Even today, few people escape mention in court records at some time during their lives as witnesses, litigants, jurors, appointees to office, or as petition signatories. However, Americans of a few generations ago also expected to attend local court proceedings when they were in session. It was a civic duty—and they could be fined if they did not attend.

America’s predominantly English heritage established a tradition of equitable and just court processes in which the people have a right to participate actively.1 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 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 genealogist 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.

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 the maimed and poor, 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.

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 and gossiped. Deeds were registered, wills probated, taxes paid, county records audited, elections held, courtships begun, and marriages contracted. Sessions were often juggled to avoid planting and harvest time so that most people could attend.

On Saturday afternoons, janitors swept out the courtrooms. The judges shook hands all around and prepared to start hearings in adjoining localities the following Monday. In between, 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 so he could buy a farm, 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—as 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.

If court records are so valuable for genealogical information, why do genealogists hesitate to use them? The answer is simple: They are or appear to be more complicated than census records. Indexes for court records are incomplete, the records themselves seem difficult to decipher, and there are many of them.

This Page 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, equity, and probate court records.

Back to top

Court and Legal Records

In the course of research, many genealogists limit their searches to probate court records for wills, administrations, and guardianships, or turn to court records for naturalizations. However, there are other court records that should not be overlooked. Court records can establish family relationships and places of residence, and they often provide occupations, descriptions of individuals, and other excellent family history information.

Mention of ancestors can often be found in court records; they may appear as defendants, plaintiffs, witnesses, or jurors. Not only have our ancestors participated in cases involving probate or naturalization; they might also be noted in actions involving divorce, debt, adoption, guardianship, licenses, appointment to public offices, taxes, contract disputes, personal injuries, property disputes, crimes, or any of many other matters brought before a court.

Two main types of cases are found in court records:

• Civil. In civil cases, one or more individuals or legal entities, such as corporations, file suit against other individuals or entities to enforce private rights or to receive compensation for the violation of rights. Civil lawsuits can be filed for such matters as property damage, trespass, libel, divorce, personal injury, breach of contract, and wrongful death, whether real or imagined.
• Criminal. Criminal cases involve offenses alleged to have been committed against the state, in which the state prosecutes those persons who are accused of public wrongs. Society is or may be harmed by the violation of criminal laws, such as murder, theft, arson, and treason. Serious crimes are felonies; minor crimes are misdemeanors.

Most U.S. courts and their published records are discussed in this chapter. However, because of their great importance to family history research, court records related to probate and naturalization are discussed separately.

The United States has a dual court system that has existed since the effective date of the U.S. Constitution (1789). The various state courts that had functioned since the beginning of the colonial period were not abolished by the Constitution. Rather, provision was made for Federal (national) courts to handle cases that were deemed inappropriate for state courts (for example, cases involving the U.S. Constitution or Federal statutory laws). Even though Federal courts have been granted greater jurisdiction in recent years, most cases are still tried in state courts. Somewhat surprisingly, this complex dual system of Federal and state courts has, for the most part, worked smoothly.

State and Local Courts

Each state has two basic levels of courts. The higher level consists of the appellate courts. At this level is the state court of last resort, usually called the state supreme court. There are intermediate appellate courts in many states. The main function of these appellate courts is to review the decisions of the lower trial courts. The appellate courts and their decisions, most of which have been published, are discussed below under “Case Reporters: Published Court Decisions.”

The lower level of courts is made up of trial courts. Trial courts are generally divided into two major types: (1) courts of general jurisdiction, which are general trial courts that usually handle felony criminal trials and major civil cases; and (2) courts of limited or special jurisdiction, which typically have jurisdiction to try misdemeanor cases, conduct preliminary hearings for felony offenses, try traffic cases, adjudicate civil matters involving small amounts of money, and handle wills and estates.

Each court has jurisdiction over designated geographical areas and specific types of legal matters. The names and responsibilities of the courts in each state have changed over the years. Some examples of the types of local and state courts are:

• Chancery courts
• Circuit courts
• Common pleas courts
• County courts
• Courts of ordinary
• Courts of oyer and terminer
• Courts of quarter sessions
• General session courts
• Hustings courts
• Prerogative courts
• Probate courts
• District courts
• Orphans’ courts
• Superior courts
• Supreme courts
• Surrogate courts

State courts handle both criminal and civil cases involving a state’s constitution, laws, and statutes. Because state courts derive their authority from the individual states, there are great differences in their number, names, and relationships to courts in the other states.

Every controversy is presumed to be within the jurisdiction of the trial court of general jurisdiction unless the law has placed it within the exclusive cognizance of some other court. A trial court of limited jurisdiction is a court whose authority is confined to certain types of controversies.

Unfortunately, the large number of state courts with ever-changing names and jurisdictions is often confusing. Every state, however, has one supreme tribunal or “court of last resort” by which all questions of law may be finally determined, and one or more trial courts in which all cases not within the exclusive jurisdiction of the Federal courts may be heard and decided. There is no provision for appeal from state courts to the Federal courts, except in certain limited cases specified in the U.S. Constitution.

Many U.S. courts have been divided, according to the form of their proceedings and the nature of the remedies they can apply, into the following classes:

1. law courts, which are descendants of the ancient common law courts of England; they have jurisdiction over actions to recover money damages for past injuries and over other matters which, by custom or statute, have been placed under their control;
2. courts of chancery or equity, which were introduced in England after the Norman Conquest; they administer “equity” in the sense of finding a solution that is just and fair by providing a remedy in cases in which the common law courts historically did not provide an adequate remedy; and
3. probate courts, which were created to supervise the settlement of the estates of deceased persons and insolvents, and sometimes for the appointment and direction of guardians of infants and “incapables.”

The distinction between courts of law and courts of equity has varied greatly. Most of the original states continued their separate courts of chancery or equity, and they were imitated in this regard by a few of the newer states. Over the last two hundred years, chancery (equity) courts have been eliminated in all but a few states by the gradual fusion of law courts and equity courts. Now courts in most states routinely administer equity through the same judges who apply the common law. It should be noted, however, that many local courts, especially during the colonial and early post-revolutionary periods, handled probate matters in addition to criminal and civil actions.

Federal Courts

Federal courts derive their authority from the Constitution of the United States and the acts of Congress. These include

1. the supreme court, which has original jurisdiction over cases in which a state may be a party and appellate jurisdiction over certain classes of cases arising in the other Federal courts;
2. the circuit courts of appeals, which have appellate jurisdiction over all cases arising in the inferior Federal courts (except those which must be appealed to the supreme court);
3. the district courts, which have original jurisdiction over numerous civil and criminal cases arising under the laws of the United States, or to which citizens of different states are parties; and
4. the court of claims, which has jurisdiction of claims against the United States which are based on contracts or statutes.

The jurisdiction of the Federal courts is sometimes exclusive of, and sometimes concurrent with, that of the state courts. When concurrent, if an action is first instituted in a state court, it is completed there unless removed by proper legal methods to the Federal courts.

Back to top

Contents of Court Records

Generally, a court record is an official written account of what occurred in the court. It is, in a sense, a written history of the proceedings of a case. Although the words record, docket, and minutes are sometimes used interchangeably, record generally carries a broader meaning than docket and minutes.

Docket often refers to the list of cases heard by a court, which is sometimes called the court calendar. Dockets typically list the names of plaintiffs and defendants and case file numbers. Dockets also usually contain brief descriptions of important acts done in court in the conduct of a case, including the date a case was heard and a list of important documents related to the case. Dockets are usually kept in chronological (not alphabetical) order. Many courts have several different dockets, such as criminal, civil, and equity dockets. Dockets serve as tables of contents to court cases; a study of dockets is only genealogically significant in that it can give the researcher more details about a specific case.

The term minutes generally refers to notes made by the clerk of the court in the course of proceedings. Minutes are brief accounts kept by the clerk of all actions taken by the court. They usually include the names of the plaintiff and defendant and a brief description or summary of the action taken. They are usually kept in chronological order. When minutes are written out by the clerk in proper and final form, they become part of the court record. Commonly it is the minutes of local courts that appear in published form and are available for genealogical research.

A court record consists not only of minutes, but also of pleadings and other documents which are filed with the court, such as written evidence, bonds, correspondence, petitions, and depositions. The record also includes orders and rulings of the court, which may be called judgments, decrees, or orders. Orders sometimes include a brief description of the case. Some actions of a court reflected in court orders—such as orders granting citizenship, appointing guardians, and re-recording deeds to replace destroyed land records—are not found in other court records.

The form that a court record takes varies greatly from one court to another and from one time period to another. Often, court minutes are kept in record books. In some courts, there are separate docket books and separate order books. Documents which are part of the record but cannot physically be included in the record book are kept in case files, which consist of folders, packets, or bundles of all the loose documents relating to the case. Case files and folders are usually put in storage and so are not readily available for research and are more difficult to abstract; this leaves the court minute books and the docket books as the most accessible and the record types most often found in printed form. While the clerk of the court prepares the court record, in doing so, he or she is supposed to be acting under the authority and control of the judge of that court.

Often, a court will be said to be a court of record or a court not of record. In a broad sense, a court of record is one which is required by law to keep a record of its proceedings. Whether or not a court is a court of record is primarily important to the researcher only in helping determine the likelihood that records of that court still exist. Naturally, courts of record, which are supposed to keep permanent records, are more likely to have records that have survived than courts not of record, which are not required to keep permanent records. There have been (and still are) many courts not of record in America. Because, generally, these courts were not required to keep permanent records of proceedings, the likelihood is that many, if not most, of the early records of such courts have not survived.

Back to top

Published Court Records

Some court records can be found on the shelves of most libraries with genealogical collections. These published court records, most in an abstracted format, should not be confused with the published appellate court decisions that are found in case reporters. Case reporters normally contain only decisions in cases appealed from trial courts and are printed by official court printers or major law book publishers when decisions are released by an appellate court. Case reporters, which are primarily found in law libraries, are discussed later in this chapter under “Case Reporters: Published Court Decisions.”

Court records and decisions are not usually published at the time they are created or recorded. Rather, if they are published at all, it is usually by a genealogical publisher many years later. Abstracts or transcripts of minute books or docket books, often published by individual genealogists, local genealogical publishing companies, or local genealogical societies, are probably the most likely published court records to be found.

Although entire case files, which may contain loose documents having a wealth of personal information concerning ancestors, are not usually printed, the trial court records that are published can be quite helpful to genealogists. Many, if not most, consist of abstracts of records (rather than verbatim, or word-for-word, transcripts).

Like abstracts of any records, abstracts of court records should be used only with knowledge of their limitations. Original court records are always more accurate than abstracts and should be used when possible. However, published court records can often help researchers find original records (including many documents in case files that have not been published). Because original court records do not contain every-name indexes, indexed published abstracts are of immense help in locating individuals within records.

Some court records are faded, crumbling, or torn or have missing pages (and many have been destroyed or lost). Experienced editors frequently are better at interpreting such material than untrained researchers (especially researchers who are not familiar with legal terms and abbreviations used by court clerks). Therefore, printed abstracts and transcripts can be extremely useful, especially those prepared by well-trained and reliable editors. Most libraries and archives with genealogical collections have some printed abstracts and transcripts of court records, and major genealogical libraries have numerous volumes for some states.

Many abstracts of, or excerpts from, early court records have been printed recently. It seems that court records for some states are being published so often that researchers must frequently check to see what has been published most recently. (Despite this apparent flurry of court record printing, however, most court records remain unpublished.)

If published court records for the right time and location can be found, the chances of finding ancestors in them should not be underestimated. Many relatively petty disputes were resolved in court, and even people who were not parties to litigation may have been called as jurors or otherwise participated in court proceedings.

Back to top

Colonial Courts and Their Records

Courts played prominent roles in the lives of our colonial ancestors. Because church and state were inseparable in many colonies, court proceedings involved controversies not encountered in modern court hearings. Civil and criminal actions concerning church attendance, proper sabbath observance, disputes with ministers and church officials, witchcraft, fornication, adultery, and other moral improprieties are commonplace in court minutes.

When the American colonies were first established, judicial power was exercised by colonial governors who were appointed by the king. During the earliest years, a few courts were established to serve in an advisory capacity to the governors. The judges of these courts served at the pleasure of the governor and had limited authority to resolve matters.

As time passed and the population of the colonies grew, it became necessary to establish some county and town courts to provide local authorities for settling conflicts. Similar county and town courts had been established earlier in England and were adopted by the colonies. In England, the office of justice of the peace, an appointed official, had developed to handle local judicial needs. Justices of the peace were usually landowners or merchants who had no formal legal training. This system of local justices who had authority to resolve petty civil disputes and minor criminal matters was transported essentially unchanged to the colonies. Decisions of these local and county courts could be appealed to the governor and the assembly and, ultimately, to the courts of England. However, such appeals were rare. The matters before these courts were such that the time and expense of appeals normally were not justified.

With the continued growth of the colonies, additional courts were established to respond to increased litigation. As commerce increased, so did the need for courts to resolve differences. Some colonies began to divide cases between courts and to create specialized jurisdictions. In addition, new courts were established to handle certain kinds of cases. Higher courts of appeals began to appear as well.

Many of the early court records of the original colonies and some later states have been published in various series called archives, such as the Pennsylvania Archives. Such series are often called documentary collections; they typically include early court records, along with many other sources. Most of the published colonial court records are from the county court level. They are very helpful to genealogists because these records concern a larger percentage of the population of the time than do later court records. In many areas where vital and church records are lacking, a court record might be the only source containing a description of an ancestor. It was not uncommon for individuals’ ages to be included as part of colonial court record proceeding; in many cases such records might be the only ones in existence from which an estimated birth year can be deduced.

Back to top

State Courts and Their Records

The basic structures of most state court systems are similar; however, the functions of state courts can vary widely. Among states the number of trial courts of limited or special jurisdiction also varies greatly. Most states have only one or two types of trial courts of general jurisdiction.

Each state is divided into judicial circuits or districts, with each circuit or district usually covering one or more counties, depending upon population. In each circuit or district, a general trial court exists. These courts are known by a number of different names (depending on the state).

County courts are also part of each state’s court system. Most county courts are courts of limited jurisdiction. Courts on a county basis not only had judicial functions but had some administrative and legislative ones as well (especially in the eighteenth and nineteenth centuries). Such roles of the courts as licensing midwives and ministers; appointing militia officers; overseeing the building and upkeep of roads, bridges, and ferries; and organizing the collection of taxes resulted in a large number of county citizens being mentioned in county court books—making the county court record books very valuable for identifying ancestors.

Trial courts (and their records) are frequently identified by or with a particular county, regardless of whether the trial court is known as a state circuit court, a county court, a district court, or by some other name. For example, a state circuit court trying a case in Jefferson County might be known as the Circuit Court in and for Jefferson County. So, in a broad sense, many, if not most, printed trial court records are county court records. Consequently, in the genealogical collections of many libraries, researchers will find published state court records classified as county court records.

Many states also authorize courts of general jurisdiction to exercise some appellate jurisdiction over courts of limited jurisdiction. When there is such an appeal to a general court, there normally will be a completely new trial. This process is very different from an appeal to a regular appellate court, such as a state supreme court, where there is no new trial—only a review of the record of the previous trial to determine if any error was made by the trial court.

Many of the published records and indexes of state courts are found in genealogical libraries. Some libraries also have microfilm or microfiche copies of indexes, minutes, dockets, and orders from local courthouses.

Back to top

Federal Courts and Their Records

The Federal court system began in 1789 when the U.S. Congress passed the Judiciary Act of 1789. At the Constitutional Convention in Philadelphia in 1787, the delegates had voted by a narrow margin to establish only a supreme court and to prohibit the establishment of any Federal trial courts. Then, in a move that would forever change the structure of the American judicial system, James Madison proposed a compromise that would leave to Congress the question of whether or not to establish Federal trial courts. Of course, Madison’s compromise made it into the final version of the U.S. Constitution, which provided for a supreme court and such trial courts, if any, as Congress should establish.

When the first Congress met in 1789, it resolved the issue by creating a system of Federal trial courts that would function alongside the existing state trial courts. A Federal district court was established as a trial court in each state. The creation of national trial courts to operate simultaneously with existing state trial courts was, at the time, a new concept which had not been tried before.

As the population grew, some states were divided into two or more Federal court districts. There are presently eighty-nine districts in the fifty states. The district courts usually had jurisdiction over Federal civil and equity cases, with limited criminal jurisdiction until 1866. Their jurisdiction has included admiralty, trade, bankruptcy, land seizure, naturalization, and, after 1815, non-capital criminal cases.

Three Federal circuits were established to cover the whole country in 1789. The number gradually expanded to nine by 1866. Federal circuit courts had jurisdiction over all matters (especially criminal) covered by Federal law; they also had some appellate functions from the district courts. In 1891, circuit courts of appeals were created to hear appeals from the district courts; they had the same boundaries (or circuits) as the circuit courts. The original circuit courts retained limited powers that often overlapped those of the district courts. In 1911, the original circuit courts were abolished.

The records of most pre-1950 Federal district and circuit courts have been collected by the National Archives regional archives.

Back to top

Ages of Legal Action

Back to top

?

Back to top

?

Back to top

?

Back to top

?

Back to top