18th Century Virginia Law
The following is an introduction to legal terms and meanings in 18th century Virginia for any questions that might be raised on material that appears on this website. Most of the terms also apply to the other colonial southern states, as well.
Legal Age:
Under the common law, full majority was reached at the age of 21. Under 21 was legally an infant. Only persons who had reached the age of 21 could perform certain legal actions:
- Buy or sell land without restriction
- Vote or hold public office
- Bring suit in one’s own name
- Devise land in a will
- Sign a bond or note
- Patent land
- Marry without consent
- Act as a guardian
- Serve on a jury
For a detailed discussion of legal age, see Blackstone, Commentaries on The Laws of England, Book 1, Chapter 17. http://tinyurl.com/2dgcb4
Children aged 14 and over could perform a variety of legal actions:
- Witness deeds and contracts
- Bequeath personal property in a will
- Testify in court
- Be an executor [at the age of 17]
- Choose a guardian
- Apprentice themselves without parental consent
To narrow down legal meanings in 18th century public documents in Virginia, the following list of legal terms was obtained from an article published from a speech by Mr. John P. Alcock, President of Friends of the Virginia State Archives, presented November 17, 1999 at the Library of Virginia. To read his whole speech click on the following: http://tinyurl.com/ys4uj8
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' 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.
According to Black’s Law Dictionary, a Chancery Cause is a case of equity where “Justice is administered according to fairness as contrasted with the strictly formulated rules of common law.” A judge, not a jury, determines the outcome of the case. These types of records are useful when researching genealogical information and land or estate divisions and may contain correspondence, lists of heirs, or vital statistics, among other items. Some of the more common types of chancery causes are:
1. Division of the estate of a person who died intestate (without a will)
2. Divorces: Prior to 1842, divorces required an act of the General Assembly, but the county could grant legal separations. After 1842, County and Circuit Courts had the power to grant divorces.
3. Settlements of dissolved business partnerships.
4. Resolution of land disputes.
Chattel. Movable personal property as opposed to land, buildings, andthings 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 ofthe 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 - deed: 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.
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 who paid for the transportation into the Colony.Transport across the Potomac from Maryland counted equally to bringing someone from Europe. 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 asarable 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.
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 retained.
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.
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.
Women's Rights. In Colonial Virginia a woman by marrying became "one body"with her husband (Matthew 19, verses 5 - 6). Together with "wives besubject 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 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 treatmentor of 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.
Some provisions of 18th Century Virginia Laws.
Powers of County Courts (hustings courts in towns like Williamsburg and Fredericksburg).
1. Hear all civil suits brought before it. (Suits involving large sums ofmoney or other important matters could go directly to the GeneralCourt.)
2. 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.
3. Admit wills to probate, grant administration, and appoint appraisers.
4. Appoint guardians for orphans. Bind out orphans of small estate.
5. Compel accounting by executors, administrators, and guardians.
6. Order the recording of deeds after hearing acknowledgments by grantors or confirmation of validity by witnesses.
7. Grant ordinary licenses and prescribe liquor prices.
8. Appoint juries to recommend routes for requested new roads or sites for new watermills and act on the requests.
9. Appoint "surveyors" to oversee the maintenance of a road.
10. Contract for the building of "gaols",courthouses, bridges, etc.
11. Recommend persons to the Governor for appointment as justices, sheriff, militia officers, tax commissioners, and take their oaths of office.
12. Appoint deputy sheriffs, constables, and patrolmen.
13. Grant licenses to attorneys to practice before the bar of the county.
Expanded definition of some of the above legal terms and others not mentioned....taken from Black's Law Dictionary :
Admiralty - a court which has very extensive jurisdiction of maritime cases, civil and criminal, and questions of prize
Attainer - that extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony receives sentence of death for his crime
Bill of Attainder - a legislative act, directed against an individual person, pronouncing him guilty of an alleged crime (usually treason) without trial or conviction, and passing sentence of death and attainder upon him
Benefit of Clergy - (in Latin, "Privilegium Clericale") originally, an exemption to clergymen from jurisdiction of the secular courts; later, a privilege of exemption from punishment of death accorded to "clerks," those who could read
Compurgator - one of several neighbors of a person accused of a crime, who appeared in a church court and swore they believed the defendant on his oath
Corruption of Blood - in English law the consequence of attainder, being that the attained person could neither inherit lands or other hereditaments from his ancestor, nor retain those he already had, nor transmit them by descent to any heir, because his blood was considered in law to be corrupted
Deodand - (Latin, "a thing to be given to God") Any personal chattel which was the immediate occasion of the death of any reasonable creature was forfeited to the Crown.
Escheat in feudal law: an obstruction in the cause of descent, and consequent determination of the tenure, by some unforeseen contingency, in which case the land naturally results back by way of reversion, to the original grantor, or lord: in American law: a reversion of property to the state in consequence of a want of any individual competent to inherit
Felony at common law: an offense occasioning total forfeiture of either lands or goods to which capital or other punishment might be superadded according to the degree of guilt: under feudal law an act or offense on the part of the vassal, which cost him his fee which became forfeited as a result of perfidy, ingratitude, or disloyalty to a lord
Femes convert - (French, literally "married woman") in common law, a legal defense available to a woman who could prove that her husband has caused her to commit a felony
Forfeiture - something to which the right is lost by the commission of a crime: the loss of land by a tenant to his lord, as the consequence of some breach of fidelity; the loss of lands & goods to the state, as consequence of crime
In personam - (from Roman law) an act or proceeding done or directed against a specific person
In rem - (from Roman law) an act or proceeding done or directed against an object
Misdemeanor - all crimes and offenses lower than felonies
Moiety - the half of anything; in admiralty law, the portion of the seized cargo paid to the customs informant
Peine forte et dure - (French, "strong and lasting punishment") under feudal law: imprisoning a defendant until the defendant willingly agreed to a jury trial: later heavy objects were laid upon the individual until the individual agreed to a trial or was pressed to death.
Vice-admiralty courts in English law - Courts established in the king's possessions beyond the seas, with jurisdiction over maritime causes, including those relating to prize.
These definitions have been drawn from: Black's Law Dictionary [1968] and Words and Phrases [1964].
Genealogy is never done, it is always a Work in Progress!
