Primary Law: an introduction to a resource series
One comment heard around The Legal Genealogist each and every day is this: finding sources to help explain the law as it was at a particular time in a particular place isn’t easy. For every major political subdivision in the United States — colony, territory or state — there may be a colonial charter, a territorial mandate, a constitution, territorial and state statutes, court cases from all kinds of courts with all kinds of names, just to name a few possibilities.
Trust me on this one: there’s nothing I’d like better than to post one link to one place where we’d all be able to look up information on exactly where we could go to find what the law was at that place and at that time. At the moment, however, there isn’t one central place for that information.
So let’s create one.
Over the next weeks and months and, yes, probably even years, let’s see if we can’t compile a good solid resource database of the best of the available sources for what’s called primary law, where those primary law sources can be found, both online and in physical repositories, and how best to use those repositories.
Before we go on, let’s settle on a definition of primary law, since you won’t find the term in the older legal dictionaries I’m so fond of citing.
Primary law — also referred to by the law geeks as primary authority — is generally considered to be “(l)aw, in various forms, that a court must follow in deciding a case … mainly … statutes, decisions by the U.S. Supreme Court, and all judicial decisions handed down by the same court or a higher court within the same judicial system.”1
A more complete definition is that it’s “a term used in legal research to refer to statements of law that are binding upon the courts, government, and individuals. It may consist of the verbatim text of statutes, regulations, court orders, and court decisions. Primary authority may be generated by legislatures, courts, and administrative agencies. It is distinguished from secondary authority, such as commentary, that doesn’t have a legally binding effect.”2
But both of those leave out the most important primary law sources of all, the ones that we’re going to start with. For each of the 50 U.S. states, we’re going to proceed in rank order. That means that we’ll begin with the documents that provided — and today provide — the structure of government. In the 13 original colonies, that will probably mean one or more colonial charters, followed by one or more state constitutions. In the states created later, it may mean some document setting up a territorial government, followed by one or more state constitutions.
After we’ve thoroughly catalogued these most basic and powerful documents of government, we’ll move on to the day-to-day laws passed by the state governments: the statutes. We look at those second because, when they conflict with a charter or constitution, the charter or constitution is what governs. Think of it as a pecking order.
And then when we’re done with the statutes, we’ll move on to one other critical type of primary law source that we as genealogists often need to find, understand and use: the reported opinions and decisions of the courts.
Now we’re not going to do this in any particular order (sorry, Alabama, you’re not going to come first here!) and it’ll be an occasional cataloguing that may be as often as once a week at times and less frequently when other topics — and particularly reader questions — are backlogged the way they are now.
But by the time we’re through, let’s see if, working together, we can’t come up with a comprehensive answer to the common question: what was the law then and there? If you’d like to help, please send your favorite primary law resources for your favorite states — online or brick and mortar — by email.3
And just to be contrary, let’s start with Wyoming… you’d think it’d be easy, right? Not even admitted as a state until 1890. But at one time or another, parts of Wyoming were governed by no fewer than seven different territorial governments, and a bunch of different countries.
Stay tuned…
SOURCES
- The Free Dictionary, “primary authority” (http://legal-dictionary.thefreedictionary.com : accessed 24 Jun 2012). ↩
- Definitions, USLegal.com, “Primary Authority Law & Legal Definition” (http://definitions.uslegal.com : accessed 24 Jun 2012). ↩
- If the link doesn’t work, there’s an Ask TLG contact link at the top of every page. ↩
Looking forward to this series. And the point when I can contribute.
And looking forward to your contributions!
When you are about ready for Florida please let me know. Believe it or not part of the common law of Florida has been statutorily defined as the common law of England, as it existed on July 4, 1776. Finding out what that law was led to a major effort by the Attorney General of Florida in 1941.
It was very common for the English common law to be incorporated by reference into early state constitutions, Richard. But I’d love to see what you can point us all to on that Florida project. Sounds like it must have been a legal historian’s dream — and probably the Attorney General’s nightmare!
Here is the link to Florida Statute 2.01, which adopted the English common law: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0002/Sections/0002.01.html.
The interesting thing is that Florida was owned by Spain for about 400 years, except for a brief 20 year period in the middle. Florida got its common law from England, not Spain, but the old Spanish land grants have been upheld all the way to the Supreme Court of the US.
The Florida Legislature used to meet every two years instead of annually, and the consolidated Florida Statutes were published at the end of each legislative session. In late 1940 and early 1941 the AG had little to do so he had his staff research the question of what, exactly, was the common law of England in 1776. The result was Volume 3 to the Florida Statutes of 1941.
The old English laws are still referenced sometimes in Florida appellate cases, usually involving strange and untested issues of property law.
Hope this helps. If I can provide anything else let me know.
LOVE it, thank you!!
Here is more on the subject of Florida. The URL for a searchable collection of the territorial laws of Florida is: http://ufdc.ufl.edu/?s=law&n=palmm
More goodies as I find them.
Dick
Keep ’em coming, Dick!
Judy,
I never thought it existed, but here is the URL for the “famous” volume 3 of the 1941 edition of the Florida Statutes: http://www.law.fsu.edu/library/databases/pdf/1941statutoryrevisions.pdf.
Warning – it is more than 200 pages long.
Dick
Terrific! Thanks!
I wrote an article about researching historic Maryland laws two years ago: http://www.examiner.com/article/researching-maryland-laws.
Debbie Parker Wayne has also compiled a good list of resources for studying historic laws: http://debbiewayne.com/presentations/statutes.php
Thanks, Michael!!
Judy:
Most US law libraries maintain links to websites with these materials. Here is one:
http://www.law.northwestern.edu/library/research/find/primarylaw/
In addition, Yale law library maintains a list of colonial and other legal materials:
The Avalon Project: http://avalon.law.yale.edu/
And the various Legal Information Institutes have similar lists for other countries. See this article at GlobalLex:
http://www.nyulawglobal.org/globalex/Legal_Information_Institutes.htm
Regards,
Steven C. Perkins, J.D., M.L.L.
http://stevencperkins.com/genealogy.html
Thanks for those links.