Common Law, Statutes, and Equity in the Colonies

What follows on this and other pages, is applicable to the southern colonies, but not necessarily to the northern ones.  Colonies like Massachusetts and Pennsylvania, for example, deviated significantly from both English law and the other colonies in several respects important in genealogy.

We tend to think of “the law” as a vast collection of statues covering nearly every possible circumstance in precise detail.  However, this modern view is quite misleading.   The law in the 17th and 18th century south was largely unwritten.  The “law” was a combination of common law, equity, and statute.   Much of the foundation of colonial legal systems was the common law of England, which tended to be assumed by the colonies rather than codified  As it happens, the aspects of law that most concern genealogists were, to a considerable extent, “unwritten”.

Common Law

English law was unusual in that it was based, not on an exhaustive collection of statutes, but rather on precedent and custom.   Hence the term “common law”.  When we call it “unwritten”, we don’t mean that literally, but rather that it was to a great extent un-legislated.  In particular, the aspects of law that most concern genealogists – legal age, women’s affairs, property laws, inheritance, and the like – were mainly based on principles established through a long history of judicial decisions.  These decisions were, in turn, based on precedent, custom, and the values and attitudes of the society which created them.  That is, the common law reflected what worked rather than the whims of a monarch or a legislature.  A system of common law established in this way is slow to change and therefore relatively stable and consistent over time.  The fact that much of it exists in our codes to this day is a striking example of that persistence.  Virginians, after a brief period of near martial law, began with these principles and then adapted or expanded them to reflect the unique characteristics of life in the colony.

Because the common law of England was generally unlegislated, it was not codified in a form that is preserved today.  Our sources today are a variety of legal texts of the period and later.  Although there were several of these, the most useful to us was produced by Sir William Blackstone. His Commentaries on The Laws of England (4 volumes 1765-9) are relatively inexpensive today and quite useful in understanding the common law foundation on which the colonies built.

Colonial Statutes

Though Virginia (and later the Carolinas) began with a foundation of English common law, it was necessary to address circumstances unique to their geography, economy, and society.  Slavery, Indians, and the tobacco economy, for example, demanded specific legal attention.   In the south, it is generally safe to assume that English common law principles applied unless modified by the colonial legislatures.  The acts of the colonial legislatures are published for all the American colonies though some, like early North Carolina, are partially lost .  For Virginia, William W. Hening’s Statutes at Large of Virginia (13 volumes, 1809-1823) reproduces all the preserved laws of colonial Virginia, as well as other important legal documents.  The statutes of Virginia are particularly important, since it was an “exporter” of laws to the smaller southern colonies.

Equity & Chancery

A third area of interest, sometimes overlooked by genealogists, is a completely independent system of legal rules called “equity”.  England’s chancellors (who were generally clergymen) played a role in dispensing justice that evolved into what amounted to a court, complementing and sometimes conflicting with the common law.   At the risk of over generalizing, the common law and statutory law dealt primarily with two things:  the duties, rights, and obligations of individuals, and the status of people and their property.  Equity dealt mainly with performance, for it was focused on fairness.  For example, common law held that a deed was valid if executed in the proper form, while equity required that it be free from fraud or deceit. Chancery courts, under one name or another, carried out the dispensation of equity.  Equity and law eventually merged into a single body, but remained at least partly separate in most states long after the Revolution.

The following pages are an attempt to summarize many concepts which can provide us with genealogical clues.  Many of them are not self-evident.  When confronted a legal record, I recommend consulting the statutes of the colony in question.  If a relevant law is not found, I recommend consulting Blackstone to determine if the common law position  addresses the issue.  What follows on this and other pages is necessarily very general and you should be cautious about applying it to every case.

A Comment on Language

I don’t have to remind genealogists to avoid applying modern meanings to colonial language, or to avoid interpreting records in the light of modern concepts and morals.  But the language used in old records sometimes misleads us despite our best intentions.

Terminology often, if not usually, had meanings very different from the modern sense of the same word.  “Orphan”, for example, meant a minor whose father was dead, and implied nothing about the mother.  “Son-in-law” included the modern relationship we would call stepson and “cousin” included relationships like nephew or niece.  It’s important to understand the legal meaning of terms, some of which are included here in a separate file.

It is also important to understand that the common law often dictated a very precise use of language.  We cannot abstract records too cavalierly without risking a loss of specificity.

At the same time, we need to be aware that some language was based on custom rather than law, and cannot be interpreted too literally.  For example, English wills customarily began with an elaborate religious preamble.  Its presence in a will is not evidence of religious devotion so much as it is of adherence to the custom and convention.