mtDNA to that of another individual.

Telling me I’m H3 tells me I’m very much like a huge percentage of women of European descent. Telling me I’m H3g is better, but still not enough. But telling me exactly what my results are, for me individually, with a careful look at every location within my mtDNA, is the kind of detail I can actually use in genealogy.

So what good is it to have a haplogroup, by itself, without more?

Except in the most general way, not very much.

It’s good enough to buy you a cup of coffee… at least if you’ll chip in $2.29 in cash.


Image: Haplogroup J (Y-DNA) by Rafy, Wikimedia Commons, CC BY 3.0

  1. See ISOGG Wiki (, “Y chromosome DNA tests,” rev. 5 March 2014.
  2. See ISOGG Wiki (, “Mitochondrial DNA tests,” rev. 9 July 2014.
  3. 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.
  4. See ISOGG Wiki (, “Haplogroup,” rev. 26 July 2014.
  5. See ISOGG Wiki (, “Short tandem repeat,” rev. 20 July 2013.
Posted in Uncategorized | 8 Comments

The rest of the marriage story

Tomorrow marks the 98th anniversary of the day when a pair of 18-year-olds stood before a Texas judge and exchanged their wedding vows.

And a year ago, The Legal Genealogist told the tale of that 1916 marriage — the bride and groom were my mother’s parents Clay and Opal (Robertson) Cottrell — and asked one question.

“Was the marriage legal?”1

Marr.appHere’s why that was an issue.

Clay Rex Cottrell had turned 18 on the 20th of April 1916;2 Opal Robertson had turned 18 on the 21st of August.3 Each of them had lost a parent at the age of 14: Clay’s mother died in July 1912;4 Opal’s father died in March of the same year.5

They were both living in Tillman County, Oklahoma, when they met; they married just across the state line in Wichita County, Texas. And in both states, it was perfectly legal for Opal to say “I do” at age 18.6

But Clay needed parental consent under the laws of either state: boys had to be 21 to marry without a parent’s okay.7

And there was no way Clay could have gotten his father’s consent — his parents had separated even before his mother’s death and I don’t think at the time he would even have known where his father was living.

So how did these kids get married when they did?

We know now what we didn’t know last year: Clay lied to the county clerk. The application he filled out for the marriage license required him to sign an affidavit under oath:

I, Clay Rex Cottrell, do solemnly swear that I am twenty-one years of age, and that Miss Opal Robertson is eighteen years of age, and that there are no legal objections to our marriage. 8

So… was the marriage legal?

Yes, it was.

There’s a difference in the law between a marriage that’s considered void and a marriage that’s considered voidable. A marriage that’s considered void is one the law says wasn’t a marriage at all; it’s so defective that nothing can cure the problem.9 If it’s just voidable, then what the parties themselves do can make it legal.10

And most things that people do when they’re not of age — like get married without parental consent — fall into that voidable category.11

So it was with that marriage: as long as Clay didn’t repudiate it before he turned 21, no-one could ever challenge it.

And considering that the marriage lasted a mere 53 years and 11 months — until his death in September 1970 — it’s a safe bet that marriage was legal.


  1. Judy G. Russell, “Was the marriage legal?,” The Legal Genealogist, posted 19 Oct 2013 ( : accessed 17 Oct 2014).
  2. Virginia Department of Health, Certificate of Death, state file no. 70-026729, Clay Rex Cottrell (1970); Division of Vital Records, Richmond.
  3. Virginia Department of Health, Certificate of Death, state file no. 95-011808, Opal Robertson Cottrell (1995); Division of Vital Records, Richmond.
  4. Oklahoma State Department of Health, Tillman County, death certificate no. 6119, Tillman County, Mrs. M.G. Cottrell, filed 1 Aug 1912.
  5. Oklahoma State Department of Health, Tillman County, death certificate no. 3065, Tillman County, Jasper C. Robertson, filed 15 Mar 1912.
  6. See Compiled Statutes of Oklahoma (1921) Sec. 7490; digital images, Google Books ( : accessed 15 Oct 2013). And see Vernon’s Sayles’ Annotated Civil Statutes of Texas, Art. 4611 (1914); digital images, Google Books ( : accessed 15 Oct 2013).
  7. Ibid.
  8. Wichita County, Texas, Marriage License No. 4605, Cottrell-Robertson, 1916; County Clerk’s Office, Wichita Falls; FHL microfilm 1420837.
  9. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1226, “void.”
  10. Ibid.
  11. Ibid., 1227, “voidable.”
Posted in Legal definitions, My family, Statutes | 10 Comments

It really is our common heritage

So… The Legal Genealogist knows it sounds like a broken record sometimes.

To understand the records, we have to understand the laws at the time and in the place where the records were created.

TN.LawsWhich is why I keep stressing that we have to go back and understand English common law as well as the laws created here in the United States.

Because we didn’t just inherit a legal tradition from the English.

We adopted huge chunks of English law, lock stock and barrel, both in colonial times and as we became states and joined together as a nation.

Poking through some Tennessee statute books as I prepared for this weekend’s seminar with the Tennessee Genealogical Society,1 I came across a really clear example of just what I mean here.

It’s set out in a section entitled “Laws” in an 1831 collection of the laws of the then 35-year-old State of Tennessee that included the colonial and territorial laws that continued in effect at that time.2 And there are three key provisions that tell the tale.

In 1715, the laws of what later became Tennessee provided in part that:

All laws of England providing for the privileges of the people, and security of trade, as also all statute laws made for limitation of actions, and preventing of vexatious law suits, and for preventing immorality and fraud, and for confirming inheritances and titles of land, are and shall be in force here, although this province or the plantations in general, are not named therein.3

And what did the laws of England consist of at the time? Oh, there were statutes galore, for sure — passed by Parliament, approved by the monarch. But then there was the common law. So many concepts of basic law that — through this language — came into the law of what became Tennessee.

But, you might think, surely we threw that away later and went our own way at the time of the Revolution! And in part we did. But not completely.

Here’s what the laws of what became Tennessee said at the time of the Revolution:

All such statutes, and such parts of the common law, as were heretofore in force and use within this territory, and all acts of the late assemblies thereof, or so much of the said statutes, common law, and acts of assembly, as are not destructive of, repugnant to or inconsistent with the freedom and independence of this state, and the form of government therein established, and which have not been otherwise provided for, in the whole or in part, not abrogated, repealed, expired, or become obsolete, are declared to be in full force within this state.4

See? We still followed English common law and made it part of our law, unless it undermined our new-found freedom or we specifically said otherwise.

Oh, but of course Tennessee would have done its own thing, so to speak, when it became a state, wouldn’t it?

It did, in adopting its constitution of 1796, but, in that wonderful document, it said this:

All laws and ordinances now (20th February, 1796) in force and use in this territory, not inconsistent with this constitution, shall continue to be in force and use in this state, until they shall expire, be altered or repealed by the legislature.5

And that, my friends, is total incorporation of English common law into the law of the new State of Tennessee, to the extent that the legislature hadn’t — then or thereafter — said otherwise.

And that’s why we need to know what the common law was — because it was and is a common element of our legal heritage. It informed and controlled the actions of our ancestors and the decisions of the courts and authorities they dealt with every day.

The English common law?

Common to us, too.


  1. Will I see you there? Hope so! You can find information here.
  2. “Laws,” in John Haywood and Robert L. Cobbs, revisers, The Statute Laws of the State of Tennessee (Knoxville, Tenn. : J. F. Heiskell, printer, 1831), 1: 676; digital images, Google Books ( : accessed 16 Oct 2014).
  3. Ibid., Laws of 1715, c.31.
  4. Ibid., Laws of 1778, c.5.
  5. Ibid., Section 2, Article 10, Constitution of 1796.
Posted in Constitutions, Primary Law, Statutes | Leave a comment

Plaintiffs and defendants in error

It’s right there, in the very name of the case.

“Dred Scott,” the title of the document begins. “Plaintiff in error.”

ScottIt’s the opinion of the United States Supreme Court in one of the most well-known cases in American history.1

Dred Scott, the Missouri slave who sought the assistance of the courts in securing his and his family’s freedom, had won the case at trial in a Missouri state court.

A jury there had agreed that his owner’s actions in taking Scott and his family into free states and territories had freed them from slavery.

But his victory was reversed by the Missouri Supreme Court in 1852. That court overruled years of legal precedents in Missouri and concluded that

On almost three sides the State of Missouri is surrounded by free soil. … Considering the numberless instances in which those living along an extreme frontier would have occasion to occupy their slaves beyond our boundary, how hard would it be if our courts should liberate all the slaves who should thus be employed! How unreasonable to ask it! …

… Times now are not as they were when the former decisions on this subject were made. Since then not only individuals, but States, have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequence must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others. Although we may, for our own sakes, regret that the avarice and hard-heartedness of the progenitors of those who are now so sensitive on the subject, ever introduced the institution among us, yet we will not go to them to learn law, morality or religion on the subject.

As to the consequences of slavery, they are much more hurtful to the master than the slave. There is no comparison between the slave of the United States and the cruel, uncivilized negro in Africa. When the condition of our slaves is contrasted with the state of their miserable race in Africa; when their civilization, intelligence and instruction in religious truths are considered, and the means now employed to restore them to the country from which they have been torn, bearing with them the blessings of civilized life, we are almost persuaded that the introduction of slavery amongst us was, in the providences of God, who makes the evil passions of men subservient to his own glory, a means of placing that unhappy race within the pale of civilized nations.2

Scott took his case to the federal courts after his owner, Emerson, died, eventually reaching the U.S. Supreme Court. We all know what happened in that case — how the Court held that African-Americans — enslaved or free — who came or whose ancestors came to America as slaves were not citizens of the United States and did not have what the Court described as “the privilege of suing in a court of the United States.”3 The majority opinion concluded that

they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.4

In the Missouri trial court, Scott was the plaintiff: the party bringing the case and suing for his freedom.5 But in the Missouri Supreme Court, he was the defendant in error. Why? And how did he become the plaintiff in error when he took his arguments to the United States Supreme Court?

The answer lies in the procedural device that used to be required when somebody lost a case in a lower court and wanted the decision to be reviewed by a higher court. That person had to apply for and be granted what was called a writ of error.

That writ — a written order of the court — was “issued from a court of appellate jurisdiction, directed to the judge or judges of a court of record, requiring them to remit to the appellate court the record of an action before them, in which a final judgment has been entered, in order that examination may be made of certain errors alleged to have been committed, and that the judgment may be reversed, corrected, or affirmed, as the case may require.” 6

In other words, it was the formal way to start an appeal of the trial court order.

How the parties were designated depended on who was applying for the writ. Just as the plaintiff at trial was the person bringing the lawsuit and asking for relief, the plaintiff on the writ of error — called the plaintiff in error7 — was the person bringing the request for the writ and asking for relief on appeal.

So if the person who lost at trial was the defendant in the lawsuit, it would be that trial court defendant who would want the appellate court to reverse what the trial court did. And that trial court defendant would become the appellate court’s plaintiff in error.

The person who won at trial would always be the appellate court’s defendant in error — defending the judgment of the trial court in the appeal. So in our hypothetical here, the trial court plaintiff would be designated as the appellate court’s defendant in error.8

And the designation changed every time the case was taken to a higher court. Here’s how it works:

Case #1:

Plaintiff A wins at trial. Defendant B appeals by filing a writ of error.
As to the writ of error (the appeal) the parties are:
     Plaintiff in error: Defendant B (who now is attacking the judgment below by making the appeal)
     Defendant in error: Plaintiff A (who now is defending the judgment below)
And the case on appeal will be B, plaintiff in error, v. A, defendant in error.

Case #2:

Defendant B wins at trial. Plaintiff A appeals by filing a writ of error.
     Plaintiff in error: Plaintiff A (who is attacking the judgment below)
     Defendant in error: Defendant B (who is defending the judgment below)
And the case name on appeal will be A, plaintiff in error, v. B, defendant in error.

This explains how Scott changed his roles in the case:

• He originally brought the lawsuit in the Missouri trial court, so he was the plaintiff there, and he won.

• His owner — the defendant and loser at trial — was the one who wanted the Missouri Supreme Court to reverse what the trial court did, so she was the plaintiff in error to the Missouri Supreme Court — making Scott the defendant in error there, defending the trial court decision.

• Scott became the plaintiff again when he went into the federal court after his owner Emerson died and her brother refused to free him and his family. Scott lost at the federal trial court level, so he was the one who wanted the U.S. Supreme Court to reverse what the federal court ruled. That made him the plaintiff in error to the U.S. Supreme Court and his owner’s brother the defendant in error there.

They’re all parties in error… not the wrong parties.


  1. Scott v. Sandford, 60 U.S. 393 (1857).
  2. Scott v. Emerson, 15 Mo. 576, 584-587 (1852).
  3. Scott v. Sandford, 60 U.S. at 403.
  4. Ibid., at 404-405.
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 901, “plaintiff.”
  6. Ibid., 1247, “writ of error.”
  7. Ibid., 901, “plaintiff in error” (the “party who sues out a writ of error to review a judgment or other proceeding at law”).
  8. Ibid., 845, “defendant in error” (“the party against whom a writ of error is sued out”).
Posted in Court Cases, Legal definitions | Leave a comment

Through HeinOnline and the Law Library of Congress

“Guilty as charged, yer Honor.”

The Legal Genealogist most certainly is, without a doubt, a law geek.

LLOCAnd I am totally geeking out over yesterday’s announcement by the Law Library of Congress and the legal publishing company William S. Hein & Co., Inc. that Hein is making a whole bunch of federal legal resources available online, in digital format.


The publisher has a subscription-based online legal research portal called HeinOnline.

It’s used mostly by lawyers, but also by researchers, and it’s got a nice range of federal legal materials we might all need to call on every so often.1

Yesterday, my favorite non-genealogy blog — In Custodia Legis, the blog of the Law Librarians of Congress — announced that:

Through an agreement with the Library of Congress, the publisher William S. Hein & Co., Inc. has generously allowed the Law Library of Congress to offer free online access to historical U.S. legal materials from HeinOnline. These titles are available through the Library’s web portal, Guide to Law Online: U.S. Federal, and include:

United States Code 1925-1988 (includes content up to 1993)
     From Guide to Law Online: United States Law
United States Reports v. 1-542 (1754-2004)
     From Guide to Law Online: United States Judiciary
Code of Federal Regulations (1938-1995)
     From Guide to Law Online: Executive
Federal Register v. 1-58 (1936-1993)
     From Guide to Law Online: Executive2

In plain English, what this means is:

• We’re getting all of the federal statutes — the United States Code — as those statutes existed between 1925 and 1988. Need to know what a specific tax law said in 1934? No problem. Head over to the Law Library of Congress’ Guide to Law Online: United States Law, click on the link for United States Code (HeinOnline) 1925-1988, or go directly to the page for the United States Code. Then choose the code for 1934, open the first link for Titles 1-50, open the file for Title 26 (for Internal Revenue) and have at it.

• We’re getting all of the opinions of the United States Supreme Court — the United States Reports v. 1-542 from 1754-2004. Want to read, say, the opinion of the Court when it said Texas never had the right to secede from the Union? The case is Texas v. White, reported at 74 U.S. 700 (1869), so go to the Guide to Law Online: United States Judiciary link, and click on the United States Reports (HeinOnline) v. 1-542 (1754-2004) link, or go directly to the United States Reports v. 1-542 page. Then scroll to volume 74, click on the link and scroll down to page 700 where the case begins.

• We’re getting all of the administrative agency rules and regulations — the Code of Federal Regulations for the years 1938-1995. So if an ancestor was buried in a national cemetery in 1938 and you want to know what the rules were then, you could go to the Guide to Law Online: Executive, click on the link for the Code of Federal Regulations (HeinOnline) 1938-1995 or go directly to the Code of Federal Regulations page. Then scroll down to 1938 and choose that, then scroll to the index for Titles 36-41, and when it opens, choose the file for National Cemetery Regulations.

• And we’re getting the entire text of all of the proposed federal rules and other government actions — announced in the Federal Register v. 1-58 for 1936-1993. The contents of the Federal Register can be really broad. Think of it as one-stop-shopping for federal proclamations, orders, regulations, notices, and other documents. And there are lots of people mentioned: in volume 1, for example, there were notices of federal actions involved hundreds if not thousands of individuals from to E.F. Agee to H.R. Zimmer, both of whom had hearings before the Federal Trade Commission.3

These databases are, again, being offered completely free. The only restriction is that we can only download 20 pages at a time in a PDF format. Other than that, it’s wide open access.

It doesn’t get much better than that, and what’s really wonderful is what William S. Hein & Co. said when it agreed to make the information available through the Library of Congress. It was doing it, the company said, as a gift: “a donation to the Library and to the American public.” 4

And, by the way, there’s a lot more to HeinOnline for the genealogist than these free databases. It’s the best online resource that exists for historical statutory research. It’s not cheap, but you can get a short-term subscription to the Session Law Library which has all of the statutes of all of the states right back to their inception. The price tag is $29.95 for 24 hours, $44.95 for 48 hours and $64.95 for a week, but if you absolutely have to have that copy of that statute and there’s nowhere else where you can access it without traveling, it may well be worth it.

In the meantime, go play around in the federal legal resources Hein is making available to us all through the Law Library of Congress.


My geeky heart is beating awfully fast…


  1. See generally, “What is HeinOnline?,” About HeinOnline, HeinOnline ( : accessed 14 Oct 2014).
  2. Donna Sokol, “Free Public Access to Federal Materials on Guide to Law Online,” In Custodia Legis, posted 14 Oct 2014 ( : accessed 14 Oct 2014).
  3. For Agee, see 1 F.R. 395 (12 May 1936). For Zimmer, see 1 F.R. 1265 (1 Sep 1936).
  4. Sokol, “Free Public Access to Federal Materials on Guide to Law Online,” In Custodia Legis.
Posted in Resources, Statutes | 12 Comments