| An AfriGeneas Library Article. May not be reproduced without permission. |
An
Introduction to Courthouse Resources
Contents:
Preface
A note on Documenting Slaves’ names
Georgia's Courts
Indentures of Apprenticeship
Tax Digests after 1865
Marriage records, 1875-6
Probate Records
Deed and Mortgage Records
Records of Civil Cases
Writs and Declarations
Minute Books
Interrogatories
Judgment
Dockets, Execution Dockets, Fifas
Criminal Records
Miscellaneous Records
Importation records
Coroners’ Inquests
Minutes of Inferior Court Meeting for
Attachments
Legal Notices in Newspapers
Tax Digests (before 1865)
Free
Persons of Color
Treasures Hidden Among Loose Court
Papers
There is no such
thing as a "slave record" in the courthouses of Georgia, if, by slave
record, we mean a court document whose purpose was to record the names or
activities of slaves for their own sake—I say this to emphasize that a
researcher looking for slaves must use a completely different strategy from the
approach he would use to research free persons.
Legal records were about the personal rights and property rights of free
persons, and slaves had no personal or property rights. The fundamental relationship between free
persons and legal records, therefore, was different from the relationship
between slaves and legal records. Slaves
do not appear as parties to any lawsuit, marriage, contract, deed, bond. They did not make wills or inherit
property. They are not named in the
tax digests. They do not appear on
any jury list, land lottery, poor school roster, or voters list. And yet, hundreds of thousands of
individual slaves are named and described in the court records of
Although there
are many types of non-legal records that contain valuable slave information,
legal records preserved in our county courthouses (and, in some cases, at the
Department of Archives and History in
The historian or genealogist researching legal records for our
The careful reader of court records will discover a world of information about slaves and slavery not equaled in size by any other kind of record.
One of the greatest challenges for genealogists seeking slave ancestors is to trace individual slaves back through former owners, because (working from more recent records to older records) the identifying "tag" of the owners' names usually changes without a clue. A slave typically appears in the records of an owner's legal affairs with no indication of where he or she came from. This is similar to the dilemma faced by researchers of free persons in trying to trace a married woman's ancestry when marriage (or other) records do not exist to show her maiden name. Just as marriage records are indispensable in tracing free persons, records of sale or transfer (as in estate sales, distributions of estates, and bills of sale) are usually essential to trace individual slaves from owner to owner.
It is my opinion that a comprehensive program of extracting, organizing,
and indexing all legal records from the slavery period for each
A Note on Documenting Slaves’ Names. When extracting and indexing historical or genealogical data on American slaves, researchers will find that most kinds of records usually give slaves a first name only. Since slaves were documented as property in most surviving records, a slave's legal identity was the combination of his/her first name and the full name of his/her owner. For research purposes, the slave owners’ complete names act as the best substitute for surnames of slaves (even if a record gives both a first and last name to a slave, the slave owner’s name will still be essential to tracing that slave in other sources); this combination of slave's first name and owner's full name can be as effective as the name of any free person in tracing slaves from record to record. For a lengthier discussion, see David E. Paterson, “A Perspective on Indexing Slaves’ Names,” The American Archivist, 64 (Spring/Summer 2001), 132-142.
To make the best
use of court records, we must understand the organization and functions of
Note: The author is
most familiar with records post-dating the State Constitution of 1798. My descriptions of courts and legal
records may not accurately reflect courts and practices from the colonial period
through 1798.
Justice's Court. Each county was divided into militia districts, and each militia district elected two justices of the peace whose powers included the power to try small claims of $30 or less, and the power to convene a tribunal of fellow-justices to try slaves and free persons of color accused of non-capital crimes.
Justices of the Peace were required to keep record books of their court proceedings, but their courts were not designated “courts of record” (their records were not “for a perpetual memory and testimony” and they did not have the power to fine or imprison for contempt.).
Because their records were not required to be maintained at a permanent, central location like the county courthouse, most of them are now lost.
Researchers will occasionally find cases appealed from Justice's Court among the papers of Inferior or Superior Court.
Inferior Court. Each county had an
Court of Ordinary. In 1851, the Clerk of the Court of Ordinary, who had been subordinate to the Justices of Inferior Court, was made an independent, elected judge of the Court of Ordinary. His official title was "Ordinary"—which can still be seen painted over the doorways of Probate Judges' offices in many counties today. Ordinaries administered the laws regarding probate of estates, registered free persons of color, bonded guardians, and issued marriage licenses, and heard petitions for homestead exemptions.
Superior Court. This court heard all types of civil suits and petitions in equity, all criminal cases in which whites were charged, and, after 1850, all capital cases involving slaves and free persons of color.
County Court. This court was established
Supreme Court of
the State of
Emancipation divided the lives of four million Americans into earlier experiences in slavery and later experiences in freedom. Researchers often encounter one of their greatest genealogical challenges when trying to connect a known ancestor’s free identity with that person’s slave identity. Because the 1870 US Census was the earliest census that tried to name all Americans, five years after the Civil War and nationwide emancipation, research before this year this is sometimes called the “1870 brickwall.” Researchers seeking to find positive linkage between names of free people and those same people held in slavery need to consult records other than the antebellum censuses (for a discussion of slaves in the 1850 and 1860 US Censuses, see the Afrigeneas Library article: The 1850 and 1860 Census, Schedule 2, Slave Inhabitants ).
Usually, and
logically, we may look to records made by the slavemasters prior to
emancipation. When other evidence is
lacking, we are sometimes forced to speculate by matching freedpersons' last
names with the last names of slave owners, even though we know that freed slaves
often did not share the same surnames of their last masters. My research in
In cases where evidence is not so clear or convincing, there are some types of records made after emancipation that can positively identify a few freedpeople with their previous slave identity.
Indentures of
Apprenticeship. Indentures of apprenticeship were often used
by poor people when they could not afford to care for their own children. At emancipation, when the paternalistic
support system of slavery was destroyed, many former slaves found themselves
uncertain that they could provide adequate care for their children. Sometimes voluntarily, sometimes under
pressure, they apprenticed these children to white persons who were often their
former owners. Look for records of
apprenticeship in the Court of Ordinary up to 1866, and in County Court
beginning in 1866. These records
typically state the name of the parent or parents who are petitioning for the
apprenticeship (or name of a custodian in the case of orphans), the names and
ages of children being apprenticed, and the name of the person agreeing to take
the apprentices. The following are
typical examples from
Example 1. Loose papers of County Court, Special Session, January 14, 1867; the petition of Miless R. Meadows states that "at the time the Negroes were Emancipated in [Georgia] your petitioner owned one Willis, the son of Jeremiah Green a freedman, a freed boy now about 5 years old, that said freed boy is entirely destitute of the means of a support or any near relatives that are able & willing to care for [him]. . . That the said boy now has no mother."
Example 2. Loose papers of County Court, petition
filed
Example
3. Loose papers of
County Court, Special Session, October 27, 1866; Petition of Jabez Dallis,
states that "at the time of the emancipation of the slaves in this state he
was the owner of certain Slaves, to wit
Eliza a girl about twelve years old
Josie a girl about 10 years old
Harriett a girl about 7 years old
and Samuel a boy about 4 years old all of whom are destitute of either Father or Mother so far as your petitioner knows."
Tax Digests (after 1865). Post-war tax digests can indirectly link free persons to a slave past. Tax records were arranged by militia district, which helps to geographically locate a person within the county. Beginning 1866, tax digests were divided into two parts; the first for white taxpayers, the second for "freedmen." The format for freedmen asked for (1) employer’s name, then (2) freedman’s name, followed by tax data. Frequently, the employer was the same as the person's previous owner, which, coupled with a coincidence of last names and geographical location, may bolster a possible link between free and slave identity.
Applications for
Example: (
Marriage
Records, 1875-6, can be peculiarly valuable in
Return of a
Marriage, Form A,
1. Full name of groom James Collier
2. Place of residence Paines Mill
3. Age 21
4. Color Colard
5. Occupation Miller
6. Place of birth-State or
country Upson County Georgia
7. Father's name Japhes Dicerson
8. Mother's maiden name Fannie Dicerson
9. Full name of bride Fannie Tisinger
10. Maiden name if a widow First Husban
11. Place of residence Benjamin Lowe's place
12. Age 19
13. Color Colard
14. Place of birth-State or
country Upson County Georgia
15. Father's name Japhes Tisinger
16. Mother's maiden name Lizebeath Tisinger
Notice that, in the example above, the groom's last name (Collier) is not the same as either parent’s last name (Dicerson). Making the inter-generational connection could be difficult without this kind of record.
Birth and death records were also required to be submitted to the Ordinary during 1875-1876. Copies may be preserved in your local Probate Court.
Look for useful
records that may be peculiar to your county.
I found that the Ordinary of Upson County had formulated
his own marriage license for non-whites between 1865 and 1869. His form asked the bride and groom to
name their former owners. A
random check of other counties' marriage records suggests that this format may
be peculiar to Upson; nevertheless, thanks to these records, about 470 persons
in
III. Probate Records
Measured by
sheer numbers of persons who can be identified, the richest source of
information about slaves is probate records.
For example, the probate records of
Will Book,
Inventory & Appraisement, Record of Accounts, Record of Vouchers, Record of
Sales. These are some of the
names under which probate records are found.
Although probate documents are available from the early days of the
colony of
Wills are particularly useful for identifying how slaves in an estate were to be distributed. Wills may be found recorded in a special Will Book, or may be recorded in any of the many varieties of probate record books kept by the Court of Ordinary (now known as Probate Court). Many slaveowners left special instructions in their wills concerning certain slaves. Other slaveowners did not name any slaves in their wills, but merely left instructions on how their estate was to be divided. Some counties' wills have been extracted in county histories or other genealogical books, but too often the slaves have been omitted.
Inventory and Appraisement. This was the first action on a deceased's estate. All slaves were listed, usually by gender and name, and often also by age. Sometimes relationships like husband/wife and mother/child were given. The slaves were given a value. When extracting probate records, always include appraised value because these values give clues as to the age or health of a slave, and can sometimes be the only way to differentiate between slaves of the same name.
Annual returns by executors and administrators gave an accounting of the income and expenditures of the estate each year. Many estates hired slaves, and annual returns frequently state to whom they were hired, as well as for how much. For the family researcher, annual returns naming "Mary and her child" one year, followed by "Mary and two children" the next year, are obviously useful to suggest births and ages of children. Most expenditures are explained on numbered vouchers (detailed receipts), which may be copied into the same record books as the returns, or may be recorded in separate books, according to the whim of the court clerk. Vouchers include doctors' bills which give valuable information about ailments and medical treatment of particular slaves, midwive's bills which suggest children's birthdays, purchases of clothing for slaves, and even the occasional purchase of a "Negro coffin" which can explain the disappearance of a particular person from the next year's annual return. Sometimes vouchers were listed only by number, while the contents were not transcribed into the record books. The original detailed vouchers may be with the loose original returns which are still preserved in many probate judges' offices throughout the state. Often these loose records have never been microfilmed.
Sales. Sales of slaves
belonging to estates, like real estate, were carefully regulated by law. After 1805, it was illegal for
administrators to sell slaves belonging to an estate without court permission. Records of petitions to sell particular
slaves are usually found in Minutes of Inferior Court Meeting for Ordinary
Purposes or the Minutes of the Court of Ordinary. These sales were scrupulously documented
and given in with annual returns. Returns
of sales usually included the names of slaves sold, the date and place of sale
(usually at the steps of the county courthouse on the legal day of sale), the
amount each slave sold for, whether for cash or credit, and (in most cases) who
they were sold to. These estate
records of "Sales of Negroes" are the most abundant evidence we have
of the transfer of individuals from one owner to another in
Example from
Probate records. The following
example shows selected extracts from
first return
dated
return for 1827:
John Johnson hired Lilly for 1827 for $40
return for 1828: John Johnson
hired Lilly for 1828 for $30
return for 1829:
John Johnson hired Lilly for 1829 for $30
return for 1830:
Beneter C. Johnson hired Lilly
for 1830 for $25
return for 1831:
Beneter C. Johnson hired Lilly
for 1831 for $25
[1831] midwife's fee to Lilly $3.00
return for 1832: midwife fees
$3.00
[1831] girl Lilly hired $30
return for 1833: hire of boy Tom
and girl Lilly for 1833 for $100
return for 1834: girl Lilly
hired for 1834 for $40
return for 1835:
midwife's fee $3.00
[1835] girl Lilla hired for $15
division of
estate on
John Arnold's share: Lilly and her child Henry
William W.
New guardian receipts for "Lilly & her three children Mary,
Bill, Henry" on
The preceding example shows that Lilly (the only female slave in this small estate) was delivered of five children between 1827 and 1836, three of whom survived. The fact that Lilly was hired in 1828 for $10 less than in 1827 suggests that she was nursing a child (the one born around New Year 1828). When her hire remained the same in 1829, it suggests (but without certainty) that either the first child or the next child born October 1828 may have died. The fact that her hire rose to $40 in 1834 (although she had young children) suggests that she was not then encumbered with a nursing child, and argues an early birth year for her second surviving child - possibly 1828, but no later than 1831. Her hire for 1835, only $15, suggests the presence of an infant.
Turning to the
receipt dated
For a more complex analysis using probate records, see the AfriGeneas Library article, "Case Study: Determining Maternity by Correlating Records of Alpheus Beall's Slaves."
IV. Deed and Mortgage Records.
Second only to probate records,
deeds and mortgages undoubtedly record the greatest number of persons in
Deeds of Gift. Deeds of gift were a special type of
deed, typically from a parent to a child, transferring property to that child
during the lifetime of the parent. Wedding
gifts to daughters usually contained things needed to set up a comfortable
household, including slaves to act as house servants. Gifts to females were often entrusted to
a male relative for the benefit of the woman, to keep the property from being
sold or lost by her husband (see Deeds of Trust, below). At first recording deeds of gift was
optional, and they could be recorded in either
Deeds of Trust. Deeds of trust were a legal device frequently used to protect and separate a wife's property from that of her husband. They were also used by men who were heavily in debt, and who wished to avoid wholesale seizure and sale of their property to satisfy creditors. The trust was nominally managed by the trustee, but often the trustee retained possession and use of the property. Trustees could be required to make returns of their transactions with the trust property, and these returns are sometimes in the minutes of Superior Court.
Mortgages. Some farmers and merchants
routinely used mortgages to finance their next crop or to secure loans for other
purposes. Slaves were often used as
collateral in these mortgages, so that mortgages are an
exceptionally valuable source of information about enslaved people during a
slave masters' lifetime. Mortgages
can be the only source for the identities of some slaves who were later
emancipated by the Civil War during the lifetimes of their owners. Mortgages of slaves often name persons
and identify family kinships that are not documented anywhere else. The growth of enslaved families can
sometimes be followed if the same families were repeatedly mortgaged. Until 1827, there was no law requiring
mortgages to be recorded, or specifying where they were to be recorded. Up to that time, they may be found in the
record books of any court of record, including the
Conditional Sales. Conditional sales of slaves were extremely common—perhaps more common than mortgages in some places. The conditional sale was usually the last resort of a slave owner deep in debt, and can be likened to pawning his property. Title (and sometimes possession) of the property went immediately to the purchaser who was usually a major creditor, but the seller retained the right to repurchase his property for a prescribed amount, within a prescribed time. Somewhat similar in appearance to mortgages, conditional sales can be recognized by use of the word "sale" in place of mortgage, and a clause at the end of the document beginning with "Nevertheless. . ." and stating the conditions which must be met to make the sale "void and of null effect." The distinction between mortgages and conditional sales, however, is sometimes blurred; I have seen at least one deed where the words "sale and mortgage" were used together throughout, as if the parties were not sure which instrument they meant to use. In practice, because the seller was usually in financial extremis, it is possible that the majority of conditional sales became permanent, never to be redeemed by the seller. This is where the contemporary tax records can be exceedingly useful to confirm whether or not a certain number of slaves disappears from the tax return of one person, and another’s person’s return increases by a similar number of slaves (see Tax Digests, under Miscellaneous Records, below).
Prenuptial agreements. These contracts were often executed between wealthy widows who were about to remarry and their prospective husbands. They were designed to protect the woman's property from being controlled or squandered by the man. These agreements are often in the form of a deed of trust to another male relative. They commonly include slave information.
Bills of Sale. Unfortunately for
researchers,
A note about modern Deed Indexes: Clerks of Superior Court in most counties have current indexes to all their Deed Books, probably compiled fairly recently (in the last 20-30 years) for the benefit of lawyers, real estate brokers, and others researching titles to real estate. In many cases, deeds of gift, slave bills of sale, chattel mortgages, and any other documents which do not have current legal relevance are omitted from these modern indexes. The best way to search the Deed Books for particular records, besides reading every page, is to locate the original indexes, or a nineteenth-century compiled index which includes all the legal instruments recorded in the books. Sometimes the original indexes were bound in the front of each book, but often they were separate. These early indexes may be in the courthouse basement or attic, or on top of some inaccessibly high shelf, along with other records which are irrelevant to most current-day court activities.
Records of civil
suits probably identify the next highest number of slaves after probate records
and deed books. I estimate that for
If your courthouse has preserved the loose, original papers of Inferior and Superior Court, you have a bonus of information which is not recorded in any of the bound books. Certain county records (such as Coroner's Inquests) were not required to be transcribed into record books. Most civil cases settled out of court were not recorded, although the original pleadings filed with the clerk may remain among the loose "settled papers." Interrogatories—among the most interesting of all civil court records—were never recorded except when cases were appealed to the Supreme Court.
Writs and
Declarations.
These are two names for the same type of
record. A writ or declaration was
written by the plaintiff's lawyer, identifying the parties to a lawsuit, and
describing, in legal terminology, the reason for the lawsuit and the amount of
damages requested. The person being
sued (called the respondent) had an opportunity to write his legal response on
the writ or declaration. Most cases
in these records are about money due on promissory notes. Writs and Declarations which went to
court were required to be recorded within 40 days after judgment. Writs and Declarations which were settled
out of court, or prior to judgment, were usually not recorded; instead, they
were folded up and filed with the loose papers of that term of court.
Most of the cases are, frankly, very boring (probably why not many people look at them), but among the more interesting are the cases for money due on the hire of a slave. The actual promissory note was usually attached to the original writ or declaration, and then copied into the record book.
Example:
Unlike the example above, Writ Records and Declaration Books do not generally record the outcome of a trial. To learn the verdict, you usually have to refer to the court's Minute Books.
Divorce
proceedings are a good source of slave data; there is usually a list of property
to help the court decide alimony issues. Sometimes
the man's relationship with a slave woman is implicated in the grounds for
divorce
Keep an eye out for “trover” cases. They usually involve disputes over ownership of slaves.
Minute Books record the court's actions in each case. In civil suits, usually only the verdict and award are recorded (details of the case are found only in writ and declaration books described above). Petitions to the court, however, are recorded in full. One type of petition, the petition in equity, almost always contains useful, detailed information. Among the most interesting equity cases are Bills for Discovery, Account, Relief and Injunction which initiate a lengthy court battle over the rightful title to some property, usually slaves. Only Superior Court heard petitions in equity; these were cases that involved issues of fairness for circumstances not covered by statute law or common law. When sitting as a court of equity, Superior Court was sometimes referred to by lawyers as a “Chancery Court” and the judge was sometimes called a “chancellor” or “master of equity.”
Interrogatories were sworn
written depositions from witnesses who could not conveniently appear personally
in court, usually because they lived out of the county. If interrogatories have been preserved,
they will be among the loose papers of the court.
Since witness testimony in civil trials was not recorded in court minute
books, interrogatories are generally the only evidence we have of the testimony
given in court (the exceptions are cases appealed from Inferior to Superior
Court, and from
(an 1855 case involving a disputed estate, recalling events from thirty
years earlier) Samuel Harrison, in Macon
County, Alabama says: "negro woman Hannah belonged to James Walker; a negro
woman named Rebecca belonging to William W Walker was taken ill in her arms, and
Hannah went to William W Walkers for the purpose of cooking for William W
Walkers family until Rebecca got able to cook and while Hannah was at Wm
W Walker's William Harrison the father of witness was about to whip Hannah and Wm
W Walker told Wm Harrison not to whip her, for if he did whip her,
his father would take her back. Wm
Harrison talked of quitting to oversee for Wm W Walker on account of
not being permitted to whip Hannah, but Wm W Walker said he wished
Harrison to remain with him and not whip Hannah, for if he whiped her his father
would send and take her back. . . . Witness
says he saw Hannah in the possesion of James Walker after she had left Wm
W Walkers and the reason he recollects it, Hannah was about to whip him
afterwards. Witness says the names
of the children of Hannah were Cain and Winney, witness thinks she had two or
three other children, but does not know their names."
(an 1856 case involving a
slave’s medical fitness) John Alsabrooks of
(an 1859 case
involving a stolen trunk) "[William E.] Castlin said he would not give up
his Negro [Bob] to have evidence whipped out of him. [Mark]
(Not all useful
interrogatories come from the antebellum period.
The following extracts were taken from interrogatories dated 1892,
concerning events fifty years earlier) "I have known William Guilford from
a little child up to now. . . old
man Guilford Spear was his father & Vinie Spear was his mother. . . James Spear owned them. . . [William] was born on the
VI. Judgment Dockets, Execution Dockets, and Fifas
These records are merely the by-products of lawsuits, and thus seldom draw the attention of genealogists or historians; yet, they contain detailed information on a significant number of slaves who may not be recorded elsewhere.
Judgment Dockets
and Execution Dockets were two names used for the same type of
record. They may be found among the
records of Superior Court or
pp.13-14, June
Term 1844, Isaac B. Williamson vs. Josiah Mims (mortgage fifa): January 2,
1844 levied on six negroes Moses a man, 34; Treacy a woman, 25; Hannah a woman,
40; and 3 boys, Nero, 10; March, 8; Prince, 6.
Private sale of "Hannah and her three children to wit Nero, March
& Prince" sold by Josiah Mims to William D. Alexander for $200. Money received
pp. 260-1, July Term 1853, H. P. Kirkpatrick
vs. E.
J. McLeroy maker & E. F. Knott
endorser (fifa #8):
As illustrated above, one value of these records is that they frequently contain more detailed descriptions (age, complexion, family relationships) than found elsewhere. Unlike estate records, which document estates in transition at the death of a slaveowner, these records identify slaves during an owner's lifetime. In the most cases, owners of slaves levied on by the sheriff were able to come up with the money to pay off the debt in order to avoid sale of their property. Unfortunately, in those cases where the sheriff sold the slaves at public auction, purchasers' names are seldom documented. The first example given above, of Hannah and her three children, is unusual in that they were spared the degradation of public auction by being sold privately, and the new owner's name is given.
Fifa, short for the Latin phrase fieri facias ("let it be made..."), was a court order (execution) to the sheriff to levy on (meaning take) the property of a debtor in order to satisfy a judgment. See judgment