Collector Bests State in Battle for $475,000 Document
A similar old copy of the Declaration of Independence.
By Michael Stillman
In a major case pitting a collector against a state for ownership of old documents, victory has gone to the collector. Richard L. Adams of Virginia prevailed over the State of Maine in the Virginia Supreme Court for a copy of the Declaration of Independence he purchased for $475,000. It was certainly a major victory for Mr. Adams personally, but collectors owning potentially challengeable old government documents should not yet send out a collective sigh of relief. There could be less to this decision than meets the eye.
Here is a brief history of this long case, over 200 years in the making. In 1776, authorities in the State of Massachusetts authorized a private printer to print 250 copies of a radical document recently approved in Philadelphia - the Declaration of Independence. The order provided that these printings of the Declaration be read from the pulpits of local churches, and then handed over to the Town Clerk to transcribe into that town's official records. Nothing was said about what should happen to these printings after they were transcribed into the record.
The copy in question was read in the pulpits, and turned over to the Town Clerk of Pownalborough, Massachusetts (which is today the town of Wiscasset, Maine). On November 10, 1776, Town Clerk Edmund Bridge copied the Declaration on the town's records as required, and then did something with the original document. What he did with it is not certain. As the court noted, there is no definite sighting again for 219 years, when it was put up for auction in the sale of the estate of Anna Plumstead of Wiscasset. However, it is not all that hard to surmise what happened.
Some writing on the back of the document indicates it stayed with the town for at least a short while, and then the written evidence goes blank. However, Anna Plumstead was the daughter of Town Clerk Solomon Holbrook. Holbrook attained that position in the 1880s, and held it until he died in 1929. In this era, small New England towns did not have much in the way of government offices, so town clerks kept public documents at home. It would certainly be reasonable to believe that this item, and other old town documents found in Plumstead's house, arrived there via her father, either being transferred to her house for storage during Holbrook's life or after he died. Holbrook had at one time owned his daughter's house, though he never lived there.
In 1995, the Declaration was sold at a public auction of Plumstead's estate. It was purchased by Seth Kaller of Kaller Historical Documents for $77,000. In 2001, Kaller sold it to London bookseller Simon Finch for $390,000, who in turn sold it to Adams in 2002 for $475,000. Had the decision gone the other way, Adams could have been out as much as the full $475,000, depending on whether he could have collected any reimbursements from those who preceded him in the chain.
In reaching its decision, the Virginia Supreme Court noted first that possession presumes ownership. In other words, it is up to the party not possessing the item, in this case Maine, to show that it is the true owner, not the other way around. On the other hand, it also noted that public records belong to the government, a point favoring Maine. Then it proceeded to evaluate Maine's three arguments. The first two dealt with public records, and the third with simple conversion, or unlawful taking.
The first "public record" argument relied on the common law position that public records belong to the government. However, the standard common law definition describes a "public record" as one written by a public officer. This Declaration was not written by the Town Clerk, but printed by a private citizen. Therefore, the Court concluded, the only "public record" was the copying of this document by Town Clerk Bridge in the public register in 1776, not this printed original. Score one for collector Adams.
Next, the Court looked at the argument that this constitutes a "public record" under a statutory definition adopted by Maine in 1973. The lower court had ruled against Maine here on the grounds that the state had not produced evidence that this statute was intended to apply the definition retroactively to pre-1973 records. The Supreme Court then rejected Maine's appeal on this issue on a technicality, saying the state did not properly challenge this finding and so it would not reconsider the argument. Score two for Adams.
Collector Bests State in Battle for $475,000 Document
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.