Was she really that young?
A reader wasn’t quite convinced it wasn’t a typo.
He’d read the post about The Legal Genealogist‘s maternal line, and was struck by one fact.
“I see your 2nd great grandmother gave birth to your great grandmother when she was only 13 or 14 years old,” he wrote. “Was she already married at that young age?”
His reference was to the 1855 birth year of my second great grandmother, Martha Louise (Shew) Baird Livingston, and the 1869 birth year of her daughter, my great grandmother, Eula (Baird Livingston) Robertson.1
A full answer is a little complicated because — sigh — we’re not entirely sure that Martha Louise Shew ever really married Jasper Baird, the father of her first child. The marriage records of the time didn’t survive an 1882 fire at the Cherokee County, Alabama, Courthouse,2 so there’s no documentary evidence. We know she used the surname Baird on the 1870 census,3 and a newspaper account of her later marriage to Abigah Livingston gave the bride’s name as Martha L. Beard.4
But the underlying question — was she really that young — suggests a need to review the age for legal marriage.
And that’s always going to be a matter of law — specifically the law of the time and place.
In the absence of a specific statute, most American states followed the English common law rule — and the age for marriage under the common law was very young. “A male … at fourteen is at years of discretion, and therefore may consent or disagree to marriage,” according to Blackstone’s Commentaries on the Laws of England. “A female … at twelve is at years of maturity, and therefore may consent or disagree to marriage…”5
Many states altered the common law rule, and Alabama was one such — but it didn’t raise the ages by all that much. In its 1852 code, Alabama provided that: “A male under the age of seventeen, and a female under the age of fourteen years, are incapable of contracting marriage.”6 That law was still in effect even at the time of Martha Louise’s second marriage.7
That’s the kind of legal analysis we need to make in every case: looking at the available resources (often online at Google Books, HathiTrust Digital Library and/or Internet Archive), did the jurisdiction have a statute fixing the minimum age for marriage, or did it follow the common law? And, of course, we need to make sure whatever law we find was the law in effect at the exact time our event took place.
Then we can go on to the factual analysis: could our research subject have been of an age to legally marry at the time in question? Here, could Martha Louise have legally married by the time of her daughter’s birth?
We know Eula was born 24 October 1869.8 That would mean that — to have been legally married to Jasper by the time of the birth — Martha Louise would have had to have been born before October 1855.9
And although our information isn’t entirely consistent, the data points we have tell us that Martha Louise may just have been old enough to squeak into a legal marriage by the time her daughter was born:
• She was recorded as age 6 on the 1860 census of Cherokee County, Alabama, suggesting a birth date between born between June 1, 1853 and May 31, 1854.10
• She was recorded as age 17 on the 1870 Cherokee County census, suggesting she was born between June 1, 1852 and May 31, 1853.11
• She was recorded as age 25 on the 1880 Cherokee County census, suggesting she was born between born between June 1, 1855 and May 31, 1856.12
• She was recorded as age 45 on the 1900 census of Williamson County, Texas, and as born in February 1855.13
• Her obituary in the Frederick (Oklahoma) Enterprise on 16 April 1909 lists her age as 52, suggesting a birth date between 9 April 1856 and 8 April 1857.14
• Her tombstone records her birth year as 1855.15
Look at the law. Add in the facts. And then we can answer the question.
How old did she have to be?
Just old enough…
Cite/link to this post: Judy G. Russell, “About that mama’s age,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 10 May 2022).
SOURCES
- Judy G. Russell, “Mother’s Day 2022,” The Legal Genealogist, posted 8 May 2022 (https://www.legalgenealogist.com/blog : accessed 10 May 2022). ↩
- See FamilySearch Research Wiki (https://www.familysearch.org/learn/wiki/), “Cherokee County, Alabama Genealogy > Record Loss,” rev. 8 Apr 2022. ↩
- 1870 U.S. census, Cherokee County, Alabama, population schedule, Leesburg Post Office, p. 268(A), dwelling 15, family 15, Baird household; digital image, Ancestry.com (https://www.ancestry.com : accessed 10 May 2022); citing National Archive microfilm publication M593, roll 7 ↩
- See William Thomas Martin III and Patricia Thomas Martin, compilers, The Gadsden Times: 1876-1880 (Miami : p.p. 2000), 119. ↩
- William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons 7th ed. (Oxford: Clarendon Press, 1775), 463-464; digital images, HathiTrust Digital Library (https://www.hathitrust.org/ : accessed 10 May 2022) (emphasis in original). ↩
- §1944, Title 5, Chapter I, Article I, in John Ormand, Arthur Bagby and George Goldthwaite, compilers, The Code of Alabama (Montgomery : State Printers, 1852), 375; digital images, Google Books (https://books.google.com/ : accessed 10 May 2022). ↩
- §2672, Title 5, Chapter I, Article I, in Wade Keyes, Fern. M. Wood and John D. Roquemore, compilers, The Code of Alabama 1876 (Montgomery : State Printers, 1877), 641; digital images, HathiTrust Digital Library (https://www.hathitrust.org/ : accessed 10 May 2022). ↩
- See Virginia Department of Health, Death Certificate number 6367, Eula Robertson, 14 March 1954; Division of Vital Records, Richmond. And see 1870 U.S. census, Cherokee County, Alabama, population schedule, Leesburg Post Office, p. 268(A), dwelling/family 15, “Eura L.” Baird, age 6 months; digital image, Ancestry.com (https://www.ancestry.com : accessed 10 May 2022); citing National Archive microfilm publication M593, roll 7. ↩
- To have been legally married by the time of conception, well, subtract another nine months from the birth date, so around January-February 1855. ↩
- 1860 U.S. census, Cherokee County, Alabama, population schedule, p. 315 (stamped), dwelling 829, family 829, Margaret “Shoe” household; digital image, Ancestry.com (https://www.ancestry.com : accessed 10 May 2022); citing National Archive microfilm publication M653, roll 5. ↩
- 1870 U.S. census, Cherokee Co., Ala., pop. sched., Leesburg P.O., p. 268(A), dwell./fam. 15, Martha Baird. ↩
- 1880 U.S. census, Cherokee County, Alabama, population schedule, Township 11, Range 8, enumeration district (ED) 27, p. 387(A) (stamped), dwelling/family 5, Martha Livingston; digital image, Ancestry.com (https://www.ancestry.com : accessed 10 May 2022); citing National Archive microfilm publication T9, roll 6. ↩
- 1900 U.S. census, Williamson County, Texas, population schedule, Precinct 2, enumeration district (ED) 125, p. 117B (stamped), dwelling 143, family 154, Martha Livingston; digital image, Ancestry.com (https://www.ancestry.com : accessed 10 May 2022); citing National Archive microfilm publication T623, roll 1679. ↩
- “Death of Mrs. Livingston,” The Frederick (Okla.) Enterprise, 16 Apr 1909, p. 8, col. 1; digital images, Newspapers.com (https://www.newspapers.com/ : accessed 10 May 2022). ↩
- Martha Livingston marker, Frederick City Cemetery, Frederick, Oklahoma; photographed by the author 25 April 2003. ↩
My grandmother Mythia was born in Kentucky. A relative who was a professor and met and interviewed people and did research in Virginia and Kentucky determined my grandmother was born in 1878. He researched in the 60’s and 70’s going through many records. She is not listed on the 1880 census but there is a Rebecca listed as being 5 years old. In the 1920 census she is listed as Rebecca and then in another record I found her name as being Mythia Rebecca. The only name my Mom told us her mother had was Mythia. In the 1900 census she is 21 years old. A couple of others family trees have her birth as 1876. She did not have a gravestone when she died and her surviving 4 children around 1960 went together to put up a headstone for their parents. They listed her birth year as 1882. My Mom told me she was 58 when she died in 1940. So her age varies by as much as 6 years. In the 1920 census she is listed as being 40. I have seen 17 year old women listed as spinsters starting in 1850.
Some of my 4th cousins have been thrown by that. It was legal to marry at 12 in some jurisdictions in Australia too, at one time. And one of their ancestors did, but she gave her age for the record as 16. Her descendants who have just gone by documents have been looking for the wrong ship and the wrong parents back home. Actually the clues are all there on the original marriage document, because her father’s name and her sibling as witness exclude the other possibilities. But the online extracts don’t have that detail. I went back to the original church register and it was there.
DNA has convinced a few doubters also: more cousins on that branch have tested their DNA than any other, so maybe they needed clarity too. The net result is that this branch now contains my best defined cousins. Also some wrong trees.
How does one tell someone that is what went on?
These days that is so alien that some people just can’t believe it happened.