Iredell County NcArchives Military Records.....Dickey, John May 31, 1932
Revwar - Pension 
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Captain John Dickey Revolutionary War File
Captain John Dickey Revolutionary War File
U. S. National Archives
W 3962

22.  Memorandum concerning Bible controversy and summary of file’s contents

[31 May 1932]
	MEMORANDUM FROM MARY M. CONNELLY

	I have examined the authorities bearing on the discretion of the 
Administrator, if any, to remove articles such as the Dickey Bible from the 
files of the Pension Service and deliver them to any person or persons who may 
assert a right, sentimental or legal, thereto.  While so doing I have, in 
accordance with General Hines' instructions to study the file and the Bible, 
visited the Revolutionary war and War of 1812 Section of the Pension Service 
which is housed in the Interior Building, and found the Bible securely wrapped 
in kraft paper and deposited in a steel file locked up in a steel vault on the 
fourth floor of the Interior Building given over to the protection of pension 
records, which in addition to their value as official records of the 
Government have great intrinsic and historical worth.  These papers and 
documents include letters written and signed by General George Washington 
while Commander in Chief of the Continental Army of the United States and 
later when President, letters and papers signed by Daniel Webster, Zachary 
Taylor, President Tyler, Abraham Lincoln, Mary Lincoln, and many other 
characters of greatest fame and glory, all of which were filed in connection 
with the proper authentication of claims submitted to the Pension Bureau.  The 
Dickey Bible is obviously not in a class with the other papers herein 
mentioned, and as Judge Lee says it even "does not identify itself" because it 
has no inscriptions, no covers, is dilapidated and water stained and were if 
not for the references in the folder containing the other Dickey papers, 
including the leaves which were taken from the Bible in an effort to prove the 
marriage of John Dickey to Elizabeth Dickey who filed the pension claim, it 
would not be possible to identify it.  
	I think that in considering this matter the Administrator might well 
be aided by a brief statement of the facts in the Dickey pension claim.  The 
record above that Elizabeth Dickey filed claim in 1844, alleging that she was 
the widow of Captain John Dickey of the North Carolina Militia to whom she 
claimed to have been married on November 18, 1793, and who died on March 20, 
1808.  This claim was filed under the Act of July 7, 1838, which required that 
the marriage to the soldier take place before January, 1794, in the event said 
marriage occurred after the expiration of the last period of his service.  The 
regulations governing the proof of marriage were as follows:
     "The legality of the marriage, and the time when it took place, must be 
clearly established.  Record proof, as to the marriage, is always required 
whenever it can be obtained.  In a case where the town, county, parish, or 
family records afford no proof as to the period when the marriage took place, 
the fact must be established by the testimony of one or more respectable 
persons, whose credibility must be certified by the officer who may administer 
the oath.  And, in order to prevent any mistake or improper use that may be 
made of the affidavit of an officer who may have the custody of records, from 
which he may make transcripts of the record in relation to a marriage, the 
officer who may give his affidavit will, instead of copying the figures 
contained in the record, certify 'that it is a true copy of the record, with 
the exception of the date, which is expressed on the record in fair legible 
figures, as follows:'  (Here copy the day, month, and year, in letters and 
figures, in exact conformity with the original.)  Then let him add the 
following words:
   "I, A. B., above named, depose and say that I hold the office of 
__________, in the county, town, and state aforesaid, and that the above is a 
true extract from the records of said __________, with the exception above 
names, as certified by me.
"A. B., Clerk of the __________, (or rector, or pastor, as the case may be.)  
Sworn before me, C.D., Justice of the Peace.'
     "And then will follow the certificate of the proper officer, under his 
seal of office, as to the official character and signature of the magistrate 
who may administer the oath.  Where no record proof exists, other than the 
family record, the original record must be produced and sworn to by the person 
in whose possession it has been kept."  ("Pension and Bounty Land Laws," by 
Triplett, page 34).
	With her declaration the widow filed affidavits from "two respectable 
persons" who testified that they knew her to be the widow of John Dickey, and 
an affidavit from W. F. Cowan, a Justice of the Peace, certifying that the 
following was a true extract from the family record of Captain John Dickey as 
contained in their old family bible:
     "John Dickey and Elizabeth Leazy was married November ye 15, 1793, John 
Dickey departed this life March 20, 1808."
The widow's proof appeared to be in proper form, but she was requested to 
furnish further proof of her marriage it not being possible to prove the same 
by a certified copy of the private family record.  On this point, we may 
consider in addition to the provision of the regulation requiring the 
production of the original family record, the cases reviewed in the following 
note to Supreme Council of the Golden Star Fraternity v. Margaret Conklin 41 
L.R.A. 449,454.
     "The family record itself must be offered in evidence, and where a 
witness gives in his deposition a copy thereof, or rather the record, his 
evidence is not admissible for the reason that the Family Bible is not such a 
record that it may be proved by an examined copy, but it must be proved by its 
production in the same manner as all private writings.  If, however, its 
absence be properly accounted for, secondary evidence, as a copy or proof of 
its contents, is admissible.  Greenleaf v. Dubuque & S.C.R. Co. 30 Iowa, 301, 
303.
  "So, a witness, seeking to prove that the defendant in an action was an 
infant at a given date, who produces a paper which she says contained a copy 
of an entry of birth made in the Family Bible must produce the Bible itself, 
otherwise her evidence is inadmissible, even though the copy produced is sworn 
to by her so having been made by her daughter in her presence and compared and 
found correct by herself with entries made in the Bible.  Ryerson v. Grover, 1 
N.J.L. 456.
    "And the introduction of a witness, to prove the infancy of a defendant, 
who stated "that he had acquired his knowledge from a family register or 
memorandum in the Family Bible, is not of itself sufficient evidence to prove 
the age, for the reason that the private memorandum of an individual is of 
itself no evidence, and when produced must be supported by an oath.  Taylor v. 
Hawkins, 1 McCord, L. 164.
     "Again, in Kreitz v. Behrenameyer, 125 Ill. 141, 185, a contest election 
case, a voter was not allowed to be examined as to the showing of the family 
record or Bible with respect to his age, without producing the same."
The file contains an affidavit dated  March 5, 1845, by the Clerk of the Court 
of Pleas and Quarter Sessions, County Iredell, North Carolina, certifying that 
he had made unsuccessful search in his office for the marriage bond of Captain 
Dickey and Elizabeth Leazy.  Later, however, the marriage bond dated November 
10, 1793, reciting intention of the parties to marry and conditioned on there 
being no lawful impediment thereto, was found recorded in the County Court of 
Mecklenburg, an adjoining county, and a certified copy furnished on October 2, 
1845.  This was not proof of marriage prior to January, 1794.  In the meantime 
the Bible appears to have been forwarded to the Pension Office, which is 
proven by a letter signed by W.F. Cowan, the widow's agent, dated Statesville, 
North Carolina, August 21, 1845, as follows:
	"Dr. sir,
     Your favor of 12 inst. is to hand, enclosing a leaf from Mr. Dickey's old 
Bible which contains a record of the death of Captain John Dickey, on one side 
& of the birth of three children by his first wife on the other.  I would 
respectfully ask if it was not a mistake in sending this leaf, instead of the 
leaf containing the record of the marriage of John Dickey to Elizabeth Leasy.  
In the old Bible there will be found another leaf containing the record of the 
marriage of Capt. Dickey to Elizabeth Leazy.  This I presume to be the one 
that was intended to be sent.
						Respectfully yours,
						W. F. Cowan."
	The leaves from the Bible are in the file.  The one containing the 
record of the birth of three children as follow:
"Elizabeth Dickey was born ye 12 day of July, 1750, Mary Dickey was born 
October ye 9, 1759, Samuel Dickey was born August ye 29, 1765."
is fastened to an affidavit by J. S. Johnston dated April 10, 1858, who swears 
that he knew Elizabeth Dickey, that she died in the month of September, 1845, 
leaving a daughter, Margaret Anderson, as the only living child.  On the other 
side of this leaf is inscribed the following:
"John Dickey departed this life 20th of March, 1808, age 84 years."
The other Bible leaf is inscribed on one side as follows:
"John Dickey and Elizabeth Leazy was married November 18, 1793,
Peggy Dickey was born September 21, 1795, 
John Dickey Junior was born October ye 8, 1799."
On the other side appears another inscription,
"John Dickey and Elizabeth Leazy was married November 18, 1793."
The two inscriptions on the same leaf relating to the marriage appeared to be 
in different handwriting.  The leaf is fastened to an affidavit by Alexander 
Huggins dated September 12, 1845, swearing that the "above handwriting on the 
annexed Bible leaf, to wit:  John Dickey and Elizabeth Dickey was married 
November ye 18, 1793" is as he believes in the proper handwriting of John 
Dickey.  This latter affidavit was unquestionably filed in connection with the 
widow's claim while the first mentioned was filed in connection with the 
daughter's claim.  Margaret Anderson, the "Peggy Dickey", whose birth is 
recorded thereon.
	At this point it is interesting to note that the Bible was printed in 
1769, whereas, three of the births recorded therein took place prior to that 
date, to wit:  1750, 1759, 1765.  It will be readily seen that these facts 
place some doubt immediately upon the authenticity of the records inasmuch as 
it is quite well settled that a private record in order to be of any 
evidential value must be made fairly contemporaneous with the event of which 
it purports to be evidence.  Here we may consider the following discussion in 
the note to the case above cited:
     "it is generally conceded that the entries must be made at the time of 
the event happens or within some period of time thereafter, so far remote from 
the purposes of the suit in which they are to be given in evidence as to prove 
that they are not made for the purposes thereof, or with the particular 
litigation in view at the time when made.
    "If a person takes up a family Bible with the idea that it is subsequently 
to be produced in evidence, and then writes down, at once, the births, and 
deaths of his children, such Bible is not admissible in evidence, as it must 
appear that such declarations are made under such circumstances that the 
relation may be supposed to be without an interest and without a bias.  
Chapman v. Chapman, 2 Conn. 347, 349, 7 Am. Dec. 277. 
    "So, where the entries made in a Bible are years after the events 
recorded, and the Bible comes from the possession of an aunt without evidence 
to show when or by whom, or under what circumstances the entries are made, 
they are entitled to little or no weight as evidence on the question of age.  
Amoy v. Cockey, 73 Md. 297, 302.
 "And where a Family Bible produced, instead of being kept as a record of 
events at the time of their occurrence, appears to contain several entries 
made with the same pen and ink, and apparently at the same time, and a blank 
is left for the date of the birth of a party to the original proceedings who 
was then a minor, and the witnesses testify of general recollections after a 
lapse of fifty-one years, and not one of them refers to any distinct, positive 
fact occurring at the time by which the date of his birth can be   
satisfactorily fixed, such evidence is inadmissible in an action to set aside 
the judgment instituted by his heirs, especially when "such proceedings are 
acquiesced in for thirty years by the minor.  Greenwood v. New Orleans, 12 La. 
Ann. 426, 440."
It will therefore be seen that the book itself was of prime importance to the 
proof of the claim and that it properly become part of the official public 
records and has been preserved as such.
	It is interesting to note further, that verity was finally given to 
these Bible records by a comparison of handwriting on a discharge given under 
the hand of John Dickey to Robert Cochran in the following language:
     "This may certify that Robert Cochran served 15 days in the regiment 
commanded by Col. Lock against the British at the Cataba River and was 
discharged February ye 2, 1781.
						John Dickey, Capt."
	It is clear that it took a long time to authenticate this claim and 
that the Bible which was originally sent in by the soldier's widow contained 
intact the leaves on which the records were made, but that it was imperative 
to have the discrepancies appearing on the face of the records cleared up by 
supplementary sworn statements of parties who had knowledge of the events in 
question and it was for this reason that they were cut from the book and 
returned to the claimants, who later returned them.
	There was no vandalism as Judge Lee has charged, nor has anything but 
the best care been given the Bible.  It was "old" at the time it was sent in, 
and undoubtedly worn and torn.  I say this because of Judge Lee's unqualified 
assertions that he "stumbled upon the raped remains" of the volume which had 
been "junked".
	With the necessity for the submission of the Bible in mind we may now 
come to the consideration of the question of the duty of the Administrator to 
preserve it and his discretion, if any, with reference to its removal or 
withdrawal from the file.  "It is said that a public record is one required by 
law to be kept, or necessary to be kept, in the discharge of the duty imposed 
by law, or directed by law to serve as a memorial and evidence of something 
written, said or done, in all instances where by law or regulation a document 
is filed in a public office and required to be kept there, it is of a public 
nature, but this is not quite inclusive of all that may properly be considered 
public records.  For whenever a written record of the transactions of a public 
officer in his office is a convenient and appropriate mode of discharging the 
duties of his office, it is not only his right but his duty to keep that 
memorial, whether expressly required so to do or not; and when kept to the 
office and act to the officer--it is the property of the state and not of the 
citizen, and is in no sense a private memorandum;.  So it is held that while a 
public officer may not be required to prepare an index to the books in his 
office, yet if he does so in the administration of the office, the index is so 
far a public record that he can not remove it at the end of his term.  A 
person who sends a communication to a public officer relative to the public 
business can not make his communication private and confidential simply by 
labeling it as such.  The law--not the will of the sender--determines its 
character.  Public records include generally legislative, executive, and 
judicial records.  When a public officers required to gather information, and 
in the performance of his duties sends to those who can furnish the desired 
information blanks containing questions, such circulars, when returned with 
the answers to the questions and filed in his office, are public records."  23 
Ruling Case Law, page 155, section 2.
	The law with reference to the removal or destruction of public records 
or documents is generally stated on page 169, section 22, Ruling Case Law as 
follows:
     "As heretofore stated, public records and documents are the property of 
the state and not of the individual who happens, at the moment, to have them 
in his possession; and when they are deposited in the place designated for 
them by law there they must remain, and can be removed only under authority of 
an act of the legislature and in the manner and for the purpose designated by 
law.  The custodian of a public record cannot deface it or give it up without 
authority from the same source which required it to be  made.  So an 
indictment duly filed cannot be removed legitimately by anyone, including the 
district attorney, except for "purposes of the trial thereon, or for purposes 
of evidence under a subpoena duces tecum or an order of court.  Hence, where a 
district attorney for the purpose of trapping a criminal removes an indictment 
from the files, even though it is done with the knowledge and informal consent 
of a judge, the removal is improper and the indictment is not legitimately in 
his possession, but is to be considered as being in the possession of the 
state; for neither the act of the district attorney nor the consent of the 
judge is binding on the state.  So the photograph, description, and 
measurement of one sentenced to a state prison, which the law requires the 
superintendent of prisons to secure and preserve, are a part of the public 
records which the superintendent has no power to remove or destroy, even 
though the prisoner's sentence is afterwards reversed, and he is subsequently 
acquitted of the charge against him.  A. record, made under the direction of a 
statute, is in effect made by the state, and if the state has not authorized 
the officer to destroy it under any circumstances, not even to relieve a 
citizen from an unjust reflection on his character, it would be usurpation of 
power for him to surrender the record, or for the court to direct him to do 
so.  And mandamus will not lie to compel a public official to surrender or 
destroy a record which his official duty requires him to preserve."
	In the Dickey case it is clear that the Commissioner of Pensions was 
required to obtain evidence of the marriage of the parties before paying the 
pension claim and that the Dickey Bible came into his possession and was 
accepted with other papers as proof sufficient to authorize payment, under the 
law and regulations.  There is no question but that it is a part of the public 
records.
	We may now consider the provisions of the Criminal Code with reference 
to the matter, Section 234, Title 18, is in the following language:
     "Whoever shall willfully and unlawfully conceal, remove, mutilate, 
obliterate, or destroy, or attempt to conceal, remove, mutilate, obliterate, 
or destroy, or, with intent "to conceal, remove, mutilate, obliterate, 
destroy, or steal, shall take and carry away any record, proceeding, map, 
book, paper, document, or other thing, filed or deposited with any clerk or 
officer of any court of the United States or in any public office, or with any 
judicial or public officer of the United States, shall be fined not more than 
$2,000, or imprisoned not more than three years, or both."
	The object of this statute is as stated, in U.S. v. De Groat, 30 Fec. 
764, the preservation of the public records and papers intact from all kinds 
of spoliation, mutilation, or destruction.  It has been held that the 
words "record" and "document" are not limited in their meaning to the 
technical common law records of courts as enrolled, or to technical records 
and documents, but of any paper filed and which becomes a part of the records 
of the court or office, broadly speaking, and is treated as a record of what 
it maintains."  McInerney vs. U.S., 143 Fed. 729, 74 C.C.A. 655.
	In the event the argument is advanced that the Bible has served its 
purpose and is no longer of any use, we much next look to the provisions of 
the law with reference to disposition of useless papers, Section 112, Title 5, 
United States Code, is as follows:
    "Except as otherwise provided by law, whenever there shall be in any one 
of the executive departments of the Government, of in the various public 
buildings under the control of such departments, an accumulation of files of 
papers, which are not needed or useful in the transaction of the current 
business of such department and have no permanent value or historical interest 
it shall be the duty of the head of such department to submit to Congress a 
report of that fact, accompanied by a concise statement of the condition and 
character of such papers.
    "Upon the submission of such report, it shall be the duty of the presiding 
officer of the Senate to appoint two Senators, and of the Speaker of the House 
of Representatives to appoint two Representatives, and the Senators and 
Representatives so appointed shall constitute a joint committee, to which 
shall be referred such report, with the accompanying statement of the 
condition and character of such papers, and such joint committee shall meet 
and examine such report and statement and the papers therein described, and 
submit tot he Senate and House respectively a report of such examination and 
their recommendation.
    "If such joint committee report that such files of papers, or any part 
thereof are not needed or useful in the transaction of the current business of 
such department, and have no permanent value or historical interest, then it 
shall be the duty of such head of the department to sell as waste paper, or 
otherwise dispose of such files of papers upon the best obtainable terms after 
due publication of notice inviting proposals therefor, and receive and pay the 
proceeds thereof into the Treasury of the United States, and make report 
thereof to Congress."
	Under this statute it would be necessary for the Administrator to 
decide that the Bible was not useful in the transaction of the current 
business of the Administration and that it has no permanent value or 
historical interest, make report thereof to Congress and secure permission to 
sell or otherwise dispose thereof.  If such permission were given it would be 
possible to turn the Bible over to Judge Lee.
	In view of the above I can not reach an opinion that the Administrator 
is authorized to turn this Bible over to Judge Lee even were it proved in the 
last analysis that he in entitled to it as the representative of all 
descendants to John Dickey.  The names of those persons who have authorized 
Judge Lee; to act for them are as follows:
	T. Bailey Lee,
	Clara Knox,
	Susan Simonton Padgett,
	Susie A. Blalock,
	Thomas P. Johnston,
	Joseph B. Johnston,
	J. K. Hall,
	Ossie MacLean,
	E. L. Gaithen,
	John B. Johnston.
The files contain letters from the following persons who have at different 
times requested information for the Dickey files for genealogical purposes and 
whose names do not appear among those furnished by Judge Lee:
	Mrs. S. W. Stevenson (year 1913?),
	Olive Dickey Gilham (year 1907),
	Mrs. George C. Goodman (year 1907).
	Mrs. Ellen McConnell,
	Mrs. W. A. Eliason (year 1917),
	Mrs. John D. Reid.
	It may be, of course, that the first list includes all the now living 
descendants, but when it is remembered that John Dickey married twice and 
according to the records in the Bible was the father of three children by his 
first marriage and two children by his second marriage Judge Lee's assertions 
that he represents all, need not be accepted without question.  Margaret 
Anderson was the only surviving child of the second marriage, according to the 
records, at the time she was paid the pension in lieu of her mother.  Whether 
she left descendants is not shown nor is it developed that her brother John 
Dickey, Jr. died without issue.  We have no information whatever as to the 
descendants, if any, of the three children by the first marriage, although 
Olive Dickey Gilham claimed through Samuel, son of John listed as a child of 
the first marriage.  I would suggest that in the event Judge Lee pursues this 
matter any further he be requested to furnish better evidence as to his 
representing all of the descendants than he has heretofore.  In 1877 the 
Commissioner of Pensions wrote to the Postmaster at Salisbury, North Carolina, 
the last address of record of Margaret Anderson, inquiring for heirs, with the 
idea of returning the Bible and received the advice that none could be found.
	In passing I wish to refer to the original discharge that Robert 
Cochran so generously submitted for comparison with John Dickey's 
handwriting.  No pension claim was ever filed by Cochran or anyone claiming 
through him, but we can readily see how his descendants would value the 
discharge were they cognizant of its existence.  It could have been 
surrendered after it served its purpose in the claim years ago, and could be 
surrendered now if anyone having a rightful claim appeared.
	Judge Lee's request should also be regarded with a view to the 
situation which would be precipitated were it complied with.  It would be a 
precedent and the withdrawals and attempted withdrawals would soon destroy 
these old files.
						M. M. Connelly
CAB-1
Approved by the Solicitor May 28, 1932, J. O'C. Roberts
Approved by the Administrator May 31, 1932.  F. T. H.



[18 June 1932]
						Signed and Dated
						Jun 18 1932
						Administrator's Office
Honorable T. Bailey Lee
Chief Justice of the Supreme
Court of the State of Idaho
Boise, Idaho.
My dear Justice Lee:
	Following my conversation with you and Congressman T. Addison Smith of 
Idaho on May 8, 1832, with reference to the possibility of releasing to you 
the old family Bible filed in the Revolutionary pension claim of Captain John 
Dickey, I referred the matter to the Solicitor with instructions that the file 
and the Bible be examined for the purpose of advising me just what care had 
been taken of it and that the law be studied to determine what discretion I 
had in issuing over articles of this character.  I was particularly interested 
in your representation that the Bible was not a part of the pension file 
proper but that there had been taken from it two pages which were a part of 
this file and that the book itself was simply being retained by the Pension 
service with other historical records.
	As a result of this study I have found that the Bible itself with the 
leaves intact was originally submitted by Elizabeth Dickey to prove her 
marriage to the soldier prior to January 1, 1794, as was required by the Act 
of Congress dated July 7, 1833, under which she was seeking a pension.  The 
regulations issued under this law provided that "where no record proof exists, 
other than the family record, the original record must be produced and sworn 
to by the person in whose possession it has been kept."
	As a lawyer and a judge I know it is unnecessary for me to explain to 
you the necessity for the submission of the Bible itself under the 
circumstances, although to facilitate your review of the precedents should you 
wish to do so, I would call your attention to the cases reviewed in the note 
to Supreme Council of the Golden Star Fraternity v. Margaret Conklin 41 L.R.A. 
449, 454.  when the Bible was first sent in it was not accompanied by the 
affidavit required by the regulations cited and it appeared that the leaves 
containing the [?] was cut out and returned to the [?] agent for the purpose 
of [?] the necessary affidavits.  You probably noticed in your examination of 
the Bible that the part containing the old testament purports to have been 
printed in 1752 while the part containing the new testament was printed in 
1769, both parts being in the same volume.  This means that the complete book 
was printed in 1769.  You may or may not have noticed that three of the births 
records therein took place prior to 1769 to wit 1750, 1759, 1765.  This fact 
evidently raised some question in the minds of the pension authorities with 
reference to the complete record, including the marriage record, inasmuch as 
it is [?] well settled that private records must be fairly [?] with this event 
of which it purports to be evidence in order to be of any evidential value.  
It will therefore, be seen that the book itself was of prime importance to the 
proof of the claim and that it properly became part of the official pension 
records.
	I found further that the best of care was taken of the "Bible and that 
as you have heretofore been advised it was securely wrapped in heavy paper was 
placed in a steel vault for further protection.  I have been advised that when 
it was first exhibited to you it was being well protected.  According to the 
correspondence in the file the book was old at the time it was submitted in 
the year (1845?) and it was probably [?] [?] at the [?] and water stained at 
that time as it is today.  [?]  [?] evidence points to its  having been well 
taken care of through the years.  There is no question in my mind butt that it 
is a part of the official records of the Government and that it was necessary 
for the proper adjudication and authentication of the widow's claim.
	With this in mind I have considered the question of my duty as 
Administrator to preserve it and my discretion, if any, with reference to its 
removal  or withdrawal from the file.  The law with reference to the removal 
or destruction of public documents is generally stated on page 169, section 
22, Ruling Case Law as follows:
     "As heretofore stated, public records and documents are the property of 
the state and not of the individual who happens, at the moment, to have them 
in his possession; and when they are deposited in the place designated for 
them by law there they must remain, and can be removed only under authority of 
an act of the legislature and in the manner and for the purpose designated by 
law.  The custodian of a public record cannot deface it or give it up without 
authority from the same source which required it to be  made.  So an 
indictment duly filed cannot be removed legitimately by anyone, including the 
district attorney, except for "purposes of the trial thereon, or for purposes 
of evidence under a subpoena duces tecum or an order of court.  Hence, where a 
district attorney for the purpose of trapping a criminal removes an indictment 
from the files, even though it is done with the knowledge and informal consent 
of a judge, the removal is improper and the indictment is not legitimately in 
his possession, but is to be considered as being in the possession of the 
state; for neither the act of the district attorney nor the consent of the 
judge is binding on the state.  So the photograph, description, and 
measurement of one sentenced to a state prison, which the law requires the 
superintendent of prisons to secure and preserve, are a part of the public 
records which the superintendent has no power to remove or destroy, even 
though the prisoner's sentence is afterwards reversed, and he is subsequently 
acquitted of the charge against him.  A. record, made under the direction of a 
statute, is in effect made by the state, and if the state has not authorized 
the officer to destroy it under any circumstances, not even to relieve a 
citizen from an unjust reflection on his character, it would be usurpation of 
power for him to surrender the record, or for the court to direct him to do 
so.  And mandamus will not lie to compel a public official to surrender or 
destroy a record which his official duty requires him to preserve."
	In the Dickey case it is clear that the Commissioner of Pensions was 
required to obtain evidence of the marriage of the parties before paying the 
pension claim and that the Dickey Bible came into his possession and was 
accepted with other papers as proof sufficient to authorize payment, under the 
law and regulations.  There is no question but that it is a part of the public 
records.
	Considering the provisions of the Criminal Code with reference to the 
matter, Section [?], Title [?], is in the following language:
  "Whoever shall willfully and unlawfully conceal, remove, mutilate, 
obliterate, or destroy, or attempt to conceal, remove, mutilate, obliterate, 
or destroy, or, with intent "to conceal, remove, mutilate, obliterate, 
destroy, destroy, or steal, shall take and carry away any record, proceeding, 
map, book, paper, document, or other thing, filed or deposited with any clerk 
or officer of any court of the United States, or in any public office, or with 
any judicial or public officer of the United States, shall be fined not more 
than $2,000, or imprisoned not more than three years, or both."
	The object of this statute is as stated, in U.S. v. De Groat, 30 Fed. 
764, the preservation of the public records and papers intact from all kinds 
of spoliation, mutilation, or destruction.  It has been held that the 
words "record" and "document" are not limited in their meaning to the 
technical common law records of courts as enrolled, or to technical records 
and documents, but of any paper filed and which becomes a part of the records 
of the court or office, broadly speaking, and is treated as a record of what 
it maintains."  McInerney vs. U.S., 143 Fed. 729, 74 C.C.A. 655.
	In the event the argument is advanced that the Bible has served its 
purpose and is no longer of any use, we much next look to the provisions of 
the law with reference to disposition of useless papers, Section 112, Title 5, 
United States Code, is as follows:
     "Except as otherwise provided by law, whenever there shall be in any one 
of the executive departments of the Government, of in the various public 
buildings under the control of such departments, an accumulation of files of 
papers, which are not needed or useful in the transaction of the current 
business of such department and have no permanent value or historical interest 
it shall be the duty of the head of such department to submit to Congress a 
report of that fact, accompanied by a concise statement of the condition and 
character of such papers.
     "Upon the submission of such report, it shall be the duty of the 
presiding officer of the Senate to appoint two Senators, and of the Speaker of 
the House of Representatives to appoint two Representatives, and the Senators 
and Representatives so appointed shall constitute a joint committee, to which 
shall be referred such report, with the accompanying statement of the 
condition and character of such papers, and such joint committee shall meet 
and examine such report and statement and the papers therein described, and 
submit tot he Senate and House respectively a report of such examination and 
their recommendation.
   "If such joint committee report that such files of papers, or any part 
thereof are not needed or useful in the transaction of the current business of 
such department, and have no permanent value or historical interest, then it 
shall be the duty of such head of the department to sell as waste paper, or 
otherwise dispose of such files of papers upon the best obtainable terms after 
due publication of notice inviting proposals therefor, and receive and pay the 
proceeds thereof into the Treasury of the United States, and make report 
thereof to Congress."
	Under this statute it would be necessary for the Administrator to 
decide that the Bible was not useful in the transaction of the current 
business of the Administration and that it has no permanent value or 
historical interest, make report thereof to Congress and secure permission to 
sell or otherwise dispose thereof.  I do not feel that it would be possible 
for me to make such a report in this case.
	In view of the above, I can not reach an opinion that I am authorized 
as administrator to turn this Bible over to you.
						Very truly yours,
						Frank T. Hines
						Administrator


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