We’re The Government, It’s Our Stuff and We Want It Back! The Issue Of Replevin

A few days ago, when I wrote about the “secret archive” of Major Thomas Thompson Eckert of the War Department’s Telegraph Office being purchased by the Huntington Library, I raised the issue of replevin.

So, what’s this replevin thing all about?

The 19^th century classic legal dictionary – Bouvier’s – defines replevin simply: 

re•plev•in  noun /riˈplevən/  “a form of action which lies to regain possession of personal chattels which have been taken from the plaintiff unlawfully.”

First off, the warning – I’m not a lawyer and I don’t play one on TV.

And even though I’m writing about the principle of replevin, I’m not offering any kind of legal advice, just some book dealer observations and past history.  Besides, the issue of who owns what can be complicated, since things are not always as they seem or as people think they should be.

When it comes to “government” records, replevin can be a very contentious issue, often dividing people of good will.  Frankly, it’s a fact of life that governments often “abandon” stuff made of paper or schedule stuff for destruction.  Then, when, at some future date, it turns out that the stuff might have either financial or historical value – sometimes because the producer or government clerk becomes famous in some way – the government wants its stuff back.  

For example, any number of WPA-produced art prints were left behind in trash barrels and abandoned file cabinets when local WPA offices were closed.   Then, they were just “junk” made of paper and paint.  Now, however . . .

Manuscripts and documents that are presumed to be “records” that have been “alienated” (i.e., stolen or taken improperly) from an “official” government source are often sought after by today’s government officials who seek their return, using the legal principle of replevin.  Private owners are sometimes notified by local, state or federal government officials or lawyers that they are in “illegal” possession of “official” government “records” and are commanded to return them to a specific government official, office or archives.  Often, the presumption of government ownership is based solely upon the fact that IF the documents had been produced today, they would be considered “official” and are therefore the rightful property of some government agency.

Here’s the problem. 

In many cases, there’s no clear indication that the documents were “official records” or ever actually owned by the government in question.  In fact, at the time the records were produced, they may very well have been owned by the person who produced them, not by any government agency.  Were they produced today, it would be a different story altogether, but, when it comes to determining ownership of “government” records, it is important to avoid “presentism” – the erroneous assumption that what is true today was always true in the past.

Let’s look at how that works.

If we want to see the presidential papers of John Fitzgerald Kennedy, we can visit the Kennedy Library in Boston.  Similarly, we can visit the Clinton Presidential Library in Little Rock, Arkansas or the Franklin D. Roosevelt Library in Hyde Park, New York if we want to examine the papers produced by those Presidents during their terms as President of the United States. All of those Presidential Libraries are now under the control and management of the National Archives and Records Administration and therefore the papers therein are “government” property.  Moreover, since the days of Richard M. Nixon and the passage of the Presidential Records Act of 1978, all subsequent “official” Presidential records are government property.

But what about President Ulysses S. Grant’s papers? Or the papers he produced while commanding the Union Army during the Civil War?  Surely, these are government property, right?

Well…no, actually.

Ulysses Grant got to take his presidential papers home with him when he left office, as did all of his predecessors.  Likewise, he took most of his military papers.  There’s no Ulysses Simpson Grant Presidential Library that houses all his paper stuff. His papers are scattered in libraries and archives all over the United States, with the Library of Congress holding the bulk of his papers because they were donated by his family.

In fact, if one of his official “Presidential” letters comes on the market and you want to buy it, go right ahead.  On the other hand, if it’s a Bill Clinton memo that’s officially Presidential – i.e., about official Presidential business to, say, a Cabinet officer- it’s likely to be something else altogether because of the aforementioned Presidential Records Act of 1978.

Similarly, Congresspeople take their papers home when they leave office, as do many state governors.  For years, the New York State Archives has sought legislation requiring New York’s governors to deposit their papers in the State Archives.  When the Legislature passed that legislation several years ago, then-Governor Paterson vetoed it.

Strange to say, elected officials can often take their “official” papers to their backyard rubbish bin and burn ‘em all, if they so desire, unless there is legislation to the contrary.

Elected officials' papers notwithstanding, often determining the actual ownership of a document that may – or may not – be “official” can sometimes take a lawsuit.  Sometimes, the courts rule in favor of the possessor and sometimes in favor of the government. 

A classic case - officially known as United States vs. the First Trust Company of Saint Paul - concerns the diaries of William Clark, co-leader of the 1804 – 1806 Lewis and Clark Expedition, officially known as the “Corps of Discovery Expedition”.  In the 1950s, when these then-privately owned papers were donated to the Missouri Historical Society by the descendant of Civil War General John Henry Hammond, the federal government filed a replevin lawsuit and attempted to claim the papers based upon the logic that they were federal government papers since Clark had been an Indian agent.

The court disagreed, observing that they contained no evidence of being “official” government records. In this particular case, the replevin lawsuit was unsuccessful.

The point of all this is to drive home the idea that things are not always what they seem.  Just because you think it’s a government document doesn’t necessarily mean that it is.  Likewise, just because you bought a government document in good faith on EBay or it's been in your family's possession for half a century doesn’t mean that they (the government) can’t take it back.  For information about the court-ordered return of Davy Crockett's unused marriage license to the Jefferson County TN courthouse, see the ABAJournal article here.

Like I said, this replevin thingie can be a complicated and contentious issue.

The Wired Mr. Lincoln and The Secret Civil War

One of the treasures of the New York State Library’s collection is Abraham Lincoln’s own handwritten first draft of the Emancipation Proclamation. How it got there [hint: it was a gift from Lincoln himself] is a story for another time; today, it’s all about where this draft document was likely written.  

While some say that Lincoln began writing the first draft of this proclamation on a steamboat while returning to Washington after a military tour, David Homer Bates, author of Lincoln In The Telegraph Office: Recollections of the United States Military Telegraph Corps during the Civil War, published in 1907, told a different story. 

He related the story of Major Thomas Thompson Eckert, superintendent of the War Department’s Telegraph Office, who observed that Lincoln came to his office nearly every day and worked at Eckert’s desk in the cipher-room, writing and reading despatches from the war front.  One day, he asked Eckert for a quire of paper and, for several days, labored over the wording of some special document.   

Whenever Lincoln left the cipher-room, he either took the document with him or asked Eckert to lock the document away, knowing that it would be safe from prying eyes in the hands of the man responsible for the military’s secret messages.  After a while, he revealed to Eckert that he was “…writing an order giving freedom to the slaves in the South, for the purpose of hastening the end of the war.”   According to Eckert, that first draft of what was to become known as the Emancipation Proclamation was written with one of the small Gillott barrel-pens that were issued to the telegraph cipher-operators by the War Department.

Thomas T. Eckert himself was a telegraph man before and after the Civil War, having built the first telegraph line on the Fort Wayne railroad in the 1850s and later serving as president and board chairman of Western Union after the war.

During the war, Eckert ran the War Department’s telegraph operation.  At the time the telegraph was a new technology, but was eagerly embraced by President Lincoln and his high command, who found it to be an effective way to speedily communicate in code with the commanders in the field.   

Here’s a photo of Eckert and some of his men in the field from the Library of Congress collection.  Eckert is seated in the chair on the left. Notice the civilian – not military – clothes.  It looks rather like a men’s sports outing or class reunion, not a military operation.

The Telegraph Office handled the war's secrets, all contained in thousands of coded messages.  Messages on wires to Washington from field commanders.  Messages on wires from Washington to the generals. Thousands of messages, most in cipher, transmitted over miles of wires by operators in Morse code.  In other words, secret messages, written in one kind of code and transmitted in yet another kind of code.

For many years, it was assumed that much of this secret telegraphic correspondence had been either lost or destroyed. Turns out, however, that it was not.  Rather, it left Washington with Major Eckert, and when he died in 1910, it stayed with members of his family.

And earlier this week, the folks at the Huntington Library in California announced that they had purchased the entire collection – all 76 volumes of messages and cipher books - for an undisclosed sum. The collection – which hasn’t been seen by historians since the Civil War itself - had been in the possession of Eckert’s descendants for almost a century and had been sold en bloc at auction in 2009.  Seth Kaller, the dealer who purchased it and later offered it for sale stipulated that it would only be sold to an institution, or to a private buyer who would permit “scholarly and public access.”

The Huntington stepped up to the plate and added it to their already massive Civil War manuscript collection.  The opening of this collection to researcher is huge news in the Civil War history field.

You can read the story of the Huntington purchase here in the LA Times story and you can also read the complete catalog description ofthe Eckert collection here on Seth Kaller’s website. 

Naturally, this raises an interesting question or two:  if these documents came from the War Department’s Telegraph Office, aren’t they “public documents” and therefore, shouldn’t they be part of NARA’s collection?

Short answers:  No and no. In fact, NARA declined them.

There’s some information about these questions in the LA Times story, but it will be a good opportunity for me to talk more about the idea of “public documents”, a legal thingie called replevin and just who “owns” what sometime real soon. 

Stay tuned.  There’s more to come. 

Today, however, it’s all about the Eckert Collection going to the Huntington.

When The Good Guys Do The Right Thing, Everyone Comes Out On Top

Every once in a while, things fall into place and the good guys do the right thing.  Then everybody wins.

Yesterday, my copy of The Manuscript Society News (Vol 33, No 1) arrived in the mail.  Among the many interesting articles was librarian Sam Fore’s description of the private and independent Harlan Crow Library in Dallas, Texas, driving home the point that a researcher needs to cast a broad net in search of manuscript material.

For example, while the complete set of autographs from each of the Signers of the Declaration of Independence and each of the sitting Presidents would not be out of place in this kind of collection, the manuscript journal of Georgia delegate William Pierce, Jr. that includes his “character sketches” of all the other delegates to the 1787 Constitutional Convention would no doubt provide a unique insight into the gentlemen who shaped the nation.  Similarly, artist Gilbert Stuart’s own handwritten 1795 list of those who were to receive copies of his portrait of George Washington is interesting in its own right.

Note: this is truly a "private" library, attached to the personal residence of real estate mogul Harlan Crow.  You see photos of the interior here.

Still, back to the “good guys - do the right thing” idea…

On page 21 of the News, a short paragraph related that the Jersey City (NJ) Free Public Library found a manuscript volume from the 18^th century in their collection.  Specifically, it was a transcription of the 1749 – 1755 court records of Stafford County Virginia that had been copied in 1795 by the then- Stafford County deputy court clerk John Fox.  It had been “liberated” from the Virginia courthouse during the Civil War by a captain of the Fourth New York Regiment and brought north, probably as a “war prize.”  Eventually, it came to rest in Jersey City.

In any case, the good folks at the Jersey City Public Library did the right thing and repatriated the volume to Stafford County, Virginia – its rightful owner - after its century and a half vacation in New Jersey.

Why is this important on several levels?

If you do Virginia research, you probably already know that Stafford is one of those “burned” counties where many records were destroyed during the Civil War.  In fact, the Library of Virginia lists Stafford as “almost hopeless” in its online research aid.  So, any time anything gets back to Stafford, it’s good news.

By the way, for those with an interest in manuscripts, documents, autograph collecting and all historic things hand-written, you might want to investigate becoming a member of the Manuscript Society.   

You can learn more by visiting the Society’s website at: www.manuscript.org.