Happy birthday, Diana!

There are some birthdays, particularly as we get older, that are just plain boring.

You know the ones I mean.

No Medicare. No Social Security. No new benefits of any kind. Not even a new discount.

Just the inexorable march of time.

Yesterday was not one of those birthdays for The Legal Genealogist‘s sister, Diana.

Neither of us looks entirely sure about this new arrangement...

Neither of us looks entirely sure about this new arrangement…

I probably shouldn’t give too much away here.

After all, she knows where I live.

And she knows all the things I’ve ever done that have gotten me — and her — in trouble.

There's little doubt the mud was my idea, not Diana's.

There’s little doubt the mud was my idea, not Diana’s.

She is older than I am and suffers from all of the usual complaints of the oldest child: she was the rule-follower, I was the rule-breaker. You could eat off the floor on her side of our shared bedroom, you couldn’t see the floor on my side. I would head off to do something dumb, she would dutifully follow along to try to keep me out of the worst of trouble, and usually end up in trouble right by my side.

I’m sure she remembers all those times.

Like the time our mother had taken the younger kids to visit her parents in Virginia during the school year, leaving Diana and me behind. I slipped on the ice when we were walking to school and decided that was an omen: I wasn’t going to school. The neighbor who was watching us decided to call the police when her boys came home for lunch and told her they hadn’t seen us at school.

Or the time I decided it was too nice a day to have to go to school and we should play in the field near the house instead. After all, we could hear the school bells and just go home on time by listening to the bells. I hadn’t counted on the fact that you’d get home 15 minutes too early if you didn’t remember there was a warning bell first…

My first friend.

My oldest friend.

Still friends... after all these years... I guess she's forgiven me!

Still friends… after all these years… I guess she’s forgiven me!

My lifelong friend.

My sister.

Happy birthday, Diana!

Posted in My family | 12 Comments

Excluding and including the Indian

There is a curious phrase in the Constitution of the United States.

It appears in Article I, section 2, and it appears again in the 14th Amendment.

In Article I, the Constitution provides that

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.1

In the 14th amendment, that provision — setting up the allocation of congressmen among the states — was changed.

Sundancer PaintingSection 2 of the 14th amendment provides that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”2

So what exactly does the Constitution mean when it talks about “excluding Indians not taxed”?

The Legal Genealogist can’t give you a definitive answer.

Neither can anybody else.

The fact is, the term is never defined. Not in the Constitution. Not in the statutes. Not in the case law interpreting that provision of the law.3

In fact, the only place you may find a working definition is in the instructions that were given to census takers.

Now remember, first of all, that this particular provision of the United States Constitution is why we have census records at all. Although we, as genealogists, use these records routinely as part of our research, they really weren’t created for our benefit. The singular reason for counting the number of people around the country is to apportion the members of the House of Representatives among the states.

So it actually makes sense that the one place we might find a working definition of a term that appears primarily with respect to the census is in the census instructions.

The first time the term was included was in the instructions to Marshals for the 1830s census. There it simply says: “Your assistants will also bear in mind to include all persons of a family (except Indians not taxed) where members thereof on the 1st day of June, 1830.”4 The 1840 census instructions were the same.5

In 1850, enumerators were simply instructed that “Indians not taxed are not to be enumerated in this or any other schedule.”6

In 1860, enumerators were told that “Indians not taxed are not to be enumerated. The families of Indians who have renounced tribal rule, and who under State or Territorial laws exercise the rights of citizens, are to be enumerated.”7

So in 1860, for the first time, we get a working definition — by working backwards. If “Indians not taxed are not to be enumerated” but Indians who have renounced tribal rule and exercise the rights of citizens under state or Territorial laws are to be enumerated, then “Indians not taxed” must be those living within tribal rule and not exercising the rights of citizens under state or Territorial laws. In other words, those on reservations.

In 1870, the instructions for that census told the census takers:

“Indians not taxed” are not to be enumerated on schedule 1. Indians out of their tribal relations, and exercising the rights of citizens under state or Territorial laws, will be included. In all cases write “Ind.” in the column for “Color.” Although no provision is made for the enumeration of “Indians not taxed,” it is highly desirable, for statistical purposes, that the number of such persons not living upon reservations should be known. Assistant marshals are therefore requested, where such persons are found within their subdivisions, to make a separate memorandum of names, with sex and age, and embody the same in a special report to the census office.8

The definition was finally made express in the instructions of 1880:

By the phrase “Indians not taxed” is meant Indians living on reservations under the care of Government agents, or roaming individually, or in bands, over unsettled tracts of country.

Indians not in tribal relations, whether full-bloods or halfbreeds, who are found mingled with the white population, residing in white families, engaged as servants or laborers, or living in huts or wigwams on the outskirts of towns or settlements are to be regarded as a part of the ordinary population of the country for the constitutional purpose of the apportionment of Representatives among the states, and are to be embraced in the enumeration.9

In 1890, the census definition was the same: “By the phrase ‘Indians not taxed’ is meant Indians living on reservations under the care of Government agents or roaming individually or in bands over unsettled tracts of country.”10

In 1900, a separate population schedule was used for Indian families “both those on reservations and those living in family groups outside of reservations.”11 And, the census takers were told, “An Indian is to be considered ‘taxed’ if he or she is detached from his or her tribe and living among white people as an individual, and as such subject to taxation, whether he or she actually pays taxes or not; also if he or she is living with his or her tribe but has received an allotment of land, and thereby has acquired citizenship. … An Indian on a reservation, without an allotment, or roaming over unsettled territory, is considered ‘not taxed’.”12

That same system was followed in 1910.13 There was no separate Indian schedule in 1920.14

And in 1924 the reason for the distinction disappeared. On 2 June 1924, a statute became law in the United States. It provided, simply, that “all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”15

And, with that law, the taxed-versus-non-taxed distinction ceased to exist.


  1. Article I, §2, Constitution of the United States (emphasis added).
  2. §2, Amendment 14, Constitution of the United States (emphasis added).
  3. See generally Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C. : Government Printing Office, 1945), 89; digital images, Google Books (http://books.google.com : accessed 12 Mar 2015).
  4. Jason Gauthier, Measuring America: The Decennial Censuses From 1790 to 2000 (Washington, D.C. : U.S. Census Bureau, 2002), PDF at 7.
  5. Ibid., at 8.
  6. Ibid. at 10.
  7. See “Special Instructions, Schedule No. 1, 1860 Census: Instructions to the Marshals,” set out at Minnesota Population Center, University of Minnesota, IPUMS USA (https://usa.ipums.org/ : accessed 12 Mar 2015).
  8. Gauthier at 15.
  9. Ibid. at 18.
  10. Ibid. at 24.
  11. Ibid. at 43.
  12. Ibid. at 44.
  13. Ibid. at 56-57
  14. Ibid. at 58.
  15. “An Act To authorize the Secretary of the Interior to issue certificates of citizenship to Indians,” 43 Stat. 253 (2 June 1924).
Posted in Constitutions, Legal definitions, Resources, Statutes | 4 Comments

The first one, that is

Have you, as a genealogist, offered up your most sincere thanks to the members of the United States Congress?

1Stat101The Legal Genealogist has — a statement that may surprise those of you who’ve managed to figure out that this distinctly apolitical writer isn’t entirely fond of those who inhabit the halls of the Capitol building these days.1

But I have indeed offered up my most sincere thanks to the members of the United States Congress.

The members of the first United States Congress.

The ones that passed the Act of 1 March 1790.

The Act entitled: “An Act providing for the enumeration of the Inhabitants of the United States.”2

The very first United States census act.

It was enacted 125 years ago this month (edit: 225 — never was very good at math…), and provided in part

That the marshals of the several districts of the United States shall be, and they are hereby authorized and required to cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colours of free persons, and the free males of sixteen years and upwards from those under that age;3

Every person who was a member of a family was supposed to be counted in that family, even if he wasn’t at home when the census takers arrived to take the count.4 There was supposed to be a separate column for those who lived in a particular district but didn’t have a settled place of residence.5

Every person over the age of 16 was legally required to cooperate with the census taker, and “obliged to render … a true account, if required, to the best of his or her knowledge, of all and every person belonging to such family…”6

Census takers were to be paid at the rate of one dollar for every 300 persons in the cities and one dollar for every 150 persons in the countryside.7 But if the population was really thin, then more could be paid but not more than one dollar for every 50 people.8

The chief census taker in each district was to be the U.S. marshal, and he was to file the returns on or before the first of September, 1791.9 Their pay for this ranged from a low of $100 in the district of Delaware to a high of $500 in the district of Virginia.10

Now this wasn’t exactly a charitable act, and it wasn’t for the benefit of future generations of genealogists. The United States Constitution provides that

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.11

But because of that method of apportioning the members of Congress and beginning with the statute of March 1790, we as genealogists can celebrate the census.

So go thank the United States Congress.

The first one.


  1. Yeah, yeah, I know. I’ve made such a secret of the fact that today’s politicians of all stripes annoy me right down to my toenails. Sigh…
  2. “An Act providing for the enumeration of the Inhabitants of the United States,” 1 Stat. 101 (1 March 1790); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/index.html : accessed 11 Mar 2015).
  3. Ibid., §1.
  4. Ibid., §5.
  5. Ibid.
  6. Ibid., §6.
  7. Ibid., §4.
  8. Ibid.
  9. Ibid., §3.
  10. Ibid., §4.
  11. Article I, §2, Constitution of the United States.
Posted in Resources, Statutes | 9 Comments

Always go for the originals

So The Legal Genealogist is chasing ancestors through the courthouses of Texas this week, and ran into something yesterday that was just a little surprising.

It shouldn’t have been, really — the telltale signs really are there — but it was still a little surprising.

You see, my favorite ancestor George Washington Cottrell — my scoundrel who managed to get himself indicted a half dozen times or so, the last time for murder1 — lived in Colorado County, Texas, in the 1840s.

That’s where he was first shows up in the Texas record books. He was married there in 18422, to a widow named Mary Gilbert, and was promptly indicted for bigamy and adultery there.3 The charges were dismissed after Wharton County was created from Colorado County,4 and we’d long thought that it was perhaps because it was no longer Colorado County’s problem and perhaps because the woman he married in 1842 died5 and he was no longer — if he ever had been — a bigamist.

Now I’ve seen those early Colorado County court minutes. They’re on microfilm at the Family History Library.6 And I knew that that first indictment had been, in the words of the court minutes, “squashed.”7

Except yesterday I discovered that what’s on microfilm isn’t quite what it’s cracked up to be.

Oh it reads Minutes, volume AB, for sure, just as the microfilm version does.

But there’s a word on the book in the Colorado County District Court Clerk’s Office that isn’t in the film description.

It’s the word “transcribed.”


Carefully and neatly copied, many years later, by a later and different court clerk.

Now in George’s particular case the entry in the original book, which still exists there in Columbus, Texas, reads exactly the same as the entry in the transcribed book.

But looking at the original volume it’s an absolutely safe bet that that may not be true for every entry in that book. The handwriting essentially guarantees that some things that made it into the transcription may not be exactly what was written the first time around.

All of which goes to point out why we all say, over and over and over, it’s so important to get out to the courthouses and libraries and repositories where the original records are located.

It’s not all online.

It’s not even all on microfilm.

And sometimes, as in Colorado County, what’s on microfilm isn’t even what was originally written.


  1. See Judy G. Russell, “Oh George… you stinker!,” The Legal Genealogist, posted 9 June 2012 (http://www.legalgenealogist.com/blog : accessed 10 Mar 2015).
  2. Colorado County, Texas, Marriage Book B: 38, Cotrell-Gilbert; County Clerk, Columbus.
  3. Colorado County, Texas, Criminal Court Minutes Book A&B, p. 208, Republic of Texas v. G.W. Cottrell, Criminal Cause File No. 251 (1843); District Court, Columbus; imaged on FHL microfilm 973588.
  4. Ibid., p. 217.
  5. Wharton County, Texas, Probate Court Minutes A: 2, September Term 1848; County Clerk’s Office, Wharton; FHL microfilm 1,012,393.
  6. FHL microfilm 973588.
  7. The word should have been quashed, but hey… Texans never do anything halfway.
Posted in General, Methodology | 8 Comments

What’s with the marker?

So The Legal Genealogist is in Texas, doing something that’s truly rare these days.

Looking into my own family history.

There’s not always a lot of time, when you write and lecture, to research your own family, so every chance you can get is a real treasure.

And sometimes a real mystery.

And, Lord knows, there are enough real mysteries in my family.

I wouldn’t mind solving a couple of those mysteries in the next day or two, with the aid of the Houston Genealogical Forum’s Marilyn Maniscalco Henley, who’s serving as driver, organizer and aide de camp extraordinaire.

But we sure didn’t get anywhere with one big mystery yesterday.

The mystery of how a Texas boy became a Yankee on his military grave marker.

GilbertMy grandfather’s brother Gilbert Fleetwood Cottrell was born 10 October 1892 in Wichita County, Texas, and died 11 July 1970 in Houston, Harris County, Texas.1 In 1913, he joined the Army2 and spent time in the Quartermaster Corps at Fort Yellowstone, Wyoming,3 before being ordered to the Philippines.4

He was still in the Army in 1920 when he was enumerated at Camp Zachary Taylor, Kentucky, as 27-year-old Gilbert F. “Cotterall”, a sergeant in the United States Army, born TX,5 and still in the Army when he married a Kentucky girl, Myrtie Hart, in Clark County, Indiana, on the 15th of May 1920.6

That relationship quickly soured, Bert left the Army and went back to Texas, and in 1922, he took out a marriage license in Victoria County, Texas, to marry a German girl, Hertha Musch.7 He and Hertha spent their entire lives in the Houston area, recorded there on the 1930 census8 and the 1940 census.9 Bert died there in 197010 and Hertha in 1990.11 They’re buried there, in the Earthman Resthaven Cemetery.12

I stood there yesterday, in the rain, at Bert’s grave in that cemetery. There is only a military grave marker for him and no marker at all for Hertha. Not surprising, perhaps, since they had no children to care to erect a stone, and no-one left to put up any marker after Hertha’s death.

But what is surprising is what’s on Bert’s marker.

“Gilbert F. Cottrell,” the marker reads. Check. The date of birth: “Oct 10 1892.” Check. The date of death: “July 11 1970.” Check. Military service: “Sgt US Army World War I.” Check. And above the description of his military service, these words appear:

New Jersey

Say what?

Born in Texas. Raised in Texas. Lived in Texas. Died in Texas.

What in the world is with this New Jersey reference?

The cemetery records don’t explain how New Jersey came to be on Bert’s marker. Its copy of what looks like it might be the application for a military grave marker is so faded only a few scattered letters and words can be read. Like the first few letters of Bert’s last name. And, inexplicably, the words “New Jersey.”

And, of course, the digitized database of “Headstone Applications for Military Veterans” on Ancestry.com only goes up to 1963,13 and the later records — which used to be at the main facility of the National Archives in Washington, D.C., where they’d be fairly easy for me to get a copy — have been moved to St. Louis,14 where they’re not so easy for me to get access.

Now it’s possible, of course, that Bert served in New Jersey, or may have once re-enlisted in New Jersey, or was discharged in New Jersey, or just plain liked New Jersey.

But it’s a sure bet he never thought of himself as being from New Jersey.

And why New Jersey is on his grave marker… well, that’s still a mystery for another day.


  1. Texas Department of Health, death certif. no. 49224, Gilbert Fleetwood Cottrell, 11 July 1970; Bureau of Vital Statistics, Austin.
  2. Entry for Gilbert Cottrell, “Department of Veterans Affairs BIRLS Death File, 1850-2010,” database and index, Ancestry.com (http://www.ancestry.com : accessed 11 July 2014).
  3. See “Washington Army Orders,” Galveston (Texas) Daily News, page 4, col. 3 (“Privates Gilbert F. Cottrell and Charles M. Tellman, quartermaster corps, now in confinement at Fort Yellowstone, Wyo., are assigned to that post”).
  4. U.S. War Department, Special Order 198, 22 August 1914, in Special Orders, 1914, vol. 2 (Washington, D.C. : War Department, 1914); digital images, Internet Archive (http://www.archive.org : accessed 11 July 2014).
  5. 1920 U.S. census, Jefferson County, Kentucky, Camp Zachary Taylor, population schedule, enumeration district (ED) 18, p. 268(B) (stamped), dwelling B79, family 159, Gilbert F “Cotterall”; digital image, Ancestry.com (http://www.ancestry.com : accessed 15 Oct 2011); citing National Archive microfilm publication T625, roll 577.
  6. Clark County, Indiana, Marriage License and Return, Marriage Book 50: 482, Gilbert F. Cottrell and Myrtie Hart, 15 May 1920; digital images, “Indiana, Marriages, 1811-1959,” FamilySearch (https://familysearch.org : accessed 11 July 2014).
  7. “Licensed to Wed,” Victoria (Texas) Advocate, 9 June 1922, page 2, col. 3.
  8. 1930 U.S. census, Harris County, Texas, Houston, population schedule, enumeration district (ED) 142, p. 158(B) (stamped), sheet 18(B), dwelling 248, family 249, Gilbert F. and Hertha Cottrell; digital image, Ancestry.com (http://www.ancestry.com : accessed 11 July 2014); citing National Archive microfilm publication T626, roll 2351.
  9. 1940 U.S. census, Harris County, Texas, Houston, population schedule, enumeration district (ED) 258-34, sheet 6B, household 138, Gilbert and Hertha Cottrell; digital image, Archives.gov (http://1940census.archives.gov : accessed 11 July 2014); citing National Archive microfilm publication T627, roll 4191.
  10. Texas Dept. of Health, Death Certif. No. 49224, Gilbert F. Cottrell (1970).
  11. Social Security Death Index, entry for Hertha Cottrell, Houston, Texas, 1990; database and index, Mocavo.com (http://www.mocavo.com : accessed 11 July 2014).
  12. Earthman Resthaven Cemetery (Houston, Harris County, Texas; on North Freeway, approximately one mile north of the intersection with Sam Houston Parkway, Latitude 29.960995, Longitude -95.413649), Gilbert F. Cottrell marker. The records of the Cemetery reflect Hertha’s burial next to Bert.
  13. “US, Headstone Applications for Military Veterans, 1925-1963,” database and images, Ancestry.com (http://www.ancestry.com : accessed 8 Mar 2015).
  14. See “Personnel Record to Move to National Archives at St. Louis,” Archives.gov (http://www.archives.gov/ : accessed 8 Mar 2015).
Posted in General, My family | 8 Comments

In honor of International Women’s Day

Raised by the women who are stronger than you know
A patchwork quilt of memory only women could have sewn
The threads were stitched by family hands, protected from the moth
By your mother and her mother, the weavers of your cloth.

– Mary Chapin Carpenter, Family Hands

Today is International Women’s Day — a day to celebrate the achievements of women around the world.

And in recognition of this day, The Legal Genealogist chooses to celebrate the women in her direct maternal line.

My mother Hazel Irene Cottrell Geissler born TX 21 Mar 1926, died VA 23 Apr 1999

My mother
Hazel Irene Cottrell Geissler
born TX 21 Mar 1926, died VA 23 Apr 1999

My grandmother Opal Eileen Robertson Cottrell born TX 21 Aug 1898, died VA 15 Mar 1995

My grandmother
Opal Eileen Robertson Cottrell
born TX 21 Aug 1898, died VA 15 Mar 1995

My great grandmotherEula Baird Livingston Robertsonborn AL 24 Oct 1869, died VA 13 Mar 1954

My great grandmother
Eula Baird Livingston Robertson
born AL 24 Oct 1869, died VA 13 Mar 1954

My great great grandmotherMartha Louise Shew Baird Livingstonborn AL 24 Oct 1869, died VA 13 Mar 1954

My great great grandmother
Martha Louise Shew Baird Livingston
born AL cFeb 1855, died NM 9 Apr 1909

Posted in My family | 14 Comments

Even those vanity books

Yes, of course, those local histories are mostly vanity books.

You know the ones I mean.

EagleLake1aSome of them are prepared by the local Historical Society or local Historical Commission and their primary purpose is to record the history the town wants people — especially potential residents and businesses — to believe.

Some of them are prepared by commercial firms with information that local families submit because it’s what they want people to believe — and that they may even sometimes believe themselves.

And even those local histories contain nuggets.

Little bits and pieces of information that may be just what we need to help nail down something in our own family histories.

Case in point.

My great grandfather Jasper Carlton Robertson worked for a time as a guard in the Texas prison system. His employee ledger reflects that he worked at as many as eight different locations over a period of about as many years.1

As of 1900, he was enumerated in the U.S. census as a guard of convicts at Dunovant’s Camp No. 1, located in Justice Precinct 8, Colorado County, Texas.2

So… where exactly is that?

You see, William Dunovant was one of the biggest landowners in all of Colorado County, Texas, around the time when Jasper was a prison guard — and he hired convict labor to work on his sugar and rice plantations.3 Somewhere on the thousands upon thousands of acres he owned were the camps where Jasper was assigned.

There may be a precise answer somewhere in the land records of Colorado County, or perhaps the tax records. There may be a contract between Dunovant and the state prison system. All of which is important and should be sought out… when there’s time.

But when you’re on a flying trip in to Texas and you’ve got to try to find an answer on the fly, you don’t want to overlook the nuggets wherever they may be found. I may have just a few hours to try to walk the land where my great grandfather served… and narrowing down the location as soon as possible is a priority.

So where do you look?

In every corner.

For every nugget.

I had the great good fortune to spend most of yesterday at Houston’s Clayton Library Center for Genealogical Research. It’s a treasure trove of genealogical information ranging from early historical newspapers to — yes — those vanity books.

And in one of those vanity books, a history of the town of Eagle Lake in Colorado County, put together by the Eagle Lake Historical Commission, comes this little nugget.

“Two prison camps were located on the J. U. Frazar Estate, three miles south of Eagle Lake.”4

In one sentence the geography has gone from somewhere on thousands of acres somewhere in Colorado County to one area south of the town of Eagle Lake. Somewhere, I suspect, in the shaded zone on this map.

It isn’t perfect.

But it’s a place to start.

And a place I didn’t have before mining even a vanity book for the nuggets it might contain.


  1. Texas Prison Guard Ledger 1: 95, entry for Jasper C. Robertson (1893-1900); “Texas, Prison Employee Ledgers, 1861-1938,” Ancestry.com (http://www.ancestry.com : accessed 6 Mar 2015), citing Texas Department of Criminal Justice, Records 1849-2010, Texas State Library and Archives Commission, Austin, Texas.
  2. 1900 U.S. census, Colorado County, Texas, Justice Precinct 8 (Eagle Lake), population schedule, enumeration district (ED) 26, p. 224(A) (stamped), dwelling 81, family 83, Jasper C. “Robinson;” digital image, Ancestry.com (http://www.ancestry.com : accessed 24 May 2013); citing National Archive microfilm publication T623, roll 1622.
  3. William S. Osborn, “A History of the Cane Belt Branch of the Gulf, Colorado & Santa Fe Railway Company,” Southwestern Historical Quarterly 101 (Jan 1998): 303.
  4. Eagle Lake Historical Commission, A History of Eagle Lake Texas (Austin : Nortex Press 1987), 116.
Posted in Methodology, My family | 18 Comments

One-stop shopping for Texas statutes

The Legal Genealogist‘s Texas-born-and-bred grandmother would have taken one look at yesterday’s snowfall and shaken her head at the idea that her grandchild had to get up at oh-dark-thirty and catch a plane to the Lone Star State today.

Anonymous-Flag-of-the-state-of-TexasIt’s cold, it’s dark, there’s a whole bunch of snow between me and the street where, with some luck, a cab will be waiting to take me away from all this.

I hope, if Mother Nature doesn’t pull another fast one, to be heading out to the Houston Genealogical Forum and an all-day session tomorrow.

We’ve got some methodology on tap, and some DNA, and — surprise, surprise! — a whole bunch of genealogy and the law.

And oh brother does Texas ever have law.

Lots of law.

Or laws.


It’s got pre-republic laws of old Mexico. It’s got laws from the Republic of Texas. It’s got early statehood laws and late statehood laws.

It’d be enough to send even this law geek running for the exits.



Except for a man named Karl Hans Peter Mareus Neilsen Gammel.

Born in Denmark in 1854, he came to America in 1874, finally settling in Texas around 1877. He and a brother sold trinkets on the streets of Austin, and later Hans bought books for a nickel and sold them for a dime.1

And then came that serendipitous moment. It’s described in the Handbook of Texas Online this way:

He was still a newcomer to Texas when, in 1881, the old Capitol in Austin burned. From the debris scattered on the Capitol grounds, young Gammel gathered wet papers and charred documents, loaded them in a wagon, and took them to his home. He and his wife gradually dried the pages on clotheslines and stored them with their belongings. Years later he sorted and edited the crinkled papers, then published them beginning in 1898 as the famous first ten volumes of Gammel’s Laws of Texas, 1822–1897. This work won immediate acclaim, and with the addition of other volumes in later years the set came to be a basic item in law libraries across the state.2

And all of those volumes of Gammel’s Laws of Texas are readily available online.

The University of North Texas Libraries have this amazing website called The Portal to Texas History — and Gammel’s laws are all digitized there.

Volumes 1-10 cover the years 1822 to 1897;3 those were the volumes published in 1898 with the documents salvaged from the Capitol fire. Volume 11 picks up with the laws of 1897-1902;4 volume 12 has the laws of 1903-1905;5 volume 13 the laws of 19076 and so forth.

All digitized.

All word-searchable.

All free.


It doesn’t get much better than that.

Off to Houston, Gammel in hand!

Well, on an iPad at any rate…


Image: Open Clip Art, user anonymous.

  1. Dorothy Gammel Bohlender, “Gammel, Karl Hans Peter Marius Neilsen (1854–1931),” Handbook of Texas Online, Texas State Historical Association (http://www.tshaonline.org/handbook/online : accessed 5 Mar 2015).
  2. Ibid.
  3. H.P.N. Gammel’s The Laws of Texas, 1822-1897, 10 vols. (Austin : Gammell Book Co., 1898), 4:716; digital images, University of North Texas Libraries, The Portal to Texas History (http://texashistory.unt.edu : accessed 5 Mar 2015).
  4. H.P. N. Gammel, The Laws of Texas: Supplement Volume to the Original Ten Volumes, 1822-1897 (Austin : Gammell Book Co., 1902); digital images, University of North Texas Libraries, The Portal to Texas History (http://texashistory.unt.edu : accessed 5 Mar 2015).
  5. H.P. N. Gammel, General Laws of the State of Texas … 1903-1905 (Austin : Gammell Book Co., 1906); digital images, University of North Texas Libraries, The Portal to Texas History (http://texashistory.unt.edu : accessed 5 Mar 2015).
  6. H.P. N. Gammel, General Laws of the State of Texas … 1907 (Austin : Gammell Book Co., 1907); digital images, University of North Texas Libraries, The Portal to Texas History (http://texashistory.unt.edu : accessed 5 Mar 2015).
Posted in Primary Law, Resources, Statutes | 4 Comments

Jade: “Every event has its context”

So a comment came in to the blog this morning that’s simply too good to just sit in the comments section, where oftentimes folks who’ve already read a blog post won’t see it.

rihard-Clock-Calendar-2smReader Jade was looking at this week’s posts on guardianships.

You may recall the post Monday about the man who was named as guardian for his sister’s children even though his sister was still alive 1 and the post Tuesday about the cases where the mother, or another female relative, might have been named guardian even though the usual legal default was to name a male rather than a female.2

When Jade read them, she realized that there was one key point that was missing in the discussion so far.

So, she noted:

One possibly-neglected feature of a guardianship record is timing. The appointment is a hint that something happened: most likely that a propertied male parent died. But it could be a signal that something was about to happen, such as heirs to an intestate estate could be about to sell land and minor heirs needed to have an adult representative in the transaction. I have also seen a case where a guardian was appointed in order for there to be an accountable party to receive a minor’s portion of his paternal grandfather’s estate distribution.

Every event has its context, which needs to be closely questioned as to possible chain of events.3

Absolutely right.

In general, courts didn’t just step in and name a guardian, any more than it would step in and force a family to probate an estate if nobody ever brought it to the court’s attention. In general, there had to be a specific reason why somebody went to the court and asked it to get involved. There are a whole host of possible triggering events that could have led to the appointment of a guardian long after the event we would usually think of: the death of that propertied parent.

• The mother — or stepmother — may have remarried and her new husband wanted to have her dower land (a life estate of the widow in some portion, usually a third, of her late husband’s lands4) set aside for her use.

• An older sibling may have come of age and petitioned the court to partition the estate so he, or she, could have the benefit of his or her share rather than leaving it in the joint control of all of the heirs.

• Some financial issue in the family may have led the heirs to conclude that they needed to sell some or all of the land or other property, and a guardian would be needed to sign off on behalf of the minors.

• A governmental benefit, like a military pension or entitlement to bounty land, may not have been available until long after a parent’s death, but a minor child’s share of that after-the-fact benefit might still require a guardian.

• And, very commonly, the death that served as the triggering event wasn’t a parent’s death at all. Children were often named as heirs in the wills of grandparents, aunts and uncles, even siblings.

And it’s that same issue of timing that may explain why a guardian wasn’t appointed in a given case. In a 2012 blog post, for example, we reviewed reader Margie Beldin’s McHugh family and a probate in Berkshire County, Massachusetts, where there were no guardianship records. That seemed to be puzzling until the timing was considered: by the time the widow needed the help of the probate court, the children were all of age.5

So timing — what specific event triggered the need for a court to get involved at all — is a critical element.

And I couldn’t agree more with Jade’s final point in her comment: “Every event has its context.”

Whether it’s the context of the law — what the law was at that time and place — or the context of local customs, or even the context of a particular family and its ways, context matters.

That’s why context is given such emphasis in Genealogy Standards, the best practices of our field as adopted by the Board for Certification of Genealogists.6 The standards include one aimed particularly at research:

12. Broad context. When planning research, genealogists consider historical boundaries and their changes, migration patterns and routes, and sources available for potentially relevant times and places. They also consider economic, ethnic, genetic, governmental, historical, legal, linguistic, military, paleographic, religious, social, and other factors that could affect the research plan and scope.7

They also include one to consider when we write our conclusions:

57. Background information. Assembled research results provide sufficient background information for readers to understand both what an information item says and what it means in the context of each source’s place and time and in the context of the written presentation. Background information may include concepts from economics, ethnic studies, genetics, geography, government, history, law, religion, sociology, and other fields.8

Jade is right on the money here, so let’s repeat it one more time.

“Every event has its context.”


Image Open Clip Art Library user rihard.

  1. Judy G. Russell, “The avuncular guardian,” The Legal Genealogist, posted 2 Mar 2015 (http://www.legalgenealogist.com/blog : accessed 5 Mar 2015).
  2. Ibid., “The exceptions,” The Legal Genealogist, posted 3 Mar 2015.
  3. Jade, Comment to “The exceptions,” The Legal Genealogist, posted 5 Mar 2015.
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  5. Judy G. Russell, “Guardians for the kids,” The Legal Genealogist, posted 1 Mar 2012 (http://www.legalgenealogist.com/blog : accessed 5 Mar 2015).
  6. Board for Certification of Genealogists, Genealogy Standards (Nashville, Tenn. : Ancestry, 2014).
  7. Ibid. at 12.
  8. Ibid. at 34-35.
Posted in General, Methodology | 23 Comments

An original question

Reader Phyllis McLaughlin is a collector of old photographs and is struggling to balance her desire to use the photos she buys with the mandates of copyright law.

And discovering, of course, that the balance is always more complicated than we might think.

negativeFirst, Phyllis is a bit uncertain as to the time period when copyright laws began and when they might impact her collected photos. She’s sure there is some time period when her finds would be free of copyright — but she’s not sure when that might be. Whenever that is, “I have the right to use any before that period any way I want to, right?” she asks.

Second, she notes that she’s recently started collecting glass negatives which, she thinks, may have predated copyright laws. And, she asks, “If I own the negatives, then I own the originals, right?”

Let’s get that question of when copyright laws began out of the way first. Because there really hasn’t been a time in America when we haven’t had copyright laws.

Remember that most of the colonies were English colonies, and followed English law. That meant that a 1710 English law called the Statute of Anne was the rule here as well as in England.1 It only applied to books, and gave the authors “the sole right and liberty of printing such book and books for the term of one and twenty years.”2

Once we became a nation, the United States had its own copyright laws starting with the Constitution itself, which gave Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”3

The first statute passed under that power was the Copyright Act of 1790. It applied to authors of maps, charts and books and provided for protection for a term of 14 years, with one 14-year extension.4 Historical and other prints were added to the statute’s coverage in 1802,5 and photographs were expressly included as of 1865.6

So we’ve always had copyright laws, photographs have been covered for a century and a half… but when does copyright protection end on those photos? What’s the time period for Phyllis where she can be sure that her use of the photos she’s acquiring doesn’t implicate any copyright concerns?

You already know The Legal Genealogist‘s answer. You’ve seen it dozens of times. It’s my favorite answer.

It depends.

And, unfortunately, American law makes it depend on a whole raft of variables. Was the photograph ever published? Did it carry a copyright notice at a time when one was required? Was it registered at a time when registration was required? Was registration renewed if renewal was required? When did the photographer die?

There’s not enough room in a single blog post to review all the possible variables. Fortunately, we don’t need to. Somebody else has done it for us. Peter B. Hirtle, Senior Policy Advisor to the Cornell University Library, produces an annual chart called Copyright Term and the Public Domain in the United States that goes through all those variables and explains how they impact the copyright status of an item in the United States today.7

It’s updated every year, and it’s even got a downloadable PDF version if you want to keep it on your hard drive for easy access at all times.

And what about the issue of negatives versus prints made from the negatives? Phyllis’ question about whether owning the negatives gave her the rights to make prints from those negatives is a great question. And here we have to remember one key aspect of copyright law:

Owning the thing itself doesn’t mean we own the copyright to the thing.

Owning specific physical items — these negatives in this case — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office explains that:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.8

I can buy a copy of a book — and then give my copy away, donate it to a library, loan it to a friend. But owning my copy of the book doesn’t give me the right to make more copies and sell them to others. Just because these are photographic images doesn’t change the analysis. The Copyright Office specifically notes on its website that:

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.9

There’s no question here that Phyllis legally owns the individual copies of the photographs and the photographic negatives that she’s acquired. She can frame them, hang them on her walls, whatever she’d like for her personal use.

And — subject to my usual caveat that I’m commenting generally on the law here and not giving legal advice, and you may want to consult your own attorney, yadda yadda yadda, I personally wouldn’t hesitate to make a positive print from those photographic negatives strictly for my own personal use. I consider that the functional equivalent of making an MP3 from an audio CD I already own.10

Where it gets dicey is when it comes to making more copies, particularly for distribution or republication. Who owns the rights to reprint from negatives can be a major issue,11 as can the question of when copyright expires for such items.

Well, you already know the answer to that, right?

We’re back to it depends.

And back to that lovely chart and all of its variables.


  1. An act for the encouragement of learning,” 8 Anne, c. 19 (1710); html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu : accessed 4 Mar 2015).
  2. Ibid., §II.
  3. Article I, §8, clause 8, U.S. Constitution.
  4. “An Act for the encouragement of learning, by securing the copies
    of maps, charts, and books, to the authors and proprietors of such copies, during
    the times therein mentioned,” 1 Stat. 124 (21 May 1790).
  5. “An Act supplementary to an act, intituled ‘An Act for the encouragement of learning,…,’” 2 Stat. 171 (29 April 1802).
  6. “An Act supplemental to an Act entitled ‘An Act to amend the several Acts respecting Copyright…,’” 13 Stat. 540 (3 March 1865).
  7. Peter B. Hirtle, Copyright Term and the Public Domain in the United States, Cornell Copyright Information Center (https://copyright.cornell.edu/ : accessed 3 Mar 2015).
  8. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 3 Mar 2015).
  9. U.S. Copyright Office, “FAQs: Can I Use Someone Else’s Work? Can Someone Else Use Mine?” (http://www.copyright.gov : accessed 3 Mar 2015).
  10. The law isn’t 100% clear on whether this format-shifting is a fair use, but the federal court in RIAA v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999), said it wasn’t a copyright violation, and that’s good enough for me in my own decision-making.
  11. This is the issue that’s being litigated right now in the case of the work of 20th century photographer Vivian Maier. See Randy Kennedy, “The Heir’s Not Apparent: A Legal Battle Over Vivian Maier’s Work,” New York Times, posted 5 Sep 2014 (http://www.nytimes.com/ : accessed 3 Mar 2015).
Posted in Copyright | 18 Comments