During the first 175 years of Virginia lawmaking, no official effort was made to preserve the laws that the General Assembly passed. In the early years, manuscript copies were read at the beginning of monthly court sessions, and legislators spread information on new laws among constituents by word of mouth. A few collections of Virginia laws were printed in London before 1733, when the first printing of laws took place in Virginia. After more than 150 years of lawmaking, it became obvious that courts and lawyers were not always uniform in their application of laws relating to property and other historical issues, such as Indian servitude, because there was no master collection of the “ancient” laws for precedents. Some manuscript copies remained in the hands of the families of former magistrates and some lay rotting in county courthouses.
Thus, in 1795, the General Assembly authorized the publication of laws passed since the beginning of settlement and relating to land and inheritance of property. Thomas Jefferson, who had made a large and important personal collection of Virginia laws dating from 1734, recommended publishing all the old laws that could be found and offered to supervise the work of copying them. He estimated it would take a clerk a year or more to copy them all and felt that three people could work about a day a week collating the manuscripts.2
Not until 1808 did the General Assembly decide to tackle the project, with William Waller Hening in charge. Hening’s thirteen volumes were published in the early 1820s, covering all the laws that could be found in manuscript or printed form, dating from 1619 (the date of the first General Assembly) to 1792. The effort was indebted to Jefferson’s collection and preservation of many of the early laws.
In addition to statutes, Hening chose to include in the first volume other historically significant documents, such as the Declaration of Independence, the Articles of Confederation, the Constitution, Virginia’s Declaration of Rights, the Constitution of Virginia, and the royal charters for settlement. Historians, therefore, have easy one-stop access to these documents.
In 1971, the Library of Virginia published a supplemental volume of laws dating from 1700 to 1750, mostly from records found in the Public Record Office in London and not included in Hening’s volumes.3 This supplement, which is indexed, should be used with Hening’s volumes 3-6. The laws deal with such subjects as the creation and boundaries of a number of counties, parishes, and towns, the sale or transfer of entailed property, tobacco, taxes, slaves, Indians, and roads and bridges.
The General Assembly, in 1835, directed that three additional volumes be published to include laws passed between 1792 and 1806, as a continuation of Hening. Similarly, these are known by the name of the editor, Samuel Shepherd.4 At Clayton Library, Hening’s Statutes, the 1700-1750 supplement, and Shepherd’s Statutes are all located in the general section of the Virginia stacks under the call number 975.5 V817.
Out of necessity, a genealogist named Joseph J. Casey in 1896 indexed the sixteen volumes of laws in Personal Names in Hening’s Statutes at Large of Virginia and Shepherd’s Continuation. At Clayton Library, copies of this index may be found in the general Virginia section under the call number 975.5 C338. As Casey stated in his preface, he had found, as many genealogists today find, Hening’s to be “a most indispensable adjunct in my researches.”
Hening’s volumes are also indexed in the massive Virginia Historical Index, popularly called the Swem index, after the editor, Earl Gregg Swem.5 In this work, references to Hening’s include personal names, place names, and subjects, such as mills, militia, tobacco, navigation of rivers, taxes, and marriages. In studying ancestors from a particular county or town in Virginia, look up the family name and the place name in the Swem index and note the entries with the letter H for Hening’s, as in 8H179 (Volume 8 of Hening’s, beginning on page 179).
Why do genealogists need these books of laws? The first reason is history, specifically how certain issues were to be handled at different periods. Some laws were loosely applied and adherence to them varied from county to county. Studying county records and history can help a researcher determine whether or to what extent the county government followed the assembly’s instructions. The early laws dealt primarily with the culture of tobacco and other staple commodities, church government, defense against the Indians, and other concerns of a frontier society. Laws eventually also addressed such matters as the administration of justice, the organization of government, requirements for suffrage, the creation of towns and counties, property and inheritance, slaves, marriage, imports and trade, and the established church. The subject of religion in this colony with an established church also led to laws requiring non-conformists to leave the colony, fining anyone who brought in or aided Quakers, and barring “popish recusants” (Catholics) from holding office.
The laws help us as family historians to understand the society and legal framework in which our ancestors lived. For example, the American Revolution did not change a number of the legal practices that had been in place during the colonial period. One law of 1785 renewed a 1748 law to continue a long-standing practice in the probate of wills. It provided that no will could be entered for probate within fourteen days after the testator’s death. In other words, the probate process could not begin until at least fourteen days after the decease of the testator.6 For genealogy, this law would imply that we could not estimate a death date within two weeks prior to the first probate date. By the same token, we could not know from the probate date alone whether the death had occurred two, six, or more weeks prior to probate.
Another set of laws of historical and genealogical interest dealt with the raising of militia companies. In 1775 as the American Revolution was beginning, the counties were instructed to raise militia companies for enlistments of one year. My ancestral counties of Cumberland and Amelia, along with Chesterfield, comprised one militia district, which was to recruit and train men for twenty days, housing six men to a tent. Each month thereafter, except December, January, and February, the militia was to muster for four days. Each May 10 and October 24, the Cumberland, Amelia, and Chesterfield battalions were to exercise for twenty days. Pay for privates was to be one shilling, four pence per day.7
By May of 1777, all free males between the ages of 16 and 50, with a few occupational exceptions, were required to be enrolled in the militia. Muster was to be held monthly except January and February. All privates and non-commissioned officers were to arm themselves with rifle and tomahawk, or a good firelock and bayonet, pouch and horn, or cartouch and cartridge box, and three charges of powder. They were instructed to keep on hand at least one pound of powder and four pounds of balls to be produced whenever called for by the county.8
A second reason for using the laws is that in genealogy, we often need a knowledge of the law in order to interpret properly the records we find or do not find. For example, another 1748 law set a long-standing precedent on marriage rules. Part of this law stated that the marriage license was to be issued by the clerk of court in the county where the female usually resided. Also, if either bride or groom was younger than twenty-one and not previously married, consent for the marriage had to be given by the father or guardian.9
A 1785 law spelled out the post-Revolution requirements for suffrage, to go into effect 1 January 1787. Every male citizen, other than free Negroes, of or over the age of twenty-one, with at least twenty-five acres of land with a house at least twelve-feet square and a plantation thereon, or with fifty acres of unimproved land, or with a town lot and house, would be eligible to vote in the county where the land was, or in the case of land in several counties, in the county where the house was. Polling would take place at the court house.10 Some of these polling lists can be found in the county deed books (no secret ballot then).
Laws pertaining to property are also of interest to genealogists. Consider these examples from just after the American Revolution.
(2) Every person of the age of twenty-one or more who was of sound mind and not a married woman could write a will and devise property with two or more credible witnesses.12 This meant, of course, that married women could not write wills.
(3) No person under the age of eighteen could write a will to dispose of his chattels (primarily livestock, slaves, tools, farming implements, and other movable, tangible property; not land).13 This implies, then, that persons younger than eighteen could own such property but only those eighteen or older could write a will that would be recognized by the court. Likewise, finding a will of a single young man, an ancestor’s brother, for example, would lead a genealogist to estimate that he was at least eighteen. He may have been older but was not younger.
(4) When Virginia began collecting taxes in 1782, just after the end of the Revolution, the General Assembly spelled out procedures. (As we use the microfilmed Virginia tax records at Clayton Library, it can be helpful to keep up with changes in the tax law.) Each county court was to divide its county into precincts or districts for tax collection purposes. Annually before March 10, the county court was to appoint a justice for each precinct to make a list of enumerated (taxable) articles therein. The justice was to give public notice of when and where he intended to receive the lists from the taxpayers and was to deliver the lists and vouchers for payment on or before April 20 to the clerk of the county court. The justice was to make a “fair alphabetical list” of the names of all free males over twenty-one residing in his precinct, the names of all slaves and to whom they belonged, and the lists of other taxable property reported by the taxpayers.
A third reason for genealogical use of the statutes is that many individual ancestors are named in them. For example, a 1791 act dissolved the marriage of Robert Turnbull and Sarah Buchanan.15 Other individuals were named as trustees of schools and academies that the legislature chartered or were the subject of private relief acts.
Two good examples appear in Shepherd’s Statutes, the continuation of Hening’s effort. First, in January 1808, an act stated that David Black, son of Dr. David Black, late of Blandford (part of Petersburg), had died, leaving about seventy-two acres of land in Blandford. By act of the assembly, the land was now to belong to James Sample and his wife, Joanna, the said Joanna being the nearest of kin in the United States to the said David Black, the younger, at the time of his death.16 The genealogical implications of this document are obvious. If the genealogist did not already know this connection, the find is marvelous and the next steps in research are clear: marriage record for James and Joanna, probate records of both David Blacks, land records of Petersburg, etc.
Secondly, also in January 1808, the assembly authorized William Faulkner, coroner of Halifax County, to deliver over to Jacob Faulkner, as trustee, for the use and benefit of Patsey Oliver, wife of Achilles Oliver, and her children, until the death of Achilles or until he was taken or surrendered himself to justice, all the real and personal estate of Achilles Oliver which William Faulkner was holding in consequence of Achilles absconding and refusing to surrender himself on his having been found guilty of murdering Joseph Gholston, by the inquest of William Faulkner, coroner.17 This kind of record can open the proverbial can of worms but may help answer other nagging questions of the diligent genealogist.
Virginia researchers are indeed fortunate to have at their fingertips at Clayton Library such valuable resources as Hening’s Statutes, Shepherd’s Statutes, the Laws of Virginia supplement, Casey’s index, and the Swem index. Laws passed after 1808 can be accessed at university and law libraries that have collections of the session laws from the various states.
Casey, Joseph J. Personal Names in Hening’s Statutes at Large of Virginia and Shepherd’s Continuation. Baltimore: Genealogical Publishing Co., 1967. Reprint of 1896 original and 1933 reprint, and reprinted in 1989 by G.P.C. for the Clearfield Company.
Hening, William Waller, ed. The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the year 1619. Charlottesville, VA: University Press of Virginia, 1969. Reprint of 1820-1823 original.
Shepherd, Samuel, ed. The Statutes at Large of Virginia, from October session 1792, to December session 1806 [i.e. 1807] inclusive, in three volumes, being a continuation of Hening. New York: AMS Press, 1970. Reprint of 1835 original.
Swem, Earl Gregg, ed. Virginia Historical Index. Magnolia, MA: Peter Smith, 1965. Reprint of 1934 original.
Winfree, Waverly K., comp. The Laws of Virginia; Being a Supplement to Hening’s The Statutes at Large, 1700-1750. Richmond: Virginia State Library, 1971.
Emily Croom is a CLF member and the author of Unpuzzling Your Past: A Basic Guide to Genealogy; The Unpuzzling Your Past Workbook; The Genealogist’s Companion & Sourcebook; and a new book due out in the spring, 2000, The Sleuth Book for Genealogists.