Sunday, January 29, 2012

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 19th 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.

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