n.a legal action to recover property, including public records, that has been improperly or illegally taken from the owning or custodial entityNorton 1945, 8Another legal aspect of archives is the power of replevin. All governments have laws permitting the seizure of public records found in private hands.O’Neill 1979, 26However, when the property involved consists of manuscripts with significant historical or monetary value, and certainly when such an action is brought by a government, replevin can become a matter of concern for librarians and archivists.Bain 1983, 162REPLEVIN. The statutes or code gives the state authority for legally recovering a public record unlawfully out of the public custody.Peterson and Peterson 1985, 91Replevin is an action to recover personal property taken . . . An archives would have an action in replevin if a document was taken from the archives and the archives sued for its return.Peterson and Peterson 1985, 91In order to recover in a replevin action, the plaintiff must prove title in himself; he must recover on the strength of his title and right to possession of the document rather than on the weakness of his opponent’s title and right to possession.Behrnd-Klodt 2008, 168Replevin is a type of legal action employed to recover personal property from one who has taken it wrongfully or who holds it unlawfully.Behrnd-Klodt 2008, 168The process [of replevin] is used most frequently by individuals to recover personal property; however, interest in and increased awareness of the value of historical records has encouraged state and federal public archives and government agencies to use replevin when applicable to recover missing public records.CSA 2010California’s Replevin Law (Gov’t. Code Section 6204) enables state and local government agencies to recover public records that are “in the possession of a person, organization, or institution not authorized by law to possess that record” and authorizes the State Archivist and Secretary of State to take specified actions to recover records. “Replevin” means an action for recovering goods wrongfully taken or detained.Danielson 2010, 256The archives will need to assert ownership over records illegally removed from its holdings. Replevin actions, as they are known, can be contentious.Caswell 2011, 225–226While the Conventions clearly prohibit the export of archives during war and outline guidelines for replevin, in reality, occupying forces customarily seize and keep records for political and humanitarian reasons. Other scholars have noted how, while legal guidelines for replevin are well established, in reality, these property rights, as applied to cultural property, are rarely enforced on an international level, as the ongoing controversy surrounding the Elgin Marbles attests. In other examples of replevin, such as the records seized from Nazis by Allied forces during World War II, the efforts at repatriation are ongoing, incomplete, and mired in politics.Dow 2012, 60A replevin action occurs when the plaintiff claims that the accused unjustly holds something that belongs to the plaintiff, and the plaintiff wants it back. The accused may have come to hold it in many different ways. Perhaps the plaintiff loaned it to the accused for a set period of time, and that time has gone by. Perhaps the plaintiff lost it, and the accused found it and will not return it. Perhaps someone stole it and gave it or sold it to the accused. Replevin does not imply guilt of any wrong-doing beyond holding property that the plaintiff wants back.Montgomery 2015, 291It [UNESCO’s Division of the General Information Programme] defined “imprescriptibility” as meaning that the sovereign state has the perpetual right of replevin or return over its public documents, which are inalienable.Speer 2016, 145The case covered in this paper, concerning the state of Georgia’s 1927 attempt to secure the will of Joseph Stanly, points out a particular complication of replevin: the difficulty of proving title when archivists cannot conclusively demonstrate previous custody of a record.Speer 2016, 145–146The precedent for such laws extends back to an 1836 New Hampshire law, but state governments have only adopted archival replevin statutes sporadically over the course of the twentieth century and beyond; presently 31 states have replevin laws designed for the use of state archives. Generally these laws empower the state, usually in the person of the attorney general, to demand custody of public records in private ownership prior to a legal process for determining proper custody, to a replevin action proper.Stoykovich 2017a, 153Still, Lieber took seriously the act of saving 499 boxes and barrels of the enemy’s records, as well as the possibility for replevin. He presided over the return of some Southern records to their original owners, as when he transferred North Carolina court records to the U.S. Attorney General, who was then free to return prewar books and documents to the agent of the governor of North Carolina.
