State Property or Cultural Property? The Limitations of Replevin as an Interpretive Framework for Disputed Archives

In recent years, the state has evidenced a dedication to preserving our documentary heritage not only by maintaining archival repositories, but also by attempting to remove particularly notable and valuable historical documents from public circulation. North Carolina's efforts to regain its official copy of the Bill of Rights, a downright caper featuring a sting operation directed by the Federal Bureau of Investigation, is perhaps the most notable recent example of the phenomenon (Goss, 2010). In recent decades many such cases have been handled much more quietly, but in initiating suits to pursue contested historical documents and when relying heavily on particular legal strategies for their recovery, the public sector has decisively shaped this debate. The ubiquity of the term "replevin" among relevant parties is one sign of success: in the councils of state archivists, among the professional organizations of both state and academic archivists, and throughout the community of private manuscript collectors, in conference sessions and journal articles, and in informal conversation, "replevin" serves as a pervasive shorthand descriptor of conflicts involving the ownership of public documents. A common law remedy for parties seeking the return of stolen or otherwise unlawfully held property, and largely concerned with proof of title, replevin is the central feature of most individual state laws created to defend the property rights of governments in their official records (Bain, 1983). Replevin's stringent requirements, have, much to the detriment of informed and reasonable dialogue, lent a consistently acrimonious tenor to an otherwise episodic string of conflicts over public records. Relations between state archives and private collectors have only deteriorated in recent years, and at this point it would be helpful to develop alternative approaches to the analysis and mediation of these contests.The Private Market and Archival Preservation in the United StatesRecognizing the priority and influence of the private sector in preserving American archives is a necessary step in beginning to understand the complexities of this issue. American documentary preservation efforts have always been pursued within a mixed economy of public and private activity. At one time or another, either of the two sides might have been said to be dominant. Institutional archives, including government repositories and university special collections, are now the primary actors, but for much of our history governments have been imperfect guardians of the documentary heritage embodied in their inactive records. Only at the turn of the 20th century did state-funded archival institutions emerge as dedicated organizations to protect these records. And for years the state archives were alone; there would be no national archives until the 1930s. In terms of archival preservation, the 19th century belonged almost wholly to the individual collector of historical manuscripts. Private historical societies and private individuals served notably as archival custodians during this period, assembling manuscript collections through auction and catalogue sales, private commerce, and by personally seeking the items out where they were stored. Amidst the private letters they sometimes saved public papers: federal, state, or local government records, which at this time were usually kept in a variety of generally poor, dirty, and fire-prone accommodations. This material was sometimes pilfered, sometimes rescued from officially-sanctioned destruction, from the paper mill or the dump, maybe wheedled from the custody of a public official, or taken home by a public official, or otherwise chanced upon in unexpected ways. In this manner, notable portions of state, local, and federal archives entered the private autograph trade, afterwards lying quietly in wait and only in recent decades emerging as a divisive public policy issue.While the money involved was quite modest until at least the 1910s or 1920s, there existed sufficient competition between private collectors to bring about an increasingly robust private market for some varieties of historical documents. …