Most courts in America are courts of record, that is, they are required by law to keep a record of their proceedings; South Carolina's courts are no exception. Understanding South Carolina's court system is challenging, but a researcher needs a basic understanding of the courts because their records are useful in genealogy.
Grand Council/His Majesty's Council.
While South Carolina was a proprietary and crown colony, its government was centralized, and all civil administration took place at Charleston. The grand council, composed of the governor and councilors, sat as the general court, the court of chancery (equity), the court of common pleas, the court of general sessions (assize), the court of admiralty, the court of probate, and the court of appeals. Restructuring during the eighteenth century led to appointments of judges for many of these courts. All records were created and maintained in Charleston, and the extant original records are at the South Carolina Department of Archives and History.
General Court.
The general court handled all cases that did not have a specific court; one of its important functions was hearing petitions for headright grants (see Land Records). The records of the general court are included in Journals of the Grand Council, 1671–92, and His Majesty's Council Journals, 1721–74, original records maintained at the South Carolina Department of Archives and History.
Court of Chancery.
Established in 1721, the court of chancery handled equity cases (see Equity Circuit Courts). Prior to 1791, most cases were tried in Charleston, and all records were kept there. The South Carolina Department of Archives and History maintains the original records of the court of chancery, and there is an index to the extant cases. The court of chancery was replaced by equity circuit courts in 1791.
Equity Circuit Courts (1791–1821).
The equity court, also called the chancery court, handled cases for which there were no remedies specified in South Carolina law. For example, the equitable division of a tract of land among heirs cannot be mandated in a law that would cover all cases; each division must take into account many variables, including the quality of the land.
Prior to 1791, most equity court cases were tried in the court of chancery in Charleston, and all records were kept there. An index to the extant cases and the records themselves are housed at the South Carolina Department of Archives and History.
In 1791, South Carolina was divided into three equity circuits: (1) the Upper Circuit included Ninety-Six and Washington Circuit Court districts and Spartanburg and Union counties in Pinckney Circuit Court District; (2) the Middle Circuit included the remaining counties in Pinckney Circuit Court District, plus all of Camden, Cheraws, and Orangeburgh Circuit Court districts; (3) the Lower Circuit included Beaufort, Charleston, and Georgetown Circuit Court districts.
Another division in 1799 produced four districts, each of which was divided in half; there were eight district seats. A further division in 1808 produced nine districts. By 1821, all districts/counties had their own equity court, except Cheraws District. In 1868, the equity or chancery court was combined with the court of ordinary or probate and became the court of probate.
Known record locations include: Middle Circuit (1791–99) and Camden Circuit (1808–21) records housed in Camden County, Lower Circuit (1791–99) and Charleston Circuit (1808–21) records housed in Charleston County, Columbia Circuit (1808–21) records housed in Richland County, Western Circuit (1799–1808) and Pinckney Circuit (1808–21) records housed in Union County. The records have not been positively located for Upper Circuit (1791–99); Southern, Northern, Eastern, and the lower half of Western circuits (1799–1808); and Cheraws, Georgetown, Ninety-Six, Orangeburgh, and Washington circuits (1808–21).
Court of Common Pleas.
This is the civil court of South Carolina. A civil court handles all cases involving private citizens or organizations against private citizens or organizations. The court of common pleas was one of the functions of the grand council during most of the colonial period. Until 1772, the court of common pleas was held in Charleston, but by 1772 courts of common pleas had been established in each of the circuit court districts (see Formation of Local Government), with records maintained in Charleston until 1785. Each of the counties within the circuit court districts formed in 1785 was authorized a court of common pleas. The counties in Beaufort, Charleston, and Georgetown districts did not function, and the counties in Orangeburgh District only functioned until about 1791. From 1785 until 1800, courts of common pleas operated at both the county and district level; extant records of both must be examined. When districts (counties) were formed in 1800, each was authorized its own court of common pleas.
The records of the court of common pleas generally include: guardianship records, such as petitions, reports, and orders; renunciations of dower; and Revolutionary War pension applications. The records will be found in the clerk of court's office. Most pre-1865 court of common pleas records have been microfilmed and are available at the South Carolina Department of Archives and History and the FHL.
Court of General Sessions of the Peace, Oyer and Terminer, Assize and General Gaol Delivery.
This is the criminal court of South Carolina and is generally called the court of general sessions or court of assize. The court of general sessions was one of the functions of the grand council during most of the colonial period. Until 1772, the court of general sessions was held in Charleston; by 1772 courts of general sessions had been established in each of the circuit court districts (see Formation of Local Government), with records maintained in Charleston until 1785. Each of the counties within the circuit court districts formed in 1785 was authorized a court of common pleas. The counties in Beaufort, Charleston, and Georgetown districts did not function, and the counties in Orangeburgh District only functioned until about 1791. From 1785 until 1800, courts of general sessions operated at both the county and district level; extant records of both must be examined. When districts (counties) were formed in 1800, each was authorized its own court of general sessions.
Court of Ordinary.
During the colonial period, the governor acted as ordinary for the province of South Carolina, with power to grant probates and administrations; the secretary of the colony also began acting as an ordinary by 1692. Courts of ordinary were established in the circuit court districts in 1781 and in functioning counties within the circuit districts in 1787. When districts (counties) were formed in 1800, each was authorized its own court of ordinary. In 1868, the court of ordinary was combined with the court of equity (chancery) and became the court of probate.
Circuit Courts (1769–1800). Circuit courts were established by the South Carolina Assembly in 1769. Each circuit court district (see Formation of Local Government) was authorized a clerk of common pleas for its court of common pleas and a clerk of the Crown for its court of general sessions. Records of the circuit courts were maintained in Charleston until 1785. When the circuit court districts were abolished in 1800, their records were transferred to the district (county) with the circuit court district seat.
Precinct Courts. Precinct courts, also called county courts, were established in 1721. The five courts were held outside Charleston, and staffed by local justices of the peace who tried minor criminal cases and civil suits. There are no extant records for the precinct courts according to the South Carolina Department of Archives and History.
County Courts. County courts were first established in 1785. The county courts were directed to maintain records of their proceedings, prove and record conveyances and renunciations of dower (see Land Records and Probate Records), license tavern-keepers, and levy taxes. Many county courts did not function until 1800, and others functioned only for a few years from 1785–91. When districts (counties) were established in 1800, the county court became the primary judicial body in the district, with three offices: the register of mesne conveyance (see Land Records); the court of common pleas; and the court of general sessions.
Many court records have been microfilmed and are available at the South Carolina Department of Archives and History and the FHL. Most libraries and archives with genealogical collections have some printed abstracts of court records.
The forerunner to the Probate Court was the Court of the Ordinary. The founding of the Colony in 1670 led to the creation of the original Probate Court. In the court´s early days, the Royal Governors or their secretaries were the only Ordinaries in the province. Beginning in 1778, the S.C. Commons House of Assembly was to appoint Ordinaries for each of the province´s seven court districts. However, appointments did not occur until 1782, due to the presence of British forces in South Carolina. When the last Royal Governor fled after the adoption of the Federal Constitution on June 21, 1788, the General Assembly appointed an Ordinary to fulfill the duties of the office. In 1787, duties of the District Ordinaries transferred to county courts. Within a year of the abolishing of County courts in 1799, the S.C. General Assembly created 24 circuit court districts and appointed Ordinaries in 1815. The S.C. Constitution of 1868 replaced the Court of the Ordinary with the Probate Court. Changes to the S.C. Constitution in 1895 required the Probate Court to be dependent on the General Assembly for funding and legal procedures.
Probate records include wills, inventories, guardianship papers, estate papers, settlements, newspaper announcements, and numerous other documents. Researchers should be familiar with four terms: testate, intestate, primogeniture, and dower —all have importance in South Carolina research.
During the colonial period, the rule of primogeniture operated in South Carolina. Under primogeniture, land automatically descended to the eldest male heir; if there were no male heirs, all female heirs shared the land equally. In South Carolina primogeniture was abolished in 1791. The division of intestate estates during the colonial period was based on an English statute of 1670, formally adopted into South Carolina law in 1712. The division of the estate after payment of all just debts and expenses was as follows: the widow, if any, received one-third of all real estate for life; the heir-at-law (eldest son) received the title to all real estate, including the widow's dower, which he inherited at her death; the widow received one-third of the personal property, and the children shared equally in the other two-thirds. If there were no widow, the children shared the personal property equally. If there were no children, the widow received one-half of the estate, and the other half was divided equally among the siblings of the deceased. Any property, real or personal, that was not bequeathed or devised in a valid will was divided according to the law.
Initially, the governor and the grand council were the only court of ordinary (probate) in the province; the secretary of the province also began functioning as a court of ordinary by 1692 (see Court Records).
In 1781, the seven circuit court districts (see Formation of Local Government) were given courts of ordinary, but the only surviving records are those of Camden, Charleston, and Ninety-Six Districts. .
In 1785, the circuit court districts were subdivided into counties; courts of ordinary were established in functioning counties beginning in 1787. During the fifteen years that counties in circuit court districts existed, probate actions could be conducted in the courts of ordinary in both the county and its circuit court district. When the counties and districts were replaced by twenty-five districts (counties) in 1800, courts of ordinary were established in each district. Probate records from 1800 to the present and records of the counties and circuit court districts from 1785–1800 are found in the county's judge of probate office.
Many probate records are among the records of the equity court. Established in 1791 and mostly disbanded by 1821, the equity courts handled partitions of property, among other probate actions (see Court Records). .
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. Arlene H. Eakle, Ph.D. “Research in Court Records”
In The Source: A Guidebook of American Genealogy
American court files mirror U.S. history. Buried away in courthouses and archives everywhere are the dreams and frustrations of millions of citizens. The chances are great that your ancestors have left a detailed record of at least some aspects of their lives in court records.
Most of us don’t think of court records as the rich source of personal history that they are. But America’s English heritage established a tradition of court processes in which the people have a right to participate actively—and we always have. With relative freedom from royal supervision and with 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.
When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term “probate records” broadly covers all the records produced by these laws, although, strictly speaking, “probate” applies only when there is a will.
Family historians use probate case files far more than any other kind of court record. Probate case files are logical sources because they tend to include so much personal data, and because Americans have depended on the courts to settle their estates since North America was colonized. According to Val Greenwood in his Researcher’s Guide to American Genealogy, “All records which relate to the disposition of an estate after its owner’s death are referred to as probate records. These are many and varied in both content and value, but basically, they fall into two main classes: testate and intestate” (page 255). Probate case files generally provide names, addresses, and biographical data for the deceased, but frequently provide the same information for other relatives named in the papers. Relationships, maiden names of wives, married names of daughters, past residences, and place of origin in a native country are just a few of the details that can be discovered in probate files. And probate files can be found in courthouses and archives across the United States.
When requesting probate information from the county clerk, it is important not to limit yourself by asking for a person’s “will.” The clerk will usually take you at your word and not copy other papers in the probate file that may have equally important information if there is no will.
Even if your ancestor is not mentioned in a probate case, consider all of the other procedures which might have resulted in him or her appearing in court records:
