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.

Coming Down With Blue Pinky Finger Syndrome

 I’m sorry to say that I do not have any fond memories of learning to write in elementary school.   

Don’t get me wrong – I have memories all right, but none of them are fond.

You see, since I’m left-handed, everything in the educational universe was designed to annoy, disable, thwart or otherwise discombobulate my early attempts at writing neatly.  Everything was all turned around.

First off, there were those little desks – those blonde chair-like things with shiny metal legs, adorned with a small flat surface for books and writing attached to the right-hand side.  We left-handers – especially we the pudgy ones - had to go through all sorts of physical contortions, twisting ourselves in miniature versions of Dr. Frankenstein’s misshapen assistant (“Yes, Master…”) just to write our names in block letters on the tops of our papers.

Then, there was the simple fact that, in the English-speaking world, we tend to write everything from left to right, unless we’re doing some sort of parlor trick, in which case, all bets are off.  Plus, I went to an elementary school that mandated the use of fountain pens – no ball-points permitted.  Believe it or not, ball-point pens were considered “new-fangled” and pencils were not permitted.  So, that means that we lefties always left school at the end of the day with BPF (Blue Pinky Finger) syndrome, looking like some ominous form of digital necrosis had set in.  (In case you haven’t given it much thought, you can take my word for it; it is VERY DIFFICULT to write anything from left to right with your left hand AND a fountain pen without smearing wet ink all over your pinky finger.)

But enough about me and my tribulations; suffice it to say that I’m a lousy penman when it comes to longhand.  I can do it in a pinch, but generally I tend to write in a kind of calligraphic shorthand that few can read.  So, you’d think that I'd jump on the bandwagon of the pedagogically enlightened folks running the schools in Indiana and Hawaii (and, it seems, lots of other states) and cheer the news that kids no longer will have to learn to write cursive.

Well, actually…no.  That’s a Very Bad Idea.

Sure, cursive is hard and old-fashioned. It’s difficult and slow.  Sure, keyboarding skills are probably more important in the 21^st century. And, right, there’s no “standard” as to what constitutes “cursive” that’s universally accepted.  And absolutely – writing in cursive can be sheer agony if you’re a southpaw.

But – and it’s an important “but” – being able to WRITE cursive it the easiest way to learn how to READ cursive.

Imagine a whole generation of Americans unable to easily read the cache of their grandparents’ letters.  Imagine a future researcher going into a county court house and leaving, unable to read the deed transcriptions made in the 1870s?

Can’t happen here, you say?  Well, then talk to folks who do German research and they’ll tell you the difficulty reading the German cursive script known as Suetterlin.  And it’s not just English-speakers – it’s modern young Germans who’ve never had to learn it.

Imagine being cut off from your culture because you are not able to read something written in longhand a century ago?

I’ll take Blue Pinky Finger Syndrome over cultural and historical illiteracy any day!

Season of Memory, Season of Forgetting

Most folks probably think that writing about one’s dead grandmother right before Christmas is somewhat maudlin, but please bear with me and think for a moment about the season of Advent and the Feast of the Immaculate Conception.

For Catholics, the Feast of the Immaculate Conception occurs every single year on the 8^th of December, a little more than two weeks before Christmas and during the liturgical season known as Advent.  Since 1854, it’s been a Holy Day of Obligation, which means, among other things, that Catholics are required to attend Mass.  

In 1956, the Feast of the Immaculate Conception fell on a Saturday.  My widowed grandmother, who had turned 67 a few months before, set off on the two-mile walk to her parish church to attend afternoon Mass.  After Mass was over, she started home.  When she was within sight of her house, she suffered a heart attack.  Her friends and neighbors carried her home and placed her on the living room couch in her sister's house, where she died a few hours later.

I was eleven years old.  My grandmother was my closest non-parental family friend, the family’s memory keeper and my own first genealogical informant, who told me stories about her mother and Irish immigrant grandmother and about my grandfather’s baseball years.

Following a two-day wake in my aunt's living room, my grandmother was buried next to my grandfather about two weeks before Christmas.  There was not much to be merry about that particular year. 

Still, Christmas came and went.  It was different, since it was the very first Christmas at which my grandmother didn’t appear in her widow’s black dress.  In fact, she was the first close relative that I knew personally who had ever died.  I don’t remember much about Christmas that year, only that it was more subdued than usual. We still did the usual Irish Catholic Midnight Mass ritual (I was an altar boy and had to go anyway) and the usual Christmas dinner and gift-giving, but the rest of the day is kind of a blur.

After the holidays were over, the real work set in.  My grandmother’s house needed to be emptied and cleaned.  She owned a duplex house, and rented the other half to one of her younger widowed sisters. My father and his sister negotiated exactly who got what.  He got lots of the cut glass, while she got the jewelry. She got the china, while he got most of my grandfather’s baseball stuff, including his White Sox World Series uniform.  Most of the furniture and the clothes went to charity, except for the player piano, the piano bench and hundreds of player piano rolls, which got sold as a package deal to a friend of my father. Likewise, the Victorian-era oil lamps that had been in my great-grandmother’s house across the street.

Because I was only eleven, I wasn’t part of any of these delicate negotiations.  It was only about six or so years later, after my father had died,  when my mother told me about the diaries that my grandmother had kept, way back in the early years when my grandfather played professional baseball (circa 1910 – 1920).  Diaries that covered the Lowell years, the Chicago White Sox years, the births of her children and much, much more.

The diaries!  Even though I spent lots of time with my grandmother, I never knew that she kept actual diaries. So, where were they and when could I read them?  Did my aunt get them? Were they in the attic?  What secrets would be laid bare in them?

“We burned them all,” my mother said. “because we didn’t think that Annie would want anyone knowing all the personal things that she wrote about.”

So, when I read Cheri Lucas’s post on her blog “Writing Through The Fog” earlier tonight, in which she writes about “…erasing memories and the Facebook timeline…”, I thought of those long-ago diaries.

Ms. Lucas writes, “And because sometimes I just want to erase: to forget in the same way I had wanted to forget everything associated with a past relationship and a hard, confusing breakup.

But my curation of my own history—the deleting of previous status updates, the “featuring” of particular posts—is strange. More so than before, I am able to highlight what is important in my life—or what I want others to view as important—and fill in missing details from today to when I was born…

Imagine if my grandmother had had the opportunity to experience social media like Facebook.  Media that lets you edit and re-form your own past history for the future. Would she have done things differently?  Did she really want all those memories contained in those diaries erased through fire and ashes?  Given the opportunity, would she have edited her diaries? Was she writing for herself or for others long in the future yet unborn and unknown? 

Of course, no one will ever know.

Mnemosyne’s Mirror is about memory:  how we form it, how we record it, how we filter it and how we preserve it. Every now and then, it forces us to look in the mirror and ask ourselves some basic questions.

Who owns family memory?  Who controls it?  Is it really ours for the editing? Most of all, should memory ever  be erased, and, if so, by whom?

Warmest wishes for this holiday season, no matter what December family tradition is meaningful for you.

What a Piece Of Work Is Man???

Sometimes, the things you find accidentally/ serendipitously/ unexpectedly, all while looking for other stuff can be a whole lot more fun than the stuff you set out to find in the first place.   

Here’s an example, followed by a comment.

While searching the October 1896 edition of The Medical Brief  (see above) for something else entirely, I came across the following – written for the journal by a doc in Kentucky:

Man

Man that is born of woman is of few days and full of microbes.

He cometh forth like a flower, but is soon wilted by the winds of adversity and scorched by flames of perplexity.

Sorrow and headache follow him all the days of his life.

He hoppeth from his bed in the morning and his foot is pierced by the cruel tack of disappointment.

He ploddeth forth to his daily toil and his cuticle is punctured by the malignant nettles of exhaustion.

He sitteth himself down to rest at noonday, and is lacerated in his nether anatomy by the pin of disaster.

He walketh through the streets of the city in the pride and glory of his manhood, and slippeth on the banana peel of misfortune and unjointeth his neck.

He smoketh the cigar of contentment but, lo! It explodeth with a loud noise, for it was loaded.

Behold he glideth down the banister of life and findeth it strewn with splinters of torture.

He is stung by the mosquitoes of annoyance by day and his frame is gnawed by the bedbugs of affliction by night.

What is man but the blind worm of fate, seeing that his days are numbered by cycles of pain and his years by seasons of mourning.

Behold he is impaled upon the hook of desolation, and is swallowed up by death in the fathomless ocean of time and is remembered no more.

In his infancy he runneth over with worms and colic, and in his old age he groaneth with rheumatism and ingrowing toe-nails.

He marryeth a cross-eyed woman because her father hath a bank account, and findeth that she is ridden with hysteria and believeth in witches.

His father-in-law then monkeyeth with stocks and goeth under.

What is man but a carbuncle on the neck of existence? Yea, but a tumor on the back of fate.

He playeth at the races and staketh his substance on the brown mare because he hath received a tip. The sorrel gelding with a bald face winneth by a neck.

Behold he runneth for office and the dead beat pulleth him ever and anon and then voteth against him.

He exalteth himself among the people and swelleth with pride, but when the votes are counted he findeth that he was not in it.

He boasteth of his strength in Israel, but is beaten by a bald-headed man from Taller Creek.

He goeth to the post office to glance at the latest papers, and receiveth a dun from the doctor for his last year's attentions.

He goeth forth to breathe the fresh air and to meditate on the treachery of all earthly things, and is accosted by a bank cashier with a sight draft for $127.39.

A political enemy lieth in wait for him at the market place and walketh around him crowing like unto a cock.

He trusteth in a man who claimeth to be filled with righteousness and standeth high in the synagogue, and gets done up.

For behold his pious friend is full of guile and runneth over with deception.

From the cradle to the grave man giveth his alms to him that smiteth him.

His seed multiplyeth around him and cryeth for bread, and if his sons come to honor he knoweth it not.

Fate prevaileth ever against him.

What is man but a painful wart on the heel of time.

John Collins, M. D. RockHouse, Ky.

So, just who was this “John Collins, M.D.?”  Being a genealogist, I needed to know, so it was off to the census and a few other quickie online sources.

Aside from being a physician taken with the cadence of his King James Bible, Dr. Collins was a farmer – doctor.

The 1900 US Census shows that John Collins, age 36, physician, lived on a farm in Magisterial District 3 – Rock House in Letcher County, Kentucky, along with his wife of 13 years,  Polly, age 33, and their three children Ada, 12, Arthur, 11, and Bruce, 7.

In 1901, Dr. Collins was secretary to the Letcher County Board of Health.  Lest you think he spent his days in quiet reflection as a country doctor, writing humorous poetry and attending to the occasional sick person, Marcus Welby-like, his July 16^th, 1901 letter to the Kentucky State Board of Health will likely disabuse you of that notion.

While discussing the successful containment of an outbreak of five cases of smallpox, he noted:

“Our chief difficulties in stamping out the disease were: These cases occurred in a district where a bitter feud was raging, and our doctors were loath to visit the district; but the people near, on first intimation of the trouble, instituted prompt means for confining and limiting the disease.”

The feud – known as the Wright – Reynolds Feud – was the conflict referenced above. 

I guess it’s hard to think about smallpox containment when members of your potential patients’ families are shooting at each other…

WASPitude

Okay, I love this stuff.  

Actually, I just finished laughing out loud, which is not something I do very much while I’m reading articles online.  So, what was it that turned me into a chortling, snorting, quivering ball of…?

Well, it all started with a short Atlantic article by Eric Randall on exactly which wedding announcements make it into the coveted weekend edition of the Sunday New York Times.   Now, of course, to even care about this topic it helps if you’re looking in the Times for someone in your immediate family or a close family friend who’s been recently married (I’m not) OR you’re addicted to reading these kinds of things generally (again, I’m not)  OR you’re a sociologist, cultural anthropologist, or practicing genealogist (okay, kinda guilty here.)

So, who gets chosen? 

Actually, rather than me telling you how things seem to be, why not read the Randall article for yourself?  Here’s the click-through to the article itself.  

Buried in the article there’s a hyperlink to another article by Katie Baker that gives the actual metrics that you may want to use to increase your offspring’s odds of getting in the NYT "Weddings/ Celebrations" section someday.  Think easy-to-understand statistics.

Now, if you’ve never read Katie Baker’s brilliant treatise that appeared last July called “Matrimonial Moneyball”, here’s the actual link.  

Ms. Baker writes (albeit usually about sports) for Grantland, a sports and pop culture site that is likely not on the current reading list of most genie types, but when it comes to the stuff that is the “meat and potatoes” for those of us who are, she’s certainly nailed it here.  After you finish reading this, if you go to the Grantland homepage and click on her picture, you’ll get a list of her other columns.  The ones on the NYT Weddings section (there are several) are well worth perusing.

For genealogists who live and breathe in hopes of finding lots of good stuff about ancestral weddings in long-ago newspapers, this is a great read.

Who knew how easy it was to game the system? 

Of course, once you know the rules, you can practically guarantee a NYT “Weddings/Celebration” section mention for your offspring/descendants.

(Think “Yale/lawyer-banker/gay/Greenwich, CT/Founding Father-entrepreneur ancestor”)

And, by the way, the Grantland website is named for the great sportswriter Grantland Rice, who wrote some nice things about my grandfather when he was pitching for the Chicago White Sox back in the day...