Rare Book Monthly

Articles - April - 2009 Issue

Collector Bests State in Battle for $475,000 Document

Descision04-09

The Virginia Supreme Court hands down its decision.


Finally, on the issue of conversion, the Court stated that even if the town "owned" the Declaration by virtue of taking possession of it over 200 years ago (a conclusion it neither reached nor rejected), it said that there was no evidence that Holbrook's family ever converted the document. Of course, you could surmise that this, in effect, happened (though not with any bad intentions), since there was no sign that the town ever intentionally gave the document to Holbrook's family. However, the Court compelled the state to provide evidence that this did not happen, and proving a negative is next to impossible. Strike three for Maine.

So, Mr. Adams is greatly relieved, but the bigger question is, what does this mean for all of the other old government documents out there in private hands, that governmental entities may assert claims for in the years ahead? The answer is, this case tells us very little. The Court, as courts are wont to do, decided it upon the narrowest of grounds. The reality is that this is an unusual case. It is rare that you will have this duality, an original copy plus a government mandated hand copy. These unusual circumstances may not arise again, but here they gave the court a justification for saying the original was not a public record. If Massachusetts in 1776 had said only that the ministers must give the document to the Town Clerk, not that he hand copy it, the decision could have been different. Few future cases are likely to involve this same situation.

As for the statutory "public document" argument, the Virginia Court neatly avoided it on a technicality. However, the implication of the lower court ruling is that if states pass statutes that are clearly intended to apply retroactively, they can turn any old once state-owned documents into public records. In other words, states are free to make the changes to their laws necessary to assure that a result like this never happens again. That's of cold comfort to collectors possessing old government documents.

The Court's final ruling, on conversion, was more surprising to me. Given the unusual circumstances here, I thought Maine's best chance was on conversion. After all, with most such old documents now in private hands, no one has any idea how they got there. They might just as likely have been sold by the governmental authority as unlawfully taken, similar to a library sale. Perhaps even more likely, they were just discarded when there was no longer any practical need for them, no one imagining they might some day be of value (like those old exlibris library books). This is why governments have dumpsters and paper shredders. But unlike the typical case, it appears unlikely this document was ever sold or discarded by the town. It was just given to the Town Clerk for safekeeping. He was never told to discard it. It would appear that for all the years it remained with Holbrook and his daughter, its status was one of safekeeping for the town. If so, there seems to me a reasonable argument that this remained undiscarded state property right up until the point Plumstead's estate sold this document it did not own at auction. At that point, the document was unlawfully "converted."

Why did the Court not rule this way? Courts often, I suspect, try to do what's right. We hear a lot about "strict construction" and that judges should just dispassionately follow the law, whatever that might mean. Anyone who believes this is how it works is either naïve or disingenuous. Few like "strict construction" when it finds for the other party. This has the feel of a case where the court decided where the balance of right and wrong lay and reached a decision accordingly. Leaving aside the legal technicalities of whether this was a "public document," or whether the Maine statute could be applied retroactively, or whether the state could not prove the obvious, that the town never did officially discard the document, it is still understandable that the Court would find for Adams. After all, he found himself in this predicament not because of his wrongdoing, or even his carelessness. He ended up there because of the carelessness of the Town of Wiscasset in managing its possessions. It allowed Adams to purchase this item in good faith because for 200 years it displayed little interest or concern with what happened to this material. To penalize Adams to the tune of $475,000 and reward the state for this damaging negligence seems terribly unfair. I suspect the Court saw it that way too, so they ruled for Adams, but in a way that will afford little precedent for future government-collector disputes.

Rare Book Monthly

  • <center><b>Arader Galleries<br>April Auction<br>April 4, 2020</b>
    <b>Arader Galleries, Apr. 4:</b> MITCHELL, John (1711-1768). A Map of the British and French Dominions in North America. Copperplate engraving with original hand color. London, 1755. $250,000 to $350,000.
    <b>Arader Galleries, Apr. 4:</b> AUDUBON, John James (1785 - 1851). Brown Pelican (Standing), Plate 251. Aquatint engraving with original hand color. London, 1827-1838. $175,000 to $225,000.
    <b>Arader Galleries, Apr. 4:</b> AUDUBON, John James (1785 - 1851). Fish Hawk or Osprey, Plate 81. Aquatint engraving with original hand color. London: 1827-1838. $100,000 to $150,000.
    <center><b>Arader Galleries<br>April Auction<br>April 4, 2020</b>
    <b>Arader Galleries, Apr. 4:</b> GONZALES DE MENDOZA, Juan (1545 - 1618). <i>The Historie of the great and mightie kingdome of China…</i> London, 1588. $100,000 to $150,000.
    <b>Arader Galleries, Apr. 4:</b> VERBIEST, Ferdinand (1623-1688). [World Map] Kun-Yu Ch'uan-Tu. Engraved twelve sheet map with vertical sections joined to form six sheets. Korea, Seoul, c. 1860. $100,000 to $150,000.
    <b>Arader Galleries, Apr. 4:</b> SANGGI, Chong (1678-1752). Korean Atlas. Manuscript map on mulberry bark paper. C. 1750-1790. $100,000 to $150,000.
    <center><b>Arader Galleries<br>April Auction<br>April 4, 2020</b>
    <b>Arader Galleries, Apr. 4:</b> AUDUBON, John James (1785 - 1851). Ivory-billed Woodpecker, Plate 66. Aquatint engraving with original hand color. London, 1827-1838. $80,000 to $120,000.
    <b>Arader Galleries, Apr. 4:</b> AKERMAN, Anders (1721-1778). & AKREL, Frederik (1779-1868). Pair of Celestial and Terrestrial Globes. Stockholm, c. 1800. 23 inch diameter, each. $60,000 to $100,000.
    <b>Arader Galleries, Apr. 4:</b> BENNETT, Lieut. William Pyt (d. in action, 1916). AN IMPORTANT AND APPARENTLY UNPUBLISHED SERIES OF GELATIN SILVER PHOTOGRAPHS OF LHASA AND TIBET TAKEN DURING THE CELEBRATED YOUNGHUSBAND MISSION OF 1904. $60,000 to $80,000
  • <b>Swann Auction Galleries:</b> Abraham Lincoln, <i>Emancipation Proclamation by the President of the United States,</i> pamphlet, 1862. $10,000 to $15,000.
    <b>Swann Auction Galleries:</b> Family papers of the distinguished Ruby-Jackson family, Portland, Maine, 1853-1961. $3,000 to $4,000.
    <b>Swann Auction Galleries:</b> Family papers of the Confederate Vice President Alexander Stephens & the persons who served him, 1866-1907. $25,000 to $35,000.
    <b>Swann Auction Galleries:</b> Autograph book with inscriptions by orators Moses Roper & Peter Williams, 1821-54. $10,000 to $15,000.
    <b>Swann Auction Galleries:</b> Archive of letters, postcards, and greeting cards sent by Romare Bearden, 1949-87. $5,000 to $7,500.
    <b>Swann Auction Galleries:</b><br>E. Simms Campbell, <i>A Night-Club Map of Harlem,</i> in inaugural issue of Manhattan, 1933. $10,000 to $15,000.
    <b>Swann Auction Galleries:</b> Papers of the comedian Nipsey Russell, including a letter from MLK, 1929-2000. $6,000 to $9,000.
    <b>Swann Auction Galleries:</b> Early German-American anti-slavery broadside, <i>Sclaven-Handel,</i> Philadelphia, 1794. $12,000 to $18,000.
    <b>Swann Auction Galleries:</b> Edmonia Lewis, prominent sculptor, carte-de-visite by Henry Rocher, c. 1866-71. $3,000 to $4,000.
    <b>Swann Auction Galleries:</b><br><i>The Black Panther: Black Community News Service,</i> 44 issues, San Francisco, 1967-1971. $3,000 to $4,000.
    <b>Swann Auction Galleries:</b> Ernest Withers, <i>I Am A Man, Sanitation Workers Strike,</i> silver print, 1968. $5,000 to $7,500.
    <b>Swann Auction Galleries:</b> <i>March For Freedom Now!,</i> poster for the 1960 Republican Convention. $4,000 to $6,000.

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