McKinney suggested that dealers and collectors would do well to familiarize themselves with the laws relating to "right of replevin.”
Replevin is the legal term which covers recovery of property and deciding who owns what in disputed cases.
Though space here does not allow an adequate discussion of this subject, if you deal or collect things that may once have belonged to a public entity you want know more about replevin.
Under some laws and in some jurisdictions the mere assertion that the item in question was once, even hundreds of years and many owners ago, a public document, is enough for the court to rule in favor of its return.
How the case of the rare Hawaiiana will turn out remains to be seen. As a dealer I wouldn’t touch it or tell my clients about it until I’m positive it is really the seller’s property to sell.
We all know we’re living in a time of transition. What I’ve learned is librarians and archivists are often the worst judges of value and also their procedures for de-acessioning can give you nightmares (See article – De-Acessioning by Dumpster in this month's issue of AE Monthly). Now and in the past items of value were thrown out or given away. When it turns out later the material is rare and valuable, all parties want a piece of the action. The stories can change considerably depending on who is telling the tale.
Beware, you -- the dealer or collector -- can find yourself caught in the middle.
As McKinney suggested I took the time to Google replevin.
Here are a few links that cover the subject from the point of view of the archives and libraries and also from the side of the dealers and collectors.
Though some of these links mention work that is clearly stolen or misappropriated, read it to understand how these situations develop, escalate and play out in the courts.
A 2004 issue of Railsplitter, a journal for collectors of Lincoln material that examines the issue of replevin from the point of view of the auction house, the collector and the public archive. Probably the most balanced account I found of the hazards involved in acquiring historical documents which once came from a public source. Only part of the newsletter relates to replevin.
Article in Maine Antique Digest c. 2008 about colonial era documents about to be auctioned that were claimed by New Hampshire as “public documents”.
Review of a 1987 court case concerning ownership of an extensive library of Judaica – did it belong to the religious community or to the heirs of the rabbi?
Duke Law Journal 2001, deals primarily with stolen art and good faith purchasers, but contains much information that dealers and collectors of historic material will find relevant.
Art Attack 2006 – Also deals with litigation arising from stolen art and describes situations of interest to those who deal in antiquarian materials of all kinds.
Archivists, Collectors, Dealers, and Replevin: Case Studies on Private Ownership of Public Documents. This is a hard cover new book published in 2012 listed on Amazon. The listing allows access to sample pages and chapter headings. www.amazon.com/Archivists-Collectors-Dealers-Replevin-Ownership/dp/0810883775.
A 30-page paper c. 2010 on replevin law from an archivist point of view
Archives & Manuscripts: Law – A 112-page manual published in 1985 by the Society of American Archivists. This a very big pdf file, a small portion deals with replevin. Though the content is somewhat dated, it is still of general interest.
AE writer Susan Halas can be reached at firstname.lastname@example.org