It’s DNA Sunday here at The Legal Genealogist, and reading about all those old cool DNA results from Neanderthals and other ancient folks (and beasts) got me to wondering: how in the world did the scientists get the DNA to test anyway?

Titus Geer Simons

So… what did they use? Where did they get the samples?

In the case of the Neanderthals, they got it out of 40,000-year-old bones: three found in the Vindiga Cave in Croatia and another three bones from other sites.¹

The same was true for the mitochondrial DNA extracted from Ötzi the Iceman, whose 5,300-year-old remains were found in the Italian Ötztal Alps. The sample was obtained from a fragment of hipbone.²

DNA can also be extracted from ancient hair, as it was in the case of a hairball believed to have belonged to a Saddaq, one of the earliest known natives of Greenland, about 4,000 years ago.

And hair was used to get mitochondrial DNA even from samples from woolly mammoths kept indoors at room temperature for decades.³

In fact, hair is considered a prime find for DNA testing purposes, because it often lacks the contamination from bacteria and other substances found in bones or skin.⁴

Teeth have also been used,⁵ though contamination is an issue.⁶

And now scientists are going after DNA from blood — blood left on the uniform of a New-Englander-turned-Canadian soldier, fighting for the British in the War of 1812, who was badly injured at the Battle of Lundy’s Lane 25 July 1814.

Fought near Niagara Falls, the battle was crucial for the British: they needed to hold the Americans, who had been active and successful in several engageements starting early in July. They had taken Fort Erie, won the Battle of Chippawa and forced the British to retreat to Fort George.⁷

And hold the Americans they did. At first it seemed this battle too would go for the Americans. British Major General Phineas Riall — who’d come out on the losing end at Chippawa — thought he was facing a superior force and started to order a retreat. But the British Lieutenant Governor of Upper Canada, Lieutenant General Gordon Drummond, countermanded those orders and the stage was set. Skirmishes, attacks and counterattacks, close-up almost hand-to-hand fighting failed to move the British from the field. Unable to advance, the Americans fell back to Fort Erie.⁸

Both sides suffered serious losses. American losses were reported at 171 dead, 572 wounded and 110 missing and British losses at 84 dead, 559 wounded, 193 missing and 42 prisoners.⁹

Particularly hard hit on both sides was the officer corps. And one of the officers wounded on the British side was a man named Titus Geer Simons.

Titus’ father, also named Titus, had been a Loyalist during the Revolutionary War, and the son “a mere lad … was given a musket in the ranks of his father’s corps.”¹⁰ Titus the son then went on to his own distinguished career in the War of 1812.

Initially he served with the 2nd York, then with the militia, then again by June 1814 with the 2nd York, and “(a)t Lundy’s Lane Major Simons commanded the whole of the 2nd York Militia, present at that action, until severely wounded… Three grape shot lodged in Major Simons’ sword arm in the conflict. Thus ended his career of action in the war.”¹¹

The officer’s coat that Simons wore in that battle was donated by his family to the Hamilton, Ontario, Military Museum; it’s on permanent display there and shows the holes where Simons was shot. It’s said that the entire right side of the jacket was drenched in blood. And that’s where the DNA comes in — and, they hope, will come from.

A lab from Lakehead University at Thunder Bay, Ontario, is going to try to remove the biologic material — the blood — from the coat, extract DNA from it, and test that DNA against the DNA of living descendants of Titus Geer Simons. An article in the Hamilton Spectator last week described the process and what the Military Museum hopes to achieve: as part of a new exhibit on the War of 1812, the Museum hopes “to create blood ties between that coat, the person who lived 200 years ago and the modern descendants.”¹²

Genealogical reports are that Titus Geer Simons only left daughters.¹³ That means they can’t use his Y-DNA (passed only from father to son) and they can’t use his mitochondrial DNA (his daughters would have gotten their mitochondrial DNA from their mother and not from their father). So what this lab has to be going for is autosomal DNA.

Now how cool is that? — the very first time a blood sample from the war of 1812 will be used for an autosomal DNA test!

Can’t wait to hear if they succeed…

SOURCES

Pour me a drink, my head is spinning!
I got to celebrate — a girl!
Somebody weave a chain of daisies;
You’ve got to decorate a pearl.
Tie her a bow of scarlet ribbons.
We’ve got to crown a tiny curl.
Pick out a tender tune for singing;
I got to welcome me a girl!
– “It’s a Boy!,” Shenandoah¹

She is my baby sister, more than five years younger than I am. Alone of my younger brothers and sisters, she is the one whose birthday I don’t remember. She was very ill when she was born, and our parents tried to prepare us older ones for the chance that she wouldn’t survive. So it’s not the day she was born that I remember. It’s the day she came home, the day I got to hold her for the first time, the day I first knew that she — like our older sister Diana — would be my best friend for life.

And late last night, in Virginia, my baby sister, who’s always been called Kacy, became a grandmother for the very first time.

Isadora, daughter of my nephew Ian and his wife Lindsay, is of course the most beautiful, most perfect baby girl in the entire world, even in a middle-of-the-night cellphone photo:

(Warning: if you disagree, keep it to yourself. You are never gonna convince me. No way no how.)

Now this didn’t happen quite the way we had all dreamed it would. (No, for pete’s sake, I’m not about to comment on anybody’s private affairs. Geez, people!)

First, you see, my sister teaches 9th grade earth science. And you know what 9th graders have — and give to their teachers? And what my sister has, right now? Mononucleosis. Not exactly what you’d like to pass on to your very first brand-spanking-new baby granddaughter. So instead of covering that adorable little face with kisses, Kacy is covering her own face. With a surgical mask. And her clothes with a surgical gown. And her hands with surgical gloves. We’ve laughed about how often she’ll kiss that face to make up for this: “Grandma, for heaven’s sake! It’s the groom’s turn!”

Second, when Kacy and I first talked about what it would be like for her to be a grandmother, back when Ian himself was a baby, it never occurred to either of us that the very first thing I would do when I got the word about Isadora’s birth — after letting other family members know — was carefully enter her name, birthdate and birthplace in my genealogy database, carefully and neatly linked to her parents (and, yes, Elizabeth, honest! I entered the text message as a source citation!²).

And third, it occurs to me that I now understand fully my grandfather’s comment when we got the world that my first cousin once removed Shawn — first of the great grandchildren — had been born. He looked around, then looked at my grandmother, and slyly smiled. “I love being a great grandfather!” he proclaimed. “But I sure as hell hate being married to a great grandmother!” (And yes, she did hit him.)

Me… I love being a great aunt (now for the fourth time). But I sure as hell hate being old enough that my baby sister is a grandmother.

SOURCES

They were supposed to convene on the second Monday in May, which happened that year to fall on the 14th. But when that fateful day arrived in the City of Philadelphia, those that gathered discovered they didn’t have a quorum¹ — that is, there weren’t enough of them there to act legally. They adjourned that Monday, to meet again the next day.

Came the 15th, and no quorum. The 16th, no quorum. The 17th, the 18th, the 19th. On into the next week, and still no quorum. It wasn’t in fact until the 25th of May — 225 years ago today — that enough representatives of enough of the states had arrived in Philadelphia to constitute a quorum to begin, officially, the Constitutional Convention of 1787.²

The Convention was the result of a resolution from the Continental Congress, on 21 February 1787, declaring that

in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation.³

The Articles, agreed upon in 1777 and finally ratified in 1781,⁴ had frankly been a disaster. Little more than an agreement among the states without a strong national focus, the Articles didn’t provide for an executive or judicial branch, allowed Congress to incur debt but not raise taxes to pay its bills, and didn’t have any teeth for Congress to enforce any measures it enacted.⁵

At the same time, a general economic downturn, the lack of a uniform paper currencey and high state taxes let to popular discontent and, in Massachusetts, an armed uprising called Shay’s Rebellion that had to be put down with a privately funded militia since there was essentially no standing army.⁶

Everybody pretty much knew something different had to be done. Just how different was disguised by the language of the resolution. Writing an entire new Constitution is a far cry from “revising the Articles of Confederation.” And an effort in the fall of 1786 to “Remedy Defects of the Federal Government” in terms of trade and commerce ended without enough states present to reach any agreement beyond calling for a constitutional convention.⁷

So when the Constitutional Convention met on 14 May 1787 and didn’t get a quorum of seven states, there were fears that this effort too was doomed.

In his diary on 14 May, George Washington wrote, “two States only were represented, viz., Virginia and Pennsylvania.” On the 15th, “No more States represented, tho there were members (but not sufficient to form a quorum) from two or three others…” ⁸

By the 16th, Washington wrote that there were still “(o)nly two States represented.” By the 17th, the arrival of a second delegate from South Carolina “formed a representation from that State.”⁹ On the 18th, “The State of New York was represented.” But no-one else appeared on Saturday the 19th and the convention “(a)greed to meet at 1 o’clock on Monday.”¹⁰

In a letter on the 20th, Washington wrote that “(n)ot more than four states were represented yesterday. If any have come in since, it is unknown to me.”¹¹ In his diary entries, he continued to note the slow arrival of delegates: “Monday, 21. — Delaware State was represented. … Tuesday, 22. — North Carolina represented. … Wednesday, 23. — No more States represented. … Thursday, 24. — No more States represented.”¹² Finally, on the 25th, Washington recorded in his Diary: “Another delegate comes in from the State of New Jersey. Made a quorum.”¹³

In the end the task of writing a new Constitution was achieved; on 17 September 1787 the document received unanimous assent from the Convention and “the Members adjourned to the City Tavern, dined together and took a cordial leave of each other.”¹⁴

So… there’s your cool “today in history” lesson. What does it have to do with genealogy? I mean, everybody knows that reading about the law and its making is soooooooo boring. You really wouldn’t want to bother reading through the dry and dusty records of a Constitutional Convention, even if they’re online in an easily readable form at the Library of Congress, would you? After all, what could a family historian who’s not descended from one of those fabled 55 delegates ever learn from those records?

Oh, not all that much, of course. Let’s see here… what interest could a family historian have in travel costs in 1787? Virginia delegate George Mason wrote to his son on the 20th of May: “We found travelling very expensive — from eight to nine dollars per day.”¹⁵ And Edmund Randolph wrote on 6 June 1787 that “The prospect of a very long sojournment here has determined me to bring up my family. They will want about thirty pounds for the expense of travelling.”¹⁶

And a genealogist would never care what it cost to stay in Philadelphia at the time, right? Mason’s letter to his son continued: “In this city the living is cheap. We are at the old Indian Queen in Fourth Street, where we are very well accommodated, have a good room to ourselves, and are charged only twenty-five Pennsylvania currency per day, including our servants and horses, exclusive of club in liquors and extra charges…”¹⁷ (And I don’t suppose any of us would ever care that every state had its own currency, right?)

And none of us whose late 18th century ancestors worked in an inn or a tavern would ever be interested in just what the Indian Queen was like, would we? On 13 July 1787, Manasseh Cutler wrote in his journal: “This tavern (Indian Queen) … is kept in an elegant style, and consists of a large pile of buildings, with many spacious halls, and numerous small apartments, appropriated for lodging rooms. … The gentlemen who lodged in the house were just sitting down to supper; a sumptuous table was spread, and the attendance in the style of noblemen.”¹⁸

Genealogists would never worry about things like weather conditions in the spring of 1787, right? On 15 May, James Madison wrote to Thomas Jefferson about the delays in the arrival of delegates, particularly those coming from the Continental Congress in New York: “Of this the late bad weather has been the principal cause.”¹⁹

And there’d be no interest at all in the identities of 13 Rhode Islanders so worried about having their voice heard when Rhode Island refused to send a delegation that they wrote to the Convention to express their views²⁰ or the one Philadelphia Jew who wrote in fear that the new Constitution might require an oath on the New Testament²¹ or… or…

Nope, nope, nope. Nothing a family historian could be interested in. Move along, folks. Nothing to see here.

Sigh… reading about the law and its making is soooooooo boring.

SOURCES

So The Legal Genealogist gets a request from Charlie Purvis:

Would you please give us an article discussing & summarizing an 1827 case – Heirs at Law of Mason Lee vs Executor of Mason Lee. (Marlboro County, SC)

Would I? Would I ever! I mean, hey, how many times do you get to consider the issue of just how crazy you have to be, to be considered too crazy?

Mason Lee Marker, SC

That’s why we see that introductory language in wills that the person is “of sound mind” or “of sound mind and memory” or, in the case of Mason Lee, “of perfect mind, memory, and understanding.”³ If the person isn’t of sound mind — if he’s non compos mentis⁴ — then the will won’t hold up.

The legal issue is often said to be one of testamentary capacity — or “(t)hat measure of mental ability which is recognized in law as sufficient for the making a will.”⁵

So… just how crazy do you have to be, to be too crazy to make a valid will? That was the question a South Carolina jury had to contend with in Mason Lee’s case, which reached the South Carolina Court of Appeals in the January term of 1827.

And the answer, in a nutshell, according to this case, is: really, really crazy. In fact, you can go ahead and be really, really crazy if you’d like — as long as you’re not really, really crazy on the exact day and at the exact time when you sign the will.

The facts of the case

Mason Lee was born, most likely in North Carolina, around 1770.⁶ By his later years he was a wealthy planter with an estate valued in the neighborhood of $50,000. He died in what became Marlboro County, South Carolina, and his will was offered for probate in the Marlboro District Court of Ordinary in 1821.⁷

He executed the last version of his will in July 1820. Like every one of the prior versions, he left nothing to any of his relatives: nieces and nephews by his two sisters or his twin sons born out of wedlock. In this last will, he left his estate to be divided equally between the states of South Carolina and Tennessee.⁸

Now this is all nothing unusual, right? People leave their estates to non-family members all the time — to charity, to homes for stray cats, even to their dogs. So what was the big deal here?

The fact was, Mason Lee was… well… a little odd. The court called him eccentric. You and I might choose perhaps stronger words. Here’s a brief summary of what the jury in this case learned about him:

     • Mason seemed to be a pretty normal guy until he was hit by lightning around the age of 30 while still living in North Carolina. He then moved to Georgia and “began to discover the peculiarities which ever after marked him.” He killed “his negro” (slave or free wasn’t expressly stated but the use of the phrase suggests a slave) in Georgia and fled to South Carolina.⁹ He lived in fear that one of his relations — Baker Wiggins — was trying to kidnap him and take him back to Georgia.¹⁰ And, he thought, the Wigginses were using spells on him.¹¹

     • Except for the Wigginses, he was on good terms with his relatives but didn’t want to leave his estate to any of them because, if he left them property, they would want him dead or try to injure him. “His reason for not providing for one son was, that although he was a twin brother of the other, he was the father of only one of them.” He left his estate to the states because he was convinced that the Wiggins relations were determined to break his will and only the states could afford to defend the suit. He didn’t know anyone in Tennessee, so he designated “one of the first rate Baptist preachers of that state as his executor, without naming him.”¹²

     • “He believed that all women were witches, and would not sleep on a bed made by a woman … that persons at a distance could exercise an influence over his mind and body … that spells were laid for him … that he could be bespelled if he made water on the ground (and so) carried a tin cup in his pocket (to avoid) making water on the ground.” He cut off parts of his shoes and drilled holes in his hat to drive the devil from his feet and head.¹³

     • “In the day time, neglecting his business, he dozed in a hollow gum log for a bed, in his miserable hovel; and at night kept awake contending against the devil and witches. He fancied at one time that he had the devil nailed up in a fireplace at one end of his house …”¹⁴

     • “He believed that he had conversed with God; and said he had met him in the woods, and promised him that if he would let him get rich, he would live poor and miserable all his life; and he seemed to have kept his promise. When he lived in Pedee swamp, … his hogsty was directly before his door … which was not high enough to admit him erect. His bed was a split hollow gum log … He had no chair or table in his house, nor platter, dishes, or plates. …”¹⁵

     • “His clothes were of his own make. They had no buttons. The pantaloons were wide as petticoats, without any waistband, and fastened round him by a rope. … He was remarkably filthy, not cleaning his clothes for months.”¹⁶ He routinely cut off the tails of all hogs and cows and cut off the ears of his horses and mules.¹⁷

     • When, late in his life, he was given a house 12 feet square, he complained that it was “too large.” He rebuilt it “three feet wide, five feet long, and four feet high. In this kennel he (ate), slept, and dozed away his time.”¹⁸

Now to be fair there was evidence that he was “sane and perfectly capable of managing his business” and merely eccentric, at least when sober, and that he’d sobered up for two or three whole weeks before executing the will eventually offered for probate. And the three witnesses to the will — “respectable men, living near him, (who) knew him well … swore positively to his capacity at the time of its execution, and to the fact of his keeping sober for that purpose.”¹⁹ Others regarded him as “a very singular man, but not insane…”²⁰

The law according to the judge

Based on all the evidence and the law as it stood at the time, the judge charged the jury that “the will could only be invalidated by proof of an existing insanity at the time of making it …” In particular, the judge cautioned that “it was not … every man of a frantic appearance and behavior who is to be considered a lunatic …, but he must appear to the jury to be non compos mentis … at the moment when the act was done.” He went on: “It could not be denied that it was a strange will, and if not the production of an insane mind, it was no doubt that of a very eccentric one. (But) the law puts no restriction on a man’s right to dispose of his property in any way in which his partialities, or pride, or even caprice may prompt him, if he does not infringe any rule of policy.”²¹

The judge finally told the jury that “in exercising their own judgment on this difficult and mysterious subject, if the testator was not proved to be insane by full and unequivocal evidence, they were bound to find in favor of his sanity. A rational state of mind is the natural state of every man, and until there is full proof of insanity the law presumes that every man is in a rational state when he does any act either civil or criminal.”²²

And the jury’s decision? “The jury found a verdict in favor of the will.”²³

The law according to the appeals court

The heirs at law appealed and asked for a new trial. They were represented by three of the biggest legal names in South Carolina; the estate by two future U.S. Senators. The appeals court disposed of the case in a single paragraph, concluding that the judge’s charge was correct, and that the issues were “fairly and correctly submitted to the consideration of the jury.”²⁴

In other words, as long as you’re not really really crazy when you sign your will, you can go ahead and be as crazy as you want the rest of the time.

And, by the way, that rule of law — that a testator is presumed to be sane and only the most compelling evidence to the contrary at the time the will is executed will invalidate a will — is still the law of South Carolina today.²⁵

The rest of the story

Now you know better than to think this is all of the story, right? A big estate with land and slaves and cash is just too much to let go without more of a fight. And the heirs at law didn’t let it go. They went to the Legislature with a petition to set aside the will anyway.²⁶

And they won. In December 1829, the South Carolina Legislature “parted with its rights & interest in the estate of the said Mason Lee” in favor of the heirs at law. It isn’t clear whether the heirs tried the same gambit in Tennessee; what is clear is that Tennessee didn’t give up its share of the estate but rather sold it to one Robert B. Campbell (himself a member of Congress from South Carolina), who then joined with the heirs at law in a partition action in 1831.²⁷

Today, there stands an Historical Marker near Blenheim in Marlboro County, South Carolina. The front of the marker reads:

Mason Lee (1770-1821), a wealthy Pee Dee planter known for his eccentricities, is buried in old Brownsville graveyard two miles south of here. He believed all women were witches and that his kinsmen wished him dead to inherit his property. He felt they used supernatural agents to bewitch him and went to great extremes to avoid these supposed powers.²⁸

And on the reverse side:

This will, which named S.C. and Tenn. as heirs, was the subject of suits in the 1820′s charging Lee was of unsound mind when making his will. An 1827 appellate verdict exonerated Lee and established Heirs at Law of Mason Lee vs. Executor of Mason Lee as the leading case in South Carolina regarding mental capacity in the execution of a will.²⁹

Mason Lee’s grave itself is in the old Brownsville Church Cemetery in Marlboro County, South Carolina.³⁰ And with so much of his estate having passed into the hands of the Wiggins relations, you just have to believe he’s there spinning in it even today.

SOURCES

Image by Paul Crumlish, 7 May 2010

Sherry Morgan poses a tricky question:

How does one trace a lawyer’s education who was practicing law in 1850 in Louisiana, claims to have been born in Alabama with parents from North & South Carolina? He came to Louisiana as an adult, but was still living with his family.

The reason why the question is tricky is because the answer may change depending on when and where this lawyer was first licensed to practice law and on when and where in Louisiana he was licensed.

First off, remember that a formal legal education in the sense of a three-year post-collegiate law school curriculum is a real newcomer to the American legal scene. While it’s true that there were law schools here very early — the College of William and Mary in Virginia first created a professorship in law in 1780¹ — in general only the wealthy could obtain formal training for their sons in the law since it often meant sending them to England to the Inns of Court.²

For those trained in America, a legal education really meant a period of apprenticeship or self-study. Even as late as 1900, only half of all American lawyers had ever attended any formal law school — most weren’t even college graduates and only seven states required so much as a high school diploma.³

Exactly what a young man — and with only one known exception, Margaret Brent of Maryland,⁴ they were all young men who practiced law in early times — had to show to be licensed or admitted to practice law differed from state to state.

Between Louisiana statehood in 1812 and 1840, the requirements for admission to practice in Louisiana were “a good name; an apprenticeship in a law office, a college diploma, or a license from another state; fluency in English; and a satisfactory performance on an oral examination.”⁵

Note the kicker here: the chance that he may have been licensed in another state before he was licensed in Louisiana. If he had first been licensed in his native state of Alabama, what he might have had to show the Louisiana authorities would have been less than if he was first licensed in Louisiana.

In Alabama, anyone of good character could be admitted to practice law if he could pass an examination before the Alabama Supreme Court; he could practice before the lower courts if two circuit judges agreed he could.⁶ Not until 1852 was there a required examination of specific subjects and even that law didn’t require any specific formal education.⁷

So if your lawyer was first admitted in Alabama, all that may exist there is a record of his having taken any examination that was required and/or the issuance of a license. You could try the Alabama Department of Archives & History as a first step. Among its holdings is the Diplomas and certificates collection, 1801-1954, which contains “licenses to practice medicine and law.” (For those with earlier lawyer-ancestors, check out the Register of appointments, 1805-1819, which includes “lists of attorneys and counsellors at law licensed in the Ala. Territory”.) And, of course, records of the Alabama Supreme Court and of the circuit courts should be reviewed as well for any order admitting him to practice there.

And if your lawyer was first admitted in Alabama, and then was admitted in Louisiana before 1840, he may not have had to do much more in Louisiana than bring a copy of his Alabama license into court since “(t)here were few rules to control admission to the bar, and the question of what constituted adequate training was left open.”⁸

So you really want to hope that he was first licensed in Louisiana after 1840. That’s because of a major change in attorney licensing that year:

On November 24, 1840, the Louisiana Supreme Court promulgated a rule establishing a required course of study for candidates seeking admission to the bar. The rule required candidates to be knowledgeable of Louisiana codal, statutory and case law, as well as civilian authorities, such as Jean Domat, Robert Pothier, and the Institutes of Justinian. The rule also stated that prospective lawyers should be “well read” in the following common law treatises: Sir William Blackstone, Commentaries on the Laws of England (Oxford, 1765-1769), James Kent, Commentaries on American Law (Philadelphia, 1826), Joseph Chitty, A Practical Treatise on Bills of Exchange, Checks on Banks, Promissory Notes, Bankers Cash Notes and Bank Notes, first American ed. (Philadelphia, 1809), Sir John Bayley, Summary of the Law of Bills of Exchange, Cash Bills and Promissory Notes (London, 1789), Thomas Starkie, A Practical Treatise on the Law of Evidence and Digest in Civil and Criminal Proceedings (London, 1824), Samuel March Philipps, A Treatise of the Law of Evidence (London, 1814), and William Oldnall Russell, A Treatise on Crimes and Misdemeanors (London 1819).⁹

The rule of 1840 took effect at once and that basic course of study stayed the rule in Louisiana with only a few changes right into the 20th century.¹⁰ And now would-be lawyers had more they had to prove — or at least more the courts of the day wanted to know about.

In both cases — pre-1840 and post-1840 — what you want to start with are the records of the Louisiana Supreme Court. The Court’s Archives were transferred to the Earl K. Long Library of the University of New Orleans by court order in 1976.¹¹ At a minimum, no matter when he was admitted or where he was first licensed, there ought to be some reference to him becoming a member of the Louisiana bar in the Minute Books of the Supreme Court of Louisiana, which are held in Series III, Minute Books, 1813-1922. And, with some luck, you’ll find him in Series IV, Miscellaneous Records, 1817-1894, Box 314, Administrative Records, 1817-1846, Documents relating to admissions to the Louisiana Bar.

One possible hitch here: many of the records for the western appellate circuit — outside of New Orleans — were lost¹² and so if he was admitted there, you may be out of luck in terms of his admission — but he still should show up in the court records after being admitted.

Let us know what you find!

SOURCES

There is very little in this world that The Legal Genealogist likes better than published reports of old court cases. But fully searchable CD-ROM versions of lots and lots of early court cases definitely make the cut. And when those old court cases are from a place like Virginia, The Legal Genealogist can get positively giddy. (Can we say “burned counties,” boys and girls? I knew we could…)

Thanks to a cooperative publishing venture between the Virginia Genealogical Society and Archive CD Books USA, there are loads of early Virginia court cases in fully-searchable CD-ROM versions available right now — and more to come.

I first heard about this venture from Barbara Vines Little, CG, FNGS, FVGS, past president of the National Genealogical Society and former president and current governor of the Virginia Genealogical Society.¹ It turns out that, in 2005, a member of the Virginia Genealogical Society, Ken Craft of Norcross, Georgia, donated a complete set of these early Virginia court reports to VGS in the hope that somehow the cases could be made more readily available to the genealogical community. His thinking was, perhaps, a general index. VGS ddid him one better: in 2008, it worked out an agreement with Archive CD Books USA to publish every last one of these 70-plus volumes in a fully-searchable digital format.²

To understand the way the set works, you need to know that in the early days, court cases were always compiled by official Reporters and the volumes containing each Reporter’s work would be named after the Reporter and numbered sequentially. So you’d have, for example, two volumes by a Reporter named Washington and they were known as 1 Washington and 2 Washington. There were six volumes by a Reporter named Call, and they were known as 1 Call, 2 Call, 3 Call etc.³ The entire set, originally published by the Michie Company in the early 1900s, is known as Jefferson-33 Grattan, 1730-1880.⁴ That’s because the first volume was reported by some guy you may have heard of once or twice by the name of Thomas Jefferson and it goes on through to Volume 33 reported by some guy with the improbable name of Peachy Ridgway Grattan.

In all, there are some 75 or more volumes included in the reports that will ultimately be on CD. I managed to get my hands on the full set of currently-available CDs from Archive CD Books USA at the National Genealogical Society 2012 Conference in Cincinnati two weeks ago. There are now four CDs (beginning with Jefferson’s volume and ending with Hening & Munford’s volume 4 — about 18 or 19 volumes so far). I’ve just had time to start poking around with these and oh boy… if you have Virginia ancestors, you want these. You definitely want these.

Why? Because almost every page has some little tidbit, some piece of information, some clue to who our ancestors were and how they lived that we could never ever put our hands on in any other way. That’s particularly true in Virginia where, we know, “the majority of the records of Virginia’s appellate courts were destroyed by fire in 1865. The reports are one of the few surviving sources for information on the cases heard on appeal.”⁵

And what a wealth of detail you can find in those reports. I’m just going to pick a few examples, literally at random, from these four CDs.

Marston v. Parish, Jefferson Reports 1 (1730). In John Williams’ 1713 will, he left four slaves to be divided equally between his wife and three children. After John’s death, three children were born to the slaves. John’s widow Anthany remarried to John Marston. Marston, believing Anthany to be with child, wrote a will in 1719 leaving all of the slaves to the child he believed his wife was expecting. He died, and it turned out Anthany was not with child. She married again, to Parish the defendant, and John Marston’s brother — his heir at law — sued to get the slaves. The court ruled against the brother — but man… one woman, three husbands, and seven slaves all identified by name.

Legaw and Armistead v. Newton, Jefferson Reports 17 (1735). Nope, nope, no genealogical information in this case. Let’s see… Land granted to Beheathland Gibson, by patent, 27 September 1667, when she was one year old. She died in October 1693, as the widow of one Stork, and devised her estate to her daughter Elizabeth, who was born in 1687, married in 1702 to the defendant’s father, who died in 1728, leaving a 33-year-old son, the defendant. Nope, move along here, nothing for a genealogist to see in this case.

Commonwealth v. Jacob Lester, 2 Va. Cas. 198 (1820). Jacob Lester of Lunenburg County didn’t much like Reuben Skinner. He went after him with a big stick of wood and broke his jaw bone “with intent to maim, disfigure, disable or kill” him. Problem is the indictment was based on a specific statute which didn’t say a word about jawbones. You couldn’t cut off somebody’s tongue, or put out an eye, or slit, cut off or bite off a nose, ear or lip, or disable a limb, or stab somebody or shoot him, but … nope, the statute didn’t say one word about breaking a jawbone. And the indictment said he broke it, not that he disabled it. The guy walked. Which, I suspect, greatly annoyed Skinner.

Sherrard et al. v. Carlisle, 1 Pat. & H. 12 (1855). Another one of those boring cases of no use to genealogists. In 1815, John Snyder of Hampshire County died leaving a will with one fifth of the proceeds of the estate to his daughter Elizabeth. Elizabeth married Jonathan Carlisle, who sold Elizabeth’s right to receive some of the estate money to John Sherrard. In August 1835, Elizabeth sued Jonathan for divorce in Bedford County, Pennsylvania, and in 1836 the court there granted it. A court case came up in 1837 about Elizabeth’s right to receive land from her father’s estate, but before things were completely resolved Jonathan died (in 1842) and Elizabeth died (in 1848). John S. Carlisle, Elizabeth’s only son and heir, survived her and continued to press for the inheritance. Now no matter who wins this suit, if you’re a Snyder or a Carlisle, you’ve got to be smiling, no?

Davies v. Miller et al., 1 Call 127 (1797). John Miller of King & Queen County made a will 21 February 1742 leaving a life estate in 100 acres of land to his daughter Mary Berry, wife of John Berry, and on her death the land was to pass to his son Christopher Miller. John Miller also had a grandson Christopher, eldest son of John’s eldest son. The grandson sued to get the land, but died before the case was heard. The grandson’s will purported to give the land to one party, the son’s will gave it to someone else, and the case came down to who had possession when. How do you feel about this case if you’re a Miller descendant from King & Queen County, where virtually all of the records were destroyed in fires in 1828 and 1865?⁶

Not good enough? Consider what else you can find out in these court reports. How about physical descriptions of persons accused of crimes? Details of business transactions of the day? What people wore? What medical treatment was given for specific wounds? Whether you could collect on a gambling debt? Who was entitled to inherit when there was no will? When and whether an Indian could be made a slave? What rights an illegitimate child had? When somebody first came to Virginia? Who lived next door?

Wonderful resources, fully annotated, chock full of information of immediate use to anyone with Virginia ancestors. There are alternative sources: you can buy each volume as a paperback at Amazon; many are online at Google Books or Internet Archive. The CDs aren’t free, and they aren’t particularly cheap (each CD is $19.95) but nothing else is as easy to use, and nothing else will let you still poke around in these wonderful old cases even when your Internet connection goes out.

Check ‘em out. Archive CD Books USA, product 0623-1, -2, -3 and -4.

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Okay, I’m (finally) home from my combination NGS and research trip, and it’s time and past time to get something off my chest. I have a question for each and every single genealogist out there who reads this blog or ever comes in contact with it.

Do you care — really care — about records access? About whether or not you’re going to be able to get your hands on that vital (birth, marriage or death) record, or see that document in the closed stacks at the state library or archives, or get that SS-5 application form without the parents’ names redacted, or even get that SS-5 application form at all?

I’d be willing to bet most of my 17-cents life savings that you answered “yes” to that question. And, if you did, let me ask one more:

What, exactly, are you doing about it?

I came pretty much face to face with that question at the National Genealogical Society 2012 Conference in Cincinnati. One of the sessions was a meeting of the Records Preservation and Access Committee (RPAC). That’s a joint committee of the Federation of Genealogical Societies, the National Genealogical Society, and the International Association of Jewish Genealogical Societies. It was scheduled at a bit of an odd hour — 3 p.m., when most afternoon sessions started at 2:30 or 4 p.m.

And because of the odd hour and a conflict in my schedule, I got there late. The room at that point had a few scattered attendees — perhaps as many as 20 or 25 total (though I suspect it was fewer than that). The meeting seemed to be winding down, several of us had a chance to make a few comments, then everything wrapped up and I left, discouraged with the poor attendance.

At the time, I made excuses in my own head. I’d been late, maybe it had been better attended earlier. Maybe people didn’t realize the meeting was open to the public, maybe they didn’t want to come in late, maybe maybe maybe.

It wasn’t until much later, when I read a blog post by Barbara Mathews, CG, attending on behalf of the Massachusetts Genealogical Council, that I really understood just how poorly that session was attended. She titled her post How to Get Discouraged: Only Four States Represented at the RPAC Session at NGS, and she wrote:

You would think that (the) active threat to open access would have generated lots of interest and that the room would have been packed. If that is your assumption, you couldn’t be more wrong.

Of the fifty states, only twenty-six have appointed liaisons to RPAC. Of those twenty-six liaisons, three were in the audience and one was remotely logged-in using webinar technology. Four out of twenty-six means that 15% of the liaisons attended in one way or another. Four out of fifty means that only 8% of the states supported the effort. Arizona’s Linda McCleary was logged-in. Nora Galvin attended from Connecticut but is not yet an official liaison. And, while I was delighted to visit and exchange business cards with Alvie Davidson, CG, from Florida and Billie Fogarty from Oklahoma, this is hardly a large enough team to win an access fight.

As the kids would say — O M G. The single biggest, the single most important issue for all genealogists everywhere — and we can’t even field a full working team? And of the team we can field, we can’t even put half of them into one room at one time? Hell’s bells, we couldn’t even put a quarter of them in one room at one time!

Something is very wrong here. And I suspect, as Pogo said, we have met the enemy and he is us.

It’s really easy to sit back and say, “it’s someone else’s job.” When there’s something out there with a big fancy name like the Records Preservation and Access Committee, well, it’s their job, right?

Wrong. It’s our job. Yours, mine, ours.

First of all, RPAC can’t help at all with issues it doesn’t know about. That’s why having liaisons in every state is so important. Take a look at the list at the RPAC website here. Is your state covered? If not, what are you waiting for? You’ve got what it takes, right? An interest in keeping records access open? Check. Ability to read the newspapers and stay current on legislation in your state? Check. Willingness to work with the genealogical societies in your state and get help from RPAC when you need it? Check. C’mon, folks. You can do this. Contact your state genealogical society and volunteer. At least contact your state genealogical society and — as a group — get somebody to volunteer.

Second, when it comes to the proposals in Congress to shut off access to the Social Security Death Index, each and every one of us ought to be on the front lines. Face it. Nobody from RPAC is going to get the ear of my Congressman here in the 7th District of New Jersey better than I can. And nobody from RPAC can get the ear of your Congressman in your district in your state better than you can. Why? Because nobody from RPAC can look that member of Congress in the eye the way we can and say, simply and flatly, “Look, pal, I’m a genealogist and I vote. In your district.” We can all pick up the phone. We can all write letters. We can all let our own representatives know — we’re genealogists and we vote.

The same thing is true when the issues involve access to state or local records. The people who won the fight to open key vital records in Pennsylvania last year were Pennsylvanians – people who could sit across from their local assemblyman or senator and say, “Charlie, I grew up with you in Pittsburgh (or Philadelphia or Harrisburg or Carlisle). I need you to listen to me on this.” And the people who won the fight to open equally key records in Virginia this year were Virginians. Sure, RPAC can and does help, but these access battles aren’t won by generals or tacticians back at headquarters. What’s needed are boots on the ground, bodies in the trenches. Your boots and mine. Our bodies standing together.

Not sure what to say? RPAC has all kinds of materials to help guide you. Start by reading “Access to Public Records: One Person Can Make a Difference” by David Rencher. Want specific help with the SSDI issue? Read the “SSDI Call to Action Kit” (but skip the part about the petition, which has expired). Want to stay informed on access issues? Add the RPAC blog to your lists of things to read (the link to the RSS feed is in the lower left menu). And get to know your state RPAC liaison… you can offer to help with an alert system for your fellow genealogists when an issue comes up in your state.

What else can you do? Scan your local newspapers. Is somebody on your town council talking about cutting your library’s hours or doing away with the genealogy librarian? Alert your genealogy society and speak out! Is somebody in your state talking about axing the budget for your state archives or closing off access to vital records? Alert your genealogy society (and RPAC!) and speak out! Make sure you know who your representatives are — federal, state and local — and make sure they know who you are. Make sure they know — we’re genealogists and we vote.

We can’t afford to sit back and wait for somebody else to fight these battles for us. The dangers of political apathy for the entire genealogical community are very very real. Look what just happened up in Canada: the entire Canadian Council of Archives was shut down and Library and Archives Canada is losing 20% of its budget. Think that can’t happen here? You know how many days a week the Georgia Archives are open to the public now? Two. Friday and Saturday. Because it’s easy to cut the budget for an archives. The Kentucky Department of Library and Archives where I researched last week has lost 30% of its budget and 45 staff positions since 2008. The reading room at the National Archives branch in Pittsfield, Massachusetts, closed last fall. It’s not just that it might happen here; it is happening here, every day.

We can’t let this continue. As a community, and as individual genealogists, we can’t afford to sit back and do nothing. We — you and me — all of us — need to get up, up off our duffs and into this fight.

So… what, exactly, are you going to do about records access?

I usually don’t post twice in one day… but this is a very good cause, and besides, it’s easy, it’s cheap and it could get you a DNA test.

Here’s the deal. There’s a newly-formed foundation called the Mixed Roots Foundation, with the purpose of helping adoptees find their roots. One of its projects is called the Filling in the GAGP Fund, and it’s a fund to help defray some of the costs of DNA testing for adoptees.

Tomorrow, it’s having a fundraiser. In San Francisco. And in the fundraiser it’s going to be raffling off a bunch of stuff including five DNA test kits — three donated by 23andMe and two donated by Family Tree DNA. You can buy the raffle tickets online and (sigh…) you don’t have to be there to win. (Even if we’d all rather be in San Francisco…)

Get the details on exactly how to get in on this from Ce Ce Moore’s blog post today at Your Genetic Genealogist.

Where else are you gonna get a chance at a DNA test for a whopping two bucks, huh? (Three chances for five bucks! Such a deal!)

Julie Matthews is puzzled by her DNA test results:

Why do none of my Y matches also match my autosomal matches? And why are all the Family Finder matches I’m finding ending up being tenth cousins using a paper trail rather than the promised five generations?

Great questions, Julie — the autosomal tests (Family Finder from Family Tree DNA, Relative Finder from 23andMe and AncestryDNA from Ancestry.com) can be really confusing. Let’s see if we can work through these to help make sense of the results.

First, a bit of basic biology for folks new to DNA testing. Every human being has 46 chromosomes — 23 inherited from each parent. Two of those 46 chromosomes determine gender. If the person has two X chromosomes, she’s female. If the person has one X and one Y chromosome, then he’s male. The 44 chromosomes that don’t determine gender are called the autosomes.

So for a Y-DNA test, only the DNA from the Y chromosome is tested, and it can detect common descendants only in a direct male line: father to son to son.

For the autosomal tests, only the DNA from the autosomes is tested, and it can detect cousins both male and female.

And that, most likely, is one part of the answer to why your family Y-DNA matches (I assume that test was done with a brother, uncle, father or male cousin) don’t also show up in the list of those who match you in the autosomal test: a very large number of people who’ve tested for Y-DNA simply haven’t done the autosomal test, and vice versa.

If you look at your list of Family Finder matches, and look in the area under each person’s name, you’ll see some symbols (for email, for notes and, in some cases, for a gedcom if the person has uploaded one). And in some cases you’ll also see some other information — and it’s that other information you want to focus on because it tells you what other DNA testing the person has done.

Y-DNA followed by a number means this person — always a male — has had his Y-DNA tested; the number tells you how many markers he’s tested — 12, 25, 37, 67 or 111. HVR1 or HVR2 or FMS means the person — male or female — has also had mitochondrial DNA (mtDNA) testing done. The letters tell you which test: HVR1 is the least complete, HVR2 the next best and FMS the gold standard — complete mtDNA testing.

If you don’t see any of those indicators under a person’s name in your Family Finder match list, then that person hasn’t done those tests. So the first thing to look at is whether a Family Finder match has even done the testing you hope will match your results. In my own experience, I’ve found that the vast majority of interesting Y-DNA matches to the men in my family haven’t done autosomal testing — at least, not unless I’ve volunteered to pay for it!

The second thing to keep in mind is that Y-DNA and mtDNA don’t change very much from generation to generation, so testing those types of DNA will give you matches that can be very far back in time. By contrast, autosomal DNA changes and recombines so quickly that its usefulness for genealogy pretty much punks out after only five or six generations. (As you’ve found, you can get matches back beyond that but it’s pure luck that that’ll happen.) And this means that a really good solid Y-DNA match can easily be way too far back to show up in your autosomal test matches.

Of course, if you do happen to have a solid Y-DNA match who has also done autosomal testing and doesn’t match you, that can be a clue that may help you figure out how far back the common ancestor might be. In a case like that, it may well be that it’s beyond the time period — five generations or so — where the autosomal testing works best. So even if you never get a double match in both types of DNA, doing both tests is still the best way to go.

On your second question, it’s not at all unusual to find that the paper trail suggests the common ancestry between two matches is further back than the relationship range suggested. One thing that all the autosomal testing companies stress (or, at least, they should stress) is that autosomal testing can help prove you are related to someone else but it can’t usually prove how closely you’re related. Here again, the problem is the way autosomal DNA changes and recombines generation to generation. There’s a terrific short animation on the Sorenson Molecular Genealogy Foundation website — the link is here — that really explains recombination as well as anybody can.

So for this question, too, there are a couple of things to keep in mind. First, the way that these chunks of DNA are passed down is random and it may just be dumb blind luck that you and some distant cousins all got one particularly significant chunk. I see this in my own family results. My first cousin and I both match our uncle, and all three of us have matches we all share, but both my cousin and I have matches in common with our uncle that the other one doesn’t share. Pure dumb luck.

Second, you have to keep in mind that you and those distant cousins may be cousins in more than one line. It was really common for cousins to marry cousins back when the only people close enough to court were cousins! And the more lines you share with a cousin, the more common DNA you’re likely to share so that it’s easy to end up looking like the relationship is a close one when it really means you’re double (or triple) cousins. The concept is called endogamy and it really plays havoc with autosomal DNA results, particularly for populations that were kept in ghettos or whose marriages were limited by law like the Ashkenazi Jewish population. (You can read more about endogamy here.)

And, again, when you see this sort of result, it may be giving you a clue. It’s always worth it, when the paper trail says distant cousin and the DNA suggests a closer relationship, to look for the possibility that you’re related in more than one line.

Sigh… clues, clues, clues. Sometimes I think it’d be awfully nice if our ancestors’ names and lineages were written in the DNA and we could just print them out! Then again… that wouldn’t be nearly as much fun, would it? Good hunting!

Okay, George Washington Cottrell, you’re getting me seriously annoyed now. I do not appreciate one bit the fact that I’m heading east out of Kentucky not a whole lot closer to finding your parents — my 3rd great grandparents — than I was when I arrived. What’s with you anyway?

First, some census taker in Tarrant County, Texas, in 1850 gets told that you’re 40 years old.¹ By 1880, however, the next time the census guys find you, you’re only 59 — with a wife 15 years your junior.² So which was it, George? Birth year of 1810 or 1820-21? You didn’t maybe fudge your age a little to be a tad more attractive to the young chick, now, did you, George?

I mean, I do have some reasons to doubt you, pal. Remember, you’re the one who applied for a Mexican War pension based on service that nobody can verify. Not the War Department back when you applied, first in 1887, not when you reapplied in 1890, not when your widow Louisa (Baker) Cottrell applied in 1897.³ And, sigh, not me when I poked through the Mexican War muster rolls of Texas troops.⁴

And you’re the one who once said you were married to Louisa Baker in Parker County, Texas, in December 1853.⁵ Then you said it was to Patsy Louisa Baker in Johnson County in December 1854.⁶ You do know the marriage was recorded in Johnson County in January, 1855,⁷ right? I know, I know. Details.

So when you told the pension folks that you were born on 5 March 1821 “3 miles from Lexington in Madison County, KY,”⁸ I don’t suppose it bothered you one bit that Madison County isn’t now, wasn’t then, and never has been within three miles of Lexington.

So okay… maybe it wasn’t within three miles of Lexington. But George, pal, buddy, your parents didn’t even leave footprints in that county, okay? No land records. No estate records. No deeds. No wills. No court records. Not even a hint on a tax record.

Maybe you really did mean three miles from Lexington, but you know what, George? That’d be Fayette County. And there’s not a hint of anybody named Cottrell in Fayette County, George! Not a Catrel, or Cattrel, or Catrell, or Cattrell, or Catral, or Cotral… you get the picture, pal?

Now don’t get me wrong, George. I’m deeply grateful to you for the fact that your DNA proves you’re really weren’t dropped off by space aliens. The Y-DNA you passed on to your great grandson, my uncle David, turns up with seven Cottrell-surname matches including two that are 67-for-67 marker matches. So I know I’m at least looking for the right surname.

But you know what, George? At least one of those 67-for-67 matches is to a descendant of the Shelby County, Kentucky, Cottrells. The same Shelby County Cottrells who had a son George who seems to have pretty much squandered his inheritance from his daddy in the 1830s and who’d high-tailed it out of Kentucky before 1840. Just about the time you showed up in Texas, George.

That Shelby County George showed up sporadically on the Shelby County tax rolls⁹ until his daddy died and then he popped right on there with all of his daddy’s acreage in his name.¹⁰ At least until his siblings forced the partition of the land in 1840.¹¹

Seems to me that was a lot like the George Washington Cottrell who popped up in Colorado County, Texas, married the Gilbert widow and then showed up in the tax rolls there with all that lady’s acreage.¹² At least until the bigamy rap in the county court there.¹³ You remember all that, don’t you, George?

Now I’m not saying that Shelby County George is you, George. He does seem to be just a tad older even than the 1850 census would suggest and it’s way too early in my research to be reaching any conclusions… but it does seem just a bit coincidental, now doesn’t it, George? You wouldn’t want to tell me anything about this, now, would you?

Sigh… someday you and I are going to have such a chat.

SOURCES