Colonial Legal Terminology

The following terms are often found in colonial court records, deeds, wills, grants, and other legal documents.   Most terms have specific meaning in the English common law of the time. I have also included some terms that might, in context, offer genealogically valuable clues.

Abate / Abatement Abate and abatement have several uses.  In a lawsuit, an abatement is a court order to terminate the suit, either because the plaintiff dropped the suit, or one of the parties died, or the defendant moved out of the court’s jurisdiction.  When applied to a bequest or a judgment, it normally means that assets were insufficient to cover the amount, and the amount due was reduced.  In general, it means that something was terminated or lessened.
Administrator or Administratrix A court-appointed manager of the estate of a person who either did not leave a will or whose will failed to name an executor (or whose executors declined to act).  The administrator had the same powers regarding property that the deceased would have had if alive.  The administrator or administratrix had powers and duties similar to executors (with a few specific restrictions) regarding converting the estate into a form that could be distributed to the heirs.  Courts normally appointed the closest relative who was both able and willing to serve.  For insolvents or those with no nearby relatives, the geatest creditor was often appointed to fill the role.
Administrator with the will annexed This terminology was used when a will existed but failed to name an executor, or when the executor died, resigned, or refused to serve.  Courts appointed an administrator to carry out the provisions of the will as the executor would have done if one existed.  It is sometimes rendered in Latin as cum testamento annexo.
Administrator de bonis non This terminology was used to identify an administration of a partial estate, as when an executor or administrator was replaced before distributing all the estate’s assets.  The Latin means, more or less, “of items not administered”.  Thus the term is typically applied to a second administrator of a partially distributed estate.  Note that he or she might also be an administrator cum testamento annexo.
Ad litem Literally “for the case” — limited to a single instance.  Used when a person was appointed to perform some task, usually involving a minor, only for the specific case at hand.
Ad quod damnum Literally “according to harm” — referring to the notion that compensation should be commensurate with damages.  Often found in court records referring to a type of writ ordering an assessment of damages that might result from some action.  For example, to assess damage to a landowner whose property was taken or used for some public purpose (a road) or private purpose (a mill dam that floods a neighbor’s land).   Another use, after 1734 in Virginia, was as a means of docking an entail (that is, to convert a fee tail interest into a fee simple one.)
Alias Capias See Capias.  Generally, an alias writ is the second one, issued because the first was not executed for some reason.
Alien / Alienate
To transfer property (in addition to the obvious second meaning).  Versions seen in deeds include alienate, alienation, alienee, etc.
Appurtenance Literally, something attached or subservient to a more important thing.  In deeds for land, it refers to things attached to the land (rights of way, agreements that transfer with land, orchards, structures, etc.)
Assign As a noun, this is a person who acts on behalf of someone else.  As a verb, the act of transferring an interest in something to another person.  For example, a grant applied for but not yet issued might be assigned to another person.
Bargain & Sale A form of deed.  See separate paper on deeds.
Bastard A child born out of wedlock, or to a couple who were not married in a way recognized by the civil authorities.   At the request of the mother or the authorities, an identified father could be compelled to provide for the child’s support.  A bastard child, even if acknowledged, could not inherit from the father.  See separate papers on inheritance and succession for more information.
Bequest A transfer of personal property, usually by will.  “Bequest” was used for personal property and “devise” for real property. (Legacy has the same meaning as bequest.)
Bond A promise to do something (or not to do something) secured by an obligation to pay damages if the promise is broken.
Brother (Sister) These terms were often used for stepbrothers, half brothers, or even for brothers-in-law.  It does not necessarily refer to a brother or sister in the modern sense.
Capias An order to the sheriff to arrest or take into custody a person to assure their appearance in court.  If the order was not executed, a second order was called an alias capias.  If a third order was necessary, it was called a pluries capias.
Caveat A notice not to do something until the person caveating has been heard.  It is often seen in the case of land claims, where a caveator might object to a claim that infringes upon his own claim.  It is also seen in the case of wills, as when a widow might caveat a will to prevent probate until her objection is heard.
Chain A surveying device for measuring distances, usually made up of 100 links.  The typical chain used during colonial times was 66 feet long, or four times the length of a pole.  A furlong was 10 chains and a mile was 80 chains.   A square mile was 80 chains by 80 chains.
Chancery A court or proceeding that dealt with suits focusing on questions of fairness or equity rather than strictly legal matters.  Often just a special session of a law court restricting its cases to equity matters.    Chancery or equity suits usually involved disputes in which some special remedy was requested or where application of the law was insufficient to satisfy the plaintiff.
Chattel Personal property such as livestock or household goods. See Estate.
Citizenship In the colonies, only an English citizen could own land, serve on a jury, hold public office, or vote.  If a person did any of those things, we can be sure they were either English-born or had been naturalized as an English citizen.  In Virginia, for instance, a foreign-born person could be naturalized as a citizen only by an act of the Assembly before 1680, which acts are preserved in Hening’s “Statutes at Large”.  After June 1680 citizenship could be bestowed by the Governor.
Cousin Generally, “cousin” referred to a nephew or niece (often including nephews-in-law or nieces in-law).  In the broadest sense, it could mean any familial relationship, blood or otherwise, except for first-degree relationships.
Conveyance The transfer of title to property.  In colonial times, conveyances were generally specific to real property rather than personal property.
Coverture (Couverture) The legal status of a married woman.  When a woman married (when a feme sole became a feme covert) she lost her legal identity as an individual.  The married couple was legally a single identity with the husband as its representative.  See separate article on Women’s Rights for more detail.
Curtesy A widower’s interest in the property of his deceased wife, basically the male version of dower.  See separate paper on Dower and Curtesy for more information.
Demise A term that normally referred to a conveyance of property by lease, or sometimes by will.   Used both as a noun (the conveyance)  and a verb (to convey). 
Detinue An action to recover property unlawfully kept by a defendant.  It refers to the unlawful keeping of property rather than the act of taking property.  Often used by creditors to recover property pledged by a debtor but not delivered.
Devise A transfer of real property, usually by will or deed.  In wills, “bequest” was used for personal property and “devise” for real property.
Dower A widow’s interest in the property of her late husband.  Normally we see it used in the sense of the wife’s interest in the land which her husband owned during the marriage.  During her husband’s life, a wife’s dower interest was essentially meaningless.  Upon her husband’s death, it entitled her to a lifetime interest in (usually) one-third of the land, no matter who owned it.  (Technically, the interest was in the income produced by the land, for the widow held no ownership interest.)  Prudent buyers would assure that the widow relinquished her dower interest in any sale by her husband or, after his death, by the heir to the land.   The widow generally could not sell or devise her dower interest, since it was hers for her lifetime only.  See separate paper for more information.
Ejectment A legal process to remove a tenant from leased land.  In the colonies, ejectment suits were frequently used to avoid the cumbersome legal processes for disputing title to land.  When used in this way, half the parties to the suit were fictitious.
Entail To create a fee tail.  See the separate paper for more information.
Estate The estate of a living person included both real and personal property.  In the context of a dead person’s estate, however, the term does not include land because land was not subject to probate, having passed directly to the heir or heirs at the instant of death.  Thus the term may have a slightly different meaning in court records, depending on whether the person was alive or dead.  In most cases, the term refers to personal property.  A living person’s estate could be seized, attached, or sold to satisfy judgments.  A dead person’s estate was inventoried, appraised, and distributed to his heirs.   [To be technical, one’s estate also included one’s debts.]
Escheat Refers to the  reversion of property to the state (the Crown or Proprietor) when there were no qualified heirs.  For example, patents reverted to the Crown (or the proprietor) when the patentee died without heirs, was convicted of certain crimes, or failed to satisfy the terms of the patent.
Et ux Latin for “and wife”
Facias Used to differentiate writs.  Fieri facias refers to a writ of execution, usually to enforce a judgment against a debtor.  Scire facias refers to a renewal of a judgment or an order to appear to answer a judgment.
Fee Tail Land held in tail, or entailed.  See separate paper on Entail.
Fee Simple The typical form of land ownership in which title is unrestricted.  See the separate papers on Entail and Deeds.
Feme Covert A married woman.  See separate paper on Womens Rights.
Feme Sole An unmarried woman.  See separate paper on Womens Rights.
Feoffment A form of deed for land.  See separate paper on forms of deeds.
Fieri Facias (fi fa)
A court-issued writ ordering someone (usually the Sheriff) to execute a judgment  – collect money, seize property, etc.  In Latin it means “cause to be done”.  Often abbreviated as “fi fa.”  Typically occurs in court records related to debt collection.
Farm Let A lease.  Often found as the phrase “lease and farm let” in a lease document.
Freehold Land held in fee simple.
Freeholder Technically, a person with an estate in land, although some colonies, like Virginia, also used the term to apply to non-landowners with sufficiently large personal assets.  Only a freeholder could serve on juries, hold office, or vote.
Glebe Land belonging to a parish, the income from which was used to support the local church.
Guardian A guardian was responsible for managing the estate of a minor (or an adult judged not capable of managing their own estate), as well as for their education, debts, and representation in legal actions.  The guardian was not necessarily the person with whom an orphan lived.  Orphans might live with their mother, for instance, but have a guardian to manage their inherited estates.  Orphans under the age of 14 had court-appointed guardians, but at 14 a child could choose their own guardian.  See separate paper for more information.
Headright This is discussed in more detail in a separate paper, but the point of including the term here is to emphasize that a patentee who claimed a headright was not necessarily the person who imported the headright.  In fact, recent research suggests that most persons claimed as headrights were imported by someone other than the patentee.  In addition, the date of a patent may have been several years after the importation itself – and was intended in the original design of the headright system to have been at least three years later.
Heir presumptive This refers to the person who would be first in the line of succession if an individual died at the present moment.  One cannot become a heir until the death actually occurs, so the heir is “presumptive” because future events could launch another into their place.  See the paper on colonial inheritance law.
Hereditament Something that can be inherited.  
Imparlance A delay or postponement.  Usually seen in the sense of a postponement granted to a defendant to provide time to answer a suit or plea by the plaintiff.
In-law This term was used in a much broader sense than it is today, referring to any relationship created by a legal event, like a marriage.  For example, a stepfather was typically called a father-in-law.  Likewise, a son-in-law could have meant a stepson, the husband of a daughter, or even the husband of a stepdaughter or daughter-in-law. Even terms like “brother” and “sister have to be interpreted in a broad sense.  “Brother” could have been used for stepbrothers, half-brothers, the brother of a sister or sister-in-law, even for a close friend or member of the same religious group.
Infant Anyone under the age of 21.
Indenture Any deed, written contact, or sealed agreement.  The word originally meant a deed or agreement executed in multiple copies with the edges indented for identification.
Intestate Without a will.  The property of persons who died intestate was subject to a specific set of succession rules which determined who inherited land and another set of rules that determined who inherited the personal property.
Inventory The inventory of a deceased person’s estate (his personal property) was taken by a small committee of persons who had no personal interest in its value.  They were almost always close neighbors who were unrelated to the deceased.  Thus, such appointments can be valuable clues as to both geography and to the lack of relationship to the deceased.
Issue This generally has the same meaning as “living descendants”.  It refers not only to a person’s children, but to their grandchildren, great-grandchildren, and so on.  The phrase “Issue of one’s body” specifically refers to natural children.  In some cases the meaning is counter-intuitive.  For instance a person with children could be said to have “died without issue” if none of the children produced children of their own.
Jury Jury service was a privilege reserved for freeholders.  Grand juries were usually appointed in advance and served for a term of time.  Case juries were normally chosen on the spot from the group of people attending the court for other actions, persons relaxing in a nearby tavern, or people who were otherwise located nearby the courthouse.  (The term was also used for other groups like those chosen to lay out roads.)  Normally, jury service is a certain indication that a jury member was a landowner (or at least owned property of sufficient value to substitute for land.)
Lease and Release A form of deed in which the grantor first leases the land for a short term and a nominal consideration, and then releases his rights to the land for the actual purchase price.  This usually takes the form of two recorded documents dated a day or so apart.  The effect is the same as the normal “bargain and sale” deed.   The lease and release form of deed seems to have been more prevalent in some jurisdictions than in others, and may have reflected a preference on the part of the local court or its clerk.  The lease and release appears to have originally developed as a means of avoiding the requirements of livery of seizen, which was required for deeds but not for leases. See the paper on history of deeds.
Legacy Same meaning as bequest
Livery An archaic term for “delivery.”   Usually found in the context of a livery of seisin, originally referring to a ceremony in which land was conveyed to a new owner.  Many colonial deeds carry a notice of livery of seisin, meaning that physical possession had taken place.  See separate paper on deeds for more information.
Majority The age of 21.
Messuage A dwelling.  Literally, a house along with associated outbuildings and the land they sit upon.
Moiety A half-share of something.  Rarely, an equal share other than a half-share.
Nihil dicit Latin for “he says nothing”.
Non est inventus Latin for “he is not found”  Often written on a writ or subpoena by the sheriff when he failed to locate the specified person in his jurisdiction.
Nuncupative Will An oral will.  Nuncupative wills were oral (and obviously unsigned), dictated in the presence of witnesses, one of whom reduced the oral statement to writing.  Nuncupative wills were valid only if dictated during a “last illness” (that is, on a deathbed) and only if no prior written will existed.  There existed a common-law understanding that nuncupative wills were invalidated if the testator recovered from the illness or if they were not recorded within a short time.  See the separate paper on wills for more information.
Orphan Any infant (person under 21) whose father had died.  Note that a person whose father had died was an “orphan” regardless of whether or not their mother was living.
Oyer and terminer Refers to a trial court that dealt with criminal cases.  A rough translation of the French legal term oyer et terminer (meaning, roughly, hearing and determining).
P In court records, many clerks used the single letter “p” as shorthand for “per” and “par” and often for other syllables and words beginning with “p” as in pcent for percent, pish for parish, and even “coop” for cooper.
Perch A unit of distance identical to a pole.  See pole for more.
Personalty Personal property
Per Stirpes Literally “by the branch”.  It is used to refer to distribution of property to members of a family (per stirpes) rather than to individuals (per capita).  It typically refers to the family members who represent a deceased member — for example, when the children of  a deceased person take an inheritance per stirpes it means they share equally in whatever the deceased person would have inherited if he or she was alive.
Petition In addition to its normal modern sense, petitions were a means whereby a plaintiff could sue a debtor in a distant county without actually having to appear personally in court.  This is a often a useful clue as the residence of the plaintiff.
Planting and Seating  In Virginia, a patentee was required to cultivate a portion of granted land, or keep livestock, and build a structure on the property in order to complete the requirements of the patent.
Pluries Capias See Capias
Pole A surveying distance equal to 16.5 feet.  Colonial surveyors normally used a 66-foot long surveyor’s chain.  A pole was one-fourth of a chain.  A mile was 320 poles long.  A pole was also called a rod or a perch.
Primogeniture In the southern colonies at least, this was an element of intestate inheritance that is important to understand.  Primogeniture applied only to land, not to the personal property, and used a specific line of succession to determine ownership of an intestate’s land.  (Or in the case of a will, to determine ownership of any land not devised in the will.)  This is more fully explained in another paper.  Virginia, North Carolina, South Carolina, and Georgia did not abolish primogeniture until after the Revolution.  See separate paper for more information.
Quitrent This was an annual payment of a token amount by a landowner to the grantor of the land.  The rent was paid either to the Crown or the Proprietor, depending on who granted the land.  If the land were sold, the responsibility for the annual quitrent passed to the new owner.  Quitrents were not successfully collected in Virginia, and only one colony-wide list is extant, for 1704.
Relict A widow.  The concept of common law was that a married couple formed a single entity.  When one died, the other was the relict of the union.  The term was almost universally applied only to the woman.
Replevin Normally a sort of court-assisted repossession of property.  In colonial days, an alternative to detinue in that plaintiff could take possession of property prior to trial of the suit.
Room / In the Room of
“in the room of” is archaic language meaning “as a substitute for”.
Scire Facias See Facias.  A court order to answer a judgment
Seisin / seizin An archaic term roughly meaning “possession.”   Usually found in the context of a livery of seisin, originally referring to a ceremony in which land was conveyed to a new owner.  Most deeds carry a notice of livery of seisin, meaning that physical possession had taken place.
Special Bail This was a type of security, usually for a debt.  If the debtor failed to make good on a judgment, the person who was his special bail was responsible for paying the debt himself (or serving the time in debtor’s prison).  Obviously something that might indicate a special relationship between the parties.
Spinster An unmarried adult female (as opposed to a widow).  Commonly seen in public records to identify a single woman of age 21 or older.  (Confusingly, the term also means a spinner of yarn.)
Subaltern Any commissioned army officer below the rank of Captain.   The term encompassed Lieutenants, Ensigns, and Cornets.  (Ensigns were the army rank just below Lieutenant, while Cornet was the equivalent rank in cavalry units.)
Suits (lawsuits) It is important to understand that suits were heard in the county of residence of the defendant.  The plaintiff might be from another county, but the suit had to brought in the county where the defendant resided.   The suit would be abated if the defendant moved out of the county.  The process for suing depended on the amount in question.  In early Virginia for instance, a single justice could rule if the amount was small (typically under 25 shillngs or 200 lb of tobacco).  For amounts under £5 or 1,000 lb. of tobacco, the entire court ruled.  For larger amounts, a jury was required.
Tenements In a broad sense, this refers to anything held by tenure.  In deeds, it normally refers to buildings.
Test Witness
Testament An instrument that devised personal property.  See Will.
Three-Lives Lease A version of the English manorial lease, this is a lease whose term is the lifetime of the longest-lived of three persons.  Usually, the lessee will be something like “John Smith, his wife Sarah, and son John Smith Jr.”, meaning that the lease would remain in force until the last of those three persons died.
Uxor A wife.
Vizt. “To wit” or “namely”
Will An instrument that bequeathed real property.  Historically, a Testament devised personal property.  See separate paper for more information.
Witnesses Witnesses to contracts, suits, and deeds could be practically anyone, including minors.  Some special cases apply to witnesses to last wills and testaments.
Witness Fees Witnesses in county courts were typically paid for their time and persons who lived outside the county were also paid for their travel.  Witnesses who resided in a different county were allowed a travel allowance for mileage from their home to the court.  Knowing the allowance might help to determine where they lived.  (The Virginia fee for several years was 1½ lbs of tobacco per mile.)  Fees were paid by whichever party called the witness.
Ye (yis, yat, etc.) The medieval English alphabet had a character called a thorn, which represented the sound of “th”.   Printers, using typefaces with only 26 letters, adopted the lower-case “y” to substitute for the thorn, thus “ye” was pronounced “the”.   Clerks and scribes sometimes used the letter y for the character combination “th”, as in ye (the), yt (that), yis (this), oyer (other), 5y (5th), etc