Dead Confederates, A Civil War Era Blog

Virginia SCV Threatens MoC Lawsuit

Posted in Memory by Andy Hall on August 19, 2014
Conservator
A conservator at the Museum of the Confederacy works on a flag in the museum’s collection.
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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.”

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Save the MOC

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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:

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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.” [1]
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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.

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[1] Marie C. Malaro, A Legal Primer on Managing Museum Collections (Washington: Smithsonian Institution, 1985), 20-22.

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15 Responses

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  1. Andrew Raker said, on August 19, 2014 at 6:55 pm

    I haven’t dug out my more recent edition of Malaro, but I’m sure the basic principles are the same as in your quotation. If anything, more recent case law would help the board as the move towards this new future.

    The items were donated to the Confederate Memorial Literary Society. The CMLS will retain ownership. I don’t even think there’s a legal issue for a court to consider here, as there have been in other cases in the museum world. This action could cause CMLS to spend some of its funds on lawyers – funds that could be better spent on collections care.

    Once again, the SCV has shown that it cares little about actual Confederate heritage.

    • Andy Hall said, on August 19, 2014 at 7:02 pm

      These folks have been in a twist about the MoC for years, because it’s not the shrine they want it to be. The fusion of the three institutions in Richmond is just the latest in a long chain of things to carp about.

  2. Jimmy Dick said, on August 19, 2014 at 8:39 pm

    Looks like just another way for someone to make money off of unwitting dupes who donate money. Once again, the SCV shows a total lack of interest in actual history. For them it’s the Lost Cause or nothing. Well, they’re going to get nothing. They might want to start figuring out why they only have 30,000 members out of millions of potential members, but that would involve critical thinking skills which they avoid.

    • Andrew Raker said, on August 19, 2014 at 9:27 pm

      Perhaps they could set up a fund to do a study on why they have so few members?

  3. Graham B. Patterson Jr. said, on August 19, 2014 at 9:04 pm

    Those who gave these precious and honored artifacts did so thinking that the institution they were giving to, embodied those ideals of the Confederacy and cherished its name. Those who seek this hostile takeover love only money. They seek to obscure the achievements of The Confederacy and fill their pockets with lucre from northerners who will no longer will be “offended” and have been brainwashed into believing that Lincoln declared war against the Confederacy because he wished to free the slaves. Nothing could be further from the truth. But, I am afraid the truth will be another casualty of political correctness.

    • Andy Hall said, on August 19, 2014 at 9:27 pm

      I was hoping for some insight into the legal basis for the lawsuit that maybe I’ve missed. A judge is not likely to be persuaded by vague whinges about “political correctness” and Abraham Lincoln. Case law seems very clear that donors have no standing if they decide at some indeterminate point in the future that they don’t like the institution and want their stuff back.

    • Andrew Raker said, on August 19, 2014 at 9:58 pm

      Well, enough money to save the MoC hasn’t been on offer from Confederate Heritage during its problems over the past 20 years, so it’s had to do something to stay alive, and “northern money” that exists is a lot more useful for paying expenses than “southern money’ that doesn’t.

    • Jimmy Dick said, on August 19, 2014 at 11:39 pm

      Well, I for one would love to see the Lost Cause in a courtroom where facts are presented. You would not like the results because the facts prove the secessionists were wrong, breaking the law, and traitors. The facts prove that slavery was the cause of the Civil War too, but you’re not interested in facts, only a fairy tale. That won’t hold up in court because courts want facts. The Lost Cause doesn’t have any. So yes, let’s get in a court room. We’re already in the court of public opinion where the facts have been laid out and guess what? The Lost Cause is losing because there are no facts to support that stinking pile of crap.

      It is not political correctness, it is historical correctness.

      • eshonk said, on September 17, 2014 at 9:30 pm

        Unbelievable! Secessionists were wrong and breaking the law and traitors? Wow! You certainly don’t know much about the founding principle of the United States…”consent of the governed.” You’ll find this founding principle mentioned in the “Declaration of Independence,” written by Thomas Jefferson. If you know anything about “consent of the governed,” then you’ll know that this is a God-given right, and cannot be taken from people, and people can’t give it away. People have this God-given right…forever, and can exercise this right when they decide to do so. No one has the right to deny anyone else this God-given right. Thus, when Southerners exercised their God-given right to self-determination, via seceding from the malfunctioning Union, they were NOT breaking any law, and were NOT traitors! The only traitors were those who denied Southerners their God-given right to self-determination, and caused the destruction of the original “union by choice,” and replaced it with the “union by force” with which we live today. My Revolutionary ancestors would not believe that one group of Americans actually denied another group of Americans “consent of the governed”…that principle they had fought and sacrificed for, so we could enjoy self-government. You appear to want to hide behind the issue of slavery, since to claim to have fought to free the slaves sounds so much better than the truth…Northerners denying Southerners their God-given right to self-determination, while Northerners continued to enjoy it for themselves. Shame on you for continuing to cling to the “myth” of the Union going to war to free the slaves, when nothing could be further from the truth. Just study-up on the treatment of the freedmen and women, when they tried to settle in the Northern States, and why thousands of them returned to their former Southern homes. The truth will out! BTW…the “Lost Cause” is no myth. Southerners fought for their independence from the Union (their cause), and lost the fight. Thus, they “lost their cause.” Nothing “false” about this fact, that you apparently want to ignore.

        • Andy Hall said, on September 18, 2014 at 8:28 am

          I see the coming of the American Revolution as arising from a fundamentally different situation, one that could not be addressed through representative government (as could the grievances of southerners in 1860-61).

        • Jimmy Dick said, on September 18, 2014 at 9:02 am

          Are you freaking kidding me? Just how ignorant are you to prattle on about god given rights for consent of the governed when ignoring the rights of four million black men and women kept in slavery against their will? Do not even bother to try to pawn off that bulls*** to me or anyone else with a straight face. This is just more of the denial that is so evident in the Lost Cause.

          The people of the south were being denied their god given right? It wasn’t god given. It was man made via the American Revolution. Don’t ever forget that.

          The people of the south for the most part were denied many of their political rights by their slave owning higher ups who controlled the political process. Did you skip past that part in high school?

          As for the latter half of your rant, it is just what it is, a rant with no substance based on myth. Go learn some history before you make stupid statements.

          • Andy Hall said, on September 18, 2014 at 5:56 pm

            Closing comments temporarily to let things chill a bit.

  4. Jim Schmidt said, on August 20, 2014 at 8:20 am

    Andy – Thank you so much for the post. Just as you did with explanations of maritime/prize law in your recent and excellent book on blockade runners in Texas, you’ve enlightened me on another interesting intersection of law and history. Keep up the great work and fighting the good fight.

  5. Duane Whitlock said, on August 20, 2014 at 8:56 am

    Oh Darn… just when I thought all those goodies were going to end up at the next Richmond gun show, you burst my balloon. I’ll just have to shove all my mad money back into the rat hole. Good post Andy, thanks.

  6. H. E. Parmer said, on August 20, 2014 at 6:16 pm

    We had problems with newseums once. But then we replaced the porch screen with a finer mesh.


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