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Robert E. Lee’s son Custis beat the federal government and reclaimed the family home.

Arligton National Cemetery is one of America’s most famous historic sites. Resting directly across the Potomac River from the National Mall, it is a burial place of warriors, diplomats, elected officials, explorers and other notable citizens. There are few locations in the country that compare to Arlington as a source of national unity and pride. The cemetery’s origins, however, reside in the bloodiest period of internal division in American history. On the eve of the Civil War, Arlington was a private estate owned by Mary Lee, the wife of Robert E. Lee and the great-granddaughter of Martha Washington. One month after the Confederate attack on Fort Sumter in April 1861, the United States Army seized the Arlington estate from the Lee family. The army turned the property into a military garrison for the defense of Washington. Three years later the government claimed formal legal title to Arlington on the grounds that Mary Lee had failed to pay a federal property tax during the war. That same year the army converted the estate into a military cemetery for the Union war dead, a burial ground that became the foundation of Arlington National Cemetery.

The Lincoln administration’s decision to claim title to Arlington sparked a legal battle between the Lee family and the federal government that lasted long after the guns fell silent at Appomattox. Seventeen years after Robert E. Lee’s surrender, his son won a sweeping victory over the government in the Supreme Court. On December 4, 1882, the justices upheld a federal trial court’s ruling that the United States government’s claim to Arlington’s title rested on an invalid tax sale. The justices thus affirmed the lower court’s holding that George Washington Custis Lee, eldest son of Mary and Robert E. Lee, held legal title to Arlington. They also upheld the lower court’s decision to permit Custis Lee to bring suit to eject the government’s officers from Arlington. On the latter point, the justices split 5 to 4, with a majority ruling for Custis Lee. The outcome of United States v. Lee made clear that the Lee family, and not the United States government, owned Arlington.

Any account of Arlington National Cemetery’s creation must begin with the estate’s extraordinary location. The Lee family home stood atop a sprawling, 1,100-acre hillside estate along the Virginia side of the Potomac River. Arlington’s location provided its residents with a panoramic view of the nation’s capital. But the qualities that made the Lee estate so noteworthy also made it a potential threat to the city of Washington. Arlington House stood only two miles from the White House and 31⁄2 miles from the Capitol building; the estate property along the Potomac was even closer. If the Confederates had occupied Arlington, they could have rained artillery shells on the White House and other government buildings. Federal control of Arlington was thus essential.

The basis of the government’s claim to Arlington was unusual. During the war, Congress assessed a federal property tax in the Confederate states. As the estate’s legal owner, Mary Lee owed $92.07 for Arlington’s assessment. When a relative attempted to pay the tax on her behalf, the commissioners refused to accept payment. They insisted that Mary Lee cross Union and Confederate lines and appear in person to pay the tax. Under the commissioners’ interpretation of the law, no friend, relative or agent could pay on the owner’s behalf. When Mary Lee failed to appear, the Treasury Department auctioned the property to the War Department. The government’s claim to Arlington thus hinged on the legality of the commissioners’ unprecedented “payment in person” policy, a requirement they imposed without any support in the statute’s text or legislative history.

In the early-morning darkness of May 24, 1861, 10,000 Union soldiers commanded by General Charles W. Sandford crossed the long bridge spanning the Potomac River from Washington, D.C., and made the ascent up the dark, forested hills of Arlington. When the Union troops arrived at Arlington House, they discovered that the Lees had already departed. Only the family’s servants remained behind to be awakened by the soldiers. The general assured the servants that he would take personal responsibility “for the perfect care and security of the house and everything in and about it.” Sandford made no such promises for the estate grounds. He ordered his troops to build a road through the woods behind the mansion, and they soon established fortifications along the perimeter of the estates.

In the fall of 1862, President Abraham Lincoln issued the Emancipation Proclamation, which declared free all slaves behind Confederate lines. In response, a tide of runaway slaves overwhelmed Washington, D.C. As conditions worsened in the city, attention naturally turned across the Potomac to Arlington. The symbolism of establishing a refuge for freed slaves at the home of the most famous Confederate general had natural appeal in the North. The idea of establishing a freedmen’s camp at Arlington originated with Danforth B. Nichols, head of the American Missionary Association, and Lt. Col. Elias M. Greene, chief quartermaster of the Department of Washington. “Freedmen’s Village,” as the site came to be known, was far more than a refugee camp. It consisted of schools, a hospital, a chapel and dozens of two-family homes. Vocational instruction constituted the central focus of the government’s activities at Freedmen’s Village. The government organized workshops to teach the village’s residents skills they could use in the labor force.

On December 4, 1863, one month before the Treasury Department transferred Arlington to the War Department, the federal government formally dedicated Freedmen’s Village. The New York Observer and Chronicle explained the ultimate purpose of the village: “Here, on the estate of Gen. Lee, the leader of the rebel armies, the experiment is to be tried on an extensive scale whether those who were recently slaves…are able to care for themselves and their families.”

Battlefield developments led to even more changes at Arlington. In the spring of 1864, General Ulysses S. Grant and the Union army launched an offensive against Lee’s army in Virginia. The month of May alone saw the Union army suffer 44,000 casualties and the Confederates 25,000. As Lee and Grant fought their way across Virginia, the city of Washington faced a public health crisis of the first order. The surge of casualties required the transportation of thousands of wounded soldiers to Washington hospitals. When the wounded died, the army buried them in the Soldiers’ Home cemetery. By early 1864 so many hospitalized soldiers had died that the Soldiers’ Home cemetery was completely filled. The army needed a new burial site.

In light of the estate’s prominence, it was inevitable that attention would turn to Arlington. Montgomery C. Meigs, quartermaster general of the Union army, was the first government official to propose burying soldiers at Arlington. There is no evidence that Meigs harbored personal ill will toward Lee before the war. However, when the Civil War erupted in 1861, Meigs experienced none of the divided loyalties that tormented many other Southern-born army officers. He insisted that national loyalty always trumped state loyalty. As quartermaster general of the army, he provided the supplies and organized the logistics that kept Union armies in the field.

The quartermaster general’s duties included providing for the interment of Union dead. The grim task constantly reminded Meigs of the war’s toll. When the shortage of grave space emerged in the spring of 1864, he looked to Arlington for a solution. With so much of the estate unused, in full view of the nation’s capital, Arlington presented an ideal site for a new military cemetery. On June 15, 1864, Meigs recommended to Secretary of War Edwin Stanton that the army begin interments at Arlington. “The grounds about the mansion,” Meigs noted, “are admirably adapted to such a use.” Stanton agreed. Later that same day he issued an order declaring that the “Arlington Mansion and the grounds immediately surrounding it are appropriated for a Military Cemetery.”

The swiftness with which the secretary acted suggests that Meigs and Stanton had discussed the idea beforehand. It appears that Meigs first proposed the idea of converting Arlington into a cemetery while touring the grounds with President Lincoln in early May. According to the Meigs family tradition, Montgomery Meigs pointed out to the president that the “ancients filled their enemies fields with salt and made them useless forever, but we are a Christian nation, why not make it a field of honor?” Clearly, one of the motivations in converting Arlington into a cemetery was to prevent the Lees from ever returning.

Meigs and Stanton were not the first to use Arlington as a military burial ground. An informal practice of burying dead soldiers on the estate grounds actually began a year before Stanton’s formal order. Ironically, Confederate soldiers who died in Washington-area prison camps were among the first to be buried at Arlington.

The number of Union burials soared once Meigs received Stanton’s formal approval. By the end of June 1864, Arlington’s soil was the final resting place for more than 2,500 soldiers, a number that would soar as the fighting escalated.

The army initially placed the graves as far from the mansion as possible in the wooded outskirts of the estate. Meigs, however, was infuriated when he learned of this practice. Discreetly burying bodies in the Arlington woods undermined the whole purpose of converting the estate into a cemetery. For Meigs, Arlington’s use as a cemetery was about more than grave space; it was about retribution.

Meigs and Stanton hoped the cemetery would serve as a grim reminder of the harm done to the nation by Lee’s decision to join the Confederacy. To underscore that point, Meigs personally supervised the burial of 65 Union soldiers in Mary Lee’s rose garden. Determined that Arlington House would never be used as a residence again, he ordered that all subsequent burials be done as close to the mansion as possible. If the Lees dared to return to Arlington after the war, Stanton and Meigs intended that “they should encounter the ghosts of their victims.”

Two days after Lee’s surrender at Appomattox, a reporter from the National Intelligencer toured the grounds at Arlington. The reporter noted “The venerable ancestral mansion…is now in the center of a vast cemetery of those who have fallen in the service of their country.”

In June 1865, a reporter from the Boston Advertiser wrote a detailed account of his tour of Arlington. “Black men, no longer slaves, are tilling the fields along the shore of the river, and at the gate of every waving meadow is a signboard, inscribed ‘Government Farms—Do Not Trespass.’ ”

Although it occupied less than a quarter of the estate, Arlington Cemetery dominated the grounds. The correspondent noted that the dead Union soldiers, all veterans of the Army of the Potomac, rested “close by the shore of the noble river whose name they bore and honored.” He found most fitting of all the fact that “from every point” in the cemetery “the lofty dome of the Capitol which they defended” was “plainly visible,” an inspiring symbol of “the strength and the unity of the nation” the soldiers died to preserve.

The government understood the cemetery’s profound importance. After the war, Arlington became the national focal point of Memorial Day ceremonies. The first official Memorial Day was held in the late spring of 1868. Dozens of politicians and generals, including General Ulysses S. Grant, gathered at Arlington for speeches and commemorative ceremonies. “The graves of the Union dead at Arlington, Virginia, formerly the estate of Robert E. Lee, were decorated with flags and flowers…in the presence of a large number of spectators,” the Chicago Tribune reported. Republican congressman James Garfield of Ohio delivered the day’s keynote address. He observed that the soldiers interred at the cemetery “sleep under the shadow of the Capitol saved by their valor,” and he predicted that Americans would always “gather here from every corner of the continent to pay their tribute of gratitude to the memory of these dead defenders” of the nation. Arlington, he declared, was “the sacred mountain of our capital.”

The case of Lee the “Arlington Case”— —commonly known as United States v. reached the Supreme Court in the spring of 1882. After hearing the arguments, the Supreme Court concluded that the facts of the case and legal precedent clearly showed that the government violated the law when it claimed title to Arlington. As Justice Samuel Miller explained in the Supreme Court’s decision in Lee, “[N]o division of opinion exists among the members of this court” on the question of who owned Arlington. The justices agreed that the evidence produced at trial left no “reason to doubt that the jury were justified in finding that the United States acquired no title under the tax-sale proceedings.”

The fundamental issue posed by United States v. Lee, however, was not who owned Arlington in a legal sense. For all practical purposes, that issue was already resolved in Custis Lee’s favor long before the case reached the Supreme Court. Rather, the issue at stake in Lee was whether Custis Lee could bring his suit in the first place. From the start, the Justice Department contended that the doctrine of sovereign immunity prohibited private citizens from suing government officers without congressional consent. In the government’s view, it was irrelevant whether Lee owned Arlington. The only issue that mattered was whether the courts could unilaterally exercise jurisdiction over the government’s officers.

After oral argument in the fall of 1882, the ninth justice, Samuel Blatchford, rejected the government’s sovereign immunity argument, thus assuring Custis Lee of victory. In a 5–4 ruling, a narrow majority of justices concluded that the case represented a choice between the rule of law and unchecked government power. As Justice Miller explained in the court’s majority opinion, “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” In eloquent language, the Lee decision reaffirmed that private citizens injured by the government’s wrongful acts have a right to a day in court.

The ruling underscored the principle that the nation’s courts would hold accountable government officials who violated the law. Within months, Congress reached a $150,000 settlement with Custis Lee for Arlington.

The ramifications of the Lee decision extended beyond the court room. When Custis Lee first filed suit in 1877, the case appeared certain to antagonize sectional resentments. Many observers expected the Arlington case to stir bitter memories of the Civil War because it pitted the United States government against the family of the leading Confederate general. The case’s ultimate legacy, however, was quite different. The Lee ruling contributed to a spirit of sectional reconciliation that was already blossoming in the early 1880s.

The symbolism of the nation’s highest court ruling in favor of the most prominent Confederate family in a lawsuit vigorously contested by the attorney general of the United States was unmistakable. The Atlanta Constitution spoke for many when it described the Court’s ruling in the Arlington case as a “triumph of justice over war prejudices.” The notion that the rule of law had prevailed over sectional prejudices resonated widely. As the Washington Post declared, “At this particular epoch in our history…the decision rendered by Justice Miller is of inestimable value to the country.” The Court’s ruling “clearly express[es] a masterly conception of the relations which the officers of the law bear to the law itself, and [of] the rights [of] the citizens of a country where the law alone is supreme.”

But the rule of law had distinct limits in a society marked by deep racial inequities. The spirit of sectional reconciliation that informed the public’s response to the Arlington case did not extend to racial reconciliation. One year after the Lee decision, the Supreme Court in the Civil Rights Cases held that the Fourteenth Amendment did not prohibit private parties from racially segregating public accommodations, such as restaurants, trains, and theaters.

“By 1883,” the historians Harold Hyman and William Wiecek have noted, “federal judges had chosen, in effect, to re-amend the Reconstruction Amendments” and “to walk around the purposes of the framers of the Amendments and to pervert their effects.” The court’s ruling in the Civil Rights Cases cleared the way for the imposition of Jim Crow segregation.

The contrasting outcomes of Lee and the Civil Rights Cases demonstrated the stark reality that white men alone reaped the full benefits of the “rule of law” in late 19th-century America. The son of the most important Confederate general found a more sympathetic hearing before the nation’s high court than did millions of African Americans in the South, none of whom had ever taken up arms against the United States government.

Not until the 1950s would the federal courts begin to defend vigorously the constitutional rights of African Americans. But the principle of judicial review that Custis Lee benefited from in the Arlington case would eventually facilitate the success of the Civil Rights Movement in the 20th century. 

Adapted from The Last Battle of the Civil War: United States Versus Lee, 1861-1883, by Anthony J. Gaughan, Louisiana State University Press, 2011.


Originally published in the December 2011 issue of Civil War Times. To subscribe, click here.