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Preserving Legal History One Case at a Time

Published Friday May 6, 2022

Author Scott Merrill, NH Bar News

Preserving Legal History One Case at a Time

The case of the “hairy hand” and many others dating back to 1849 will soon be conserved and digitized as part of an archiving project at the King Law Library at the New Hampshire Supreme Court.

The project, which is currently underway, is headed by the New Hampshire Supreme Court’s “Library Judge,” Justice Anna Barbara Hantz Marconi, and Law Librarian at King Law Library, Mary Searles.

“In doing my duties as the ‘library judge’ I learned many things,” Hantz Marconi said, referring to the use of casebooks for all Supreme Court cases dating from the mid-1800s until 1987. “They would take the case, if it was a boundary dispute for instance, include the deeds, maps, sheriffs’ notation, and it would be folded up and stitched into a book.”

Northeast Document Conservation Center, which specializes in treating and digitizing collections made of paper or parchment, has been contracted to do the work which will include conserving and archiving 600 volumes of cases, starting with the oldest. The first seven volumes are currently being worked on.

Searles said the library is looking at grant sources to fund the project to completion, but so far the library has relied on $50,000 received from the state for the project. 

The total price for all 600 volumes is $2 million.

Some of the old cases being worked on—which were often handwritten with iron gall ink—were originally bound in ‘huge thick volumes,” said Searles, describing the way crumbling pages have curved inwards over the years because of the various sized documents bound together. 

“It’s a big project and we’ve been talking about it for a few years,” she said. “The legislature was very kind in giving us $50,000 to start and we hope to be able to go back to them and say ‘this is what we’ve done, and here’s the website and so forth. Even if we only do $50,000 at a time, it’s ok, we’ll get there.”

Some of the cases being archived include the early Mary Baker Eddy trust cases as well as Hawkins v. McGee, also known as the “Hairy Hand” case. In that case, which is taught to first year law students, a man sued for damages and won after receiving a skin graft on his hand that eventually grew think hair on his palm. 

“We have these so-called artifacts, and so we mused about how to preserve the collection,” Hantz Marconi said. “[T]he best way to do it is to unbind these books and to digitize the material so they’re available for research without needing to put the white gloves on, and to also store them on the shelves or in a special room.”

The archive project at the Court has coincided with the Judicial Case Preservation Committee which started with the help of retired Superior Court Judge John Lewis. 

The experience that prompted Lewis to wonder whether cases were being preserved adequately came while researching for an academic paper in 2015 on the historic Claremont decisions. During that time, Lewis says he was having difficulty finding source material both within the state archives and with the Courts.

“There was an 1850 constitutional convention, when Franklin Pierce was president and education factored very strongly in that convention; I wanted to look at the records about that,” said Lewis, who found it extremely difficult to find them at the state archives. “A lot of the background material wasn’t there.”

At one point, Lewis said the Merrimack Superior Court told him they couldn’t find the files he was looking for. 

“The Supreme Court had its files there, including tapes of the oral argument, but they had returned a lot of the files as they would do with most cases. So, it was troublesome,” he said. “I have a feeling that has gone on for too long and I’m really glad we’re getting more sensitive to it.”

Lewis said the files were eventually located in a warehouse the Merrimack Superior Court was using.

The preservation committee, made up of 40 attorneys, formed a plan of action to provide information for the Supreme Court regarding important cases.

“Our effort was both to encourage and support the current project there, and to provide the Supreme Court with insight about what those cases are that might deserve special attention,” Lewis said.

The list of cases chosen by the committee represents 20 areas of law and includes comments about why each case is important.  

“It was an exciting project, and many attorneys spent a good deal of time helping,” said Lewis, who added that the committee made several recommendations, including the need to publicize the case list to ensure that people in the New Hampshire bar and beyond have access to it.

“It’s not meant to be a comprehensive treatment of any field of law and can’t serve as a substitute for CLEs, but it is interesting in and of itself, not only for historical purposes, but also as a way to see what we’ve been doing in New Hampshire Law since World War II.” 

Hantz Marconi said the second and final phase of the archiving process will be to find a place to house the conserved archival materials. 

“We’re currently in the process of designing a vault, if you will, that could go in the Supreme Court basement where archival cases would be stored,” she said. “And it just happens to dovetail with the rehabbing of our HVAC system, so we may be able to piggyback on that.”

Law Librarian at King Law Library, Mary Searles, holds a copy of the 1929 case Hawkins v. McGee, aka the “hairy hand” case. Scott Merrill/Bar News

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