West Virginia Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

The English legal system inherited from Virginia

West Virginia's law came from England, and it arrived by way of Virginia. Everything that is now West Virginia was Virginia soil until 20 June 1863, so for the first century and a half of settlement the governing law was Virginia law: English common law (judge-made law, handed down through court decisions rather than written by a legislature), together with the acts of the Virginia General Assembly. Virginia declared the common law of England to be the rule of decision in 1776 and kept it thereafter¹. Husband and wife each owned their own property, and land descended by English rules of inheritance.

What changed in 1863

The new state kept the law it already had. Its first Constitution continued such parts of the common law and of the laws of Virginia as were in force and not repugnant to it, until the Legislature altered them². For research this is a useful fact about 1863: the rules stayed as they were on the day the state was created.

For the first five years the Legislature worked by amending the Virginia code directly, so for 1863 to 1868 the working text is the Virginia Code as amended by West Virginia acts³. The state's own code was adopted in 1868 and took effect in 1869. Most of its chapters carry a printed derivation to the Virginia section they came from, which is the fastest way to trace a rule backward; where a West Virginia rule looks different, the codifiers had usually gone elsewhere, as they did for the chapter on the property of married women, drawn mainly from the statutes of New York⁴.

One thing did change, and knowing when saves a wasted search: the officer who kept the records. Under the Constitution of 1863 he was the county recorder, who registered births, marriages, and deaths, issued marriage licenses, recorded deeds, took acknowledgments and relinquishments of dower, admitted wills to probate, and appointed guardians⁵. The Constitution of 1872 scrapped that arrangement and restored the county court, and from then through 1950 the work belonged to the county court and its clerk⁶. Both series sit in the same courthouse, and an index may run them together.

Dates that anchor the records

Each of these marks a change you will see in the records:

• 1787 — the Virginia descents act takes effect; land is divided among all the children rather than passing to the eldest son.
• 1863 — West Virginia is created; Virginia law continues in force; gradual emancipation begins⁷.
• 1865 — slavery is abolished outright.
• 1866 — the marriages of formerly enslaved couples are legalized, and people of color become competent witnesses.
• 1869 — married women get a separate estate, and the surviving spouse moves up the line of inheritance.
• 1882 — the jury statute drops the racial and voter qualifications.
• 1897 — the marrying ages rise to 18 for a man and 16 for a woman.
• 1915 — children under 18 leave the ordinary criminal courts for a juvenile court.
• 1931 — the recodification ends the husband's control of his wife's conveyances, abolishes curtesy, and raises the will age to 21.

For any given year, the rule in force is the statute where one had been passed by then, and otherwise the common law.

Legal Age of Adulthood

Majority at twenty-one

Full legal age was 21, for men and women alike, throughout the period and in both jurisdictions. The age came from the common law received from England, and the codes used it rather than restating it — jurors had to be 21, apprenticeship ran to 21 for a boy, a guardian's trust ended at 21, and a will of land called for 21⁸. Anyone under 21 was an "infant" in legal language, even a 20-year-old.

A minor's legal capacity

A minor could own property of any kind, at any age. What the law limited was the power to dispose of it. A minor's contract or deed was voidable — valid until the minor chose to undo it — and the undoing had to come within a reasonable time after coming of age, by a definite act: re-entering the land, conveying it to someone else, suing to recover it, or giving the buyer clear notice⁹.

In practice a minor's land was sold by a guardian through a court proceeding brought for the purpose¹⁰. So a deed of a child's land is normally accompanied by a court file, and the file names the child, the guardian, and the reason for the sale.

One age is easy to mistake for majority. A bound apprentice served to 21 if a boy and to 18 if a girl, so the age at which an indenture ended is not evidence of the age of majority¹¹.

Marriage

Who was old enough to marry

The marrying age changed once, in 1897, and the change divides the period in two. Until then the common-law ages governed: 14 for a male and 12 for a female. They came in with the common law itself and applied in the western counties from settlement¹². Virginia put them into statute in the Code of 1849, which called them the age of consent — the age at which a person could lawfully marry¹³ — and West Virginia carried the same figures into its own code word for word¹⁴.

In 1897 the Legislature raised them. An act headed as raising the age of consent re-enacted the section to make the age 18 for a male and 16 for a female¹⁵. It took effect ninety days from its passage, so the new ages governed from the spring of 1897, and the recodification of 1931 carried them forward through 1950¹⁶. These were flat minimums; the parental consent described below let a person under 21 marry, but let no one marry below these ages.

A marriage below the age stood unless the couple separated while still under age and did not live together afterwards¹⁷, and the suit to annul it belonged to the underage party alone¹⁸. In practice an ancestor's very young marriage was almost certainly valid.

One protective rule sat alongside the older ages, and it changed shape three times. Under the Virginia act of 1705 a girl of 12 or over but under 16 who married against her parent's or guardian's will and without banns lost the use of her land: her next of kin entered and held it for as long as the marriage lasted, and it came back to her when the marriage ended¹⁹. The act of 1748 kept that forfeiture²⁰, and the act of 1792 narrowed the band to a girl of 12 and under 14²¹. The Code of 1849 changed the remedy rather than the age: instead of the next of kin taking the land, the court put her estate in the hands of a receiver until she reached 21²². So before 1849 look for a next-of-kin entry on her land, and after it for a receiver's appointment; either is a court record naming the girl.

Parental consent

Consent was required for anyone under 21, of either sex, who had not been married before, and the rule is as old as the license itself. The Virginia act of 1705 already had it: where 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 who issued the license, or signified in writing under hand and seal and attested by two witnesses²³. The act of 1748 restated it, and the act of 1792 added the step that produced the paper researchers find: one of the two witnesses had to appear before the clerk in person and swear that he had seen the father or guardian sign²⁰²¹. That is the same mechanism the Code of 1849 and the West Virginia code carried forward — consent given in person to the officer who issued the license, or in a writing signed before a witness who then swore before that officer that he had seen it signed²⁴. Who gave it changed in 1921: before that year it was the father or guardian, or where there was neither, the mother; an act of 1921 made both parents equally entitled to custody, and from then the consent of both was required, or of the parent with custody where they lived apart²⁵.

This is a more useful rule than the marrying ages, because it generated paper. A consent filed with a license names the parent or guardian giving it and shows the party was under 21, which brackets a birth year from the other direction. It is kept with the marriage records of the county that issued the license.

How a marriage was made

A valid marriage required a ceremony before an official authorized to perform marriages, and before the ceremony either a license or the publication of banns. Banns were a public announcement of the intended marriage, read three times in the congregation where each party lived. The two routes stood side by side from the Virginia act of 1705 through the act of 1748, the act of 1792, and the Code of 1849, and a couple who used banns needed no license at all²³²¹²⁶. The license, where one was taken out, was issued by the officer of the county where the woman usually lived and entered in a book kept for the purpose²³²⁶. Ministers were authorized by court order to celebrate the rites, justices could act in their own right, and the officiant returned a certificate that was entered in the register of marriages²⁷²⁸. Because the license issued where the bride lived, a couple often married in her county rather than his — look there first.

The banns route matters more here than almost anywhere else in Virginia, because the act of 1792 wrote a rule for this region by name. On the western waters of the commonwealth — the country draining to the Ohio, which is most of what became West Virginia — banns were to be published on three separate days, over not less than two weeks, in open and public assemblies gathered for religious worship or any other lawful purpose, or within the militia companies in which the parties lived; the person who published them certified the fact and could charge fifty cents²¹. A couple married that way left no license and no bond. So for the period before 1849 the absence of a license is not evidence that no marriage took place, and a search that stops at the license books will miss these couples. Look instead for the minister’s return, for the certificate of publication, and for the county register of marriages.

Two other groups married outside the license system. Quakers and Mennonites, and other societies with the same discipline, could solemnize their own marriages by the mutual consent of the parties declared openly before the congregation, and needed neither license nor banns²¹ — their marriages are recorded in the meeting’s own minutes rather than in the courthouse. And a servant bound by indenture or custom could not marry without a certificate of the master’s consent, which the minister had to have in hand before publishing banns or performing the ceremony²³²¹.

From 1869 the West Virginia officer had to record the full names of both parties, their ages, and their places of birth and residence before handing over the license²⁹, which makes a West Virginia license application one of the few county records that states an age outright.

Marriage came from the ceremony. A couple who lived together as husband and wife acquired the status only by going through one, however long they lived together and however completely their neighbors believed them married; West Virginia has never recognized a common-law marriage formed inside the state³⁰. The license became the only route to a ceremony later: banns disappear from the West Virginia code, and by the twentieth century every marriage in the state had to be under a license³⁰. A marriage that was good where it was celebrated was honored here, except where the parties left the state to evade its law and then returned to live as man and wife³¹. One wartime exception is worth knowing: a marriage celebrated in the state between 17 April 1861 and 1 January 1866 was good even with no license behind it³², so a Civil War marriage missing from the license books still stands.

Marriages that were void and marriages a court could cancel

The statute drew a line between marriages void from the start and marriages that stood until a court undid them, and only the second kind leaves a court file. Absolutely void, with no decree needed, were a marriage between a white person and a person described in the statute as a negro, and a marriage where either party already had a living husband or wife. Void only from the time a court declared them so were marriages within the prohibited degrees of kinship — that is, between people too closely related — marriages where either party was insane, and marriages where either party was physically incapable³³. West Virginia re-enacted the same list and moved under-age marriages into the second group³⁴.

The forbidden degrees ran through the usual close relations by blood and by marriage, and West Virginia added one of its own: from 1869 no person could marry a first cousin³⁵, so a first-cousin couple married after that date married somewhere else.

Enslaved people and people of color

Enslaved people had no legal capacity to contract a civil marriage, so no county marriage record was created for them before emancipation. Their unions were recognized within the community and sometimes noted in church or plantation records, but not in the officer's register.

Emancipation came in stages, and the stages fix when a person could first appear in a marriage register. The Constitution of 1863 freed children of enslaved mothers born after 4 July 1863, freed those then under 10 at 21, and those between 10 and 21 at 25⁷. The Legislature abolished slavery outright on 3 February 1865, declaring all persons held to service or labor as slaves in the state to be free³⁶.

West Virginia then legalized the marriages of formerly enslaved couples by an act of 28 February 1866. Marriages already celebrated between colored persons under a license were declared valid, and so were marriages between such persons whether licensed or not, where the marriage was entered into in good faith and the couple were living together as husband and wife when the act passed³⁷. The act validated those marriages by its own force, so no register of cohabitations was created here, and the absence of one is not evidence that a couple went unrecorded. Virginia took the other route the same year, requiring couples to appear before the clerk and be entered in a register kept for the purpose, and those registers survive as a distinct series — so where the family was in a county still Virginia soil in 1866, look for the Virginia register³⁸.

The same act applied the state's marriage and registration laws to colored persons, and directed that the registration of births, marriages, and deaths of white and colored be kept separate and distinct³⁹. So from 1866 the marriages of Black West Virginians are in the county register, but in a separate one, and a search of the main series alone will miss them.

The bar on interracial marriage ran through 1950. Virginia banned it in 1691, banishing from the colony within three months any free white person who married a person described as a negro, mulatto, or Indian; by 1705 banishment had given way to six months in prison and a fine of £10, with the minister forfeiting ten thousand pounds of tobacco⁴⁰. The act of 1792 restated the same rule in the currency of the new republic: six months in jail without bail and a fine of thirty dollars for the party, and two hundred and fifty dollars for any minister who performed the ceremony²¹. By 1849 the rule stood in the code as a declaration that the marriage was absolutely void³³, and West Virginia re-enacted it in the same form, adding penalties in the code of 1868 rather than by any later act: up to a year in jail and $100 for the party, and a misdemeanor and up to $200 for anyone who knowingly performed the ceremony⁴¹. It was still on the books when the Supreme Court held such laws unconstitutional in 1967⁴². Because the marriage was void rather than voidable, there is normally no annulment file — the absence of a record is the record.

Property Ownership

Which men could own land

The right to acquire, hold, and convey land belonged to every free man, of any race. It rested on being free, and on that alone: the codes fixed capacity to hold property by class — minors, married women, enslaved people, aliens — and nowhere qualified a free person’s right by color⁴³. Free Black, mixed-race, and Indian men held and exercised the right, and deeds and land entries for free families of color exist through 1950.

Enslaved men had no capacity to own property of any kind; anything in their possession belonged in law to the enslaver, who was answerable for it⁴⁴.

A foreign-born man's position turned on citizenship. Once naturalized he took and held land like any other citizen, and the codes carried a chapter setting out how far an alien could take and dispose of property before that point⁴⁵.

Single women and widows

A single woman or a widow — a feme sole, "woman alone" — could buy, own, sell, mortgage, sue, and be sued exactly as a man could. A woman transacting freely and alone in the deed books is almost always unmarried or widowed.

Married women before 1869

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 for the duration of the marriage. He took the rents and profits of her land and owned her wages outright, and her contracts had no force on their own. Her own land could be sold only if she joined in the deed and was privately examined, described below. Families with means worked around this by putting property into a trust for her "sole and separate use," a private arrangement that gave her what the statute would later give every wife.

Married women from 1869

The Code of 1868 gave married women a separate estate. Property conveyed to a married woman by anyone other than her husband, as her sole and separate property, remained hers as if she were single, free of his control and not liable for his debts⁴⁶, and the property she owned when she married, with its rents and profits, stayed her own⁴⁷.

She could also take property by inheritance, gift, grant, devise (a gift of land by will), or bequest (a gift of goods or money by will), hold it to her own use, and convey it and leave it by will as if unmarried — with one condition attached. A married woman living with her husband could sell her own real estate only if he joined in the deed. A wife living separate and apart from him could convey it alone⁴⁸.

That condition lasted sixty years. The recodification of 1931 ended it, and from that year a married woman conveyed her real estate without her husband's consent, on the same footing as he conveyed his⁴⁹. So a deed of a wife's own land between 1869 and 1931 should carry her husband's signature alongside hers, and after 1931 it need not.

The same chapter let her sue and be sued without joining her husband in three situations only: where the action concerned her separate property, where it was between herself and her husband, and where she was living separate and apart from him. A general right to sue as if she were unmarried came with the act of 1893⁵⁰. A married woman living separate and apart from her husband could also carry on a trade, with the stock and profits hers alone⁵¹ — so a woman appearing as a trader in her own name is often a woman whose marriage had broken down.

Her wages took longer. Under coverture a husband owned his wife's earnings outright, and the Code of 1868 left that alone. The re-enactment of 1893 ended it: her earnings, and anything she bought with them, became her sole and separate property⁵².

When a wife had to sign her husband's deed

A wife's signature — or its absence — tells you whether the man was married.

The reason 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 her lifetime, not ownership of it; when she died the land was free of her claim. Dower here kept its old common-law shape. By the Virginia act of 1792, carried into the Revised Code of 1819, a widow was endowed of one full and equal third part of all the real estate her husband was seized of — owned and held — at any time during the marriage, and she could give up that right only by a deed executed, acknowledged, and recorded⁵³. The Code of 1849 restated it⁵⁴, and West Virginia re-enacted it again in 1868⁵⁵.

Because dower reached every parcel the husband had held during the marriage, a buyer needed the wife to release it on every sale. So a married man's deed should carry his wife's signature from 1792 through 1950, and a deed without one signals a single man or a widower.

West Virginia added one qualification in 1868. Where the husband died without a will and left no children, the widow took the whole of his real estate outright, so there was nothing for dower to attach to⁵⁶.

Dower itself was remade in the recodification of 1931. One section replaced both dower and curtesy: a surviving spouse of either sex is endowed of one-third of all the real estate the deceased spouse held at any time during the marriage, unless that right had been barred or relinquished⁵⁷. From 1931 the husband's and the widow's interests are the same interest under the same name, and an estate file of the 1930s or 1940s will speak of the dower of a surviving spouse rather than of curtesy.

The privy examination

Where a husband and wife signed a writing conveying real estate, the wife was examined privily and apart from her husband — a private interview, out of his hearing, with the writing explained to her, in which she acknowledged the deed as her act and declared she had signed willingly and did not wish to retract it. The officer then certified the examination on the deed, and it was recorded with it. The requirement and the wording of the certificate were fixed in the Revised Code of 1819⁵⁸, restated in the Code of 1849⁵⁹, and carried into West Virginia's own code⁶⁰.

The certificate is the record consequence, and it is a good one. It proves the wife was living on the date of the deed, gives her name, and shows where she was when it was taken — a certificate executed in another state places the couple there. It is recorded in the county deed books with the deed itself.

The separate interview ended in two steps. An act of 1875 confirmed it for a deed of the wife's own real estate⁶¹; an act of 1891 then allowed her to acknowledge her conveyance separately or together with her husband, and the private examination fell away⁶². On a deed after 1891 there is no separate certificate to look for, though the wife still signed to release dower.

Curtesy

Curtesy was the husband's counterpart to dower: a widower kept the use of his late wife's land for life. Until 1882 it depended on a child having been born alive of the marriage, so a childless widower took nothing. It changed shape five times inside the period.

The practical point is the long stretch in the middle: a widower whose wife died between 1873 and 1921 held all her land for his life, and her heirs took nothing until he died — which is why a woman's land can vanish from the record for decades after her death and reappear when her husband dies.

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, and the route was the court proceeding described earlier. 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 was the test, and the statutes set no figure: a deed was made ready for recording either by being acknowledged before the county officer or by being proved by two witnesses, and the section that says so attaches no age or other qualification to them⁶⁹⁷⁰. In practice deed witnesses were adults, because a witness might have to appear years later to prove the deed.

Free people of color

Free people of color could own land in the western Virginia counties, and did. The restrictions fell on the freedoms around ownership rather than on the right itself, and two of them created records.

The Virginia act of January 1806 required a person freed after that year to leave the commonwealth within twelve months or forfeit the right to freedom⁷¹; leave to remain could be had, but only from the county court. Leave was granted case by case, could be revoked for cause after the person was summoned to show cause, and was forfeited outright by a felony conviction⁷². A grant of leave to remain is a county court order naming the person, and it is often the only record of an individual emancipation.

Every free person of color was also registered, and the requirement is older than the code. 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; the act of 1803 extended it to the counties and turned it into a full description, the clerk recording each person’s age, name, color, and stature, any scar or mark on the face, head, or hands, and whether the person was born free or emancipated by a named court⁷³. The Code of 1849 gathered the rules into a chapter of their own: the commissioner of the revenue returned an annual list of the free Black and mixed-race people in his district, the register was kept in the county, and a free person found without a copy of it faced punishment⁷⁴. The registers give names, ages, complexions, and often how freedom was acquired, and they are the richest single source for free families of color before 1863. The clerks headed them “Register of Free Negroes,” which is the title to search under in a catalog.

The remaining disability — the bar on testifying — is treated under Courts below. After 1863 these restrictions fell away, and from 1865 the deed books and estate files record Black West Virginians on the same terms as anyone else.

Inheritance

Two separate systems

When a person died without a will (intestate), the estate was divided under two systems, one for land and one for everything else, and they worked differently:

• Land descended by the course of descents — automatically, directly to the heirs, at the moment of death.
• Personal property (money, livestock, furniture, debts owed to the deceased, and before emancipation enslaved people) was distributed by an administrator, the person the court appointed to settle an estate that had no will. What he divided was the surplus — what was left after funeral expenses, the costs of administration, and debts had been paid⁷⁵.

Land: the course of descents

Until 1787 the eldest son took all the land where the father died without a will — primogeniture, a rule of the English common law received with the rest of it and never enacted by any Virginia statute⁷⁶. The Virginia descents act of October 1785 ended it, and from its effective date land passed to all the children together⁷⁷. Sons and daughters shared equally, and younger children with older. The Revised Code of 1819 carried the scheme forward in the same shape⁷⁸, and the Code of 1849 restated it⁷⁹.

Where a person died leaving no children, the two states parted company, and this is the sharpest difference between Virginia law and West Virginia law in the whole guide:

The consequence is worth stating plainly. Before 1869 a childless man's land went to his blood relations, and his widow was left with dower — a life interest in a third. From 1869 she took the land itself. For a childless couple, the date decides whether to look for the widow or the husband's brothers in the later deeds.

Two rules smooth the edges. A child already given land or goods during the parent's lifetime had that gift counted against their share, brought into hotchpot — thrown into the common pot so the division came out even⁸². And a child conceived before the death and born within ten months after it inherited as though already living⁸³.

Personal property: the shares

The shares are precise, and they changed twice — once in 1849 and again in 1868. Under the Virginia act of 1785, in force from 1 January 1787, the rule was short: after the funeral, the debts, and the costs of administration were paid, the widow took one-third of the surplus if her husband left a child or children and one-half if he left none, and she had only the use for her life of any enslaved people falling in her share. A surviving husband took the whole of his wife's personal estate and was not required to distribute any of it⁸⁴. That is the rule to apply to any western Virginia estate settled between 1787 and 1849.

The Code of 1849 replaced it with something more elaborate. The widow's portion of the surplus now turned on whether her husband left children by her, on whether he left children by an earlier marriage, and on where the property had come from. In the table below, "children" translates the statute's word "issue," which meant children and their descendants, and "residue" means what was left of the surplus after she had taken the property that came to him through the marriage:

Those were the Virginia rules from 1849 to 1868⁸⁵. Where a widow's share included enslaved people she took only the use of them for her life, not ownership⁸⁶. The Code of 1868 swept the complications away and made the two spouses symmetrical:

The West Virginia figures turn on whether there were children, not on how many: a widow with two children and a widow with eight both took one-third, and the recodification of 1931 kept the scheme through 1950⁸⁷. This matters when a family is reconstructed from an estate division, because the size of the widow's share tells you only whether there were children at all.

The right to renounce a will

Where a husband left a will she disliked, a widow could renounce what it gave her and take a share as though he had died without one. What she got by renouncing differed on either side of 1868.

Before 1868 she renounced before the court where the will was recorded, or by a writing proved there by two witnesses, and took the share of his personal estate she would have had if he had died intestate⁸⁸. From 1868 she renounced before the officer who admitted the will, or by a writing recorded in his office, and took a share of his real and personal estate — but the share she would have had if he had died intestate leaving children⁸⁹. So a childless West Virginia widow who renounced took one-third, not the whole, even though a childless widow of a man who left no will at all took everything. West Virginia gave the same right to a surviving husband. Neither spouse gained anything by renouncing where dower or curtesy had already been barred⁹⁰.

The deadline was one year from the will being admitted to probate until 1931, and eight months after that — or, where the will was contested or the order appealed, two months from the final decision⁹¹.

A renunciation is a separate, dated, signed document in the county will or fiduciary records, and it is easy to miss because it sits apart from the will. It proves the widow was alive within a year of probate.

Guardians for minors

A minor inherited immediately — title passed to the heirs at the moment of death. Managing the inheritance fell to a guardian, who gave bond and at the end of the trust delivered over everything in his hands to those entitled. The trust ran until the minor turned 21, even if the minor married first, unless the guardian died, resigned, or was removed⁹². That final accounting is one of the most valuable documents in the county records: it dates the minor's majority, and so 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 at all, and its absence says nothing about whether the child existed.

A father could appoint a guardian by his will, and from 1921 either parent could. If the person named renounced, or failed to appear within six months of the probate to accept the trust and give bond, the appointment fell⁹³. Otherwise the appointment was made by the court of the county where the minor lived⁹⁴, or where the minor lived outside the state, where the estate lay — so a guardianship may sit in a county the family never lived in.

Custody of the child's person was a separate question from management of the estate, so look for two records rather than one. The father, and after his death the mother while she remained unmarried, kept the custody and the care of the child's education even where someone else managed the estate. That changed in 1921: from then a father and mother living together were joint guardians of the person, with equal rights and neither paramount to the other, and where they lived apart the court appointed whichever parent it thought better suited to the trust⁹⁵.

At fourteen a minor could nominate their own guardian, in person before the court or in writing acknowledged before an officer authorized to take a deed acknowledgment, and the nomination took effect if approved⁹⁶. A guardianship record in which the child does the choosing is therefore evidence the child had reached 14, which brackets a birth year. Guardianship itself 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. The Virginia act of 1785 extended inheritance on the mother's side: a child born outside marriage could inherit and transmit inheritance through the mother as if lawfully born, and the rule carried through both codes⁹⁷.

On the father's side the route was legitimation by the parents' later marriage. Where a man who had a child by a woman afterwards married her, the child was legitimate, provided he recognized the child as his either before or after the marriage⁹⁸. The recognition mattered as much as the marriage, and it could be proved by conduct rather than by any document. Children of a marriage that turned out to be void, or that a court dissolved, were legitimate regardless⁹⁹.

Separately, a proceeding for the child's maintenance ran in the county court, and the examination and bond it produced name both parents — among the few records that do¹⁰⁰.

Making a will

The age to make a will was 21 for a will disposing of land, and 18 for a will of personal property alone. Both figures come from the Virginia act of October 1785, in force from 1 January 1787. Its first section gave the power to devise land to every person of 21 or upwards, of sound mind, and not a married woman, and required the will to be signed by the testator or by another in his presence and at his direction, and, unless wholly written by the testator himself, attested by two or more credible witnesses subscribing in his presence. Its fourth section provided that no person under 18 could dispose of chattels — goods and movable property — by will⁸⁴. So the 21 and 18 ages, the two-witness requirement, and the exception for a will in the maker’s own hand all date from 1787, and the later compilations restate rather than create them.

Before 1787 the colony followed the English rule, which was different and lower: 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 21¹⁰¹. A colonial will of goods for a 15-year-old is therefore regular, and tells you less about age than a later one does. The Revised Code of 1819 carried the 1785 figures forward¹⁰². The Code of 1849 put both ages in one sentence: no person of unsound mind, or under 21, was capable of making a will, except that minors of 18 and upwards could dispose of personal estate¹⁰³, and West Virginia carried the sentence forward unchanged¹⁰⁴. So between 1819 and 1931 a will of goods proved for a testator of 18, 19, or 20 is regular, and shows the maker was under 21; a will of land shows the opposite.

The recodification of 1931 raised the age to 21 for both kinds of property. Its section reads that no person of unsound mind, or under the age of 21, is capable of making a will, and the revisers noted that they had dropped the provision letting a minor over 18 make one¹⁰⁵. From 1931, then, any will means a testator of 21.

Before 1868 a married woman could make a will only of her separate estate, or in exercise of a power given her by someone else — a restriction that also goes back to the act of 1785, whose first section excluded a married woman from the power to devise land⁸⁴¹⁰⁶. West Virginia dropped that restriction when it enacted its own code, and a married woman could leave her property by will like anyone else¹⁰⁷.

A will had to be in writing and signed by the testator (the person making the will), or by someone else in his presence and at his direction. Unless the will was wholly written by the testator, the signature had to be made or acknowledged in front of at least two competent witnesses present at the same time, who then signed in his presence¹⁰⁸.

That exception is the holographic will — a will wholly in the testator's own handwriting, which needed no witnesses at all¹⁰⁹. These are common in the record, and worth a second look, because a holographic will is a document written entirely in an ancestor's own hand.

A witness to a will could be of any age; the test was competency, and what mattered was that the witness gained nothing under the will. Separate sections dealt with when a person who was left something could nevertheless serve as a witness, and with the competency of creditors and executors¹¹⁰.

The age to serve as executor was 21, the full age of the common law. What the statute required was qualification: the person named had no power to act until he took an oath and gave bond before the officer who admitted the will, though beforehand he could bury the testator and keep the estate from waste. One quirk explains a change of hands part-way through an estate file: the marriage of a female personal representative extinguished her authority¹¹¹. An executrix who married mid-administration was replaced, and the date of the replacement dates the wedding.

Taxation

What was taxed

Three kinds of tax on individuals leave usable records: the tithable or poll tax, a flat tax on a person rather than on property; the property tax on land and personal estate, including before emancipation a tax on enslaved people as property; and, in the twentieth century, taxes on income and sales.

For genealogy the poll tax is the prize, because it lists people who owned nothing. Where the federal census before 1850 names only the head of household, an annual list of every taxable man in a county is close to a census substitute.

Colonial tithables

A tithable was a person counted for the poll tax that paid the public, county, and parish charges. Under the Virginia act of 1705 that meant every male of 16 and upwards, and every Black, mixed-race, or Indian woman of 16 and upwards who was not free¹¹²; an act of 1723 added free Black, mixed-race, and Indian people of either sex above 16, together with the wives of such men whatever the wife's own race¹¹³. The county court could excuse individuals.

This produces a useful fact in colonial Virginia tax records. Because women of color counted as taxable while white women did not, free families of color can be identified in the tithable lists by the taxation of their women. A household in which a wife is listed as a tithable is a household the county treated as non-white, and the entry survives even where nothing else about the family does.

The list was taken on 10 June each year by a justice for each precinct, who gave notice at the church door and returned the list at the August court. So the ages behind a list are ages that June, and a young man's first appearance on one dates his sixteenth year. The same act had a child arriving in the colony brought before the county court to have an age adjudged, which then stood as the child's true age — one of the very few recorded ages for an immigrant child, and it sits in the court order book.

From the Revolution to 1863

The colonial tithable system ended with the Revolution, and from 1782 Virginia kept an annual personal property book and a land book for every county. The personal property books list the head of household with his taxable people, livestock, and vehicles; the land books list the acreage and its value. Both survive for the western counties, and run year by year, which makes them the closest thing to an annual census the period offers.

The ages behind the columns changed three times, and knowing which age a column counts is what makes the lists usable. The permanent revenue act of November 1781 laid a tax of ten shillings on every free male above 21 who was a citizen of the commonwealth, and on enslaved people, payable by the owner, with exemption by order of the county court for age or infirmity¹¹⁴. Those are the men named in the first lists, taken from 1782. In October 1787 the General Assembly repealed that poll tax on free males above 21 outright, and made enslaved people above 12 taxable in its place¹¹⁵. Then in December 1792 it declared every male of 16 and upwards tithable and chargeable for the county levy and the poor rate¹¹⁶. So a son first appearing by name in a list of the 1780s has just turned 21; after 1792 a rise of one in his father’s tally marks his sixteenth year instead.

A state poll tax returned in the last decade before 1863. The Virginia Constitution of 1851 laid a capitation tax on every white male inhabitant who had reached 21, equal to the tax on land worth two hundred dollars, with half of it applied to primary and free schools, and it allowed taxable polls to be excused for bodily infirmity¹¹⁷. That is the provision West Virginia copied almost word for word into its own Constitution of 1863, so the capitation tax the new state levied was not a new idea but the continuation of one already familiar in these counties.

Enslaved people were taxed as property in these books throughout, listed by number and value under the enslaver’s name and from a stated age — 16 under the act of 1781, 12 from October 1787, and 12 again under the Constitution of 1851¹¹⁵¹¹⁷. That is why an enslaved ancestor may be countable, though not named, in a tax list years before the first census that names them.

West Virginia after 1863

The Constitution of 1863 fixed a capitation tax — a tax by the head — of one dollar on each white male inhabitant who had reached 21, and required all property to be taxed in proportion to its value¹¹⁸. The assessment act passed that December worked the same way, directing each assessor to count the white male inhabitants of his district who had reached 21 and were not exempt for bodily infirmity, and separately the free colored male inhabitants over 21¹¹⁹.

The tax did not stay confined to white men. From 1864 it was laid on every male inhabitant over 21, whether white or colored¹²⁰, and the Code of 1868 had the assessor list white and colored male persons over 21 in one operation¹²¹. So for all but the first year or so of the state's separate existence, a Black man over 21 is a poll like any other, and the capitation lists are worth searching for him.

The Constitution of 1872 carried the tax forward and settled its wording through 1950: one dollar a year on each male inhabitant who had reached 21, appropriated to the support of free schools, with persons afflicted with bodily infirmity liable to be exempted¹²².

There was no upper age. A man remained liable for life, and the only way off the list was the infirmity exemption, which was ordered and recorded. When a man drops off a poll list while still clearly alive elsewhere in the record, that exemption is usually the reason.

Taxable ages at a glance

The lists are annual throughout, which makes a run of them a year-by-year record of a man's presence in a county.

Courts

Jury service

Jurors were men of 21 throughout, in both jurisdictions. What changed — and what makes a jury list from before 1863 worth something — is the property a juror had to hold.

Under the Virginia act of 1705 the county court summoned twenty-four freeholders to its May and November terms, fifteen of whom made a grand jury, and in a case of treason or felony the panel was filled out from bystanders worth £100¹²³. The Revised Code of 1819 restated the test in dollars and put the age in words: a juror in the superior courts, and in any case of treason, felony, breach of the peace, the penal laws, or title to land in a court of record, had to be a freeholder with a visible estate, real or personal, worth at least three hundred dollars; a juror in a county or other inferior court needed a visible estate worth at least one hundred and fifty; and no person under 21 could serve at all¹²⁴. So a man on a western Virginia jury before 1852 owned something, and a felony juror owned land — which makes his name on a panel evidence of property even where no deed survives.

Virginia swept the property test away in 1852. From then every free white male of 21 and not over 60 was liable to serve, with no freeholder or estate requirement¹²⁵. That is the rule the western counties carried into the new state in 1863, and it explains why West Virginia’s own first jury statute has no property test in it.

The first West Virginia jury statute, in the Code of 1868, set out the qualifications in a single sentence: all white male persons who were 21 years of age and not over 60, and who were registered voters, were liable to serve as jurors, subject to a list of exemptions¹²⁶. So there were four requirements — white, male, aged 21 to 60, and registered to vote.

The voter requirement did work of its own, because it imported the constitutional rule on who could vote: white male citizens, excluding minors, people of unsound mind, paupers, and those convicted of treason, felony, or bribery at an election¹²⁷. A juror was therefore a man who had already cleared the voter test.

Two of those four requirements went in 1882. An act of that year re-enacted the jury chapter to read that all male persons of 21 and not over 60 who were citizens of the state were liable to serve¹²⁸ — dropping the word "white" and the requirement of being a registered voter, two years after the Supreme Court struck the racial qualification down. The Code of 1931 carried the same rule and raised the upper age to 65¹²⁹. So a juror after 1882 is an adult male citizen, with no property and no voting test behind him.

Land ownership formed no part of the West Virginia test at any point. Neither the regular panel nor a bystander summoned on the spot to fill out a short jury had to be a freeholder¹³⁰, so for the period after 1863 no inference about property can be drawn from jury service. Before 1852 the opposite is true, as described above.

A long list of exemptions ran alongside the qualifications — public officers, ministers with a charge, attorneys and physicians, and men in trades whose daily attendance was needed¹³¹ — so a man's absence from juries may say what he did for a living rather than anything about his standing.

People of color as jurors and witnesses

The word "white" in the jury statute was struck down by the Supreme Court of the United States. In 1880, in a case from Ohio County, the Court held that excluding Black men from juries by statute denied a Black defendant the equal protection of the laws, and it was the first decision to say so¹³². Black men were legally eligible for West Virginia juries from that date. In practice they were often kept off by how panels were drawn, and the practical exclusion long outlasted the statute.

On testimony, the position before 1863 was the Virginia one: enslaved and free people of color could give evidence only in limited classes of case, chiefly those involving other people of color, so a transaction between a white person and a Black person could be hard to prove. West Virginia removed the disability early, by an act of 27 February 1866 providing that no person should be incompetent as a witness on account of race or color¹³³, and the Code of 1868 carried the rule forward in the same words¹³⁴. From February 1866 case files and depositions record Black testimony directly.

Women as jurors and witnesses

Women could testify, and from 1869 a woman could be examined as a party in her own right. Between husband and wife the rule was flat: a husband could not be examined for or against his wife, nor a wife for or against her husband, except in a suit between the two of them¹³⁵. So where a wife's evidence about her husband's affairs is missing from a nineteenth-century case file, the law kept it out, and the gap says nothing about the marriage.

Jury service was another matter. The statute said "male," and it meant it. Women were ineligible for jury service in West Virginia throughout the period covered by this guide. The change came in November 1956, when the voters approved a constitutional amendment making women eligible, followed by an enabling act¹³⁶. For any case before 1950, the jury was all male.

Criminal responsibility

The common-law ages governed, and no statute displaced them for the great majority of the period. They came in with the common law itself, received in Virginia in 1776 and continued in West Virginia in 1863¹³⁷:

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

This lasted a long time here. A national survey published in 1910 reported that West Virginia probably had no juvenile court law at all through 1909¹³⁸. So where a child appears in the criminal records of any decade before 1915, expect an ordinary prosecution in the circuit court, with the child's age argued as a defense rather than as a bar to the court's jurisdiction.

The change came in 1915. West Virginia's first juvenile court act made every person under 21 a ward of the state for its purposes, and defined a delinquent child as one who broke the law or was incorrigible while under 18. The circuit and criminal courts took original jurisdiction, and each kept a book called the Juvenile Record. A child under 12 could not be committed to jail, an age the amending act of 1919 raised to 14, and the recodification of 1931 kept the age-18 definition¹³⁹. So 18, not 16, is the West Virginia line, and from 1915 a child's case leaves a juvenile record rather than an ordinary criminal file.

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 minimum: the competency sections of the evidence chapter list the disqualifications — interest, and, before 1866, race — and name no age among them¹⁴⁰. Whether a child understood the oath was left to the trial judge, who examined the child personally before allowing the testimony. A very young child's uncorroborated word carried little weight, but that was a question of how much the evidence proved rather than whether it could be given at all. Interest in the outcome ceased to disqualify anyone from 1869. The exceptions that remained turned on the situation rather than on age — chiefly the bar on a party testifying about a transaction he had personally with someone since deceased, against that person's executors, heirs, or next of kin (the nearest blood relatives), and the bar on a guardian testifying against the minor in his charge¹⁴¹.

Sources and Where to Verify

Constitutions

• Virginia Constitution of 1851. The constitution in force in the western counties for the last decade before 1863. Art. III, § 1 (who could vote); art. IV, § 22 (all property other than slaves taxed in proportion to value), § 23 (enslaved people taxable at twelve), § 24 (the capitation tax of one dollar-equivalent on every white male inhabitant who had reached twenty-one, half of it to primary and free schools, with exemption for bodily infirmity), and § 36 (annual registration of births, marriages and deaths). The capitation clause is the model for art. VIII of the West Virginia Constitution of 1863. Transcription. West Virginia Archives and History. https://archive.wvculture.org/history/government/1851constitution01.html (accessed 12 August 2026).
• West Virginia Constitution of 1863. Art. III, § 1 (who could vote, and so who could sit on a jury); art. VII, §§ 5–6 (the county officers, and the recorder's duties); art. VIII, §§ 1–2 (uniform property tax; capitation tax of one dollar on white males over 21); art. XI, § 7 (gradual emancipation); art. XI, § 8 (the common law and the laws of Virginia continued in force). Printed in the front matter of the Code of West Virginia of 1868. Digital images. Internet Archive. https://archive.org/details/esrp774066500 (accessed 6 August 2026).
• West Virginia Constitution of 1872. The constitution in force for most of the period covered here, and still the state's constitution. Art. III, § 14 guarantees trial "by a jury of twelve men," and § 21, added in 1956, makes women eligible to serve; art. VIII creates the county courts that replaced the recorder; art. X, § 2 is the capitation tax. The text as it stood inside this period is printed in the front matter of The Official Code of West Virginia, 1931. Digital images. West Virginia Legislature. https://www.wvlegislature.gov/legisdocs/publications/code/WVCode_1931.pdf. The current text, as amended to date: https://www.wvlegislature.gov/wvcode/wv_con.cfm (accessed 6 August 2026).

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: William F. Ritchie, Public Printer, 1849. The essential volume for the western counties before 1863, and the direct parent of the West Virginia code (“Of free negroes,” ch. 107; marriage, ch. 108; divorces and void marriages, ch. 109; dower and jointure, ch. 110; record of deeds and the privy examination, ch. 121; wills, ch. 122; descents and distributions, ch. 123; maintenance of illegitimate children, ch. 125; guardians and wards, ch. 127). Each section carries a marginal derivation to the earlier act or compilation it came from. Digital images. Internet Archive. https://archive.org/details/codevirginiawit00virggoog (accessed 6 August 2026).
• The Code of Virginia: Including Legislation to the Year 1860. Richmond: Ritchie, Dunnavant & Co., 1860. The second edition, and the text West Virginia amended by its own acts from 1863 to 1868. Digital images. Internet Archive. https://archive.org/details/codeofvirginiain00virg (accessed 6 August 2026).
• The Code of West Virginia: Comprising Legislation to the Year 1870. With an Appendix, Containing Legislation of That Year. Wheeling: John Frew, Public Printer, 1868. The first West Virginia code (marriages, births and deaths, ch. 63; divorces and void marriages, ch. 64; dower, jointure and curtesy, ch. 65; separate property of married women, ch. 66; aliens, ch. 70; record of deeds, ch. 73; wills, ch. 77; descents and distributions, ch. 78; maintenance of illegitimate children, ch. 80; masters and apprentices, ch. 81; guardians and wards, ch. 82; lands of infants and married women, ch. 83; personal representatives, ch. 85; assessment of taxes, ch. 29; rate of tax, ch. 33; juries, ch. 116; evidence and the competency of witnesses, ch. 130; offenses against morality and decency, including the penalties on interracial marriage, ch. 149). Most chapters carry a printed derivation to the page and section of the Code of Virginia they came from. The volume is dated 1868 on its title page although it comprises legislation to 1870. Digital images. Internet Archive. https://archive.org/details/esrp774066500 (accessed 6 August 2026).
• Code of West Virginia, intermediate editions. Between the state code of 1868 and the official recodification of 1931 there was no further state-printed code. Lawyers used a privately compiled annotated edition instead — Uriah Barnes's, published by The Michie Company of Charlottesville, Virginia, with editions in 1906, 1913, 1916 and 1923. This is why a statute of the 1900s or 1910s cites its section by the Barnes' edition rather than by a state code, and why these editions are absent from the open-access digitized runs. Read them in a law library or through HeinOnline or LLMC Digital, and use the derivation notes printed beneath each section of the Code of 1931 to carry a chain across the gap.
• Hening, William Waller, comp. 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. The colonial and early state acts in full. Publication ran from 1809 to 1823, and the imprint differs from volume to volume. Vol. 3, Philadelphia: Printed for the editor, by Thomas Desilver, 1823 — the tithable act of October 1705 at pp. 258–59, the interracial-marriage act of April 1691 at pp. 86–87, that of October 1705 at pp. 453–54, the jury act of October 1705 at pp. 367–71, and the marriage act of October 1705 at pp. 441–46. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=hvd.hw2scr. Vol. 4, Richmond: Printed for the editor, at the Franklin Press, W. W. Gray, printer, 1820 — the tithable clause of the act of May 1723 at p. 133. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=hvd.hw2scs. Vol. 6, Richmond: Printed for the editor, Franklin Press, W. W. Gray, printer, 1819 — the marriage act of October 1748, ch. XXXII, at pp. 81–82, and the tithables act of the same revisal at pp. 40–44. Digital images. Internet Archive. https://archive.org/details/statutesatlargeb06virg. Vol. 9, Richmond: Printed for the editor, J. & G. Cochran, 1821 — the reception of the common law, at p. 127. Digital images. Internet Archive. https://archive.org/details/statutesatlargeb09virg. Vol. 10, Richmond: Printed for the editor, 1822 — the marriage act of October 1780, ch. XVI, at pp. 361–63, and the permanent revenue act of November 1781, ch. XL, at p. 501. Digital images. Internet Archive. https://archive.org/details/statutesatlargeb10virg. Vol. 12, Richmond: Printed for the editor, by George Cochran, 1823 — the descents act of October 1785, ch. LX, at pp. 138–40; the wills, distributions and executors act of the same session, ch. LXI, at pp. 140–47, which carries the will ages at 140–41 and the widow’s share of the personal estate at 146; and the revenue act of October 1787 at p. 431. Digital images. Internet Archive. https://archive.org/details/statutesatlargeb12virg. The full set, with the per-volume imprints recorded: HathiTrust. https://catalog.hathitrust.org/Record/009714930 (all accessed 6 August 2026).
• Shepherd, Samuel, comp. 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, which stops at 1792, and so the volume set to read for the acts governing the western counties in the fifteen years after it. Vol. 1 carries the marriage act of 22 December 1792, ch. 42, at pp. 130–36, and the county levy act of 27 December 1792; vol. 2 the registration act of January 1803; vol. 3, at p. 252, the removal act of January 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 12 August 2026).
• The Official Code of West Virginia, 1931. Published by direction of the Governor under House Joint Resolution No. 4 of the extraordinary session of 1929; copyright entered 1930 by the State of West Virginia. The text governing the last two decades covered here, and the single most useful volume for this period: every section is printed with its derivation back through the earlier codes and the acts that made it, and many carry a revisers' note explaining what changed. Ch. 41, art. 1 is wills — § 41-1-2 raising the will age to 21; ch. 42, art. 2 is distribution and art. 3 renunciation; ch. 43, art. 1 is dower — § 43-1-1 the one-third rule for a surviving spouse of either sex and § 43-1-18 the abolition of curtesy; ch. 44, art. 10 is guardians and wards; ch. 48, art. 1 is marriage — § 48-1-1 the ages of consent and § 48-1-8 parental consent — art. 3 the property of married women and art. 6 the abolition of apprenticeship; ch. 49 is child welfare; ch. 52, art. 1 is juries. Digital images. West Virginia Legislature. https://www.wvlegislature.gov/legisdocs/publications/code/WVCode_1931.pdf (accessed 6 August 2026).
• The Revised Code of the Laws of Virginia: Being a Collection of All Such Acts of the General Assembly, of a Public and Permanent Nature, as Are Now in Force. Richmond: Thomas Ritchie, Printer to the Commonwealth, 1819. 2 vols. The compilation the Code of 1849 cites in its margins as "1 R. c.," and the volume to read for the rule in force in the western counties between 1819 and 1849: dower from the act of 6 December 1792; the course of descents from the act of 1785; the privy examination with its certificate form; and the will of chattels at 18. Note that the 1819 volume was printed by Thomas Ritchie and the 1849 code by William F. Ritchie — different men, thirty years apart. Digital images. Internet Archive. https://archive.org/details/the-revised-code-of-the-laws-of-virginia-1819 (accessed 6 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: Allegré & Goode, Printers, 1866. Ch. 18, at pp. 85–86, passed 27 February 1866 — the act legalizing the marriages of formerly enslaved couples and directing clerks to keep a register of cohabitations; the act to use for families in counties that were still Virginia in 1866. Transcription with page images. Encyclopedia Virginia. https://encyclopediavirginia.org/entries/an-act-to-legalize-the-marriages-of-colored-persons-now-cohabiting-as-husband-and-wife-1866/ (accessed 6 August 2026).
• Acts of the Legislature of West Virginia, 1863 to date. The Legislature posts the session-law volumes as scanned PDFs; most carry a searchable text layer, though some (1893 among them) are page images only and need to be read or run through OCR. The state printer changed with the contract and the capital moved between Wheeling and Charleston, so the imprint differs from volume to volume. Those for the volumes used here are: 1866 (chs. 89 and 102), Wheeling: John Frew, Public Printer, 1866; 1872–73 (ch. 207, curtesy), Charleston: Henry S. Walker, Public Printer, 1873; 1875 (ch. 67, the privy examination), Charleston: John W. Gentry, Printer, 1875; 1882 (ch. 83, juries, and ch. 86, curtesy), Wheeling: W. J. Johnston, Public Printer, 1882; 1891 (ch. 23, acknowledgment by a married woman), Charleston: Moses W. Donnally, Public Printer, 1891; 1893 (ch. 3, re-enacting the married women's chapter), Charleston: Moses W. Donnally, Public Printer, 1893; 1897 (ch. 34, raising the marrying ages), Charleston: Will E. Forsyth, Public Printer, 1897; 1919 (ch. 111, delinquent children), Charleston: The Tribune Printing Co.; 1925 (ch. 77, curtesy), Charleston: Tribune Printing Co.; and 1957 (ch. 99, admitting women to juries), Charleston: Jarrett Printing Company. Two volumes carry no place-and-publisher line at all, giving instead the resolution that authorized the printing: 1915 (ch. 70, the first juvenile court act), authorized by Senate Concurrent Resolution No. 5 of 26 February 1915, and 1921 (ch. 73, curtesy, and ch. 80, guardians and wards), authorized by House Concurrent Resolution No. 25 of 29 April 1921. The 1921 regular and extraordinary sessions are bound with the second extraordinary session of 1920 and posted under that year, so the file to open for a 1921 act is the one labeled 1920. West Virginia Legislature. https://www.wvlegislature.gov/Educational/publications.cfm (accessed 6 August 2026).
• Acts of the Legislature of West Virginia, 1863 to date. A second full-view run, digitized from the New York Public Library set, covering sessions the Legislature's own postings render poorly. Useful where a posted scan is image-only. Digital images. HathiTrust. https://catalog.hathitrust.org/Record/008584410 (accessed 6 August 2026).
• Acts of the Legislature of West Virginia, at Its Fourth Session, Commencing January 16th, 1866. Wheeling: John Frew, Public Printer, 1866. The early acts amending the Code of Virginia, second edition, chapter by chapter; ch. 89 (no person incompetent as a witness on account of race or color) and ch. 102 (marriages between colored persons legalized; registration of white and colored to be kept separate). Digital images. Internet Archive. https://archive.org/details/actslegislature01unkngoog (accessed 6 August 2026).
• Ordinances and Acts of the Restored Government of Virginia, Prior to the Formation of the State of West Virginia; with the Constitution and Laws of the State of West Virginia, to March 3d, 1866. Wheeling: John Frew, Public Printer, 1866. Reprinted by order of the Legislature, gathering the acts of 1863 to 1866 in one volume; the source for the assessment act of 1863, ch. 118. Digital images. Internet Archive. https://archive.org/details/actslegislature13unkngoog (accessed 6 August 2026).

Court Cases

• Adams v. Adams. 82 W. Va. 244 (1918). The disaffirmance rule adopted in Muncey.
• Amiss v. Hiteshew. 106 W. Va. 703 (1929). On the object of the curtesy act of 1921.
• Goode v. Goode. 183 W. Va. 468, 396 S.E.2d 430 (1990). https://law.justia.com/cases/west-virginia/supreme-court/1990/19439-5.html (accessed 6 August 2026).
• Loving v. Virginia. 388 U.S. 1 (1967). https://supreme.justia.com/cases/federal/us/388/1/ (accessed 6 August 2026).
• Muncey v. Norfolk & Western Railway Co. 106 W. Va. 348 (1928). On when a minor's deed must be disavowed.
• Strauder v. West Virginia. 100 U.S. 303 (1880). https://supreme.justia.com/cases/federal/us/100/303/ (accessed 6 August 2026).

Full opinions for the West Virginia cases are available as machine-readable text from the Caselaw Access Project, organized by reporter volume. Caselaw Access Project. https://static.case.law/w-va/ (accessed 6 August 2026).

Secondary and Reference Works

• Encyclopedia Virginia. "Cohabitation Act of 1866." What the Virginia register contains and why it was created. https://encyclopediavirginia.org/entries/cohabitation-act-of-1866/ (accessed 6 August 2026).
• Blackstone, William. Commentaries on the Laws of England. Book 1, ch. 17 (guardian and ward, the age of fourteen, and the colonial will ages); book 2, ch. 8 (curtesy) and ch. 14 (primogeniture); book 4, ch. 2 (infancy and criminal responsibility). The statement of the English rules the colony received and kept until statute displaced them, and the authority behind every age in this guide that no act ever fixed. Transcription. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/blackstone_bk1ch17.asp (accessed 12 August 2026).
• West Virginia Archives and History. “Virginia Marriage Laws.” Full transcriptions of the Virginia marriage act of October 1705 (Hening, vol. 3, pp. 441–46) and the act of 22 December 1792 (Shepherd, vol. 1, pp. 130–36) — between them the law of marriage in the western counties for most of the period before the Code of 1849, including the license-or-banns rule, the parental consent requirement, the forfeiture on an underage bride’s land, and the publication of banns on the western waters. https://archive.wvculture.org/history/genealogy/marriagelaws.html (accessed 12 August 2026).
• Hart, Hastings H., ed. Juvenile Court Laws in the United States: A Summary by States, by Thomas J. Homer; a Topical Abstract, by Grace Abbott. New York: Charities Publication Committee, 1910. The West Virginia entry, at p. 115, reports that the state probably had no juvenile court legislation through 1909. Digital images. Internet Archive. https://archive.org/details/cu31924032591491 (accessed 6 August 2026).
• Henderson, Bob. "Tithables." Bob's Genealogy Filing Cabinet. How a tithable list was taken, and the June date that fixes the ages behind it. https://genfiles.com/articles/tithables/ (accessed 6 August 2026).
• Historical Records Survey. Inventory of the County Archives of West Virginia. Charleston, W. Va.: The Historical Records Survey, 1937–42. One numbered volume per county, telling what each series contains and where it was kept. Digital images. ExploreUK, University of Kentucky. https://exploreuk.uky.edu/ (accessed 6 August 2026).
• Library of Virginia. "Personal Property Tax: Tax Changes." The dates on which the definition of a tithable changed. https://lva-virginia.libguides.com/personal-property-tax/tax-changes (accessed 6 August 2026).
• Library of Virginia. "Virginia Untold: Record Types." What a register of free people of color, a cohabitation register, and the other free and enslaved records contain. The registers are catalogued under the title the clerks used, “Register of Free Negroes.” https://lva-virginia.libguides.com/virginia-untold/record-types (accessed 6 August 2026).
• Library of Virginia. "West Virginia Records: County Records." Which records for the western counties stayed local in 1863 and which remain with the Library of Virginia, and how counties formed from parent counties leave their earlier records behind. https://lva-virginia.libguides.com/west-virginia/county-records (accessed 6 August 2026).
• Spindel, Donna J. "Women's Legal Rights in West Virginia, 1863–1984." West Virginia History 51 (1992): 29–44. Traces the married women's property acts, the privy examination, dower and curtesy across the period, with citations to the session laws. It does not treat jury service. Three of its session-law citations should be corrected against the volumes themselves: the curtesy act it dates to 1872 sits in the 1872–73 volume and passed in December 1873; the 1921 curtesy amendment is ch. 73, not ch. 207; and the married women's act of 1893 is ch. 3, not ch. 13. https://archive.wvculture.org/history/journal_wvh/wvh51-3.html (accessed 6 August 2026).
• U.S. Women's Bureau. The Legal Status of Women in the United States of America: Report for West Virginia. Bulletin of the Women's Bureau, No. 157-47. Washington: Government Printing Office. West Virginia is number 47 in the series. For the period covered here the revised report as of 1 January 1948 is the one to use. It summarizes the then-current code, and should be cross-checked against the statutes rather than relied on alone. Catalog records for the series. Monthly Catalog of United States Government Publications, 1895–1976, University of North Texas. https://mocat.library.unt.edu/ (accessed 6 August 2026).
• Virtual Jamestown. "Laws on Slavery." Transcriptions of the colonial Virginia acts, including the tithable act of October 1705. https://www.virtualjamestown.org/laws1.html (accessed 6 August 2026).
• West Virginia Archives and History. "Early Settlement (to 1774)." The 1727 German settlement at Mecklenburg, now Shepherdstown, in the Eastern Panhandle. https://archive.wvculture.org/history/archives/settle1.html (accessed 6 August 2026).

Citations

1. Ordinance of the Convention of May 1776, § VI, making the common law of England the rule of decision until altered by the legislature. William Waller Hening, comp., 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 ↩
2. West Virginia Constitution of 1863, art. XI, § 8, continuing such parts of the common law and the laws of Virginia as were in force and not repugnant to the Constitution, until altered by the Legislature. Printed in the front matter of The Code of West Virginia: Comprising Legislation to the Year 1870. With an Appendix, Containing Legislation of That Year (Wheeling: John Frew, Public Printer, 1868) ↩
3. Acts of the Legislature of West Virginia, at Its Fourth Session, Commencing January 16th, 1866 (Wheeling: John Frew, Public Printer, 1866), in which the acts take the form of an act to amend and re-enact sections of a named chapter of the Code of Virginia, second edition — ch. 1, passed 25 January 1866, amending ch. 16, and so on through the volume. Digital images, Internet Archive (https://archive.org/details/actslegislature01unkngoog: accessed 12 August 2026) ↩
4. Code of West Virginia of 1868, ch. 66, headnote, citing the Revised Statutes of New York and the laws of New York, 1860, ch. 90, "from which this chapter is mainly taken"; the history of the revision and the session that adopted the code are set out in the preface to the same volume ↩
5. West Virginia Constitution of 1863, art. VII, § 5 (the county officers the voters elect, the recorder among them) and § 6 (his duties: recording estate papers and deeds, registering births, marriages and deaths, issuing marriage licenses, proving wills, appointing guardians and personal representatives, and taking acknowledgments and relinquishments of dower) ↩
6. West Virginia Constitution of 1872, art. VIII, creating the county courts; the constitution as printed in the front matter of The Official Code of West Virginia, 1931 makes no mention of a recorder anywhere, the county officer throughout being the clerk of the county court. Digital images ↩
7. West Virginia Constitution of 1863, art. XI, § 7 ↩ ↩
8. No statute fixed the age of majority; it is the common-law age received under art. XI, § 8. The statutes assume it: Code of West Virginia of 1868, ch. 116, § 1 (jurors 21), ch. 81, § 3 (apprenticeship to 21), ch. 82, § 7 (the guardian's trust continues until the minor attains 21), and ch. 77, § 2 (a will of land at 21) ↩
9. Muncey v. Norfolk & Western Railway Co., 106 W. Va. 348, 356–58 (1928), adopting the rule of Adams v. Adams, 82 W. Va. 244 (1918): an infant must disavow within a reasonable time after majority, what is reasonable turns on the facts, and disaffirmance takes an act clearly showing the intention ↩
10. Code of West Virginia of 1868, ch. 83, "Of leasing the lands of infants, married women or insane persons, and of the sale of their lands" ↩
11. Code of West Virginia of 1868, ch. 81, § 3, under which the term of every apprenticeship "shall be until the apprentice attains the age of twenty-one years, if a boy, or eighteen years, if a girl"; apprenticeship was abolished by Code of West Virginia of 1931, 48-6-1 ↩
12. The common-law ages of consent to marriage, fourteen for a male and twelve for a female, received in Virginia with the rest of the common law by the Ordinance of the Convention of May 1776, § VI (William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 9:127), and continued in West Virginia by the Constitution of 1863, art. XI, § 8. No colonial or early state statute fixed them; the Code of Virginia of 1849 was the first to write them into the statute book ↩
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: William F. Ritchie, Public Printer, 1849), ch. 109, § 3: "The age of consent of the male shall be fourteen years, and of the female twelve years" ↩
14. Code of West Virginia of 1868, ch. 64, § 2 ↩
15. Acts of the Legislature of West Virginia, 1897 (Charleston: Will E. Forsyth, Public Printer, 1897), ch. 34, "An ACT to amend and re-enact section two of chapter sixty-four of the Code of West Virginia, raising the age of consent," passed 17 February 1897, approved 25 February 1897, in effect ninety days from passage, § 2: "The age of consent of the male shall be eighteen years, and of the female sixteen years." Digital images, West Virginia Legislature (https://www.wvlegislature.gov/legisdocs/publications/acts/Acts_1897.pdf : accessed 6 August 2026) ↩
16. Code of West Virginia of 1931, 48-1-1, "Age of Consent," carrying the same figures, whose printed derivation reads: Code 1849, c. 109, § 3; Code 1860, c. 109, § 3; Code 1868, c. 64, § 2; 1897, c. 34, § 2; Code 1923, c. 64, § 2 ↩
17. Code of Virginia of 1849, ch. 109, § 3; Code of West Virginia of 1868, ch. 64, §§ 1–2 ↩
18. Code of Virginia of 1849, ch. 109, § 4, under which a party who was capable of consenting at the time of the marriage has no power to bring the suit ↩
19. Laws of October 1705, ch. XLVIII, § V; William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 3:443–44: where a maiden of twelve or upwards and under sixteen married "contrary to the will or consent of her parent or guardian, and without publication of the banns," the next of kin to whom the inheritance should descend might enter and hold her real estate "during the coverture," the land revesting in her and her heirs when the marriage ended. Transcription, West Virginia Archives and History (https://archive.wvculture.org/history/genealogy/marriagelaws.html: accessed 12 August 2026) ↩
20. Laws of October 1748, ch. XXXII, "An Act concerning Marriages," §§ II–III; William Waller Hening, comp., 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. 6 (Richmond: Printed for the editor, Franklin Press, W. W. Gray, printer, 1819), 81–82. The clerk of the county where the woman usually resided took bond of £50 and could not issue a license where either party was under twenty-one and not previously married without the consent of the father or guardian, given personally before him or certified under hand and seal and attested by two witnesses; § III keeps the forfeiture of a girl of twelve to sixteen marrying without consent and without banns. The act took effect 10 June 1751. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb06virg: accessed 12 August 2026) ↩ ↩
21. Act of 22 December 1792, ch. 42, "An ACT to regulate the solemnization of marriages, prohibiting such as are incestuous or otherwise unlawful; to prevent forcible and stolen marriages, and for punishment of the crime of bigamy"; Samuel Shepherd, comp., The Statutes at Large of Virginia, from October Session 1792, to December Session 1806, Inclusive, vol. 1 (Richmond: Printed by Samuel Shepherd, 1835), 130–36. Section 1 keeps the license-or-banns rule and adds the proviso that "all publications of the bans of matrimony on the western waters of this commonwealth, shall be made on three several days, and not in less time than two weeks, in open and public assemblies, convened for religious worship, or other lawful purposes, within the bounds of the respective congregations or militia companies in which the parties to be married severally reside," the publisher taking fifty cents for the certificate; § 5 lets Quakers and Mennonites solemnize their own marriages by consent declared before their congregations; § 10 requires the officiant's certificate to be returned to the county clerk and recorded; § 12 requires, for a party under twenty-one not previously married, the consent of the father or guardian given before the clerk or certified under hand and seal and attested by two witnesses, one of whom must appear before the clerk and swear he saw it signed; § 15 narrows the forfeiture to a girl of twelve and under fourteen; § 16 requires the master's consent for a servant; §§ 17–18 set six months' imprisonment and a fine of thirty dollars on a white person intermarrying across the color line, and two hundred and fifty dollars on the minister who performs the ceremony. Transcription, West Virginia Archives and History (https://archive.wvculture.org/history/genealogy/marriagelaws.html); digital images, Internet Archive (https://archive.org/details/statutesatlargeo01virg: accessed 12 August 2026) ↩ ↩ ↩ ↩ ↩ ↩ ↩
22. Code of Virginia of 1849, ch. 108, § 13, headed "If female under fourteen marry, receiver of her property to be appointed"; Code of West Virginia of 1868, ch. 63, § 12; the legislative note to ch. 48, art. 1 of the Code of 1931 records the section omitted as obsolete ↩
23. Laws of October 1705, ch. XLVIII, "An act concerning Marriages"; William Waller Hening, comp., 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. 3 (Philadelphia: Printed for the editor, by Thomas Desilver, 1823), 441–46. Section I forbids a minister to celebrate the rites without a lawful license or thrice publication of the banns; section IV has every license issued by the clerk of the county "where the feme shall have her usual residence," and requires, where either party is "under the age of one and twenty years, and not theretofore married," the consent of the parent or guardian given personally before the clerk or signified under hand and seal and attested by two witnesses; section V is the forfeiture on the marriage of a girl of twelve to sixteen without consent; section VI requires a certificate of the master's consent before a servant may be married. Transcription with the act of 1792, West Virginia Archives and History (https://archive.wvculture.org/history/genealogy/marriagelaws.html: accessed 12 August 2026) ↩ ↩ ↩ ↩
24. Code of Virginia of 1849, ch. 108, § 3; Code of West Virginia of 1868, ch. 63, § 2; Code of West Virginia of 1931, 48-1-8, which applies to a person "under twenty-one years of age, and has not been previously married" ↩
25. Acts of the Legislature of West Virginia, 1921, ch. 80 (Senate Bill No. 80, Mr. Harmer), "An ACT to amend and re-enact sections one, three and seven of chapter eighty-two of the code of West Virginia, relating to guardians and wards," passed 7 April 1921, approved 18 April 1921, in effect ninety days from passage; and see Code of West Virginia of 1931, 48-1-8, whose legislative note records that since the 1921 act gave both parents equal custody, "the consent of the father or guardian will not be sufficient as heretofore," the consent of both being required, or of the parent or guardian with custody. The 1921 session is bound with the second extraordinary session of 1920 and posted under that year; its title page carries no place-and-publisher line, the volume being authorized by House Concurrent Resolution No. 25, adopted 29 April 1921. Digital images, West Virginia Legislature (https://www.wvlegislature.gov/legisdocs/publications/acts/Acts_1920.pdf : accessed 6 August 2026) ↩
26. Code of Virginia of 1849, ch. 108, §§ 1–2; Code of West Virginia of 1868, ch. 63, §§ 1, 13 ↩ ↩
27. Laws of October 1780, ch. XVI, "An act declaring what shall be a lawful marriage"; William Waller Hening, comp., 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. 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; § IV requires the officiant's certificate to be transmitted to the county clerk within three months and recorded in a book kept for the purpose; § V authorizes the county courts to license dissenting ministers. The act commenced 1 January 1781. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb10virg: accessed 12 August 2026) ↩
28. Code of Virginia of 1849, ch. 108, §§ 4–6, 8; Code of West Virginia of 1868, ch. 63, §§ 3–5, 15 ↩
29. Code of West Virginia of 1868, ch. 63, § 14, requiring the officer to record before delivering the license "the full names of both parties, their respective ages, and their places of birth and residence" ↩
30. Code of Virginia of 1849, ch. 108, § 7; Code of West Virginia of 1868, ch. 63, § 6, and ch. 149, § 5, punishing anyone who officiates without a lawful license; Code of West Virginia of 1931, 48-1-5. The modern statement of the rule is Goode v. Goode, 183 W. Va. 468 (1990), holding that because every marriage in the state must be solemnized under a license, a common-law marriage contracted here is not recognized ↩ ↩
31. Code of Virginia of 1849, ch. 109, § 2; Code of West Virginia of 1868, ch. 64, § 3 ↩
32. Code of West Virginia of 1868, ch. 63, § 6, providing that no marriage celebrated within the state between 17 April 1861 and 1 January 1866 shall be void by reason of having been solemnized without a license ↩
33. Code of Virginia of 1849, ch. 109, § 1 ↩ ↩
34. Code of West Virginia of 1868, ch. 64, § 1, which brings marriages solemnized when either party was "under the age of consent" into the group void only from the time they are so declared by a decree of divorce or nullity ↩
35. Code of West Virginia of 1868, ch. 63, §§ 9–10, listing the forbidden degrees and providing that "nor shall any person hereafter marry his or her first cousin," with § 11 continuing the bar where the relationship rests on a marriage since ended; carried forward as Code of West Virginia of 1931, 48-1-2 and 48-1-3 ↩
36. Ordinances and Acts of the Restored Government of Virginia, Prior to the Formation of the State of West Virginia; with the Constitution and Laws of the State of West Virginia, to March 3d, 1866 (Wheeling: John Frew, Public Printer, 1866), Acts of 1865, ch. 10, "An ACT for the Abolishment of Slavery in this State," passed 3 February 1865: "All persons held to service or labor as slaves in this state, are hereby declared free," and "There shall hereafter be neither slavery nor involuntary servitude in this State, except in punishment for crime, whereof the party shall have been duly convicted." Digital images, Internet Archive (https://archive.org/details/actslegislature13unkngoog: accessed 12 August 2026) ↩
37. Acts of the Legislature of West Virginia, 1866, ch. 102, "An ACT concerning Marriages between colored persons," passed 28 February 1866, § 1; carried into Code of West Virginia of 1868, ch. 63, § 8 ↩
38. Acts of the General Assembly of the State of Virginia, Passed in 1865–66, in the Eighty-Ninth Year of the Commonwealth (Richmond: Allegré & Goode, Printers, 1866), ch. 18, pp. 85–86, passed 27 February 1866, deeming colored persons then cohabiting as husband and wife to be married, whether the rites had been celebrated or not, and their children legitimate; transcription with page images, Encyclopedia Virginia (https://encyclopediavirginia.org/entries/an-act-to-legalize-the-marriages-of-colored-persons-now-cohabiting-as-husband-and-wife-1866/ : accessed 6 August 2026) ↩
39. Acts of the Legislature of West Virginia, 1866, ch. 102, § 2; Code of West Virginia of 1868, ch. 63, § 28: all laws regulating marriages and marital rights and providing for the registration of births, marriages, and deaths apply to colored persons in the same manner as to white persons, "but the registration of births, marriages, and deaths of white and colored shall be kept separate and distinct" ↩
40. Act of April 1691, 3d William & Mary (banishment within three months); Hening, Statutes at Large, vol. 3 (Philadelphia: Printed for the editor, by Thomas Desilver, 1823), 86–87. Act of October 1705, ch. 49, §§ 19–20 (six months' imprisonment and a £10 fine to the parish; the minister fined ten thousand pounds of tobacco); ibid., 453–54 ↩
41. Code of West Virginia of 1868, ch. 64, § 1 (the marriage void), and ch. 149, §§ 8–9 (the penalties on the party and on the officiant); the printed derivation of both penalty sections runs to the Code of Virginia, p. 804, so the rule entered West Virginia law with the code of 1868 and not, as secondary compilations state, by an act of 1882 ↩
42. Loving v. Virginia, 388 U.S. 1 (1967) ↩
43. Code of Virginia of 1849, ch. 115, "Of the capacity of aliens and Indians to take and dispose of property," pp. 498–99, and ch. 116, the general rules as to the creation and limitation of estates, p. 499. The codes fix capacity to hold property by class — minors, married women, enslaved people, aliens, and tributary Indians — and no chapter qualifies a free person's right to hold land by color. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog: accessed 12 August 2026) ↩
44. Code of Virginia of 1849, ch. 103, "Of slaves, free negroes and mulattoes," pp. 458–65, under which an enslaved person was the property of the enslaver and had no capacity to acquire or hold property; carried into West Virginia in 1863 and repealed there by the acts of that year and the abolition act of 3 February 1865. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog: accessed 12 August 2026) ↩
45. Code of West Virginia of 1868, ch. 70, "Of the capacity of aliens to take and dispose of property"; carried from Code of Virginia of 1849, ch. 115 ↩
46. Code of West Virginia of 1868, ch. 66, § 1 ↩
47. Code of West Virginia of 1868, ch. 66, § 2 ↩
48. Code of West Virginia of 1868, ch. 66, § 3, with the proviso that no married woman, unless living separate and apart from her husband, "shall sell and convey her real estate, unless her husband joins in the deed" ↩
49. Code of West Virginia of 1931, 48-3-2, under which a married woman may take, hold, sell, convey, devise and bequeath property "in the same manner and with like effect as if she were a single woman," saving only her husband's right of dower; the husband's joinder, required since 1868, is gone ↩
50. Code of West Virginia of 1868, ch. 66, § 12; the general right came with Acts of the Legislature of West Virginia, 1893 (Charleston: Moses W. Donnally, Public Printer, 1893), ch. 3, re-enacting ch. 66 entire, whose § 15 lets a married woman sue or be sued in any court as if she were a feme sole. Digital images ↩
51. Code of West Virginia of 1868, ch. 66, § 13 ↩
52. Acts of the Legislature of West Virginia, 1893, ch. 3, § 12: "The earnings of a married woman, or any and all property, real and personal, purchased by her with the proceeds of such earnings, shall in all cases be her sole and separate property, and shall not be subject to the control or disposal of her husband nor liable for his debts" ↩
53. Act of 6 December 1792, "an act to reduce into one, all acts and parts of acts relating to Dower," § 1, endowing the widow of "one full and equal third part" of all real estate her husband was seized of at any time during the coverture and had not relinquished by deed executed, acknowledged, and recorded; The Revised Code of the Laws of Virginia (Richmond: Thomas Ritchie, Printer to the Commonwealth, 1819), vol. 1, the chapter on Dower, at p. 403 (the page to which the Code of 1849 carries its marginal derivation) ↩
54. Code of Virginia of 1849, ch. 110, § 1, whose marginal derivation reads to the Revised Code of 1819, p. 403 ↩
55. Code of West Virginia of 1868, ch. 65, § 1 ↩
56. Code of West Virginia of 1868, ch. 65, § 1, opening "In cases where a widow is not entitled to all the real estate of her husband under the provisions of section one, chapter seventy-eight of this act" ↩
57. Code of West Virginia of 1931, 43-1-1, "Who Entitled to Dower," endowing a surviving spouse of one-third of all real estate the deceased spouse was seized of at any time during the coverture, unless the right was lawfully barred or relinquished; the revisers' note explains that the section gives the husband an estate of dower in his wife's land and that curtesy is abolished by § 18 of the same article ↩
58. Revised Code of the Laws of Virginia (1819), vol. 1, ch. 99, § 15, the chapter on Conveyances, which prescribes the private examination and prints the form of the certificate to be annexed to the deed and offered for record with it ↩
59. Code of Virginia of 1849, ch. 121, § 4, headed "As to a married woman" ↩
60. Code of West Virginia of 1868, ch. 73, § 4, which prints the form of the certificate; the examination was taken by the county officer, or by a justice, notary, clerk, or commissioner appointed by the governor if she was out of the state ↩
61. Acts of the Legislature of West Virginia, 1875 (Charleston: John W. Gentry, Printer, 1875), ch. 67, § 4, headed "As to a Married Woman," requiring that she be "examined privily and apart from her husband" with the writing fully explained to her; § 5 requires the certificate to be recorded with the deed and § 6 makes the writing convey her dower. Digital images ↩
62. Acts of the Legislature of West Virginia, 1891 (Charleston: Moses W. Donnally, Public Printer, 1891), ch. 23, passed 21 February 1891, § 4, letting a wife acknowledge a conveyance "together with, or separately from, her husband"; the private examination out of his hearing disappears from the section, and § 6 continues to make the writing convey her dower. Digital images ↩
63. Curtesy at common law, received with the rest of it and continued in West Virginia by the Constitution of 1863, art. XI, § 8: a widower held the whole of his late wife’s land of inheritance for his life, but only where a child capable of inheriting had been born alive of the marriage. See William Blackstone, Commentaries on the Laws of England, book 2, ch. 8. No Virginia statute altered it before the West Virginia code of 1868 ↩
64. Code of West Virginia of 1868, ch. 65, "Of dower, jointure and curtesy," § 15, making the husband tenant by the curtesy "in the one-third part thereof"; § 16 bars curtesy where an estate is delivered to him in lieu of it, or where he leaves his wife of his own free will ↩
65. Acts of the Legislature of West Virginia, 1872–73 (Charleston: Henry S. Walker, Public Printer, 1873), ch. 207, passed 20 December 1873, § 2, re-enacting § 15 of ch. 65 to make the husband tenant by the curtesy "in the same," dropping the one-third limit. Digital images ↩
66. Acts of the Legislature of West Virginia, 1882 (Wheeling: W. J. Johnston, Public Printer, 1882), ch. 86, § 15, which keeps the husband tenant by the curtesy "in the same" and adds that the estate shall exist "whether they had issue born alive during the coverture or not." Digital images ↩
67. Acts, 1921, ch. 73 (Senate Bill No. 94, Mr. Sanders), "An ACT to amend and re-enact section fifteen of chapter sixty-five of the code of West Virginia, Barnes' edition of one thousand nine hundred and sixteen, relating to a tenant by the curtesy," passed 8 April 1921, in effect ninety days from passage, became law without the Governor's approval: "If a married woman die seized of an estate of inheritance in lands, her husband shall be tenant by the curtesy in the one-third thereof… in the same manner and under the same right as a widow would be entitled to dower." The object is described as placing curtesy and dower on a parity in Amiss v. Hiteshew, 106 W. Va. 703, 704 (1929). Re-enacted by Acts, 1925 (Charleston: Tribune Printing Co.), ch. 77, keeping the one-third ↩
68. Code of West Virginia of 1931, 43-1-18: "Tenancy by the curtesy is abolished." The revisers print the whole chain from the Code of 1868 through the acts of 1872–3, 1882, 1921 and 1925, and note that the section has no application to tenancies by the curtesy already vested ↩
69. Code of Virginia of 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. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog: accessed 12 August 2026) ↩
70. Code of West Virginia of 1868, ch. 73, "Of the authentication and record of deeds and other writings" ↩
71. 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 person thereafter emancipated who remained in the commonwealth more than twelve months after the right to freedom accrued forfeited that right and might be apprehended and sold by the overseers of the poor. Section 16 brings the act into force from 1 May 1806. Digital images, Internet Archive (https://archive.org/details/statutesatlarge00shepgoog: accessed 12 August 2026) ↩
72. Code of Virginia of 1849, ch. 107, "Of free negroes," §§ 1–4: a negro emancipated since 1806 not to remain in the state; how leave to remain is granted and revoked, on a summons to show cause; leave forfeited by conviction of felony ↩
73. 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," recording age, name, color and stature, any apparent mark or scar on the face, head or hands, and the court that emancipated the person or the fact of being born free, with an attested copy to the person registered. Shepherd, Statutes at Large, vols. 1 and 2; digital images, Internet Archive, vol. 1 (https://archive.org/details/statutesatlargeo01virg) and vol. 2 (https://archive.org/details/statutesatlargeo02virg: accessed 12 August 2026) ↩
74. Code of Virginia of 1849, ch. 107, §§ 5–13: the commissioner of the revenue to return annually, with his personal property book, a list of the free negroes in his district; when and where registered; a free negro without a register punished and liable to be hired to pay the fees ↩
75. Code of Virginia of 1849, ch. 123, § 10; Code of West Virginia of 1868, ch. 78, § 9 ↩
76. Primogeniture was a rule of the English common law, received in Virginia by the Ordinance of the Convention of May 1776, § VI (William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 9:127), and never enacted by any Virginia statute; it was abolished prospectively by the descents act of October 1785, which took effect 1 January 1787. See also William Blackstone, Commentaries on the Laws of England, book 2, ch. 14 ↩
77. Act of October 1785, ch. 60, "An act directing the course of descents"; § 18 provides that the act "shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty-seven." Hening, Statutes at Large, vol. 12 (Richmond: Printed for the editor, by George Cochran, 1823), 138–40 ↩
78. The Revised Code of the Laws of Virginia (1819), vol. 1, pp. 313–18, the chapter on descents, § 1 and following, whose marginal derivation reads "1785, c. 60, edi. 1794, 1808, & 1814, c. 93" ↩
79. Code of Virginia of 1849, ch. 123, § 1 ↩
80. Code of Virginia of 1849, ch. 123, § 1, whose course runs to the children, then the father, then the mother, brothers and sisters, and outward, with no place for a husband or wife until the kindred are exhausted ↩
81. Code of West Virginia of 1868, ch. 78, § 1, cl. II: "If there be no child, nor the descendants of any child, then to his or her wife or husband" ↩
82. Code of Virginia of 1849, ch. 123, § 15; Code of West Virginia of 1868, ch. 78, § 13 ↩
83. Code of Virginia of 1849, ch. 123, § 8; Code of West Virginia of 1868, ch. 78, § 8 ↩
84. 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; William Waller Hening, comp., 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. 12 (Richmond: Printed for the editor, by George Cochran, 1823), 140–47. Section I, at 140, gives "every person aged twenty-one years or upwards, being 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 moreover, if not wholly written by himself, be attested by two or more credible witnesses subscribing their names in his presence." Section IV, at 141: "No person under the age of eighteen years shall be capable of disposing of his chattels by will." Section XXV, at 146, distributes an intestate's goods and chattels after funeral, debts and just expenses: "if there be no child, one moiety, or if there be a child or children, one-third of the surplus shall go to the wife, but she shall have no more than the use for her life of such slaves as shall be in her share," the residue going as land descends; the same section provides that nothing in the act compels a husband "to make distribution of the personal estate of his wife dying intestate." The act took effect 1 January 1787. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg: accessed 12 August 2026) ↩ ↩ ↩
85. Code of Virginia of 1849, ch. 123, § 10, clauses "Third," "Fourth," and "Fifth" ↩
86. Code of Virginia of 1849, ch. 123, § 10, clauses "Fourth" and "Fifth"; and see § 13 on the widow's share where slaves were set free by the will ↩
87. Code of West Virginia of 1868, ch. 78, § 9, clauses "Second" and "Third"; carried forward as Code of West Virginia of 1931, 42-2-1, on the same terms for both spouses ↩
88. Code of Virginia of 1849, ch. 123, § 12: on renunciation "she shall have such share of her husband's personal estate as she would have had if he had died intestate" ↩
89. Code of West Virginia of 1868, ch. 78, § 11: on renunciation "she shall have such share of her husband's real and personal estate as she would have had if he had died intestate leaving children," with the like right given to a husband against his wife's will ↩
90. Code of West Virginia of 1868, ch. 78, § 12, qualifying § 11 where the husband would be barred of curtesy or the widow of dower under ch. 65 ↩
91. Code of West Virginia of 1868, ch. 78, § 11 (one year); Code of West Virginia of 1931, 42-3-1, allowing renunciation "within eight months from the time of the admission of the will to probate," and where the will is contested or appealed, within two months of the final decision; the revisers' note records that the redraft "decreases the time within which the renunciation shall be made" ↩
92. Code of West Virginia of 1868, ch. 82, §§ 5, 7; Code of West Virginia of 1931, 44-10-8, under which the guardian "shall continue in office until his ward shall attain the age of twenty-one years notwithstanding the ward may marry before that time," and at the end of the trust delivers over all the estate in his hands ↩
93. Code of Virginia of 1849, ch. 127, §§ 1–2; Code of West Virginia of 1868, ch. 82, §§ 1–2; the power extended to the mother by Acts, 1921, ch. 80, § 1, "Every father or mother, may, by last will and testament, appoint a guardian for his or her child, born or to be born" ↩
94. Code of Virginia of 1849, ch. 127, § 3; Code of West Virginia of 1868, ch. 82, § 3, as amended by Acts, 1921, ch. 80, § 3, which has the county court prefer first the father or mother, then the nearest of kin residing where the minor lives or has an estate — the appointment made by the recorder under the Code of 1868 and by the county court after 1872 ↩
95. Code of West Virginia of 1868, ch. 82, § 7, as amended by Acts, 1921, ch. 80, § 7: the father and mother "if living together, shall be the joint guardians of their minor child or children, with equal powers, rights and duties… and neither the father nor the mother shall have any right paramount to that of the other," with a proviso that where they live apart the court shall appoint as guardian whichever parent "is best suited for the trust"; carried forward in the same words as Code of West Virginia of 1931, 44-10-8. The 1931 revisers' note explains that the sentence was added "to prevent one parent from depriving the other of his or her rights" ↩
96. Code of Virginia of 1849, ch. 127, § 4; Code of West Virginia of 1868, ch. 82, § 4; Code of West Virginia of 1931, 44-10-4, under which a minor above 14 nominates in the presence of the county court, or in writing acknowledged before an officer authorized to take a deed acknowledgment ↩
97. Act of 1785, ch. 60, § 16, in Hening, Statutes at Large, 12:140; carried into Code of Virginia of 1849, ch. 123, § 5, and Code of West Virginia of 1868, ch. 78, § 5 ↩
98. Act of 1785, ch. 60, § 17, in Hening, Statutes at Large, 12:140: where a man having a child by a woman afterwards marries her, the child, "if recognized by him, shall be thereby legitimated"; carried into Code of Virginia of 1849, ch. 123, § 6, and Code of West Virginia of 1868, ch. 78, § 6 ↩
99. Code of Virginia of 1849, ch. 123, § 7; Code of West Virginia of 1868, ch. 78, § 7 ↩
100. Code of West Virginia of 1868, ch. 80, "Of the maintenance of illegitimate children," § 7 of which makes both the woman and the accused competent witnesses; carried from Code of Virginia of 1849, ch. 125 ↩
101. The English rule the colony brought with it and kept until 1787: a male at fourteen and a female at twelve were at years of discretion and might, their discretion being proved, make a testament of personal estate, while land could be devised only at full age. William Blackstone, Commentaries on the Laws of England, book 1, ch. 17, "Of Guardian and Ward." Transcription, The Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/blackstone_bk1ch17.asp: accessed 12 August 2026) ↩
102. Revised Code of the Laws of Virginia (1819), vol. 1, "Wills, Intestacy and Distributions," § 6, p. 377, headed "None under eighteen years old capable to bequeath chattels" ↩
103. Code of Virginia of 1849, 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"; the marginal derivation reads to the Revised Code of 1819, p. 375 ↩
104. Code of West Virginia of 1868, ch. 77, § 2, whose printed derivation reads to the Code of Virginia, p. 572 ↩
105. Code of West Virginia of 1931, 41-1-2, "Who May Not Make Will": "No person of unsound mind, or under the age of twenty-one years, shall be capable of making a will." Revisers' note: "The provision permitting a minor over the age of eighteen to make a will is eliminated." The derivation runs from the Code of 1849, ch. 122, § 3, through the Code of 1868, ch. 77, § 2, and the act of 1882, ch. 84, § 2 ↩
106. Code of Virginia of 1849, ch. 122, § 3, final sentence ↩
107. Code of West Virginia of 1868, ch. 77, § 2, which omits the married-woman sentence carried in the Virginia section; and see ch. 66, § 3, empowering a married woman to convey and devise ↩
108. Code of Virginia of 1849, ch. 122, § 4; Code of West Virginia of 1868, ch. 77, § 3; Code of West Virginia of 1931, 41-1-3 ↩
109. Code of Virginia of 1849, ch. 122, § 4, the exception for a will "wholly written by the testator"; Code of West Virginia of 1868, ch. 77, § 3. The revisers of 1931 substituted "wholly in the handwriting of" the testator, to remove any doubt that a typewritten will needs witnesses ↩
110. Code of Virginia of 1849, ch. 122, §§ 20–21, headed "When and how devisee or legatee a competent witness to a will" and "Competency of creditors and executors" ↩
111. Code of West Virginia of 1868, ch. 85, § 1 (no powers until qualification by oath and bond before the officer who admitted the will; burial, funeral expenses, and preservation of the estate excepted) and § 9 (marriage of a female representative extinguishes her authority). Neither this chapter nor the wills chapter sets a numeric age for an executor; full age is the common-law requirement ↩
112. Act of October 1705, ch. 7, "An act concerning Tithables," § 1, declaring tithable "all male persons, of the age of sixteen years, and upwards, and all negro, mulatto, and Indian women" of that age "not being free," excepting those the county court and vestry "in charity" think fit to excuse; §§ 2–3 (the age of an imported child adjudged by the county court and entered on its records); § 5 (a justice for each precinct to give notice at the church door, take the list on 10 June, and deliver it at August court). Hening, Statutes at Large, 3:258–59 ↩
113. Act of May 1723, 9th George I, § 21, making tithable "all free negros, mullattos, or indians… male and female, above the age of sixteen years, and all wives of such" men. Hening, Statutes at Large, vol. 4 (Richmond: Printed for the editor, at the Franklin Press, W. W. Gray, printer, 1820), 133 ↩
114. Laws of November 1781, ch. XL, "An act for ascertaining certain taxes and duties, and for establishing a permanent revenue"; William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 10:501: a tax of ten shillings on "every free male person above the age of twenty-one years who shall be a citizen of this commonwealth," and on slaves, payable by the owner, "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 William Waller Hening, Statutes at Large, 12:412. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb10virg: accessed 12 August 2026) ↩
115. Laws of October 1787, §§ XXV–XXVI; William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 12:431. Section XXV recites that the tax on young slaves and the tax on free males above twenty-one have been found very burthensome and repeals so much of the revenue laws as impose the ten shillings payable by each free male above twenty-one; § 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. Digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg: accessed 12 August 2026) ↩ ↩
116. Act of 27 December 1792, "An act reducing into one the several acts concerning the county levy," § 1; Shepherd, Statutes at Large, vol. 1: all male persons of the age of sixteen years and upwards, and all female slaves of sixteen 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." Carried into The Revised Code of the Laws of Virginia (1819), vol. 2, p. 62, so it still governed the county levy well into the nineteenth century. Digital images, Internet Archive (https://archive.org/details/statutesatlargeo01virg: accessed 12 August 2026) ↩
117. Virginia Constitution of 1851, art. IV, § 24: "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; and one equal moiety of the capitation tax upon white persons shall be applied to the purposes of education in primary and free schools; but nothing herein contained shall prevent exemptions of taxable polls in cases of bodily infirmity." Section 23 assesses every enslaved person who has attained twelve years and exempts those under that age; § 22 requires all property other than slaves to be taxed in proportion to its value. Transcription, West Virginia Archives and History (https://archive.wvculture.org/history/government/1851constitution01.html: accessed 12 August 2026) ↩ ↩
118. West Virginia Constitution of 1863, art. VIII, §§ 1–2: "A capitation tax of one dollar shall be levied upon each white male inhabitant who has attained the age of twenty-one years" ↩
119. Ordinances and Acts of the Restored Government of Virginia, Prior to the Formation of the State of West Virginia; with the Constitution and Laws of the State of West Virginia, to March 3d, 1866 (Wheeling: John Frew, Public Printer, 1866), Acts of 1863, ch. 118, "An Act to provide for the Assessment of Taxes," passed 3 December 1863, § 40 ↩
120. Code of West Virginia of 1868, ch. 33, § 3: "On every male inhabitant, whether white or colored, who has attained the age of twenty-one years, one dollar," whose printed derivation reads to the Acts of 1864 ↩
121. Code of West Virginia of 1868, ch. 29, § 44, directing every assessor to list "the white male persons and the colored male persons over the age of twenty-one years" resident in the district on 1 April and not exempt for bodily infirmity; and see ch. 29, § 68, on the personal property book ↩
122. West Virginia Constitution of 1872, art. X, § 2: "The Legislature shall levy an annual capitation tax of one dollar upon each male inhabitant of the State who has attained the age of twenty-one years, which shall be annually appropriated to the support of free schools. Persons afflicted with bodily infirmity may be exempted from this tax." Printed in the front matter of the Code of West Virginia of 1931 ↩
123. Laws of October 1705, ch. XXXII, "An act concerning Juries"; William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 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; § VI directs a writ of venire facias for freeholders of the county in cases of treason or felony, the panel filled from freeholder bystanders worth £100; § VII sets the qualifications; § VIII requires an exception on account of estate to be taken before the juror is sworn ↩
124. 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 as a juror 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 possessed of a visible estate 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) ↩
125. The Code of Virginia: Including Legislation to the Year 1860, 2nd ed., ed. George W. Munford (Richmond: Printed by Ritchie, Dunnavant & Co., 1860), ch. 162, § 1, p. 689: "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," from the act of 1852–53, p. 43, ch. 27, § 1. The freehold and estate qualifications of the Revised Code of 1819 do not reappear. Digital images, Internet Archive (https://archive.org/details/codeofvirginiain00virg: accessed 12 August 2026) ↩
126. Code of West Virginia of 1868, ch. 116, § 1: "All white male persons who are twenty-one years of age, and not over sixty, and who are registered voters, shall be liable to serve as jurors, except as hereinafter provided" ↩
127. West Virginia Constitution of 1863, art. III, § 1 ↩
128. Acts of the Legislature of West Virginia, 1882, ch. 83, amending and re-enacting ch. 116 of the code, passed 6 March 1882, § 1: "All male persons who are twenty-one years of age, and not over sixty, and who are citizens of this state, shall be liable to serve as jurors" ↩
129. Code of West Virginia of 1931, 52-1-1, in the same terms but with the upper age at sixty-five, the revisers noting that they raised it because jury service "is quite burdensome." The printed derivation runs from the Code of 1849, ch. 162, § 1, through the Code of 1868, ch. 116, § 1, and the acts of 1882, 1891, 1927 and 1929 ↩
130. Code of West Virginia of 1868, ch. 116, which imposes no freeholder qualification anywhere; and ch. 50, §§ 76–77, 84, under which a justice short of jurors has the constable summon bystanders, again without a property requirement ↩
131. Code of West Virginia of 1868, ch. 116, § 2 ↩
132. Strauder v. West Virginia, 100 U.S. 303 (1880), on the jury statute of the Code of 1868, ch. 116, § 1, quoted above ↩
133. Acts of the Legislature of West Virginia, 1866, ch. 89, "An ACT to amend the law in relation to the competency of Witnesses," passed 27 February 1866, § 1 ("No person shall be incompetent as a witness on account of race or color"), § 2 repealing § 20 of ch. 176 of the Code of Virginia, second edition ↩
134. Code of West Virginia of 1868, ch. 130, § 24 ↩
135. Code of West Virginia of 1868, ch. 130, § 23, cl. V: "A husband shall not be examined for or against his wife, nor a wife for or against her husband, except in an action or suit between husband and wife" ↩
136. West Virginia Jury Service for Women Amendment, approved 6 November 1956, adding what is now art. III, § 21 of the Constitution of 1872: "Regardless of sex all persons, who are otherwise qualified, shall be eligible to serve" as petit, grand, and coroner's jurors. Until then the governing text was art. III, § 14, under which trials were "by a jury of twelve men." The enabling act is Acts of the Legislature of West Virginia, 1957 (Charleston: Jarrett Printing Company), ch. 99, passed 5 March 1957, amending § 1 of ch. 52 of the Code of 1931 to read "All persons" in place of "All male persons." Digital images ↩
137. The common-law ages of criminal responsibility, received in Virginia by the Ordinance of the Convention of May 1776, § VI (William Waller Hening, comp., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, 9:127), and continued in West Virginia by the Constitution of 1863, art. XI, § 8. See William Blackstone, Commentaries on the Laws of England, book 4, ch. 2, on infancy as a defect of will: under seven no felony can be committed; between seven and fourteen the presumption of incapacity may be rebutted by proof that the child could discern between good and evil ↩
138. Thomas J. Homer, "A Summary by States," in Juvenile Court Laws in the United States, ed. Hastings H. Hart (New York: Charities Publication Committee, 1910), 115, whose West Virginia entry reads in full: "[Probably no Juvenile Court legislation, through 1909.]"; digital images, Internet Archive (https://archive.org/details/cu31924032591491 : accessed 6 August 2026) ↩
139. Acts of the Legislature of West Virginia, 1915, ch. 70, creating a juvenile court for dependent, neglected or delinquent children, passed 20 February 1915 (the title page carries no place-and-publisher line, the volume being authorized by Senate Concurrent Resolution No. 5, adopted 26 February 1915): § 1 makes all persons under 21 wards of the state for the purposes of the act and defines a delinquent child as one who, "while under the age of eighteen years," violates any law of the state or is incorrigible; § 2 gives the circuit and criminal courts original jurisdiction; § 3 directs the findings into a book called the "Juvenile Record"; § 16 forbids jailing a child under twelve. Re-enacted as ch. 46-a of the code by Acts, 1919 (Charleston: The Tribune Printing Co.), ch. 111, raising the no-jail age to fourteen; the age-18 definition carries into Code of West Virginia of 1931, 49-1-2. Digital images ↩
140. Code of Virginia of 1849, ch. 176, pp. 663–65, and Code of West Virginia of 1868, ch. 130, §§ 22–24. The competency sections list the disqualifications — interest, and, before 1866, race — and name no age among them, so whether a child understood the obligation of an oath was a question for the trial judge under the common law. Digital images, Internet Archive (https://archive.org/details/codevirginiawit00virggoog: accessed 12 August 2026) ↩
141. Code of West Virginia of 1868, ch. 130, § 22 (no witness excluded by reason of interest in the event) and § 23, cl. II (a party not to be examined as to a transaction had personally with a deceased person, against that person's representatives, heirs, or next of kin) and cl. VI (a fiduciary not to be examined against his ward) ↩

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.