Justice of the Peace Courts
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|Selected Proceedings and Courts|
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A "JP," or justice of the peace, was a judge of a local court that held limited jurisdiction. Most JPs heard legal action for small claims, tried persons accused of misdemeanors, and conducted preliminary examinations of prisoners. They could perform civil marriages and officially record an indenture between a master an apprentice. In some states, JPs had limited criminal jurisdiction as well: assault and battery, vagabonds, punishing vice and immorality, fining Sabbath breakers, and other misdemeanors punishable by fines. Appeals from justices of the peace were always allowed. In many states, justices kept records of testimony, in almost all states they were required to maintain dockets. In addition to the aforesaid matters, these records may list appointments of constables, overseers of the poor, township assessors, or election judges. Most JP offices were abolished in the mid-twentieth century although some, notably in the eastern states, survive today.
Every state provides for legal name changes. The circumstances, however, vary from state to state, and so do the courts having jurisdiction to authorize name changes.
An early source that includes the American colonies to 1782 is An Index to Changes of Name Under Authority of Act of Parliament 1760-1901, compiled by W. P. W. Phillimore and Edward A. Fry.78 The original introduction includes an essay on the "Law and Practice of Change of Name" by Phillimore, one of the foremost genealogists of his day.
Legislative control of name changes continued until roughly 1850 to 1865 in America. Some state legislatures still have power to legalize names, although it is rare for them to do so. Regular courts with divorce jurisdiction usually have the power to legalize name changes today. Some have separately indexed volumes in which these are recorded, and some list them in the regular court orders or judgments.
Name changes are especially important where divorce or adoption has occurred. For this reason it is a good idea to search the indexes name by name for all pedigree surnames and for those names that married into your lines. List any entries that appear promising, then check the case files referred to for essential information.
Private Claims and Claims Committees of the U.S. Congress
Between 1789 and 1946, nearly 2500 cubic feet of private claims records were created. This includes more than 500,000 private claims that were brought before Congress between 1789 and 1909 (First through Sixtieth Congresses). Incredibly, petitions and memorials account for over half the total volume of the unpublished records of Congress before 1900. These records contain a wealth of family and local history information and many are easily accessible thanks to online indexes at the American Memory Project website of the Library of Congress.
In hearing private claims, Congress serves as a court of last resort where persons seeking redress of grievances involving the federal government may petition. The petitioner in most situations has been denied redress by administrative and judicial reviews. The grievance, which may involve towns, states, fraternal organizations, churches, unions, fellowships, as well as individuals, is then brought or referred to Congress. The workload of private claims resulted in the creation of the Committee on Claims (House of Representatives) in 1794 and the Senate Claims Committee in 1816. Eventually these committees were further divided according to the type of appeal: military pensions, Revolutionary claims, war claims, and private land claims being some. A full explanation of the Congressional claims process and instructions for locating the records that were created will be found in Charles E. Schamel, "Untapped Resources: Private Claims and Private Legislation in the Records of the U.S. Congress." See also, Chris Naylor, "Those Elusive Early Americans: Public Lands and Claims in the American State Papers."79
Southern Claims Commission
As one of the special commissions charged with a specific role, the Southern Claims Commission was established in 1871 to receive, examine, and consider claims submitted by Southern Unionist citizens seeking compensation for supplies that had been confiscated by or furnished to the Union Army. A typical case file contains the petition, a deposition or testimony of the claimant or a witness, the report of the commissioners, and miscellaneous papers. Content often includes family information, as does the file of Nancy Hays of Gibson, Glascock County, Georgia. Her 1872 disallowed claim shows Nancy to be about ninety years old; her first husband, William G. Wilcher, died in 1865. In 1867 she married Hays. One of the witnesses, W. J. Wilcher, knew William G. Wilcher from his earliest recollection. The claims files are on NARA M1407, "Barred and Disallowed Case Files of the Southern Claims Commission, 1871-1880," 4,829 fiche. See chapter 6, "Records of the Claims Committees," Guide to the Records of the U.S. House of Representatives at the National Archives, 1780-1989 for details of holdings (Record Group 233) online at http://www.archives.gov/legislative/guide/house/table-of-contents-short.html. A step-by-step search path may be printed from the St. Louis County Library website at http://www.slcl.org/branches/hq/sc/scc/steps.htm. A print index is Gary Mills's Southern Loyalists in the Civil War. A Tennessee State Library and Archives online index identifies nearly four thousand Tennesseans who petitioned. The index is at http://tennessee.gov/tsla/history/military/sccintro.htm.
Re-Recording of Missing Records
If you are unsuccessful in locating court records for an individual in what you think is the right court and time period, it may be worth looking at indexes or files for a later period. For any number of reasons, an individual may have had cause to re-register legal documents such as wills, deeds, or petitions. Court fires, floods, and other courthouse mishaps were often the incentives that took aliens back into court long after they had applied for citizenship. The following is an example of the re-recording of a petition filed in Cook County Court (Chicago), Illinois in 1880-after the Great Chicago Fire of 1871 had destroyed earlier court records:
- In the matter of the application 28389-1180 of Bernard Cahn for restoration of the order of his naturalization as a Citizen of the United States and said matter having come on this day to be heard upon the petition filed herein, and upon proofs, exhibits and evidence heard in open Court and it appearing to the Court there from the Court finds
- That on the 1st day of November 1858 said petitioner appeared in this Court and showed to the Court that he had resided within the limits and under the jurisdiction of the United States for and during the full term of five years last preceding said 1st day of November 1858.
- That afterwards and on the 9th day of October 1871 the records of this Court including the record of the said order and also the said Certificate of Naturalization issued to said petitioner were totally destroyed by fire without the fault of the petitioner.
In the colonial "back country," as on the frontiers of Texas, Wyoming, and Arizona, outlaw elements of society, both organized and disorganized, lived by plundering established settlements. Law and order were ineffective or nonexistent. Vigilante movements were a citizens' response.
Between 1765 and 1769, for instance, lawlessness reached its height in the Carolinas. Armed outlaw bands and individuals congregated in outlaw communities throughout the "back country." A Ranger-Regulator unit, organized with the approval of the South Carolina governor and Assembly to deal with these outlaw bands, drew up a "plan of regulation" and began acting. People without a fixed residence were apprehended, tried before Regulator courts, and punished-whipped, deported, put to work, or, occasionally, executed. Immoral persons were whipped, and negligent fathers and mothers were returned to their family responsibilities. To prevent interference from colonial officials and judicial personnel who neither understood nor cared about frontier problems, the only processes from Charleston allowed were actions for recovery of debts. The Regulators became the government in this area, deciding all disputes at militia courts on the muster field. On 25 March 1769, the Regulator movement ended peaceably when circuit courts were created to provide local justice. Estimates of the number of men who actually participated range from three thousand to five thousand. Richard Maxwell Brown, in The South Carolina Regulators, has made a detailed study of 118 participants.80 Records of Regulator actions are sparse, consisting of correspondence, diaries, and militia courts-martial minutes. The governor pardoned on 31 October 1771 the seventy-six men officially identified as part of the movement.81
In North Carolina, a similar Regulator movement was much more violent. The colonial government flatly refused to consider the grievances of the back country Regulators and called out the state militia. In a short battle with some two thousand Regulators at the Alamance River on 16 May 1771, eighteen men were killed. Fifteen of the movement's leaders were tried for treason, and six were hanged. The governor proclaimed amnesty for those who would take an oath of allegiance, and some six thousand did.82
Ethan Allen and his Green Mountain Boys in Vermont and Bacon's Rebellion in Virginia are two more examples of such movements.
The difference between extralegal and illegal is narrow. A legislative act prohibiting group action (mob rule) renders a specific action illegal. The banding of a group of citizens together for mutual protection usually involves appointment of leader(s) and a secretary, keeping a written record of proceedings, and making group decisions (rules) binding upon all regardless of approval. This kind of action is extralegal-outside the law.
Extralegal courts do produce records-a wide variety of "official" or approved documents as well as reports of investigations, newspaper accounts, and correspondence between participants, witnesses, and government officials. For a provocative and fact-filled description of archives relating to extralegal bodies, see Richard Maxwell Brown's "The Archives of Violence," in American Archivist.83
To provide legislative, executive, and judicial functions when regular government institutions had ceased to function effectively during the Revolutionary War, the colonials used the same system adopted by the Puritans a century earlier when they overthrew and executed Charles I in England.
By 1774, two separate governments functioned in most of the colonies: assemblies and governors under British control, and those created by the revolutionary colonial leadership. These two governments met in immediately successive sessions, frequently with the same membership. When Parliament abolished the regular assemblies, the revolutionary governments assumed complete control. Each colony sent representatives to the Continental Congress; each appointed a provincial assembly, a provincial council, and various district, county, and town governing committees. By the time the war started, each of the colonies had created a functioning system of local and provincial self-government. They operated under a combination of martial and civil law until state constitutions could be ratified and regular government re-established.
Some meetings of freeholders (freemen) had been organized as early as 1766. In Westmoreland County, Virginia, 114 freemen joined for common defense and safety, forming the basis for subsequent citizen action as the revolution approached and selecting patriot representation for their extralegal provincial congress in the 1770s.84
Committees of Correspondence (observation) corresponded with members in the colony and with committees in other colonies. They provided political information, creating and consolidating pre-Revolutionary sentiment with frequent meetings. By 1774, every colony but Pennsylvania and North Carolina had Committees of Correspondence.
Committees of Safety were the executive powers that carried out the orders of the Continental Congress and enforced the Articles of Association that all colonies had signed. County-level committees frequently usurped the powers of the regular county courts, some even requiring that every suit brought before a regular court of law had to be authorized by the committee. They also appointed military officials and judicial personnel for certain courts; appointed patrols to control African Americans; exchanged prisoners; fined militia members for refusal to serve; relocated, paroled, or jailed Loyalists (Tories); punished counterfeiters; administered loyalty and test oaths; supervised elections to provincial congresses and the Continental Congress; ordered lists of taxable property and census rolls; censored publications and speech, frequently jailing offenders; passed moratoria on collection of debts or confiscations to be paid to creditors; corresponded and cooperated with other committees; offered bounties and premiums for manufacture of needed items-cotton, wool, lime, steel, etc.; regulated travel; controlled horse racing, billiard playing, and dances; seized vessels and prizes; made lists of inhabitants to submit to Provincial Councils; and inventoried estates of suspected Loyalists.
The local militias were under their direct control. They tried all cases of disobedience and reported to the provincial congresses. Once state constitutions were ratified, the extralegal units were replaced by regular governments.
The original minutes, correspondence, and loose papers of these committees are located, almost without exception, in state archives. Unfortunately, they are almost never used in genealogical research, although they are often the earliest indications of Revolutionary War activity. Their minutes also provide judicial records for the years 1774 to 1782, between the discontinuance of crown courts and the establishment of state courts.
Mining Districts and Their Records
In areas richly endowed with mineral resources-Pennsylvania, West Virginia, Alabama, Georgia, and the entire western United States-are many jurisdictions called mining districts. Like the New England towns, they kept order until county and local governments functioned smoothly. In 1866 there were five hundred districts in California, two hundred in Nevada, one hundred in Arizona, one hundred in Idaho, one hundred in Oregon, fifty in Montana, fifty in New Mexico, and fifty in Colorado. Twelve California counties were called mining counties for their principal industry.85 Their records will show the recording of deeds, transfers of title, claims, abstracts, surveys, mortgages, probates, and other court processes.
Almost every mining district kept written records of some sort from the beginning, as claims had to be registered, although many did not survive fire, migration, or a thin vein. In other areas, major mining camps became county seats, and their records were the first public records.
Mining district records, though rare, are valuable precisely because of that rarity. Almost invariably they are the only written evidence available for their period. In California, where the population in 1848 was 14,000 and, by the end of 1849, more than 100,000, no government records could hope to be comprehensive.
In the absence of legally appointed law enforcement personnel, citizens of mining communities had to provide their own systems of justice. Although the criminal cases confronting these "popular tribunals" have caught the public imagination, the miners' courts or alcades dealt much more frequently with civil problems.86 They fixed the size of claims (which varied greatly from one camp to another), determined the boundaries of districts, and made simple rules governing the working and abandoning of claims and trespassing on the claims of others.
These courts were active only when occasion arose. In smaller camps, guilt and punishment were often determined by the whole assembly of miners; in the larger mining communities, this responsibility was delegated to a jury, and sometimes legal counsel was available. Justice was usually summary.
Compared with the "lynch-law" of cattle ranges, vigilante committees in mining towns represented a more formal administration of justice, more closely paralleling indictment and trial in statutory courts. Justice in Montana and other territorial mining camps was based in part on the examples set in the preceding decade in California, from which many of the Montana miners had come. For further study, see the reference section at the end of this chapter.
Around 1830-1840, some whites in northern cities became alarmed about the flow of African Americans fleeing slavery. Other whites openly encouraged the blacks to come, operating the underground networks and providing new identities, work, and schooling once they arrived. Both types of groups kept records; the Vigilant Committee of Philadelphia is one example.87
New Jersey's numerous vigilante groups have been documented in Anthony S. Nicolosi's "The Rise and Fall of the New Jersey Vigilant Societies," in New Jersey History, a comprehensive study by location, county, name, place of meeting, date established, earliest meeting, latest meeting, and date dissolved. He also includes mutual protection associations for merchants, and his notes include locations of records.88
Many frontier vigilance committees disbanded as soon as a specific emergency ended. Others had a long tenure.89 An example of a formal vigilance society is one organized in 1851 in San Francisco with a constitution, bylaws, and newspaper publication. The organization grew from two hundred initial signatories, keeping painstaking records, until it was superseded by state-organized court systems in August 1859. It continued to meet as an organization until late in 1859. Between six thousand and eight thousand men were formal members.90
The American court system has included separate courts for such specific population groups as Native Americans, who were treated as a foreign power; slaves, who had few civil rights (in some areas, "free persons of color" were legally treated as slaves); Confederates, whose governments abolished federal power in local courts; and citizens of foreign powers, who exercised jurisdiction over American soil at varying times. Only the Native American courts still function.91
Records of Native American-white cases, settled according to treaty provisions, are scattered among state records for New York, North Carolina, and many of the western states. Sometimes they are clearly identified in archival finding aids, but usually they are filed with treaty papers or among court or commission case files, so the genealogist must read archive inventories carefully. See the chapter reference section. Records of tribal courts usually remain with the tribe.
Native Americans not living on reservations and not enrolled on tribal rolls have assumed American citizenship. Their records will be found in the local courts. Because Native Americans could expect juries to rule in favor of whites, they avoided court processes as much as possible. Jail records and cases brought before justices of the peace may be more common but are also more difficult to locate.
Slaves were usually tried in a separate set of courts presided over by one or two justices of the peace with assistance from local land holders. Free persons "of color," although not slaves, were rarely treated as were whites and sometimes were required to appear before slave courts.
Manumission-setting a slave free-was a court process. A certificate of freedom was issued to each member of the family manumitted and also recorded by the court. Look for a formal marriage ceremony following manumission, since freedom brought with it other rights as well.
Some jurisdictions distinguished between freedmen and free African Americans who had never been slaves or whose freedom had been won very early in their ancestry. Both are usually identified by color in the records and thus are distinguishable from whites of the same name.
The Inferior Court minutes for Jones County, Georgia, contain the petition of a free black for recognition of his freedom. He had been seized as property of a debtor, sold at a sheriff's sale in 1811, and, finally, eight years later, had come to court seeking his freedom again. The same court granted a petition for a guardian for three free black minors to protect their property.92
North Carolina records show cases where a man would free his slaves by will at the time of his death. Some even provided them with land or other property. Because emancipation was against the law in North Carolina, the county records rarely disclose such details. Usually, the land was left by will in the hands of an executor who was instructed privately about the wishes of the testator. Among the appeals cases, however, will be details from relatives who felt slighted or neighbors who resented living next to African Americans.
In South Carolina, the Magistrates and Freeholders Court handled all matters under the laws for "the better ordering of slaves" under authority originally granted in 1690 and revised in 1740, 1743, and 1783. This court could inflict any punishment allowed by law. Death sentences were carried out immediately. Before 1783, the proceedings were written and sent to the clerk of the crown in Charleston. Later they were recorded in the district courts. This duplication is important because fires in some South Carolina courthouses destroyed their early records, as occurred in Abbeville County.
The St. Louis Circuit Court Historical Records Project provides a database of Freedom Suits Case Files, 1814-1860 consisting of 292 legal petitions brought by or on behalf of persons of color held in slaver within the St. Louis area. See http://www.stlcourtrecords.wustl.edu/about-freedom-suits-series.php.
Slave courts and proceedings have not been studied in any depth, but the chapter reference section contains several references.
Other powers have exercised jurisdiction on American soil at varying times. Examples are the Confederate courts, 1861 to 1865; the Spanish systems in Florida, the Mississippi River delta area, Texas, and the American Southwest; the French control of the Mississippi River Valley and its tributaries; the Mexican claims and jurisdiction in the Southwest; and the Dutch occupation of New Netherlands. See the reference section at the end of this chapter for an introduction to these systems and their records.