Walking in the footsteps

It was almost exactly two years ago today that serendipity struck.

StMarysA reader, Jim Poole, had written in to comment about a blog post, noting that he wished search engines paid more attention to famiy websites, and he used the example of his own website, http://www.pettypool.com.

I certainly agreed with Jim, and was about to give him a couple of other examples that I thought proved his case. And then it hit me.

Wait a minute. Pettypool? PETTYPOOL?

C’mon now. That’s not exactly the world’s most common surname. And it’s one of my ancestral surnames. Pettypool! And a website — http://www.pettypool.com! Could it be…?

Sure enough, James Furman Poole of South Carolina turned out to be a sixth cousin twice removed. We both descend from William Pettypool, also spelled Pettipool, Pettipoole, Petty Pool, you name it. Definitely a cool coincidence, and I blogged about it then.1

Now fast forward to this year.

Another reader, John Gadd of Colorado, wrote to ask if I’d be willing to take a look at a document he had about a land transaction his ancestor Thomas Gadd had been involved with. I agreed, John sent a copy of the document, and I carefully worked my way through it for him.

Thomas Gadd had been an indentured servant, he was at the end of his indenture, and was entitled to receive 50 acres of land in the Province of Maryland where he’d served. But he and another former indentured servant were, instead, assigning their rights to a third person, presumably in return for a cash payment. A really neat document dated all the way back in 1668.

And then it hit me.

The person Thomas Gadd and the other servant were assigning their rights to?

“William Pettipoole.”

Yep.

My William Pettypool.

How’s that for serendipity?

And where am I today?

In St. Mary’s County, Maryland.

It’s a lovely county in southern Maryland, along the Chesapeake Bay and tucked between the Patuxent River on the east and the Potomac River on the west.

It’s an historic county — site of the first landing in Maryland in 1634, site of the first capital of Maryland from 1634 to 1694.2

And it’s the exact same county where, 346 years ago, Thomas Gadd sold his land rights to William Pettypool.

My William Pettypool.

My ninth great grandfather.

In whose footsteps I am walking today.

In the very county where he lived.

Three hundred and forty six years ago.

How’s that for serendipity?


SOURCES

  1. Judy G. Russell, “Serendipity Saturday,” The Legal Genealogist, posted 11 Aug 2012 (http://www.legalgenealogist.com/blog : accessed 8 Aug 2014).
  2. St. Mary’s County, Maryland, Historical Chronology,” Maryland Manual On-Line (http://msa.maryland.gov/msa/mdmanual/ : accessed 8 Aug 2014).
Posted in My family | 8 Comments

Not a hundred acre wood!

She appears only a few times in the records of southern Maryland, in the middle of the 18th century.

100An estate file lists Isabella Wilson Buchanan as administrator of the estate of James and Mary Gaines, filing the inventory of their estate on 5 September 5 1751 in Prince Georges County.1

A year later she was the administrator of the estate of her husband James, filing the final accounting of his estate on 16 August 1752.2

And in 1758, she appeared on a tax list of the Lower Hundred of William & Mary Parish, Charles County, Maryland.3

The lower what?

A Hundred?

What’s that?

The term itself is an old English term — of Saxon origin, actually. Black’s Law Dictionary explains:

Under the Saxon organization of England, each county or shire comprised an indefinite number of hundreds, each hundred containing ten tithings, or groups of ten families of freeholders or frankpledges. The hundred was governed by a high constable, and had its own court; but its most remarkable feature was the corporate responsibility of the whole for the crimes or defaults of the individual members.4

The term was imported into Maryland in early days:

“In Maryland the people settled in plantations scattered along the banks of the streams emptying into the Chesapeake Bay. They had no towns for this reason, but they had an area of local government smaller than the county [and district] during provincial times. This division was known as the Hundred, because in old English times that division was supposed to furnish that number of warriors to the army. John Fiske in his Civil Government in the United States says: ‘In Maryland the hundred flourished and became the political unit like the township in New England. The hundred was the militia district and the district for the assessment of taxes. . . . The officers of the Maryland hundred were the high constable, the commander of the militia, the tobacco viewers, the overseer of roads, and the assessor of taxes. The last mentioned officer was elected by the people, the others were all appointed by the Governor.’ The hundred was not prized by the people of Maryland, and was abolished in 1824. It was swallowed up in the county, and no small area of government has been established in the State since that time, except the municipalities.”

“Of the courts below the provincial court there were, at one time and another, the manorial courts, the hundred court, and the court of the single justice of the peace for the recovery of small debts.

Previous to 1650 it does not appear that there was any erection of counties in an express and formal way; yet, in reality, the western shore was treated as one county, called St. Mary’s and the eastern shore was treated as another called Kent. The more important settlements on the western shore were erected into hundreds as constituent parts of St. Mary’s County, while those on the eastern shore were erected into hundreds as constituent parts of Kent County. Whenever a hundred was erected, its head officer was constituted a justice of the peace. Under him was a constable. He was appointed either by the justice or by the governor, and was intrusted with the duties of constable and coroner. As justice of the peace, the head officer of the hundred was given such powers as belonged to one or even to two justices of the peace in England.5

Maryland wasn’t the only place where the Hundred was used: it was also the political unit in colonial Delaware and it’s still in use there as “a geographic division, smaller than counties and roughly equivalent to the division ‘townships’ in Pennsylvania and New Jersey.”6

The things you learn when traveling around — and if you’re in one of those Maryland Hundreds, come join me tomorrow (Saturday August 9) for “A Day of Genealogy” sponsored by the St. Mary’s County Genealogical Society. You might learn about hundreds… or taxes… or DNA… or…


SOURCES

  1. Probate file, Estates of James and Mary Gaines, Prince Georges County, Md., 1751; Maryland Prerogative Court, Accounts Liber 31, folio 76.
  2. Probate file, Estate of James Buchanan, Charles County, Md., 1752; Maryland Prerogative Court, Accounts Liber 33, folio 141.
  3. John B. Lomax, “1758 Charles County Tax Lists By District in Record order,” transcribed from “A List of Taxables Taken by John Smoot in the Lower Hundred of WM. & Mary Parish June 20th 1758”; from microfilms SR 4543-8, -9, -10, -11, -12 and -13, Maryland State Archives; Charles County, Md., USGenWeb (http://www.mdgenweb.org/charles/ : accessed 7 Aug 2014).
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 583, “hundred.”
  5. Gaius Marcus Brumbaugh, Maryland Records, Colonial, Revolutionary, County and Church, From Original Sources (Baltimore, Md. : Williams & Wilkins, 1915), 1: 94; digital images, Google Books (http://books.google.com : accessed 7 Aug 2014).
  6. University of Delaware Library, Research Guides, “Delaware History: Hundreds in Delaware” (http://guides.lib.udel.edu/c.php?g=85321&p=548060 : accessed 7 Aug 2014).
Posted in Legal definitions | 9 Comments

Of animals and birthdays

Two copyright issues have been swirling online in recent days which — despite the fact that neither of them particularly impacts genealogists — is kind of neat and kind of cool.

It’s neat because the issues themselves are rather intriguing. One is whether a photograph can be copyrighted if the photographer was an animal. And the second is the ownership of the copyright on the song “Happy Birthday to You.”

macaqueSince both of these have been particularly called to The Legal Genealogist‘s attention,1 and since The Legal Genealogist is hardly shy about chiming in on copyright issues… here goes.

The animal issue arises from a dispute between British nature photographer David Slater and Wikimedia Commons over photographs of the female Celebes crested macaque you see here illustrating this post.

Slater says the photo is copyright-protected and he owns the copyright. Wikimedia Commons takes the position that nobody owns the copyright.2

Since this is obviously a great photo, and it was taken in 2011, when copyright protection began automatically the minute the picture was taken, how can it possibly not be copyrighted?

Because it was the macaque — the monkey — that took the photo.

Slater had traveled to Indonesia, set up his equipment to take pictures automatically, and then watched as one of the macaques actually hit the button to take a picture. Intrigued by the sound, the macaque continued to press the button and took hundreds of pictures.3

Macaque selfies.

Slater contends that the images wouldn’t exist if he hadn’t set up the equipment, and that he did all the post-processing of the images to make them useable, so he’s entitled to copyright protection.4

Wikimedia Commons takes the position that any image created by an animal is in the public domain.5

So who’s right?

The courts ultimately will decide, but it sure looks like the U.S. Copyright Office would side with Wikimedia Commons. In its latest Compendium II of Copyright Office Practices, the Copyright Office flatly stated:

In order for a work to be the subject matter of copyright under the current law, it must be an original work of authorship. Quality, aesthetic merit, ingenuity, and uniqueness are not considered in determining the copyrightability of a work. …

The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.6

The Compendium is undergoing an update right now,7 so it’s anybody’s guess whether this section will be among those revised. But for now? “Materials produced … by animals are not copyrightable.”

The birthday issue keeps coming up because of a claim that the simple little song “Happy Birthday to You” is copyrighted — meaning the copyright owner can (and does) charge a fee every time it is performed in public.8

For years, the firm Warner/Chappell has claimed that it acquired the rights to this song through lyrics that appeared in a songbook in 1924 and a piano arrangement that was published in 1935. When a movie company wanted to use it in a documentary about the song, the company said the license fee would be $1,500. Instead, the movie company sued.9

It brought a class action suit against Warner/Chappell that not only seeks to invalidate the copyright but also asks that the company be made to give back the millions of dollars in licensing fees it’s collected over the years. As of this morning, checking the federal court docket in the Central District of California, the case was continuing to make its ponderous way through the litigation process with the usual fights over who has to turn over what documents to whom.10

It sure looks to me like the song ought to be out of copyright by now. The evidence submitted for the company that’s suing argues that the tune was first published as “Good Morning to All” in 1893, and that the “happy birthday” lyrics were published as being sung to that tune as early as 1911. If that evidence holds up in court, then any copyright claim should be over: anything published in the United States before 1923 is out of copyright now.

For now, however, the song is still under copyright and The Legal Genealogist isn’t going to sing it in a public recording for fear of getting hit with a bill for licensing fees.

So… no to the animals and yes to the birthday song.

Definitely neat. And definitely cool.

It’s cool because the fact that both of these were circulating among genealogists for comment shows our community is interested in copyright — concerned about its impacts — curious to know what the law is.

And that, in the long run, can only benefit us by helping to keep us out of trouble.


SOURCES

  1. For the monkey photo, see Thomas MacEntee, status update, 6 August 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014), and Patrice Green, status update, 7 August 2014, Google+ (https://plus.google.com/ : accessed 7 Aug 2014). For the birthday song, see Michael Leclerc, status update, 27 July 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014), and Ann Royal, status update, 27 July 2014, Facebook (http://www.facebook.com : accessed 7 Aug 2014).
  2. See generally Ashley Feinberg, “Wikimedia Won’t Take Down This Photo Because a Monkey Took It,” Gizmodo, posted 6 Aug 2014 (http://gizmodo.com/ : accessed 7 Aug 2014).
  3. Ibid.
  4. Ibid.
  5. See generally “Monkey Selfie,” Requests for Content Alteration & Takedown, Wikimedia Foundation Transparency Report (http://transparency.wikimedia.org/content.html : accessed 7 Aug 2014).
  6. U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(b); html version, reproduced from an OCR scan of the compendium (http://www.copyrightcompendium.com : accessed 7 Aug 2014).
  7. U.S. Copyright Office, Compendium II of Copyright Office Practices (http://www.copyright.gov/compendium/ : accessed 7 Aug 2014).
  8. See Mike Masnick, “Lawsuit Filed To Prove Happy Birthday Is In The Public Domain; Demands Warner Pay Back Millions Of License Fees,” TechDirt, posted 13 June 2013 (https://www.techdirt.com/ : accessed 7 Aug 2014).
  9. See Eriq Gardner, “‘Happy Birthday’ for All: Filmmaker Aims to Free Song From Copyright Grip,Hollywood, Esq., posted 13 June 2013 (http://www.hollywoodreporter.com/ : accessed 7 Aug 2014).
  10. Marya v. Warner Chappell Music Inc., No. 2:13-cv-04460-GHK-MRW, U.S. District Court for the Central District of California, CMECF docket, PACER (http://www.pacer.gov/ : accessed 7 Aug 2014).
Posted in Copyright | 27 Comments

A walk through early law

Yeah, yeah, yeah, yeah.

The Legal Genealogist knows already yet.

ThorpeYou’re tired of hearing it.

Sounds like a broken record.

To understand the records, we must understand the law, in the time and at the place where the records were created.

But finding the law is hard, you say — and nowhere near as much fun as finding, say, that probate file or the deed that finally gives us that woman’s maiden name or…

I know. Trust me, I know.

So here’s a little bit of help, with a kind of law we as genealogists often need to look at — but rarely do.

It’s constitutional law — all those early colonial charters and state constitutions that have long since faded into legal history but that inform and explain the records we as family historians work with and need to understand.

And there are readily-available resources to help you find that early constitutional law so you can apply it to your own research.

In the second session of the 59th Congress, the House of Representatives published a report as Document 357, or H.Doc. 357 for short. It was printed in the early 1900s in that great big set of government documents known as the United States Serial Set.

Its title? The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America.1

Compiled and edited by Francis Newton Thorpe, Ph.D., LL.D., H.Doc. 357 takes up seven full volumes in the Serial Set:

Volume 1 (United States — Alabama — District of Columbia): Serial Set Vol. No. 5190
Volume 2 (Florida — Kansas): Serial Set Vol. No. 5191
Volume 3 (Kentucky — Massachusetts): Serial Set Vol. No. 5192
Volume 4 (Michigan — New Hampshire): Serial Set Vol. No. 5193
Volume 5 (New Jersey — Philippine Islands): Serial Set Vol. No. 5194-1
Volume 6 (Porto Rico — Vermont): Serial Set Vol. No. 5194-2
Volume 7 (Virginia — Wyoming — Index): Serial Set Vol. No. 5194-3

And these seven volumes pull together in one handy reference just about everything you might need to know about the early fundamental documents of American law.

Taking Massachusetts as one example, Volume 3 of Thorpe’s work includes:

• the Charter of New England–1620;
• the Agreement between the Settlers at New Plymouth–1620;
• the Charter of the Colony of New Plymouth Granted to William Bradford and his Associates–1629;
• the Charter of Massachusetts Bay–1629;
• the Act of Surrender of the Great Charter of New England to His Majesty–1635;
• Bradford’s Surrender of the Patent of Plymouth Colony to the Freemen, March 2d, 1640;
• the Commission of Sir Edmund Andros for the Dominion of New England, April 7, 1688;
• the Charter of Massachusetts Bay–1691;
• the Explanatory Charter of Massachusetts Bay–1725;
• the Constitution or Form of Government for the Commonwealth of Massachusetts–1780.2

Terrific!

Except, of course, for the minor little detail that most of us don’t have all of the thousands and thousands of volumes of the U.S. Serial Set on our bookshelves.

But we can all have these seven volumes at our fingertips.

Because they’ve been digitized.

At Google Books (http://books.google.com/, you can find the volumes quickly by entering Francis Newton Thorpe Federal and State Constitutions in the search box. But the first results are current printed volumes you can’t read online, so use the Search Tools drop down menu, then change the Any Books option to Free Google eBooks.

At Internet Archive (https://archive.org/), the volumes can be found by using the Advanced Search box, and entering “Federal and State Constitutions” in the Title field and “Francis Newton Thorpe” in the Creator field.

And at HathiTrust (http://www.hathitrust.org/), click on the Catalog tab of the search box, then choose Advanced catalog search, enter “Francis Newton Thorpe” in the Author field and “Federal and State Constitutions” in the Title field.

So go ahead… take a walk through your state’s early constitutional law.

It’s easy, when you know where the path is.


SOURCES

  1. Francis Newton Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, 59th Cong., 2d sess., House Document 357, 7 vols. (Washington, D.C. : Government Printing Office, 1906-1909).
  2. Thorpe, The Federal and State Constitutions…, 3: 1827-1923.
Posted in Constitutions, Primary Law, Resources | 8 Comments

An act of grace

It was the summer of 1776, and all was not well in the heated politics of Pennsylvania.

gracePennsylvania’s voting restrictions had kept the reins of the local government in the hands of a conservative few, and while they had sent a delegation to the Continental Congress, the delegation was under instructions not to vote for independence. An election in May of 1776 simply maintained the status quo.1

Between the Continental Congress, sitting in Philadelphia, and a rise of local committees in support of independence, sentiment grew to the point where a constitutional convention was called in Pennsylvania itself, with the new convention representatives determined to chart a new path. Work began in June 1776 under the direction of Benjamin Franklin.2

The end result — the Pennsylvania Constitution of 1776 — has been described as “the most democratic in America … the heart of a popular revolt against the existing government.”3

But that’s not all the delegates did that summer.

They also passed ordinances — laws — between June and September 1776, and the very first ordinance printed in the volume of the Statutes of Large of Pennsylvania from that Convention is a remarkable piece of pragmatic work. It read, in part:

Whereas at this time the courts of justice within this state are surceased, and all process and proceedings by which suits can be legally commenced, proceeded in or determined are by the authority of the people justly and totally suppressed:

And whereas the detaining in custody debtors under execution who are willing to deliver up their estates for the use of their creditors, or debtors confined under mesne process who have no legal mode of entering bail in order to free their persons from imprisonment is not oniy oppressive but can be of no real benefit or advantage to the creditors:

And whereas a total change of government by the assistance of Divine Providence has been effected within the United States, and acts of grace to criminals sometimes are granted on events of such importance:

Be it ordained and declared by the Representatives of the Freemen of the State of Pennsylvania in General Convention met, That all and every person and persons imprisoned or detained in any gaol within this state by reason of any process, writ or commitment for debt or any criminal offense whatsoever (except for capital offenses or practices against the present virtuous measures of the American States or prisoners of war) be forthwith released and discharged.4

So… what exactly did they do here?

First, they freed everybody sitting in jail for criminal offenses against the British royal authoritities. Everybody in the hoosegow for minor offenses. All those strong young men who’d been the toughs of the streets.5

Second, they made it easy for everybody sitting in jail on what was called mesne process to get out of jail quickly and with a minimum of paperwork. Mesne process was an old writ that held someone in jail to answer a civil action for debt. No final judgment had been reached in the case yet; it was to hold the person “between the commencement of the action and the suing out of execution.”6

• And third, they set up a system for those who were in what amounted to debtor’s prison to quickly hand over what property they did have for the benefit of their creditors and then be released from those debts forever.

In the process of this “act of grace,” the jails and jailers were freed of the obligation to handle prisoners the courts were no longer capable of dealing with; court dockets were swept clean of minor criminal matters; and — perhaps most importantly — large numbers of men of militia age were not only freed to take up arms on behalf of the patriot cause but given reason to be loyal to the cause of those whose actions had freed them.

An act of grace, providing a graceful exit from the jails of Pennsylvania.


SOURCES

  1. Pennsylvania Constitution September 28, 1776,” Pennsylvania Historical & Museum Commission (http://www.portal.state.pa.us/portal/server.pt/community/phmc_home/1426 : accessed 4 Aug 2014).
  2. Ibid.
  3. Ibid.
  4. Act of 1 August 1776, 9 Pa. St. L. 5, Ch. 727, in The Statutes at Large of Pennsylvania from 1682 to 1801, 18 vols. (Harrisburg, Pa.: State Printer, 1903); digital images, Pennsylvania Legislative Reference Bureau (http://www.palrb.us/default.php : accessed 4 Aug 2014).
  5. They did, of course, keep the serious offenders, the prisoners of war and those opposing the new government in jail.
  6. See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 770, “mesne process.”
Posted in Legal definitions, Statutes | Leave a comment

Looking back, looking forward

Nobody will ever accuse The Legal Genealogist of being saintly, but boy is this a time of sainted locations!

CourthsLooking back on this past weekend, I owe a great big shout out to the St. Clair County Genealogical Society (SCCGS) in Belleville, Illinois, for hosting me as one of their speakers in their Out of the Ordinary – Out of the Box conference on Saturday, August 2.

The conference was absolutely electric: dozens and dozens of genealogists at all levels, asking great questions after every one of the presentations. It was such fun, and I’m most grateful to have been included along with Illinois expert genealogist Diane Walsh CG and Missouri archivist Dennis Northcutt in this top-notch session.

Anyone with ancestors from Illinois should take a look at SCCGS and its resources. St. Clair County dates back to 1790. It was the first county in Illinois, carved out of what was then still the Northwest Territory. The society has a wide variety of research help available, an active and dynamic membership, a super logo (you see it here to the left — the St. Clair County Courthouse, dating back to 1861), and an up-to-date website with lots of resources. Membership is only $25 a year — a steal at that price, given the members-only benefits.

And on a very personal level, I owe a great big “thank you” to SCCGS member Nancy Guenther and her husband Greg, who ended up meeting my very-delayed flight well after midnight. It sure was nice to see their smiling faces when that plane finally landed.

Looking forward to this coming weekend, I am headed south to the St. Mary’s County Genealogical Society in Maryland for A Day of Genealogy on August 9th at the Southern Maryland Higher Education Center in California. (The town, not the state!)

Registration opens at 8 a.m., the program starts at 9 a.m. and we’re going to look at everything from DNA testing to tax lists to chasing the family black sheep through the records. It’s only $25 for members and $35 for non-members — and there will be cookies. How much better does it get?

You can get information about this one-day conference at the website of the St. Mary’s County Genealogical Society, and can register online.

And while you’re there on the website, read up about this society too — another active, dynamic group with great member benefits.

Hope you can join me on Saturday!

Posted in General | 4 Comments

DNA and the GPS

Alphabet soup

It’s a question that leaves The Legal Genealogist utterly baffled.

Yet we hear it all the time.

DNA.standardsFrom individuals looking at what they see as brick walls in their own genealogy.

From researchers looking at family history mysteries.

Even from students excitedly leaving the first-ever week-long institute-level courses in DNA.

“Can it be,” the question goes, that “DNA is part of the Genealogical Proof Standard’s first element: the requirement of a reasonably exhaustive search?”

Everybody agrees — or at least seems to agree — that DNA is mainstream now. That it’s a cool tool for resolving issues of proof and relationship that can’t be solved in any other way.

It’s so very much a part of our genealogical thinking now that an entire room full of genealogists watching the Cynthia Nixon episode of Who Do You Think You Are? in the common room of the Genealogical Research Institute of Pittsburgh 10 days ago all spoke up when Nixon wondered who the father of the baby born in prison might have been: “Do some DNA testing!”1

But they just aren’t quite sure — aren’t quite ready to say — that it should be part of a research plan to conduct a reasonably exhaustive search. That it’s part of the GPS.

Um… why wouldn’t it be?

Let’s start by making sure we all understand just what the GPS — the Genealogical Proof Standard — genealogy’s best practices that we all aspire to follow — means by a reasonably exhaustive search.

That GPS element calls for a reasonable effort to identify and examine “a wide range of high quality sources” in order to minimize “the probability that undiscovered evidence will overturn a too-hasty conclusion.”2

We want our research to be thorough, and that means we try to “gather all reliable information potentially relevant to the research question, including evidence items conflicting or consistent with other evidence items. Thorough research, therefore, aims to consult all potentially relevant sources. It emphasizes original records containing primary information, which may be used as direct, indirect, or negative evidence.”3

But there’s a reason why the standard is called a reasonably exhaustive search, not just an exhaustive search. The simple fact is that there is “a nearly infinite number of genealogical sources” and looking at them all is, to put it mildly, “impractical. … Convenience, expertise, financing, location, or practical concerns may limit (a research) plan’s scope.”4

So… is DNA testing the kind of “high quality source” that could keep us from making a “too-hasty conclusion”? You betcha. And that’s why we need to consider it, each and every time we are putting together a research plan to try to solve a genealogical question.

But it doesn’t mean we can use it in every single case.

First and foremost, there are some occasions when DNA just isn’t going to give us the answer we need.

Say I want to know for sure if I descend from the William Pettypool who lived in St. Mary’s County, Maryland, in the late 1600s. I can’t get the answer from YDNA testing because that sort of DNA only passes down the male line.5 Not only am I a female but I descend from a Pettypool female many generations ago, so I can’t even ask brothers or close cousins to test.

I can’t get the answer from mitochondrial DNA because that gives me my mother’s mother’s mother’s info6… so even if I had a direct unbroken female Pettypool line, it will never connect me directly to William himself.

And autosomal DNA generally can’t give you a reliable answer to a relationship question back more than five or six generations7 — and William would be my 9th great grandfather. That’s way too far back to be answered reliably with autosomal DNA.

The GPS with its reasonably exhaustive search element doesn’t require me to do something that isn’t likely to produce a reliable answer.

Second, even if I could positively identify a male cousin somewhere in my Pettypool line and a male descendant of William who might be able to answer the question with YDNA testing, one or both of those men might not be willing to test. We’ve all encountered cases where the one person we really really need to agree to DNA testing to get a question answered is the one person who is convinced that DNA testing is a communist plot.

The GPS with its reasonably exhaustive search element doesn’t require me to violate the law or ethics and steal DNA samples a cousin or test candidate isn’t willing to give.

And, of course, even if everybody involved is perfectly willing to do all kinds of DNA testing, the results often won’t give us a definitive answer anyway. Even if my documented male Pettypool cousin matched a documented descendant of William, it wouldn’t tell me that I descend from William: my line could be from a brother or cousin or uncle of William. DNA only works with the paper trail research, not instead of it.

The bottom line here is straightforward: DNA is exactly like every other kind of evidence we use in genealogical research.

Every time we consider a research question, we think about what we might look at to answer it. If I want to nail my ancestor’s feet to the floor in a particular place and time, I’d look at deeds and probate records and tax records and court records. The kinds of things that will document his or her presence when and where I think he or she was — or should have been.

But for that kind of research question, DNA testing probably isn’t going to be in my research plan. It’s not the kind of high quality source that’s likely to give me the answer I need for that particular issue.

On the other hand, if I want to know if two Smith lines in Rowan County, North Carolina, are related, then of course I’d consider DNA testing, and try to find male candidates from both lines who were willing to test.

In other words, if DNA testing is available and it’s going to contribute to a reliable answer to our research question, then why wouldn’t we do it as part of our reasonable exhaustive search?

And if it isn’t available or it won’t help answer the question, then … sigh … we’re back to plowing through all the other types of evidence we might find that will.


SOURCES

  1. It really was odd that they didn’t use it in that episode, wasn’t it? Can’t help but wonder if the baby Sarah left no descendants, or the descendants weren’t willing to test, or…?
  2. Board for Certification of Genealogists, “The Genealogical Proof Standard” (http://www.bcgcertification.org/resources/standard.html : accessed 2 August 2014)
  3. Board for Certification of Genealogists, Genealogy Standards, 50th Anniversary ed. (Nashville, Tenn. : Ancestry, 2014), 14, Standard 17.
  4. Thomas W. Jones, “When Enough is Enough: How Much Searching is ‘Reasonably Exhaustive?’” Association of Professional Genealogists Quarterly 25 (March 2010): 25-33.
  5. ISOGG Wiki (http://www.isogg.org/wiki), “Y chromosome DNA tests,” rev. 5 March 2014.
  6. ISOGG Wiki (http://www.isogg.org/wiki), “Mitochondrial DNA tests,” rev. 9 July 2014.
  7. See generally Judy G. Russell, “Autosomal DNA testing,” National Genealogical Society Magazine, October-December 2011, 38-43.
Posted in DNA | 25 Comments

Federal rulemaking

So yesterday The Legal Genealogist mentioned some of the major resources for federal legal research that genealogists might need to know.

ecfrLittle minor details, y’know, like the Constitution and the statutes.1

And, almost immediately, reader Dick Belz lamented that some sources weren;t mentioned.

“Only one tiny problem,” he wrote; “all those pesky things in the Code of Federal Regulations (have you checked the IRS regs lately?), to say nothing of the incipient stuff constantly showing up in the Federal Register.”

What Dick is talking about is federal rulemaking.

Think of it this way:

• When the legislature does something, it’s a statute.

• When an administrative agency does it, it’s a rule.

Now you might not think that rulemaking is anything that genealogists need to be concerned about.

And you’d be wrong.

In fact, we spent more than an hour in the Civilly Uncommon: Advanced Legal Analysis for Genealogists class at Boston University yesterday talking about just why genealogists might be concerned about what administrative agencies do — and have done.

First off, when administrative agencies make decisions, applying their rules to specific factual situations, they may very well create records that are resources we may want to use in our research.

Think, for example, of the administrative decisions by the Department of the Interior on appealed pension and bounty land claims. These were cases originally decided by the U.S. Pension Office, largely but not entirely out of applications from Civil War soldiers and their families, and then appealed within the administrative system of government.

Before they ever got to the courts — often where there was no way to get the case into the courts — there would be an internal appeal system and the creation of records. You can find some of these collected and published in volumes that have been digitized and put online at, for example, Google Books.2

Secondly, we all know only too well that the administrative decisions of agencies on whether a document can or can’t be disclosed under the Freedom of Information Act (FOIA)3 or the Health Insurance Portability and Accountability Act (HIPAA)4 can immediately impact our research — and not in a good way.

So we need to know what the rules are today, and that’s where the sources Dick is mentioning come into play.

The Code of Federal Regulations (CFR) is the official compiled version of the end result of all that federal agency rulemaking. All the rules the agencies adopt are collected, organized by subject matter and published in a multi-volume set of books.5

The Federal Register (FR) is the official journal of the federal government that, on a daily basis, publishes “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.”6

But most of us don’t have the CFR or the Federal Register in our personal libraries.7

Often, we can’t even access a library that has those resources.

And even if we have access to such a library, we rarely have access at 3 a.m. In our jammies. And bunny slippers.

We need a better easier alternative to know what the rules say today.

Try this: the Electronic Code of Federal Regulations (e-CFR).

As explained by the Government Printing Office,

The Electronic Code of Federal Regulations (e-CFR) is a currently updated version of the Code of Federal Regulations (CFR). It is not an official legal edition of the CFR. The e-CFR is an editorial compilation of CFR material and Federal Register amendments produced by the National Archives and Records Administration’s Office of the Federal Register (OFR) and the Government Printing Office. The OFR updates the material in the e-CFR on a daily basis.8

So the electronic version has some limits. There are things it includes that may never take effect (some proposed rules) and other things that are in effect that it doesn’t include (some short-term rules and some interpretations).

But it’s pretty good overall, and it’s readily searchable (with plain terms and with Boolean search connectors) and browsable.

Playing by the rules has never been easier.


SOURCES

  1. Judy G. Russell, “Reprise: Federal law primer,” The Legal Genealogist, posted 29 July 2014 (http://www.legalgenealogist.com/blog : accessed 29 July 2014).
  2. See e.g. Hall and Bixler, editors, Decisions of the Department of the Interior in Appealed Pension and Retirement Claims, vol. 7 (Washington, D.C. : Government Printing Office, 1896); digital images, Google Books (http://books.google.com : accessed 29 July 2014).
  3. 5 U.S.C. §552.
  4. 110 Stat. 1936 (1996).
  5. See U.S. Government Printing Office, “Code of Federal Regulations (Annual Edition),” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
  6. See U.S. Government Printing Office, “Federal Register,” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
  7. If you do have these, in the print version, you’re richer than Croesus and should adopt me.
  8. U.S. Government Printing Office, “Electronic Code of Federal Regulations,” FDsys (http://www.gpo.gov/fdsys : accessed 29 July 2014).
Posted in Primary Law, Resources | 6 Comments

What the law was and is: federal

(Note: Updated from an earlier version of this post that originally ran in June 2012.)

Statutes at Large

One thing The Legal Genealogist preaches (to the point where some people are tired of it for pete’s sake already yet) is this:

We need to understand the law at the time and in the place where our ancestors lived in order to understand why they did what they did.

Cataloging state legal sources is a daunting task, given the wide variety of charters, constitutions, statutes and more that governed our ancestors’ lives in the territories and states of the United States.

The feds, on the other hand, are a whole lot easier.

We had one set of Articles of Confederation and we’ve had only one Constitution that took the place of those Articles. And we’ve had one set of federal laws.

All of these are really easy to get to online in easily downloadable and/or searchable formats. (That’s my way of saying: no excuses, now!)

The Articles of Confederation

The First Continental Congress wasn’t really a lawmaking body and it didn’t set out to govern as a Congress at all. It was a meeting of representatives of 12 colonies (Georgia stayed home) that basically agreed to do two things: announce the colonists’ grievances to the King and the rest of the world; and meet again if the grievances weren’t redressed.1 And we all know how well King George III redressed those grievances.

So along came the Second Continental Congress which began meeting in Philadelphia in May 1775. Even that body didn’t get around to the question of governing documents until the representatives of the soon-to-be-openly-rebellious colonies met in Philadelphia in the summer of 1776.2

At that point, they knew they had two tasks ahead of them. Yes, they were there to draft a Declaration of Independence. But they also needed rules of the road. So the day after the Second Continental Congress appointed the committee to draft the Declaration, it also appointed a committee to draft some document to bring union to the soon-to-be-states.3 The Continental Congress approved the document in November 1777, and it wasn’t finally approved by the states until March of 1781.4

The Articles of Confederation were an abysmal failure.5 Only six years later, in 1787, Congress called for a “Convention of delegates who shall have been appointed by the several States (to) be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation.”6

But for whatever they’re worth, they’re easy to find, search, read and understand online:

     • The first draft of the Articles of Confederation as presented to the Continental Congress on July 12, 1776 is online at the Library of Congress website.

     • The final version of the Articles of Confederation as adopted is online at Yale Law School’s Avalon Project, along with a 1775 draft by Benjamin Franklin, a 1776 draft by John Dickinson, and a discussion of the Articles in Jefferson’s autobiography.

The Constitution

We’ve only had one, produced on 17 September 1787 with unanimous assent from the Constitutional Convention.7 It took effect with the seating of the first Congress on 4 March 1789.8

And there are many places online where the Constitution and all of its amendments can be found. Some of the best are:

     • The U.S. Constitution at Cornell University Law School’s Legal Information Institute.

     • The Constitution of the United States, with the Bill of Rights and all of the other amendments, from the National Archives.

     • The U.S. Constitution at Findlaw.com.

     • U.S. Constitution Online from USConstitution.net in numerous alternative formats to be read online or off. (You can even buy a pamphlet copy to carry around with you!)

Federal Statutes

Every single law that’d ever been passed since the Constitution took effect on 4 March 1789 was gathered up by direction of Congress in 1845 and published in a set of volumes called the Statutes at Large.9 The Statutes to 1845 were published first in numbered volumes, and then the laws continued to be published thereafter under contract by a private firm until 1874, when the Government Printing Office took over the task.10 So Volumes 1-17 were published by Little, Brown & Co. of Boston; all the subsequent volumes — now numbering more than 120 — were published by the Government Printing Office.

As of 1874, the Secretary of State was charged with the responsibility for seeing that the Statutes at Large were printed.11 In 1950, that duty was transferred to the Administrator of General Services,12 and, in 1984, to the Archivist of the United States.13

And the law stipulates that those published volumes are all anybody ever needs to know in terms of what the federal statutory law is or was at any given time: “The United States Statutes at Large shall be legal evidence of laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.”14

There are two free government online sources for some of the Statutes at Large — the earliest and the most recent.

     • Volume 1 (1st-5th Congresses, 1789-1799) through Volume 18 (43rd Congress, 1873-1875) are available in both HTML and digital image formats at the website of the American Memory Project of the Library of Congress, at the section for “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates.” Use the direct link to the Statutes at Large and either browse or search the collection.

     • Volume 65 (82nd Congress, 1st Session, 1951) through Volume 125 (112th Congress, 1st Session, 2011) have been digitized by the Library of Congress and Government Printing Office and are available in PDF format from the Government Printing Office (GPO)at this GPO Federal Digital System link.

Additionally, all of the public Statutes at Large from Volume 1 through Volume 127 (113th Congress, 1st Session, 2013) are available online as free, fully-searchable PDF downloads from the website Constitution.org. (Note that private laws are not included in these downloadable files after about volume 25 or so.) Use the direct link to the website’s Complete Collection of United States Statutes at Large and download any PDF file.

There you have it: for the feds, all the law you need, what it was at what time and in this place.


SOURCES

  1. First Continental Congress,” USHistory.org (http://www.ushistory.org : accessed 27 Jun 2012).
  2. Second Continental Congress,” USHistory.org (http://www.ushistory.org : accessed 27 Jun 2012).
  3. Wikipedia (http://www.wikipedia.com), “Articles of Confederation,” rev. 12 Jun 2012.
  4. Primary Documents in American History: The Articles of Confederation,” Library of Congress (http://www.loc.gov : accessed 27 Jun 2012).
  5. Israel Ward Andrews, Manual of the Constitution of the United States (New York : American Book Co., 1900), 36-38; digital images, Google Books (http://books.google.com : accessed 24 May 2012).
  6. Library of Congress, Journals of the Continental Congress, 34 vols. (Washington, D.C. : U.S. Govt. Printing Office, 1904-1937), 32: 74; digital images, Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 (http://memory.loc.gov/ammem/amlaw/ : accessed 24 May 2012).
  7. Max Farrand, The Records of the Federal Convention of 1787, 3 vols. (New Haven : Yale University Press, 1911), 3: 20-27; digital images, Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 (http://memory.loc.gov/ammem/amlaw/ : accessed 24 May 2012).
  8. See Resolution, 13 Sep 1788, Journals of the Continental Congress, 34: 522-523.
  9. See Resolution 10, 5 Stat. 798 (3 Mar 1845).
  10. See “Statutes at Large,” Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 (http://memory.loc.gov/ammem/amlaw/ : accessed 24 May 2012).
  11. See 28 Stat. 114 (1874); 61 Stat. 636 (1947).
  12. See 64 Stat. 979 (1950)
  13. See 98 Stat. 2291 (1984).
  14. 1 U.S.C. 112, as amended.
Posted in Primary Law, Statutes | 5 Comments

Of oldest and youngest sons

(Note: This post originally ran in July 2012, but the issue arose again last week at the Genealogical Research Institute of Pittsburgh, so it bears repeating…)

Okay, The Legal Genealogist has a confession to make.

I have been unspeakably selfish.

Back in May, I was walking around the exhibit hall at the National Genealogical Society conference when my good friend Barbara Grempler of Archives CD Books USA stopped me to say she had a CD for me — one, she said, that a legal geek like me would love.

And oh boy was she right… and oh boy have I been holding back. It isn’t that I don’t want to share, mind you, it’s just that… well… some of this stuff is just too much fun.

The Complete English Lawyer

The CD — available here — is of a book by John Gifford, Esq. The short title is The Complete English Lawyer; Or, Every Man his own Lawyer : Containing a Summary of the Constitution of England; Its Laws and Statutes.1 It’s the fourth edition, published in 1820, and … well… have I mentioned yet that some of this stuff is just too much fun?

Let me give you just one example. In the introduction, Gifford notes that “part of the unwritten, or common law of England, are particular customs, or laws which affect only the inhabitants of particular districts.”2 And for this he cites two examples that, quite frankly, took me a bit by surprise. One was the custom of gavelkind and the other the custom of borough-english.

Yeah, right. You’re sitting there thinking they didn’t teach that in your genealogy courses. Well, they didn’t teach that in my law school classes either.

Here’s the deal. We all know that when one of our landowner ancestors died in England and didn’t leave a will, all of his lands went to his oldest son under the rule of primogeniture.3 That was the law following the Norman conquest,4 and the oldest son couldn’t even be disinherited by will until the Statute of Wills in 1540.5

The rule of primogeniture crossed the Atlantic with English common law, and that’s why you’ll see some early wills in colonial America that don’t mention land and don’t mention an oldest son: unless the will specifically said otherwise, land went to the oldest son, period.

Primogeniture was relatively short-lived in America — the first state to abolish it was Georgia, in its constitution of 17776 — but it remained the law in England until repealed in 1925.7

But it was never the law everywhere, even in England. Enter, stage left, gavelkind and, stage right, borough-english.

Gavelkind was the particular custom throughout the County of Kent by which lands descended to all of the sons in equal measure.8 It also existed in small areas of Nottinghamshire, Norfolk, Leicestershire, Monmouthshire, Archenfeld, and Kentish Town near Highgate.9

There were even some areas where the particular custom was for land to descend equally to all sons and daughters.10

So pervasive was the custom in Kent that it wasn’t necessary to prove that lands there were subject to partition among all the sons; it was only necessary to prove the contrary — that particular lands were not subject to being divided equally.11

Borough-english was a whole ‘nother kettle of fish. Under that rule, Gifford said, “the custom prevails in divers ancient boroughs, … that the youngest son shall inherit the estate in preference to all his elder brothers.”12 As to exactly where the custom was used, sources differ but it appears to have been scattered in some English counties appearing sometimes only in individual manors.13

Now that’s fun stuff. It explains why some wills may be different from others, why some sons may be named and some not, and why some lands were divided and some not.

But there’s something even more fun about Gifford’s account of borough-english. In a footnote, he explained his understanding of how this particular custom came to be: “The reason of this is said to be, that, during the feudal times, the lord claimed the privilege of sleeping the first night with his vassal’s bride; so that the lands descended to the youngest, from the supposed illegitimacy of the eldest.”14

Now with my penchant for the unusual, you’ll understand when I say I regret to report it’s probably not true. Other sources suggest the youngest son was preferred either because he’d be the one least able to care for himself or because he’d be the one most likely to remain at home to look after the household after older siblings had migrated.15

But you see what I mean, right? This is too much fun


 
SOURCES

  1. John Gifford, Esq., The Complete English Lawyer; Or, Every Man his own Lawyer : Containing a Summary of the Constitution of England; Its Laws and Statutes, 4th ed. (London : A. Whellier, 1820); CD-ROM reprint (Columbia, Md. : Archives CD Books USA, 2002). And really, that is the short form of the title. Take a look at the image of the title page if you don’t believe me!
  2. Ibid., “Introduction. Of the Laws of England,” 6.
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 937, “primogeniture” (“The superior or exclusive right possessed by the eldest son, and particularly, his right to succeed to the estate of his ancestor, in right of his seniority by birth, to the exclusion of younger sons”).
  4. Sir Robert Harry Inglis Palgrave, Dictionary of Political Economy, vol. 3 (London : MacMillan & Co., 1901), 202; digital images, Google Books (http://books.google.com : accessed 5 Jul 2012).
  5. Wikipedia (http://www.wikipedia.com), “Statute of Wills,” rev. 14 Mar 2012.
  6. Article LI (“when a person dies intestate, his or her estate shall be divided equally among their children”), “Georgia Constitution of 1777,” GeorgiaInfo (http://georgiainfo.galileo.usg.edu/ : accessed 5 Jul 2012).
  7. Administration of Estates Act 1925,” UK Legislation (http://www.legislation.gov.uk : accessed 5 Jul 2012.
  8. Gifford, The Complete English Lawyer, 6. See also Black, A Dictionary of Law, 533, “gavelkind.”
  9. Charles I. Elton and Herbert J. H. Mackay, editors, Robinson on Gavelkind: the Common Law of Kent: Or, The Customs of Gavelkind, 5th ed. (London : Butterworth & Co., 1897), 32-36; digital images, Google Books (http://books.google.com : accessed 5 Jul 2012).
  10. Ibid., 36-37.
  11. Ibid., 39.
  12. Gifford, The Complete English Lawyer, 6. See also Black, A Dictionary of Law, 148, “borough english.”
  13. See Elton and Mackay, eds., “Of Borough-English,” Robinson on Gavelkind: the Common Law of Kent, 238-243.
  14. Gifford, The Complete English Lawyer, 6 note *.
  15. Elton and Mackay, eds., “Of Borough-English,” Robinson on Gavelkind: the Common Law of Kent, 232-234.
Posted in Legal definitions | 6 Comments