One step closer

Let there be no question about one fundamental fact: The Legal Genealogist loves cousins.

First, second, third, fourth, doesn’t matter one bit, as long as (a) they are willing to donate just a little tiny bit of their DNA to the cause of family history and (b) that little tiny bit of their DNA just happens to match other members of the gfamily.

Which is why, today, The Legal Genealogist is oh so very grateful to a Battles cousin named Jack.


The Battles connection for me is one of the most difficult ones. That’s because of what is at least a single and maybe a double out-of-wedlock situation. In a county where the courthouse burned. Twice.

I’ve written before about my third great grandmother, Margaret Battles, who married Daniel Shew sometime before 1849, most likely in Cherokee County, Alabama. There’s no record of their marriage; the Cherokee County courthouse burned twice, in 1882 and 1895.1 They had one child, William, by the 1850 census2 and two more — Gilford and Martha Louise — by 1860, when Margaret appeared as head of household on the Cherokee County census, apparently a widow.3

We’re pretty sure of Margaret’s maiden name, but proof is hard to come by. It comes to us really from two sources: oral history passed down to Eula’s daughter Opal;4 and the death certificate of her son William.5

And there was only one Battles family in Cherokee County, Alabama, at any time that could have included Margaret, and that’s the family of William Battles, who was enumerated in Cherokee County in 1840,6 1850,7 1860,8 and 1870.9

It isn’t clear who Margaret’s mother was. William was married twice. His first marriage, to Kiziah Wright, resulted in a messy suit she brought against him for divorce that was finally dismissed in 1829, apparently when Kiziah died.10 His second wife was Ann Jacobs. They were married on Christmas Day 1829, and showed up on the 1830 census with — count ‘em — five children.11 One of whom, I do believe, and born most likely before that December 1829 marriage, was Margaret.

And there were two older boys that, we firmly believe, were Margaret’s older brothers. One was George Battles, the other Guilford/Gilford Battles. These two show up in the records in so many ways that suggest a very close family relationship, with perhaps the most significant single piece of documentary evidence being the land records.

When we look at the federal land records at the Bureau of Land Management website for Cherokee County, Alabama, the Battles men — William, the man we think is the father, and George and Guilford, the ones we think are the sons — what we see is land claim after land claim right next to each other. Two of George’s land claims from 1852 share at least a corner, if not an entire boundary, with William’s 1850 land claim; Guilford’s land claims are nearby, with another of George’s.12

With no other Battles family in Cherokee County at the time, and a host of other tantalizing hints of a family relationship (like Margaret naming a son Gilford, and a grandson of Guilford and Anne Keener Battles listed as a cousin in the household of a grandson of Daniel and Margaret Battles Shew in 1930 and…), well, it sure looks good.

But stopping there would be doing too much of “the name’s the same” thing. And the fact that records are hard to come by in this burned county doesn’t mean there isn’t any evidence.

Evidence like those little tiny bits and pieces of DNA.

Because just this week the results came in for a documented descendant of George Battles, that oldest boy we think is Margaret’s oldest brother. If we were right, then Jack — the descendant of George — should match neatly to everyone else you see in red on the chart above.

He would be a third cousin to Thelma, Margaret’s great granddaughter and my grandmother Opal’s first cousin. He would be a third cousin once removed to Michael, David, Carol, Mike and Trisha — Margaret’s 2nd great grandchildren. And the odds are good — 90% for third cousin matches, a bit less for third cousin once removed.

A strong solid match to everybody would pretty well cement that George and Margaret were brother and sister, leaving us just the one more piece we need to find to tie us to William.

And… oh my … did we ever get that strong solid match.

Six of Jack’s top seven matches — all predicted in the second to fourth cousin range — are the six third cousins and third cousins once removed we hoped he would match. And reviewing Jack’s paper trail, there is no other shared family line that could possibly be the source of all that lovely shared DNA.

From a family story that Margaret’s maiden name was Battles to solid DNA evidence that Margaret’s brother was George Battles of Cherokee County in one fell swoop.

DNA test results don’t get much better than that.

Now to find a few more descendants of William… and Ann Jacobs … to test…


  1. Alabama Courthouses Destroyed by Fire,” Alabama Department of Archives and History ( : accessed 22 Mar 2014).
  2. 1850 U.S. census, Cherokee County, Alabama, population schedule, 27th District, p. 136 (back) (stamped), dwelling 1055, family 1055, Danl Shew household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M432, roll 3.
  3. 1860 U.S. census, Cherokee County, Alabama, population schedule, p. 315 (stamped), dwelling 829, family 829, Margaret Shoe household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M653, roll 5.
  4. Interview with Opal Robertson Cottrell (Kents Store, VA), by granddaughter Bobette Richardson, 1980s; copy of notes privately held by Judy G. Russell (also a granddaughter).
  5. Texas Department of Health, death certif. no. 10077 (1927), W.W. Shew (10 Mar 1927); Bureau of Vital Statistics, Austin.
  6. 1840 U.S. census of Cherokee County, AL; 1840 U.S. census, Cherokee County, Alabama, population schedule, p. 116 (stamped), line 17, Wm Battles household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M704, roll 3.
  7. 1850 U.S. census, Cherokee Co., Ala., pop. sched., 27th Dist., p. 136 (stamped), dwell. 1052, fam. 1052, Wm Battles household.
  8. 1860 U.S. census, Cherokee Co., Ala., pop. sched., p. 314-315 (stamped), dwell./fam. 825, Wm Battles household.
  9. 1870 U.S. census, Cherokee Co., Ala., pop. sched., Leesburg P.O., p. 268(B) (stamped), dwell. 26, fam. 25, W Battles household.
  10. Transcription, Records of the Blount County Circuit Court, 1824-1829; Circuit Court Clerk’s Office, Oneonta, Ala.; transcribed by Bobbie Ferguson; copy provided to J. Russell and held in files.
  11. 1830 U.S. census, St. Clair County, Alabama, p. 252 (stamped), line 24, William Battles 2nd household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M19, roll 4.
  12. The land records can be reviewed with a search for the surname Battles in Cherokee County at the Bureau of Land Management, General Land Office, website.
Posted in DNA | 13 Comments

With love, to all of mine

Some weeks have Mother’s Day.

That brings a soft sad smile to The Legal Genealogist‘s face, as it has been years since I have had a living maternal forebear to celebrate with.

And some weeks have Father’s Day.

And that’s got the same issue — no living paternal forebears either.

But this week?

This week had National Siblings Day.

And boy does The Legal Genealogist have siblings.

Seven of ‘em, to be exact.

And every last one of them a gem without whom my life wouldn’t be what it is today.1


We are doctors, lawyers, educators, scientists. We are computer geeks and retirees. We have served the United States in both civilian jobs and in the military. We are high school drop-outs and graduate degree holders (and two of us are both high school drop-outs and graduate degree holders). We have married, divorced and married again. We’ve produced more than a dozen children for the next generation and we’re just getting started with the grandchildren (we’re up to six, with number seven due this year, and that number is guaranteed to go way up…).

We are, in age order and left to right:

• Evan, a medical doctor in Indiana, father of Tim and Gina and grandfather of Martin;

• Diana, a Virginia retiree from a career that spanned everything from the U.S. Air Force to academia;

• Me, born in Colorado but still stuck in New Jersey and wondering how it is that I never managed to escape;

• Paul, our official Arizona space cadet, who has done some fabulous imaging work for the space program, father of Rudi, Max, Stefan and Katya, and grandfather of Jack;

• Kacy, a Virginia educator, mother of Ian, Hannah, Thomas and Rose, and grandmother of Isadora and her little sister who won’t make her appearance for another few months;

• Fred, a U.S. Army retiree and Virginia educator, father of Bobbi, and grandfather of Sydney, Phoenix and Addyson;

• Warren, a civil engineer and software educator, born in New Jersey and living in Colorado, leaving me wondering how he did escape; and

• Bill, a U.S. Marine Corps retiree, another Virginian, father of Dennis and Duncan.

I’ve said it before, but it’s worth repeating: There has never been a day in my life when I haven’t been loved fiercely. Never a day in my life when I haven’t loved fiercely back. Even when I bitterly disappointed these folks, and I have — oh, how I have, there has never been a day in my life when they haven’t closed ranks around me and protected my back.

I can’t imagine anything in my life that I might ever need that these folks wouldn’t band together to try to provide, and there isn’t anything I can imagine that I wouldn’t do for them.


I love ‘em all.


  1. You now officially know who to blame.
Posted in My family | 11 Comments

The flyman goeth

You’ll see it in the transcript of some of the oldest trials.

The jury is asked for its verdict, and the foreman stands to announce it.

Pilot with airplane on a background of sky“How say you?” asks the clerk of the court. “Guilty or not guilty?”

“Not guilty,” says the foreman.

And then comes the question.

“Did he fly for it?”1

Say what?

Just what is that supposed to mean?

Okay. Let’s start with the fact that there’s this old English word flyma. And it means “a runaway; fugitive; one escaped from justice.”2

And then there’s the extension of that to one who harbors a fugitive, and that was considered a crime against the Crown that went by the name of flyman-frymth: “In old English law. The offense of harboring a fugitive, the penalty attached to which was one of the rights of the crown.”3

So when someone was said to “fly for it,” he was running away, a fugitive trying to escape from justice.

And you don’t have to take The Legal Genealogist‘s word for it. There was a jury foreman back in 1817 who was just as confused as we might be today:

Mr. Barlow (clerk of the court). — … Gentlemen of the jury, look you upon the prisoner. How say you, is James Watson Guilty of the High Treason, whereof he stands indicted, or, Not Guilty?

Foreman. — Not guilty.

Mr. Barlow. — Did he fly for it?

Foreman. — I do not understand the question. Do you mean for our verdict?

Mr. Justice Bayley. — Did he fly away from justice?

Foreman. — No; no.4

But why was the question being asked at all?

Black’s Law Dictionary says only that it was the custom to ask but that the practice was abolished.5 But one edition of the source it cites — Wharton — offers more:

On a criminal trial in former times it was usual after the verdict, even of not guilty, to inquire also : ‘Did he fly for it?’ Forfeiture of goods followed a conviction upon such inquiry. This practice, after having been long discontinued, was generally abolished by the Criminal Law Act, 1827, 7 & 8 Geo. 4, c. 28, s. 5. There is a saying Fatetur facinus qui judicium fugit (3 Inst. 14)— ‘He who flies from justice confesses his guilt.’6

In other words, if the prisoner had tried to escape from justice, it could be considered as evidence that he was guilty — and if he was convicted of the crime after he did fly for it, he could forfeit what he owned to the state.


  1. See, for example, “Trial of Samuel Atkins,” Cobbett’s Complete Collection of State Trials, vol. VII (London : R. Bagshaw, 1810), 249-250; digital images, Google Books ( : accessed 10 April 2014).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 501, “flyman.”
  3. Ibid., “flyman-frymth.”
  4. “Trial of James Watson,” in Thomas Jones Howell, A Complete Collection of State Trials…, vol. XXXII (London: Hurst, Rees, Orme, Brolwn & Green, 1824); digital images, Google Books ( : accessed 10 April 2014).
  5. Black, A Dictionary of Law, 501, “fly for it.”
  6. Edward A. Wurtzburg, editor, Wharton’s Law Lexicon, 12th ed. (London: Stevens & Sons, 1916); digital images, Google Books ( : accessed 10 April 2014).
Posted in Legal definitions | Leave a comment

Next in an occasional series on copyright and terms of use

It can be a visually stunning way of presenting information, this new tool called Flipboard.

flipboardIt’s billed as “your personal magazine, filled with the things you care about.” And as a way to “catch up on the news, discover amazing things from around the world, or stay connected to the people closest to you—all in one place.”1

A way to “save your favorite stories, photos and videos from across the web. Then create your own beautiful magazines on any topic … and share your magazines with friends.”2

Randy Seaver of Genea-Musings has used it to put together three attractive magazines: Randy at RootsTech 2014, Genea-Musings at RootsTech 2013, and a truly gorgeous tribute to his mother, Betty Virginia (Carringer) Seaver, entitled Betty’s Life.

Caroline Pointer of — the author of all those wonderful Genealogy Things You Need to Know This Morning — has a Flipboard magazine out with tips to Power Your Genealogy Research with Technology.

Lisa Louise Cooke of Lisa Louise Cooke’s Genealogy Gems has a Flipboard magazine out on Using Historic Maps for Genealogy and Family History.

Diane Acey Richard, who writes the UpFront with NGS blog, tested it out yesterday, putting together a quick magazine called Upfront with NGS.

It’s slick, it’s easy to use, it’s graphically pleasing.

And it’s absolutely chock full of terms of use.

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”3 And in the context of a service like Flipboard, the whole focus is on use: the terms of use govern whether we can use the service and, if we do, what rights we’re giving Flipboard — or giving up to Flipboard.

But because we’re talking about aggregating content here — gathering up materials and reproducing them in a different format as a magazine to share with others — we also have to talk about copyright. Because Flipboard’s terms of use say if it turns out that there is a copyright problem with a magazine you produce, every last bit of the responsibility and liability is yours.

Not only will Flipboard walk away from any sharing of responsibility with you, it makes you agree to pay its expenses — including legal fees — if any third party sues Flipboard because of a magazine you’ve produced.

The terms of use are set out in plain English at the Flipboard Terms of Use page, last updated 26 March 2013. And before you use a service like this, it’s critically important that you understand what you’re letting yourself in for.

As a user of Flipboard content — as somebody who just reads a magazine there — you have to agree that Flipboard has absolutely no responsibility to you at all:

You acknowledge and agree that Flipboard: (a) is not responsible for the availability or accuracy of such Third Party Materials or User Content or the products or services on or available from such Third Party Materials or User Content; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to, reliance on or use of such Third Party Materials or User Content; (c) does not undertake or assume any duty to monitor the Flipboard Application for inappropriate or unlawful content; and (d) does not make any promises to remove Third Party Materials or User Content from being accessed through the Services.4

In short, as a reader of Flipboard magazines, you’re on your own. Period.

But it’s as a producer of Flipboard content — as somebody who might want to create a magazine there to share with friends — that the terms of use get really hinky. Because there too you’re entirely on your own, and any mistake you make in terms of using somebody else’s copyrighted content as part of your magazine can be a very costly mistake indeed.

First, Flipboard makes it clear that — even though it’s designed to let you “save your favorite stories, photos and videos from across the web. Then create your own beautiful magazines on any topic … and share your magazines with friends”5 — it doesn’t want you to copy materials from others that are copyright-protected:

These Terms of Use do not authorize you to, and you may not, reproduce, distribute, publicly display, publicly perform, communicate to the public, make available, create derivative works of or otherwise use or exploit any Third Party Materials in violation of applicable copyright law, and the owners of such Third Party Materials may have the right to seek damages against you for any such violation.6

Instead, it requires that:

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Flipboard the rights in such User Content, as contemplated under these Terms of Use; (b) neither the User Content nor your accessing, posting, submission or transmittal of the User Content or Flipboard’s Use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; and (c) no payments of any kind shall be due to any third party, whether a copyright owner or an agent thereof, for any Use made of the User Content (or any portion thereof) on, through or by means of the Site and the Services.7

And if that’s not clear enough, it goes on: “You may not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.”8

It warns that it has the right to “investigate and take all appropriate legal action to prevent, stop or deter violations …, including infringement of intellectual property rights”9 that it can “suspend or terminate your account, or refuse to provide you with access to the Site or Services” and “notify authorities or take any actions it deems appropriate, without notice to you” if it thinks you’re in violation of the terms of use or the law.10

And if anyone does sue Flipboard, claiming that you violated copyright by including content in your magazine, “You agree to defend, indemnify, and hold Flipboard, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees…”11 That means you end up paying not only your own lawyers, but Flipboard’s lawyers too.12

And any dispute you have with Flipboard has to go to arbitration rather than to court, and you can’t join with other users in a class action.13

So what does this all mean?

It means that the only content you should include in a Flipboard magazine is content you produce (something you write, photos you take) or that you’re 100% sure is free of copyright concerns.

The exact same issues apply here as apply to Pinterest or other content-aggregator sites. These sites have a defense to a copyright claim if they’re sued because they told their users not to violate copyright. But as individuals, we don’t have that defense.14

So go ahead and use Flipboard. You can produce some gorgeous works if you do. But be careful about what you include. Some things out on the Internet are fair game; others are not. You won’t get into trouble using only your own work, and you can include things that are in the public domain15 or that are covered by a Creative Commons license as long as you stay within the precise terms of the license.16

And if it’s something else, and you really want to include it?


You absolutely can never go wrong asking for permission.


  1. Home page, ( : accessed 9 Apr 2014).
  2. Ibid.
  3. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 ( : accessed 9 Apr 2014).
  4. “Third Party Materials and Agreements,” Flipboard Terms of Use, updated 26 Mar 2013, Flipboard ( : accessed 9 Apr 2014).
  5. Home page, ( : accessed 9 Apr 2014).
  6. “Third Party Materials and Agreements,” Flipboard Terms of Use, updated 26 Mar 2013, Flipboard ( : accessed 9 Apr 2014).
  7. Ibid., “User Content.”
  8. Ibid., “Copyrighted Materials: No Infringing Use.”
  9. Ibid., “General Prohibitions.”
  10. Ibid., “Termination.”
  11. Ibid., “Indemnity.”
  12. Ibid., “Dispute Resolution.”
  13. Ibid.
  14. See Judy G. Russell, “Copyright, terms of use and Pinterest,” The Legal Genealogist, posted 19 Feb 2013( : accessed 9 Apr 2014).
  15. As explained by the United States Copyright Office, “A work of authorship is in the `public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.” U.S. Copyright Office, “Definitions” ( : accessed 9 Apr 2014).
  16. See generally “About The Licenses,” Creative Commons ( : accessed 9 Apr 2014).
Posted in Copyright, Terms of use | 6 Comments

BlogTalkRadio tomorrow night

Tomorrow night, Thursday, April 10, at 9 p.m. EDT, Bernice Bennett, host of BlogTalkRadio’s Research at the National Archives & Beyond, and The Legal Genealogist join forces for Slavery in the North.

blogtalkThis free one-hour online radio program focuses on a fact that most genealogists tend to forget: that slavery wasn’t a southern issue only. The truth was that slavery existed for decades in northern states as well. And freedom didn’t come easy — the law often provided for only for gradual manumission, and freedmen themselves were often unwelcome in the north.

While economic conditions and the different climate and agricultural base in the north meant that slavery was never as big a force in the north as it was in the south, there are still decades — generations — worth of records of value to both descendants of slaves and descendants of slaveholders in the north.

From the first slave law in British North America to the persistence of forced “apprenticeships” well into the middle of the 19th century. from the Northwest Ordinance to the 13th amendment, come learn more about America’s “peculiar institution” and its lingering effects north of the Mason-Dixon line.

This internet-based broadcast — Slavery in the North — is free to all. You don’t need to register, you don’t need any special hardware or software: just tune in and we’ll get underway at 9 p.m. EDT / 8 p.m. CDT / 7 p.m. MDT / 6 p.m. PDT.

If you can’t join us live, you’re still in luck: all of the Research at the National Archives & Beyond programs are recorded so you can listen in on your own schedule.

But if your schedule allows, we’ll welcome your comments and questions live, on the air.

Hope we’ll “see” you tomorrow night.

Posted in General | Leave a comment

One letter … and a world of difference

Reader Miriam D. has ancestors from all over the American south and, as a result, is struggling to understand the differences that sometime crop up between jurisdictions.

And right now what has her confused is the difference between dower and dowery (or dowry — you’ll see it spelled both ways).

“There’s a whole set of records for one case out of Georgia about dower,” Miriam said, “and then I turn around and get all confused by another case in Louisiana about dowery. What gives here anyway?”

Oh, great question.

dowryBecause what Miriam has here is more than just a difference of one letter — it’s a difference in entire legal systems, giving rise to entirely different concepts, different expectations and different records that result.

In both cases, the words refer to some property — land, money, rights of some kind — going from one party to another as the result of marriage. But because of the different underlying legal systems, the property rights are going in different directions.

The word dower as a legal term means the “provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children.” The dictionary definition goes on:

Dower is an estate for the life of the widow in a certain portion of the following real estate of her husband, to which she has not relinquished her right during the marriage: (1) Of all lands of which the husband was seised in fee during the marriage; (2) of all lands to which another was seised in fee to his use; (3) of all lands to which, at the time of his death, he had a perfect equity, having paid all the purchase money therefor.1

The term arises out of the common law tradition — the type of law that developed initially out of decisions by English law courts in the middle ages and was eventually collected and reported in guides like Blackstone’s Commentaries2 or, even earlier, Matthew Hale’s History of the Common Law.3

The common law was widely applied in early American colonies settled by the English and, for the most part, was incorporated into early American law at the time of the Revolution. For example, the New Jersey Constitution of 1776 provided that:

the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter…4

Under that English common law, a wife’s dower was her right, on her husband’s death, to enough of his estate to support herself and her children. In most jurisdictions, she had the right to live on and get the profits from one third of his land during her lifetime plus some percentage of his personal property. After her death, the lands would go to their children (or to his heirs if there were no children); the widow didn’t have the right to sell or will the property away.

So you’ll see all sorts of records, in Miriam’s Georgia case and throughout the former English colonies, setting side dower for widows and resolving issues that came up because of dower rights.

But the English weren’t the only ones who colonized parts of America… and other colonizing nations brought their own laws and traditions into their territories. In particular, the French and Spanish colonies brought a legal system with them called the civil law, based on the Roman legal code:

Civil law systems, also called continental or Romano-Germanic legal systems, are found on all continents and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman law, with some influence of canon law, sometimes largely supplemented or modified by local custom or culture. … In North America, civil codes are found in Louisiana and Quebec.5

And the other word Miriam is struggling with — dowery or dowry — comes out of that civil law tradition. It is “the property which a woman brings to her husband in marriage; now more commonly called a ‘portion.’ By dowry is meant the effects which the wife brings to the husband to support the expenses of marriage.” And, the definition adds:

This word expresses the proper meaning of the “dos” of the Roman, the “dot” of the French, and the “dote” of the Spanish, law, but is a very different thing from “dower,” with which it has sometimes been confounded. By dowry, in the Louisiana Civil Code, is meant the effects which the wife brings to the husband to support the expenses of marriage. It is given to the husband, to be enjoyed by him so long as the marriage shall last, and the income of it belongs to him. He alone has the administration of it during marriage, and his wife cannot deprive him of it. The real estate settled as dowry is inalienable during marriage, unless the marriage contract contains a stipulation to the contrary.6

The concept was one of contract: both man and woman entering into a marriage were expected to contribute to the costs of establishing the new household. And the bride’s portion — her dowery or dowry — what property she brought into the marriage that her husband had the right to use, and what property she had the right to keep separate, was spelled out in the marriage contract.7

Under the civil law, then, the records will be very different: there will be marriage contracts and records of agreements drawn up by notaries public (who played a much more significant role under civil law systems than they did in common law jurisdictions), and Miriam will see outcomes in her Louisiana cases that don’t look much like what she’ll see in Georgia.

Two words so very similar, two legal concepts — and legal systems — so very different.

And a great example of how knowing the law lets us understand the records.


  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 393, “dower.”
  2. William Blackstone, Blackstone’s Commentaries on the Laws of England (Oxford, England, 1765-1769); various editions, digital images, Google Books ( : accessed 7 Apr 2014).
  3. Sir Matthew Hale, The History of the Common Law of England, 3d ed. (London, England : Nutt & Gosling, printers, 1739); digital images, Google Books ( : accessed 7 Apr 2014).
  4. The Constitution of 1776, text, State of New Jersey ( : accessed 7 Apr 2014).
  5. What is the Civil Law?,” LSU Law Center ( : accessed 7 Apr 2014).
  6. Black, A Dictionary of Law, 384, “dowry.”
  7. See generally Frederick J. Stimson, American Statute Law: An Analytical and Compared Digest of the Constitutions and Civil Public Statutes of All the States and Territories Relating to Persons and Property, Volume 1 (Boston: C. C. Soule, 1886), §6429; digital images, Google Books ( : accessed 7 Apr 2014).
Posted in Legal definitions | 6 Comments

Getting off the beaten track

One of the great joys of traveling around the country speaking about genealogical topics is having that hour, here and there, to take a look at the vast resources and records that exist tucked away in quiet corners of libraries and repositories all over America.

Resources and records that often have the answers to our most persistent and puzzling family mysteries.

Resources and records that can fill the gaps left by courthouse fires and family losses.

Resources and records that aren’t — and, in our lifetimes, likely won’t be — online.

SpecCollCase in point: the Special Collection Department at the Samford University Library in Birmingham, Alabama.

The Legal Genealogist was there this past weekend speaking to the Alabama Genealogical Society, and through the luck of the draw and the good offices of AGS President Yvonne Shelton Crumpler, I had the chance to spend a couple of hours in the library after my flight got in on Friday.

Samford is a small private university with about 4,500 total students, graduate and undergraduate. Founded in 1841 as Howard College, it’s affiliated with the Alabama Baptist Convention and has one of the prettiest campuses you’d ever want to see.

Genealogists know it as the home of the Institute of Genealogy and Historical Research (IGHR) — the annual week-long program in June that is summer camp for grown-ups with courses ranging from beginning genealogy all the way up to advanced methodology.

And tucked into the basement of Samford’s library is the Special Collection.

Oh boy.

Gold mine time.

According to its website, “The mission of the Special Collection Department of the Samford University Library is to document The History of the University, The State of Alabama and Its People, and Alabama’s Religious Institutions through the acquisition of historically significant, rare and/or unique materials.”1

And what that means is an amazing array of records and materials. Resources that are not duplicated even in some of the premier research institutions of the nation.

An example: the Library of Congress’ Chronicling America site has four digitized newspapers that cover early Alabama, and only one of them — the Daily Rebel — was actually published in Alabama — and it really wasn’t an Alabama newspaper at all. It was a Chattanooga newspaper whose publisher fled to Alabama one step ahead of the Yankee troops during the Civil War.

The newspaper collection at Samford? Dozens and dozens of daily, weekly, even monthly publications from every corner of the state. The county where my people lived in the 1840s through the 1880s — Cherokee County, Alabama — suffered devastating courthouse fires in 1882 and 1895.2 But perhaps some of my answers may be in the pages of the Coosa River News, which began publication in 1878 — a newspaper held in Special Collection.

And even folks who didn’t make the newspapers tended to belong to churches — and there are few collections of church records to rival what’s held at Samford about the Alabama Baptist Church. For my northeastern Alabama ancestors, I can look at the Minutes of the Cherokee Baptist Association, starting in 1844. For example:

• Oct. 1844; Lebanon Baptist Church, Cherokee Co., Ala.

• Sept. 1845 ; Mount Pleasant Baptist Church, St. Clair Co., Ala.

• Sept. 1846 ; Antioch Baptist Church, DeKalb Co., Ala.

• Sept. 1847 ; Yellow Creek Baptist Church, Cherokee Co., Ala.

And those are just the first few.

There are church histories, and county histories, and copies of state census records, and Freedman’s Bureau records, and so many collections of private papers, including one I can’t wait to spend some time with — the papers of Maud McLure Kelly, Alabama’s first woman lawyer.

The collection is open to the public, five days a week. Research assistance is available, for a small fee, though the library doesn’t have the staff to do in-depth research for patrons. But if you know the collection has something you need, you can make a research request using an online form.

Now here’s the thing:

As wonderful as the Special Collection at Samford is, it’s important to note that Samford’s efforts to preserve local history are not unique. There are collections like this all over the United States, indeed all over the world. University libraries. Local historical societies. Genealogical societies. Public libraries. Local, county and state archives.

Every one of them has materials that are unavailable anywhere else — that are utterly unique to that one location — that won’t be online any time soon. There’s not enough money, not enough manpower, to get every single item digitized and put online.

The only way to do thorough research into our families is by getting off the beaten track, out of our computer chairs, off the internet — to get out to these wonderful special collections and see what records they may hold.

Now if you’ll excuse me, I have to set up my research list for the few research hours I’ll have open during IGHR. Let’s see now… the Coosa River News… the Southern Democrat… the minutes of the Cedar Bluff Baptist Church… and those Kelly papers…


  1. About Special Collection,” Samford University Library ( : accessed 6 Apr 2014).
  2. See FamilySearch Research Wiki (, “Cherokee County, Alabama,” rev. 18 Mar 2014.
Posted in Resources | 6 Comments

Making the most of your 2014 DNA testing dollars

In 2012, The Legal Genealogist led off a Sunday DNA blog by asking “how do you get the most bang for the DNA buck?”1

And then followed that up last year with an update after prices tumbled for autosomal DNA tests.2

And it’s time now for another update. Because the technological changes particularly at 23andMe mean the old recommendations don’t work any more.

We’re talking here principally about autosomal DNA tests. (Autosomal DNA testing, remember, is the kind of test that works across genders to locate relatives — cousins — from all parts of your family tree.3 That’s in contrast to YDNA testing, which only men can do and which looks at the direct paternal line,4 or mitochondrial DNA testing, which looks at the direct maternal line.5)

There are four possible autosomal DNA tests you can take — from Family Tree DNA, from 23andMe, from Ancestry DNA and even from National Geographic in its Geno 2.0 test with its scientific (rather than genealogical) emphasis.

All of which I have taken. Admittedly, I’m a DNA junkie. I’ve never met a DNA test I wouldn’t take. There are real advantages to testing as widely as possible: you’re looking to find people who match you, and the key person who can help you break down your brick wall may have only tested with one company.

But since nobody is handing out DNA kits for free, the question remains… how do you get the most bang for the DNA buck? And the answer depends in part on what it is you want to find out through your DNA testing.

Every one of the genetic genealogy companies has its pros and its cons. A comparison chart explaining what features the companies do and don’t have is available in the Wiki for the International Society of Genetic Genealogy (ISOGG). Prepared by Tim Janzen, a medical doctor with a deep understanding of autosomal DNA testing, the Autosomal DNA testing comparison chart provides a good overview.

Here’s my own take.

If you can only afford to test with one company (no change from 2013): If you’re serious about using DNA as a tool in your genealogy toolkit and you can only afford to test with one company, then the company to test with is Family Tree DNA. It has more to offer the genealogist than anybody else in terms of the number of serious genealogists who use it and the features and ease of use it offers. Contacting matches is easy and the amount of information provided about matches is the best in the business.

If your primary interest is in medical information (updated for 2014): If you really want to know about the medical secrets hidden in your DNA, you have to go to a third party utility right now. The dust-up between 23andMe and the federal Food and Drug Administration over the representations 23andMe was making about what autosomal results meant for health issues has brought those reports to a halt.6 So if this is what you want, your best bet is to test with any company you prefer for genealogy, and then run your raw data though a reporting system like Promethease.

If your primary interest is in the admixture data (updated for 2014): If your primary interest is in the numbers — what percentage European or African you are, the two most updated reports are the Ancestry Composition report from 23andMe and the Ethnicity Estimate from Ancestry DNA. Family Tree DNA is still lagging behind on this but is in the process of updating its admixture analyses. But remember that the numbers are really just a guess. If you want to help everybody understand admixtures better for the future, and you can afford it, consider testing with National Geographic’s Geno 2.0. That’s where the real scientific work is being done and, if enough people test, the information we all get about deep ancestry should vastly improve. It’s not cheap — $199 for the test — and there’s not much useful genealogical information, so this is a commitment to science for tomorrow, not a test to do for genealogy today.

If the person you want to test is very old or very young (no change from 2013): Most of the time, how you test doesn’t matter. But if the person you want to test is older or younger, you may need to avoid a test that requires saliva, such as the tests from AncestryDNA and 23andMe. Older people sometimes can’t produce enough saliva to test and it’s impossible to tell a baby how to produce the kind of saliva needed. Family Tree DNA uses swabs rubbed on the inside of the cheek and that avoids this problem.

If you want to link your DNA results to your family tree (no change from 2013): The only company right now that links DNA results to your family tree and compares it to others’ family trees is AncestryDNA. When the tree information is right, it’s a wonderfully useful tool. It’s considerably less so when — as is common — the tree information is wrong, or your match doesn’t have a tree at Ancestry, or your match’s tree is private. There are as yet no tools at AncestryDNA to compare DNA when there is no tree match.

If you want to fish in all the ponds for the lowest price (updated for 2014): Of course, the best way to get all the matches you can possibly get it to test with all three major companies. These days, testing with all three is less expensive than it used to be to test with just one. But you can save yourself a little bit of money and get your results into all three databases this way:

Step 1. Test with AncestryDNA first. It’ll cost you $99. (The big change for 2014 is that you can no longer use 23andMe for this first step because its raw data today using its new V4 testing chip isn’t compatible with the Family Tree DNA system.)

Step 2. The minute you get your results from the first test, transfer your raw data to Family Tree DNA for $69. When I say “transfer,” that doesn’t end your matches at the other company, it just gets you into the Family Tree DNA system with all of its benefits.

Step 3. When you can afford it, test with 23andMe for another $99.

That puts you into all three pools for a total of $267 — less than what you used to pay for one such test in the past.


  1. Judy G. Russell, “More bang for DNA test bucks,” The Legal Genealogist, posted 6 May 2012 ( : accessed 27 July 2013).
  2. Judy G. Russell, “Update: More bang for DNA test bucks,” The Legal Genealogist, posted 28 July 2013 ( : accessed 5 Apr 2014).
  3. See generally Judy G. Russell, “Autosomal DNA testing,” National Genealogical Society Magazine, October-December 2011, 38-43.
  4. ISOGG Wiki (, “Y chromosome DNA test,” rev. 5 Mar 2014.
  5. ISOGG Wiki (, “Mitochondrial DNA,” rev. 29 Oct 2013.
  6. See Judy G. Russell, “23andMe suspends health tests,” The Legal Genealogist, posted 6 Dec 2013 ( : accessed 5 Apr 2014).
Posted in DNA | 25 Comments

Nice to be home

The Legal Genealogist is home today.

Proud to be the spring seminar speaker for the Alabama Genealogical Society.

Delighted to be at Samford University, home of the Institute of Genealogy and Historical Research each summer (hope to see you there in June!).

AlabamaHome in a place I’ve never lived.

Home … in Alabama… Home to generations of my ancestors.

At this point, it’s entirely up in the air just how many of my family lines passed through Alabama.

Part of the problem is a county courthouse that burned at least twice, in 1882 and again in 1895, taking so many critical family records with it.1

Part of the problem is at least one ancestor who said he was born in Madison County, Kentucky, when it’s known that part of his family was in Madison County, Alabama.2

But there is no question that at least some of my lines came through Alabama, including three generations of women who were born here:

• My great grandmother, Eula (Baird) Livingston Robertson, was born in Alabama in 1869.3

• My great great grandmother, Martha Louise (Shew) Baird Livingston, was born in Alabama around 1855.4

• My great great great grandmother, Margaret (Battles) Shew, was born in Alabama around 1827.5

And when I walk to the front of the room today in the Brock Forum Auditorium, I will be thinking of those generations of women who did my family proud.

And hoping I can do them proud in my turn.


In Alabama.


  1. Cherokee County, Alabama, suffered catastrophic record losses in the courthouse fires. See FamilySearch Research Wiki (, “Cherokee County, Alabama,” rev. 18 Mar 2014. All of the marriage records, for example, for the time period when my folks would have been marrying there are gone.
  2. I’m still annoyed with my nemesis second great grandfather, George Washington Cottrell. I expect I’ll still be annoyed the day I join him wherever he may be today… See Judy G. Russell, “Oh George… you stinker!,” The Legal Genealogist, posted 9 Jun 2012 ( : accessed 4 Apr 2014).
  3. See Virginia Department of Health, Certificate of Death, state file no. 6367, Eula Robertson (1954); Bureau of Vital Statistics, Richmond.
  4. See 1860 U.S. census, Cherokee County, Alabama, population schedule, p. 315 (stamped), dwelling 829, family 829, Margaret Shoe household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M653, roll 5.
  5. See ibid. See also 1850 U.S. census, Cherokee County, Alabama, population schedule, 27th District, p. 136 (back) (stamped), dwelling 1055, family 1055, Danl Shew household; digital image, ( : accessed 22 Mar 2014); citing National Archive microfilm publication M432, roll 3.
Posted in My family | 11 Comments

French name, common law purpose

It has a funny name.

And a deadly serious nature.

Anonymous_GallowsAnd just about everybody pronounces it wrong.

So The Legal Genealogist is on the road today, en route to the Spring Seminar of the Alabama Genealogical Society at Samford University in Birmingham tomorrow (will I see you there?)… but there’s a term that has reader Janet puzzled that we can clear up fairly quickly.

“I found a court record where the guy I think is my ancestor was involved, but I never heard of this court,” she wrote.

Its name: the Court of Oyer and Terminer.

You’ll come across this court in a number of jurisdictions. It was set up in Massachusetts in 1692 (think Salem… think charges of withcraft),1 it existed in New York between 1683 and 1895,2 the name was used for courts in Virginia and Delaware and Pennsylvania and Georgia, and other states as well.3

And it was a court of criminal jurisdiction — usually very serious criminal jurisdiction indeed: “This name is generally used (sometimes, with additions) as the title, or part of the title, of a state court of criminal jurisdiction, or of the criminal branch of a court of general jurisdiction, being commonly applied to such courts as may try felonies, or the higher grades of crime.”4

So, historically, courts of oyer and terminer were superior courts set up to hear criminal cases. Things like treason and serious felonies. Crimes that carried penalties like death or maiming. In many slave-holding states, they were the courts that handled cases against slaves who could face death if convicted.

The name is drawn from legal French — meaning literally to hear and determine.5

But it’s not given the French oh-yay type pronunciatipon. It is, instead, oy-yer and ter-min-er, with the -er pronounced in plain English.

The funny-sounding court with the deadly serious nature.


Image: Open Clip Art

  1. Court of Oyer and Tewrminer, Glossary, Salem Witch Trials, Women’s History ( : accessed 3 Apr 2014).
  2. Records Relating to Criminal Trials, Appeals, and Pardons ,” New York State Archives information leaflet 9 ( : accessed 3 Apr 2014).
  3. Wikipedia (, “term,” rev. 24 Jan 2014.
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 292, “court of oyer and terminer.”
  5. Merriam-Webster Online Dictionary ( : accessed 3 Apr 2014), “oyer and terminer.”
Posted in Legal definitions | 6 Comments