Some three decades ago I was dragged off to Disney World by my five-year-old daughter,
who wanted to sample the delights of the Magic Kingdom; even more pressing was my wife’s interest in underwater archeology. And so it was that I found myself wandering through the underwater treasure museum at Cape Canaveral, fascinated by the objects fetched from the sea and restored to their original golden grandeur by modern scientific preservation techniques. Those Spanish colonial officials really knew how to live, although I must admit that their finery is a bit gaudy for my taste.

Among the most intriguing artifacts were the gold doubloons, recovered from the broken hulks of Spanish treasures ships. Yet they could just as easily have been washed up on the beach by violent storms, to lie there until, after being buried in the sand they were discovered by a beach comber or a treasure hunter equipped with metal detecting equipment. The thing about doubloons on the beach is that they can be found only by those who know their appearance–individuals who recognize the hidden gold coin under the incrustations of coral, sea-salt, and sand.

It struck me that legal historians are beachcombers by another name, and that at the earliest stages of my career I had spent a great deal of time searching out the doubloons of American colonial legal history. Those doubloons are ancient documents that can escape detection as easily as the scruffy looking rocks that conceal golden Spanish doubloons. Now I was not a natural at treasure hunting or finding colonial documents, but early influences and scholarly necessity drove me into this activity.

During my career as a night session student at New York Law School, I met Professor Paul M. Hamlin, who at the time was badly crippled by arthritis, which had terminated his active career as a “manuscript grubber.” He had just published an edition of the earliest minutes of the New York Supreme Court of Judicature, dating from 1691 to 1704. And he told me a fascinating story of how he discovered them. He had been spending a day doing research in Albany, and as he drove home to the New York City area the following day, he recalled that he had handled a filthy old manuscript volume at the New York State Library. He had put it aside in an off-hand manner, but as he was driving, he had a hunch that it was a very early minute book of the colonial Supreme Court. Not until he was behind the wheel of his car driving south did he realize that the volume may have contained those long-lost records dating from the 1691 establishment of the Court.

Well, he made a U-turn on the Old Storm King Highway; that he wasn’t killed was as much due to divine intervention as was his revelation concerning the identity of the minute book. Arriving back at Albany, he returned to the State Library and, to his amazement, discovered that the volume was indeed the lost Supreme Court minutes. The rest was a matter of bibliographic historical record. Several years later, he and Charles E. Baker of the New-York Historical Society edited and published a three volume annotated edition of those Supreme Court records. His intriguing story was my introduction to manuscript “grubbing,” an avocation I have followed, albeit intermittently, for nearly five decades.

Since then I have spent a great deal of time, using guile, subterfuge, and threats of litigation, to locate documents that have become my personal doubloons in legal history. The failures have been many, for large numbers of them have been destroyed, and they still are being destroyed. In the past half century there has been a concerted effort, at federal, state, and local levels, to preserve court records and other legal documentation, and the American Society for Legal History since 1970 has encouraged those efforts through its Committee on the Preservation of Court Records. Other positive factors in preserving extant court records include funding available from the National Historical Publications and Records Administration, a subdivision of the National Archives, and the professional support and guidance of the Society of American Archivists. Yet manuscript materials once lost are difficult, if not impossible, to reconstruct from extraneous sources.

Successes in document searching are both inspiring and baffling. One of my best examples exemplifies the value of alertness while searching through records. It involves the pre-Revolutionary vice-admiralty case involving the brig New York, which was libeled by the British Navy and customs officials for violation of the Navigation Act of 1663. In addition to the admiralty proceedings there were related actions in the New York Supreme Court of Judicature demanding damages for false arrest and wrongful seizure of the vessel and her cargo. My coauthor, David Syrett, helped me by researching in the High Court of Admiralty records located in London at the Public Records Office, but the real treasure was awaiting us in New York City. While examining a bundle of filed papers concerning the case, I found a packet of letters between John Tabor Kemp, the attorney general prosecuting the vice admiralty case, and the British naval officer who had seized the ship on the charge of smuggling. Before that discovery we didn’t know that these papers existed, even though we had searched diligently in the monumental collection of Kemp’s papers at the New-York Historical Society. Who would expect to find attorney-client correspondence filed in court records? Clearly Kemp had mistakenly rolled this correspondence up in a bundle of papers he had filed along with the judgment roll of the Supreme Court case. We had found them by conducting what should have been a routine examination of formal pleadings in the case. Luck does play a role in finding unexpected source materials; documents are not always where you expect them to be, and finding them when they are out of place is a matter of being alert to the possibilities of every manuscript you examine.

On occasion a friend gives you a gift of valuable information. One day in 1966 I walked into the manuscript room of the New-York Historical Society, and Arthur Breton, then assistant curator of manuscripts, told me about a recent acquisition, and he was curious whether it was important for New York legal history. It was a beautiful manuscript, complete with a large wax wafer seal that proved to be the great seal of the royal Province of New York. Its first page would have made an impressive manuscript for framing, but the following pages revealed it to be one of the most exciting documents a legal historian would ever expect to find. It was a notarized statement of the events that transpired when a notary public attempted to argue a case before the New York Supreme Court of Judicature in 1764. This is the only record of that confrontation that survives. The moral of this story is that manuscript curators, court clerks, and librarians, can be very helpful, and that they can be good friends to historical researchers.

At times it is difficult to gain access to records, and even after they are located it may be impossible to use the materials immediately. That was true of my need to examine the manuscript court records of the Prerogative Court of colonial New York, which had been used and cited by early twentieth century historians, but since that time had seemed to disappear. There were transcribed copies of the wills and inventories, and a substantial number of them are in printed volumes of the New-York Historical Society Collections. However, I needed to see the filed copies of these documents to examine handwriting and determine if John Jay had written them; it also was essential that I examine the court clerks’ endorsements of the filed papers to establish the substantive and procedural law of probate in colonial New York. Scholarly footnotes indicated that these original documents were deposited in the Surrogate’s Court of New York County, yet the clerks of that Court in 1964 were insistent that they had no records prior to 1854, and they also were adamant that there was no such thing as the Prerogative Court of New York.

Since I was reasonably sure that the records were still in the Surrogate Court’s records, I decided to do so research concerning them. The American Historical Association’s Public Records Commission had in 1900 examined the records and issued a short report concerning them; and in 1799 a New York state statute transferred possession of the Prerogative Court records to the Surrogate’s Court of New York County. Armed with these bits of information, and after an interview with the senior Surrogate of New York County, I again contacted the clerk, suggesting that if he did not give me access to the files, I would obtain a mandamus writ instructing him to do so. Faced with the possibility of litigation, he “remembered” a cache of manuscripts on a musty mezzanine floor of the courthouse records. where he left me to examine the neglected records of the Prerogative Court. It did not take me long to do so. The first bundle I tried to open began to crumble in my hands, and it became apparent that if I persisted, this priceless set of documents would suffer irreparable damage. It was not until years later that the original filed papers were humidified, opened, and silked by the Historical Documents Collection at Queens College, that I was able to examine the run of records for the entire colonial period from 1686 through 1776. They were subsequently transferred to the possession of the newly established New York State Archives in Albany.

A similar unpleasant surprise occurred when I was collecting materials to document John Marshall’s career before he was appointed to the Supreme Court in 1801. Since Marshall was careless in maintaining his personal and professional papers, there were little original documents available to the editors of Marshall’s papers. In addition, when the city of Richmond was burned during the Civil War, most of the higher court records were destroyed, leaving only country court and district court records that had not be centralized in the Virginia capital for “protection.” We had already realized that one source of early Virginia records were the manuscripts of the Anglo-American Joint Commission to adjust debts under the terms of the 1794 Jay treaty with Britain. One of the fundamental issues between the two nations had been that state courts and legislatures had obstructed the collection of pre-Revolutionary War debts by British mercantile firms, so court records would form an important source of evidence to be submitted to the Commissioners. There was a microfilm edition of the Treasury 79 records prepared by the Library of Congress before 1941, and we had used those copies extensively, but there was a need to examine the original manuscripts and perhaps obtain photocopies of John Marshall’s documents. Unfortunately, during World War II the British authorities had deposited this group of manuscripts in a salt mine for safekeeping, leaving them in a fragile state of near decomposition. Again it was necessary to defer a careful examination until such a time as the Public Record Office might rehabilitate the manuscripts and make them again available for scholarly use.

Increasingly, historians work with printed documentary collections, photocopies, or digitized transcripts. There are some inherent dangers in being deprived of access to original materials. Scholars are at the mercy of photographers who at times make poor decisions concerning the importance of endorsements or enclosed materials. Original documents bear physical proof of their authenticity, but scholars who cannot gain access cannot rely upon these characteristics. Transcriptions, no matter how carefully done, are inadequate assurance of the accuracy of the original text. On the other hand, the loss of valuable manuscript through extensive handling is substantial, and the cost of providing surveillance against theft by readers is becoming prohibitive. The historical profession, in conjunction with archivists and librarians, needs to address these issues in the years ahead. In the meantime, we who once enjoyed the thrill of “manuscript grubbing” regret the passing of an exciting part of historical research.

Herb Johnson is Distinguished Professor of Law Emeritus at the University of South Carolina. He holds degrees from Columbia University (A.B., M.A., and Ph.D.) and New York Law School (LL.B.), and for ten years was editor of The Papers of John Marshall at the Institute of Early American History and Culture. His most recent publications are The Chief Justiceship of John Marshall, 1801-1835 (1997) and Wingless Eagle: U.S. Army Aviation through World War I (2001). A specialist in early American legal and constitutional history, he is currently working on a manuscript tracing the diverging constitutional systems of England and the English North American colonies. He served as president of the American Society for Legal History from 1974 through 1975.