This material is provided with the permission of the author, Mr. John P. Alcock. If you are a serious researcher who has an interest in Virginia and early Kentucky records you should find it extremely interesting and useful.
"What Genealogists should know about 18th Century Virginia Law"
By Mr. John P. Alcock
President, Friends of the Virginia State Archives
Presented November 17, 1999
At the Library of Virginia
Sponsored by the Friends of the Virginia State Archives
Welcome to the first of a series of bimonthly lunch hour
talks at the Library sponsored by the Friends of the Virginia State
Archives. I am the current president of the Friends. We would be
greatly pleased to have any of you who are not members join us. Our
annual dues are only fifteen dollars. Essentially all our income goes
to support the Archives. Our aim at present is to finish purchasing
films of the records of the pre-1863 records of the western counties
that became West Virginia. .
My topic is What Genealogists should know about 18th Century Virginia
Law. I think archivists and historians can benefit from such knowledge
also. I have two main reasons for feeling that anyone seriously
interested in either family history or history in general needs to know
the rudiments of the laws that were current in the period and place he
or she is studying. First, if you're working on solving a puzzle about
your family line, your progress is without a doubt going to be faster if
you understand the law that created the record books you're hunting in
and know what a particular record means or doesn't mean. Second and
much more important in my mind any genealogist or historian worth his
salt wants to know how people lived and coped with the conditions of
their times. It seems to me that 18th century folk were closer to the
law than we are. They petitioned the county court. They petitioned the
General Assembly. They got fined for not attending church. The court
told them which road they were required to repair. They got credit for
planting this years crop from the local merchant. He supplied the
merchandise they could not make themselves. He also bought their tobacco
and other cash crops. If they had a couple of bad harvests, was likely
to call their overdue note cosigned by a relative or friend, or he may
have assigned it to a third party, who called it. Besides such business
with the law, Court Days were social and entertainment occasions for the
men of the family. When they congregated in the courthouse village on
those monthly occasions, prices for their lodging and the liquor they
drank were fixed by law. The tavern keeper was required to post them
above the bar.
Our limited time does not permit me to go into all the
vagaries of 18th century law. So I plan to talk about the laws that
generated records of prime importance in family and social history
research. I'll start with tax laws and proceed with those that
regulated births, marriages, and deaths. My handouts are not about
those areas of law, but rather a potpourri of others that I hope you'll
find interesting and perhaps useful.
The old saw about nothing in life being certain but death and
taxes applied about as well in late 18th century Virginia as it does
now. Nowadays if you're poor enough, meaning very poor, you can escape
having to pay an income tax, but the sales tax will catch you. Back
then until 1787 if you were poor enough and old enough, usually meaning
quite poor and something over 60 or disabled, you might be exempted from
the county levy and thus not taxed at all. However, beginning in 1787,
you might be levy free as it was called, but if you owned just one cow
or one
horse, you'd have to pay a tax on it. This burden on your ancestor is
a boon to you, if you're looking for a hard-to-find several greats
grandfather. Fully a third of the males over 16 who lived in Fauquier
County in the last four decades of the 1700's left no other official
record of their existence than presence on the county lists of
tithables, that is persons subject to a tithe, later termed poll tax.
( I hurry to say poll meant head. It had nothing to do with voting. In
fact two thirds of the men who paid it were not freeholders with assets
of at least 50 pounds sterling and so could neither vote nor serve on
juries.).
In 1705 a revised tax law was passed. It's stated purpose was
to defray public, county, and parish expenses, where public referred to
the Government of the Colony. It established that all male persons and
all negro, mulatto, and Indian women 16 and up were tithable. White
women were not tithable, but they occasionally appeared on the tax lists
if as widows or spinsters they were responsible for paying the tithes
of sons, slaves, or employees. The county courts and the parish vestry
could excuse persons for those charitable reasons I mentioned. They
could also relieve masters of paying tithes on elderly or infirm slaves
unable to work. The Governor and all his household, professors at
William and Mary, and ministers were exempt. A revision in 1748 freed
mariners and constables from the tax, and one in 1779 excused soldiers
on active duty in the Continental Line or in the Illinois and the
Artillery state regiments.
From 1705 until 1779 each county was divided into precincts
and a justice of the county court appointed for each one to compile the
list of tithables. He took sworn statements from residents and the
agents of non-residents households . The county took the biggest part
of the tithe. It's share was calculated by adding up the expenses
each year and dividing the total by the number of tithables. The
process for the expenses of the parish was the same and that tithe had
to be paid no matter what denomination the person belonged to. Care of
the poor was the major expense of the parish. The total tithe including
the Colony's share fixed by law varied from county to county and year to
year. I think it averaged about the 30 pounds of tobacco allowed a
witness for a day's attendance at court. A person's total tax was the
tithe times the number of tithables for whom he was responsible plus the
land taxes on his real estate holdings, if any.
In 1786 the General Assembly rewrote the law incorporating
several changes made after 1779, and its essentials remained in force
through the first half of the 19th century. County
justices, who had served without compensation were replaced by paid
commissioners for each district. The number of districts per county
ranged from one to three depending on its size. Each commissioner
beginning on March 10 was to visit every person subject to taxation
within his district to receive an affidavit on his taxable persons and
property. The commissioner was to turn in to the clerk of courts by May
31 an alphabetical list showing the date each statement had been
received, the person chargeable, the names of all free males subject to
tax, the number or quantity of every "species"of taxable property, and
distinguishing the persons subject only to county and parish levies.
This last specification was needed because four years earlier the State
had stopped taxing under age whites and upped the age for taxing slaves
to 16, while all the counties that I have studied continued with the
old definitions for their levies. The law specified a form that showed
the names of all free male tithes, the number of white males above 15
and under 21, the number of blacks above16, and the number below 16 in
each household. Only the 1787 return. showed which white tithables were
under 21, but almost always in later years you can figure out who they
are. It was also the first year that some personal property other than
slaves was taxed. These new "species " were horses, cattle, carriage
wheels, ordinary licenses, billiard tables, number of stud horses and
the rate of covering per season, and finally practicing physicians,
apothecaries, and surgeons. .
.In my opinion anyone researching a male ancestor who lived in
Virginia between 1782 and 1809 should begin with these tithable lists.
Unfortunately before 1782 most of them have been lost. After 1809 I'd
go to the censuses first and these lists next. As I mentioned
previously, many
names on them can't be found anywhere else in official records. Often
they allow you to determine or confirm relationships among members of a
family. They help in distinguishing between men of the same name
because they live in different districts or own different numbers of
slaves or by notes the justice or commissioner made to help the sheriff
in collecting the taxes, such as those for various John Smiths in
Fauquier County: son of Alexander, son of Admiral, carpenter,
shoemaker, tavernkeeper, Center Run, Goose Creek I'm sure you know
that in that epoch Sr. and Jr, meant only older and younger, not
necessarily father and son..
I've discussed tithes and personal property taxes and
said nothing about land taxes, because the former affected almost
everyone whereas the latter afflicted, if you'll forgive the rhetoric,
only a small minority. Most information obtainable from land taxes is
better gotten from deed and will books. Almost every one on the land
tax list is also on the tithables list, the only exception being
non-resident owners who leased land rather than working it for their
own benefit as "quarters". A quarter was a tract on which the owner
did not live, but had it worked by an overseer, usually on shares.
Now lets move on. According to a law first passed in
1661 records of births and/or christenings and deaths and/or burials
were officially kept by parish churches until 1782 when the Anglican
Church was disestablished. One of the parents of every child born free
and the master, owner, or overseer of every newborn slave had to report
to the minister within 20 days. The minister had to keep a register with
names of the baby and its parents or if a slave its owner and dates of
birth and christening. Similar regulations applied to deaths and
burials.
After Disestablishment most churches maintained their own
birth and death records although there was no legal requirement for
doing so. Sadly, most 18th century church records have been lost.
Official records of vital statistics were not kept in Virginia until
1853.
Marriage records for the era are somewhat more available.
Besides the surviving church records there are marriage bonds and
marriage registers. The bonds were required for obtaining a marriage
license from the county clerk. By them the groom and his security
guaranteed that no legal block to the proposed marriage existed. The
bond was given in the county of the bride's residence.
At this point I wish to state unequivocally that whenever and wherever
in 18th century Virginia there was a legal requirement that a person be
of age, that is an adult, he or she must have reached his 21st
birthday. This was the requirement for persons to sell real estate, to
sue in one's own name in a court of law, to sign a bond or promissory
note, and to marry for the first time. If either of the parties to be
married was not of age, the consent of a parent or guardian was
necessary. It was to be in writing before two witnesses, unless it was
sworn to before the clerk of the county court. After 1748 the law
specified father. From then on you know the father was dead, if a woman
granted her consent. If there was no written consent, do not assume that
the bride was of age. Her father may very well have accompanied the
groom to the courthouse, given his consent orally, and then signed the
bond as security. I said bride because it was rare for a groom in that
era to be underage. Only 6 grooms out of 1800 getting marriage
licenses needed a consent in Fauquier in the last 40 years of the
century. I estimate about 500 brides received a written consent in that
period. If a child between the ages of 12 and 16 was married without
her father's consent, the 1705 law stated she would lose her share of
any inheritance to her next of kin. Note that with parental consent, a
12 year-old could be married.
Servants regardless of age needed the consent of their master
to marry. It couldn't have been given very often. At least I've never
come across one for either an indentured servant or a slave. I don't
know of any other legal prohibition of marriage between slaves. But a
marriage between a white person and a negro, mulatto, or Indian was
prohibited on pain of banishment from the colony within three months.
I've heard of genealogists who when they were unable to find a marriage
bond for an ancestral couple, worried that the pair had lived in sin all
their married lives. They were needlessly upset. People puzzled by why
no marriage bond existed for some of their Virginia ancestors should
know that an alternative procedure was available, namely the publishing
of banns three times in the church nearest to where the bride and groom
lived, or if they lived in different parishes in both churches. In 1705
the fees fixed for marrying by the license route totaled 45 shillings or
450 pounds of tobacco but it cost only 6 shillings 6 pence via the
banns. This differential was maintained unchanged until 1780 when the
runaway inflation of the time the government's share of the cost of a
license went from 20 shillings (i.e 1 pound) to 10 pounds . From 1773
through 1777 only 47 marriage bonds are found in Fauquier County. Since
the bonds for 1776 have been lost; that comes out to about 12 marriages
per year. I calculate that at least 50 marriages must have taken place
annually in those years.
The essentials of that 1705 law governing marriage did not change until
1780, when ministers of other denominations than the still Established
Anglican one could be certified by the county court to perform the
ceremony. (Disestablishment took place in 1782.) Each minister and the
clerk of a Quaker Meeting was to submit a signed marriage certificate to
the clerk of courts within three months of the wedding and provide a
quarterly list of the marriages he had conducted. The clerk was to
maintain a marriage book compiled from those lists.
No 18th century law allowed a justice of the peace or
other civil authority to carry out marriages. Neither was there a law
on divorce, legal separation, nor desertion. I know of only three
legal separations in 40 years in Fauquier. In one where the wife was a
niece of George Mason of Bill of rights fame, her father arranged with
the husband for a deed of trust setting aside one half of his land for
the benefit of wife and children. In another involving a middle class
couple the husband settled a chancery suit by a deed of trust reserving
a third of his land for her benefit for her lifetime or until his
treatment of her quote is humane and husbandly. A wife could not sue
her husband directly, but only by her next friend. Women
who had an interracial illegitimate child were severely punished. A
free woman
was fined 16 pounds sterling and if she was unable to pay she was sold
into servitude for five years. If she was a servant after her indenture
time was completed, she was sold for another five year term. In either
case the child was bound out until the age of 31.
Such children were not the only ones to be taken from their mothers and
bound to serve strangers. A child whose father had died was an orphan
in that era, even if her mother was living. The father in his will
could name a guardian or guardians for his infant children (infant was
the legal term for under age) to manage their estates and arrange for
their education. If he did not do so or if he died intestate, the court
could name the guardian unless the child was 14 or older, in which case
he or she could choose one. However, quote where the estate of the
orphan be so small value that no person will educate and maintain him
for the profits thereof, such orphan shall be bound apprentice, every
male to some tradesman, merchant, mariner, or other person approved by
the court until the age of 21. End quote. Females were similarly bound
but to age 18. The master or mistress of every servant was to provide
quote diet, clothes, lodgings and accommodations and teach him to read
and write and at the expiration of his apprenticeship to give him the
same allowance appointed for servants of indenture end quote.
The law concerning wills did not change in any basic way
during the century. It provided that every person over 21 except
married women could dispose of their lands by a will. To do so for
chattels, i.e property other than real estate, the minimum age was 18.
If the complete will was written by the testator himself, only one
witness subscribing in his presence was required. If not two were
needed. The rights of a posthumous child not provided for in the will
were protected. He or she was guaranteed the same share of the estate
gotten if the father had died intestate, and if there was no other
child, the will became invalid.
The will could not prejudice the widow's dower. If she
felt that it's provisions were less beneficial than her dower rights,
she had a year to renounce the will, either by appearing in person
before the court or by a deed. Once renounced she couldn't change her
mind. Dower gave the woman a life interest in one/third of the real
property and full ownership of a third of the chattels, one half if
there had been no child of the marriage.
The testator usually named the executor he wished to
manage his estate for the benefit of his heirs. Executors and guardians
had to subscribe to bonds, in practice to the amount of 50 % more than
the appraised value of the estates they were to manage. I know of one
burned county, Prince William, where these fiduciary bonds have survived
although the wills or orders causing them to be signed have
disappeared. Other provisos included that a legatee could not be a
witness. If he was, the will was invalidated with respect to his part
in it. That condition allowed me to prove there were two Moses Lintons
in Stafford Co in 1726. A will named one as a legatee and one was a
witness. They could not have been the same person. The court could
compel a person who knew of the existence of a will to produce it.
Potential heirs wishing to challenge the will had seven years to
initiate a chancery suit to do so. The 1786 revision decreed that all
land held in fee tail meaning that it could be transferred only to
certain lineal descendants of the original grantee according to the
grantor's instructions (commonly given by the familiar clause of "and
the heirs of his or her body") was automatically converted to fee simple
as of Oct. 7, 1776.
One of the provisions required that when the will was
recorded, the original was to be retained by the court and held there
open to public inspection forever. In Fauquier County we have seen a
couple of 200 plus year old wills of Mariana Alcock's ancestors but
have not asked to handle them ourselves or to have copies made of them
because of their fragility.
Soon after genealogical puzzle-solving became one of my
hobbies, I ran into the term nuncupative will. At the time I had to go
to an unabridged dictionary to find that it was simply legalese for
oral. Such a will could be allowed if told to the person that put it
in writing during the last illness of the testator or if two witnesses
proved that the assistance of the scribe had been requested by him.
The writing had to be presented within x days of the death. I don't
know how much that bit of knowledge will help any of you, but in our
case the 1810 will in Fauquier was of a dying man from Kent Co.
Maryland. He was visiting a sister and made a bequest to another sister
who lived in Loudoun That sister was an ancestor of Mariana Alcock.
So we got her maiden name and with it the reason why her granddaughter,
also Mariana's ancestor, had named the farm that adjoins ours
Glanville. The moral may not be never say die.
Back to business. If there was no will, the court would appoint an
administrator giving
preference to the widow and if she refused to serve, then to the next
nearest adult heiranother in the order of inheritance. This order was
first to children or their descendents, second if no children, to the
father, third to the mother, brothers and sisters, fourth divided
equally between paternal and maternal sides starting with grandfathers,
next grandmothers uncles and aunts, etc. . If you need to go further to
determine who could share in an estate if there was no will, see
Hennings October 1785. I presume that the same order rules today,
except that the discrimination against women has been removed.
In practice as far as the appointment of an
administrator goes, if there was no close relative who would serve,
the court could appoint a creditor who had applied for the position or
anyone else at its discretion. However if a will was produced later, it
took preference.
You will sometimes see administrators with the will annexed. This was
done when there was a flaw in the will such as the failure to have
qualified witnesses prove it.
At the time of granting probate or appointing an administrator, the
court named three appraisers who were to obtain an inventory of the
estates personal property and appraise its value. This appraisement was
the base point for estate accounts and for suits against or by the
estate. The appraisers were almost always neighbors of the deceased.
The executor or administrator was required to sell all perishable
goods not necessary for the sustenance of the family. Proceeds were
used to pay off creditors. If that did not cover the debts of the
estate, then other personal property was sold leaving slaves to the
last. No distribution of property could be made to the heirs for at
least nine months.
If you are unable to find a will, or an inventory, or the order for the
appointment of an administrator for a person who has disappeared from
the tax lists, you may be mistaken if you think he must have moved away
and died elsewhere. The law did not require that the county
clerk be informed of a death. So if the deceased was debt-free and had
no real estate, the family could agree among themselves on the
disposition of his assets. Even if he had received an advance on the
year's crop, the family could arrange with the creditor to renew the
loan to one of them.
That brings me to the end of what I wanted to tell you about taxes,
births, marriages, deaths, and passing the results of a life's work on
to the next generation. I want to mention in closing two laws passed
in 1748 that may give you a little flavor of how people, especially
men, amused themselves at the time.
" An Act for preventing excessive and deceitful gaming" All
promises, agreements notes, bills, bonds, judgements, mortgages, or
other securities where all or any part shall be for payment of gains
betted(sic) at cards, dice tables, tennis, bowls, or any other game,
horse racing, cock-fighting, or any other sport or pleasure are utterly
void''. End quote. Furthermore, a loser of more than 40 shillings
could recover his losses paid to the winner., You may find a
chancery suit by an ancestor attempting to reclaim his losses. If you
do, I'll bet you the equivalent of 20 shillings that he says the winners
plied him with strong liquors until he was too inebriated to know what
he was doing. In one of three such cases I know about, Samuel Turley
complained that Benjamin Grayson and his younger brother, William, who
later became one of the first two US Senators from Virginia, did exactly
that to him. Turley won. .
"An act to prevent gaming at ordinaries, race fields,
or any other public place at any game except billiards, back gammon,
chess, or draughts. The last is still the English name for checkers.
Participants were fined five pounds each and the ordinary owner was also
fined five pounds. Gambling on the Sabbath was forbidden in all
places. Special petit juries were called in April and October of each
year to try such misdemeanors. Look for your ancestors in the court
order books for those months.
Now I'll stop talking and listen to your comments or
take your questions.
Handout from talk presented by Mr. John P. Alcock,
President, Friends of the Virginia State Archives
"What Genealogists should know about 18th Century Virginia Law"
November 17, 1999, Library of Virginia
Sponsored by the Friends of the Virginia State Archives
-------------
Definitions of Legal Terms used in the 18th Century
Abate. An order to suspend or terminate a law-suit usually because of
the death of one of the parties,
Benefit of clergy. Criminal cases where the punishment involved the
"loss of life or member"except for trials of slaves were heard by the
General Court. Because its records have been lost, "benefit of clergy"
will be found only in county courts of oyer and terminer (q.v.). The
formality was invoked to commute a death sentence received for one of
the many relatively minor crimes that legally warranted it. The term
derived from the time in England when any capital sentence could be
appealed to the ecclesiastical courts. Its use was abolished in 1789.
Bequest - devise. Personal property is bequeathed; real property is
devised.
Capius, alias capius, pluries capius. Orders for a sheriff to arrest,
confiscate, attach, or otherwise take something from a party to a case.
Alias capius is a repeat order when the first one could not be carried
out. Pluries capius is a third try.
Chancery - equity. Chancery court heard appeals to equity from
decisions that had been based on common law, the unwritten English law
based on custom and precedent. Equity was the legal system aimed at
remedying the inflexibility of the common law to provide a fair and
equitable resolution of a dispute. However, when Dickens's Mr. Bumble
said "The law is a ass", he was referring to a case in chancery. Many
chancery suits were about excuses for failure to settle debts, but
others were between relatives fighting over the division of property
making them a prime source of genealogical data. Common law and equity
differed from statutory law enacted by a legislature.
Chattel. Movable personal property as opposed to land, buildings, and
things attached to them.
Coram nobis. A writ to correct a mistake of the court.
Court of oyer and terminer. A special county court, the members of
which held appointments separate from those of justices of the peace,
although most served on both courts. Literally meaning to hear and
determine, it was the court that had jurisdiction over trials of slaves
for capital offenses.
Facias - fiere facias - scire facias. Facias was used for an order of
the court to an officer of it to "cause" something . Fiere facias meant
cause it to be done. Scire facias meant cause him to know.
Feasance. Doing an act as a condition or duty. Meanings of
malfeasance, misfeasance, and nonfeasance are obvious.
Fee simple - fee tail. Land held in fee simple can be sold or devised
absolutely and without any limitation to any particular class of heirs.
Land in fee tail had been entailed and could only be inherited by a
special class of heirs, those denominated some where along the path of
succession by an owner in fee simple who elected to do so for a
particular heir usually by the clause in his will "and the heirs of his
(or her) body". Fee tail was eliminated and converted into fee simple
in Virginia as of October 7, 1776.
Feoff. To give possession of land.
Freehold. An estate in land held in fee simple, fee tail, or for life.
Grant - patent. A patent is a special kind of a grant, namely the
granting to some one of public land by a government body. In the
Proprietary of the Northern Neck the terms were used interchangeably for
land granted by Thomas, Lord Fairfax and his predecessors as
Proprietors.
Guardian ad litem. A court-appointed temporary guardian to act for a
minor involved in a law-suit, only for that specific case.
Imparlance. An extension of time granted to a party to a law-suit to
plead the case.
In-law. Not necessarily a person related by marriage. Father-in-law
could have its present meaning or could mean step-father. Son-in-law
and daughter-in-law also had two uses.
Infant. A minor, any one under the age of 21.
Indenture. Any deed, written contact, or sealed agreement. The term
comes from a deed or agreement executed in two or more copies with their
edges correspondingly indented for identification.
Moiety. One half.
Next friend. A person authorized to represent some one, such as a
minor, married woman, or mental incompetent, disqualified to act on his
own behalf in a court of law.
Quitrent. Originally a rent paid by a freeholder to a feudal lord in
lieu of services that might otherwise have been due him. In the
Proprietary of the Northern Neck it was paid to the Proprietor. In the
remainder of Colonial Virginia it was paid to the King, i.e. the
government, and in essence was a tax.
Replevy/replevin. The common law action for the recovery of goods or
chattels wrongfully taken or detained.
Seisin/seizin. The right to possession of estates of freehold,
sometimes delivered by a common law ceremony in which the seller handed
the buyer a twig or other item from the land.
Some provisions of 18th Century Virginia Laws
Powers of county courts (hustings courts in towns like Williamsburg and
Fredericksburg).
Hear all civil suits brought before it. (Suits involving large sums of
money or other important matters could be taken directly to the General
Court.) Judge criminal cases except those where penalties could be loss
of life or member. In those cases act as if it was a grand jury
deciding on whether to indict the alleged offender, and if indicted,
bond him and the witnesses to appear.
Admit wills to probate, grant administration, and appoint appraisers.
Appoint guardians for orphans. Bind out orphans of small
estate.
Compel accounting by executors, administrators, and
guardians.
Order the recording of deeds after hearing acknowledgments by grantors
or confirmation of validity by witnesses.
Grant ordinary licenses and prescribe liquor prices.
Appoint juries to recommend routes for requested new roads or sites for
new watermills and act on the requests. Appoint "surveyors" to oversee
the maintenance of a road. Contract for the building of "gaols",
courthouses, bridges, etc.
Recommend persons to the Governor for appointment as justices, sheriff,
militia officers,
tax commissioners, and take their oaths of office. Appoint deputy
sheriffs, constables, and patrolmen. Grant licenses to attorneys to
practice before the bar of the county.
Deeds.
Per 1734 law "all bargains, sales, and other conveisances (sic)
whatsoever of any lands, tenements, and hereditaments, whether they be
made for passing any estate of freehold or inheritance or for a term of
years and all deeds of settlement upon marriage and all deeds of trust"
must be acknowledged or proved and then recorded.
Patents.
An early law to encourage immigration to Virginia gave 50 acres of land
for each person transported into the Colony to the person who brought
him. Transport across the Potomac from Maryland counted equally to
bringing someone from Europe. No limit was stipulated on how many times
the same person could qualify. Certification of the entry was made by
a jury of the county court where the land was located. Certificates
could be bought and sold. The patent escheated if there was no legal
heir and no one had bought the land before the patentee died. Escheat
meant it reverted to the crown or in Northern Virginia after 1692 to the
Proprietor of the Northern Neck.
A 1713 law applying to all new patents required that 3 acres
must be cleared, tended, and worked out of every 50 acres classified as
arable land. On "barren" land, up to 2/3 of the total in the patent,
the patentee had to keep 3 "neat" cattle, or 6 sheep and goats If not
completed within 3 years of the date of the patent, it was supposed to
be void
Women's rights.
In Colonial Virginia a woman by marrying became "one body"
with her husband (Matthew 19, verses 5 - 6). Together with "wives be
subject to your husbands" (Ephesians 5, verses 22-24), these dictums
were the basis of English law and continued as American law well into
the 19th century. The result was that the rights of a married women
were severely restricted With certain exceptions, she was not allowed
to own land in her own right nor to make a will. Any real property that
she brought to a marriage automatically became her husbands, unless she
had insisted on a prenuptial agreement signed before the marriage took
place.. Even after she was widowed and had received a life interest in a
specific third of her late husband's land following a division of the
estate made by court-appointed commissioners, she had no say as to whom
it would pass after she was gone. She could not sue in a court of law
other than by the same "next friend" procedure provided for minors and
the mentally incompetent. She had no legal say over who would be the
guardian of their minor children after her husband had died or what
religion they would be raised in, if her husband's will had provisos to
those effects. If her husband had been too poor to assure that she and
her children were not going to become a public charge, she had no power
to prevent the children from being taken away from her and bound out to
a stranger.
Only if a woman was an adult and unmarried, either as a widow
or never a bride, could she sue in court, act as an executrix or
administratrix, be officially designated as the guardian of her
children, enter into contracts including indenture of servants, own
slaves, sell or buy land, or obtain an ordinary license. If a servant,
she could take direct court action against her master for ill treatment
or his not abiding by the terms of the indenture. Whether or not she
was married, she could witness documents and testify freely in court
about them. Obviously she couldn't vote, serve on a jury, or hold any
public office.
Servants
Per 1705 law children imported to the Colony were to be brought to
court by their masters within to have their ages judged. If they did
not have an indenture and were over 19, they were to serve only 5 years,
and if under 19, only until they were 24. If their age had not been
officially adjudged., they would serve only five years.
Freedom dues given on completion of servitude were fixed at "10 bushels
Indian corn, 30 shillings in money or goods, one well fixed musket or
fusee of the value of at least 20 shillings". . Women were to receive
15 bushels of corn and 40 shillings
Suits for debt.
Suits by creditors to obtain payment of debts were tried in the county
of residence of the debtor. ( This condition provides an important clue
for research in order or minute books. A defendant is always a resident
of the county, a plaintiff may be from anywhere. Furthermore, suits
abated with respect to a defendant who had moved out of the county.)
If the suit was for less than 25 shillings or 200 pounds of tobacco,
the judgment of any justice of the peace was binding. From that amount
to 5 pounds Virginia money or 1000 pounds of tobacco, the court ruled
without a jury. Above that limit the suit was to be tried at common
law, meaning before a jury.
Witnesses.
Witnesses in county courts were paid a per diem (in 1727 30 pounds
tobacco ) regardless of whether they were residents of the county or
not. Only if they were not residents of the county, did they get
traveling expenses (1 1/2 pounds tobacco per mile). These costs were
charged to the party who had the witness summoned.
FVSA
FRIENDS OF THE VIRGINIA STATE ARCHIVES
"Virginia is Still Making History.
Be a Part Of It."
You are cordially invited to share in the realization of the goals of the Friends of the Virginia State Archives. Founded and incorporated in 1989, the Friends is a non-profit organization dedicated to supporting the Virginia State Archives through:
* soliciting and administering gifts, grants and bequests for the benefit of the State Archives;
* developing and making available to the public workshops, seminars and other programs related to the functions for which the State Archives is responsible; and
* providing financial support to the State Archives not otherwise available from appropriations or government funding.
As a member of the Friends, you will receive the organization's semi-annual newsletter. The annual meetings of the Friends, open to all members, feature programs by experts in historical and genealogical research who have used the valuable resources of the Archives. Special workshops and seminars are a regular part of the Friends' activities, and members qualify for a reduction in the registration fees for such meetings.
Join us now.
History is too fragile to be left to chance. Only dedicated support can save it.
Friends of the Virginia State Archives, Inc.
P.O. Box 4804, Richmond, Virginia 23220
Make checks payable to: FVSA/The Community Foundation
All of your contribution goes to support the activities of the Friends of the Virginia State Archives.
Name: _____________________________________________
Address: ___________________________________________
___________________________________________
Phone: ___________________________________________
Individual $15 Life $600 Patron $50 Corporate $1,000