Georgia in the early 19th century
Reader Jennifer Kraus is on the hunt for clues.
“I’ve been working on finding different ways to estimate DOBs for my ancestors in the absence of a record (e.g., bible, or church) that lists an actual date,” she writes. “I’ve got an ancestor who brought his son along with him to witness a deed in Pulaski Co GA in 1817, and I’m wondering what the minimum age was to witness a deed at that time.”
So… we’re looking for the law in Georgia in 1817 governing the age at which a person could witness a deed.
Where do we start?
The Legal Genealogist has a system for this kind of question, and it’s based on the fact that the law in America is hierarchical — some types of laws simply win out over other types of laws:
• A chartering document — a colonial charter or a state constitution — is always going to beat out anything else in the laws of any state. That’s explicit in the United States Constitution (“This Constitution, … shall be the supreme Law of the Land”1 and the state courts — including the Georgia courts2 — have made it clear that the same rule applies in the states. So if the answer is in the chartering document, we’re done. Nothing can overrule the chartering document.
• If the answer isn’t in the chartering document, we look to the statutes. These will be the express rules of the jurisdiction, followed — as long as they’re consistent with the chartering document — and outranking any other legal rule.3]
• If the answer isn’t in the statutes, then in Georgia, as in every American state except Louisiana,4 we look to the principles of the common law.5
So… where does that leave Jennifer? There’s nothing in the Georgia Constitution of 1798 that talks about how old anybody had to be to do anything except to vote and to hold some public offices.6
And there’s nothing in the Georgia statutes of the day that talks about the age to witness documents like deeds or wills, either.7
Which means we look to the common law.
And that tells us, as to a boy, that “at fourteen is at years of discretion”8 — and that’s pretty much going to be the dividing line. In fact, Georgia has adopted that dividing line today by statute when it comes to witnesses to wills.9
So it’s reasonable to conclude that a boy brought along as a witness to a deed in Georgia at that time would have been at least 14 years old.
Does that mean he absolutely was at least 14? No, of course not. Not everybody knew what the law was, and not everybody who knew what the law was followed the law. But as genealogists we’re entitled — in the absence of evidence to the contrary — to consider that “people generally observed the legal, moral, and social standards of their time and place.”10
That’s the clue we have to this young man’s age.
At least in Georgia in the early 19th century.
Cite/link to this post: Judy G. Russell, “The age to witness,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 23 Aug 2023).
SOURCES
- U.S. Constitution, Article VI, Clause 2; U.S. National Archives, Archives.gov (https://www.archives.gov/: accessed 22 Aug 2023). ↩
- See Grimball v. Ross, 1 Charlton Rep. 175 (Ga. Superior Ct. 1808). ↩
- See generally Spitzinger v. State, 340 Md. 114, 129 (1995); Boyer v. Backus, 282 Mich. 701, 704 (1937). ↩
- Louisiana isn’t a common law jurisdiction. It follows the Civil Law instead. See Lauren Cheramie, “What is the Napoleonic Code and how does it affect Louisiana’s legal system?,” The Advocate, posted 4 Dec 2022 (https://www.theadvocate.com/ : accessed 23 Aug 2023). ↩
- In Georgia, see Tucker v. Adams, 14 Ga. 548, 569-570 (1854). ↩
- Georgia Constitution of 1798, in Francis Newton Thorpe, editor, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws …. (Washington, D.C. : Government Printing Office, 1909), II : 791; digital images, Google Books (https://books.google.com/ : accessed 23 Aug 2023). ↩
- Augustin Smith Clayton, editor, Compilation of the Laws of … Georgia (Augusta: Adams & Duygkinck, 1813). ↩
- William Blackstone, Commentaries on the Laws of England, Book I: 451 (Oxford, England: Clarendon Press, 1765); digital images, Google Books (https://books.google.com/ : accessed 23 Aug 2023). ↩
- See Georgia Code § 53-4-22. ↩
- “Standard 45: Assumptions,” Board for Certification of Genealogists, Genealogy Standards, 2d ed. rev. (Nashville: Ancestry, 2021), 26. ↩
Makes me think! I have an ancestor in revolutionary NC who received money for service about 1784. Later that year he married. But I have not been able to find any proof/evidence of his residence in the county, Wilkes, during the revolution itself. I figure he turned 21 in 1784 and then married. I am now planning to look at deeds & such to see if he acted as a witness on some document. I looked at the NC Constitution of 1776 and there was no mention of age other than for voting or holding certain offices. Not sure about statutes yet but I am thinking common law was probably still the guide. Thank you for blogging on this topic!