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From: Langdon Hagen-Long <>
Subject: Re: [APG] Re: Courthouse Ledgers
Date: Thu, 2 Dec 2004 18:04:36 -0800 (PST)
In-Reply-To: <88.1aee4b7a.2ee06fd8@aol.com>


June, You give a good example, and in the Ohio case, I agree, somewhat. However, not all clerk's records derive from someone else's record. Clerks were scribes, but they also fulfilled other duties such as issuing process, entering judgments, and issuing orders. These records are direct evidence, of secondary and/or primary information, from the original source. The mere fact that the clerk issued a subpoena, [an original source] proves someone thought there was a problem. If the action was for a debt, it does not prove the existence of the debt, but only that someone claimed a debt. I can judge that a subpoena wasnt issued, unless the court had been provided evidence, possibly no better than hearsay, [poor secondary evidence] that 1. there was a debt and 2. that the debt had not been paid. Now the scales tip slightly in favor of the fact that there might have been a debt, but based on unknown, indirect, secondary evidence. There is no logically sufficient reason to bel!
ieve
[proof] that there was a debt, and even less reason to believe that if there was a debt, it wasnt paid. When judgment was rendered by the judge, the clerk made a record stating the outcome. This is direct evidence, of primary information [the conviction] from the original source, since Judges didnt perform this task themselves. It is as straight from the horses mouth as you can get. Whatever the clerk writes is now fact: if the judgment is for the plaintiff, its a proven fact that there was a debt not paid.



If the clerk spelled names incorrectly, this would be completely irrelevant to the court, since spelling was not consistent until the late 18th century. Misspellings had no legal relevance. If the clerk recorded the marriage date incorrectly, it would stand, as prima facia evidence of the date the clerk gave, until rebutted. It seems to me that the clerks had such legal power, and their work rises to such a high level of proof, that I cant place the same value on their records as I would on other derivative sources.[not that derivative is inferior] That doesnt mean the classification is wrong, but only that there is a large amount of diversification with respect to the value and quality of evidence within each classification.



If all that remained of a will was an entry in the clerks index for the will of Joe Doe, I would accept that as prima facia, direct evidence that something existed, probably the will of Joe Doe, at the time the index entry was created. I feel the clerks record, his index, standing alone, is original. It is not a copy of anything, but is the clerks original creation. A will, as transcribed, is technically derivative, but rises to such a level of authority, on its own, that it becomes close to the level of original work, in that the court relies more on it than it does the original. If the original is destroyed, the court relies solely on the transcription, but Im not so sure that this was not the case even before the original was destroyed. The courts wisely decided not to trust people like my family to keep tract of their own legal papers, without a back-up plan.



I have to ask why I must look at all record series in one particular way and put them in a little box? I use classification terms, in my own mind, when I am evaluating and analyzing evidence. My clients have no interest in direct, original, primary, or derivative. They hire me to deal with evidence, so that they get a "bottom line", since Im often the last resort. For me, one of the most frustrating things about working with clients, is that I am always being pushed to draw a conclusion which I'm not ready to make. I often have to explain why a record isn't as good as the client thinks it is, or why it proves more than meets the eye. I cant really explain classification to people who have hired me in order to avoid those details. I try to explain specific evidence on the clients terms.



I love the idea of a sliding scale. Within a flexible scale, I have no problem putting some clerks' transcriptions at the top of the scale of derivatives, above most other forms of derivative evidence, or original works, such as a good family Bible record. My idea of "perfect" evidence is a good Chancery case.



Langdon






wrote:All courthouse ledgers and journals have to be considered as derivative. I
will give an example of why it is important to remember that they are.

In Franklin County, Ohio, the original slips of paper from the ministers
from the early 1800s were still in existence until the courthouse moved to a new
building some years back. The clerk told me, which may or may not be true,
that they were lost off a dump truck taking old paper to the new building.

So the original return and consent slips are not longer in existence. The
information was originally copied into marriage books in the courthouse.
However, the books contain serious errors as to names. They also did not include
any of the early consent slips.

Before the original slips were lost, the DAR carefully extracted all
information from them. The DAR published four volumes with compiled information
from the county marriage books, the county index to marriages, the consent
slips, the return slips and showed the differences between them. There are major
differences in the names in the records. I have had occasion to investigate
several instances where the DAR information shows the county marriage books to
be in error. In each of these cases, the county record was wrong on the
names and the DAR was right on the names.

Although most of the time the county marriage book is the best source we can
find, this is not necessarily true and shows the necessity of evaluating our
sources carefully.

June Byrne
_http://members.aol.com/junebyr/sites.html_
(http://members.aol.com/junebyr/sites.html)
or
Daytona Beach, FL


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