English Law in American Land Research
With some exceptions, American land law still reflects its English origins. The important exceptions are the French civil law in Louisiana, Spanish law in the Southwest, and Polynesian communal-use concepts in Hawaii. English property law, which means both land conveyance and inheritance law, was extremely complex and plagued by a nearly crushing mass of technicalities. This was especially true in the seventeenth and eighteenth centuries, when the United States was founded. The colonies lacked the judges, lawyers, law schools, and elaborate court system to implement English property law in all its complexity, but most of the basic concepts crossed the Atlantic and exist in the land records genealogists use.
One major distinction is between real and personal property, which arose in Norman England to distinguish between property the courts could restore to a dispossessed owner and property for which the courts would grant compensation for losses. The distinction is conveniently—if only roughly—between land (and its “fixtures”) and movables. Because leases were deemed personal property and because deed registries record mostly real property, leases were normally not recorded. Hence, for reasons of early English law, tracing Americans who rented rather than bought farms can be very frustrating because their leases probably do not appear in the land records.
Another English concept is between freehold and copyhold, the first being for lands held in England by free men and the latter by villeins (i.e., peasants bound legally to the manor). The villein succeeded to the lands of his father upon payment of customary dues (fines), whereupon the record of such holdings was copied into the manor court roll—hence the name copyhold. In the American colonies, such copyhold was never successfully established because feudal and manorial structures did not exist in the colonies. The few instances where provincial proprietors tried to establish them, such as in Maryland and the Carolinas, were short-lived experiments in the face of all the unoccupied land surrounding these artificial manors. Thus, the American genealogist encounters freehold law that developed in contrast to a concept—copyhold—not normally found in American records. The one important remnant of feudalism that did gain a partial foothold in the colonies from New York to Georgia was the quitrent, a sum owed by a freeholder to his feudal superior.
A third aspect of property law in England was the doctrine of estates, which assumed that all land in England was owned only by the Crown and thus any subject held merely an “estate” in that land. Such holdings (tenures) could be with right to will or deed the land to another (fee simple), with right to a life interest that ended at the tenant’s death (life estate), or with right for the land to pass inalienably to one’s direct descendants so long as any existed (fee tail). The last—“to X and the heirs of his body”—might be land entailed without a sex restriction or it might be entailed only to male heirs (tail male) or, rarely, only to female heirs (tail female).
Out of these various historical concepts from the feudal-manorial world as they survived in English common law came legal records that genealogists encounter and need to understand. Not only did copyhold fail to flourish in the colonies, the idea that the Crown “really” owned all the land also failed. Therefore, American law was centuries ahead of English law in developing the legal sense of fee simple as an absolute (allodial) ownership. “Absolute” in this sense is restricted by eminent domain, taxation, zoning, and the public interest. Public interest, as an example, might restrict a private citizen from damming a fishing stream that ran through his land.
Two remnants of English law encountered in colonial records, mostly south of New England, are livery of seizin and the lease and release. Livery of seizin was a very old method of transferring land tenure by actually handing pieces of the property to the new owner. It means to take delivery of possession. Here is how lawyer William Blackstone described it:
- Livery in deed is thus performed. The feoffor [seller], lessor, or his attorney, together with the feofee [buyer], lessee, or his attorney . . . come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to be made. And then the feoffor, if it be of hand, doth deliver to the feofee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect. ‘I deliver these to you in the name of seizin of all the lands and tenements contained in this deed.’84
Whether Americans performed all these steps is conjectural. Certainly such deeds were occasionally used in the colonial period in both New England and the South. In 1714, in Westmoreland County, Virginia, Arthur Harris “made Livery and Seizin of the Lands and Appurtinances within mentioned by delivering Turff and Twigg and the Ring of the Door of the Chief Mansion House on the Lands.”85 These odd phrases were formula; nothing individual should be read into them.
Though livery of seizin was uncommon, the system of lease and release—two parts—flourished in Southern colonies in the 1700s. The intent of this document in seventeenth-century England was to avoid the legal fee of having deeds recorded publicly. Under Henry VIII, the Statutes of Uses dictated that the person having the use of any land had the obligations of that land as well, such as taxes, feudal dues, and so forth If land was leased, then by the Statute of Uses the only interest remaining to the lessor was the reversion of the land at the end of the lease’s term. If that reversion was then released to the lessee, the land was sold without a bargain and sale, thus circumventing the law requiring public registration and fee. Here again, the form is formula and not a lease at all. The genealogist should read both documents because the lease often omits the wife’s name because her husband could lease property without her consent. Also, the two serve as duplicate copies for such easily miscopied information as intricate metes and bounds descriptions and difficult-to-read proper names.
English property law (land law and inheritance) prior to the Victorian reforms was extraordinarily complex, dependent on technicalities, and steeped in a vocabulary now long obsolete. The manner in which land was inherited contains many subtle clues that nearly all researchers will pass by in ignorance. It is unfortunate that legal history studies in America are both rare and usually inadequate and that genealogists have few convenient compilations of American property law that are aimed toward the non-lawyer. Three important exceptions are Carole Shammas, Marylynn Salmon’s and Michel Dahlin’s Inheritance in America From Colonial Times to the Present; Marylynn Salmon’s Women and the Law of Property in Early America; and “An American Law of Property” and “The Land: And Other Property” in Lawrence M. Friedman’s A History of American Law.86
Property was divided into the real (mostly land) and the personal (usually movables). In seventeenth- and eighteenth-century England, in intestate cases where no legal will existed, the personal property, but not land, was probated through the ecclesiastical courts with equal distribution to all children, while land was given under the common law to the heir-at-law. These differing courts for personal and real property account for why, at least in the colonial South, land is rarely mentioned in estate inventories: in England, such inventories were generally made by the ecclesiastical probate courts only, which did not usually probate land.
Primogeniture developed elaborate rules for identifying the heir-at-law in the absence of children. If there were children, the heir-at-law was the eldest son (or, if dead, his heir-at-law). In the absence of a son, the daughters jointly inherited as heirs-at-law. After 1540, the testator (maker of the will) could bequeath land, but lands not mentioned in the will were treated as intestate and went to the heir-at-law. The major exception was entailed lands, meaning lands bequeathed by an ancestor to a person and that person’s lineal descendants. The legal entailing phrase was “to X and the heirs of his or her body lawfully begotten.” (The phrase “to his heirs and assigns forever” is not an entail.) Such land entailed to X could not be bequeathed by will so long as it remained entailed, because entailed lands went to the heir-at-law. Widows had a right to a life interest in one-third of their husband’s lands, to be surrendered if they remarried. An excellent case study is Margaret Hickerson Emery’s “The Adeustone-Rogers Families of Virginia: Tracing a Colonial Lineage through Entailment and Naming Patterns,” in the National Genealogical Society Quarterly.87
The genealogist interested in colonial lineages should note how the land was inherited and how the personal property was disposed, if the inheritance existed in a time and colony governed by primogeniture and entail. If something strange seems to be happening, try to determine the local inheritance laws governing that time and place. Entailed lands and dower rights were protected from the debts owed by the estate, which may also give clues.
A summary of “Inheritance Laws Circa 1720 in the American Colonies” appears as table 1.1 in Inheritance in America from Colonial Times to the Present by Shammas, et al.88 But there is no simple summary for each colony showing which laws were in effect for which years for real/personal property or for other years for testate/intestate probates. John Frederick Dorman’s “Colonial Law of Primogeniture” is helpful.89 Richard B. Morris’s “Colonial Law Governing the Distribution and Alienation of Land,” in Studies in the History of American Law with Special Reference to the Seventeenth and Eighteenth Centuries, asserts that colonial practice was varied, uncertain, and debatable even to the colonial judges.90
Two English laws worth knowing are the 1670 Statute of Distribution (22 & 23 Charles II c. 10 as amended 1 James II c. 17) and the 1677 Statute of Frauds (29 Charles II c. 3). (An English statute is cited by chapter number of the acts passed by the Parliament sitting in a regnal year of the sovereign. Thus, the 1677 act is chapter 3, 29th regnal year of Charles II.) The 1670 statute dictated that personal property (not real property) was distributed like this:
- To children where no widow survived: whole property was divided equally among the children; a lone child received all.
- To children and widow: two-thirds to the children or their heirs and one-third to the widow.
- To widow where no children survived: one-half to widow and one-half to the father of the deceased if alive or, failing him, to the mother or the brothers and sisters.
- When no widow and children survived, property went to the father if alive or, failing him, to the mother or the brothers and sisters.
The Statute of Frauds provided that personal property could no longer be disposed by oral testament and that executors/administrators must distribute such property as stipulated by will. Personal property not disposed by will was treated as intestate.
Although there are many local exceptions, English law was in force in the colonies to some degree where more specific colonial statutes did not exist, but the colonies could and did enact differing laws if “not repugnant” to English law and custom. The New England colonies, Pennsylvania, and Delaware granted equal divisions of land and movables in intestates with a double share to the eldest son. (The eldest daughter, in the absence of brothers, had no like double portion.) If the land could not be conveniently divided, it could go to the inheriting son provided he justly compensated the other heirs. Rhode Island seems to have used primogeniture until 1770 (except from 1718 to 1728). Maryland abolished primogeniture in 1715, substituting equal division. The remaining colonies (New York, New Jersey, Virginia, the Carolinas, and Georgia), all royal, retained primogeniture until the American Revolution: . Georgia, in its earliest years, experimented with entailing lands by patent to male heirs, but it was an unpopular system.
If the heir-at-law automatically inherited entailed and intestate lands, then the eldest son need not be mentioned in his father’s will. For example, in 1713, a John Taylor of Julian Creek, Norfolk County, Virginia, made a deed stating that the will of his brother Richard (Richard was alive) did not leave seventy-five acres to Richard’s eldest son and in fact did not name this eldest son at all. Since the land had come to Richard from their father, John feared that if the land were not specifically transferred to the eldest son, he himself or his heirs would inherit this tract because John was the eldest son and primogeniture was the law in Virginia. Therefore, John, in his deed, gave seventy-five acres belonging to Richard to Richard’s eldest son, Richard, Jr. Richard, Sr.’s will survives and indeed does not mention the seventy-five acres or his eldest son.91
No English law required a testator, in disinheriting a child, to name him or her or to leave such a disinherited child the proverbial one shilling. As an unfortunate result, many wills ignore some children, leaving the genealogist in doubt as to whether the omission means the person was disinherited, dead, or not a child of the testator. Other records must be used to establish such points.
However, good genealogy is a conjunction of many types of records that together reinforce a pedigree and simultaneously test it. Land records are an essential strand in that web of proof but are only one part. For example, the problem was to identify which of several Isaac Lindseys in Maury County, Tennessee, married in 1808 and died in Navarro County, Texas, in 1852.92 An 1810 will by John Lindsey named a son, Isaac, who was a good chronological fit for the Texan, but this John had no deeds in Maury. Because Maury was opened to white settlement by an 1805 Indian cession and because the Lindsey family was certainly there by 1807, this absence of deeds or patents from the state of Tennessee was puzzling until local history provided an explanation. In 1783, North Carolina had allowed the purchase of Tennessee lands still held by Indians. The Maury County area had been claimed in 5,000-acre tracts by wealthy North Carolinians, but only in 1805 and 1806 could whites actually settle there. The Lindseys had arrived to legally “new” lands that had actually been long owned.
The deeds, court minutes, tax lists, marriages, and other usual records sorted out four groups of Lindseys—a justice of the peace who lived in the eastern part of the county, a late-coming family who settled in the southwestern corner, two brothers who owned land but never settled in the county, and the group to whom the Texan apparently belonged. In the absence of deeds, the Texan’s family was localized by three steps: (1) the 1809 court minutes contained an oath about a lease from Long heirs to John Lindsey; (2) various road overseer appointments placed the targeted Lindseys on Little Bigby Creek in the center of the county; and (3) the 5,000-acre tract of the Long family, purchased in 1783, was plotted, locating it on Duck River, which runs through the center of Maury County, and overlying Little Bigby Creek. Thus, the Long acres included Little Bigby Creek. Clearly, John Lindsey had leased his Little Bigby land from the Longs, not purchased it.
The rest of the proof included tracing the family back through Georgia into South Carolina. John had a brother who died, leaving three small sons who had come to Maury with their uncle John. One of these sons was named Isaac, while a second son had a son of his own named Isaac, neither being the Isaac who had married in 1808 and gone to Texas. Thus, the Texan was the one named in the 1810 will. By reading many volumes page by page, by plotting land grants, by following clues through several states, and through the fortunate survival of records, it was possible to see these Lindseys in Maury in the years 1805 to 1830, to sort out the different families, and to single out individuals. Land records underlie the whole proof, though alone they could never have untangled the lineage.
Several contributors have greatly enhanced the contents of this chapter. William Thorndale, whose text and arrangement in the first edition of The Source continues to be the core strength of the chapter; Mary McCampbell Bell, CLS, CGL, who provided the overview of early surveying in Virginia, designed the “Creating a Plat” figure, and revised the State Summary for Virginia; Birdie Monk Holsclaw, CG, who submitted the Mapping Software section; and Christine Rose who reviewed the Military Bounty Land section.