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Saturday, August 17, 2013

The Question of Jurisdiction

In law school, my fellow students and I spent an inordinately long time learning about the concept of jurisdiction. To even begin to understand why we spent so much time on this subject, all you need to do is read the definition of jurisdiction in Black's Law Dictionary (Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. St. Paul, Minn: West Group, 1999 or any other edition for that matter). Here is one of the variations of the definition:
The power and authority constitutionally conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favor of or against persons (or a res) who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.
 Of course, every other term in the definition also has a special legal meaning. During the first few days of law school, the end of each class would see the first year students descending en masse on the library to look up the meaning of the terms used in each class.

OK, so now, of course, as an attorney I use all these words and forget that the non-lawyer either doesn't understand what I talking about or has an entirely different definition for the words I am using. But there is one more definition of the word "jurisdiction" we need to concern ourselves with as genealogists. By the way, we have the same problem with jargon as do the attorneys, although maybe not to quite the same degree. Another definition of jurisdiction is as follows:
Jurisdiction generally describes any authority over a certain area or certain persons. In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority. For example, the federal government is a jurisdiction unto itself. Its power spans the entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the extent that they have powers that are independent of the federal and state governments.
But why do genealogists care what attorneys think (and vice versa)? Well, most attorneys don't really care what anybody thinks, but genealogists are usually more polite about their opinions. The fact is that genealogists are in the business of reading and understanding records and parts of those records just happen to be created primarily by attorneys (or if you like the term lawyers better). Think about the following list of genealogically useful records:

  • Wills and Probate
  • Land and Property
  • Marriage and Divorce
  • Court Cases
  • Adoption
  • Business Records
  • Taxation
  • Water Records
So, just maybe you might want to know what the various terms in the documents you are searching mean to the courts and all the attorneys. I have already mentioned the key to this whole issue: Black's Law Dictionary. You can find it online or in almost any larger library. But you just might need a regular dictionary to help you read Black's Law Dictionary. 

Basic to all of the issues faced by doing genealogical research is the issue of jurisdiction. Note carefully the part of the second definition given above: "In the law, jurisdiction sometimes refers to a particular geographic area containing a defined legal authority." In other words, to find a document pertaining to your ancestor, you must know the various legal jurisdictions that had legal authority over the place where your ancestor lived at the time the ancestor lived. 

Jurisdictions change over time. Jurisdictions also overlap each other and sometimes conflict with each other. What I mean by this is sometimes it is not clear which political subdivision has the authority in a certain instance. For example, let's suppose your ancestor lived in Kentucky in 1790. Which political subdivisions had authority over your ancestor? Where were marriage records recorded? Where were land records recorded? Can you answer those questions without knowing which political subdivision had that authority? Would it help to know that in 1790 Kentucky was a political subdivision of Virginia?

As genealogists, we find records based on geography and where the records end up being recorded and stored depends on the jurisdiction. Just a word to the wise researcher. 

1 comment:

  1. Thank you very much for this explanation of Jurisdiction. I am currently taking a class at BYU, and trying to understand Jurisdiction and how it plays into research. This is a perfect explanation.
    Diane Mcfarlin
    Modesto, CA