Thwarted South Carolina Auction Consignor Regains Rights To Civil War Letters

CHARLESTON, S.C.

:In a tug-of-war involving more than 400 Civil War letters that the state of South Carolina prevented from being sold at auction in August 2004, the consignor of the aborted auction recently had his ownership of the documents upheld by a US district court.

US District Judge Patrick Michael Duffy ruled on January 12 that Thomas Willcox, a resident of Seabrook Island, S.C., indeed owns the letters that have been in his family for decades. South Carolina had contended that the letters were public documents and therefore property of the state.

The man in the middle of this tug-of-war, Columbia, S.C., auctioneer Bill Mishoe, stood dumbfounded in his gallery back 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. When the authorities slapped a restraining order on the auctioneer, they 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.

Mishoe was able to contact some of the collectors before they departed from their homes, but others could not be reached. "I had one guy fly in from Ohio, others drove in from Florida, Tennessee, Virginia and North Carolina," said Mishoe. "One New Yorker had to cancel plane reservations the morning of the auction."

The state also filed an injunction and lawsuit at the same time against the auctioneer and Kenneth Krawcheck, the attorney representing the consignor of the documents. Krawcheck said the action caused his client to file for bankruptcy, and it was a bankruptcy court in August 2005 that initially ruled that the letters were not to be considered part of Willcox's estate but belonged to the state.

The contested Civil War letters auction are emblematic of an expanding battlefield over what is sometimes referred to as "replevin," an Anglo French legal term describing the legal means employed by a person to recover goods unlawfully taken out of his or her possession. The state government contends that it, too, like a private person, has 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. "We don't believe there is a statute of limitations on something involving title. Common Law says documents generated by government or to the government are official state documents."

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, Francis Pickens (1860-1862) and Milledge Bonham (1862-1864), the state contended that they were therefore historical documents belonging to the state.

"Executive records are not government property," argues Krawcheck. "Where are [George] Washington's? What about presidential libraries? Historically, these have been treated differently."

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 long-hand 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.

South Carolina was following a precedent that had been set by North Carolina when it successfully laid claim to a copy of The Bill of Rights that it asserted had been stolen from the state more than 130 years ago. That document was reportedly sold by a Union soldier in 1866 to a Troy, Ohio, buyer, whose family sold it to a Connecticut antiques dealer in 2000 for $200,000.

But Krawcheck maintains that there is a big difference between the North Carolina and South Carolina examples. "The North Carolina documents were pretty clearly stolen," he said. "In this case it's clear that they [the documents] were given to General Law."

According to the court order, while the exact circumstances of how General Law came to posses the documents is unclear, it is likely that he was involved in the evacuation of Columbia in February 1865 in preparation for an imminent attack on the city by Union General William T. Sherman. "There is no evidence that General Law illegally obtained possession of the documents," wrote US District Judge Duffy in his order.

The biggest factor going for his client, however, said Krawcheck, is that "too much time has gone by," more than 140 years. "The state could have done something before. In fact, in the late 1940s it had an opportunity to acquire the documents."

Maintaining that the state had failed to prove that the letters were public documents when they were produced, Judge Duffy in his order wrote, "While the court understands and sympathizes with the state's admirable desire to preserve and make accessible documents relevant to South Carolina history, such an interest cannot supersede an individual's rights in his personal property. The state, as well as any other private collector, may obtain these documents by purchasing them from the appellant for a competitive price."

For Willcox and Mishoe, that the latest tug has gone their way is promising, as the auction may ultimately be rescheduled. "Needless to say, we're excited about this turn of events, but we'll just wait patiently to let everything run it's course," said Mishoe. "I think many collectors are interested in seeing what the resolution of this case will be."

Trey Walker, a spokesman for the attorney general's office confirmed that the state intends to file an appeal of the most recent ruling to the 4th US Court of Appeals. "We disagree with the [district court] judge's opinion," said Walker. "The bankruptcy judge was correct, the district court judge was incorrect and we will point this out to the 4th Court of Appeals." Walker said the appeal had not yet been filed, but likely would be within the next 30 days.

Meanwhile, after nearly a century and a half, the letters wait patiently in the vault, where, according Krawcheck, they have been placed for safekeeping during the whole affair.