A disputed legacy
July 4, 2000
By MICHAEL HEMPHILL
THE ROANOKE TIMES
Somehow, the Confederates had made it across the field, up the slope and over the stone wall. Now, they were at the copse of trees at the center of the now-broken Union line, waving their battle flags - "treason's flaunting rag," later snarled a Northern officer - to rally more men through the breach and on to victory.
But on this July day in 1863, atop the ridge just south of Gettysburg, the Confederates - and their nation - would get no further.
Their flags drew only more Yankees, among them a barefoot private in the 1st Minnesota Volunteer Infantry, Marshall Sherman, who hadn't participated in his regiment's charge the previous day when it took on six times its number to save the Union line and possibly the war.
His glory would come this day.
Less than a hundred feet away, Sherman spotted a Virginian "shouting like mad" and waving a rebel flag. Through a hail of bullets, he charged the color-bearer, jabbed his bayonet at the man's chest and shouted, "Throw down that flag or I'll run you through."
The man dropped the flag and Sherman had his trophy.
At least, this is how legend tells the tale.
According to a fellow private, Daniel Bond, the 28th's flag lay on the ground, and as Bond ran to get it he spotted a rebel loading his gun. Bond stopped to load himself, but when he looked back up, the rebel had surrendered "and Marshall Sherman of Co. C had my prize."
A fitting beginning for a banner so woven with controversy.
The stuff of sleuths
We seem to be surrounded by Confederate battle flags.
On this day when the Stars and Stripes of a victorious United States should demand our allegiance, our attention keeps getting drawn to the symbol of a different, defeated, but not dead nation.
This year alone has seen protests in Mississippi, Georgia, Texas and South Carolina - states still flaunting the flag either in a courtroom or atop the Capitol dome.
But in Southwest Virginia, what stirs the soul is the absence of a flag, the one used to lead the 28th Virginia Infantry into battle at Gettysburg, until Sherman somehow captured it.
Now, some descendants of Confederate soldiers want it back. But a mass of Minnesotans are putting up as stiff a resistance as their forefathers did on Cemetery Ridge 137 years ago this week.
In part, the story of this flag is the stuff of sleuths: a controversial capture and mysterious disappearance, with archaic codes and century-old laws determining its rightful owner.
But like so much of our nation's greatest struggle, the flag stands for a proposition over which North and South, black and white, brother and brother, have been fighting for 150 years, be it on battlefield, schoolhouse or courthouse step:
Can this country ever be united?
Whether heroic charge or foot race gained him the flag, Sherman did turn it in to the War Department, where it was inventoried with the number 58 stencilled in the border.
The war ended two years later, and for the next two decades, the 28th's and some 500 other captured rebel banners faded from memory like smoke from now-quiet battlefields.
Ironically, a group of Northerners first broached the idea of returning them.
In 1887, Pennsylvania veterans planned a Gettysburg reunion. Wanting to lure Southerners to the event with hopes of reconciliation, they proposed returning the colors of three Confederate units. President Grover Cleveland embraced the idea and issued an executive order to that effect.
The gestures outraged many Union veterans whose comrades had fought and died capturing the flags. Even some prominent Southerners scorned the idea.
Virginia Gov. Fitzhugh Lee, himself a Confederate veteran and the great general's nephew, said the banners "are the property of the victors" and the nation didn't need to "be agitated again by pieces of bunting that mean nothing now."
Jefferson Davis, the doomed Confederacy's president, declared that the order to return the flags violated "all known military precedents." The banners, he said, belonged to the states whose troops had captured them.
Eventually, Cleveland rescinded his order, believing such an initiative "should originate with Congress."
The reunion still went off, and when 500 Pennsylvanians and 200 Southerners arrived in Gettysburg, Virginia's spokesman, Col. William R. Aylett, told a delighted crowd, "Southern men don't care who keeps the flags - the past went down in war, and we recognize now the banner of our fathers."
But two decades later the country's mood changed as it saw North and South banding together again to triumph in the Spanish-American war.
To commemorate the reunion, Congress proposed a resolution to return the flags, and again protests rang out.
This time, though, some of the nation's most lauded Northern writers rallied to the resolution's defense. Among them were Ambrose Bierce and John Howard Jewett, who wrote:
Why cling to those moth-eaten banners?
What glory or honor to gain
While the nation is shouting hosannas,
Uniting her sons to fight Spain?
In 1905, Congress approved the resolution, ordering all Confederate flags in the War Department's possession to be returned to their home states.
But by this time, the 28th Virginia's standard had vanished.
Years passed, and another Gettysburg reunion took place in 1913, the battle's 50th anniversary. Amid the pomp of President Woodrow Wilson's address and other displays of ceremony, an old-timer of the 28th Virginia stumbled into the Union section of the field and met some veterans of the 1st Minnesota.
"Comrade, what became of your flag that day up yonder?" quipped one Minnesotan.
"You Yanks got it, that's all I know," the Virginian replied.
"Right! We got it then and we've got it right now. It's in St. Paul, you old son-of-a-gun, did you know that?"
The Virginian did not, nor did he care after a night of revelry with his former foes. Bidding farewell the next morning, he said, "As long as some of you Yanks had to get that flag I'm mighty glad it was you-all."
The flag goes missing
Despite his Southern pleasantry, the question remained: How had his flag gotten to St. Paul?
An 1867 inventory indicated the War Department still had it, but one done in 1888 revealed it was "supposed to have been loaned and never returned."
Some suppose that Alexander Ramsey, Minnesota's governor during the Civil War, picked it up at the War Department while serving as its secretary from 1879 to 1881 and brought it back to St. Paul, where he became the Minnesota Historical Society's first president.
A more likely explanation - although it ignores the 1867 inventory - is that Sherman himself brought it to St. Paul when the 1st Minnesota was mustered out of service in the spring of 1864. Sherman had won the Congressional Medal of Honor for his act, so he may have been given the flag as a tool to enlist volunteers back in Minnesota. Besides, orders instructing the War Department to keep all captured Confederate flags didn't go out until 1865.
Supporting this theory is a photograph taken in St. Paul of Sherman posing before the flag. In it, he has two legs, meaning the picture had to be snapped in early 1864 because later that year, after Sherman re-enlisted, he lost a leg at a skirmish near Petersburg.
However it got back, it stayed with Sherman until his death in 1896, when it was displayed at his funeral, then briefly in the state Capitol before being packed away in a box and nearly forgotten for 60 years.
The 1961 request
Maybe Southerners felt threatened now that slow-talking towns like Atlanta were becoming cosmopolitan centers, or because blacks were finally being given equal rights, or maybe with the Civil War centennial approaching they really sought to honor their forefathers' sacrifice. But the 1950s and '60s saw a massive uprising over the Confederate battle flag.
Georgia and Mississippi both incorporated the emblem in their state flags, and South Carolina started hoisting the entire banner over its Capitol. In a more conciliatory spirit, many Southern states sought, and many Northern states returned, their long-ago captured colors.
In 1961, the Minnesota Historical Society discovered one such standard in its collection, which had been seized from a Georgia regiment by the Second Minnesota, and returned it amid much fanfare.
Reading a newspaper account of the restoration, John Jennings, director of the Virginia Historical Society, learned of the 28th Virginia's flag, and made a similar request.
Minnesota refused. In a polite exchange of letters, its historical society director said the charge of the 1st Minnesota at Gettysburg - in which its 262 men took on six times its number - was among the state's proudest moments.
The 28th's flag symbolized that sacrifice, he wrote: "I honestly believe that it has greater historical value if it remains in Minnesota than if it is returned to Virginia."
Legal opinions galore
For almost another 40 years, it lay unruffled, until 1997, when Roanoke insurance man Chris Caveness signed up with a group of men who re-enact the battles of the 28th Virginia.
One of the group's committees had been spending its time quietly grumbling about the flag's loss. Armed with nationwide connections (he insures federal buildings across the country), Caveness decided to turn up the volume. He recruited a U.S. Department of Defense inspector who uncovered the 1905 resolution and with it, legal authority for the flag's return.
He also discovered a side story to Marshall Sherman's capture of the flag.
At the height of Pickett's Charge, as the 28th Virginia briefly broke the Union line, a bullet shattered its flag staff. The 1st Minnesota's befell a similar fate as its men scrambled to thwart the assault. Looking to keep his flag flying, the Minnesota color-bearer grabbed the splintered remnant of the 28th's staff and spliced it to his own.
Caveness saw the wedded staff - which stands today next to the 1st Minnesota's faded flag in the state Capitol in St. Paul - as a symbol of national reconciliation, and hoped Minnesotans would abide by that spirit.
Around this time, the 135th anniversary of Gettysburg approached. With Caveness' findings, the 28th re-enactors envisioned a battlefield ceremony where the 1st Minnesota re-enactors would hand over the exalted cloth with military honors.
The Minnesota Historical Society had a different vision. Upon receiving the request, deputy director Ian Stewart asked for a legal opinion from state Attorney General Hubert Humphrey III.
In July 1998, Humphrey ruled that the 1905 resolution called for the return of flags only "in the custody of the War Department." Since the 28th's wasn't in its custody by then, the resolution didn't apply. Moreover, it was too late for the re-enactors to claim it was stolen, Humphrey held, because Minnesota has a six-year statute of limitations.
Undeterred, Caveness next sought an inter-museum loan. He persuaded U.S. Rep. Bob Goodlatte, R-Roanoke, to write the Minnesota society. Last fall, Caveness himself hand-delivered to Stewart a letter from Mary Hill, director of the Salem Museum, who outlined the "utmost care" her staff would give such an "important artifact" if temporarily loaned.
Stewart's reply: The flag is too fragile for shipment and exhibition. If Virginians want to view it, he said, they can check out the society's Web site, www.mnhs.org.
"And that was the straw that broke the camel's back," Caveness says. "That organization was not going to cooperate."
In a recent interview inside the 430,000-square-foot Minnesota History Center, Stewart said, "We've heard both from African-Americans in Minnesota and Virginia that this flag is a painful reminder of a heritage they would like to put behind them."
Furthermore, he wonders, how should his museum or any other handle requests from England for relics taken in the War of 1812, or Germany regarding World War II memorabilia?
And as for reconciliation, Stewart says, "This war was fought 140 years ago. Most people have reconciled with this."
Unreconciled, Caveness has enlisted his own big gun in the form of former Virginia Attorney General Anthony Troy. Helped by a cadre of Richmond Law School students, Troy wrote his own 45-page legal opinion with exhibits, arguing "federal property cannot be abandoned or disposed without Congressional assent." Since Congress never gave the flag away, Troy concluded, Minnesota is illegally in possession of it.
Caveness also has consulted Maryland textile conservator Fonda Thomsen, who has overseen 11 antique flag transfers in her 20 years of practice. Based on her examination via the Internet of the 28th's flag, she believes the banner is clearly stable enough to be shipped and displayed.
Finally, Caveness convinced a group of Roanoke-area legislators this year to pass a resolution claiming the flag had "inexplicably and unlawfully disappeared" from the War Department. The General Assembly calls upon the Minnesota legislature - which provides 60 percent of the historical society's $29 million budget - to return the "sacred icon."
If that fails, his last recourse is a lawsuit in federal court - an irony considering the ancestors his group tries to honor fought to abolish that federal system.
However, only the state of Virginia - not Caveness' re-enactors - has standing to sue and Attorney General Mark Earley's spokesman, David Botkins, said last week, "Didn't Minnesota capture it legitimately in a battle?"
Still, Botkins added, "Tony Troy has a relationship with this office," and Earley would consider the request if asked.
But Caveness first wants to give Minnesota lawmakers a chance to consider the Virginia resolution when they assemble later this year, despite Gov. Jesse Ventura's defiant stance - "To the victors go the spoils!"
"We're just kind of in a waiting game," Caveness says.
`The morass of the past'
Like so many skirmishes spun off the Civil War, this two-year spat over the flag has seen its share of rhetorical excess.
Hoping to bolster their ancestors' sacrifice, the Roanoke re-enactors claim 90 percent of the 28th Virginia was killed, wounded or captured in Pickett's charge, though historical records show a casualty rate of 54.6 percent.
On the other side, many Minnesotans suggest that the 1905 resolution calling on the War Department to return the flags was merely "a housekeeping matter," not an indication of Congress' wish to reconcile the country.
The resolution the re-enactors pushed through asserts the 28th's "is the sole battleflag captured in Pickett's Charge . . . that has not been returned."
Stephen Osman, a 1st Minnesota re-enactor who works for the historical society, parries, "Somewhere in Texas are the flags of the Third Minnesota, and I'm certainly not going to try and lead any effort to get them back."
Not to mention the 13 captured Union flags hanging in the Museum of the Confederacy in Richmond, and the 18th Virginia's colors, captured in Pickett's Charge by a New York soldier and on display today in the Gettysburg National Military Park museum.
Indeed, some have suggested Gettysburg as a compromise refuge for the banner - an option National Park Service spokeswoman Katie Lawhon said the museum would welcome.
"But let me make it clear," she quickly adds, "we are not getting into this."
Firing more sentimental shots, Caveness claims today's Minnesotans are dishonoring the legacy left them: "The 1st Minnesota fought and died for the fact that we're the Union, and the law of the land supersedes the law and interest of any single state."
Caveness comrade Greg Gallion adds, "We look at this as the only tangible way of honoring our dead who never came home."
Osman counters, "The flag was taken at the height of an invasion of the North and being flaunted in the face of Northerners and as such, was a trophy of war. It reflects that that tide was stopped and cast back, the tide that washed up Cemetery Hill."
And Michael Gray, a Minnesota native now in New York and working on a documentary of the regiment, says, "Sort of my central theme is, these guys are on the wrong side of history on both accounts - secession and slavery."
But this is not just a Virginia-Minnesota war, nor is it clear-cut black and white.
Caveness gladly fans out letters of support he's gotten from people in Oregon and Hawaii, even a Minnesota native. And he touts as an ally Rev. Paige Chargois, a black minister in Richmond and associate national director of Hope in the Cities, a nonprofit organization committed to ending racism.
"I have been trying to bring some understanding between African-Americans and who you might call Confederate sympathizers," Chargois says. "This is one more step on my journey to heal the wounds of history and move people forward beyond the morass of the past."
Just as willingly, Minnesota officials produce e-mails they've gotten from Alabama, Washington, D.C., and several from Virginia, hoping the flag stays put.
"It should not be returned," writes a Richmond man, "to a bunch of crybabies who think that because they dress up in period costumes that entitles them to the same type respect that is given to those brave men who fought in the Civil War."
"It is only by the grace of God that no one has been hurt, yet," cautions a black man from Richmond. "This is the atmosphere that the battle flag would be returning into if the MHS parts with it."
Few objective voices exist in the midst of the bombast.
One, surprisingly, is Richard Moe, author of the definitive book on the 1st Minnesota, "The Last Full Measure."
"I think the best thing to happen would be for the two state historical societies to get together and work out some kind of accommodation to have the flag displayed in both states," says Moe, now president of the National Trust for Historic Preservation. "Feelings run very deep on both sides, but the war is over and we should work something out."
Today, John Jennings is 84 and living in Washington, D.C. He has forgotten the fray he entered in 1961 as the Virginia Historical Society's director, but talks as if his past efforts were misguided.
Attention should be aimed not at Minnesota, he says, but at the Boston Athenaeum and other museums which "scavenged" Richmond after it fell in 1865 and made away with hundreds of thousands of Civil War-era documents.
"You people sail off into the sky about the purely symbolical stuff while the really important stuff is ignored," he declares.
But to Kavin Coughenour, a retired Army historian, the symbolical stuff is important.
On a recent spring day, just as he finished walking the Gettysburg field where he is now a guide, he said, "I can see both sides' reasons."
Choosing his words with care, Coughenour said, "I think it's just pride in what their ancestors did here. And there are just as many hard-headed people in Minnesota as there are in - where? Virginia."
Perhaps John Hutchens has the best idea.
Hutchens is not a Confederate or Yankee re-enactor, and doesn't work for a historical society. The balding 42-year-old drives an airport shuttle bus for Thrifty car rental in St. Paul. And like so many Americans, he has studied his Civil War history.
He has weighed both sides of the debate, believes Minnesota is in violation of the 1905 law, but also that the state shouldn't return the flag.
"It was captured," he says. "Spoils of war."
The only dignified end to this most recent feud, he believes, is for both Virginia and Minnesota to meet again on the Gettysburg field. Decked out in ceremonial dress, they would unfurl the ragged flag one last time and pay tribute to the dead men who once held it.
Then, as military protocol provides for retired banners, they would strike a flame and set the flag afire.
Honor to all, Hutchens believes. Bitterness to none.
It is made from British wool and cotton picked by whip-scarred blacks, pocked with Yankee bullets, stained with Virginians' blood.
Maybe that's the only resolution: a strong, scourging fire to wipe it all away.