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Presidential papers: to whom do they belong?

For several weeks in 1923, they said, smoke rose from the White House chimney where Mrs. Harding was burning the late president's papers. ''Papers from the president's desk,'' says historian Charles L. Mee, ''from the wall safe on the second floor, letters, confidential papers, boxes of files, suitcases full of papers, the contents of a safe deposit box.'' At first she was discriminating but then ''overcome by fatigue, she would toss boxes into the flames without looking to see what was in them.''

The president's papers: who owns them, anyway? Richard Nixon's tapes caused a commotion, and there is a new circumstance, the custom for some local group to set up a memorial library for each departing president to be a kind of shrine, educational center, and historical museum. How many are there? Give us a century and they will cover the nation.

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Who owns the president's papers? George Washington didn't know. Neither did his relatives. When Jared Sparks, editor of the North American Review, visited Washington's nephew Bushrod Washington at Mount Vernon the latter gave him three weeks' hospitality and allowed the Boston editor to take eight boxes of personal papers back to Boston where they remained in his possession for the next 10 years.

Others had problems. After President Fillmore's son directed the burning of his father's correspondence it was discovered (fortunately) that the directions hadn't been carried out: the personal papers were discovered in the attic of a home in Buffalo, N.Y.

Franklin Roosevelt started the recent custom of organizing the papers, and on July 4, 1940, deeded 16 acres of his family's estate in Hyde Park for a library and museum. Historians applauded. Since then libraries have been built for seven of the 39 presidents.

The Nixon documents caused a row. In 1955 Congress had passed the Presidential Libraries Act which provided the legal basis for accepting presidential papers and maintaining libraries. It brought them all into the National Archives system and required that they be built with private, not public money. It left permissive whether the president would leave some of his papers with the Archivist.

The question came to a head suddenly when Mr. Nixon signed an agreement in September 1974 with the Administrator of General Services which apparently gave the former President legal title and literary property rights to all papers and files. He could begin to destroy the tape recordings in 1979. Congress intervened and now the matter is governed by the Presidential Records Act of 1978: the public owns the papers. The current law leaves leeway, however, in deciding what constitutes personal rather than official documents.

Some historians would like to have the presidential material all together. As one senator complained at the hearings, ''Every time we change administrations we have another library; we are seeing the cost of $3,000,000 a year for maintaining the records of former presidents for researchers. I am just wondering at what stage it gets to where we can't afford former presidents?''

Actually the cost is around $500,000. When Ronald Reagan retires in 1984 (or maybe 1988) friends will presumably come forward with plans for a library. Papers relating to his term of office with limited exceptions will become public records, subject to his control for 15 years. A president's intimate papers, it has been noted, illuminate the policymaking process and mood and atmosphere of the time. Historian Arthur Schlesinger cautions that instant access to sensitive personal communications casts a chill on internal debate. There was, in fact, recognition of this years ago - in 1792, to be precise. Writing to George Washington from Paris US diplomat Gouverneur Morris wanted to know what freedom he had in expressing views: ''I wish you would give me your candid opinion on the subject?'' he asked.

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Washington agreed in reply that it was a touchy matter. Be as candid as you can, he said in effect. Then with a quill pen he (or his secretary) underlined the words ''not altogether''.

Where that nice balance lies remains uncertain. It is being restudied in the application of the new Presidential Records Act.

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