The Faculty Lounge

UPDATE: The Breaching of Macomb’s Dam(n) Bridge

One writing truth that I learned (relearned?) writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the first installment of this saga here. 

When we last met, Robert Macomb had constructed his dam(n) bridge across the Harlem River . The New York legislature had granted him the right to build the dam so long as it did not impede navigation. Legislation authorizing the dam explicilty required Macomb to build and maintain a lock to ensure that the river remained navigable. 

Macomb ignored this injunction, much to the fury of the growing population of Westchester that was now cut off from New York harbor.  After Macomb’s dam was completed, boats seeking to traverse this portion of the river had to unload above the dam, haul the boat over the bridge, and then reload the boat. This was hard, dangerous work that made navigation well nigh impossible.

Enter Lewis Gouverneur Morris, scion of the wealthy Morris family that owned parts of Westchester and much of the Bronx, including the areas presently known as Port Morris and Mott Haven.  The family was extremely politically powerful. Lewis’s grandfather was Chief Judge of the New York Supreme Court, and his great-uncle Gouverneur Morris not only signed the Declaration of Independence, but also wrote the preamble to the Constitution.

Westchester landowners  drafted a Remonstrance to the State Legislature. This Remonstrance, signed by more than 100 people, averred that before the construction of Macomb’s dam the Harlem River was navigated by schooners, sloops and other vessels. Although the main thrust of this Remonstrance dealt with the High Bridge and the Croton aqueduct, it also documented and complained of the navigation problems caused by Macomb’s dam. They appointed Lewis G. Morris as their agent for addressing this problem.  Lewis brought the Remonstrance to Albany, but also took on a less orthodox role in solving the navigational challenges.

Characterizing Macomb’s dam as a public nuisance, these leading citizens of Westchester decided to take matters into their own hands. Declaring that “any person injured or incommoded by said nuisance [could] abate the same,” they deputized Lewis G. Morris and vested him with authority to remove enough of it to allow navigation. They not only agreed to pay the costs of this direct action, promised to bail out anyone who was arrested, but also advised “We recommend the employment of a strong force of men and scows, that the work may be promptly effected, and to the end of obviating opposition.” 

On August 31st 1838, Morris and his entourage boarded the Schooner Superior and sailed up to Macomb's dam. They demanded passage through the dam to deliver a load of bricks upstream.  The Bridge keeper (remember there was an illegal toll bridge atop the dam) stated the obvious—that he could not let them through because the bridge had no lock and thus there was no way for a schooner to pass.  

On September 8^th, Morris and entourage again returned in a sailboat and demanded passage through Macomb’s dam. Again they were denied, there being no lock that could afford them passage.

Finally, on the evening of September 14^th, Morris and his entourage returned once more, this time on Nonarpiel, a vessel hired to transport coal from New Jersey to Morris’s residence upriver from the dam. Morris again demanded passage through the dam.  Upon being denied passage, Morris and his men began “quietly and in a peaceable manner commence taking down part of said dam and bridge, and did take up sufficient thereof to let said vessel pass through.”

Under Morris’s direction, 63 men spent much of the next week dismantling Macomb’s dam, ultimately removing roughly three spans of the dam and demolishing one of the abutments. Through her trustee, Mary Pell Cornell Macomb sued (Robert had already died) alleging a trespass. After a trial on the merits, the judge instructed that “if the jury should find [the dam] was a public nuisance then the defendant had a right to abate it by his own act” and “that in doing so, the defendant had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels.”  The jury ruled for Morris on all counts. The appeals court not only affirmed but also awarded Morris roughly $400--the cost of dismantling the dam.

In 1854, the City of New York repossessed Macomb’s dam, and four years later, the New York legislature finally directed New York City and Westchester County to remove the dam and build a new toll-free bridge. To facilitate navigation, this bridge was built as a swing bridge. The bridge was landmarked in 1992. 

Check out Naming Gotham to learn more about the gossipy backstory behind New York City infrastructure.

Bonus: The multiple civil proceedings that emerged from this incident were among the earliest affirmations of the federally guaranteed freedom of navigation and an early definition of waters of the United States. These cases also framed a robust theory of public nuisance that might be of interest to environmental lawyers today.

Added Bonus for Property Professors: Robert and Mary Macomb were extremely litigious.  One of their many cases, Baker v. Lorillard, provides a remarkable tour of estates in land, including how to interpret ambiguous grants after the legislative elimination of fee tails, the consequences of partitioning estates encumbered by life estates, and the various ways vested remainders might be divested by executory interests.

Confederate Memorial Building Trivia

Earlier this week -- before the landslide against Confederate flags -- a local town council voted to keep the name "Confederate Memorial" on the building at right.  So I have a question: what is that building now and where is it? (I'm sorry that this is such a poor angle -- the front of the building has a sign announcing what it is, so that wouldn't make for a very good trivia question.  As it stands, this may be impossible unless you live in the neighborhood -- which a lot of our readers do; heck, a lot of our bloggers live near here.)

And as you're working on that question, I want to begin to talk about why I feel differently about Confederate flags on government property (which should be taken down and obviously will be) and Confederate memorials and buildings named after Confederate heroes.  Part of this relates to the difference between the continual care that a flag needs -- we have to put a new one up frequently -- whereas the Confederate monuments have been up for decades (usually but not always; some new ones are still going up).  Sure,  we can alter  a monument once it's up, but for me the distinction is that we're dealing with a landscape put up decades ago instead of something that (in the case of the Confederate flag in Columbia South Carolina) was put up this morning.

There's another reason why I think it's important to keep monuments up -- as a general matter.  It's that if we take them down, we'll too easily forget that the landscape was once populated by (and controlled by) people who supported the Confederacy.   Taking those monuments down will facilitate forgetting of that important fact.  This is where I part company, I suppose with both a lot of my friends who work on race in American history, and also with some of the neo-Confederates with whom I was temporarily aligned (they can now go back to hating my scholarship).  Putting up another pro-United States monument or something just commemorating in simple but elegant terms the deaths of United States soldiers and slaves, as Terry Malloy aptly suggested, I don't think accomplishes fully the purpose of remembering.  It remembers the sacrifices of those who fought to end slavery and preserve the United States and those who died under the system of slavery, but it doesn't preserve the record that those in power supported the Confederacy.

I recognize, however, that some monuments may continue to be such a bitter pill to swallow for the community -- especially where African Americans didn't have a say in the initial placement of a monument -- that it should come down (or be moved somewhere else).  Nathan Bedford Forrest Park in Memphis is one of those places where the renaming may be appropriate, just as it was necessary to rename Nathan Bedford Forrest School in Jacksonville a few years back.  Balancing the value of history and the current harm imposed by a monument is critical.  There's a lot more to say about this and I look forward to talking about it as I work on a short piece on the renaming of Saunders Hall.  It looks like that sixteen year ban on renaming on the UNC campus may be shortened.

Update: I see that the woman arrested for pulling down the Confederate flag this morning at Columbia is Bree Newsome.  Now I'm wondering if she's related to Barry Newsome, who was involved in the Nat Turner rebellion?

H/t Linda Jacobson.

 

 

Confederate Memorial Trivia Question

Now that the Confederate flag is coming down -- cue Joan Baez -- I guess it's time for a Confederate Memorial trivia question.  We haven't had one of those in a long time.

This  may be too easy; I wish the picture were a little better.  But the light wasn't good when I was there.

And if you're interested in a discussion of some of the issues of monument removal, which may be coming soon on the heels of the removal of the Confederate flag, there was a good start at WUNC's show "The State of Things" today.

Soon I'm going to put together something on the renaming of Saunders Hall.  But until then, here are my thoughts on the problems with monument removal.

Muller on Saunders Hall Renaming

Eric Muller has an op-ed in yesterday's Raleigh News and Observer on the renaming of Saunders Hall.  He focuses particular attention on a plaque that will be added to the building:

The trustees also required the university to adorn the renamed building with a plaque that reads as follows: “We honor and remember all those who have suffered injustices at the hands of those who would deny them life, liberty and the pursuit of happiness.”

At first glance, the statement is pleasing in its timeless generality. But therein lies the problem. The society that Saunders lived in, and the society of two generations later that honored him with the naming, did not practice oppression as a generality. Whites oppressed blacks in the service of white supremacy. Why can this not be said? Indeed, why remember generic “injustices” when what we are actually remembering is “racial persecution”?

The statement even lets the oppressors subtly off the hook. It refers to them as people who “would” deny others their rights. The conditional word “would” strips their persecution of its terrible effectiveness. The truth is not that white supremacy merely aimed to deny blacks their rights – and at times their lives. The truth is that white supremacy actually did those things. Why the equivocating use of the conditional verb?

I was opposed to the renaming primarily because the removal of a name facilitates forgetting.  Eric's pointed to another way in which the new history we're telling elides our state's history.  This is further evidence that it's very difficult -- probably impossible -- for a building name (or a plaque on a building) to tell the full story.  I hope to post soon my own thoughts on this.  Right now at UNC I think the conversation is just getting started.

The illustration is from the Board of Trustees meeting last week.

University Naming Policies

I've been pleasantly surprised by how comprehensive UNC's policy on building names is.  This is what it has to say about renaming:

If the benefactor's or honoree's reputation changes substantially so that the continued use of that name may compromise the public trust, dishonor the University's standards, or otherwise be contrary to the best interests of the University, the naming may be revoked.  However, caution must be taken when, with the passage of time, the standards and achievements deemed to justify a naming action may change and observers of a later age may deem those who conferred an naming honor at an earlier age to have erred.  Namings should not be altered simply because later observers would have made different judgments.

The policy recognizes a value in tradition; the question for me is how to balance that value against a change in reputation -- and a change in what the University now values from what it valued, say 90 years ago.  I've been generally opposed to renaming because it permits forgetting -- in fact, facilitates forgetting.  However, building names are also a form of cultural capital and perhaps at some point cultural capital should be redistributed -- or we should have a good reason why it is not to be redistributed.  The usual reasons against redistribution of property don't apply here, I don't think.  For instance, there are free vested rights that have grown up around names.

Most of the policy is about building naming in the first place -- and a lot deals with donors.  There are some very specific guidelines about how much donors need to contribute for a name.  Anyway, as I've been reading over UNC's policy regarding building naming (and renaming), I've started to wonder about what other universities' policies look like.  So that set me to looking around and I see that while other schools having naming policies, none that I've come across so far as as comprehensive as UNC's.  But I thought I'd start to compile a list of university naming policies; it's small so far, but I'm going to add some to this and if readers have ones they've come across I'd love to hear about those, too.

LSU

Stanford University

University of Michigan

University of Mississippi's decision regarding renaming

University of Texas--Austin

The image is of Elisha Mitchell Hall on the UNC campus, another of the nineteenth century figures who are central to this University's history.

Saunders Hall

First off, happy Washington's birthday to everyone.  By this time next year I hope that Autumn Barrett and I will have our paper on the Richmond Washington Equine Statue done.  There's a lot to talk about there -- including the role of enslaved labor in building the monument and the role of a private charitable trust in financing the monument and thus in aiding the state's mission of commemorating Washington and furthering the constitutional culture of economic and moral progress.  And then there is the debate about what Washington's legacy meant to people in the 1850s.  In part through this monument he was turned into a symbol of states' rights and proslavery ideas.  I mean, the Confederacy incorporated the image of the monument into its seal!

But right now I want to talk about another monument -- this time a building.  It's been a while since I wrote about the discussion of renaming Saunders Hall here in Chapel Hill  Last spring and summer, amidst Duke's renaming of Aycock Hall, students here in Chapel Hill began a movement to rename Saunders Hall.  The short version is that in 1922 the University named what was then the history department after William Lawrence Saunders -- who was an important figured in the publication of early North Carolina records.  He was also a Confederate veteran who had been seriously wounded during the war and a strenuous opponent of Reconstruction.  Probably he was a leading supporter of the Klan.   

According to the Daily Tar Heel, the Board of Trustees will be announcing a response to this movement soon.  And on Wednesday I'll be speaking at lunch in room 4082 to law students (and anyone else who's interested in a couple of free slices of pizza) about the law and morality of building renaming.  I'll be talking a little about the law (the rights of donors and also three statutes -- one in Georgia that limits the removal of war memorials from public property, another in Virginia that provides funding for the maintenance of Confederate graves, and a section of the US code that provides for cemetery markers for veterans).  Then I'll shift to talk about other buildings on campus -- like Ruffin Hall -- and also the movement to rename buildings at other schools, as well as some of the considerations on each side of the discussion.  The Chancellor here has promulgated some guidelines regarding initial naming and renaming, too.  They're worth some commentary, especially the different position they take on renaming from initial naming.

Reports of the trustees' minutes that acknowledge that Saunders was a leader of the Klan seem to be influencing sentiments on campus.  Here's a link to the trustee minutes, which are on the Southern History Collection's website.  To see this page in its context, click here and look for pages 233-35 of the minutes in the book containing the years 1917-24,

I'm not going to be pushing my views on this.  The lunch is sponsored by the student bar association here as part of their periodic discussions with faculty.  If you're in the area, I hope you join us.

EJI Report: Lynching as Terrorism

The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled  Lynching in America: Confronting the Legacy of Racial Terror.  Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history.  It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy.  Lifting from the EJI web page: 

EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.

Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation.  Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.

Bryan Stevenson and the people at EJI do great work in so many areas.  Just based on the summary document available online, there is a lot of important research and analysis in this report.  In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching.  The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively.  The NYT also has an editorial on the report today that's worth a look. 

Late Nineteenth Century University Building Trivia

Digging deep in my stock of nineteenth century university buildings here.... Faculty are asking that this building, which was built at the end of the nineteenth century and then renamed for a famous turn-of-the-century politician just after World War II, be renamed.  What campus is it on and who's it named after?

Though I'm generally against renaming (it permits forgetting), I think these decisions should be made by the University's community.  One way of changing names, of course, is by use.  That is, whatever the name on the building (or on university maps) is, students can call it whatever they want.  Along those lines, I'm surprised to see that this University's wikipedia page hasn't yet been altered to reflect the new (actually old) proposed name.  Student activism just isn't what it used to be.

Update:  Now that Josh Rothman (via twitter) and Brant Hellwig (via comments) have identified this building, maybe it's time to talk a little about the discussion on Clemson's campus about this building.  It was built in 1894 and was known as Main or Old Main until 1946 when it was renamed Tillman Hall in honor of Senator Ben Tillman, who was instrumental to the University's founding. Here's a very good article on the discussion about renaming at Clemson.  The comments cover a lot of ground and as I told someone yesterday, they're shockingly thoughtful for anonymous comments on the internet.  In fact, you could write a very good article about the competing visions and uses of history out of those comments.

Meanwhile, in Chapel Hill there continues discussion over the name of Saunders Hall here on our campus. There's going to be a rally on Friday at noon at the Confederate monument on campus. UNC's naming policy, which will frame the University's response, is here.

1979 Greensboro Massacre: Historical Marker?

In November 1979, at an anti-Klan rally in Greensboro the Klan showed up -- and then massacred five of the protesters.  This led some years ago to a truth and reconciliation commission in Greensboro and now a debate about whether Greensboro should put up a historical marker.  Some of the city commissioners spoke against it because they object to the word "massacre" as part of the proposed language.  According to the Greensboro News and Record, one council members said, "I think if the wording was changed to ‘shootout’ or ‘shooting’ it would be closer to what actually happened ... The marker can’t tell the whole story but the word ‘massacre’ gives you the wrong idea about what actually happened that day."  So maybe there's a compromise on the way to "save history" as the News and Record phrases it.  Or, as another council member said, "I just don’t think it’s a positive for Greensboro."  That is about the best explanation you can find for why there isn't yet a marker there.

In fact, the city's already done a great job of erasing that history.  Some years back when I was visiting Greensboro I went looking for the site of the massacre.  It's hard to find because the roads there have been redrawn.  What I was able to find is the cemetery marker for those killed, which is in a cemetery a few blocks away.  

Of course I believe that a historical marker is more than in order.  This is going to a vote on February 3. For those of you thinking of attending, the Greensboro City Council agenda for February 3 is here. And here is an article that puts the debate into more context. The North Carolina Department of Cultural Resources has promulgated extensive guidelines regarding placement of new historical markers, which are available here.

Update: the city council voted 7-2 to approve the marker.

H/t Eric Fink.

Re-Integrating Spaces at Savannah Law School

Next Friday and Saturday Savannah Law School will host a symposium on progressive property that celebrates the opening of their new building -- the renovated Candler Hospital, which dates back to 1819.  They're calling it "Re-Integrating Spaces."  Professor Marc Roark and the editors of the Savannah Law Review have put together a great symposium.  The panel topics are:

Place, Space, and Meaning Within the Law
Examining the role of physical space in shaping the societal sense of the meaning that property holds and the laws that govern property.

Historical Perspectives in Modern Context
Discussing how historical perspectives and preservation law influence the use and meaning of property in a modern context.

The Impact of Property Rights on Civil Rights
Exploring the influence of physical space on the experience of race, class, gender, and sexuality groups.

Property Transformation and Repurposing
Exploring the changing and competing uses of physical space and how these uses impact societal development and influence the law.

The speakers are: Anthony Baker (Atlanta’s John Marshall Law School); Stephen Clowney (University of Arkansas College of Law); Lia Epperson (American University Washington College of Law); Elizabeth Glazer (Hostra University Law School); Jamila Jefferson-Jones (Barry University School of Law); Adam G. Kirk, Esq.(HunterMaclean); Kali Murray (Marquette University Law School); Connie Pinkerton (Savannah College of Art and Design); Marc Poirier (Seton Hall School of Law); Amanda Reid (Florida Coastal School of Law); Marc Roark(Savannah Law School); Caprice Roberts (Savannah Law School); Jeffery Schmitt (Florida Coastal School of Law) and me.

Name Changes

The Washington Post editorial page is no longer going to call the Washington Redskins by that name -- which reminds us all once again that names can change in all sorts of ways, sometimes even by others changing the name they use.  While I am generally against renaming, I do think it may be appropriate in some circumstances.  Maybe those who are bent on changing names on the UNC campus -- from Saunders Hall to Aycock Dormitory to Ruffin Dormitory (I'm especially against renaming Ruffin Hall) -- ought to think about starting their own grass roots campaign.  I wish more people would take advantage of their options for peaceful self-help rather than expecting administrators to take action.

The image is the door to Aycock dormitory on UNC's campus.  To their credit, the UNC website puts Governor Aycock into his historical context.

Just remember that North Carolina has a statute for changing personal names. Here's the petition you need to file for a name change. But you only get to do this once. Maybe that's a good framework for thinking about building name changes!

Reverends Boucher and Kennon

The cast of characters in the kidnapping and redemption of Cornelius Sinclair runs from the most vicious -- the kidnappers and traders -- to the greedy and violent, such as Sinclair's purchaser in Tuscaloosa (more about that man in a few days), to those who seem to abide the rule of law, like Justice John Gayle and the jurors, to the virtuous -- those who rescued Sinclair from James Paul and then filed a suit in his behalf.   Last week I sketched the story of Sinclair's kidnapping, transportation to Tuscaloosa, and then redemption and now I'm going to start focusing on various parts of the story.  Today I'm going to be talking about the virtuous, two Methodist ministers who were central to Sinclair's rescue.  

I want to start with Joshua Boucher, who was at the center of the rescue efforts.  Boucher was from far southwestern Virginia (Lee County), by way of Tennessee, and recently arrived in Tuscaloosa when Sinclair was sold there in October 1825. The next April, Boucher and another minister, Robert Kennon, took Sinclair from his "owner," James Paul.  It seems they filed a suit on his behalf and then one of their parishioners posted a $1000 bond in case they lost the suit and as part of this they took (or had the court's permission to take, this is unclear) Sinclair from Paul.  That set in motion several other lawsuits -- Paul sued those two for enticing away his slave (Sinclair) and they reciprocated by filing a defamation action against Paul for saying that they had stolen several slaves from him.

Boucher had a real antipathy towards slavery, it seems. He wrote to the mayor of Philadelphia in January 1827, that he was ready to move to Ohio and that he was staying in this land of slavery only so long as necessary to secure Sinclair's freedom. In fact, Boucher did move to Ohio shortly after Sinclair was freed.  Boucher's fellow minister, Robert Kennon, a Methodist minister who was born in North Carolina and then came to Alabama in the 1820s, also participated in the effort to free Sinclair.  Here's  one of the many things I love about Sinclair's story -- there are pieces of it everywhere, it seems.  In Philadelphia archives, in the abolitionist press, in Tuscaloosa, in a courthouse in Mississippi, and -- get this -- in the Methodist Church in Tuscaloosa, where there is a marble plaque that commemorates Kennon's years of service to the church.  (Judson Crump's picture of the plaque is the illustration for this post.)

Those are the key people on the ground in Tuscaloosa (along with an unnamed lawyer and one other mysterious person whom Boucher wrote about briefly) who worked to free Sinclair.  But obviously it took more than well-intentioned individuals to set him free; I want to focus a little more on the judge and jurors soon and also the person on the other side of this case, James Paul -- about whom there are some really astonishing stories.  I want to focus some on what this case suggests about the southern legal system and what content -- perhaps very limited -- there was to the rule of law.

The second image is of a Methodist Church near Selma, which was built as I recall in the 1850s.  The Tuscaloosa Methodist Church where Boucher and Kenon ministered was rebuilt in the early twentieth century, so I didn't use the current Tuscaloosa Methodist Church.  Still, I wanted to have an antebellum church -- and this is what's available in my stock.

Antebellum Cemetery Trivia

How about a cemetery trivia question? We haven't had one of those in a while. This is a cemetery founded in the 1850s. It's also the only cemetery where a Democrat (as opposed to a Whig) gave the dedication address before the Gettysburg Address (so far as I know).  I don't know as that will be much of a hint. The Italianate entrance house may be a useful hint for someone -- but even if not, that reminds me that I've been thinking for a while that I need to talk sometime about the southern architecture of the 1850s that was modeled on Italian Renaissance architecture.  Talk about the Machiavellian Moment! (How's that for a reference to a book we used to hear a lot about, but haven't recently?)  But seriously, I'm interested in the architecture that was designed to recall the renaissance and how those ideas correlate with the ideas of southern judges in the 1850s. (And now that we have the cemetery identified, here's the Laurel Grove dedication address.).

Another Segregated War Memorial

Very soon I'm going to be posting a paper I'm writing with Judson Crump about a freedom suit in Tuscaloosa, Alabama in the 1820s.  Much to talk about there and how this fits with the work that legal historians such as Melvin Ely, Kirt von Daacke, and Martha Jones are doing now on free people's access to the southern courts.  But right now I want to talk about race in the twentieth century.  Yesterday I saw a  war memorial  in Warren County, North Carolina.  Warrenton is rapidly becoming one of my favorite spots in North Carolina.

Close readers of the faculty lounge may recall that I was floored by Governor Romney's speech accepting the Republican nomination back in 2012.  He spoke about monuments:

Everywhere I go in America, there are monuments that list those who have given their lives for America. There is no mention of their race, their party affiliation, or what they did for a living. They lived and died under a single flag, fighting for a single purpose. They pledged allegiance to the UNITED States of America.

Since I write about monuments,monument law, and the constitutional significance of monuments, I was super excited to hear this talk of monuments from a presidential candidate.  But I thought that I'd seen some segregated monuments.  And over time I've been collecting examples of monuments that are segregated.  Back in May I posted an image of a segregated monument in Yanceyville, North Carolina, which is in front of the late antebellum Caswell County Courthouse.  And now I have another one from Warrenton, North Carolina.  (You'll probably have to click on the image to see this well.)  I'm not sure when this monument was put up, but I'm going to say that it's a safe bet sometime after August 1945.

Confederate Monument Trivia Question

When I first saw the Pittsboro County, VA confederate monument I thought he was facing south.  That surprised me because it would be a big no, no -- as people obsessed with these things will tell you.  I now think he's facing more west than south.  But whatever.  All of this reminds me that I want to ask a two-part trivia question related to a Confederate monument in twentieth century fiction.  First, where is the following passage from?  Sure you can google this, but I think it'll be pretty obvious at the least the author, even if not the book.

Second -- and more importantly: what the heck is this about the UDC members who storm out of Gone with the Wind?  I mean, is it possible that back in the 1930s it was too enlightened on issues of race for some people?  The answer may surprise you.

[E]pilogue and epitaph, because apparently neither the U.D.C. ladies who instigated and bought the monument, nor the architect who designed it nor the masons who erected it had noticed that the marble eyes under the shading marble palm stared not toward the north and the enemy, but toward the south, toward (if anything) his own rear -- looking perhaps, the wits said (could say now, with the old war thirty-five years past and you could even joke about it -- except the women, the ladies, the unsurrendered, the irreconcilable, who even after another thirty-five years would still get up and stalk out of picture houses showing Gone with the Wind), for reinforcements; or perhaps not a combat soldier at all, but a provost marshal's man looking for deserters, or perhaps himself for a safe place to run to: because that old war was dead; the sons of those tottering old men in gray had already died in blue coats in Cuba, the macabre mementos and testimonials and shrines of the new war already usurping the earth ....

Reproduction Flags Come Down; Originals Go Under Glass

The Richmond Times Dispatch has the details of the resolution of the controversy over the Confederate flags at the Lee Chapel.  The short version is that the replica flags, which have been there since the 1990s, will come down.  (The original flags were placed there in the 1930s.) Then original flags from the Confederate Literary Society (which operates the White House of the Confederacy) will be displayed on a rotating basis.  Close readers of the faculty lounge may recall that in the early twentieth century Congress authorized the War Department to return captured Confederate flags to their states (or when they could not be matched to a state, to the Confederate Literary Society in Richmond).

I'm guessing that the originals, which must be incredibly fragile at this point, will be displayed under glass.

If you're interested in hearing more about W&L's history with slavery (and anti-slavery), here's a talk I gave there back in 2010.

Update: President Ruscio's full statement is here.

H/t Terry Meyers.

Robert Post on Who Owns America's Past

Belated congratulations to Robert Post on his re-appointment as dean at Yale Law School.  I want to talk now about a book by another Robert C. Post.  This is a book that looks terrific: "Who Owns America's Past?  The Smithsonian and the Problem of History."  Cribbing now from John Hopkins University Press' catalog:

In 1994, when the National Air and Space Museum announced plans to display the Enola Gay, the B-29 sent to destroy Hiroshima with an atomic bomb, the ensuing political uproar left the museum's parent Smithsonian Institution entirely unprepared. As the largest such complex in the world, the Smithsonian cares for millions of objects and has displayed everything from George Washington's sword to moon rocks to Dorothy's ruby slippers from The Wizard of Oz. Why did this particular object arouse such controversy? From an insider's perspective, Robert C. Post's Who Owns America's Past? offers insight into the politics of display and the interpretation of history.

Never before has a book about the Smithsonian detailed the recent and dramatic shift from collection-driven shows, with artifacts meant to speak for themselves, to concept-driven exhibitions, in which objects aim to tell a story, displayed like illustrations in a book. Even more recently, the trend is to show artifacts along with props, sound effects, and interactive elements in order to create an immersive environment. Rather than looking at history, visitors are invited to experience it.

Whenever I think about the Smithsonian I also think about Smithson's will.

The image is from Chicago's Midway Airport.

The Confederate Monument on the Courthouse Square

When last the [issue of] Confederate flags in the Lee Chapel at Washington and Lee University flew [on this blog], I provided a sort of hierarchy of places one might find a Confederate flag.  The list was designed to show some of the increasingly offensive (if that's the right term for it) placements of a flag.  In museums I have essentially no problem with the flag.  (Maybe I need to revisit this feeling and I will at some point this summer.)  And I of course recognize the right of private citizens to put the flag on their property -- unless it's greater than three square feet and you live in a place like Southern Village, Chapel Hill, NC.  I even understand it in cemeteries, especially around Confederate monuments.  I get that this is about honoring ancestors.  And I also recognize that at this point we commonly allow private citizens to carry flags on public property.  I wouldn't want to try to prohibit someone from leafletting on public property and this is  a form of that.  I'm not a real big fan, though, of Confederate flags displayed by a state actor.  I think that's where I draw the line; if this were put up for a vote I'd be 100% against it and I'd actively campaign against this.

I've been trying to figure out why it is that I am much more bothered by the flying of a Confederate flag on public property than I am by the continued presence of a Confederate monument placed on a courthouse lawn decades ago.  I suppose the distinction lies in the monument is there and has been there for probably a long while.  A flag (at least on a pole outside) is something someone put up real recently.  This goes to a distinction between the landscape as it existed before I -- or probably anyone else around here -- was born versus something being added now.  The Supreme Court has validated this kind of property-thinking in its monuments jurisprudence.

There's some federal case law on this -- as my distinguished colleague Bill Marshall pointed out to me recently.  That is, the 11th Circuit decided in NAACP v. Hunt back in 1990 that the average citizen of Alabama did not have standing to challenge the display of the Confederate flag on the Alabama statehouse.  (And the city of Lexington's ordinance that was designed to ban the display of Confederate flags was unsuccessfully challenged in the Fourth Circuit by the Sons of Confederate Veterans back last year.)

For me I think there's another distinction between a monument in a cemetery and a flag.  The monument serves as a memorial to people who often had very little control over their destiny -- they were fighting for a cause we now all recognize was wrong (or pretty much everyone recognizes this).  But they were dependent variables, mostly.  And their family members who lost loved ones and suffered the financial as well as emotional loss are largely the people who put up the monuments.

I guess it's largely because I am a historian and I love the preservation of old things -- and old landscapes -- that I am really opposed to the removal of Confederate monuments.  But I think I find more troubling the speech associated with some of the Confederate monuments than even the monuments themselves.  Take, for instance, the monument in Sussex County, Virginia, that says "The principles for which they fought live eternally."  What a statement for the government to be making on the courthouse lawn.  And just what are the principles for which they fought?  With such statements on the courthouse grounds year after year I can certainly understand why many residents -- particularly those descended from enslaved people -- would find that a bitter sight.  I understand even if I do not agree with the removal sentiment.

Memorials in Times of Transition

I see that Susanne Buckley-Zistel of the Center for Conflict Studies and Stefanie Schaefer, a research fellow at the Irmgard Coninx Foundation, have the introduction to their book Memorials in Times of Transition up on ssrn.  Cribbing now from their abstract: 

Since the 1960-70s, we can see a worldwide upsurge of memorial projects that address the violent histories of recent wars, genocides and systematic human rights abuses. Such interventions often employ a common architectural language and are informed by a set of political and ethical claims in regard to what role commemoration can and/or should play aft er large-scale violence: providing public sites of mourning, putting past wrongs right, holding perpetrators accountable, vindicating the dignity of victims-survivors and contributing to reconciliation.

Dealing with the legacy of the past is subject to transitional justice. Conventionally, it incorporates a number of mechanisms such as truth commissions, tribunals, lustrations, reparations and more recently also memory work – including memorials – in order to deal with past injustices. It is based on the assumption that any form of transition from violence to peaceful coexistence requires the disclosure of past events and the establishment of some form of justice for the victims in particular and the society in general.

Despite this general reliance on memorialisation within transitional justice, practitioners as well as scholars often share a rather skeptical outlook on the allegedly beneficial impact of such interventions: ranging from fears that an open display of contested memories reignites dormant animosities to the defeatist beliefs that symbolic politics of far-away state institutions make little difference in war-torn communities. Overall, a comprehensive answer to this complex problem is amiss and will remain so unless analysis aims at a more nuanced understanding of the complex ways in which memorials are employed by and function within transitional society. With this volume, we seek to make a contribution towards closing this research gap.

Though the memorials put up in the wake of Civil War are earlier than their project, the issues they discuss have obvious parallels.  I've thought for a long time that the excellent work that's been done on transitional justice could be enriched by looking at the south in the wake of Civil War.  There were shattered lives struggling to be put back together -- the formerly enslaved people who had little resources and whose government often abandoned them, as well as members of the formerly ruling class whose wealth had been largely lost, who were struggling to regain political power.  The efforts at addressing past injustices was missing -- it was, to turn Eric Posner and Adrian Vermeule's phrase on its side, "transitional justice as ordinary injustice."  And running alongside all of this were efforts at memorialization by white southern women.  I've spoken before about my skepticism of the importance of public monuments to those who defended the slave-owning south.  But I do have to say that I think this is an area of work that deserves more attention  from legal scholars than it's received.  Soon I hope to turn to this, but first I need to finish my paper on Richmond's Washington Equine Statue and its relationship to slavery and the charitable corporation.

The illustration is a family cemetery at Appomattox.

Duke Renaming Aycock Dormitory

This morning's Washington Post brings news that Duke University has  renamed a dormitory on its campus that was named for North Carolina Governor Charles Aycock.  Cribbing now from the Post article:

Aycock, who served as governor from 1901 to 1905, has had his name affixed to the building for more than 100 years. But that is coming to an end after the university’s Board of Trustees voted to revert the building to its original name, East Residence Hall, after petitions from the student body urged the school to re-evaluate the former governor’s legacy.

Long-time readers of faculty lounge may recall that I'm not generally a fan of renaming,  But I do think this alters the environment in which my own institution, the University of North Carolina, will judge buildings on our campus named for noted white supremacists (in the case of Saunders Hall or actually the Aycock Dormitory on UNC's campus) or proslavery zealots (in the case of Ruffin Hall).  I suppose I need to add here that while this was completely unintentional on his part, Justice Thomas Ruffin was one of the most important people in our country in bringing about an end to slavery -- because his 1830 opinion in State v. Mann inspired abolitionists and held up the brutality of the system of slavery to ridicule.

And I guess we'll be hearing soon what the adminstration has decided about the Confederate flags in the Lee Chapel on Washington and Lee's campus.

Update: Here is the Duke Chronicle article on the renaming.

Update 2: My colleague Harry Watson -- who is a distinguished historian of nineteenth century America -- has a letter to the editor of the Chapel Hill News about the controversy over Saunders Hall on UNC's campus.  Here's part of it: 

The fundamental question is not about the past, however, but about the future and how the university should present itself to coming generations. Even if we interpret Saunders in the most positive light possible, a building named for him will always need a footnote to explain why UNC doesn’t really endorse racial terrorism. Why should the university shoulder that awkward and self-defeating chore, when there are far more effective ways to teach historical complexity? Far better to put this endless controversy behind us with a name that accurately represents the Carolina of today and unifies the campus and its friends.

As for Saunders personally, his name will always be inseparable from the Colonial Records series that Dr. Price mentioned. That should be monument enough for anybody.

My guess is that Harry's letter will be a turning point in the discussion of Saunders Hall.  When someone as distinguished as Harry, who works in the field related to the honoree, and who is as generally moderate (or in Chapel Hill terms conservative) as Harry says it's time for a name change, it's probably time for a name change.

(H/T Bill Turnier).

Caswell County Confederate Monument

I keep trying to take a really decent picture  of a Confederate soldier monument. One of these days I'm going to bring a ladder out and get on eye level with one of these bronze soldiers.  Until then, I'm going to have to look up at them.  I guess that's how we're supposed to approach them.

But right now I want to talk about the inscription on a monument.  I've been interested for a while in the shifting language on Confederate monuments.  A lot of the late nineteenth monuments are bitter, but like many memories that seems to change over time.  For instance, the 1921 monument at Appomattox refers to "principles believed fundamental."  Maybe I'm reading too much into this, but I think the past-participle part of that -- believed -- tells us something about how the UDC authors of the monument were thinking about things fifty-six years on.  And that brings me the Caswell County monument's inscription.  It reads:

To the Sons of Caswell County Who Served in the War of 1861-1865 in Answer to the Call of Their Country --- In Whatever Event That May Face Our National Existence, May God Give Us the Will to Do What Is Right, That like Our Forefathers, We May Impress Our Time with the Sincerity and Steadfastness of Our Lives.   Erected by the Caswell County Chapter United Daughters of the Confederacy 1921

This seems to me remarkably moderate in that it focuses on the sincerity and steadfastness of the soldiers, rather than the rectitude of their cause.  Recall, for instance, that the inscription on one side of the Sussex County, Virginia, monument is that "The principles for which they fought live eternally."  Somewhat more moderate, but still defiant, is the inscription on the Lunenburg County, Virginia monument that "We fought for the sovereignty of the states."  The Lunenburg statue is here.

Also, the county seat of Caswell County is Yanceyville.  You may recall that I recently posted about a World War I monunment in Yanceyville that segregates the names of soliders on the basis of race.  Here is a picture of that WWI monument in the foreground and the Caswell County Courthouse in the background.