Context is Key: Know the Law!

At the time our ancestors lived, there were laws that came into being and which affected the way our ancestors lived and the documents they created.  In last week’s post, we learned how important it is to understand the collection our record is in. It is perhaps even more important to understand the laws at the time the record was created. This is particularly important in the case of probate, deed, marriage and other court records. The way a will disperses property is influenced by the laws in effect at the time. These laws may be local, state and national. Just as our lives are subject to the laws of today, our ancestors lived and created records influenced by the laws of their day.

An example: Coverture and the status of women as guardians

In the early colonies and even later in the United States, women had very few, if any, rights. Under the doctrine known as coverture, a married woman could not own property, enter into a contract or even claim legal guardianship of her children should her husband die. All her rights were subsumed under her husband’s ¹. It’s important to understand this law and how it affected your female ancestors. Should you come across children in an Orphan’s Court document, with a male guardian being appointed, you would be incorrect in assuming their mother had died and that they were literally orphans. I noticed this recently on a mailing list I participate in. The poster was assuming their widowed female ancestor must have died as the guardianship document, recorded in the local Orphan’s Court, showed the five young children being assigned an adult male guardian. Widowed women held no rights, not even to be guardians of their biological children. Usually there was an inheritance in play, land or other goods, and with women having no rights to make contracts or own property, she was judged unable to properly look after her children’s affairs. A male guardian was appointed to do so. Her children were not taken from her and she still cared for them physically but anything to do with their inherited property was a matter only for the male guardian.

An example: Primogeniture or the right of the eldest son to inherit

Estate law in Colonial America (specifically the southern colonies: the Province of Maryland, the Colony of Virginia, the Provinces of North and South Carolina, and the Province of Georgia) gave the right of inheritance to the eldest son of a couple who had died intestate (without a will). This was referred to as primogeniture and applied only to land and not personal property left by the deceased. Where the deceased man had several sons, the oldest would inherit the entire estate ². If a man had only daughters, all would inherit equal shares of the land. Should the oldest son be deceased but have a living son of his own, that son would inherit first, followed by his own siblings, in birth order if males, or all equally if females. There were complex rules of descent which had to be followed in every inheritance case. Can you see the benefit of knowing this information when you uncover an estate document from the 1700s? One benefit would be the ability to determine the birth order of children based on the order of inheritance in the document.  One caveat – the law changed often and varied by state. Be sure you understand the law at the time of the document’s creation, in the particular colony or state you’re working in.

These are only two examples of areas where laws greatly affect the way a document was created by our ancestors. There are many, many more.

Where to find information on archaic legal words?

In learning about archaic laws, you will no doubt come across unfamiliar legal words which we no longer use today.  The go to book for genealogist’s is Black’s Law Dictionary. First published in 1891 by Henry Campbell Black, this is the best place to look up those unfamiliar words. It is still being published today but it’s best to stick with the 1891 version. There are a few places online to find the 1891 version:

• archive.org
• hathitrust.org

Where to find information on the laws of British America?

William Blackstone’s Commentaries on the Laws of England can be found online at:

• archive.org

This volume, the first of four, was published in 1765, and is a commentary on the common laws of England. Early colonies followed English common law so this book is helpful in understanding the laws around some of the early records we may come across.

Good genealogists place their ancestors into their historical, geographical, social and cultural contexts. This involves understanding how the laws of the time affected our ancestors and the documents they created.