Overview of Court Records

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Researching Court Records

This article is part of a series.
Overview of Court Records
Court Procedures
Equity Cases
Divorce Actions
Types of Court Records
List of Court Record Types
Researching Court Records
Selected Proceedings and Courts
Justice of the Peace Courts
List of Useful Court References

This article originally appeared in "Court Records" by Sandra Hargreaves Luebking, FUGA, Loretto Dennis Szucs, FUGA, and Arlene H. Eakle, Ph.D. in The Source: A Guidebook to American Genealogy

Court records are the raw essence of American history. From colonial times to the present, legal documents reveal the customs, the attitudes, the social structures, and the struggles of the rich and the famous as well as those of otherwise unnoticed men and women. From the national landmark cases that have changed the way we all live to the smaller court decisions that have shaped the lives of a forgotten few, court records are a rich and under-used source for family, local, and national information. No other collection illustrates our personal or our national history with such depth and detail.

Whether appearing as litigants, witnesses, jurors, appointees to office, petition signatories, or in some other role, surprisingly few people have escaped mention in court records at some time during their lives. During this nation's early years, Americans were expected to attend local court proceedings when they were in session. It was a civic duty, and citizens could be fined if they did not attend. That courthouses and their warehouses continue to run out of storage space is testimony to the fact that Americans frequently turn to the courts to seek justice. The paper trail left behind by these major and trivial legal events can provide incredible clues and insights into the lives and times of our ancestors.

Importance of Courts in American Society

America's predominantly English heritage established a tradition of equitable and just court processes in which the people have a right to participate actively. Though of course the word 'people' is misleading. At first, it meant all white men, then all men regardless of color eligible to vote, and finally, in 1918, all adults eligible to vote. It did not then, and does not now, mean all persons. A majority of American colonists were English, and they were accustomed to seeking redress in the courts. With relative freedom from royal supervision in the New World and with court enforcement of religious as well as civil laws, American courts tried many matters that were not subject to court action in other parts of the British empire and that are now considered too minor to warrant criminal action. In many places, until the time of the Civil War, people were criminally prosecuted for such crimes as gossiping, witchcraft, scolding a husband, being publicly disrespectful to a minister, and refusing to attend church services. Indeed, some of these "blue laws," as they were called, are still on the books today, although they are not enforced.

The benefits for the family historian are considerable. It is not unusual for a single case to have involved between seventy-five and one hundred people, all of them being named in the course of court action.<ref>Bradley Chapin, Criminal Justice in Colonial America, 1606'1660 (Athens: University of Georgia Press, 1983), 99'142.</ref>

Local courts were units of government as well as judicial bodies. They issued licenses to lawyers, physicians, merchants, peddlers, ordinaries (public inns), midwives, ferry operators, and clergy; regulated apprenticeships; established weights and measures; provided for inspection of goods and services; ordered the destruction of harmful pests and beasts; paid bounties for heads, tails, and skins; oversaw education for orphans and the poor; built housing for paupers and the maimed, sometimes in conjunction with a local church; built roads and bridges and oversaw their maintenance; called local militia units to muster; assessed taxes and collected them.<ref>See Bruce C. Daniels, Town and County: Essays on the Structure of Local Government in the American Colonies (Middletown, Conn.: Wesleyan University Press, 1978).</ref>

Most of these administrative functions are now filled by county commissions, city councils, and other administrative agencies established for that purpose, each with its own records.

Courts also served a social function in bringing a region's people together regularly. Court week (every three months) was a festive occasion. On Monday mornings, courthouses buzzed with activity as people argued about the cases on the docket. Deeds were registered, wills probated, taxes paid, county records audited, elections held, and marriages contracted. Sessions were often juggled to avoid planting and harvest time so that most people could attend.

Courts measured, almost precisely, the moral, physical, spiritual, and economic condition of the people within their jurisdictions. A scolding wife, a quarrelsome neighbor, a Sabbath card-player, the owner of cattle wandering beyond their bounds, a dangerous liberal who freed his slaves and gave them land, an alien (non-English before 1776 or non-American after) applying for citizenship, a blind man applying for tax-exempt status-all of these and many, many more "ordinary" citizens appeared in court.

When court records have been destroyed-a-s when courthouses have burned--lost records have been reconstructed as far as possible so that legal business can continue. In short, it is safe to say that even the most modest individuals before World War I in America will have appeared in court records at least once during their lifetimes.

This chapter will acquaint you with legal terms, teach you how to read court material, tell you where to find the records, and describe what you can expect to find in civil, criminal, divorce, equity, and probate court records.

Preliminary Work

Since the publication of the last edition of The Source, a number of Internet sites-especially those created by states and counties-have published helpful guides, inventories, and some personal name indexes to court files. However, relatively few original court file images are currently found online. Because of the incredible volume of material in courts, warehouses, and archives in this country, and because of the cost involved in scanning them all, in most cases, it will still be necessary to visit the courthouse or regional archives personally or to order copies of files by mail. A quick online search for the county in question will likely provide a good overview of what's available in a given area. A particularly helpful source for locating county court records is USGenWeb.

Before setting off for the courthouse in the area where ancestors lived, it will be to the researcher's advantage to learn as much as possible about the locale from published sources. Many county boundary lines have changed over the years, and in many cases records have been moved from one place to another. Some records are stored off site, and it will save time, money, and grief if you know where the records are likely to be found. Red Book: American State, County, and Town Sources, edited by Alice Eichholz, provides a state-by-state guide for locating court records.<ref>Alice Eichholz, ed., Red Book: American State, County, and Town Sources, 3rd ed. (Provo, Utah: Ancestry, 2004).</ref> Detailed county maps combined with county-by-county listings that include date of formation of each county, parent county (in cases where it is not the original county), year span of records available, and the address for each county facilitate research in every state. Additionally, Red Book includes special information about missing records, renamed counties, and other advice critical to research. Courthouse Research for Family Historians, by Christine Rose, provides practical advice for preparing for a trip to the courthouse, detailed information on using court indexes, and tips on how to interpret the records once they are found.<ref>Christine Rose, Courthouse Research for Family Historians (San Jose, Calif.: CR Publications, 2004).</ref>

When research centers on a particular state or region, it is a good tactic to consult guides specific to the locale. An excellent example is Diane Rapaport's New England Court Records: A Research Guide for Genealogists and Historians.<ref>Diane Rapaport, New England Court Records: A Research Guide for Genealogists and Historians (Burlington, Mass.: Quill Pen Press, 2006).</ref> Written by a genealogist who is a former trial lawyer, the book explains legal concepts and terms and then identifies locations of New England state and federal court records found at courthouses and archives, in books, and on microfilm and the latest CD and Internet databases.

The Family History Library (FHL) of The Church of Jesus Christ of Latter-day Saints makes available microfilm copies of court records of many counties through its main library in Salt Lake City and through its system of Family History Centers located across the United States and around the world. Consult the Family History Library Catalog to see what may be available for your county of interest online at FamilySearch.org. See also Family History Library, for information about the FHL and its collection.

Federal and Territorial Courts

The colonial court system, early to 1775.
The American court system, 1789 to the present.
The federal court system, 1789 to 1952.

Consider the possibility of an ancestor having appeared in federal or territorial court. Perhaps an aged veteran, denied compensation by the pension board, appealed the decision before a federal district court. Or your ancestor may be among the thousands of southerners who found it necessary to apply for bankruptcy following the Civil War. Other federal court involvement includes tax evasion, patent infringement, some admiralty cases, the granting of citizenship, and disputes between citizens who reside in different states.

Research in federal district and circuit courts (earlier courts that eventually merged with district courts) and territorial courts (those that functioned prior to the establishment of state and federal courts) begins by identifying the residence of the ancestor at the time of trial or hearing. Next, locate the courts that are listed in diagrams at right on a map (contemporary to the time period being researched). Or, consult a local history of the area for information on the courts of jurisdiction for that era and region. Federal circuit court cases can provide much personal information. In "'You have the body' Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820-1863,"<ref>Chris Naylor, ˜You have the body' Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820'1863,' Prologue 37, no. 3 (Fall 2005), online at http://www.archives.gov/publications/prologue/2005/fall/habeas-corpus.html.</ref> author Chris Naylor notes finding cases relating to both criminal and civil matters, such as apprenticeships, custody disputes, child support, guardianships, domestic abuse, false promises of marriage, and family abandonment. Habeas corpus is a court order from a judge instructing a person who is detaining another to bring the detainee before the court for a specific purpose. Although Naylor's article focuses on the U.S. Circuit Court for Washington, D.C., other federal circuit court records will yield similar gold mines of information.

Federal court records comprise the single largest group of records maintained by the National Archives. Court records, in the majority of cases, will be found in manuscript form at the regional archives. National Archives and Records Administration gives contact information for each regional archives and lists the states for which they have collected court records. Each regional archives publishes a holdings list that may be ordered by mail or viewed online. Archives personnel can help you identify the specific court that would have held jurisdiction over a specific case.

Another aspect to federal court record research is the testimony of persons who appeared before special courts or claims commissions appointed to hear petitions by citizens who have been adversely affected by action (or lack of action) on the part of the federal government. One example is the claims by southerners who had remained loyal to the Union cause during the Civil War and sought compensation for property that was confiscated by Union troops during the war.

Federal court and claims records are fully described in Guide to Federal Records in the National Archives of the United States, a three-volume work published in 1995.<ref>Robert B. Matchette, et al., Guide to Federal Records in the National Archives of the United States, 3 vols. (Washington, D.C.: National Archives and Records Administration, 1995). Updated and searchable online at http://www.archives.gov/research/guide-fed-records.</ref> The text is regularly updated online and is fully searchable at http://www.archives.gov/research/guide-fed-records. For each category of federal holdings, court or other records, an administration history is followed by descriptions of holdings by state. For Alabama court records, for example, the key federal collection titles cover territorial courts, district and circuit courts, and courts of the Confederate States (District Court). A summary of holdings for each collection includes, if available, the microfilm publication number. As an example, in the mid-nineteenth century, a naturalization could occur in any court of record, be it county, state, or federal. If the subject of a search was believed to be naturalized in south Alabama during the Civil War, a search of county and state records would be required, as well as a search of the Confederate States District Court. An online search of Guide to Federal Records using the terms "confederate court" and "naturalization" identifies textual records that are available, including those for the Confederate States District Court. Included among those for the southern division of the district of Alabama are "records concerning naturalization, 1861-64," located at the regional archives in Atlanta.<ref>Ibid. Found online under Records of District Courts of the United States (Record Group 21) 1685'1993, table of contents, 21.2.9 Records of the Confederate States District Court for the Southern Division of the District of Alabama, textual records (in Atlanta), accessed on 1 February 2006.</ref>

Legal Terms

Laws-the rules of conduct by which society is governed-consist of case law (decisions of the courts based on local custom and common usage, or "common law") and statute law (legislative enactment). The basic law of most states is the common law, inherited from England and based on custom and usage. It is what "seems fair" in a community but is articulated in judicial interpretations, opinions, minutes, and orders. Legislative assemblies enact laws for situations not covered by common law or where serious disagreement exists about what is fair. In certain instances, a statute is designed specifically to change or nullify local custom. For example, where local blue laws required businesses to close on Sundays so employees could attend church, "fairness" was a hardship for Seventh-Day Adventists and Jews because their Sabbaths fall on Saturday. Local authorities, by drafting laws making Sunday closing optional, have changed the custom.

Judicial jurisdiction is the fundamental authority of a court to hear a controversy between parties, to consider the merits of each side, and to render a decision that is binding upon the parties involved.

Original jurisdiction is the authority to commence a case-to hear it for the first time. Civil cases under forty shillings in value were tried first before a justice of the peace in colonial times and today before small claims courts. Appellate jurisdiction is the authority to review, upon request, questions of law that arise in the trial of a case. Not all cases can be appealed. The jurisdiction of appeals courts determines the cases acceptable for review. Exclusive jurisdiction is the sole authority to try a case. Concurrent jurisdiction means that more than one court may try the same case. Litigants choose which court to use. General jurisdiction is the authority to try almost any case brought before the court except for a few limitations set by law. Special jurisdiction is the authority to handle specific matters-probate, divorce, military, etc. Often these courts also have exclusive jurisdiction to try their cases. Limited jurisdiction is the authority of a court to try cases specified by law only or involving less than certain sums of money. Justice of the peace courts are limited courts.

The parties in a legal conflict include the plaintiff, who seeks a remedy under the law and starts legal action against the defendant, who must answer the charge. Either party may be represented by legal counsel or power of attorney.

All cases brought before courts of law are called actions. There are three main types:

  1. Legal actions (private parties against private parties) arise over injuries done by one individual to the physical being, the property-real or personal-or the reputation of another. Suit is brought to enforce private rights or to seek compensation for injuries. The parties are often encouraged to settle matters out of court. The most common legal actions are torts-property damage, trespass, libel, assault, negligence, and so on.
  2. Criminal actions (state or people versus person) involve the protection of society. These cases can never be settled out of court, although modern plea-bargaining can reduce or eliminate punishment. Criminal offenses include felonies (murder, robbery, burglary, rape), misdemeanors (petty theft, vagrancy, drunkenness, prostitution, breaking the Sabbath), and in more recent years, less serious matters classified as offenses or violations (overtime parking, unlicensed dogs).
  3. Equitable actions are cases determined by "reasonable justice" and "common good" because legal remedies are inadequate or because enforcing the full letter of the law would be unjust. For example, a man borrows money to buy land. He agrees to repay the money with interest by a specific date or forfeit the land. If he is unable to pay, he could be held to the letter of the law and lose all he has invested. The money owed, however, may be less than the value of the land. The court can order the land sold, pay the money owed, and give the man what remains. This is a fairer solution.

Equitable actions usually involve property rights and serve as a substitute for legal actions, in which the remedy is limited to monetary damages, and may be inadequate to remedy the harm. The remedy of the court sitting in equity can be an order of specific performance-to deliver goods promised, to restore animals to their proper owners, to replace equipment damaged, to execute and deliver a deed, or to rewrite a document or report. It could be a mandatory injunction to prevent a certain action. It could also be a bill of account for monies spent in a guardianship. Probate, divorce, and adoption are equity actions.

The basic difference between legal and equitable actions (which today are usually combined under the term "civil actions") and criminal actions is apparent with the question, "Does the offense threaten a well-ordered society?" When a man backs his automobile into his neighbor's car, the neighbor can sue for damages. This is a civil case. However, drunk driving threatens everyone on the same road and thus can be prosecuted as a criminal offense.

In the early stages of American legal development, legal and equitable actions were combined, while a strong distinction was maintained for criminal actions. Few jurisdictions have three separate courts in which each handles a specific action. Most have one judicial body that handles them all, although it may clearly indicate which hat is worn: "The Court of Rhea County sitting in equity" or "The Criminal Court of Rhea County."

The U.S. judicial system is a dual one with national (federal) courts, whose personnel are appointed by the federal government to adjudicate (try) cases under the U.S. Constitution or federal statutory law, and a system of state courts, whose personnel are elected or appointed to try cases under state constitutions, statutory laws, and local custom. Both systems have two types of courts:

  1. Trial courts, where cases originate. The jury or, in its absence, the judge, decides what happened and whether, within a given rule of law, the facts constitute guilt or innocence of the accused. Trial courts make up the majority of our system.
  2. Appellate courts, to which losing parties can appeal for further consideration of a case. These courts may, but usually do not, call witnesses or have juries. The court accepts the evidence of the previous trial presented in the form of a brief or trial résumé and then reviews points of the law where an error has been made in the earlier trial. Some appellate courts also have original jurisdiction.

The attached images show the relationships between trial and appeals courts. They also introduce the variety of courts that can be found in researching family lines.

Genealogists will encounter many new terms and legal phrases in court records-too many to list here. A standard reference is Black's Law Dictionary, available in almost every public library, county law library, and university or college library. Most college bookstores carry the current edition. Many family historians prefer the fourth or an earlier edition, available from used booksellers, for their fuller treatment of obsolete terms found in old records. An excellent online reference is Bouvier's 1856 law dictionary<ref>John Bouvier, A Law Dictionary: Revised Sixth Edition.</ref>. Bouvier supplements definitions with information on the treatment under various laws. To understand the nuances and double meanings of words with legal applications, use Burton's Legal Thesaurus.<ref>William C. Burton, Burton's Legal Thesaurus (New York: Macmillan Library Reference, 1998).</ref> Burton's includes some five thousand legal terms, definitions of foreign phrases, and a valuable every-word index.



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