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Thursday, Aug. 21, 2014 12:01 am

Missing history

When historical documents disappear from courthouses


 

As a supervisor in the department of state archives for the secretary of state’s office, Karl Moore makes a living by preserving records from courts and government offices throughout Illinois. His doesn’t have property records from Menard County for years prior to 1841, including two assessor’s books from 1839.

Would he like to have them?

“Yes,” Moore answers.

He wasn’t aware that assessor’s books that contain names of property owners including Abraham Lincoln are in the vault at the Abraham Lincoln Presidential Library and Museum.

“I would like to at least microfilm (them),” Moore says. “I don’t know how they may have gotten separated from the county. That does happen. I’ll talk to somebody over there.”

The assessor’s books aren’t actually owned by the museum. Rather, they are part of a collection of Lincoln artifacts known as the Taper Collection that the museum’s private fundraising foundation purchased in 2007 from Louise Taper, a California collector who sits on the foundation board but did not vote on the acquisition. Until the acquisition debt is paid, the book and dozens of other manuscripts belong to the foundation and are collateral for a bank loan, with the principal standing at more than $10 million. When the debt is retired, the documents are supposed to be titled to the presidential museum.

State law says that public records are supposed to be the property of the public, and the archives division of the secretary of state’s office can, and has, forced return of documents that have fallen into private hands. In the case of the assessor’s book, it would be up to Menard County to take action, says David Joens, state archivist. Joens, however, says he is comfortable with where the book now sits and expects to get a copy from the ALPLM. The important thing, he says, is that the book is safe, properly preserved and accessible to the public so that researchers and others can see and use it.

“There’s a difference between the Abraham Lincoln Presidential Library and Museum and the private sector,” Joens says.

That the assessor’s books were – and technically still are – privately owned, with the presidential library foundation holding “all rights and permissions” according to ALPLM, “is an interesting case,” Joens says. And they aren’t the only Taper documents held by ALPLM that appear to come from public courthouses.

Taken by ‘private hands’
The Taper Collection includes a 260-page DeWitt County court docket spanning the period between 1855 and 1860 and a Jacksonville poll book in which election judges certify the results of an election to determine who should sit in the Electoral College for the presidential election held that year (Lincoln got 155 votes). There are scores of what appear to be original court documents, including motions to quash indictments, affidavits and records bearing the signatures of lawyers for opposing parties as well as public officials.

One highlight is an 1839 document memorializing a continuance in a Schuyler County Circuit Court lawsuit that would be pedestrian save for the signatures of the two lawyers: Lincoln, who represented the plaintiff, and Stephen A. Douglas, who argued for the defendant and went on to face the Great Emancipator in a storied series of debates that catapulted Douglas to the U.S. Senate and Lincoln to the White House. It is the only known document signed by both men, who faced each other in the 1860 presidential election.

Such treasures can be worth a small mint. Consider the market for Lincoln documents on eBay, where a seller is asking $45,000 for a four-page Christian County court petition filed in 1844 in which the future president asks a judge to approve a division of land.

After reviewing digitized copies of documents in the Taper Collection that have been posted on the ALPLM website, one expert concluded that as many as three dozen of the manuscripts could be public records from courthouses.

“What’s worse, these all seem to come from different counties, so it’s not just a situation where a person threw out a bunch of court records that were flooded or moldy in, say, Sangamon County,” says Travis McDade, curator of rare books at the University of Illinois School of Law library who has written two books on thefts of rare books and examined digitized documents in the Taper Collection at the request of Illinois Times. “These have all the hallmarks of having been quite deliberately taken at some point. … I hope that these things legitimately belong where they belong. I hope there is a reason why these can be in private hands. I just can’t think of any reason why they would be.”

How did legal documents apparently filed in public courthouses end up in private hands? In some cases, no one knows.

Provenance questions
“As a general rule of dealing with documents from that period, a lot of these records aren’t going to have a rock-solid chain of provenance from the 1860s, when they may have been removed, until today,” says Daniel Stowell, director of the Papers of Abraham Lincoln project that is digitizing Lincoln documents at the ALPLM. “I think that the question of provenance, it’s an important one, and we certainly try to document provenance to the extent that we can. But there are things that are lost to history, unfortunately. We just don’t know where (some) things came from.”

Just because a record came from a courthouse doesn’t necessarily make private ownership nefarious, says Stowell, who says that William Herndon, Lincoln’s former law partner, gave away legal documents after Lincoln’s assassination.

“He would go to courthouses and with the full knowledge of the clerk who he knew personally, would go and look through case files and find a document that Lincoln had written and send it out to a friend or even a stranger who had requested a Lincoln document,” Stowell says.

The concept of what constitutes a public record is evolving, says Stowell, who says that 1961, when the Illinois General Assembly passed the Local Records Act that spells out proper procedures for disposal of records, is a key year. Prior to that date, he says, records could be removed from courthouses without a crime being committed.

“I would say that the vast majority of Lincoln documents in circulation…were probably acquired well before the 1961 act, so there was nothing illegal about it,” Stowell says.

Then again, no one can be sure exactly when court records were removed from public files. Thefts have been documented as recently as 1998, when a researcher with Stowell’s team was sentenced to prison for stealing hundreds of Lincoln-era documents from county courthouses and selling them for tens of thousands of dollars. Nearly 600 were recovered by the state.

Joens, the state archivist, isn’t sure that it was ever OK to take legal filings out of courthouses.

“I’ll leave that up to the lawyers,” Joens says. “We’d say, if it’s a government record and we can prove it, it’s ours.”

McDade, the author and library curator, takes a simple approach.

“I can’t think of a legitimate reason why a court document – a public document – would ever be up for sale,” says McDade, who holds a law degree. “People should not be paying any dollars for them. They should be in courthouses where they belong or in the state archives.”

The passage of time, McDade says, makes no difference.

“People often think that time cures all the ills,” McDade says. “Even if you had this thing for 100 years, it’s not yours.”

Provenance – irrefutable proof of a manuscript’s origins and documentation that it has not been stolen – is key, according to McDade. If a person or institution has a document that appears to be a public record, he says, they should be able to show how it passed from public to private hands.

“That’s exactly why provenance exists: to ensure authenticity and to ensure that these things weren’t stolen,” McDade says. “A lot of people who buy these things, they don’t know and they don’t want to know. Whoever the rich collector is, those people almost never have any interaction with people who took the documents.”

The Abraham Lincoln Presidential Library and Museum, which holds dozens of records that appear to be court documents, says that establishing provenance can be difficult.

 

Documents bought and sold

The Council of State Archivists that includes keepers of public records from throughout the nation says that trading in historic documents with roots in government can be risky.

“The Council of State Archivists has noted with concern the frequency with which state and local government records are offered for sale,” the group says on its website. “While each state has its own laws and regulations governing the sale of official government records, most prohibit such sales.”

In North Carolina, which has a reputation for seeking return of government records in private hands, state archivist Sarah Koonts says that a public record is fair game for retrieval even if it wasn’t stolen. The state has successfully repossessed a copy of the Bill of Rights looted in the waning days of the Civil War as well as criminal indictments from the 18th century that had somehow fallen out of public custody and were offered for sale in 1975. The state sued to reclaim the indictments, and in a landmark ruling, the North Carolina Supreme Court decided that the state was the rightful owner even though no one could show whether the documents were stolen, given away or left in a trash heap by someone cleaning out a courthouse basement.

“Whether it’s negligence by a court official, malfeasance or it was stolen, it doesn’t matter how it got estranged,” Koonts says. “If it was, indeed, a government record and we can demonstrate that it was a government record, we’re going to get it back.”

Such a stance scares manuscript collectors who fear confiscation by the government.

The Manuscript Society, a group of private collectors, has established a fund akin to a legal defense fund to help collectors fight attempts by authorities to claim documents.

“I have been warned by an archivist that some of his brethren considered collectors, as represented by the Manuscript Society, to be the devil incarnate,” writes Beverly Hill, a document dealer, in a recent edition of the group’s quarterly journal. “Moreover, that some archivists viewed the question of ownership in shades of black and white and that no gray area was admitted.”

The trade of court documents associated with Lincoln isn’t a simple issue, says Daniel Weinberg, proprietor of the Abraham Lincoln Book Shop in Chicago.

“There is a huge amount of Lincoln legal documents that were once in courtrooms around the state and are now in private hands,” Weinberg says. “Things are thrown away, they’re given out because they’re not thought to be worth much, they were sold by clerks. All sorts of things happened that were not fraudulent, that were not theft, but were not maybe correctly given out. But they were done. … It’s such a difficult proposition. I understand the public’s need to own things that were once theirs. On the other hand, things are out there that we don’t know how they got out there.”

In most cases, Weinberg says, the government isn’t seeking return of records, which isn’t necessarily a bad thing. A laissez faire approach encourages document collectors to share their treasures with archivists so that the public can have copies of records that would otherwise be squirreled away, he says.

“I don’t have any (Lincoln court documents) right now,” Weinberg said. “I’ve had them before, I’ll have them again. All of them came out of courthouses. I’ve dealt with them as much as any other dealer – I don’t hide and say ‘No, I don’t have them.’”

It’s just not fair
Moore, the supervisor in the state archives office, acknowledges that he doesn’t always play hardball when he comes across records he suspects should not be privately owned. He recalls records from an almshouse that he believed might not have properly belonged to the private historical society that possessed them. Instead of demanding that the records be handed over to the state, Moore says that he offered to create an index if the group would allow him to make copies of the records, which remained in private custody.

“I’ve had to make bargains,” Moore says. “You may be compromising certain purist principles.”

In New Jersey, Joseph Klett, the state’s archives director, says the law doesn’t give him discretion: He is obligated to seek return of public records that have fallen into private hands.

“It’s not like I look forward to doing this – it’s a pain in the neck,” Klett says. “It can be stressful, because people get very upset about this. They bought something and they consider it to be an investment.”

And it doesn’t matter whether files left courthouses with the blessing of recordkeepers, Klett says.

“If you’re my best buddy and I’m giving you a tour of the archives and I like you so much I’m going to give you a copy of the Bill of Rights, that doesn’t mean you get to keep it when my successor finds out I gave it to you,” Klett says.

Not surprisingly, Klett isn’t popular among collectors of historic documents.

“You have people who would rather shred a valuable document than give it back to a state – or send it to Japan,” says Scott Petersen, a Chicago attorney and former president of the Manuscript Society that has sparred with archivists over document ownership issues. “Look at the overarching question: What is the most important thing? It’s the historical record. It’s not having the original. Having the original document is interesting to collectors and dealers and to some institutions. Having a copy to complete the public record is so much more important.”

In Virginia, the state sometimes purchases public records that have fallen into private hands. The law isn’t always on the institution’s side, says John Metz, director of archives, records and collection services for the Library of Virginia.

“You really have to have hard proof that these documents were somehow unlawfully removed from a courthouse or lawful repository,” Metz said. “We absolutely want them back. We have limited funds. We don’t advertise that we buy these things, but we negotiate. … If we do have to pay to get them back, we typically don’t pay top dollar.”

Virginia’s efforts occasionally backfire. Metz recalls the case of someone in the Midwest who was offering Virginia court documents on eBay. The state, believing it had a case for repossessing the records, got in touch via email and tried a gentle approach, Metz said.

“We were just beginning to talk to him and explain what he had and encourage him to think about (returning them),” Metz recalls. “He freaked out on us. … He basically said, ‘I don’t believe in the rights (of government to reclaim these). You’ll drive me underground. I’ll sell it somewhere else.’ And he did. … At least once every couple of years, we’ll drive a collection underground.”

So far as Petersen, the Chicago attorney and former head of the Manuscript Society, is concerned, a government seeking return of documents should have to prove that they were stolen or otherwise illicitly left public ownership. He recalls a case in Virginia, when the state lost a lawsuit aimed at forcing return of historical documents from a book dealer, who sued after records were seized. Upon the dealer’s courtroom victory, the Manuscript Society ran an article in its quarterly publication headlined Sic Semper Tyrannis – the Virginia state motto, as well as the words of John Wilkes Booth after he shot Lincoln: thus always to tyrants.

“My feeling is, you show something has been stolen, whenever it was – if it was stolen, misappropriated – I’m the first one standing in line to help get it back,” Petersen says. “I think a lot of these states that suddenly wake up and decide to repatriate documents – manuscripts that have been in the public eye for 100 years, bought and sold, advertised, written about – I think it’s outrageous. I think it’s kind of like Eddie Haskell trying to kick Beaver in the teeth.

“It’s just not fair.”

Contact Bruce Rushton at brushton@illinoistimes.com.

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