Read On Hallowed Ground Online
Authors: Robert M Poole
With her death, Mrs. Lee’s hopes for Arlington lived on in her eldest son, George Washington Custis Lee, now thrust into the role of family leader. For Custis, who was nothing if not dutiful, regaining the estate was
a matter of filial obligation, as well as enlightened self-interest: He had no inheritance beyond the Arlington property,
now encumbered by thousands of graves, a crumbling manor house, a military outpost, a refugee village, and what seemed to
be an unshakable federal claim of ownership.
Diligent, handsome, coolheaded, and exceedingly reserved, Custis was the image of his father, whom he had been content to
follow from his earliest days.
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Trailing Robert E. Lee to West Point, Custis graduated first in the class of 1854 (while his father was superintendent);
entered the engineer corps (as his father had done); resigned his commission at the outbreak of the Civil War (after his father’s
example); and followed his father to Richmond in 1861, when both joined Confederate service. Assigned as a military aide to
Jefferson Davis, Custis yearned for a battlefield appointment but endured the war years without one, doing what was expected
of him and rising to the rank of major general. In addition to his staff duties, Custis served as the family’s acting patriarch
in his father’s absence, shipping blankets, clothing, bridles, and camping equipment to the general; keeping track of Mrs.
Lee and his four sisters when fighting threatened to maroon them; dispensing funds to relatives; writing checks for his father’s
rent on the Richmond house; consulting lawyers and business associates when the general was unable to do so; and helping to
settle the confused estate of George Washington Custis as the war crashed around the Confederate capital.
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When the fighting was over, Custis followed his father in peace, moving to Lexington, Virginia, with his parents in 1865.
There, age thirty-three, he was appointed professor of civil and military engineering at the Virginia Military Institute.
When the elder Lee died in 1870, Custis moved across town to replace him as president of Washington and Lee College, where he remained for twenty-seven years.
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Through it all Custis suppressed his own ambition, maintained a terse correspondence with family, veterans, and college associates,
and disappeared for weeks at a time, when it was said that he was suffering from arthritis, boils, dysentery, typhoid fever,
and other ailments; it was rumored that these absences might have been caused by drinking. More likely Custis was suffering
from depression, which began to haunt him at West Point and dogged him for years afterward.
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The intensely private Custis remained a lifelong bachelor. Often housebound in his later years, he left few clues about the
man behind the stiff, soldierly form glimpsed in family photographs and official correspondence.
Custis resumed the campaign for Arlington within months of his mother’s funeral, returning to Congress with a new petition.
This time the appeal went forward without Mrs. Lee’s inflammatory suggestion that Arlington be cleared of graves. Instead,
he asked for an admission that the property had been taken unlawfully, and requested just compensation for it. No sum was
specified in his request of April 6, 1874, but he offered to convey Arlington’s title to the United States in exchange for
a settlement.
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His closely argued petition, which bristled with judicial precedents and ran to six thousand words, strongly suggests that
he was still getting advice from Francis L. Smith, the family lawyer who had previously counseled Robert E. Lee on the subject
of Arlington. The document asserted that the federal government had designed its 1864 tax auction to grab the Lee estate for
the bargain price of $26,800. At the time the wartime tax was levied on Arlington, Custis asserted, his mother had been “absent
from her home and with a line of flagrant war separating her from it.” Although she had dispatched an agent to pay the tax,
federal commissioners had refused her money. This rejection, Custis now claimed, citing recent Supreme Court rulings, invalidated
any government title to Arlington: Mrs. Lee’s good-faith
attempt
to pay the tax was the same as if she
had
paid it.
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“Your petitioner has been deprived of his property without due process of law, and not only without just compensation, but
without
any
compensation whatsoever,” Lee argued in his Senate appeal. Lee acknowledged the realities at Arlington: “As Congress has
devoted it to the purpose of a national cemetery, and naturally desires to preserve in their graves, under the guard of the
Federal authority, the remains of those who lost their lives in the service of their country, your petitioner is willing
to avoid litigation, by the release of his title to the estate upon the payment of a just compensation.”
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Referred to the Judiciary Committee, Lee’s proposal languished there for months. Congress remained sharply divided along regional
lines, and Montgomery Meigs was still very much in charge as quartermaster. Spurred by Lee’s Senate initiative, Meigs urged
the secretary of war to make sure that the government’s title stood up to scrutiny. “The Adjutant General can probably report
more fully as I have understood that under instructions of the late E. M. Stanton, then secretary of war, he took some measures
to obtain perfect record of the title,” Meigs wrote in January 1875. “The Cemetery should not pass out of possession of the
country.”
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Meigs still fretted about Senate Bill 661 months later, worried that it might eke through Congress and “interfere with the
United States’ tenure of this National Cemetery—a result to be avoided by all just means.”
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He need not have worried. Lee’s petition died quietly in committee, attended by no debate and scant notice. He retreated
to Lexington to fume about the occult ways of Capitol Hill—“not a pleasant place for me to go,” he confided to a friend.
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Custis Lee might have given up then and there if not for signs that the hard feelings between North and South were beginning
to thaw. The War Department, yielding to an appeal from Confederate veterans, eased its restrictions on their participation
in Decoration Day at Arlington.
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The department also gave permission to southern memorial associations to provide new headstones for several hundred Rebels
remaining at the national cemetery.
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By the mid-1870s, it was also clear that a decade of Reconstruction—a serious impediment to North-South reconciliation—was
on the verge of collapsing from a combination of southern obstinacy and northern indifference. Throughout the old Confederacy,
the hard-won gains of African Americans were in tatters. Although national troops had been dispatched to enforce voting rights
and to protect black citizens from violence, the deployments were scarcely sufficient for the mission. More than three thousand
blacks and their white supporters were killed by the Ku Klux Klan and other terrorists between 1866 and 1876. In one such
incident, on April 13, 1873, a heavily armed white gang, led by former Confederate officers, stormed the court house in Colfax, Louisiana, and killed more than sixty black men deputized to protect local officials. Although three of the vigilantes were eventually brought to trial and found guilty in federal court, their conviction was overturned by the Supreme Court in 1875. They were never punished. By this time federal troops had been withdrawn from most southern states, where black citizens would continue to be intimidated, prevented from voting, and routed from office into the early twentieth century. This happened because the impetus for reconciliation of North and South proved greater than the commitment to full citizenship for black
Americans.
With few exceptions, southern whites resented the years of federal rule and made their voices heard. They helped to sway the
tightly contested presidential election of 1876, in which Rutherford B. Hayes of Ohio, a Union general wounded in the war,
promised to reunify North and South. He pledged to appoint a southerner to his cabinet and promised to withdraw federal troops
from South Carolina and Louisiana. When the disputed presidential election was thrown into Congress in that centennial year,
an electoral commission was appointed to resolve the matter. Hayes won the White House by a single electoral vote, in large
part because of his conciliatory gestures toward the South.
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It was not known at the time, but Hayes privately sympathized with the Lees. Having visited Arlington in 1866, when he was
a congressman and the cemetery was new, Hayes sensed the enormity of the family’s loss. “Lee—his is the severest punishment
of any Rebel,” Hayes confided to his wife in May of that year. “Expelled from such a paradise, and it made a graveyard for
twelve thousand Rebel and loyal dead!”
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Sworn in as president in March 1877, Hayes hardly had time to unpack his bags before Custis Lee revived the campaign for Arlington.
This time he took the battle to the circuit court of Alexandria, Virginia. In the three years since his fruitless appeal for
a congressional solution, Lee had hardened his legal position: Instead of compensation for Arlington, he now asserted his
ownership of the property and asked the court to evict all trespassers who had occupied it as a result of the 1864 tax auction.
These he named as defendants: Frederick Kaufman, superintendent of the cemetery; Capt. Richard P. Strong, the Army officer
in charge of Fort Whipple; and hundreds of freedmen still living on the old plantation. Since Lee’s suit of ejectment was
filed in Alexandria, where the family had deep roots and could expect congenial treatment, the federal government moved swiftly
to have the case shifted to federal court. On a writ of certiorari from Charles Devens, the U.S. attorney general, the Arlington
suit was removed to the U.S. Circuit Court for the Eastern District of Virginia in July 1877, where Judge Robert W. Hughes,
a lawyer and newspaper editor appointed to the bench by President Grant, took over the case.
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Devens, a thrice-wounded Union officer and national commander of the Grand Army of the Republic, filed a motion to dismiss
Lee’s suit. His argument: the government had lawfully acquired Arlington by an act of Congress and presidential order, had
held the estate for more than ten years, and was using it “as public property of the United States … in the exercise of
their sovereign and constitutional powers, as a military station, and as a national cemetery.” These uses had been clearly
set out in the certificate of sale, Devens argued, and the court had no jurisdiction to consider Lee’s case.
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Months of legal maneuvering ensued, with briefs flying, hearings scheduled, precedents cited. Judge Hughes finally rendered
an opinion in March 1878. The case would go forward, he ruled. “The right of every citizen to a judicial determination of
a controversy affecting his liberty or property … will not be denied at this day in this country,” he wrote.
The courts are open to the humblest citizen, and there is no personage known to our laws, however exalted in station, who
by mere suggestion to a court can close its doors against him … It is a cardinal tenet of the Constitution that the judiciary
are an independent branch of government, not to be controlled in its dispensation of justice by interference from other departments, and not only empowered but bound to administer the right without fear, favor, or affection.
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Hughes ordered a jury trial. Lee’s suit, argued by Francis L. Smith and a team of lawyers, turned upon the legality of the 1864 tax sale—exactly the argument Custis Lee had put to the Senate in 1874. After a six-day trial, the jury held for Lee on January 30, 1879. By requiring the “insurrectionary tax” to be paid in person and by refusing payment from Mrs. Lee’s agent, the government had deprived Custis Lee of his property without due process of law. “The impolicy of such a provision of law is as obvious to me as its unconstitutionality,” Hughes wrote. He explained:
Its evil would be liable to fall not only upon disloyal but upon the most loyal citizens. A severe illness lasting only ninety
or a hundred days, would subject the owner of land to the irreclaimable loss of its possession … It might happen by accident
that government, desiring a piece of land belonging to a loyal citizen engaged in its military service, might in time of war
order his command to a distant and protracted service, rendering it impossible for him to “appear in person before the tax
commissioners …” and thereby bring on a sale of it for taxes, at which sale it would itself have the power to obtain the
land irreclaimably. The familiar expedient employed by King David toward Uriah would here be repeated.
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The government appealed Hughes’s decision to the Supreme Court, which ruled for Lee again. On December 4, 1882, Associate
Justice Samuel Freeman Miller, a Kentucky native appointed by President Lincoln, wrote for the 5-to-4 majority, holding first,
that the U.S. Circuit Court had jurisdiction to try the Arlington case, and second, that the 1864 tax sale had been unconstitutional.
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“Can not the courts give remedy when the citizen has been deprived of his property by force, his estate seized and converted
to the use of the government without any lawful authority, without any process of law, and without any compensation, because
the president has ordered it and his officers are in possession?” Miller asked. “If such be the law of this country, it sanctions
a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated
liberty and the protection of personal rights.”
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