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Archiver > APG > 2004-12 > 1101955600


From: Langdon Hagen-Long <>
Subject: RE: [APG] Sources: Original vs. Derivative
Date: Wed, 1 Dec 2004 18:46:46 -0800 (PST)
In-Reply-To: <001a01c4d75e$a659fef0$5f02a8c0@GRANDMAS>


Originals are not always *original*: copies are not
always *derivative*, either. I view the clerks
transcription, recorded in the libre, as an
original. It is not the sole original. A testator
might tuck his will, certainly an original source,
under his bed. But his will has no legal authority
until it is produced in court, accepted by the court
in the probate process, and entered into the will
book. The will tucked under the bed, was later tucked
under a shelf in the clerks office, or even taken
home by the heirs, after probate. The original will,
back under the bed, can get lost forever which is
why the clerk recorded and bound documents in the
first place. It is a fact that the clerks
transcription is the document that has the legal
authority.

I dont consider the clerks transcription a
derivative source, since it becomes more than a copy
of the original as it undergoes a proving process and
is already pre-screened for us by the probate process,
by the clerks original oaths of office, and by their
individual attestations, found in the front of most
books. Im not saying the clerk was infallible. We
have all seen cases of heirs mentioned in an original,
but left out of the clerks transcription. Evaluating
the clerks job performance, and content of the
document, is a matter of evaluating and analyzing
evidence, and not one of classifying the type of
evidence. In fact, any document created during the
normal course of business, is evidence of the
facts contained therein. That is; there is a
presumption of the truth of the record, which stands,
unless and until there is some reason to question the
presumption. In that case, the burden of proof is
on the person who questions the facts, as presented.

In the case of indentures or third party deeds,
multiple copies of the deeds were made. My family
inherited a 1/8 share of property. The clerk copied
the deed 8 times into the deed book. In addition to
the clerks copies, my family owned the original.
No doubt each party in the transaction owned an
original [copy]. Other heirs, who didnt inherit
this particular piece of property, and the executors,
could have been given copies during the settlement.
The clerks transcriptions are the official legal
documents. All 16 or more transcriptions, produced at
the time, are primary information, from an original
source. Even one transcribed deed, signed a year
after the others, is not derivative, since they all
pertain to one transaction.

Scattered throughout the Code of Virginia, you will
find that machine copies are considered prima facie
evidence. Many sections of the code, as well as
Rules of Evidence, address this issue. The law
presumes that photographic or digital copies are
authentic replicas, unless there is a specific
reason to be suspicious of a certain document. We all
know that people can easily tamper with records and
images. James is living in the real world,
questioning an Ansel Adams photo, but so far, the law
hasnt caught up with him. Yosemite is certainly the
original source. However, under Virginia law, the
negative, as well as the final image, carry the same
weight as the original, especially when there is an
attestation that an image is a true copy. Negatives
and photos become prima facie evidence of the facts
of Yosemite.

[Images that have been fiddled with, like HQ census
records, don't count as "authentic replicas".]

In general, I think genealogists should use the same
standards as the law would require. Id note a
couple of exceptions: The courts might be satisfied,
especially in a civil case, that a clerks handwritten
copy is as good as the original or that a photocopy of
a document is an authentic replica of the original.
Any genealogist would rather have, or at least see,
*the original source*, especially when it contains
actual signatures of the parties, seals, or other
items that a court wouldnt care about. Our needs are
different.

Secondly, a court case ends when an issue has been
resolved, but genealogists are building case upon
case, with the same facts as a base. It is important
for us to create the building blocks of fact as
accurately as possible. Therefore, I would be more
careful and suspicious about images than a lower
court, on a minor issue. [Accepting one document on
microfilm as a replica is different than trusting that
an entire roll is complete.] The law might catch up to
Jamess view some time soon, and be more cautious
about enhanced images creeping in as replicas. Just
pity the poor genealogists of the future who will have
to deal with the possibility of image enhancements.
Come to think of it the future is here!

Langdon Hagen-Long



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