Published: December 5, 2006
“While the precise route by which Civil War-era gubernatorial papers arrived in a shopping bag in Thomas Law Willcox’s stepmother’s closet remains a mystery, it appears the papers have been in the possession of the Law and Willcox families for over 140 years.”
So said an opinion handed down by US Court of Appeals for the Fourth Circuit Judge J. Harvie Wilkinson III on October 27, ending a tug-of-war involving more than 400 Civil War letters that the state of South Carolina had prevented from being sold at auction in August 2004.
“Finders keepers, losers weepers,” summarized an elated Kenneth Krawcheck, the Charleston, S.C., attorney representing the consignor of the documents.
“There are three things I believe the court was trying to make clear in the opinion,” said Krawcheck. “First and foremost, the historic principles of personal property law concerning ownership and possession are not overridden by a theory such as a state records or state documents theory. The second thing I think the case did is lay out the means by which the person out of possession gets to try to prove the title. The third thing the case did, although court didn’t address the issue other than saying it existed and applied, was that even if the state had proven ownership of the documents, that wouldn’t have ended it. Any defenses of their ownership would have then come into play. It’s a little bit like a tennis match.”
Other than making for interesting case law, however, does the recent Fourth Circuit court opinion mean that the presumptive owner Willcox can put the documents back into auction? “Yes,” said Krawcheck, although he explained that he is still waiting to see if there will be further procedural motions in the Fourth Circuit, and there is the potential for an appeal to the US Supreme Court.
Trey Walker, a spokesman for the attorney general’s office, had no comment on recent decision. He said a decision has not been made as to an appeal.
“The greatest case I’ll ever handle,” said Krawcheck.
“I feel good about this, and the owner of the letters told me that he does, too,” concurred Bill Mishoe, the Columbia, S.C., auctioneer who stood dumbfounded and embarrassed in his gallery on August 6, 2004, when representatives of the state marched in and laid claim to the Civil War letters, copies of which he had on public display in preparation for the scheduled sale the next day.
The restraining order slapped on the auctioneer, caused dismay not only for Mishoe and his consignor, but also for a number of collectors who had flown in from all over the United States — Connecticut, Maryland, Ohio, Kentucky, Florida, Georgia, Alabama and other states — to examine the collection that had been valued at up to $2.4 million.
The consignor of the aborted auction, Thomas Law Willcox, found the documents several years ago in a shopping bag inside a closet at his late stepmother’s home. In May 2004, Willcox scheduled an auction for August 7, 2004, and Mishoe advertised the sale nationally, including in Antiques and The Arts Weekly.
The letters in question were from the administrations of Civil War-era South Carolina governors Francis Pickens and Milledge Bonham, and court documents characterized their content as “Confederate military reports, correspondence and telegrams between various Confederate generals, officers, servicemen and government officials, and related materials.”
It has been a tortuous path for Willcox, a resident of Seabrook Island, S.C., since he made his discovery. After the South Carolina attorney general quashed the auction in 2004, Willcox, whose great-great-uncle was Confederate Major General Evander McIver Law, filed for bankruptcy and in January 2006 had his ownership of the documents upheld by US District Judge Patrick Michael Duffy.
Then the attorney general appealed to the federal appeals court in Richmond, which in this most recent development has upheld the federal judge in Charleston and ruled that the letters are indeed the property of Tom Willcox, the man who had inherited them and who had contracted Mishoe to sell them in 2004.
“I think, in light of the current concerns with replevin, that this is a quite significant ruling,” said Mishoe. “Replevin” is an Anglo French legal term describing the means employed by a person to recover goods unlawfully taken out of his or her possession. The state of South Carolina contended that it, too, like a private person, had the right to protect its property rights.
“Our view is that these documents belong to the people of South Carolina,” State Attorney General Henry McMaster told Charleston’s The Post and Courier back in 2004. Because many of the letters in Willcox’s possession either emanated from or were received by the office of South Carolina’s two Civil War-era governors, Pickens (1860–1862) and Bonham (1862–1864), the state contended that they were therefore historical documents belonging to the state.
Among the letters in the South Carolina case were three documents penned by General Robert E. Lee that discussed in detail the state of the Confederate troops and the war effort. “They pertained to the military situation while he was in Charleston. Then 26 from General [Pierre Gustave Toutant] Beauregard, and then two longhand accounts of the battle of Manassas by a colonel and a sergeant major who were in the battle. There were letters from just about everybody that had to do with the war from the South Carolina perspective,” said Mishoe.
The auction house owner said that while he is looking forward to having the auction of these historical documents move forward, he is not lining up the ad space yet. “I’m waiting to let everything run its course,” said Mishoe.
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