Some months back it was announced that the new institution formed by the merger of the Museum of the Confederacy and the American Civil War Center at Tredegar, will operate under the name “American Civil War Museum,” with the tagline, ““Confederacy, Union, Freedom.” I like it; unlike most ideas arrived at by committee, this one is clean, concise, and descriptive. I hate cutesy, too-clever-by-half names; by ears bleed every time I hear the word, “Newseum.”
Ever since the collaboration between the MoC and Tredegar was announced, though, there’s been a steady chorus in some quarters about the need to “take back” the artifacts in the Museum of the Confederacy’s collection. Now, more than six months after the merger was announced, the Virginia Division of the SCV has begun soliciting funds to save “our pricesless [sic.] heritage.”
The tagline is “Save the Museum of the Confederacy,” but clearly the intent is nothing of the sort — it’s to use a civil lawsuit to dissolve the what is likely the best single collection of Civil War material outside of the Smithsonian Institution and scatter it to the winds, to a hundred or a thousand people, most of whom never held title to those items before, in the hope of someday reassembling them in a more Confederacy-friendly organization.
So how likely is it that such a lawsuit would be successful? The answer seems to be, “not very.” This seemed like a good opportunity to drag out my old museum law book for reference and, sure enough, the legal rights of donors in cases like this is one of the first topics covered. Most donors, the author argues, would be unable even to demonstrate that they are in a position to claim they are being harmed by the actions of the MoC:Based on this traditional rule that enforcement of charitable trusts is reserved to the Attorney General, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to its enforcement than any other member of the public. With regard to conditional gifts or gifts which reserve a right to revoke or terminate, there is a division of authority as to whether donors, or their representatives, can sue for enforcement. If they are permitted to sue, there is the added question whether they can sue individually in their own names or only with the Attorney General as a consenting party. The Restatement of Trusts favors the view that the Attorney General is necessary party in any such suit, on the theory, perhaps, that a gift to charity, even though conditional, involves a public interest that must be represented. Decisions regarding standing of donors to enforce conditional gifts turn on the particular facts of each case, and it would appear that courts have little trouble in fashioning theories to support desired results. In Amato v. The Metropolitan Museum of Art, for instance, a restricted bequest was made to the museum. The museum had six months in which to accept the gift, otherwise the bequest passed to the donor’s daughter. The museum accepted. Years later, the daughter sued claiming that the museum had not honored the restriction. The court denied relief, one of the grounds being that once the museum accepted the gift, any interest the daughter had in the property terminated. Since the daughter now had no special interest, she lacked standing to sue. Another approach taken by the courts which inhibits donor intervention is the theory that a conditional or restricted gift does not fail just because its terms cannot be followed exactly. For instance, if it proves impractical or impossible to carry out a restricted gift, a museum may seek court approval to alter the restriction in either a cy pres action or a petition for deviation. If the court approves the change, there is deemed to be no failure of the gift because the general charitable intent of the donor is still being effected. If there is no failure, the donor and his heirs have nothing to enforce in court. In Abrams v. The Maryland Historical Society the heirs of a donor sued to prevent the sale of an object given to the historical society claiming that the society accepted the gift with the understanding that the object would never be sold. There was some evidence to support the claim, namely correspondence from individual members of the Society’s board of trustees, and there was no executed deed of gift. The court ruled that the heirs had no standing to sue, stating, “Gifts cannot be presumed to be conditional. Their conditions must be clearly set forth.” 
My emphasis. The author goes on to discuss a handful of unusual cases where the courts granted standing to people representing donor trusts that have donated large sums of money to organizations, but those seem to be the exception rather than the rule. None of the examples given deal specifically with museum collections, whether historical artifacts or artwork.
One phrase we’re likely to hear tossed around in this discussion is cy-près (“as near as possible”), which is a legal doctrine under which a donor trust does something different with its gift than was earlier specified, because the original requirement could not practically be met. The idea is to use the gift in a way that is as close as possible to the original intent. For example, if a person left a bequest in her will to a certain animal shelter, but by the time of her death that shelter was no longer in operation, the executor could cite the cy-près doctrine to obtain permission to donate the funds to a different shelter, in that way remains true to the basic intent of the original bequest, if not the precise letter of it.
One critical aspect of a cy-près action, though, is that every description or example of it I’ve found appears to be one that deals prospectively with gifts or donations that are to be made, rather than withdrawing gifts that have been lawfully made in the past.
We’ll have to wait and see if the Virginia SCV ever actually files a lawsuit on this matter; the last one didn’t go so well. If they do, it will be interesting to see if they cite any specific case law that supports their claim. Maybe there’s something out there I’m not aware of, but otherwise I don’t see how such a lawsuit goes very far.
 Marie C. Malaro, A Legal Primer on Managing Museum Collections (Washington: Smithsonian Institution, 1985), 20-22.
David Letterman has been phoning it in for at least a decade. (And I say that as a Letterman fan from way back.) But Monday night, his first day back from break, he gave this personal remembrance of Robin Williams:
The subject came up yesterday on another forum about the CW history of a particular vessel, the sidewheel riverboat William Bagaley (or Bagley, as it’s often given in contemporary records). It’s an interesting story.
William Bagaley was built at Belle Vernon, Pennsylvania in 1854. She was 170 feet long, 32 feet 9 inches wide (not including the sidewheels and deck overhang), and had a depth of hold of 7 feet. Her measured tonnage was 396 30/95 tons. She was initially registered at Pittsburgh on November 28, 1854.
Abstract register of the steamboat William Bagaley, 1855.
The boat was re-enrolled about year later at New Orleans, on December 7, 1855. Her owner at that time was listed as Ralph Bagley (Bagaley?) of Pittsburg, and her master was John C. Sinnott. At some point in the following years it appears that Bagley may have sold his interest in the boat, because April 1861 the boat is advertised as being part of the Cox, Brainard & Co. line of steamers running between New Orleans and the Alabama River, as high up as Montgomery. Dick Sinnott is listed as master at that time; it’s not clear how he is related to John C. Sinnott, although they appear to be different individuals.
April 1861 advertisement for the steamboat William Bagaley, running from New Orleans to Mobile, Selma and Montgomery. From Huber.
Sometime in mid-1862 or later, William Bagaley was taken into Confederate service, probably for use as a tender or supply vessel supporting the military outposts around Mobile Bay. On at least one occasion, in early March 1863, the steamer was used as a flag-of-truce vessel for communicating with the Union blockading fleet off the entrance to the bay.
That spring and summer, Confederate officials in Mobile began hiring vessels to run the blockade to Cuba. Most of these, like Bagaley, were shallow-draft riverboats. The Confederate government would split the profits of the venture with the boats’ owners, and reimbrse them half the value of the vessel if she were lost. On the night of July 17/18, 1863, William Bagaley ran the blockade out of Mobile Bay, passing under the guns of Fort Morgan and keeping along the Swash Channel to the east of the entrance. Her cargo consisted of 700 bales of cotton, 3,200 barrel staves, and 125 barrels of turpentine. She was under the command of Captain Charles Frisk, with 29 other crewmen on board. Running with her was the steamer James Battle, both headed for Havana. The two ships were spotted by the blockaders U.S.S. Aroostook and U.S.S. Kennebec. The division commander, Captain Jonathan P. Gillis also slipped his cable and gave chase in Ossipee. The Union vessels quickly overhauled James Battle, and Gillis ordered the commander of another blockader that had arrived on the scene, W. M. Walker of U.S.S. De Soto, to put a prize crew aboard and send the steamer on to New Orleans for adjudication. Gillis, in Ossipee, continued on after William Bagaley.
U.S.S. Ossipee in a postwar image, c. 1900. Library of Congress.
(It should be noted here that Kennebec, Aroostook and Ossipee were part of the West Gulf Blockading Squadron, under the overall command of David G. Farragut, while De Soto was part of the East Gulf Blockading Squadron, under Theodorus Bailey. This divided command structure probably helped precipitate what happened next.)
By sunset that evening, Gillis could clearly make out the steamer up ahead. By 11 p.m. Ossipee was close enough to test the range with her 30-pounder rifle, at which the steamer immediately stopped her engines and hove to, waiting to be boarded. At that point they were about 176 nautical miles south-southeast of the entrance to Mobile Bay, more than a third of the distance to Havana. As Gillis was preparing to send a prize crew aboard, U.S.S De Soto churned up out of the darkness, stopped between Ossipee and her prize, and Walker began transferring his own prize crew. Gillis, who believed he had just made a solo capture – and thus making Ossipee and her crew eligible for the full award of prize money, was clearly incensed. He wrote in his report that he “doubted whether [De Soto] saw her, but had followed in our track, knowing we were in pursuit [and] seized clandestinely the opportunity in the darkness to throw on board a prize master and receive [the] steamer’s papers.” Gillis clearly saw Walker as poaching a share of a prize that was rightfully his. Gillis had Captain Frisk write out a statement that he had been chased by Ossipee since noon that day, that he had stopped in response to Ossipee’s gun, and “surrendered to the U.S.S. Ossipee.” Walker, for his part, formally reported to Gillis his taking possession of the prize, closing with the notation that “at the time of taking possession of the William Bagley the U. S. steamers Ossippee [sic.] and Kennebec were in sight.”
U.S.S. De Soto at anchor in Puerto Rico, 1868. Naval Historical Center.
Walker’s notation about Ossipee and Kennebec being “in sight” at the time of capture is tremendously important, because U.S. Navy prize rules specified that all ships in sight or within signaling distance of a capture were entitled to a share of the proceeds, whether they had actively played a role in the capture or not. Not only did Walker dash in between Ossipee and Bagaley to claim the prize first, his mention of Kennebec being “in sight” at the time would effectively split the prize money three ways, reducing Gillis’ and Ossipee’s share by about two-thirds. Walker almost certainly believed that his own squadron commander, Rear Admiral Bailey, would defend Walker’s actions, particularly since a capture by one of the East Gulf Squadron’s ships would put prize money in Bailey’s own pocket.
Map showing the approximate location to the capture of the steamer William Bagaley.
Like James Battle, William Bagaley was sent in to New Orleans for adjudication at the U.S. District Court for the Eastern District of Louisiana. Bagaley arrived at New Orleans first, on July 23. The court heard the case and condemned the steamer and its cargo on August 17, 1864, ordering them to be sold at public auction by the U.S. marshal, with De Soto and Ossipee listed as the official captors. A monition order was published in the local press giving ten days’ advance notice of the sale in the event there was a challenge, but none was forthcoming and the sale went ahead as scheduled.
Almost immediately after the auction, though – in fact, before the marshal could deposit the proceeds with the district court – a challenge to the sale was filed by a man from Indiana named Joshua Bragdon (1806-1875). Bragdon claimed to be a former resident of Mobile and a partner in the firm of Cox, Brainard & Co., that had owned the steamboat before the war. Bragdon claimed that, as a Union man, he had left Mobile and returned to his old home in Indiana at the outbreak of the war, while his partners remained in the South. More than a year after he went north, he said, the Confederacy had unlawfully seized his share in the boat, of which he claimed to hold a one-sixth interest. Bragdon insisted that he had never supported the rebellion and played no active role in it, and asked the court to award him one-sixth of the proceeds from the auction of both the steamer and her cargo, as being property that was rightfully his.
The district court in New Orleans rejected Bragdon’s claim and eventually the case made its way to the Supreme Court (The William Bagaley, 72 U.S. 5 Wall. 377). Remarkably, at this point Bragdon’s former partners also filed a motion with the Supreme Court, asking they be awarded the other five-sixths of the value of the ship and her cargo. They explained that while they had been Confederate citizens, they had subsequently been pardoned by President Johnson and were now ready to recover their lost investment, too.
In an opinion authored by Associate Justice Nathan Clifford (right, 1803-81), the court rejected both Bragdon’s and his former partners’ claims. The court held that Bragdon had effectively walked away from his property in Mobile and made no effort to remove or recover it for more than a year before it was seized by the Confederacy, effectively abandoning it. Bragdon claimed to have been loyal to the United States throughout the war, but Clifford wrote that with that loyalty came an obligation to break with his Confederate business partners and recover whatever interest he had in the boat. Ships, Clifford wrote, have a peculiar national identity that other forms of tangible property don’t, because they are formally registered, fly a national flag, and carry official government papers licensing their activities. By abandoning his vessel in what amounted to a foreign port during wartime, Bragdon had effectively handing over his interest in the vessel to the enemy government:Open war had existed between the belligerents for more than two years before the capture in this case was made, and yet there is not the slightest evidence in the record that the appellant ever attempted or manifested any desire to withdraw his effects in the partnership or to dispose of his interest in the steamer. Effect of the war was to dissolve the partnership, and the history of that period furnishes plenary evidence that ample time was afforded to every loyal citizen desiring to improve it, to withdraw all such effects and dispose of all such interests. . . . Personal property, except such as is the produce of the hostile soil, follows as a general rule the rights of the proprietor; but if it is suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is therefore justly required of citizens resident in the enemy country or having personal property there, in changing their domicil, severing those business relations or disposing of their effects as matter of duty to their own government and as tending to weaken the enemy. Presumption of the law of nations is against one who lingers in the enemy’s country, and if he continue there for much length of time without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy.
For his part, Joshua Bragdon spent his remaining years in New Albany, Indiana, where he invested in a rolling mill. The 1870 U.S. Census identifies him as a manufacturer of T-rail — a high-demand item in the railroad-building boom of the postwar years — with a combined worth in real and personal property of $100,000. Bragdon died in 1875.
Federal troops at Point Isabel, Texas, as shown in a Febraruary 1864 issue of Frank Leslie’s Illustrated Newspaper. At left are two riverboats, similar to William Bagaley, serving as Union army transports. Library of Congress.
By the time Justice Clifford wrote his opinion in 1866, though, the steamer William Bagaley was only a memory. The ship had been purchased at auction by the U.S. Quartermaster Department and outfitted as a transport for Nathaniel Banks’ expedition to the Texas coast. Bagaley was one of fourteen transports that sailed from the Southwest Pass of the Mississippi on October 26, 1863, bound for the anchorage at Brazos Santiago, near the mouth of the Rip Grande. A little over three weeks later, after offloading at Brazos Santiago, Bagaley was wrecked on the bar at Aransas Pass, near Corpus Christi, on November 18, 1863.
Map from the OR Altlas showing the wreck location of Bagaley at Aransas Pass, Texas.
I don’t know if the wreck of William Bagaley has ever been located or identified, but if it survives it presumably lies in Texas state waters and, on that account, should be considered a protected archaeological landmark under the Texas Antiquities Code.
 Works Progress Administration, Ship Registers and Enrollments of New Orleans, Louisiana, Vol. V: 1851-1860 (Louisiana State University, 1942), 272; Frederick Way, Jr., Way’s Packet Directory, 1848-1983 (Athens, Ohio: Ohio University, 1983), 487.
 Works Progress Administration, 272; Leonard V. Huber, Advertisements of Lower Mississippi River Steamboats, 1812-1920 (West Barrington, Rhode Island: Steamship Historical Society of America, 1959), 68.
 Official Records of the Union and Confederate Navies (hereafter cited as ORN), Volume 19, 656-57.
 The William Bagaley, 72 U.S. 5 Wall. 377 (1866, hereafter cited as Bagaley Case), (http://supreme.justia.com/cases/federal/us/72/377/case.html).
 Stephen R. Wise, Lifeline of the Confederacy: Blockade Running During the Civil War (Columbia: University of South Carolina, 1988), 171-72; ORN 17:504-07.
 ORN 17:507.
 New Orleans Times-Picayune, July 24, 1863, p. 2.
 Bagaley Case.
 Charles Dana Gibson and E. Kay Gibson, Assault and Logistics, Union Army Coastal and River Operations, 1861-1866 (Camden, Maine: Ensign Press, 1995), 336; ibid., 339; Charles Dana Gibson and E. Kay Gibson, Dictionary of Transports and Combatant Vessels, Steam and Sail, Employed by the Union Army, 1861-1868 (Camden, Maine: Ensign Press, 1995), 338.
Yes, alcohol was involved. Language NSFW.
Small stories that don’t warrant full posts of their own:
- Rob Baker has been doing a great job of following the flag dispute in Ringgold, Georgia.
- To commemorate the 20th anniversary of its first webpage, Microsoft has recreated it here. Ah, memories.
- I see Gary Adams is still lifting entire, first-person passages off other peoples’ blogs and posting them to look like his own writing. Yes, this is the person who describes himself as running a “Civil War Roundtable.” Perish the thought.
- A diver off Jupiter, Florida discovered that Goliath Grouper are territorial and sometimes aggressive. Reminds me of one I encountered off Key Largo a few years ago.
- A priest in Poland says that he’s been getting text messages from Satan. I’m not entirely convinced that the Dark Lord has a 4G data plan, but if he does, it’s probably T-Mobile.
- Susannah Ural’s Don’t Hurry Me Down to Hades: The Civil War In The Words of Those Who Lived It is available for $1.99 on Kindle. Better jump on this one, because it may not last.
- If you ever want or need a digital map of the Roman Empire, here you go.
- Remember: the best defense against the Common Core standards is homeschooling.
- Blogger Championhilz tells a great story about the time the commander of a U.S. tinclad gunboat decided to go ashore in Mississippi for Sunday services.
- Brooks Simpson is running a poll on the location of the next big-ass flag in Virginia.
- The U.S. Fifth Circuit ruled that Texas can’t selectively prohibit the sale SCV specialty license plates. No real surprise there.
- Researchers believe they may have identified “Patient Zero,” the source of the devastating Ebola outbreak in West Africa.
- I put up the video above, of David Kloke’s reproduction locomotives Leviathan and York, because trains.
Got anything else? Put it in the comments below.
It’s the standard Edgerton performance, ending with his dramatic interpretation of “I Am Their Flag.” I hadn’t realized until today that Edgerton has added his own lines to the poem, including references to the Confederate Battle Flag being “the Christian Cross of Saint Andrew, the first Apostle of Jesus Christ.” That characterization would certainly be a revelation to the South Carolina secessionist who designed that flag in the first place, and those lines don’t appear in the original poem. They seem to be Edgerton’s own personal, Christianist embellishment, like Hathaway’s “there is no denying God’s hand in this…” assertion last year about a story that defied credibility on its face. Beware of false prophets, y’all.
But anyway. Edgerton apparently makes a good living assuring his patrons that slavery wasn’t so bad, that the violence against African Americans attributed to the Klan during Reconstruction was a Yankee false-flag operation, and that Jim Crow laws were a burden imposed on white southerners by the Supreme Court.
Entertainment for white people, as Kevin says. I’m pretty sure the white nationalists from the League of the South in Oxford yesterday got some laughs out of Edgerton’s show.
On another forum we’ve been discussing the logistical challenges faced by the South during the war relating to railroads. My colleague David Bright argued — correctly, I think — that the fundamental problem was not just in the relatively limited amount of rail transport extant in the Confederacy at the beginning, but in the inability to expand or even properly maintain what they had at the start:
In my opinion, more serious were: insufficient rolling stock, lack of manpower in the CSA such that the railroads (and their supporting infrastructure — mines, foundries, etc) could not get the manpower they needed, and the inability to replace anything that was lost (rails, rolling stock, depots, etc).
Dave’s observation reminded me of a passage in a history of Houston by S. O. Young (1848-1926), who was a teenager during the war and who later wrote extensively on local history:
There were many difficulties to be overcome in the way of transportation and equally as great ones in obtaining money or credit to pay for construction. Just as the Harrisburg road got under good headway; the Houston and Texas Central got into the game. The first shovel of dirt for this road was thrown by that great railroad genius, Paul Bremond, in 1853. When he threw up that dirt he turned up more trouble for himself than generally falls to the lot of one man. Of course, he did not know this, but I am convinced that had he done so it would have made not the slightest change in his plans. His faith in himself and his confidence in his ability to accomplish whatever he started out to do, was something sublime. When it came to energy he had any engine on his road faded to a standstill. He was a wonderful man, and he did not hesitate, at times, to attempt the apparently impossible. When his first contractor got cold feet and threw up his job, Mr. Bremond promptly undertook to carry out the contract to build the road himself. There is where his troubles began.
In expectation of Tuesday’s sesquicentennial of the Battle of Mobile Bay. Have a good weekend, everyone.
My colleague Rob Baker has been doing a good job in covering the dispute over the which Confederate flag to display at the historic depot in Ringgold, Georgia. For years, the city has flown a Hardee Flag, similar in design to those used by Pat Cleburne’s troops that fought around the depot in the Battle of Ringgold Gap in November 1863. The local Sons of Confederate Veterans camp is the plaintiff in a long-running legal battle to have the more familiar Confederate Battle Flag displayed, in reference to Confederate soldiers from that area generally who served in all theaters of the war.
As it happens, on Saturday I came face-to-face with the battle flag of the Eighth Arkansas Infantry at the Texas Civil War Museum in Fort Worth, which fought at Ringgold Gap as part of Cleburne’s force. I think this flag was probably present at the fight, as it was replaced with this color of the 1864 pattern, carrying a battle honor for Ringgold Gap. It was said that the Hardee pattern had “no artistic taste about it, but which could not be mistaken” for a U.S. flag, which was a serious problem with using the Confederacy’s First National flag on the battlefield.
Saturday Oct 4
11:00 AM – 4:00 PM
EVENT DATE: OCTOBER 4, 2014
- Buses leave Amarillo Civic Center at 11am and Borger Phillips Building at 1pm for the Adobe Walls Battle Site.
- $50 per person (membership discounts do not apply)
- Reservations must be made in advance no later than August 15th by contacting Amy Mitchell at PPHM at 806-651-2242 or email amitchell-at-pphm.wtamu.edu.
Join the Panhandle-Plains Historical Museum and Hutchinson County Historical Museum as we celebrate the sesquicentennial of the First Battle of Adobe Walls with an event on OCTOBER 4, 2014. This historically significant battle occurred on November 25th, 1864 and was the only Civil War battle fought in the Texas Panhandle. The battle site is located in present-day Hutchinson County on the Turkey Track Ranch.
The commemorative event will take place at the 1864 Adobe Walls Battle Site. Guests will be transported from the Amarillo Civic Center (at 11am) and the Borger Phillips Building (at 1pm) by bus. Participants will enjoy speeches from both sides of the battle including appearances by Kit Carson’s great-grandson and Kiowa and Comanche tribe members. Guest speakers include: Alvin Lynn, author of Kit Carson and the First Battle of Adobe Walls: A Tale of Two Journeys, Francie Whittenburg of the Turkey Track Ranch; Brett Cruse of the Texas Historical Commission; John Carson, great-grandson of Kit Carson; and James Coverdale, great-great nephew of Kiowa chief Dohasan.
No private guest vehicles will be allowed on-site and the reservation is non-refundable. Media will need to provide credentials at the gate for admission. An alternate location will be chosen in case of inclement weather.