Virginia Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English legal system

Virginia's law came from England. The colony began at Jamestown in 1607 under the Virginia Company, whose instructions directed that disputes be settled as nearly as possible according to the common law of England — judge-made law, handed down through court decisions rather than written by a legislature. After independence the Commonwealth kept that law by ordinance: the common law of England, together with the Acts of Parliament made in aid of it before the fourth year of the reign of King James the First, was to be the rule of decision¹. The fourth year of James I is 1607, so Virginia froze English law as it stood in the year of settlement. The General Assembly re-enacted the rule in 1792, and every code since has carried it².

Virginia was a common-law jurisdiction throughout, and husband and wife each owned their own property.

One practical consequence is worth knowing at the outset. Probate — the proving of a will in court — belonged from the earliest period to the county courts, and to the hustings or corporation courts of the independent cities — the city equivalent of a county court — moving later to the circuit courts. Wills, inventories, administration bonds, guardian accounts and dower reports therefore sit with county and city government rather than with the state.

How statutes replaced the common law

The General Assembly replaced common-law rules with statutes over time, and those dates make useful anchors — each one marks a change you will see in the records:

• 1776 — entail abolished; land held in fee tail, which had to pass down a fixed line of heirs, became ordinary fee simple that the owner could sell or leave by will³.
• 1785 — primogeniture abolished, effective 1 January 1787; land was divided among all the children rather than passing to the eldest son⁴.
• 1866 — the marriages of formerly enslaved couples were recognized and their children declared legitimate⁵.
• 1877 — married women given a separate estate of their own⁶.
• 1888 — the private examination of a wife on her husband's deed came to an end⁷.
• 1950 — women admitted to jury service⁸.

Dower and curtesy — a surviving wife's or husband's right to use the other's land for life — ran without a break from 1607 until they were abolished on 1 January 1991⁹. For any given year, the rule in force is the statute where one had been passed by then, and the common law otherwise.

Legal Age of Adulthood

Majority at twenty-one

Full legal age in Virginia was 21, a rule drawn from the common law and received with it in 1776. Anyone under 21 was an "infant" in legal language, even a 20-year-old. The age applied to both sexes without variation through 1950.

The age dropped to 18 in 1972¹⁰.

A minor's legal capacity

A minor could own property. What the law limited was the minor's power to dispose of it. A minor's contract or deed was voidable — valid until the minor chose to undo it — and the minor could disaffirm it — disown it and undo the bargain — during minority or within a reasonable time after coming of age. A contract for necessaries bound him only to their actual value¹¹. In practice a minor's land was managed by a guardian, and any sale went through a court proceeding.

Where a minor held land only as a trustee or mortgagee — holding the paper title for someone else — the guardian could convey it by order of the High Court of Chancery. An interested party petitioned, and the sale then passed exactly as the minor could have passed it at full age¹². Chancery was the court of equity, which handled trusts and other matters the ordinary courts could not reach. Full legal capacity could otherwise be granted early only by a private act of the General Assembly.

Other ages that differed

Majority was 21, but three other ages sat below it and are easy to confuse with it:

• Wills. A person of 18 could dispose of personal property by will; land required 21.
• Marriage. The minimum marrying ages were 14 for a boy and 12 for a girl until the 1930s. A married 15-year-old was still a minor.
• Tithables. A boy born in the colony became taxable at 16, five years before he became an adult, while a boy brought in as a servant counted at any age. Between 1782 and 1787 only men of 21 and over were written into the tax lists by name.

Marriage

Who was old enough to marry

For most of the period the common-law ages governed: the age of consent was 14 for a male and 12 for a female. The code of 1849 states the figures in the statute itself¹³, and the code of 1919 still prints them¹⁴. A marriage under those ages stood unless the couple separated while still under age and did not live together afterwards; a couple who stayed together were married, and no court order was needed either way.

The General Assembly then raised the figures in two steps. From 1932 a minor could marry at 17 if male and 15 if female, on a parent's or guardian's consent; from 1942 the ages were 18 and 16¹⁵. Marriage without that consent still called for 21, whatever the year.

Where the bride was pregnant and either party was under age, the clerk could still issue the license, on the parent's consent and a physician's certificate that he had examined her and found her pregnant, or pregnant within the previous nine months¹⁶. The clerk filed that certificate, so a marriage license file from the 1940s for an underage bride may hold a doctor's statement naming her. A marriage record from the 1930s or 1940s carries a different minimum age from one of the 1890s.

Parental consent

The requirement is as old as the license itself. The act of October 1705 was the first Virginia statute to regulate marriage in detail, and it set the pattern. A license was issued by the clerk of the county where the woman usually lived, on a bond of £50 with surety. If either party was under 21 and had not been married before, the parent's or guardian's consent had to be given in person before the clerk, or signed and sealed and attested by two witnesses. The clerk then certified that consent to the first justice of the peace, who signed the license¹⁷.

The act of 1748 repealed the 1705 act and re-enacted the same scheme almost word for word¹⁸. The rule then ran unbroken to the twentieth century. A person under 21 who had not been married before needed the consent of the father or guardian, or if there was none, of the mother¹⁹. The consent could be given in person to the clerk or judge, or in writing signed before a witness who then swore to it, or acknowledged before a notary. Where there was no parent or guardian, or the young person had been abandoned, a circuit or corporation court judge could authorize the license instead.

The written consent was filed with the bond or the license application, so it survives in the clerk's marriage papers. It is direct evidence that the party it names was under 21 on that date, which brackets a birth year; a marriage with no consent on file is evidence the parties were of age. A judge's authorization in place of a parent's consent points to a dead or absent family.

How a marriage was made

A valid Virginia marriage required a ceremony performed by a minister or an authorized civil officer, preceded either by a license issued by the clerk or by the reading of banns. Banns were the public announcement of an intended marriage, read three times in the parish or congregation where each party lived. That choice between a license and banns goes back to the act of 1705, which forbade any minister to celebrate a marriage without one or the other¹⁷. The act of 1748 restated it and it was carried forward in 1780. Quakers and Mennonites married by the rules of their own societies and needed neither²⁰. The code of 1849 kept both routes and marriage without one or the other was forbidden, the license to be issued by the clerk of the county or corporation where the woman usually lived²¹. By the twentieth century the license stood alone²².

Marriage came from that ceremony. A couple who simply lived together as husband and wife within Virginia acquired the status only by going through one, however long the cohabitation lasted and however completely the neighbors believed them married. Virginia did recognize an informal marriage validly formed in another state, under the ordinary rule that a marriage good where it was made is good everywhere. There was one exception. Where Virginia residents went out of state in order to evade Virginia law, then returned and lived here as man and wife, the marriage was judged by Virginia law as though it had been performed here²³.

Void and voidable marriages

The code of 1849 sorted invalid marriages into two groups, and the difference decides whether a record exists. A marriage between a white person and a Black person, and a bigamous marriage, were absolutely void without any decree of divorce or other legal process — so there is no annulment paper to find. A marriage within the forbidden degrees of kindred (relatives too closely connected by blood or by marriage to wed), or one solemnized when either party was insane or physically incapable, stood until a court declared it void by a decree of divorce or nullity²⁴.

Enslaved people and people of color

Enslaved people had no legal capacity to marry, so no civil marriage record exists for them before 1866.

Marriage between white and non-white Virginians was prohibited from 1691, when a free Englishman or white woman who intermarried with a person described in the act as a negro, mulatto or Indian was to be banished from the colony within three months²⁵. The act of 1705 replaced banishment with a fine and imprisonment and set a penalty on the minister who performed the ceremony²⁶. By the code of 1849 such marriages were declared absolutely void.

The Racial Integrity Act of 1924 tightened the rule to its furthest point. It defined a white person as one having no trace whatsoever of any blood other than Caucasian. There was a single exception, for persons having one-sixteenth or less American Indian blood and no other non-Caucasian blood. That carve-out was written to protect prominent families claiming descent from Pocahontas²⁷. The ban fell in 1967²⁸.

The act of February 1866 is the single most important marriage record for African American research. It declared that formerly enslaved couples then living together as husband and wife were lawfully married, and legitimated their children⁵. Couples were entered by the county or corporation clerk in a cohabitation register, headed in the act as a register of colored persons cohabiting together as husband and wife, on 27 February 1866. The register gives the husband's name, age, birthplace, residence and occupation, and the name and residence of his last owner. It then gives the wife's name, age and birthplace, and the names and ages of their children. That makes it the one document that carries a family across the emancipation line by name.

Property Ownership

Which men could own land

The right to acquire, hold and convey land belonged to every free man in Virginia²⁹. Free Black, mixed-race and Indian men held that right and exercised it throughout the period; the restrictions that surrounded their ownership appear under "Enslaved people and free people of color," below.

Enslaved men had no legal capacity to own property of any kind; land they lived on or worked belonged in law to the enslaver.

A foreign-born man's right turned on citizenship. An alien who was a free white person could take the first step short of it. He declared on oath before a court of record that he intended to keep residing in Virginia. On that declaration being entered of record, he could inherit, purchase and hold land as though he were a citizen. Once naturalized he owned and inherited land like any other citizen, and by the code of 1860 an alien ancestor in the line of descent was no bar to a claim³⁰.

Single women and widows

A single woman or widow — a feme sole, "woman alone" — could buy, own, sell, mortgage, sue and be sued exactly as a man could³¹. A woman transacting freely in the deed books is almost always unmarried or widowed. For a married woman everything turned instead on the date, and on her husband's signature as well as her own.

Married women before 1877

A married woman was a feme covert, "covered woman," under coverture — the common-law rule that a wife's legal identity merged into her husband's. Her personal property became his outright on marriage. Her land remained hers in name, but her husband held it jure uxoris, "in right of his wife," for the duration of the marriage: he managed it and took the rents and profits, and her contracts had no force on their own³². Wealthy families arranged around this by placing property in a trust for her sole and separate use — a private arrangement, enforced in the chancery courts, that gave her the separate ownership statute would provide later. A separate-estate deed or a chancery suit over one is often the only trace of a wife's property before 1877.

Married women after 1877

The Married Women's Property Act, in force from 4 April 1877, made a married woman's property her own. Everything she acquired after that date became her sole and separate estate, whether it came by gift, grant, purchase, inheritance, or a gift by will. It was beyond the reach of her husband's debts, and hers to leave by will as though she were unmarried. The act reached women already married as well as those marrying later. Her husband kept his curtesy, and he still had to join in her contracts and be joined in her lawsuits⁶. A further act in 1900 gave her the right to acquire, hold, use, control and dispose of property as if she were unmarried, and to contract, sue and be sued in the same way³³.

Two record consequences follow. Where a husband refused to join in a conveyance of his wife's separate estate, or was incapable of it, she could bring a chancery suit. She sued in her own name or through a next friend, an adult who brings a case on another's behalf. The court could then order the sale and pass absolute title. That suit sits in the circuit court and names her, her husband and the land. And from 1877 a wife appears in the deed books in her own right, so a deed to a married woman after that year means what it says.

When a wife had to sign her husband's deed

A wife's signature on her husband's deed — or its absence — tells you both the period and whether the man was married.

The driver is dower: a widow's life estate in one-third of her husband's land. A life estate is the use of the land for the rest of her life, not ownership of it; when she died the land belonged outright to the heirs. Because dower attached to land the husband held at any time during the marriage, a buyer who wanted a clear title needed the wife to release it, and she released it by joining in the deed³⁴. A writing signed and delivered by husband and wife together passed her dower and every other interest she had, exactly as if she were unmarried³⁵.

What changed is the paperwork that went with her signature.

The wording of the certificate is fixed by statute and barely varies, so it is easy to spot. The officer certifies that the wife appeared and was examined privily and apart from her husband, and that the writing was fully explained to her. He then certifies that she acknowledged it as her act, and declared that she had executed it willingly and did not wish to retract it³⁶. A deed carrying that certificate proves the grantor was married on that date, and names his wife.

The Code of 1887 ended the private examination with effect from 1 May 1888, and an act of 2 February 1892 cured earlier certificates that had been drawn defectively⁷. On a Virginia deed executed from May 1888 onwards there is no certificate to look for, and its absence says nothing about whether the grantor was married — only the joint signature does.

Curtesy was the husband's version of dower. If a child had been born alive of the marriage, a widower kept the use of his late wife's land for the rest of his life, and the code of 1919 expressly preserved that requirement. The General Assembly recast it by statute in 1922. A surviving husband took a life interest in one-third of his wife's land where she left a will, and in the whole of it where she died without a will and without children. The birth of a living child was no longer required³⁷. Dower and curtesy both ran past 1950 and were abolished on 1 January 1991⁹.

Which children could own land

A child could own land at any age, taking it by inheritance, gift or purchase just as an adult did. Conveying it was the constraint: a minor's deed was voidable, and a guardian managed the land in the meantime. Own at any age; convey freely at 21.

Witnessing a deed

A witness of any age could serve, provided they understood an oath and could relate what they had seen. Competency, not age, was the test³⁸; the common law's "age of discretion" of about 14 is a fair practical guide, and in practice deed witnesses were adults, since a witness might have to appear in court years later to prove the deed.

Enslaved people and free people of color

Enslaved people had no legal capacity to own property; anything in their possession belonged in law to the enslaver.

Free people of color could own land, and did, through 1950. The restrictions fell on the freedoms around ownership rather than on the ownership itself. Tributary Indians — the tribes that had acknowledged the colony's authority by treaty and paid it a yearly tribute — were the exception. They could not sell or leave their land by will to anyone outside their own tribe or nation, and a sale to an outsider was void³⁹.

From 1793 a free Black or mixed-race person living in a Virginia town had to be registered and numbered by the clerk, and to carry a certificate renewed each year. One living in a county had a certificate registered in the county clerk's office instead, renewed every three years. The act of 1803 turned that into a full description. The county clerk kept a book recording each person's age, name, color and stature, along with any apparent mark or scar on the face, head or hands. The entry also named the court that emancipated them, or recorded that they were born free, and the clerk gave them an attested copy⁴⁰. The resulting registers, which the clerks headed "Register of Free Negroes," are among the richest genealogical records Virginia produced. They give a physical description, an age, and a route to freedom for people who appear nowhere else by name, and a register entry is often the only proof that a landowning family was free.

An act of 1806 put that ownership at risk from a different direction. A person freed after that year had to leave the Commonwealth within twelve months or forfeit the right to freedom⁴¹, so a landowner could be forced to sell and go. Registration itself ran on to the Civil War. The code of 1849 gathered the rules into a chapter of their own, under which a free person of color moving into a county had to apply to its court to be registered⁴².

Inheritance

Two separate systems

When a person died without a will (intestate), Virginia divided the estate under two separate systems, one for land and one for personal property, and they worked differently:

• Land descended automatically, directly to the heirs, at the moment of death.
• Personal property was distributed through an administrator, the person the court appointed to settle an estate that had no will. It went out only after funeral expenses, the costs of administration and debts had been paid. Personal property meant money, livestock, furniture, debts owed to the deceased, and before 1865 enslaved people.

How land was divided

The 1785 Act of Descents is the hinge of Virginia inheritance research. Before it, an intestate's land went to one son and the other children appear in no land record; after it, every child's name should surface in a partition, a division, or a chain of deeds among heirs. The act took effect on 1 January 1787, not on its passage, so an estate settled between 1785 and 1787 still followed the old rule⁴³.

A child already given land or goods during the parent's lifetime had that gift counted against their share, an adjustment called an advancement, which is why an estate division sometimes gives one child visibly less than the others⁴⁴.

The widow's share of personal property

The surplus personal estate was what remained after the funeral, the costs of administration and the debts were paid. It was distributed to the same people, and in the same proportions, as the land descended. A set of exceptions then fixed the widow's share. From the Act of 1785 to the end of the nineteenth century those exceptions turned on whether the deceased left children by her, and the Code of 1887 still printed them in that form⁴⁵:

The revisers of the Code of 1919 replaced that scheme outright, putting husband and wife on equal terms. The shorter rule that resulted read the same way for a widow and a widower, and stood to 1950⁴⁶:

A widow whose own children survived took a third whatever their number, in both periods; the share did not shrink as the family grew. Where enslaved people fell into her share she took only the use of them for her life, not ownership. Getting this right can make or break a family reconstruction built from an estate division. Where no relative survived who was entitled to a share, the estate went to the Commonwealth.

The widow's dower and her right to renounce the will

The widow's interest in the land was dower — a life estate in one-third, described above. Dower gave her the use of that third for life while ownership passed to the heirs, which is why you so often find a widow holding a life interest while the children hold the title. A husband's will could not take her dower away from her. Where he left neither a will nor children, she took a life interest in the whole of the land rather than a third of it⁴⁷.

Where her husband left a will she disliked, a widow could renounce it and take her dower and her distributive share — her portion of the personal property — as though he had died without a will. She had one year from the admission of the will to probate, and she renounced either in person before the court where the will was recorded or by a writing recorded there⁴⁸. A recorded renunciation is a dated, signed document naming the widow, and it explains an estate division that does not match the will.

Minors and guardians

A minor inherited immediately — title passed to the heirs the moment the ancestor died. Managing that inheritance fell to a guardian, who gave bond, accounted for the estate, and handed it over with a formal receipt when the minor turned 21. That final settlement at 21 is one of the most valuable documents in Virginia genealogy: it dates the minor's majority, and therefore approximates a birth year, and it frequently reveals a female minor's married surname.

A guardian was appointed chiefly because a minor owned property; where a child inherited nothing, often no guardianship record was created. The father was the natural guardian during his life, and could appoint a guardian by will; on his death without such an appointment the court of the county where the minor lived appointed one and took security⁴⁹. The act of 1785 had already put that scheme into statute, and it barely changed afterwards. A father could appoint a guardian by will even if he was under 21 himself. The county court and the High Court of Chancery controlled guardians and could displace one, and every court appointing a guardian took bond with surety. The guardian returned an inventory, and then accounted to the court every August⁵⁰.

The choice at fourteen came from the common law, under which the ordinary forms of guardianship over a child both ran out at that age⁵¹. The codes later put it in terms. At fourteen a minor could nominate their own guardian, in the presence of the court or clerk or by an acknowledged writing. The person named was appointed if the court found them suitable and competent. Where the nominee was unsuitable, or the minor lived outside Virginia, the court appointed as if the minor were under fourteen⁴⁹. A guardianship record in which the child chooses is therefore evidence the child had reached 14, which brackets a birth year. Guardianship ended at 21.

Children born outside marriage

At common law a child born outside marriage was filius nullius, "nobody's child," and could inherit from no one. Virginia extended inheritance first on the mother's side, then, on conditions, on the father's.

From the mother, the child inherited as her child — the code puts it as being capable of inheriting and transmitting inheritance on the mother's side as if lawfully begotten. From the father, the child inherited after legitimation, and the route ran through the descents chapter: where a man had a child by a woman and afterwards married her, the child was legitimate if he recognized it, either before or after the marriage⁵². Both the marriage and the recognition were required, and the courts read the requirement strictly — a will describing children as the maker's own was held not to legitimate them where the statutory conditions were not met⁴³. A private act of the General Assembly was the other route.

Children of enslaved couples

One rule deserves its own heading, because it is the key to African American inheritance research. The act of February 1866 that recognized the marriages of formerly enslaved couples also declared their children legitimate⁵. From that date such children could inherit from both parents and could be named as heirs in a partition or a division, and the parents' relationship could be established from the cohabitation register rather than from a marriage bond that was never issued.

Making a will

Virginia set two ages for making a will, and confusing them is a common error. Both came from the act of 1785. Before it the colony followed the English rule, under which a boy of 14 and a girl of 12 could make a will of personal property if their discretion was proved, while land could be devised only at 21⁵¹. The act of 1785 raised the age for personal property to 18 and left land at 21⁵³, and both figures then stood to 1950. The rule as the codes put it was that nobody of unsound mind, or under 21, could make a will — with one exception: a minor of 18 or over could dispose of personal property by will⁵⁴. So a will of goods proved for an 18-, 19- or 20-year-old is perfectly regular and tells you the maker was at least 18; a will disposing of land tells you the maker was at least 21. The two ages merged at 18 in 1972⁵⁵.

A married woman could make a will of her separate estate, or under a power of appointment — an authority someone else's deed or will had given her to say who should take property — and of nothing else. A wife's will before 1877 is therefore a signpost that she held a separate estate, and worth following back to the trust deed or marriage settlement that created it.

A soldier in actual military service, and a mariner or seaman at sea, could dispose of personal property without meeting the age or signing rules at all⁵⁶. A short, unwitnessed soldier's or sailor's will in the record is a valid will, not a defective one.

A will had to be in writing and signed by the testator (the person making it), or by someone else in his presence and at his direction, so as to make it plain that the name was meant as a signature. Unless it was wholly written by the testator, he had to sign it or acknowledge it before at least two competent witnesses present at the same time, and they had to subscribe it in his presence. No set form of witnessing clause was needed⁵⁷. A witness could be of any age if competent; what mattered was that the witness had nothing to gain under the will.

A holographic will — one written wholly in the testator's own hand and signed by him — was valid with no attesting witnesses at all. What it required instead was proof: two disinterested witnesses had to testify that the document was in the testator's handwriting⁵⁸. These are common in the Virginia record, and the proof of handwriting produces its own court entry naming the people who identified it.

An executor had to be of full age — 21 — and free of any other legal disability. No section set that figure in terms, but the code assumed it: where three months passed with nobody qualified, the court committed the estate to the sheriff, except during a contest over the will or during the infancy or absence of the executor⁵⁹. A woman could serve. On an intestacy the court preferred the husband or wife of the deceased before the other kin entitled to a share, so a widow commonly qualified as administratrix. Where an unmarried woman who was executrix or administratrix married, her husband did not take her place. The marriage ended her authority instead, and the court appointed someone to finish what was left⁶⁰. Where the named executor refused the office, or failed to give bond, the court granted administration with the will annexed. That is an appointment to carry out the will where no executor acts. It went to the person who would have taken administration had there been no will⁶¹.

Taxation

What was taxed

Two taxes on individuals leave usable records. The first is the poll tax, a flat tax on a person rather than on property, called the tithe or tithable in the colonial period and the capitation tax later. The second is the property tax on land, on personal property, and, before 1865, on enslaved people. A state income tax followed in the twentieth century.

For genealogy the poll tax is the prize, because it lists people who owned nothing, which makes the early lists into census substitutes. Virginia's colonial and early national census returns are almost entirely lost, so tithable and tax lists carry the weight the censuses would otherwise carry.

Colonial tithables

A tithable was a person on whose head the tax was charged. The householder paid, and the list therefore names heads of household with a count of the tithables in each — which is why a tithable list gives you a household size but not always the names inside it.

The categories changed by act, and the table below sets them out period by period. Two of those acts matter more than the rest for research. The act of 1661–62 made every male imported into the colony tithable whatever his age, and every imported African of either sex. Christians born in the country waited until 16⁶². So between 1662 and 1680 an imported servant of twelve appears on a list where a native-born boy of twelve does not. The act of 1680 ended that, setting 12 for an imported enslaved child and 14 for an imported Christian servant. And the act of 1723 reached free Black, mixed-race and Indian people at 16, and the wives of such men whatever the wife's own race⁶³.

The act of 1748, in force from June 1751, carried those categories through to the Revolution. It also named the people the colony excused: the governor and his household, the president, masters, scholars and servants of the College of William and Mary, ministers holding a parish, and constables while in office. A county court could excuse anyone else for charitable reasons. The same act told the courts to adjudge and record the age of every imported child, servant or free, at one of the first three courts after the child arrived, and the age so adjudged governed for tithing⁶⁴. An age fixed that way, in a county order book, is often the only recorded age for a person brought into Virginia as a child.

One consequence of those acts is worth more to a researcher than any other fact in the colonial lists. Because women of color counted as tithable while white women did not, a household with tithable women in it is a household the county classed as non-white. Free families of color can therefore be picked out of the tithable lists by the taxation of their women.

After the Revolution

The Commonwealth reorganized its revenue after independence, and from 1782 kept annual land books and personal property books county by county. The personal property books list a taxpayer with his taxable items — a horse, a cow, a wheel — and because the threshold was so low they name most adult men. Run consecutively for one county, they date a man's arrival, his sons' coming of age and his death, at a resolution the censuses cannot match.

The ages behind those columns are what make that possible. The permanent revenue act of November 1781 laid a tax of ten shillings on every free male person above 21 who was a citizen of the commonwealth. It laid the same tax on slaves, payable by the owner. A county court could exempt either for age or infirmity⁶⁵. Those are the men the first lists name, taken from 1782, and by 1787 the slave tax ran from 16 and the form carried a separate count of white males between 16 and 21.

Two acts then changed the ages, and between them they explain most of the confusion in the later lists. In October 1787 the General Assembly repealed the poll tax on free males above 21 outright and made slaves above 12 taxable in its place⁶⁶. In December 1792 it declared every male person of 16 and upwards, and every female slave of 16 and upwards, tithable and chargeable for the county levy and the poor rate. Those were the taxes a county raised for its own courthouse, bridges and paupers. The same exemptions applied⁶⁷. So from 1788 the state was taxing property and slaves, while the county was still counting tithables at 16.

For the researcher that means a son first appearing by name in a list of the 1780s brackets his twenty-first birthday, and a rise of one in his father's tally brackets his sixteenth. Read the county's own column headings for the later lists all the same, because the commissioners wrote them differently from year to year and from district to district⁶⁸.

The poll tax after 1902

The Constitution of 1902 made payment of a poll tax for the preceding years a prerequisite to registering and voting — the central instrument of disfranchisement in twentieth-century Virginia, aimed at Black voters and effective against poor white ones too. It reached every male resident of 21 and over, with no upper age limit, though veterans of the Civil War and their sons were excused⁶⁹. The requirement fell for federal elections with the Twenty-fourth Amendment in 1964 and for state elections in 1966⁷⁰. For the researcher the effect is that poll-tax and registration records for 1902 to 1964 name the men who paid, and their silence about a man is not evidence he was absent.

Taxable ages at a glance

The third column is the one that matters when you cannot find an ancestor on a list. For most of the period only the head of household is written down by name. Everyone else who owed the tax in that house is a number in his column, so a man can be taxable for years before his name ever appears.

The act of 1644–45 released men over 60, and no later act set an upper age⁷². Throughout, a county court could excuse a person from the levy for age or infirmity. When a man drops off a list while still alive elsewhere in the record, an exemption is usually the explanation.

Courts

Jury service

Jurors were men of 21 throughout the period. What changed, and what matters for research, is the property a juror had to hold.

Colonial juries were drawn from men of property, and the threshold depended on the court. A juror in a county court had to hold a visible estate, real or personal, worth at least £50 sterling. A juror in the General Court, and a juror in any case of treason, felony, breach of the peace or title to land in any court, had to be a freeholder and to hold a visible estate, real and personal, worth at least £100 sterling. Grand juries were made up of freeholders: the county court summoned twenty-four of them to its May and November terms, and fifteen made a panel⁸². A man serving on a colonial county-court jury therefore had £50 of visible estate, and a man on a General Court or felony jury owned land.

The Revised Code of 1819 restated the test in dollars and added the age in terms. A juror in the superior courts had to be a freeholder holding a visible estate, real or personal, worth at least $300. The same test applied in any court of record to a case of treason, felony, breach of the peace, the penal laws, or title to land. A juror in a county or other inferior court needed a visible estate worth at least $150. No person under 21 could serve at all, and an objection to a juror on the ground of his estate or his age came too late once he was sworn⁸³.

That test held until 1852, when the General Assembly swept the property qualification away. By the antebellum code every free white male of 21 and not over 60 was liable to serve, with no freeholder or estate requirement at all⁸⁴. Two things narrowed the panel instead. The first was a list of exempt occupations: the governor and lieutenant governor, practicing attorneys, licensed physicians, officers of any court, telegraph operators, town fire officers, and those excused from militia duty. The second, and the more consequential, was the discretion of the county or hustings court, which drew up a list each year of the inhabitants it thought well qualified to serve.

The code of 1919 kept the age at 21 and added residence: a juror had to have lived in the state two years and in his county, city or town for one year before he was summoned. Idiots and lunatics were disqualified, as were men convicted of bribery, perjury, embezzlement of public funds, treason, felony or petit larceny, and a man over 60 could serve if he wished but could not be compelled to⁸⁵. A jury list from those decades is therefore evidence of two years' residence in Virginia and one in the county. The act of 1950 shortened both, to one year in the state and six months in the county, city or town⁸.

Criminal responsibility

The common-law ages governed for most of the period⁸⁶:

• Under 7 — a child was legally incapable of committing a crime.
• 7 to 14 — presumed incapable of wrong, a presumption the Commonwealth could rebut by proving the child knew right from wrong and understood the wrongfulness of the act.
• 14 and over — full criminal responsibility, tried and punished as an adult.

Two acts of 1914 changed this. One let the larger cities elect a special justice sitting as the justice of a juvenile and domestic relations court; the other built the machinery for delinquent, dependent and neglected children and defined all three by an age line of 18⁸⁷. A child under 18 was dealt with as delinquent rather than convicted, which moved the record out of the criminal order books and into a separate and generally closed juvenile file. For the researcher that is a documentary cliff: an ancestor who would have surfaced in the order book in 1912 leaves no accessible trace in 1916.

Witnesses

A witness of any age could testify, if he or she understood the obligation of an oath and could relate facts. No statute set a minimum⁸⁸. The trial judge examined a child personally before allowing testimony. A very young child's uncorroborated word carried little weight, but that was a question of weight rather than competency.

Women as witnesses and jurors

Women could testify. A husband and a wife were each barred at common law from giving evidence for or against the other. Acts of 1893–94, 1897–98 and 1901–2 replaced that bar. By the code of 1919 husband and wife were competent witnesses for and against each other in every case, civil and criminal. A spouse who stayed silent raised no presumption against the accused, and the silence could not be commented on at the trial⁸⁹. So a wife's testimony in a case involving her husband is unusual in the earlier records and ordinary in the later ones.

Jury service was limited to men until 1950. On 15 March that year the General Assembly re-enacted the section on who was liable to serve and struck the word "male" from it, so that all citizens over 21 who met the residence test became liable⁸. A Virginia jury list before 1950 is a list of men, and a woman's absence from one carries no information about her.

People of color as witnesses and jurors

The colonial rule was a total bar. From 1705 a person of color, and anyone who was not a Christian, was incapable in law of being a witness in any case whatsoever⁹⁰. For most of the first half of the eighteenth century there is therefore no testimony from a Black, mixed-race or Indian Virginian to find in an ordinary county court record, whoever the parties were.

The 1748 revisal opened the door part way. A free person of color could be sworn as a witness, but only in a case against or between other people of color⁹¹. That is the rule the Revised Code of 1819 carried forward, and the codes of 1849 and 1860 restate it. An enslaved person or a free person of color was a competent witness only where the parties were also people of color, and could not testify against a white person⁹².

This is why a dispute between a white and a Black Virginian so often left a one-sided record, and why the testimony of free people of color survives mainly in cases where both parties were people of color.

The rule ended on 27 February 1866, when the General Assembly repealed the laws relating to slaves and slavery and provided for the admission of the evidence of colored persons in legal proceedings⁹³. The code of 1873 stated the new rule in a single sentence, making people of color competent to testify on the same terms as white witnesses⁹⁴. The federal Civil Rights Act of 1866, passed weeks later, secured the same right nationally⁹⁵.

On juries, Black men became legally eligible after the Civil War. Virginia's jury statute drew no line of race, and in 1880 the Supreme Court sustained the federal prosecution of a Virginia county judge who had left Black men off the lists he drew⁹⁶. In practice they were kept off all the same. On the same day the Court held that the mere absence of Black jurors from a panel did not let a defendant move his case into a federal court⁹⁷. That left the selecting officer's discretion where it was. After the poll tax of 1902 removed most Black men from the voter rolls that fed the jury lists, exclusion became close to complete.

Sources and Where to Verify

Constitutions

• Virginia Constitution (current). Virginia Law Portal. https://law.lis.virginia.gov/constitution/ : accessed 2 August 2026.
• Virginia Constitution of 1851. Art. IV, §§ 22–24 (taxation and finance), with the tax on enslaved people of twelve and upwards at § 23 and the revived capitation on white males of twenty-one and upwards, half of it applied to primary and free schools, at § 24. Transcription. West Virginia Archives and History. https://archive.wvculture.org/history/government/1851constitution01.html : accessed 12 August 2026.
• Virginia Constitution of 1902. Art. II, §§ 18–23 (suffrage and the poll tax), with the conditions for voting at § 21 and the veterans' exemption at § 22. Reprinted in the front matter of the Code of Virginia, 1919.

Codes and Compilations

• The Code of Virginia: with the Declaration of Independence and Constitution of the United States; and the Declaration of Rights and Constitution of Virginia. Richmond: Printed by William F. Ritchie, Public Printer, 1849. Revised by John M. Patton and Conway Robinson. The first true code (marriage and the age of consent at ch. CIX; wills, descents and distributions, guardian and ward, juries, conveyances, and free people of color in their own chapters). Digital images. Internet Archive. https://archive.org/details/codevirginiawit00virggoog : accessed 2 August 2026.
• The Code of Virginia: Including Legislation to the Year 1860. 2nd ed. Ed. George W. Munford. Richmond: Printed by Ritchie, Dunnavant & Co., 1860. The working antebellum volume, and the source of most of the antebellum figures above: ch. 110 (dower and jointure), ch. 121, § 4 (private examination of a wife, with the form of the certificate), ch. 122 (wills, testamentary ages, execution), ch. 123 (descents and distributions, the widow's share, renunciation, legitimation), ch. 130 (probate and grants of administration), ch. 162 (juries, p. 689), and ch. 176 (evidence, pp. 721–30). The printed marginal derivations under each section give that section's own descent from the Revised Code of 1819 and the originating act, and are the fastest way to verify a chain. Digital images. Internet Archive. https://archive.org/details/codeofvirginiain00virg : accessed 2 August 2026.
• The Code of Virginia. 3rd ed. Ed. G. W. Munford. Richmond: James E. Goode, 1873. Title 30, ch. CIII (competency of witnesses of color after 1866); ch. 117, § 4 (private examination, still required at this date).
• The Code of Virginia. Richmond: Printed by James E. Goode, 1887. § 2218 (parental consent); § 2254 (age of consent); § 2502 (conveyance by husband and wife; the section that ended the private examination on 1 May 1888); § 2557 (distribution of the surplus personal estate); § 2639 (grants of administration). The volume to read for the last quarter of the nineteenth century; its title page also names A. R. Micou, Superintendent of Public Printing. Digital images. HathiTrust Digital Library. https://catalog.hathitrust.org/Record/009789503 : accessed 6 August 2026.
• Code of Virginia, 1919. Richmond: Davis Bottom, Superintendent of Public Printing, 1919. 2 vols. Annotated. The compilation in force for the middle decades covered here, and the source of most of the twentieth-century section numbers in the notes; the revisers' notes and annotations printed under each section carry that section's derivation and are where the abolition of the private examination is recorded. Vol. 1 holds the earlier sections; vol. 2 holds §§ 5071 (license and solemnization), 5078 (parental consent), 5090 (age of consent), 5117 (dower), 5134 (property rights of married women), 5139a (curtesy), 5211 (conveyance by husband and wife), 5228 (wills), 5273 (distribution), 5317 (nomination of a guardian at 14), 5360 (grants of administration) and 5984 (jurors). Digital images. Internet Archive. Vol. 1, https://archive.org/details/codevirginia00unkngoog; vol. 2, https://archive.org/details/codevirginiawit00statgoog : accessed 2 August 2026.
• Code of Virginia (current). Each section printed with its full citation chain back through the Code of 1950. Virginia Law Portal. https://law.lis.virginia.gov/vacode/ : accessed 2 August 2026.
• 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. 13 vols. 1819–1823. The indispensable source for every colonial and Revolutionary act cited above, and it stops with 1792. The volumes carry different imprints, and each is given here: vol. 1, New-York, R. & W. & G. Bartow, 1823; vol. 2, New-York, R. & W. & G. Bartow, 1823; vol. 3, Philadelphia, Thomas DeSilver, 1823; vol. 5, Richmond, Franklin Press — W. W. Gray, printer, 1819; vol. 4, Richmond, Franklin Press — W. W. Gray, 1820; vol. 6, Richmond, Franklin Press, W. W. Gray, printer, 1819; vol. 9, Richmond, J. & G. Cochran, 1821; vol. 10, Richmond, 1822; vol. 11, Richmond, printed for the editor, George Cochran, printers, 1823; vol. 12, Richmond, George Cochran, 1823; vol. 13, Philadelphia, 1823. Volume 10, ch. XL of the November 1781 session, carries the permanent revenue act on which the personal property tax rests, and volume 8, at p. 393, carries the act of November 1769 exempting free women of color and the wives of free men of color from levies. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/009714930 : accessed 2 August 2026. Volume 6, which carries the acts of the 1748 revisal on tithables and on marriages, is at Internet Archive: https://archive.org/details/statutesatlargeb06virg : accessed 12 August 2026. Volumes 1, 2, 5 and 9 — which carry the colonial tithable acts, the 1748 rule on witnesses of color, and the reception ordinance of 1776 — are also at Internet Archive: https://archive.org/details/statutesatlargeb01virg, https://archive.org/details/statutesatlargeb02virg, https://archive.org/details/statutesatlargeb05virg and https://archive.org/details/statutesatlargeb09virg : accessed 12 August 2026. Volume 3, which carries the acts of 1691 and 1705 on marriage, tithables, juries and witnesses, is not in that run; it is read in the transcription at https://www.usgenwebsites.org/vagenweb/hening/vol03.htm and in Virtual Jamestown, both listed below. Volumes 10, 12 and 13, which carry the revenue acts, are also at Internet Archive: https://archive.org/details/statutesatlargeb10virg, https://archive.org/details/statutesatlargeb12virg and https://archive.org/details/statutesatlargeb13virg : accessed 6 August 2026. Transcriptions of the full text, including each volume's title page, are at https://usgenwebsites.org/vagenweb/hening/index.html.
• Michie's Code of Virginia. Charlottesville: The Michie Company, editions of 1936 and 1942. The compilations in force in the last decade covered here, and the authority for the text of the marriage-age amendments of 1932 and 1942 and of the recast curtesy section. The amended text of § 5090, setting the marrying ages of 17 and 15 and then 18 and 16, is read here.
• The Revised Code of the Laws of Virginia. 2 vols. Richmond: Printed by Thomas Ritchie, Printer to the Commonwealth, 1819. Volume 1's title page carries that imprint. Volume 2, at p. 62, carries the county levy act declaring all males and all female slaves of sixteen and upwards tithable; digital images, HathiTrust, https://babel.hathitrust.org/cgi/pt?id=nyp.33433007052032 : accessed 6 August 2026. Ch. 38 carries the reception rule with its printed derivation back through the acts of 1787 and 1792; ch. 75, § 12, at pp. 264–66 of volume 1, carries the jury qualifications and the bar on jurors under 21, and the marginal derivations under the other chapters are the fastest route from an antebellum section to its originating act. Digital images. Internet Archive. https://archive.org/details/the-revised-code-of-the-laws-of-virginia-1819 : accessed 2 August 2026.
• Shepherd, Samuel, ed. The Statutes at Large of Virginia, from October Session 1792, to December Session 1806, Inclusive. 3 vols. Richmond: Printed by Samuel Shepherd, 1835. The continuation of Hening, and where the acts of 1793, 1803 and 1806 on free people of color are read, together with the county levy act of 27 December 1792 and the annual revenue acts to 1806. Digital images. Internet Archive. Vol. 1, https://archive.org/details/statutesatlargeo01virg; vol. 2, https://archive.org/details/statutesatlargeo02virg; vol. 3, https://archive.org/details/statutesatlarge00shepgoog : accessed 2 August 2026.

Session Laws

• Acts of the General Assembly of the State of Virginia, Passed in 1865–66, in the Eighty-Ninth Year of the Commonwealth. Richmond: Allegre & Goode, Printers, 1866. Ch. 17, pp. 84–85 (repeal of the slave laws; admission of the evidence of colored persons); ch. 18, pp. 85–86 (registers of marriage; marriages of colored persons then cohabiting legalized, and their children legitimated). Digital images. Internet Archive. https://archive.org/details/actsgeneralasse03virggoog : accessed 2 August 2026.
• Acts of the General Assembly of Virginia, 1876–77. Ch. 329, p. 333, the Married Women's Property Act, approved 4 April 1877. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=njp.32101073363408&seq=339 : accessed 2 August 2026.
• Acts of the General Assembly of Virginia, 1891–92. Richmond, 1892. P. 798, the act of 2 February 1892 curing defective certificates on married women's deeds.
• Acts of the General Assembly of Virginia, 1899–1900. Richmond, 1900. P. 1240, the expansion of married women's powers, as cited in the derivation to § 5134 of the Code of 1919.
• Acts of the General Assembly of Virginia, 1914. Richmond, 1914. P. 82 (juvenile and domestic relations courts) and p. 696 (delinquent, dependent and neglected children, defined by an age line of 18).
• Acts and Joint Resolutions of the General Assembly of the Commonwealth of Virginia, 1922. Ch. 491, p. 861, "An act in relation to a surviving husband's curtesy," approved 28 March 1922; the origin of § 5139a of the Code of 1919, and the act that fixed curtesy at one-third and dropped the requirement of a child born alive. Amended by the acts of 1924, p. 508, ch. 345, and 1930, p. 619, ch. 230. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=nyp.33433007052750&seq=867 : accessed 6 August 2026.
• Acts of the General Assembly of Virginia, 1924. Richmond, 1924. Ch. 371, "An Act to Preserve Racial Integrity."
• Acts of the General Assembly of Virginia for 1932 and 1942. Richmond, 1932 and 1942. The two amendments that raised the marriage ages, at pp. 529 and 230, the second being ch. 176. The amended text is read in Michie's Code of Virginia (1936 and 1942), and the ages each act set are confirmed by the Women's Bureau surveys listed below.
• Acts of the General Assembly of Virginia, 1940. Ch. 283, barring curtesy where the wife devises land to her husband in lieu of it (Code of 1919, § 5139b).
• Acts of the General Assembly of Virginia, 1946. Ch. 299, p. 500, the pregnancy proviso on the issue of a license to an underage party. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=uc1.a0001787829&seq=504 : accessed 2 August 2026.
• Acts of the General Assembly of Virginia, 1950. Ch. 220, p. 372, admitting women to jury service. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=uc1.a0001787852&seq=376 : accessed 2 August 2026.
• Acts of the General Assembly of Virginia, 1972. Chs. 824 and 825, reducing the age of majority to 18 and merging the two will-making ages at 18. Later than the period covered here, but the acts that closed it.
• Acts of the General Assembly of Virginia, 1990. Ch. 831, abolishing dower and curtesy for deaths on or after 1 January 1991.

Court Cases

• Bear's Administrator v. Bear. 131 Va. 447 (1921).
• Ex parte Virginia. 100 U.S. 339 (1880). https://supreme.justia.com/cases/federal/us/100/339/ : accessed 6 August 2026.
• Harper v. Virginia Board of Elections. 383 U.S. 663 (1966). https://supreme.justia.com/cases/federal/us/383/663/ : accessed 2 August 2026.
• Loving v. Virginia. 388 U.S. 1 (1967). https://supreme.justia.com/cases/federal/us/388/1/ : accessed 2 August 2026.
• Powell v. Tilson. 161 Va. 318 (1933). The citation chain for the statutory curtesy interest.
• Stevenson's Heirs v. Sullivant. 18 U.S. (5 Wheat.) 207 (1820). https://supreme.justia.com/cases/federal/us/18/207/ : accessed 2 August 2026.
• Strother v. Lynchburg Bank. 155 Va. 826 (1931).
• Virginia v. Rives. 100 U.S. 313 (1880). https://supreme.justia.com/cases/federal/us/100/313/ : accessed 12 August 2026.

Secondary and Reference Works

• Boyd, Julian P., ed. The Papers of Thomas Jefferson. Vol. 2. The Revisal of the Laws, 1776–1786, including Bill No. 20 (wills and intestate succession) and Bill No. 61. Founders Online, National Archives. https://founders.archives.gov/documents/Jefferson/01-02-02-0132 : accessed 2 August 2026.
• Encyclopedia Virginia. Full transcriptions, against the page images, of ch. CIX of the Code of Virginia (1849) and of ch. 17 of the Acts of the General Assembly (1866), together with entries on the Racial Integrity Laws and free people of color. https://encyclopediavirginia.org/primary-documents/chapter-cix-of-the-code-of-virginia-1849/ : accessed 2 August 2026.
• G. K. E. "The Relinquishment of Dower and Curtesy between Husband and Wife in Virginia." Virginia Law Review 13 (1927): 418. https://www.jstor.org/stable/1065218 : accessed 2 August 2026.
• Library of Virginia. Research Notes Number 3: Personal Property Tax Records, and the collections guide to personal property tax records. The authority for what each column of a tax list counts and which office held the books. https://lva-virginia.libguides.com/personal-property-tax : accessed 2 August 2026. A column-by-column account of one county's run, with the year each column begins, is at https://resources.umwhisp.org/Fredericksburg/ppintro.htm.
• Library of Virginia. Early Virginia Marriage Records and Birth, Marriage, and Death Records (1853–Present). The authority for what a marriage bond, consent and minister's return contain and which office held them. https://lva-virginia.libguides.com/bmd/marriage : accessed 12 August 2026.
• Library of Virginia. Virginia Untold: The African American Narrative. Digitized “Register of Free Negroes” volumes and the cohabitation registers of 1866, with descriptions of what each record series contains. https://lva-virginia.libguides.com/virginia-untold : accessed 2 August 2026.
• Robb, John Barrett. Interpreting the Annual Virginia Tax Lists from 1782 On, and Their Basis in Law. An analysis of the revenue acts behind each column of the personal property lists, reaching a different conclusion from the Library of Virginia guides on the age at which white males were counted after 1787. https://www.johnbrobb.com/Content/VA/VA-Taxes-Law&Interpretation.pdf : accessed 6 August 2026.
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: January 1, 1938, Final Report, Giving Summary for All States Combined. Bulletin of the Women's Bureau, No. 157. Washington: Government Printing Office, 1941. State-by-state tables of the marriage ages and other rules as they stood on 1 January 1938, and so the evidence for what the Virginia act of 1932 set. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/title/5430/item/539548 : accessed 6 August 2026.
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: United States Summary, Cumulative Supplement, 1938–1945. Bulletin of the Women's Bureau, No. 157-A. Washington: Government Printing Office, 1946. Records each state's changes in those years, with the figure each amendment replaced; the evidence for the Virginia act of 1942. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/title/5430/item/539549 : accessed 6 August 2026.
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: January 1, 1948, Report for Virginia. Bulletin of the Women's Bureau, No. 157-45 (Revised). Washington: Government Printing Office, 1949. The clearest statement of Virginia law as it stood at the close of the period covered here, with section numbers into the Code of 1919. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/title/5430/item/539619 : accessed 2 August 2026.
• Blackstone, William. Commentaries on the Laws of England. Book 1, ch. 17, “Of Guardian and Ward.” The English ages of discretion the colony worked from before the acts of 1785, including the will of chattels at 14 and 12 and the choice of a guardian at 14. Transcription. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/blackstone_bk1ch17.asp : accessed 12 August 2026.
• Virtual Jamestown. Transcriptions of the early Virginia laws on servitude and slavery. https://www.virtualjamestown.org/laws1.html : accessed 2 August 2026.

Citations

1. Ordinance of May 1776, ch. 5, § 6, receiving the common law of England and the Acts of Parliament made in aid of it prior to the fourth year of the reign of King James the First, passed 3 July 1776; William Waller Hening, 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, vol. 9 (Richmond: Printed for the editor, J. & G. Cochran, 1821), 127; digital images, HathiTrust (https://catalog.hathitrust.org/Record/009714930 : accessed 2 August 2026). ↩
2. The reception rule was carried forward after independence. The derivation printed under the Revised Code of the Laws of Virginia (1819), ch. 38, reads “1787, c. 20; 1792, edi. 1794, 1803, and ’14, c. 32” — that is, the Act of 1787, ch. 20, and the act of the 1792 revisal, which the collected editions of 1794, 1803 and 1814 print as ch. 32, so a chapter number taken from a session printing will not match the one in the collected edition. Carried thence as Code of Virginia, 1919, §§ 2 and 3, then Va. Code §§ 1-10 and 1-11, now Va. Code §§ 1-200 and 1-201; digital images, Internet Archive (https://archive.org/details/the-revised-code-of-the-laws-of-virginia-1819 : accessed 2 August 2026). ↩
3. Laws of October 1776, ch. XXVI, “An act declaring tenants of lands or slaves in taille to hold the same in fee simple”; Hening, Statutes at Large, 9:226–27. A loophole in it was closed by Laws of October 1785, ch. LXII, “An act for regulating conveyances”; Hening, Statutes at Large, vol. 12 (Richmond: Printed for the editor, George Cochran, 1823), 154–58, at 156–57, declaring every estate in lands that was an estate in fee tail on 7 October 1776 to be an estate in fee simple. Digital images, Internet Archive, vol. 9 (https://archive.org/details/statutesatlargeb09virg) and vol. 12 (https://archive.org/details/statutesatlargeb12virg : accessed 12 August 2026). ↩ ↩
4. Laws of October 1785, ch. LX, “An act directing the course of descents”; Hening, Statutes at Large, 12:138–40, marked in the margin “Descents, course of” and derived from the Revised Bills of 1779, ch. XX. The act took effect 1 January 1787, Stevenson's Heirs v. Sullivant, 18 U.S. (5 Wheat.) 207, 259 (1820). Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg : accessed 12 August 2026). ↩ ↩
5. Acts of the General Assembly of the State of Virginia, Passed in 1865–66, in the Eighty-Ninth Year of the Commonwealth (Richmond: Allegre & Goode, Printers, 1866), ch. 18, pp. 85–86, “An Act to Amend and Re-Enact the 14th Section of Chapter 108 of the Code of Virginia for 1860, in Regard to Registers of Marriage; and to Legalize the Marriages of Colored Persons now Cohabiting as Husband and Wife” (passed 27 February 1866); digital images, Internet Archive (https://archive.org/details/actsgeneralasse03virggoog : accessed 2 August 2026). ↩ ↩ ↩
6. Acts of the General Assembly of Virginia, 1876–77, ch. 329, p. 333, “An act securing to married women, on conditions, all property acquired by them before or after marriage,” approved 4 April 1877. Section 2 reaches all real and personal estate afterwards acquired by any married woman by gift, grant, purchase, inheritance, devise or bequest, “although the marriage may have been solemnized previous to the passage of this act,” lets her devise and bequeath it as if unmarried, and puts it beyond her husband's debts, while expressly saving to him his curtesy; section 1 requires him to join in her contracts and to be joined in her suits; section 3 gives her a bill in equity where he refuses or is incompetent to unite in a conveyance; section 4 brings the act into force from its passage. Carried as Code of Virginia, 1919, § 5134, and as Code 1950, § 55-35 (repealed 2019); digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=njp.32101073363408&seq=339 : accessed 2 August 2026). ↩ ↩
7. Private examinations were abolished by the Code of Virginia (1887), § 2502, which took effect 1 May 1888; defective certificates on married women's deeds were cured, on conditions, by an act approved 2 February 1892, Acts of the General Assembly of Virginia, 1891–92, p. 798. Both facts are stated in the annotation printed under Code of Virginia, 1919 (Richmond: Davis Bottom, Superintendent of Public Printing, 1919), § 5211; digital images, Internet Archive, vol. 2 (https://archive.org/details/codevirginiawit00statgoog : accessed 2 August 2026). ↩ ↩
8. Acts of the General Assembly of Virginia, 1950, ch. 220, p. 372, H.B. 304, approved 15 March 1950, amending and re-enacting §§ 8-174, 8-178 and 8-182 of the Code of Virginia. Section 8-174 as re-enacted is headed “Who liable to serve as jurors” and reaches all citizens over twenty-one years of age resident in the State one year and in the county, city or town six months next preceding the summons; the asterisk printed in the re-enacted text marks the word struck out, which is “male.” Digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=uc1.a0001787852&seq=376 : accessed 2 August 2026). That women were still ineligible on 1 January 1948 is stated in U.S. Women's Bureau, The Legal Status of Women in the United States of America: January 1, 1948, Report for Virginia, Bulletin of the Women's Bureau, No. 157-45 (Revised) (Washington: Government Printing Office, 1949), no. 32; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/title/5430/item/539619 : accessed 2 August 2026). ↩ ↩ ↩
9. Acts of the General Assembly of Virginia, 1990, ch. 831, codified as Va. Code § 64.1-19.2, now Va. Code § 64.2-301, abolishing dower and curtesy as to persons dying on or after 1 January 1991. ↩ ↩
10. Acts of the General Assembly of Virginia, 1972, chs. 824 and 825, reducing the age of majority to 18, codified as Va. Code § 1-13.42, now Va. Code § 1-204. ↩
11. The common-law rule that an infant's deed or contract is voidable and not void, received in 1776; Strother v. Lynchburg Bank, 155 Va. 826, 829, 832 (1931); as to necessaries, Bear's Administrator v. Bear, 131 Va. 447 (1921). ↩
12. Revisal of the Laws, Bill No. 61, “A Bill for Enabling Guardians and Committees to Perform Certain Acts for the Benefit of Those under Their Care”; Julian P. Boyd, ed., The Papers of Thomas Jefferson, vol. 2, Founders Online, National Archives (https://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0061 : accessed 2 August 2026). ↩
13. The Code of Virginia: with the Declaration of Independence and Constitution of the United States; and the Declaration of Rights and Constitution of Virginia (Richmond: Printed by William F. Ritchie, Public Printer, 1849), ch. CIX, § 3, p. 472, “The age of consent of the male shall be fourteen years, and of the female twelve years”; digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 2 August 2026). ↩
14. Code of Virginia, 1919, § 5090, headed “When marriage of party under age of consent void without decree of divorce; age of consent,” carrying the figures forward from Code of Virginia (1887), § 2254. ↩
15. Acts of the General Assembly of Virginia, 1932, p. 529, and 1942, ch. 176, p. 230, each amending § 5090 of the Code of 1919. The text of both amendments is read in Michie's Code of Virginia (Charlottesville: The Michie Company, 1936 and 1942), and the ages each act set are confirmed by the Women's Bureau surveys taken on either side of them. On 1 January 1938 the minimum ages with parental consent were 17 for the male and 15 for the female, and 21 for both sexes without it: U.S. Women's Bureau, The Legal Status of Women in the United States of America: January 1, 1938, Final Report, Giving Summary for All States Combined, Bulletin of the Women's Bureau, No. 157 (Washington: Government Printing Office, 1941), 57–58; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/title/5430/item/539548 : accessed 6 August 2026). The 1942 act set 18 and 16, the survey giving the former figures as 17 and 15: U.S. Women's Bureau, The Legal Status of Women in the United States of America: United States Summary, Cumulative Supplement, 1938–1945, Bulletin of the Women's Bureau, No. 157-A (Washington: Government Printing Office, 1946), 24; digital images, FRASER (https://fraser.stlouisfed.org/title/5430/item/539549 : accessed 6 August 2026). ↩
16. Acts of the General Assembly of Virginia, 1946, ch. 299, p. 500, H.B. 291, approved 26 March 1946, amending and re-enacting § 5090: where a female is pregnant and either party is under the age of consent, the clerk issues the license on the consent of the parent or guardian and on presentation of a doctor's certificate that he has examined her and that she is pregnant, or has been pregnant within nine months previous to the examination; the certificate is filed by the clerk, and the marriage is valid. Digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=uc1.a0001787829&seq=504 : accessed 2 August 2026). The ages of 18 and 16 were still in force on 1 January 1948: U.S. Women's Bureau report for Virginia (1949), no. 18. ↩
17. Laws of October 1705, ch. XLVIII, “An act concerning Marriages,” §§ I and IV; Hening, Statutes at Large, vol. 3 (Philadelphia: Printed for the author, by Thomas DeSilver, 1823), 441–43. Section I forbade any minister to celebrate the rites of matrimony without a lawful license or three publications of the banns. Section IV required every license to be issued by the clerk of the court of the county where the woman had her usual residence, on a bond of £50 with good surety that there was no lawful cause to obstruct the marriage; where either of the persons intending to marry was under the age of twenty-one years and had not been married before, the consent of the parent or guardian had to be given personally before the clerk, or signified under hand and seal and attested by two witnesses, and the clerk then certified that consent to the first justice in the commission of the peace for the county, who signed and directed the license. The act of 1748 repealed it. Transcription, Hening’s Statutes at Large (https://www.usgenwebsites.org/vagenweb/hening/vol03-25.htm : accessed 12 August 2026). ↩ ↩
18. Laws of October 1748, ch. XXXII, “An Act concerning Marriages,” § II; Hening, Statutes at Large, vol. 6 (Richmond: Printed for the editor, by Franklin Press, W. W. Gray, printer, 1819), 81–82: the clerk of the county where the woman usually resided took bond of £50 with surety, and if either party intending to marry was under twenty-one years and not previously married, the consent of the father or guardian had to be given personally before the clerk, or certified under hand and seal and attested by two witnesses, the clerk then certifying that consent to the first justice sworn in the commission of the peace, who signed and directed the license. Section III added a forfeiture: a woman between twelve and sixteen who married against her father’s or guardian’s will and without publication of banns lost the use of her land to her next of kin for the duration of the marriage. The act repealed the act of 4 Anne concerning marriages and took effect 10 June 1751. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb06virg : accessed 12 August 2026). ↩
19. Code of Virginia, 1919, § 5078, headed “When consent of parent or guardian necessary; how given”; carried from Code of Virginia (1887), § 2218, and the acts of 1889–90, p. 115, and 1893–94, p. 976, now Va. Code § 20-48 et seq. The same rule stands much earlier, at Code of Virginia (1849), ch. 108, § 3, p. 469: if any person intending to marry was under twenty-one years of age and had not been previously married, the consent of the father or guardian, or if there was none, of the mother, had to be given either personally to the clerk or justice, or in a writing subscribed by a witness who then made oath to it. The printed derivation runs back to 1 Revised Code (1819); digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
20. Laws of October 1780, ch. XVI, “An act declaring what shall be a lawful marriage”; Hening, Statutes at Large, vol. 10 (Richmond: Printed for the editor, 1822), 361–63. Section II preserves the requirement of a license or three publications of banns under the act of 1748; section IV requires the certificate to be transmitted to the county clerk within three months and recorded in a book kept for the purpose, on a £500 penalty; section V authorizes the county courts to license dissenting ministers, not exceeding four of each sect in a county; and the act commences “from and after the first day of January” 1781. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb10virg : accessed 12 August 2026). ↩
21. Code of Virginia (1849), ch. 108, §§ 1, 2 and 7, pp. 469–70: every license was issued by the clerk of the court of the county or corporation in which the woman to be married usually resided and was entered in a book kept for the purpose, and marriage without a license or the publication of banns was prohibited. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
22. Code of Virginia, 1919, § 5071, “Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided,” now Va. Code § 20-13; and see Va. Code § 20-45.1, declaring void a marriage entered into without a license or without solemnization. ↩
23. Code of Virginia (1849), ch. CIX, § 2, providing that where residents went into another state to evade the law, intending to return, and afterwards returned and cohabited here as man and wife, the marriage was governed by Virginia law in all respects as if solemnized in Virginia. ↩
24. Code of Virginia (1849), ch. CIX, § 1, pp. 471–72. ↩
25. Laws of April 1691, Act XVI, “An act for suppressing outlying Slaves,” § IV; Hening, Statutes at Large, vol. 3 (Philadelphia: Printed for the author, by Thomas DeSilver, 1823), 86–88, the intermarriage clause at 86–87. Transcription, Virtual Jamestown (https://www.virtualjamestown.org/laws1.html : accessed 12 August 2026). ↩
26. Laws of October 1705, ch. XLIX, “An act concerning Servants and Slaves,” §§ XIX and XX; Hening, Statutes at Large, 3:453–54. Transcription, Virtual Jamestown (https://www.virtualjamestown.org/laws1.html : accessed 12 August 2026). ↩
27. Acts of the General Assembly of Virginia, 1924, ch. 371, § 5, “An Act to Preserve Racial Integrity,” later codified at Va. Code § 20-54. ↩
28. Loving v. Virginia, 388 U.S. 1 (1967). ↩
29. The codes fixed capacity by class, not by any general qualification: Code of Virginia (1849), ch. 115, “Of the capacity of aliens and Indians to take and dispose of property,” pp. 498–99, and ch. 116, general rules as to the creation and limitation of estates, p. 499. No chapter qualified a free person’s right to hold land by sex or by color; the limits that did apply, on minors, married women, enslaved people, aliens and tributary Indians, are the ones set out in this section. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
30. The Code of Virginia: Including Legislation to the Year 1860, 2nd ed., ed. George W. Munford (Richmond: Printed by Ritchie, Dunnavant & Co., 1860), ch. 123, § 4: in making title by descent it is no bar to a party that any ancestor, living or dead, through whom he derives his descent is or has been an alien; digital images, Internet Archive (https://archive.org/details/codeofvirginiain00virg : accessed 2 August 2026). For the step short of naturalization, Code of Virginia (1849), ch. 115, §§ 1–3, pp. 498–99: any alien being a free white person and not an enemy who declared on oath before a court of record that he intended to continue to reside in the state might, on that declaration being entered of record, inherit or purchase and hold real estate as if he were a citizen, and might convey or devise it. ↩
31. The common-law capacity of a feme sole, received in 1776. The statutes assume it and qualify only married women: Code of Virginia (1849), ch. 121, which sets out the acknowledgment and proof of deeds “as to others than married women” at p. 511 and “as to married women” at p. 513, the second adding the private examination that the first does not require. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
32. The common-law incidents of coverture, received in 1776; described for Virginia in G. K. E., “The Relinquishment of Dower and Curtesy between Husband and Wife in Virginia,” Virginia Law Review 13 (1927): 418. ↩
33. Acts of the General Assembly of Virginia, 1899–1900, p. 1240, the derivation printed under Code of Virginia, 1919, § 5134, which gives a married woman the right to acquire, hold, use, control and dispose of property as if she were unmarried, and to contract, sue and be sued in the same manner as if unmarried. ↩
34. Code of Virginia of 1860, ch. 110, “Of Dower and Jointure,” § 1: a widow “shall be endowed of one-third of all the real estate whereof her husband or any other to his use was, at any time during the coverture, seized of an estate of inheritance, unless her right to such dower shall have been lawfully barred or relinquished”; the statutory root is Laws of October 1785, ch. LXV, “An act concerning the dower and jointures of widows,” Hening, Statutes at Large, 12:162–65, and the rule carries forward to Code of Virginia, 1919, § 5117. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg : accessed 12 August 2026). ↩
35. Code of Virginia, 1919, § 5211, headed “Conveyance from husband and wife; effect on right of wife”: where a husband and wife have signed and delivered a writing purporting to convey any estate, the writing conveys her dower and passes every interest she has as effectually as if she were an unmarried woman; carried from Code of Virginia (1887), § 2502, and the act of 1889–90, p. 193. ↩
36. Code of Virginia of 1860, ch. 121, § 4, p. 571, setting out the private examination of a wife and the form of the certificate; the same requirement stands at Code of Virginia (1849), ch. 121, § 4, and Code of Virginia (1873), ch. 117, § 4, and reaches back through the acts of 1748, 1785, ch. 62, and 1792, and 1 Revised Code (1819), ch. 99, § 15. ↩
37. Curtesy at common law, requiring the birth of living issue, received in 1776 and expressly preserved by Code of Virginia, 1919, § 5134, which reserves to the husband curtesy “when the common law requisites therefor exist.” It was recast by Acts and Joint Resolutions of the General Assembly of the Commonwealth of Virginia, 1922, ch. 491, p. 861, “An act in relation to a surviving husband's curtesy,” H.B. 74, approved 28 March 1922: a surviving husband is entitled to curtesy in one-third if the wife dies testate, and in all of the real estate of which she was seized of an estate of inheritance at any time during the coverture if she dies intestate and without issue of this or a former marriage, saving her equitable separate estate where the instrument creating it otherwise provides, and unless his right has been lawfully barred or relinquished; the section closes by providing that it shall not be a necessary requisite to curtesy that the wife shall have had a child born alive during coverture. Digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=nyp.33433007052750&seq=867 : accessed 6 August 2026). Amended by the acts of 1924, p. 508, ch. 345, and 1930, p. 619, ch. 230, and codified as § 5139a; the chain is set out in Powell v. Tilson, 161 Va. 318, 320 (1933). A separate act, 1940, ch. 283, bars curtesy where the wife devises land to her husband in lieu of it, and became § 5139b. ↩
38. Code of Virginia (1849), ch. 121, § 2, p. 511, under which the court or its clerk admitted a deed or other writing to record as to any person whose name was signed to it once he had acknowledged it, or once it was “proved by two witnesses as to him.” The section sets no age and no other qualification for those witnesses, so competency was left to the common law, as it was for witnesses generally. ↩
39. Code of Virginia (1849), ch. 115, § 7, p. 499: the tributary Indians within the state could not sell or devise any lands actually possessed or justly claimed by them to any person other than one of their own tribe or nation, or their descendants, and any such bargain, sale or devise was null and void; a person other than those Indians or their descendants who purchased, leased, occupied or tilled such land forfeited two dollars a year for every acre. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
40. Laws of October 1793, ch. 22, “An act for regulating the police of towns in this commonwealth, and to restrain the practice of negroes going at large”; and Laws of the session of 1802–03, ch. 21 (passed 25 January 1803), § 1, directing that every free negro or mulatto residing in a county “shall be registered and numbered in a book to be kept for that purpose by the clerk,” in the terms described above. Both in Samuel Shepherd, The Statutes at Large of Virginia, from October Session 1792, to December Session 1806, Inclusive (Richmond: Printed by Samuel Shepherd, 1835), vols. 1 and 2; digital images, Internet Archive, vol. 1 (https://archive.org/details/statutesatlargeo01virg) and vol. 2 (https://archive.org/details/statutesatlargeo02virg : accessed 2 August 2026). What the surviving registers contain is described in Library of Virginia, Virginia Untold: The African American Narrative (https://lva-virginia.libguides.com/virginia-untold : accessed 2 August 2026). ↩
41. Laws of the session of December 1805, ch. 63, “An act to amend the several laws concerning slaves” (passed 25 January 1806), § 10; Shepherd, Statutes at Large, 3:252: a slave thereafter emancipated who remained in the Commonwealth more than twelve months after his or her right to freedom accrued forfeited all such right and might be apprehended and sold by the overseers of the poor. Section 16 brings the act into force from 1 May 1806. Hening ends with 1792, so acts after that date are read in Shepherd; digital images, Internet Archive, vol. 3 (https://archive.org/details/statutesatlarge00shepgoog : accessed 2 August 2026). ↩
42. Code of Virginia (1849), ch. 107, “Of free negroes,” pp. 465–68, at §§ 18 and 19: a free person of color wishing to move into a county or corporation applied to its court to be registered, the court granting or refusing the application in its discretion; one who resided or habitually remained there more than two months without applying, or who was found there ten days after an application had been refused, was treated as being at large without a register. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
43. Stevenson's Heirs v. Sullivant, 18 U.S. (5 Wheat.) 207. ↩ ↩
44. Advancements were brought into account against the child’s share, an adjustment the codes call hotchpot; the rule descends from the Act of Descents of 1785 through Code 1950, § 64-17, now Va. Code § 64.2-206. ↩
45. Code of Virginia of 1860, ch. 123, § 10, cls. 1–5, and § 11, pp. 579–80, carrying the Act of 1785. The same scheme runs forward through the Code of Virginia (1887), § 2557. ↩
46. Code of Virginia, 1919, § 5273, headed “Distribution of personal estate”: where a person dies intestate as to personal estate, the surplus after funeral expenses, charges of administration and debts passes to the same persons, and in the same proportions, as real estate descends, except that a minor's personal estate is distributed as if he were an adult, and that a surviving husband or wife takes one-third of the surplus where the intestate left surviving issue of this or a former marriage, and the whole of it where no such issue survives. The derivation printed under the section reads “Code 1887, § 2557,” and the revisers' note states that the section materially changes the law governing the distribution of the personal estate of married persons and puts husband and wife on terms of equality in case of intestacy, then sets out the older scheme it displaced. The change therefore belongs to the revision of 1919 and not to any earlier amending act. See also the U.S. Women's Bureau report for Virginia (1949), no. 15; now Va. Code § 64.2-200 et seq. Digital images, Internet Archive, vol. 2 (https://archive.org/details/codevirginiawit00statgoog : accessed 12 August 2026). ↩
47. Code of Virginia, 1919, §§ 5117, 5139a, 5158, as stated in the U.S. Women's Bureau report for Virginia (1949), no. 15: where the decedent left neither will nor issue, the survivor takes the one-third life interest and, subject to creditors, a life interest in all the residue of the real estate. ↩
48. Code of Virginia of 1860, ch. 123, § 12, allowing renunciation within one year from the admission of the will to probate, in person before the court in which the will is recorded or by a writing recorded there; the widow then takes as if her husband had died intestate. Carried to Code 1950, § 64-13, thence § 64.1-13, and rewritten to the present six-month period by Acts of the General Assembly of Virginia, 1990, ch. 831, now Va. Code § 64.2-302. ↩
49. Code of Virginia, 1919, § 5317; amended 1926 (p. 589), 1928 (p. 1085) and 1946 (p. 223); carried as Code 1950, § 31-5, now Va. Code § 64.2-1703, under which a minor of at least 14 nominates his own guardian before the court or clerk and the nominee is appointed if found suitable and competent. The same rule stands much earlier, at Code of Virginia (1849), ch. 127, “Of guardians and wards,” §§ 3–5, pp. 532–33: the circuit, county or corporation court of the county where the minor resided, or where he held estate if he lived out of the state, appointed a guardian unless the father had appointed one by will; if the minor was under fourteen the court nominated and appointed, and if he was above that age he might nominate his own guardian in the presence of the court or in writing acknowledged before a justice, the nominee being appointed if the court approved; and every guardian gave bond. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩ ↩
50. Laws of October 1785, ch. LXXXVI, “An act concerning guardians, infants, masters, and apprentices,” from the Revised Bills of 1779, ch. LX; Hening, Statutes at Large, vol. 12, the guardianship provisions at 195–97. A father, even if not twenty-one himself, might grant or devise the custody and tuition of his child by deed or will executed before two credible witnesses; the High Court of Chancery generally, and every county court in chancery within its limits, had power to control guardians, to require security, and to displace a guardian who refused it or was guilty of a flagrant abuse of trust; every court appointing a guardian took bond with sufficient surety; and every guardian delivered an inventory on oath at the next term and thereafter accounted to the court once a year, in August in the county courts. Where a guardian could not give surety the court put the estate in the hands of a curator. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg : accessed 12 August 2026). ↩
51. The English rule the colony brought with it and kept until 1785, and the source of the age of fourteen for a minor’s choice of guardian: William Blackstone, Commentaries on the Laws of England, book 1, ch. 17, “Of Guardian and Ward.” A male at fourteen was at years of discretion and might choose his guardian and, his discretion being proved, make a testament of his personal estate; a female at twelve might bequeath her personal estate and at fourteen might choose a guardian; guardianship for nurture and in socage ran only to fourteen, when the minor was presumed to have discretion enough to choose. Transcription, The Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/blackstone_bk1ch17.asp : accessed 12 August 2026). ↩ ↩
52. Code of Virginia of 1860, ch. 123, § 6, legitimating a child where the father afterwards intermarries with the mother and recognizes the child before or after the marriage; and § 5, under which a child born outside marriage inherits and transmits inheritance on the mother's side as if lawfully begotten. The rule descends from the Act of Descents of 1785. ↩
53. Laws of October 1785, ch. LXI, “An act concerning wills; the distribution of intestates estates; and the duty of executors and administrators,” from the Revised Bills of 1779, ch. XXI; Hening, Statutes at Large, 12:140–45. Section I gives every person aged twenty-one years or upwards, of sound mind and not a married woman, power to devise land by a will in writing signed by the testator or by another in his presence and at his direction, and, if not wholly written by himself, attested by two or more credible witnesses subscribing. Section IV, at 141: “No person under the age of eighteen years shall be capable of disposing of his chattels by will.” The act took effect 1 January 1787. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg : accessed 12 August 2026). ↩
54. Code of Virginia of 1860, ch. 122, § 3: “No person of unsound mind, or under the age of twenty-one years, shall be capable of making a will, except that minors eighteen years of age, or upwards, may, by will, dispose of personal estate. Nor shall a married woman be capable of making a will, except for the disposition of her separate estate, or in the exercise of a power of appointment.” The printed derivation reads 1 Revised Code (1819), p. 375, and the act of 1834–35, p. 43, ch. 60, and the rule descends from the Act of 1785. ↩
55. Acts of the General Assembly of Virginia, 1972, ch. 825, the same session that reduced the age of majority; the wills sections are Code 1950, §§ 64-48, 64-49, thence §§ 64.1-46, 64.1-47, now Va. Code § 64.2-401. ↩
56. Code of Virginia of 1860, ch. 122, § 6: notwithstanding the two preceding sections, a soldier in actual military service, or a mariner or seaman at sea, may dispose of his personal estate as he might heretofore have done; the same section validates the will of a person domiciled outside Virginia if executed according to the law of the place of domicile. ↩
57. Code of Virginia of 1860, ch. 122, § 4, requiring a writing signed by the testator or by another in his presence and at his direction in such manner as to make it manifest that the name is intended as a signature, and, unless the will is wholly written by the testator, signature or acknowledgment before at least two competent witnesses present at the same time, subscribing in his presence, with no form of attestation necessary. Competency, not age, governed those witnesses: the wills chapter treats the question at §§ 20 and 21, headed “When and how devisee or legatee a competent witness to a will” and “Competency of creditors and executors,” Code of Virginia (1849), p. 519, and sets no age. ↩
58. Code of Virginia of 1860, ch. 122, § 4, which requires attesting witnesses only where the will is not wholly written by the testator; the requirement that the handwriting be proved by two disinterested witnesses is Va. Code § 64.2-403(B), carried from Code 1950, § 64-51. ↩
59. No section of the codes of 1849, 1860 or 1919 sets a qualifying age for an executor in terms, but the code assumed one and suspended the office while the executor was under age: Code of Virginia (1849), ch. 130, § 10, p. 542, which directs the court to order the sheriff to take the estate and administer it where three months elapse without an executor or administrator, “except during a contest about the decedent’s will, or during the infancy or absence of the executor.” Full age is 21, a minor being under a disability: see Va. Code §§ 64.2-500 and 8.01-2, carried from Code 1950, § 64-112, thence § 64.1-116. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog : accessed 12 August 2026). ↩
60. Code of Virginia (1849), ch. 130, pp. 541–42: § 4 gives administration to the distributees who apply, preferring first the husband or wife of the deceased and then such of the others entitled to distribution as the court sees fit; § 9 provides that where an unmarried woman who is a personal representative marries, her husband does not become personal representative in her right, the marriage operating as an extinguishment of her authority, and any other representative may go on as if she were dead, or the court may grant administration of what is left unadministered. ↩
61. Code of Virginia of 1860, ch. 130, § 2: where the executors named refuse the executorship, or fail when required to give bond, the court may grant administration with the will annexed to the person who would have been entitled to administration if there had been no will. ↩
62. Laws of March 1661–62, Act LIV, “What persons are Tythable”; Hening, Statutes at Large, vol. 2 (New-York: Printed for the editor, by R. & W. & G. Bartow, 1823), 84: all male persons of whatever age imported into the country, and all negroes male and female being imported, are tithable, as are all Indian servants male or female adjudged sixteen years of age; Christians native to the country, or imported free by their parents, are not liable until sixteen. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb02virg : accessed 12 August 2026). ↩
63. Laws of May 1723, § XXI, marked in the margin “What free negroes, &c. tithables”; Hening, Statutes at Large, vol. 4 (Richmond: Printed for the editor, at the Franklin Press — W. W. Gray, printer, 1820), 133: all free negros, mulattos or indians, except tributary indians to this government, male and female, above the age of sixteen years, “and all wives of such negros, mulattos, or indians,” are deemed and accounted tithables, any law, custom or usage to the contrary notwithstanding. The clause on wives carries no qualification of the wife's own race. Digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=hvd.hxh5u5&seq=141 : accessed 2 August 2026). ↩
64. Laws of October 1748, ch. XXI, “An Act concerning Tithables”; Hening, Statutes at Large, 6:40–44. Section I declares tithable all male persons of sixteen years and upwards, and all negro, mulatto and Indian women of the same age except Indians tributary to the government, and all wives of free negroes, mulattos and Indians, excepting only those the county courts thought fit to excuse for charitable reasons; section II exempts the governor and his domestic servants, the president, masters, scholars and domestic servants of the College of William and Mary, any beneficed minister, and any constable while in office; section III requires the owner or purchaser of every imported child, servant or slave, and the parent or importer of every free male child, to bring the child before the county court at the first, second or third court after importation, the age then adjudged and recorded being taken as the true age for becoming tithable, and the child being tithable at once otherwise. The act repealed the act of 4 Anne concerning tithables and took effect 10 June 1751. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb06virg : accessed 12 August 2026). ↩
65. Laws of November 1781, ch. XL, “An act for ascertaining certain taxes and duties, and for establishing a permanent revenue”; Hening, Statutes at Large, vol. 10 (Richmond, 1822), 501: a tax of ten shillings by every free male person above the age of twenty-one years who shall be a citizen of this commonwealth, and upon all slaves, to be paid by the owners thereof, except such free persons and slaves as shall be exempted on application to the respective county courts through age or infirmity, with further sums on horses, cattle and carriages. That the slave tax ran from sixteen by 1787 appears from the recital of the standing taxes at Hening 12:412. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb10virg : accessed 6 August 2026). ↩
66. Laws of October 1787, §§ XXV–XXVI; Hening, Statutes at Large, 12:431. Section XXV recites that the tax on young slaves and the tax on free males above the age of twenty-one years have been found very burthensome, and repeals so much of the laws of revenue as impose the ten shillings payable by each free male person above twenty-one, with restitution of any such tax already paid for 1787; it also remits so much of the 1787 slave tax as was charged on slaves under sixteen. Section XXVI provides that slaves above the age of twelve years shall in future pay the tax, an account of them to be given to the person appointed to take the list of taxable property. The annual revenue acts carry the figure of twelve forward through 1803: Hening, Statutes at Large, vol. 13 (Philadelphia, 1823), the acts of 1789 and 1792, and Shepherd, Statutes at Large, vols. 1–3, the acts of 1793, 1796, 1798 and 1803. Digital images, Internet Archive, vol. 12 (https://archive.org/details/statutesatlargeb12virg) and vol. 13 (https://archive.org/details/statutesatlargeb13virg : accessed 12 August 2026). ↩
67. Laws of December 1792, “An act reducing into one the several acts concerning the county levy” (passed 27 December 1792), § 1; Shepherd, Statutes at Large, vol. 1: all male persons of the age of sixteen years and upwards, and all female slaves of the age of sixteen years and upwards, are declared tithable and chargeable for defraying the county levies and poor rates, except such only as the county courts may exempt by reason of age, infirmity or other charitable reason. The same rule is carried into the Revised Code of 1819, vol. 2, p. 62, so it still governed the county levy well into the nineteenth century. ↩
68. Library of Virginia, Personal Property Tax Records, timeline of record changes (https://lva-virginia.libguides.com/personal-property-tax/tax-changes : accessed 12 August 2026), puts the taxable age at 21 for 1782 to 1787 and dates the change to 16 for the whole state to 1793. John Barrett Robb, Interpreting the Annual Virginia Tax Lists from 1782 On, and Their Basis in Law (https://www.johnbrobb.com/Content/VA/VA-Taxes-Law&Interpretation.pdf : accessed 6 August 2026) instead dates the roll-back to 16 to the act of October 1787 at citation 66, and prints two Augusta County lists of 1790 in which one commissioner heads the column White Males Above Sixteen Years Old and another heads it simply white tithables. The 1787 act left no age but 16 anywhere in the law, and those 1790 lists run three years ahead of the Library's date, so 1793 is the year the state's printed form caught up with county practice rather than the year the age changed. The two accounts differ over which statute to date the change from, not over what the column counts. A column-by-column account of one county's run is at https://resources.umwhisp.org/Fredericksburg/ppintro.htm : accessed 6 August 2026. Headings and statutes also part company over the age of enslaved people between 1788 and 1814: the tax on those of twelve and upwards dates from 1787, but a column headed for that age does not appear on the printed form until 1814, because the revenue acts of those years were annual and temporary and were never carried into the permanent compilations. ↩ ↩
69. Virginia Constitution of 1902, art. II, §§ 18–23, the elective-franchise article, with the conditions for voting at § 21 and the exemption of Civil War veterans and their sons at § 22; reprinted in the front matter of the Code of Virginia, 1919. ↩
70. U.S. Const. amend. XXIV (1964); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). ↩
71. Laws of March 1642–43, Act I; Hening, Statutes at Large, vol. 1 (New-York: Printed for the editor, by R. & W. & G. Bartow, 1823), 242, charging the parish levy on all tithable persons, that is to say as well for all youths of sixteen years of age and upwards as also for all negro women at the age of sixteen years. This is the earliest act to count Black women separately from other women, and the starting point of the colonial tithable system. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb01virg : accessed 12 August 2026). ↩
72. Laws of February 1644–45, Act VIII; Hening, Statutes at Large, vol. 1 (New-York: Printed for the editor, by R. & W. & G. Bartow, 1823), 292, resolving that all negro men and women, and all other men from the age of 16 to 60, be adjudged tithable. The range of 16 to 60 governs the second class only, so Black men and women were tithable whatever their age, and 60 is the one upper limit the colonial acts ever set. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb01virg : accessed 12 August 2026). ↩ ↩
73. Laws of September 1668, Act VII, “Negro women not exempted from tax”; Hening, Statutes at Large, 2:267, declaring that negro women, though permitted to enjoy their freedom, remained liable to the payment of taxes. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb02virg : accessed 12 August 2026). ↩
74. Laws of September 1672, Act III, “An act concerning tythables borne in the country”; Hening, Statutes at Large, vol. 2 (New-York: Printed for the editor, by R. & W. & G. Bartow, 1823), 296. The persons appointed by the county courts to take the list of tithables were to take an account of all negro, mulatto and Indian children within their precincts, and the masters and owners were to prove their ages on oath or evidence; every negro and mulatto child born in the country was to be registered in the parish register with an exact age within twelve months of birth, the owner otherwise paying the levy for the child until it was; and all negro women born in the country were accounted tithable at sixteen years of age. The registration clause is the reason an age for an enslaved child sometimes survives in a parish register. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb02virg : accessed 12 August 2026). ↩
75. Laws of June 1680, Act VII, “An act assertaining the time when Negroe Children shall be tythable”; Hening, Statutes at Large, 2:479–80. An imported enslaved child was to be brought before the county court within three months of the law’s publication or of its arrival, its age adjudged by the justices and put upon record, and the child was not to be accounted tithable until it attained the age of twelve years; and no Christian servant imported was to be tithable before the age of fourteen. The act therefore ended the rule of the 1661–62 act that an imported person counted at any age. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb02virg : accessed 12 August 2026). ↩
76. Laws of November 1682, Act II, “An act declaring Indian women servants tithables”; Hening, Statutes at Large, 2:492, enacting and declaring that all Indian women are and shall be tithables and ought to pay levies in like manner as negro women brought into the country. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb02virg : accessed 12 August 2026). ↩
77. Laws of October 1705, ch. VII, “An act concerning Tithables”; Hening, Statutes at Large, 3:258–59, declaring tithable all male persons of sixteen years and upwards, and all negro, mulatto and Indian women of sixteen and upwards not being free, excepting those the county court and vestry thought fit to excuse in charity. Transcription, Virtual Jamestown (https://www.virtualjamestown.org/laws1.html : accessed 12 August 2026). ↩
78. Laws of November 1769, ch. XXXVII, “An act for exempting free negro, mulatto, and Indian women, from the payment of levies”; Hening, Statutes at Large, 8:393. The act recites the tithables clause of the revisal of 1748 (22 Geo. II, ch. 16, § 1), calls the charge burthensome to such negroes, mulattoes and Indians and moreover derogatory of the rights of free-born subjects, and enacts that all free negro, mulatto and Indian women, and all wives other than slaves of free negroes, mulattoes and Indians, are exempted from being listed as tithables and from the payment of any public, county or parish levies; § II repeals so much of the act of 1748 as declared them chargeable. Section III is a suspending clause holding the act until the king's approbation should be obtained, and Hening's marginal note records the royal assent proclaimed 3 April 1771. The operative date on the lists is therefore 1771 and not the ninth of June 1770 named in the text, so a free woman of color carried as a tithable dates a list before 1771. Transcription, Hening's Statutes at Large (https://www.usgenwebsites.org/vagenweb/hening/vol08-19.htm : accessed 12 August 2026). ↩
79. Conley L. Edwards, A Political History of the Poll Tax in Virginia, 1900–1950 (master's thesis, University of Richmond), opening chapter: free negroes and whites were required by law to pay a capitation tax until 1787; in 1813 a capitation tax was laid on all free negroes and mulattoes not bound out as apprentices, in an effort to press the state's Black population into apprenticeship or out of Virginia; by 1816 that tax was abolished, and it did not reappear until 1850, when a tax was laid on free negroes between the ages of twenty-one and fifty-five to finance the colonization then underway in Liberia. UR Scholarship Repository (https://scholarship.richmond.edu/masters-theses/452/ : accessed 12 August 2026). The column itself is dated 1813 to 1865 in the account of the Fredericksburg lists cited at citation 68, which is consistent with the column outliving the tax by nine years, and the row above states the dates on that combined authority. ↩
80. Constitution of Virginia (1851), art. IV, §§ 23–24. Section 23 provides that every slave who has attained the age of twelve years shall be assessed with a tax equal to and not exceeding that assessed on land of the value of three hundred dollars, and that slaves under that age shall not be subject to taxation. Section 24 provides that a capitation tax, equal to the tax assessed on land of the value of two hundred dollars, shall be levied on every white male inhabitant who has attained the age of twenty-one years; that one equal moiety of the capitation tax upon white persons shall be applied to the purposes of education in primary and free schools; and that nothing therein prevents exemptions of taxable polls in cases of bodily infirmity. This is the provision that puts a column of white males of twenty-one and upwards back on the tax books after sixty-four years without one, and it is why the printed form of the eighteen-fifties carries both that column and a column of free males of sixteen and upwards. Transcription, West Virginia Archives and History (https://archive.wvculture.org/history/government/1851constitution01.html : accessed 12 August 2026). ↩
81. Brent Tarter, “Poll Tax,” Encyclopedia Virginia (https://encyclopediavirginia.org/entries/poll-tax/ : accessed 12 August 2026): the poll tax returned after the Civil War as revenue for the new public school system; in 1876 the Conservative party carried a constitutional amendment denying the vote to men who had not paid it, the first time in Virginia that payment was made a condition of voting; and in 1882 the Readjusters carried a further amendment striking that condition out again. The same account notes that between the Revolution and the Civil War the tax on people was the principal source of income for local rather than state government, which is the point the row for 1788 to 1850 turns on. ↩
82. Laws of October 1705, ch. XXXII, “An act concerning Juries”; Hening, Statutes at Large, 3:367–71. Section II requires the county court to summon twenty-four freeholders to the May and November courts, fifteen of whom make a grand jury; section VI directs a writ of venire facias for six freeholders of the county in cases of treason or felony, the panel filled from freeholder bystanders worth £100; section VII sets the qualifications; section VIII requires an exception on account of estate to be taken before the juror is sworn. Transcription, Hening’s Statutes at Large, vol. 3 (https://www.usgenwebsites.org/vagenweb/hening/vol03.htm : accessed 12 August 2026). ↩
83. The Revised Code of the Laws of Virginia, vol. 1 (Richmond: Printed by Thomas Ritchie, Printer to the Commonwealth, 1819), ch. 75, “An act to reduce into one the several acts, concerning Grand Juries and Petit Juries” (passed 7 January 1819), § 12, pp. 264–66: no person was capable of serving on a petit jury for the trial of treason, felony, breach of the peace, misprision of treason, breach of the penal laws, any plea of the Commonwealth, or any estate of freehold or title to lands in any court of record, or of serving as a juror in any case in the superior courts, unless he was a freeholder possessed of a visible estate, real or personal, worth at least three hundred dollars; no person could serve on a jury in a county or other inferior court unless he was possessed of a visible estate, real or personal, worth at least one hundred and fifty dollars; “no person under the age of twenty-one years, shall serve as a juror”; and no exception against a juror on account of his estate or age was allowable after he was sworn. Digital images, Internet Archive (https://archive.org/details/the-revised-code-of-the-laws-of-virginia-1819 : accessed 12 August 2026). ↩
84. Code of Virginia of 1860, ch. 162, § 1: “All free white male persons, who are twenty-one years of age and not over sixty, shall be liable to serve as jurors, except as herein after provided,” p. 689, from the act of 1852–53, p. 43, ch. 27, § 1; the exempt occupations are at § 2, and the annual list drawn by the county or hustings court from those it thinks well qualified is at § 4. ↩
85. Code of Virginia, 1919, § 5984, headed “Who liable to serve as jurors”: all male citizens over twenty-one years of age, resident in the State two years and in the county, city or town one year next preceding the summons, and competent in other respects; idiots, lunatics, and persons convicted of bribery, perjury, embezzlement of public funds, treason, felony or petit larceny are disqualified; and no male citizen over sixty years of age can be compelled to serve. ↩
86. The common-law ages of criminal responsibility, received by the Ordinance of May 1776, ch. 5, § 6; Hening, Statutes at Large, 9:127. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb09virg : accessed 12 August 2026). ↩
87. Code of Virginia, 1919, § 1906, defining a delinquent, dependent or neglected child as one under eighteen years of age, from Acts of the General Assembly of Virginia, 1914, p. 696; and § 1945, establishing the juvenile and domestic relations court in cities of fifty thousand or more, from Acts, 1914, p. 82; now Va. Code §§ 16.1-228, 16.1-269.1. ↩
88. The competency sections of the evidence chapter set out the disqualifications — interest, and, before 1866, race — and name no age among them: Code of Virginia (1849), ch. 176, pp. 663–65, where the rule on race is § 19; and Code of Virginia of 1860, ch. 176, §§ 18–20, p. 724. Whether a child understood the obligation of an oath was therefore a question for the trial judge under the common law received in 1776. ↩
89. The bar was a common-law rule, received in 1776; the competency sections of the evidence chapter in the Code of Virginia of 1860, ch. 176, §§ 18–20, p. 724, set no rule for husband and wife. The statutes of 1893–94, p. 722, 1897–98, p. 753, and 1901–2, p. 798 replaced it, and the rule reached the Code of Virginia, 1919 as § 6210, headed “Competency of husband and wife to testify”: husband and wife are competent witnesses to testify for and against each other in all cases, civil and criminal, except as otherwise provided. Section 6211 adds that the failure of either to testify creates no presumption against the accused and is not to be the subject of comment. ↩
90. Laws of October 1705, ch. XIX, “An act for establishing the General Court, and for regulating and settling the proceedings therein,” § XXXI; Hening, Statutes at Large, 3:298, deeming convicted popish recusants, negroes, mulattoes and Indian servants, and others not being Christians, to be persons incapable in law to be witnesses in any cases whatsoever. Transcription, Virtual Jamestown (https://www.virtualjamestown.org/laws1.html : accessed 12 August 2026). ↩
91. Laws of October 1748, ch. XIV, “An Act concerning Servants, and Slaves,” § X; Hening, Statutes at Large, vol. 5 (Richmond: Printed for the editor, at the Franklin Press — W. W. Gray, printer, 1819), 547, enacting that no free negro, mulatto or Indian should be admitted or sworn a witness in any cause whatsoever, except against or between negroes, mulattos or Indians. The same section barred a convict under sentence of transportation except against or between other convicts. This is the rule the Revised Code of 1819 and the codes of 1849 and 1860 carry forward, as the printed derivation cited below shows. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb05virg : accessed 12 August 2026). ↩
92. Code of Virginia of 1860, ch. 176, § 20, p. 724: “A negro or indian shall be a competent witness in a case of the commonwealth for or against a negro or indian, or in a civil case to which only negroes or indians are parties, but not in any other case.” The printed derivation reads 1 Revised Code (1819), p. 422, § 5, and p. 516, ch. 131, § 3, and the rule runs back through the Revised Code to the 1748 revisal cited above. Repealed in 1866 by Acts of Virginia, 1865–66, ch. 17. ↩
93. Acts of Virginia, 1865–66, ch. 17, pp. 84–85, “An Act to amend and re-enact the 9th section of chapter 103 of the Code of Virginia for 1860, defining a Mulatto, providing for the punishment of Offences by Colored Persons, and for the admission of their Evidence in Legal Investigations; and to repeal all Laws in relation to Slaves and Slavery” (passed 27 February 1866). ↩
94. The Code of Virginia, 3rd ed., ed. G. W. Munford (Richmond: James E. Goode, 1873), tit. 30, ch. CIII, § 5. ↩
95. Civil Rights Act of 1866, Act of 9 April 1866, ch. 31, 14 Stat. 27. ↩
96. Ex parte Virginia, 100 U.S. 339 (1880), on the indictment of J. D. Coles, judge of the county court of Pittsylvania County, for excluding citizens of African descent from the jury lists he made out; the Court records that the Virginia statute governing the preparation of the list made no discrimination against persons of color. Justia (https://supreme.justia.com/cases/federal/us/100/339/ : accessed 6 August 2026). ↩
97. Virginia v. Rives, 100 U.S. 313 (1880), decided the same day. ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.