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Wednesday, November 30, 2011

Understanding the Law in the U.S. Finding Records

This is my non-series series on understanding the legal structure of the U.S. for genealogists. The reason this is not a series is because I am going to approach the subject from a lot of different directions, but the common theme will be using the vast collections of legal and law related records to do genealogical research.

In my last post, I pointed out that there are three major law related parts of our government; the judicial system and all its attendant parts, the legislative system with all its support organizations and agencies, and the executive structure with all of its regulations and rules supported by all of its agencies. You may well ask why I consider all three of the divisions of our government to be part of the law? All of our government in the U.S. ultimately derives from the structure created by the U.S. Constitution. Every government body, agency, office, and those working for the government, ultimately hold their positions either because their existence was authorized by the Constitution or created pursuant to powers granted by the Constitution. All government records were created or are maintained due to some sort of regulation. In a real sense, it is the Constitutional law of the country that creates the structure of our society. From my perspective, all government documents exist because of some legal requirement. You could divide the documents into categories by the branches of government, but that ignores the fact that ultimately none of the records would have been kept had there not been some rule or regulation requiring the existence of the records.

From a genealogical standpoint, these legally derived records have been maintained since there have been governments to mandate record keeping. Even before the adoption of the U.S. Constitution and the formation the United States of America, the various governments of Europe, England, France, Spain and others, mandated record keeping in some form or another. The division I make is between records that are mandated by some sort of law or rule, and those records outside of the government venue i.e. privately maintained records. Private records were maintained because of personal or societal interest in record keeping. Private records could be anything from a personal diary, a private letter, a Bible entry, church records, newspapers, books, in fact any document or record that is not mandated by law.

Why the division? Usually, with private records there is no legal responsibility to preserve or protect the record. Anyone who can find the record can usually gain access. There is no requirement that the records be gathered in any particular place and to some extent their preservation is a matter of chance. This is entirely different for public or legally derived records. Usually, a specific person or agency has responsibility for the record and all of the records are kept as mandated by law. This does not mean that records are not lost, the 1890 U.S. Census is prime example, but it does mean that to some extent, the location of the records is determined by present or prior laws and statutes.

Private records may be anywhere; basements, attics, libraries, museums, but public records are more likely to be in designated repositories. This is not necessarily 100% true, because some individuals may have improperly maintained or taken public records. We had an example of this in Arizona where a court reporter had all of the court records in his home. He not only lost his job, but was also arrested and prosecuted for disobeying the law. Also, the preservation of records by the various government agencies (in the broad sense) may or may not be done properly.

This is important to understand from a genealogical standpoint, because you are going to find government documents in an entirely different way than you would if you were looking for privately maintained documents.

My next post on this subject will look more closely at how government documents are created and why they are maintained.

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