Kentucky law and the big writs

Okay, so I admit it. My attention wandered again yesterday afternoon while I was chasing my as-yet-unidentified third great grandparents down the rabbitholes of Kentucky records. I wasn’t staring off at bookshelves this time; I was actually looking at what I was supposed to be looking at — county court minutes in Hart County, Kentucky, where some of my candidate families lived around 1820¹ — when my attention was snagged by one entry.

It was in the very first session of the Hart County Court, the September term 1819.² The court orders carefully record that the County Court

ordered that Dudley Rountree, Isham Hardy and Philip Maxey be appointed to grant writs of Injunction, and of neexeat and to grant writs of habeuscorpus agreeable to the provisions of an act of Assemble passed 3rd day of February, 1819.³

Now don’t go looking for any “act of Assemble” passed 3 February 1819 because you won’t find it. The statute was actually passed in 1818. And don’t go looking for any dictionary definition of neexeat or habeuscorpus because you won’t find those either. (Court clerks rarely, if ever, wrote Latin with anything resembling the right spelling.)

But do stop and think for a minute. Just what the heck was the Legislature up to with this enactment anyway? The answer is, walking a tightrope between the need for citizen-judges out in the counties on one hand and the need to give those judges — largely untrained and unschooled in the law — some amazingly broad powers.

What the act of 3 February 1818 called for was the selection of only three justices of the peace in each county — “three of the most experienced” members of these county courts — who would have the power to grant three specific writs during times when the higher, usually law-trained circuit judges weren’t available. Those writs were the writs of injunction, of ne exeat and of habeas corpus.⁴

And the statute makes perfectly good sense, since these were and are the Big Three writs: the ones that can make or break somebody and often have public policy issues woven into the facts or the law.

     • The writ of injunction is an order from a court either requiring someone to do a specific act or barring him from doing a specific act. Although the law courts have long had the power to issue injunctions, it’s really the quintessential remedy of equity — it’s the kind of thing somebody would ask for if money damages alone wouldn’t be enough to make things right at the end of the case.

An injunction is issued in two types and at two times in a lawsuit:

Mandatory injunctions command defendant to do a particular thing. Preventive (injunctions) command him to refrain from an act.

An injunction is called “preliminary” or “provisional,” or an “injunction pendente lite,” when it is granted at the outset of a suit brought for the purpose of restraining the defendant from doing the act threatened, until the suit has been heard and the rights of the parties determined. It is called “final” or “perpetual” when granted upon a hearing and adjudication of the rights in question, and as a measure of permanent relief.⁵

Even today an injunction is considered extraordinary relief, not granted as a matter of course and usually limited to those few cases where nothing else will do, at least in the short term.

     • The writ of ne exeat is another old equitable remedy, and it’s basically an order to haul somebody into court right now this minute because he’s likely to be heading for the state line (or at least out of the jurisdiction). It was issued mostly against debtors, and if they couldn’t post bail to secure their presence to answer the suit for debt, they’d end up in the hoosegow.⁶

In English law, it was the writ of ne exeat regno, a “writ which issues to restrain a person from leaving the kingdom.”⁷ In the United States, the long form you’ll sometimes see in court records is ne exeat republica.⁸

     • And the writ of habeas corpus is the storied, constitutionally-based court power to bring somebody who’s in custody into court and to order him set free if the custodian (jailor or sheriff or whoever) can’t establish that the person is being properly held.⁹ With this writ alone, the statute put one additional restriction on the local judges: they couldn’t issue a writ of habeas corpus for a person being held on a criminal felony charge. In that case, only the circuit judge could issue the writ.¹⁰

For a law geek like me, this is fun stuff. The ins and outs and quirks of legal history are things I just love.

But for The Legal Genealogist — for all of us as genealogists, it’s solid gold.

First, these writs are among those we see all the time in court records and need to understand. Maybe our ancestors asked to have one of these writs issued. Or, if your family was like mine, maybe one of yours skipped out of town just before the ne exeat could be served to stop him…

Second, for all of us who’ve got a justice of the peace in the family, it’s a wonderful snapshot of the role and the power of the citizen-judges who served so long and so well in early America — and the fear the lawyers and lawmakers in the state capitals had of giving that power, unbridled, to just plain folks.

And, third, for those who have Kentucky ancestors. Oh my. Think about it. There were — as a conservative guess — somewhere around 60 counties in Kentucky when that statute was passed. Another 24 or 25 were created before 1830.¹¹ And every single one of those counties had to choose three of their best, their most experienced justices of the peace to exercise these particular powers, and to replace those justices when they retired or resigned. We’re talking hundreds of men selected by their peers.

Makes you want to go read old court records, doesn’t it? I know darned good and well that one thing I’ll be doing at the Kentucky State Archives today is finding out if the law was still in effect later in the 1800s, when my 2d great granduncle George Fore was a justice of the peace in Pulaski County… and whether his name was ever on such a list.

Well, I mean.. okay, at least when I’m not hunting for the other George’s footprints in Madison County… or Hart… or Knox… or Shelby… or Mason… or…

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