You Don't Know What You May Be Missing: Using Order Books & Chancery Papers

by Michael Pollock | Mar 27, 2012

Order books and Chancery Papers are genealogical resources too rarely utilized to the extent they could and should be.

A major reason genealogists may prefer to avoid orders is that the same may be recorded in a minute book rather than order book, or one might not recognize the differences between them. As it is the record of a meeting, that meeting being of a Court, much as would be done today, a minute book is more apt than an order book to use abbreviations or even a form of short-hand that can challenge even a seasoned expert. Since an order book typically contains more detail than a minute book, when both are available for a specific period, the order book should checked first.

Another reason to avoid order/minute books is along with appointments and resignations of judges and other officials both major and minor, and issuance of licenses, they are predominantly tedious accounts of lawsuits. Those over debt rarely included the specific items purchased. Those for insult/assault rarely included what was said/done in detail that would actually interest the descendants of the parties involved. Adding insult to injury, there often are no indexes, and when there is an index, it omits the overwhelming majority of individuals mentioned in the same. For that reason, it is probably more accurate to refer to the index as a table of contents, particularly since it will often appear at the beginning of the book.

While not all indexes do include appointments of officials, they often do. Why would appointments of officials be of any interest to a genealogist? Well, appointment to such posts as justices, sheriffs & deputies, tax collectors, jailers, etc., qualifies the descendants of such individuals for membership in numerous hereditary societies which either recognize the holding of civil office as a "patriotic" act (the DAR coming immediately to mind). Of course, the office must be held during a specific period of time, 1775-1783 for the DAR, and prior to 1701 for Colonial Dames of the XVIIth Century. Additionally, orders/minutes will include issuance of licenses for such occupations as minister, tavern keeper, attorney, ordinary keeper (an early version of a "guest house" or "motel"), peddler and ferryman. The Colonial Dames recognizes the holder of all such licenses as a qualifying ancestor for any eligible descendant wishing to join. The DAR is not quite as "generous", but when the license dates during the years 1775-1783, it could perhaps be argued that the willingness to recognize the right of the issuing jurisdiction to grant such licenses was an implicit rebellion against British rule, establishing the license holder as a patriot. That is certainly how the DAR classifies those whose served on juries, whether petit (judging either guilt or innocence in a trial) or grand (either issuing or refusing to issue indictments that would result in a trial). What other offices there might be that would be recognized by a society for admissions to membership is apt to vary from locality to locality. Though I no longer recall the locality other than it was in New York, I found an applicant to the DAR was indeed eligible for membership because her ancestor had been a "pound master". Initially I thought the office might have had something to do with collecting and dispersing of tax money and fees paid to the court, but further research established that "pound" was used not in the sense of the British monetary unit, but as the word is still sometimes used today in connection with dogs, i.e., today a "pound master" would likely be called a "game warden".

Still other reasons why an individual might be mentioned in an order/minute book and the same be recognized as a "qualifying" service by hereditary/patriotic societies would be helping to build/repair a road, bridge or public building, petitioning for the building or repair of a road or bridge, and claiming a bounty for the killing of a wolf. Such activity isn't particularly exciting, except perhaps when one discovers that one's ancestor was the namesake of a road because he petitioning for the building of the road or his home was the starting/ending point for the same.

Though one was not always required to have a license to operate a mill, one generally did have to get permission from a court to build one. That was because when it would be water-powered, such a mill could require both the speed and direction of the flow of water both into and out of the mill be altered, so it was necessary to determine who might be harmed and what compensation they might be due as a result. It should perhaps be noted that the decision who would be harmed was based strictly in terms of access to water from the stream, and not others who operated other such mills in the area. The establishment of mills often led to further commercial development and even the founding of towns, though such mills and the towns that may have grown up around them did not always survive the ravages of time.

Names of jurors is one example of details typically omitted from an "official" index to an order book, though, perhaps because they occurred regularly, typically every quarter, I have seen the summoning of a grand jury noted in order book indexes. With the pages noted for the summoning, it is possible to locate the names of those who were so summoned, though it might require reading to the minutes for the next session of the court.

Speaking of jurors, a jury might be summoned not just to determine whether an indictment should be issue or a crime had been committed, but to determine damages to be awarded to some adversely affected by the building of a mill or changing the route of a road, not to overlook investigating an unexplained death. With a woman typically unable to serve on a jury because that right was reserved for landowners and specifically male landowners, I was fascinated to find in the records of, as I recall, Westmoreland County, Virginia, during the 1600s, a number of coroner's juries summoned to determine whether infants who had died had been stillborn or were murdered by their mothers consisted entirely of women!

Order/minute books also acknowledge the presentation of wills, deed and administrations to the court for recording. On multiple occasions, I have seen in Virginia orders where a wife not mentioned by name in a deed or will was identified by name in the corresponding order.

Probably the group of records for which a genealogist is most likely to search an order book will be lawsuits, though perhaps not those for debt or battery for reasons already noted. While details found in an order book for a suit are typically sparse, it can be possible to surmise details. For example, a suit where there are both multiple plaintiffs and defendants and a single surname predominates is likely over an inheritance, and the other surnames apt to be ether the married names of daughters or grandchildren. That said, though suits are among the most likely items to be included in an order book index, what is included may be merely the names of the primary plaintiff and defendant, particularly when there are multiple plaintiffs &/or defendants to a single suit. Thus, the most effective way to search a minute/order book often is to read them page by page, line by line.

In characterizing what can typically be found in an order book, at least in Virginia, one might say that not only can almost anything be found in an order book, but also the same tidbit could not be found anywhere else, yet it could also be foolish to go to the order book where a tidbit is specifically found to look for the same!

A "Federal" Record in a Local Court

One illustration of this is the Revolutionary War pension "application" of Joseph Whitiker(sic) recorded in Wythe County, Virginia, Court Order Book 1830-1833, pages 425-27 and dated 13 November 1832. While the several states, including Virginia, once issued Revolutionary War pensions, following the passage of the Pension Act of 18 March 1818, I am not aware of any states continuing to do so, and no local government ever did. Joseph's affidavit is significant for a variety of reasons, one being that it detailed Revolutionary War service often difficult to prove. Why? His service was strictly militia, which tended to be of very short duration, such as for a local emergency, with records generated only when the company left the county, if then, as if the company left the county, it was likely absorbed into a state regiment, and the records kept would be state records. A greater significance for this specific pension is there is no "official" copy of the same in the records of the Pension Office in Washington, D.C.

I have seen other instances of individual affidavits found in Pension Office files in Washington being recorded in an order book, but this was the first I can ever recall seeing where an order book copy was the only copy and I found myself wondering why? The fact that the initial spelling of the soldier's surname in the affidavit was Whitiker was not a factor, as I checked both the actual microfilm of Revolutionary War pensions and Max Ellsworth Hoyt's Index to Revolutionary War Pensions and for variant spellings of Whitiker, as well as the every name index to Virgil D. White's Genealogical Abstracts of Revolutionary War Pensions (1990), finding no entry for this Joseph Whitiker, something of a surprise since Thomas Farley, one of the individuals "testifying" on behalf of Whitiker in Whitiker's affidavit, was himself a pensioner and mentioned Joseph as someone with first-hand knowledge of Farley's service, so Whitiker should have been mentioned in White's abstract of Farley's pension!

The date of Joseph Whitiker's affidavit was after the passage of the Pension Act of 7 June 1832 which stipulated that anyone with at least 6 months total service, even if strictly in the militia, was entitled to a pension regardless of financial need. Perhaps Whitiker was advised by someone that he did not qualify because he met the 6 months test only by including of his service in Captain Henry Poling's Company of Colonel Andrew Lewis' Regiment in 1774, during what is sometimes called Lord Dunmore's War. While such service is recognized as part of the Revolution by the DAR, there is a considerable body of opinion, apparently including the U.S. Government, that disagrees. That war was a direct challenge to the restrictions of the 1768 Treaty of Fort Stanwix against English settlement west of the Appalachian Mountains, but Dunmore's motivation was not so much a challenge to British rule, which he represented as Governor, as a recognition that the ban on settlement reduced the value of his stake in large tracts west of the Appalachians that could not be legally settled under the terms of the treaty!

No Statutes of Limitation Here!

Another example that comes to mind of something found where one would not expect is a suit to recover a dowry filed by Sarah, widow of Thomas Chester, an original justice of Frederick County, Virginia, against William Miller on 5 May 1772 (Order Book 16, page 74). Her suit is notable for several reasons. First, the dower was for land her husband, who had died in 1748, nearly 25 years before the filing of the suit, had sold to Miller. Today, a statute of limitation would prevent such a suit from being filed, much less heard, and being heard, won! Second, Sarah's suit contained detail that not only was unusual for an order book, but non-germane to her suit, thus in a modern court might not have even been allowed into the record during the trial. What was that detail? Sarah noted that her parents had objections to her marriage to Thomas Chester, obliging them to elope to marry at the Swedish Church at Wiccacoa in what is now Philadelphia County, Pennsylvania. Regrettably, I am advised by a descendant who contacted the church after I advised her of the suit that no record of Thomas' and Sarah's marriage actually survives there!

Yet another example is a lawsuit recorded in King George County on 4 April 1754 (Order Book 1751-1765, pages 263-78) by Henry Fitzhugh, Senior, against Lewis Burwell "infant". This lawsuit went beyond the above Sarah Chester v. William Miller suit in containing not just more detail than is typically found in an order book, but 15 pages more! Among the same were verbatim copies of three documents. First is the will of Thomas Wilkinson, originally dated 23 April 1668 and probated in Marston Parish, county York, England. As it mentioned a land grant in Stafford County, Virginia, issued to a Samuel Matthews in 1659 which Wilkinson had purchased from Matthews, Wilkinson's will was re-recorded in Stafford County on 8 November 1692. The second document is a deed from William Thomas, cooper, and wife Hannah, of James City County, to William Fitzhugh of Stafford, which was originally recorded in James City County, also in 1692. The third document was a deed of gift from Henry Fitzhugh, Senior, and wife Susannah, to their son Henry, Junior, in anticipation of the latter's marriage to Sarah Battaile, only daughter & heir of John Battaile, deceased, of Caroline County, dated 11 October 1746, Stafford County. While the original copy of Wilkinson's will may be still extant in England, I've made no effort to confirm that, but neither its 1692 copy in of his will nor the 1746 deed of gift from Henry Fitzhugh are still "of record in Stafford, the 1692 deed in James City is no longer of record in James City, and there is no record of either the death of John Battaile or marriage of his daughter are among in the extant records of Caroline!

The James City deed included a power of attorney identifying Hannah Thomas first as the daughter of a Ann Goodall, but apparently not of Ann's husband John Goodall, then as previously the wife of Thomas Wilkinson. Wilkinson's will acknowledged a wife named Ann, but no daughter Hannah, indicating she was born after her father's death. Finally, because both the Thomas Wilkinson will and William Thomas to William Fitzhugh deed were part of the Fitzhugh v Burwell suit, neither was referenced in the index to King George County Order Book 1721-1734. As a result, though his King George County, Virginia, Will Book A-1, 1721-1752, and Miscellaneous Notes included the a verbatim copy of the 1748 will of William Morton of James City County from King George County Order Book 1735-1751, the noted George Harrison Sanford King did not include Thomas Wilkinson's will in the same for two reasons: 1)it was recorded in the subsequent order book; and 2)the index to the order book does not acknowledge the recording of the will. Perhaps this should have been included in my previous article "The Importance of Using Original Records"?

You Found Who? Where?

Having earlier said that one could be foolish to look for a record specifically in the place or time where it is actually found, one may actually need to have some particular "insight" into the situation to be able to recognize when one has actually found something significant. A good example of the same is an arrest warrant issued by the King George County, Virginia, Court against Thomas Cresap in 1728 (Order Book 1721-1734, page 324). The warrant was significant as it suggests that the "authorities" believed Cresap to be a resident of the county at the time for King George would have no jurisdiction over an individual living outside of its boundaries (a reason why an individual might leave an area, never to return), but the surname is not one commonly associated with King George at any time in its history, yet I was familiar with it. How? Cresap is widely acknowledged as the founder, circa 1735, of the city of Cumberland, Maryland, where my paternal grandfather was born in 1879. He was also a central figure, the result of his being granted by the colony of Maryland both land and, in 1730, a license to operate a ferry across the Susquehanna River at Blue Rock in what is now Lancaster County, Pennsylvania, in "gun battles" over the boundary between Maryland and Pennsylvania that was ultimately settled by the running of the Mason-Dixon Line! Thus, it seemed unlikely that Cresap had ever reside in King George. There is, however, a certain irony, in the fact that in 1728 the boundaries of King George County were as ill-defined as the boundary between Maryland and Pennsylvania.

The act of the Virginia legislature which established King George County stipulated both that Cedar Run (now part of the boundary between Fauquier and Stafford Counties) was a part of its boundary and that it was separated from Stafford County by the ridge line between the watersheds of the Rappahannock and the Potomac River, i.e., Stafford was north of King George. Anyone familiar with the current boundaries of either Stafford or King George knows that Stafford lies more west than north of King George and also has the Rappahannock River as its southern boundary, while King George now has the Potomac River as its northern boundary, those change resulting from a petition during the Revolution by residents of the western portions of both counties complaining of the distances they had to travel to attend court, which saw the eastern portions of Stafford ceded to King George and the western portion of King George ceded to Stafford.

But it is Cedar Run that is of interest re Thomas Cresap. Until the creation of Orange County in 1734, with the exception of Northampton and Accomack, which had the Chesapeake Bay as their western boundary, the acts establishing Virginia counties said next to nothing about the western boundary of a county, and the act creating Orange was rather vague, merely referring to the "utmost limits of Virginia". However, it is perhaps noteworthy that when a boundary line was left undefined, the common practice was to continue the last course in the same direction until it met a defined boundary. If one follows the course of Cedar Run to its source then continues at the same angle, that line reaches the Potomac River in the general area of Cumberland, Maryland!

Given that Cresap was a fur trader, it stands to reason that he was "well-traveled" and could thus be expected to have "outposts" in multiple locations. However, the reference to him in King George establishes he had a presence in the area of Cumberland, Maryland, at least 7 years earlier than asserted by traditions regarding the founding of Cumberland.

That traditions can clash with fact is not unusual. It is commonly asserted that the town of Keyser, West Virginia, now seat of Mineral County, was established as Paddy's Town in 1803, and subsequently renamed New Creek because of its location on a stream of that name (being renamed yet again in 1874 Keyser, after the President of the Baltimore & Ohio, to entice the B&O to locate a yard there rather than in nearby Piedmont). However, there are references to Paddy's Town in the court orders for Hampshire County as early as 1789, and the postal site application file (Record Group 28, M1126, Reel 647) for Queen's Point in 1848 not only identified the location as Paddy's Town, but included a map showing Paddy's Town to be approximately 3 miles east of New Creek in the immediate area of where Queen's Point Cemetery is located. The application for the post office was rejected in no small part due to the announced intentions of the B&O railroad to establish a station at New Creek, making it the more logical choice for a post office.

Overview

In part because information can be found in either a place or at a time, if not both, where no one would expect to find such, I have barely touched the range of information that is available in court order/minute books and chancery papers, as there is essentially no limit to the kind of information they may contain--an exact date and/or place of birth, marriage or death, the maiden name of a married woman, the names of an individual's children, where an individual had previously or was currently living, his occupation, his religion, whether he had served in the military and in what capacity as well as for now long, plus much, much more. Further examples will be cited in future Expert Series postings in the context of how they can be used to achieve specific goals, such as interpreting handwriting or locating an elusive ancestor, but with enough interest from you, there may also be a "part 2", if not still other "installments", to this specific article.

Additional Resources:

While I was able to find sites with images of court orders and chancery papers in preparing this "bibliography," the majority tended to be specific to a single case or person, thus likely of interest only to the descendants of the individuals involved. I have not included such material in this bibliography not just because the interest in the same would likely be limited, but in some instances, one or more of the parties may actually be still living, thus, inclusion might be considered a violation of privacy rights.

The only more "generic" site I was able to identify is one of which I was already aware, that of the state library in Virginia.

While visitors can search all records at that site at the same time, one would be well advised not to do so--the search protocol finds only surnames and does not include variant spellings. There is also the option to search specifically for plaintiffs, defendants or all parties. The plaintiff/defendant search option would be most useful when one wants to look at the actual papers for a suit where one already knows the names of the parties and the approximate date of the suit, though there may be no surviving papers, the Sarah Chester suit mentioned earlier being such an example. "All parties" would be the best option for while a specific surname of interest may only be a witness, the testimony given might provide valuable clues, if not specific information, of not just the family specifically being researched, but related families.

Visitors should also be aware that this database includes ONLY the localities have been indexed. If a locality is not included, it does not mean no papers exist, only that what papers do exist are strictly in manuscript form and may even still be in the custody of the local court because they have not been turned over to the state library.

For localities which have been indexed, there are 3 possible methods for access to the actual papers:

1) On-line;
2) On microfilm; &
3) In manuscript at the state archive. One may want to check with the library for any restrictions on those chancery papers which remain available only in the original manuscript copy     because written permission may be required for their use

When a suit is available on-line, the search results will include hyper-links to the actual papers. When the suit is on microfilm, the search results will include two different reel numbers (one used specifically by the state library, and the other being "local") and a "flash" number. One will need both numbers to locate the suit papers because papers for a single year can be contained on multiple reels and a single suit might consist of 100 or more pages, and the reels are labeled according to both year and "flash". If available only in manuscript, one will need the case number assigned by the library to request the file be pulled. While in all three "formats" there will be a "cover" that lists all the surnames, sometimes including variant spellings, the number of items in the same is indicated only in the digital copies. Furthermore, both the digital and microfilm formats include both sides of each document, even when the "flip side" consists of nothing more that the names of the plaintiff(s) and defendant(s). Accordingly, one has no way of knowing without reading the entire file how many times a surname is mentioned or how many different individuals of that surname appear.

One should also be aware that the on-line images are in pdf format and while it is possible to download and save them, it must be done page by page.


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