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.


SOURCES

  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 (http://www.wikipedia.com), “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.


SOURCES

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

  1. See ISOGG Wiki (http://www.isogg.org/wiki), “Y chromosome DNA tests,” rev. 5 March 2014.
  2. See ISOGG Wiki (http://www.isogg.org/wiki), “Mitochondrial DNA tests,” rev. 9 July 2014.
  3. See ISOGG Wiki (http://www.isogg.org/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 (http://www.isogg.org/wiki), “Haplogroup,” rev. 26 July 2014.
  5. See ISOGG Wiki (http://www.isogg.org/wiki), “Short tandem repeat,” rev. 20 July 2013.
Posted in Uncategorized | 6 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.


SOURCES

  1. Judy G. Russell, “Was the marriage legal?,” The Legal Genealogist, posted 19 Oct 2013 (http://www.legalgenealogist.com/blog : 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 (http://books.google.com : accessed 15 Oct 2013). And see Vernon’s Sayles’ Annotated Civil Statutes of Texas, Art. 4611 (1914); digital images, Google Books (http://books.google.com : 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.


SOURCES

  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 (http://books.google.com : 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.


SOURCES

  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.

Free.

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.

Free.

My geeky heart is beating awfully fast…


SOURCES

  1. See generally, “What is HeinOnline?,” About HeinOnline, HeinOnline (http://home.heinonline.org/ : 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 (http://blogs.loc.gov/law/ : 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

Research, research, research

It’s a tradition of the Board for Certification of Genealogists®, its way to say thank you to the Family History Library in Salt Lake City and its staff for all of the work it does and they do to support genealogical research.

Every year, just before the annual fall meeting of the BCG Board of Trustees, BCG presents a free lecture series at the Family History Library.

And, this past Saturday, three Board-certified genealogists — The Legal Genealogist among them — offered some of our thoughts and the lessons we have learned to our fellow genealogists, including the staff of the Library.

If you didn’t have a chance to join us, here’s what you missed:

In Using Evidence Creatively: Spotting Clues in Run-of-the-Mill Records, Elizabeth Shown Mills, CG, CGL, FASG, FNGS, FUGA, offered so many lessons, it’s hard to pick just one or two. Among the key lessons stressed:

2014 Board for Certification flier 17

• Using evidence creatively doesn’t mean creating evidence! It means thinking about the evidence in new and different ways. Following family members or friends, associates and neighbors rather than the person we’re concerned with, or focusing on what’s known about the personality and character of the person to discern what he’d be likely to do in a situation are examples of creative thinking.

• While direct evidence is what we all hope for, thinking creatively about indirect evidence and negative evidence — and applying concepts from other fields including climatology, geography, law and more — can solve many many more of our research challenges than we’ll ever solve by merely continuing to hunt for that elusive piece of direct evidence.

Then in her keynote presentation Trousers, Black Domestic, Tacks & Housekeeping Bills: Trivial Details Can Solve Research Problems, Elizabeth Shown Mills called our attention to these lessons:

Every detail matters. Even the most mundane, seemingly-insignificant detail can provide a clue to solve a perplexing research challenge. Connecting the dots between two apparently unrelated pieces of trivial detail may offer the solution we’re looking for.

• Effective research takes us beyond merely collecting names, dates and places — the “facts” — and requires us to interpret and correlate the data. Looking for patterns, both in terms of patterns that match and patterns that don’t, looking for new ways of thinking about the records we already have can be more useful than looking for more records.

Stefani Evans, CG, of Nevada, gave us much to think about in Oh, The Things You Can Map: Mapping Data, Memory, and Historical Context. Among her most important points:

• Maps — and the words and notations written on maps — aren’t neutral. Maps were created for a reason, and what was put on them was intended for a purpose. A map by a steamship company might exaggerate the dangers of traveling on land, just as one example.

• Maps can be used for many purposes, and key among them are to influence people (that’s why they’re not neutral); to correlate data, a great use we can all make of maps as genealogists; and to elicit and preserve data. Ever think about asking a relative to, say, map the neighborhood where he or she grew up? What a great idea!!

From my own Shootout at the Rhododendron Lodge: Reconstructing Life-Changing Events, the lessons from the lectern were two-fold:

• A research plan for a life-changing event begins with a thorough understanding of the event itself, together with an identification and a deep understanding of the key players — the individuals to be researched. Their actions, inactions, motivations and prior history are what contributed to the event.

• When dealing with relatively recent events — in this case, a 1929 gunfight that left a county sheriff dead — genealogical ethics require us to consider the interests and concerns of living family members. We must be sensitive, as the NGS teaches in its Standards for Sharing Information With Others, “to the hurt that revelations of criminal, immoral, bizarre or irresponsible behavior may bring to family members.”

And in From the White Lion to the Emancipation Proclamation–Slavery and the Law Before the Civil War, I hoped to make these essential points:

• It’s not African-American research. It’s American research. The story of slavery is the story of all Americans, north and south, whether our ancestors were slaves, slaveowners, or merely onlookers to this peculiarly American institution.

• It isn’t possible to understand the records of the day without understanding the law. If we don’t understand that a newly freed slave was often legally required to leave the state, leaving family behind, it’s impossible to understand why that freed slave might want to be sold back into slavery.

Lessons from the lectern. What a great day we had…

Posted in General, Methodology | 12 Comments

Serendipity strikes again

So the semi-annual meeting of the Board of Trustees of the Board for Certification of Genealogists® is underway in Salt Lake City and, as is the BCG custom, Board-certified genealogists donated their time yesterday to offer free lectures to the genealogical community.

Held in the Family History Library (FHL), the lectures are — first and foremost — BCG’s way to say thank you to the FHL and its staff for everything they do for us year in and year out. By sharing our knowledge with them, we hope to repay to some degree the many times they have shared their knowledge with us and with all genealogists everywhere.

The Legal Genealogist had the privilege of being the lead-off lecturer, doing a reprise of a topic I presented at the National Genealogical Society conference in Richmond in May: Shootout at the Rhododendron Lodge: Reconstructing Life-Changing Events.

It’s a presentation I dearly love, for many reasons: it’s got a great story — a firefight between good guys and bad guys in which the Bath County, Virginia, sheriff was shot to death; it’s got a lot of twists and turns — demonstrating why reasonably exhaustive research is so key to excellence in genealogy; and it’s a story where — if the shootout had ended just a little differently — my family would be so very different today.

Because, you see, when that sheriff set out that night in December 1929 to track down the men who’d been involved in a bar fight, he didn’t go off alone. He had picked a local man to back him up, had deputized him on the spot… and that local man was right in the middle of the gunfight that broke out when the two groups met in the darkness.

The on-the-spot deputy — who survived the night’s gunfight — went on to marry and have children, grandchildren and great grandchildren.

One of those grandchildren is my brother-in-law Mike, husband of my youngest sister. And two of those great grandchildren are my nephew and niece, Thomas and Rose.

It almost would have been enough genealogical serendipity that the lecture was yesterday, which happened to be my niece Rose’s birthday. Kind of cool to be talking about her great grandfather while she’s celebrating with her Dad.

But that was barely the start of it.

In the audience yesterday was another man named Mike. He’s a Facebook friend, a fellow genealogist, and one who has exactly the same Scottish last name as my brother-in-law. It had occurred to me once or twice in passing that I should ask this Mike if he’d ever thought about doing DNA testing; it would be fun, I thought, to see how Mike and Mike matched up.

I had the chance to ask that question yesterday and got one whale of a surprise for an answer.

Mike in the audience — call him MikeA — and Mike my brother-in-law — call him MikeB — are cousins.

Close cousins.

Where it counts.

In their genes.

Here’s the 12-marker YDNA match-up between MikeA (on the bottom) and MikeB (on the top):

MM1

They’re both in what’s called the Western Atlantic Modal Haplogroup: “the most frequently occurring 12-marker Y chromosome haplotype associated with haplogroup R1b1a2.”1 In other words, they’re both absolutely typical men of European ancestry.2

Now at 12 markers, there’s not a whole lot more than could be said. At 12 markers, an exact genetic match means the Mikes have a good chance — about 95% odds — of sharing a common ancestor within 29 generations.3 Give or take a few, figuring an average of 25 years per generation, that’s about 725 years. Not exactly within the usual genealogical time frame.

But neither of the Mikes stopped at 12 markers. Let’s look at the next set of 13 markers:

MM2

Oh, boy. So far so good — a 25-for-25 marker match, sharing a surname. That ups the odds quite a bit. With that kind of match, we’ve got a 95% chance of the Mikes sharing a common ancestor within 13 generations.4 Again figuring about 25 years per generation, about 325 years.

Better, for sure. But still pushing the limits of genealogical time. We think we know the original immigrant ancestor here, a man who died in late 1748 in Prince William County, Virginia. But wouldn’t it be nice to get even closer?

So… take a look at the next set of 12 markers — both Mikes have tested to the 37-marker level:

MM3

Oh yeah. A 37-for-37 marker match, sharing a surname.

The odds now? About a 95% chance that they share a common ancestor within seven generations5 — as little as perhaps 175 years. And the odds are about 90% that the common ancestor will turn up within five generations6 — roughly 125 years.

We’ve got our eyes on one particular man — a Loyalist — or one particular son of that Loyalist as likely candidates for the most recent common ancestor, and we’ve sure got some paper trail work to do to try to narrow down the odds.

But then there is that whole other set of odds. The odds that MikeA would be sitting there in the audience yesterday, listening to another part of the family story of his cousin, MikeB.

I can’t even begin to calculate that.

I love genetic genealogy… especially when serendipity strikes.


SOURCES

  1. ISOGG Wiki (http://www.isogg.org/wiki), “Western Atlantic Modal Haplotype,” rev. 5 Mar 2014.
  2. What does the WAMH badge on my personal page mean?,” The Family Tree DNA Learning Center, Family Tree DNA (https://www.familytreedna.com/learn/ : accessed 11 Oct 2014).
  3. Ibid., “Paternal Lineages, Y-DNA12.”
  4. Understanding Your Y-DNA25 Results,” Family Tree DNA (https://www.familytreedna.com/ : accessed 11 Oct 2014).
  5. Paternal Lineages, Y-DNA37,” The Family Tree DNA Learning Center, Family Tree DNA (https://www.familytreedna.com/learn/ : accessed 11 Oct 2014).
  6. Ibid.
Posted in DNA | 20 Comments

Still no answers

It was 132 years ago today that one of the family’s mystery ladies passed out of this world, taking her secrets with her.

We know her first name — Nancy. And — as The Legal Genealogist first reported nearly two years ago — almost everything about her is a mystery.1

We have evidence of her birth and death dates — 12 January 1786 and 11 October 1882 — only from her tombstone, in the Baker Cemetery, at the old Baker Community near Long Creek in southern Parker County, Texas.2 There isn’t any other evidence to support either the birth or death dates.

If the 1850 census of Pulaski County, Kentucky, is right, she was born in North Carolina, but her birth year would be 1788, not 1786.3 If the 1880 census of Parker County, Texas, is right, she was born in South Carolina, but she’d have been born in 1779.4

We don’t have a single solid clue as to who Nancy’s parents were. I’ve found no evidence at all to support undocumented online family trees that suggest her maiden name might have been Davis.

We know she married Jesse Fore — her tombstone tells us that much5 — and that seems to be pretty well corroborated by evidence linking her to her children, and particularly her daughter Nancy Catherine “Kate” (Fore) Baker.6 Nancy was living with Kate and her husband Josiah Baker at the time of the 1880 census and was enumerated as the mother-in-law of the head of household, Josiah.7

The only direct evidence as to when and where Nancy and Jesse married appears in a pension application Jesse filed for service in the War of 1812, where he said he married in Buncombe County, North Carolina, in 1815. The hitch is that he named his wife from that marriage as Sallie8 — nickname for his second wife Sarah, whom he married in Georgia in 1855. So it’s hard to put much faith in that information, recorded so many years after the fact when Jesse was in his 80s.

Indirect evidence supporting a marriage around 1815 comes from the birth years of Nancy’s and Jesse’s children. The oldest, Joseph, was born around 1816;9 their second child, my 2nd great grandmother Mary “Polly” Fore, was born around 1818.10

And we can add to the mix that Nancy clearly ended up in Parker County, Texas, along with a number of her children — Kate (Fore) Baker, Polly (Fore) Johnson and George Washington Fore, for certain.

And that is where the biggest mystery of Nancy’s life comes into play: why and when and with whom did Nancy come to Texas?

You see, though Nancy’s tombstone identifies her as the widow of Jesse “Four,” and though Jesse was indeed dead by the time Nancy died,11 Nancy and Jesse hadn’t lived together since sometime in the early 1850s. Sometime between 1850, when Jesse and Nancy were enumerated in Pulaski County, and 1855, some irrevocable split occurred, with Jesse staying in the east and Nancy heading west.

And we know that because we know that Jesse masrried that second wife, a widow by the name of Sarah Nicks, in June of 1855 in Union County, Georgia.12

Now we know that the Bakers had pulled up stakes in Pulaski County in the early 1850s,13 heading first to Louisa County, Iowa, where Josiah and Kate’s son James was born in 1853,14 and then to Parker County, Texas, where the family begins to appear in the records by the mid-to-late 1850s.

There is no divorce recorded for Jesse and Nancy in Pulaski County, Kentucky, where Jesse was on the tax rolls in 1850 and 1851, or in Union County, Georgia, where Jesse married in 1855. Nor is there any legal action by Nancy in Texas in the Parker County records that survived an 1874 courthouse fire.

But even if I could find the records of what happened to their marriage, there are questions I have for which there may never be any answers.

What happened back in Pulaski County that made a woman in her 60s leave her husband of more than 30 years to head west the way Nancy did? Did she face a terrible choice between her husband and her children… or was it a relief to be free of Jesse?

Did she accompany Josiah and Kate? Did she go out later with Polly Johnson and her family? Or with her son George?

And what about Nancy’s life after she left Jesse? Was she happy there in Parker County — a frontier area still plagued by Indian attacks well into the 1870s? Did she ever regret the choice that she made?

Did she ever think of the man she left behind?

I would still give my right arm for a time machine… or a diary…


 
SOURCES

  1. See Judy G. Russell, “The mysteries of Nancy Fore,” The Legal Genealogist, posted 12 Jan 2013 (http://www.legalgenealogist.com/blog : accessed 10 Oct 2014).
  2. Baker Cemetery (Baker Community, Parker County, Texas; on Baker Road approximately four miles south of the intersection with Doyle Road, Latitude 323503N, Longitude 0974338W), Nancy C. “Four” marker; photograph by J.G. Russell, 3 May 2003.
  3. 1850 U.S. census, Pulaski County, Kentucky, population schedule, Division 1, p. 7 (back) (stamped), dwelling 106, family 106, Nancy Fore; digital image, Ancestry.com (http://www.ancestry.com : accessed 20 March 2007); citing National Archive microfilm publication M432, roll 217.
  4. 1880 U.S. census, Parker County, TX, population schedule, Justice Precinct 6 , enumeration district (ED) 139, p. 458(B) (stamped), dwelling 12, family 12, Nancy Fore, mother-in-law, in Josiaha Baker household; digital image, Ancestry.com (http://www.ancestry.com : accessed 12 Oct 2011); citing National Archive microfilm publication T9, roll 1232; imaged from FHL microfilm 1255323.
  5. Baker Cemetery, Nancy “Four” marker.
  6. A history written by Josiah and Kate’s grandson Elma Baker documents this branch of the family. Elma W. Baker, The Rugged Trail, Vol. II (Dallas, Texas : p.p., 1973), 81 (citing Family Bible of Lela Fay Jones, Lubbock Texas).
  7. 1880 U.S. census, Parker Co., Tex., pop. sched., Justice Precinct 6, ED 139, p. 458(B) (stamped), dwell./fam. 12, Nancy Fore, mother-in-law, in “Josiaha” Baker household.
  8. Declaration of Soldier, 27 March 1871, Jesse Fore (Fifer, Capt. Gaffney’s South Carolina Militia, War of 1812), soldier’s pension application no. 4553, certificate no. 7041; Case Files of Pension and Bounty Land Applications Based on Service Between 1812 and 1855; Pension and Bounty Land Warrant Application Files, 1800-1960; Department of Veterans Affairs, Record Group 15; National Archives, Washington, D.C.
  9. A male child age 10-14 was in the Fore household in 1830. 1830 U.S. census, Buncombe County, North Carolina, p. 254 (stamped), line 6, Jesse Fore household; digital image, Ancestry.com (http://www.ancestry.com : accessed 12 May 2004); citing National Archive microfilm publication M19, roll 118. That this oldest son was Joseph was reported by his niece, Martha A. “Mattie” Fore Gough.
  10. Polly was shown as age 32 in 1850. 1850 U.S. census, Pulaski Co., Ky., Somerset, pop. sch., p. 2 (back) (stamped), dwell./fam. 27, Mary Johnson.
  11. Affidavit of Claimant, 3 May 1879, Sarah Fore, widow’s pension application no. 36249, certificate no. 25298, service of Jesse Fore (Fifer, Capt. Gaffney’s South Carolina Militia, War of 1812); Case Files of Pension and Bounty Land Applications Based on Service Between 1812 and 1855; Pension and Bounty Land Warrant Application Files, 1800-1960; Department of Veterans Affairs, Record Group 15; National Archives, Washington, D.C.
  12. Ibid.
  13. Josiah and Kate were still in Pulaski County in 1850. 1850 U.S. census, Pulaski Co., Ky., Division 2, p. 82 (stamped), dwell./fam. 107, Josiah A. Baker household.
  14. Obituary, James R. Baker, Lovington (N.M.) Leader, 12 Feb 1937.
Posted in My family | 18 Comments

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

Flush, our ancestors generally weren’t.

Well, okay, maybe yours were. After watching the Anderson Cooper segment of Finding Your Roots this week1, The Legal Genealogist is reminded that there are some folks out there whose ancestors weren’t peasants the way mine were.2

3D Man Broke BusinessmanBut for many of us, at one point or another, we encounter an ancestor whose pockets were empty: so much so that he ran afoul of the laws of the day.

The law was rarely kind to the man, or occasional woman, who couldn’t pay debts as they came due. Debtors were often subject to transportation to a distant land, and colonial America was a common destination for English debtors.3

In America, debtors were often sent to jail — debtors’ prisons — as late as the middle of the 19th century. In Baltimore, Maryland, for example, some 590 debtors were sent to jail in the year ending November 1849.4

And there are two words we often see in records we find about our financially-challenged ancestors. One is bankrupt. And the other is insolvent.

Today, they’re pretty much used interchangeably in the law — but that wasn’t always the case. So let’s look at those two terms as we might run across them in the records.

An individual was considered insolvent when he couldn’t pay his bills. The dictionary definition is “one who cannot or does not pay; one who is unable to pay his debts; one who is not solvent; one who has not means or property sufficient to pay his debts.”5

And an individual was considered bankrupt when the law allowed his creditors to step in and act against him in a particular way. Again, the dictionary definition is a “person who has committed an act of bankruptcy; one who has done some act or suffered some act to be done in consequence of which, under the laws of his country, he is liable to be proceeded against by his creditors for the seizure and distribution among them of his entire property.”6

You can see the difference here, right? An ordinary person might often be insolvent — unable to pay his bills. But that person was usually dealt with on a one-to-one basis versus a particular creditor. If the creditor decided to sue, or get a judgment for debt, then the debtor and the creditor would fight it out one on one.

In a bankruptcy case, all of the creditors gang up on the debtor, and all fight it out at once. And historically it was a rare case when the law stepped in and declared a person bankrupt. Most of the time, a bankruptcy was forced on a debtor who was in business, not just a local joe.

But that doesn’t quite explain what the big difference was between the two, in the kinds of records we’ll see as genealogists. For us, we’re going to see it in who asked the courts to act. “(I)nsolvent laws operate at the instance of an imprisoned debtor; bankrupt laws, at the instance of a creditor.”7

Here’s the way it’s explained by Black in his Law Dictionary:

The leading distinction between a bankrupt law and an insolvent law, in the proper technical sense of the words, consists in the character of the persons upon whom it is designed to operate… (A) bankrupt law, in its proper sense, is a remedy intended primarily for the benefit of creditors; it is set in motion at their instance, and operates upon the debtor against his will, … although in its result it effectually discharges him from his debts. An insolvent law, on the other hand, is chiefly intended for the benefit of the debtor, and is set in motion at his instance, though less effective as a discharge in its final result.8

So when our ancestors were in the courts as alleged bankrupts, it’s because their creditors wanted it. They wanted to be able to take all of the debtor’s property and divide it up among themselves, leaving the debtor with nothing — but also with no debts.

When our ancestors were in the courts as insolvents, they were the ones who wanted to be declared insolvent, because getting that designation would free them from the debtor’s jails.

In both cases, the ancestor was still broke. But the reasons for being legally considered to be broke were different.


SOURCES

  1. See “Our American Storytellers,” Finding Our Roots, PBS (http://www.pbs.org/ : accessed 8 Oct 2014).
  2. Anderson Cooper’s mother was Gloria Vanderbilt. Yes, that Gloria Vanderbilt. See ibid.
  3. See Acts of Geo. II, chap. 31 (1743), in Danby Pickering, ed., The Statutes at Large from the 15th to the 20th Year of King George II, vol. 18 (Cambridge, England: printed by Joseph Bentham, 1765), 142; digital images, Google Books (http://books.google.com : accessed 8 Oct 2014).
  4. See Prison Discipline Society, 26th Annual Report of the Board of Managers of the Prison Discipline Society (Boston : T. R. Marvin, 1851), 93; digital images, Google Books (http://books.google.com : accessed 8 Oct 2014).
  5. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 629, “insolvent.”
  6. Ibid., 118-119, “bankrupt.”
  7. Ibid., “bankruptcy.”
  8. Ibid., 119, “bankrupt law.”
Posted in Legal definitions | 11 Comments