Consent in a Virginia Marriage Bond

Under what circumstances would a woman give consent to her own marriage in Virginia in 1821?

Mozingo-Smith 1821 Virginia Marriage Bond

We are all familiar with the concept of “consent“. The law states who is legally able to give consent in a variety of circumstances, age and mental capacity being two that come to mind. Another party who meets the legal criteria is required to stand in and give consent on behalf of someone who is underage, for example, and legally incapable of giving consent. What one typically finds in marriage records in particular is a parent or guardian giving consent for their underage child or charge to marry. That is not what we have with this 1821 marriage bond from Westmoreland County, Virginia, quoted in its entirety below.1

  “Know all men by these presents that we Newton Mozingo & William Johnson are held and firmly bound unto Thomas M Randolph Govener of Virginia and to his successors in office, in the just sum of $150..~ which payment will truly to be maid, we bind our selves and each of us, our Heirs, Exrs & Admers. Jointly & Severally firmly by these presents Sealed with our seals & dated this 22nd day of August 1821.

The condition of the above obligation is such that whereas a marriage is soon intended to be solemnized between the above bound Newton Mozingo & Elizabeth Smith. Now if there be no legal impediment to the said marriage taking effect then this obligation to be void otherwise to remain in full force and virtue. Witness our hands and seals the day and year written.”

harvey-mozingo-johnson-marks

Here is the part that I find odd. On a separate slip of paper filmed with the original bond is the consent – but not consent given by a parent or guardian. Consent, in this case, was given by the same woman who later was party to the marriage. Why?

elizabeth-smith-marriage-bond-consent-1821The above reads: “this is to testafy that I have give Mr Newton Mersingo leave to get out Lisens to be married to me Elizabeth Smith” 2
x
[her mark]

This consent statement has me puzzled. It is unlike any I have come across in a marriage bond in decades of doing research. I have raised the issue previously among my colleagues without getting a satisfactory answer. I have looked at the law for the time and place, and have found no reference to a woman consenting to her own marriage. Virginia marriage laws at the time dictated that:

» all parties to a marriage be 21 and over
» if either person was under 21, then consent of a parent (typically a father) or guardian was required
» a marriage license could only be procured upon “thrice publication of banns” or posting of a bond in the bride’s county of residence
» servants were unable to marry without consent of masters or owners
» a free person was unable to marry a servant, unless there was a certificate of consent from the master or owner3

While the law does not appear to directly address this situation, what is certain is that this is not an isolated example. I have examined other marriage bonds from the same county in Virginia, and in some cases, they too contain this same type of attestation. Perhaps it is a case of an overly-cautious court official going above and beyond the strictures of the law.

This question of consent is one of the issues I hope to raise in class next week at the 2017 Salt Lake Institute of Genealogy (SLIG). I am excited to have a week-long opportunity to learn from Barbara Vines Little, C.G., the highly regarded Virginia expert who is the coordinator and instructor for Virginia from the Colonial Period to the Civil War.

Sources:
1 Westmoreland County (Virginia). Clerk of the County Court, “Marriage bonds, licenses and ministers’ returns, 1772-1901”, Newton Mozingo-Elizabeth Smith Marriage Bond, no. 21-38 (1821), digital image, FamilySearch (https://familysearch.org/ark:/61903/3:1:3QS7-89ZG-H3XX?mode=g : accessed 16 Jan 2017), image 411, imaged from FHL microfilm 007,490,279.
2 Westmoreland County (Virginia). Clerk of the County Court, “Marriage bonds, licenses and ministers’ returns, 1772-1901”, Elizabeth Smith consent, no. 21-38a (1821), digital image, FamilySearch (https://familysearch.org/ark:/61903/3:1:3QS7-89ZG-H3XX?mode=g : accessed 16 Jan 2017), image 411, imaged from FHL microfilm 007,490,279.
3  William Waller Hening, 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: W. W. Gray, Printer, 1819), 81, chap. XXXII, “An act concerning Marriages.” October 1748—22nd George II”; HTML edition, Freddie L. Spradlin, transcriber, “Hening’s Statutes at Large,”  VAGenWeb (http://vagenweb.org/hening/vol06-04.htm#page_81 : accessed 16 Jan 2017).

Oregon Indian War Claims Interviews

Two of my Mulkey ancestors were interviewed by the Oregon Indian War Claims Commission in 1859. The commission was charged with auditing claims arising from the Rogue River war in Oregon in 1855-56.

John Thomas Mulkey, my third-great-grandfather, was called an “Indian war veteran” in his 1896 death notice:

DIED — Wednesday August 26, 1896, at the insane asylum, Thomas Mulkey. The deceased was the eldest son of the late Elder Phillip Mulkey; was born in Kentucky in the year 1825, and leaves eight grown sons and daughters. He was an Indian war veteran. He was buried in the Mulkey cemetery near Eugene Thursday afternoon.1

Ever since I first came across this information, I have wanted to learn more about how he came to be in Oregon, and about his military service in particular. This post represents my first attempt at documenting his journey against the larger backdrop of the early history of Oregon.

* * *

The United States and Great Britain had competing claims on the North American continent west of the Rocky Mountains that were decided in 1846 with an “amicable compromise” called the “Oregon Treaty”, also known as the Buchanan-Pakenham treaty (9 Stat. 869)2. Lands south of the 49th parallel would be controlled by the United States, while lands north of the boundary line would be under British control.3

1850 Map of the state of California, the territories of Oregon & Utah, and the chief part of New Mexico
The Oregon Territory in 1850 included all of modern day Oregon and Washington states, plus parts of Idaho and Wyoming. Washington Territory was carved from the northern Oregon Territory in 1853.

Settlers began pouring into the Oregon Territory in response to new legislation in 1850 that finally fulfilled the promise of free land for white persons and “half-breed Indians” (by definition, Indians with European-American blood) who were at least 18 years of age and citizens of the United States, or who had declared their intention to become citizens.4 Single men could claim up to 320 acres, while the allotment for married men was doubled, with half of the acreage of a married couple designated specifically in the wife’s name.5 Settlers must have arrived in the territory prior to 01 Dec 1850 and have fulfilled certain residency and cultivation requirements.6

The Oregon Donation Land Act was extended twice more before expiration in 1855, albeit with awards of lesser acreage for later arrivals, and a few other changes to the requirements.7 In all, more than 7,400 claims were issued, transferring 2.5 million acres from the Federal government to private hands.8

This 1851 news account sheds some light on the tremendous population surge into the Territory:

The Census of Oregon.—We learn from the Spectator that the report of the Assistant Marshall, Daniel O’Neil, makes out the census to amount to 13,323. It is estimated says the Spectator that there are about 2,000 of the last immigration not included in the above. If that is the case, which we think very probable, our real census amounts to over 15,000 and will no doubt be swelled to 20,000 by the immigration this fall.—Western Star.9

In addition to the lure of rich farmland, miners and prospectors flooded the Umpqua and Rogue river valleys in southwest Oregon Territory seeking a more immediate payoff – gold. Miners on the way to and from the gold fields of California also passed through southern Oregon.

All of these actions created tensions as whites encroached on land long inhabited by indigenous peoples from different tribes and bands. Conflict was perhaps inevitable due to the competition for resources and differing customs and cultures. Indeed the early history of the Oregon Territory was marked by a series of treaties with various tribes and betrayals of those treaties, punctuated by bursts of violence.

Skirmishes, depredations and murder gave way to all out war in the Rogue River valley in 1853 and again in 1855. The United States regular troops in the area were insufficient to quash the increasing levels of violence. In October 1855 Territorial Governor George L. Curry issued a proclamation calling for the creation of a total of nine companies of mounted volunteers: “Each volunteer to furnish his own horse, arms and equipments…and thereafter proceed with the utmost possible despatch to the rendezvous….10

A similar request for volunteers was made the same month by Washington Territorial officials to address their own Indian hostilities, “calling upon the people of the territory capable of bearing arms…”11 Later, Washington Territorial Governor Isaac Stevens, in a speech before Congress, stated “…it is now generally admitted that there was a war raging in Oregon and Washington, and that that war spread from the forty-second to the forty-ninth parallel, and from the shores of the Pacific to a great distance in the interior.”12

The Rogue River War concluded late in the spring of 1856 by peace treaties with the remaining tribes that resulted in a surrender of their arms and agreement to removal to reservations in the area and habitation thereon.

Not long after the close of the war, those who had volunteered as citizen soldiers sought payment, and those who had lost their homes, livestock and other property sought reparations from the Federal government.

“The citizens of Oregon and Washington call upon Congress to make immediate provision for the payment of their claims, as adjusted by law, for expenses incurred in the years 1855 and 1856, in repelling Indian hostilities.”13

A three-man commission comprised of military officers and based in the Oregon Territory was established by Congress to evaluate claims of the volunteer soldiers.14 The commission sought information as to prices of stores, provisions, subsistence and forage at the time of the outbreak of hostilities, and so interviewed citizens to obtain this information. Two of my Mulkey ancestors, Philip Mulkey and his son, John Thomas Mulkey, were among those interviewed. Each statement contains a bit of biographical information besides the facts solicited by the commission which helps paint a more complete picture of the lives and the activities of my ancestors on the frontier.

Statement of J.T. Mulkey.

  Came to Oregon in 1852 ; have since resided in Lane county ; was a private in the volunteer service in the Indian war of 1855 – ’56 ; was in five or six engagements with the Indians ; deemed the war to be just, and absolutely necessary for the protection of the lives of citizens and their property from destruction by the Indians. The ruling cash prices for good American horses during the continuance of the war was from $200 to $300 ; mules from $150 to $250 ; good Indian, Spanish and half-breed horses, suitable for the service, for from $75 to $150 ; good wagons worth from $200 to $300 ; common labor was worth $2 per day ; horse hire, from $2 to $2 50 per day ; oats sold for $1 to $1 25 per bushel ; flour, $3 50 per hundred pounds ; money loaned at 20 and 25 per cent. per annum. Think the property furnished to carry on the war was necessary, and that it was done by the people in good faith.

……his
J. T. x  MULKEY.
……mark

Subscribed and sworn to before me this 19th day of August, 1859.
R.H. PARSONS.
Justice of the Peace. 15

Statement of Philip Mulkey.

  I have resided in Oregon since 1853 ; am a resident of Lane county and a farmer by occupation. Good American horses were worth, during the time of the war, from $200 to $400. Mixed breeds, Spanish and Indian, from $100 to $200, cash value in both cases. Mules were rated from $400 to $600 per pair, cash. Good work oxen, from $150 to $200 per yoke, cash. I turned one good horse into the service ; should have been glad to have received him back at the close of the war at the same I put him in at. Good wagons were worth from $200 to $250. Common laborer’s wages, from $2 50 to $3 per day. Oats worth from $1 to $2 per bushel. Good rifle guns, from $35 to $55. Colt’s revolvers, from $40 to $50. Money loaned from 20 to 36 per cent, per annum. Beef worth $10 per cwt. on foot ; retailed from 15 to 20 cents per pound. My son sold a portion of his scrip for fifty cents on the dollar. He was forced to do so to obtain money. Horse hire was from $2 50 to $3 per day. I turned in my property in good faith, supposing the contract to be as good as any I ever made. The war was just and unavoidable.

PHILIP MULKEY.

STATE OF OREGON, and County of Lane:
Philip Mulkey, being duly sworn, says the within statement is true to the best of his knowledge, information and belief.
Subscribed and sworn to before me this 20th day of August, 1859.
R. H. Parsons,
Justice of the Peace 16

Despite repeated Congressional appeals and exhortations in the press, claims arising out of the Rogue River War of 1855-1856 went unreimbursed for years while various constituencies wrangled over the details. When claims were paid out, often the claimants received only one-third of the amount approved by the Commission.17 The final appropriations for payment of soldiers occurred in 1905, nearly half a century after the events originally unfolded.18 Citizens who lost their homes, farms, livestock and other property did not fare much better, as they were not compensated for losses until after the passage of the Indian Depredation Claims Act of 1890.19


Sources and credits:
Image: Map of the state of California, the territories of Oregon & Utah, and the chief part of New Mexico (PhiladelphiaThomas, Cowperthwait & Co., 1850); digital image, David Rumsey Historical Map Collection (http://www.davidrumsey.com/ : accessed 15 Apr 2016).

1 Find A Grave, online database (http://www.findagrave.com : accessed 15 Apr 2016), Thomas Mulkey, memorial no. 84834723, Mulkey Cemetery (Eugene, Lane County, Oregon), citing newspaper death notice published in The Times (Junction City, Oregon) 29 Aug 1896.
2  “Treaty with Great Britain, in Regard to Limits Westward of the Rocky Mountains.”  9 Stat. 869 (1846), digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/amlaw/ : accessed 24 Apr 2016).
3  ibid.
4 “An Act to create the Office of Surveyor General of the Public Lands in Oregon, and to Provide for the Survey, and to make Donations to Settlers of the Said Public Lands.” 9 Stat 496 (1850), digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/amlaw/ : accessed 24 Apr 2016).
5 ibid, section 4.
6 ibid.
7 “Amendments to the Donation Law.,” The Columbian (Olympia, Oregon Territory), p. 1, col. 4 ; digital image, Washington State Library website (http://www.sos.wa.gov/library/newspapers_wsl.aspx : accessed 01 May 2016).
8 Oregon State Archives, “A New Territory and the California Gold Rush,” Crafting the Oregon Constitution: Framework for a New State (2009)(http://arcweb.sos.state.or.us/pages/exhibits/1857/before/new.htm : accessed 29 Apr 2016).
9 “The Census of Oregon,” The Oregonian (Portland, O.T.) 19 Apr 1851, p. 2, col. 2.
10 “By the Governor of the Territory of Oregon. A Proclamation.,” Oregon Argus (Oregon City, O.T.) 20 Oct 1855, p. 3, col. 1 ; digital image, Historic Oregon Newspapers (http://oregonnews.uoregon.edu), accessed 29 Apr 2016.
11 “Call for Volunteers.,” Puget Sound Courier (Steilacoom, W.T.) 19 Oct 1855, p. 1, col. 4 ; digital image, Newspapers – Moments in History, Washington State Library (https://www.sos.wa.gov/library/newspapers-moments-in-history.aspx#7), accessed 29 Apr 2016.
12 Isaac I. Stevens, Speech of Hon. Isaac I. Stevens, of Washington Territory, on the Indian war expenses of Washington and Oregon (Washington, D.C. : Lemuel Towers, 1859), p. 3 ; digital images, Internet Archive (https://archive.org : accessed 15 Apr 2016).
13 “Statement of the Oregon and Washington Delegation in Relation to the War Claims of Oregon and Washington,” Pioneer and Democrat (Olympia, W. T.) 27 Apr 1860, p. 1 ; digital images, Washington State Library (http://washington.veridiansoftware.com/ : accessed 29 Apr 2016).
14 ibid.
15 “Report of the Third Auditor of the Treasury in Pursuance of a Resolution of the House of Representatives Passed February 8, 1859.” Ex. Doc. No. 11, 36th Congress, 1st session, p. 98.
16 ibid., p. 99.
17 F. G. Young, “Financial History of Oregon. Part Two. Finances of the Territorial Period, 1849-1859,” Oregon Historical Society Quarterly, vol. 8, no. 2 (Jun 1907) ; JSTOR (http://www.jstor.org/stable/20609727 : accessed 01 May 2016), pp. 187, 189.
18 ibid, p. 190.
19 Oregon Secretary of State, “Oregon History: Indian Wars”, Oregon Blue Book (http://bluebook.state.or.us/cultural/history/history14.htm : accessed 01 May 2016).

Headstone Record for Civil War Soldier David Bingaman

David M. Bingaman (1842-1896), served in the Civil War in Companies C, D, and E of the 20th Indiana Infantry. Family lore has it that he was wounded in action at the Battles of Malvern Hill (1 Jul 1862) and Gettysburg (2 Jul 1863). He survived these wounds, but older brother, John M. Bingaman, whom David followed into the Army, perished in combat at Malvern Hill, Virginia. David went on to marry Amanda A. McKibben in 1871. They lived in Illinois, the Oklahoma Territory and Kansas. The couple had no children.

As a deceased Union Civil War veteran, his grave in Pomona, Kansas was marked with a headstone supplied at government expense in 1902, under legislation passed in 1879 (20 Stat. 281). Besides the allowance for grave markers for Union veterans in private, village and city cemeteries, the law stipulated

The Secretary of War shall cause to be preserved in the records of his Department the names and places of burial of all soldiers for whom such headstones shall have been erected by authority of this or any former acts. [1]

Today, headstone records for interments in private cemeteries for the period between 1879 and roughly 1903 are part of Record Group (RG) 92 Office of the Quartermaster General. Per the catalog entry there are 166,000 cards that have been microfilmed on 22 rolls. The microfilm may be accessed at the National Archives in Washington, D.C. or at regional branches of the National Archives. Nine 3” x 4” inch cards were microfilmed per frame. This microfilm collection has also been digitized, and is available at Ancestry.com as Headstones Provided for Deceased Union Civil War Veterans, 1879-1903.

Headstone card for David M. Bingaman
Headstone card for David M. Bingaman

Information from the card is as follows:

Name: Bingaman, David M.
Rank: 2nd Lt.
Service: Co. D, 20th Regt., Ind[iana] Inf[antry]
Cemetery: Pomona
Cemetery Location: Pomona, Franklin Co., Kans.
Grave: [blank]
Date of Death: Nov 30 – 1896
Headstone Supplied by: Lee Marble Works
Contract Date: March 29, 1902 [2]

I have not yet been able to ascertain whether applications for headstones made between 1879-1903 might exist, although I have seen earlier examples online at NARA, and catalog entries for the period following. This will be added to my to-do list when I attend the National Institute on Genealogical Research (NIGR) in Washington, DC in July 2013.

Read more about this topic:

Kluskens, Claire Prechtel. “Headstone Records for US Military Veterans, Part II: Records for Headstones Requested from 1879 to 1925.” NGS Magazine 39:2 (April-June 2013), 32-35. A copy of this article may be downloaded by NGS members at http://www.ngsgenealogy.org.

Mollan, Mark C. “Honoring Our War Dead: The Evolution of the Government Policy on Headstones for Fallen Soldiers and Sailors.” Prologue 35:1 (Spring 2003), 56-65. Online here.

Sources:

[1] “An act authorizing the Secretary of War to erect headstones over the graves of Union soldiers who have been interred in private, village, or city cemeteries,” 20 Stat. 281 (3 Feb 1879).
[2] “Headstones Provided for Deceased Union Civil War Veterans, 1879-1903”, card for David M. Bingaman (1902); digital image, Ancestry.com (http://www.ancestry.com : accessed 28 May 2013), citing NARA microfilm publication M1845, roll 2.