What legal reason did the United States government give for taking Arlington, the home of Robert E. Lee during the War Between the States?

What legal reason did the United States government give for taking Arlington, the home of Robert E. Lee during the War Between the States?

This is an appropriate question considering the State of Alabama just celebrated General Lee’s birthday as a State holiday in January. Since the introduction of Martin Luther King’s birthday as a Federal holiday it has been conjoined with General Lee’s birthday holiday.

The construction of Arlington House began in 1802, by George Washington Parke Custis. When he died in 1857, a life estate was left to his daughter, Mary Custis Lee. A life estate of course is a deed giving a person a deed for their life with a remainder interest to another person or persons (remiandermen). Mary just happened to be the wife of then United States Colonel, Robert E. Lee. The Will of Mr. Custis left the remainder interest to a son of the Lee’s, George Washington Custis Lee. The Lee’s had lived there for thirty years when the War Between the States erupted. The Arlington estate, of course, lies just on the outskirts of Washington D.C.

In 1862, Congress passed the law entitled, "An Act for the Collection of Taxes in Insurrectionary Districts." The assessed tax included a tax on Arlington House located in the insurrection state of Virginia; that amount was $92.07. While Mrs. Lee sent a representative to pay the tax, the law according to the commissioners required that the tax be paid in person by the landowner. Because Mrs. Lee was certainly not going to present in person to pay the tax, she was considered in default and the estate placed for tax sale by the United States government in February 1863. The United States was the high bidder. While Mrs. Lee had sent many of the family valuables away, she could not remove all items. The Union officers supervising the defense of Washington D.C. occupied the home and sent many of the items left behind to the United States Patent Office for safekeeping. Some heirlooms, even from Mount Vernon escaped with the less scrupulous soldiers and never returned.

The Union officers wanted to make sure that the Lee family never returned, and in 1864 began to bury dead Union soldiers near Mrs. Lee’s rose garden. Mrs. Lee returned to see the home in 1873 and was very distraught by what she had seen. After returning to her Lexington, Virginia home, she died five months later.

George Washington Custis Lee sued for the return of the Arlington estate, finding favor in the lower courts. The United States appealed as found in the U.S. Supreme Court case, U S v. LEE, 106 U.S. 196 (1882). The burden of proof was of on Lee, establishing his right in ownership and whether the United States government and its appointed commissioners had acted properly in the acquisition of the estate. The long standing possession by the Custis/ Lee family was prima facie evidence of the possessory rights. The Supreme Court had to consider whether the sale was valid and if so then Lee would have been rightfully divested of his possessory rights and title. In looking at the actions of the tax commissioners the Court considered whether the decision of in person payment was made after advertisement was made to the landowners of the impending tax and whether a majority of the tax commissioners had acted in the same manner in requiring payment or had concurred with the requirements. It was found by the lower court that the tax commissioners required the personal payment of tax on properties later acquired by the United States as opposed to those not acquired at tax sale by the United States. In the majority opinion, the Court said,

“Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of congress and approved by the president to be unconstitutional, that the courts cannot 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? 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.”

The minority opinion of the Court was held by four justices; clearly a closely divided court. The Supreme Court majority upheld the possessory and title right of Mr. Lee. By the time the case was over, there were about ten thousand United States soldiers buried there and would have to be removed. Mr. Lee sold the estate to the United States government for $150,000.

Ms. Vanzetta Penn McPherson in the 21 January 2010 edition of the Montgomery Advertiser submitted an editorial. Ms. McPherson propagates the perpetual untruths of the Civil War to reinforce to those that neither seek nor desire the truth of the causes of that War. Her statements regarding the celebration of Lee and King’s birthdays on the same day are very offensive to this grandson of nine great-great and great-great-great grandfathers that fought for the Confederacy. Does she really believe that these poor farmers fought for slavery rather than against an invader that burned, pillaged and sometimes raped even slaves? Ms. McPherson wrote, “But juxtaposing Martin Luther King Jr. and Robert E. Lee on the same holiday raises implausibility to unprecedented heights. First, by definition, had Lee succeeded in his grandest undertaking, King would not have been free to learn to read, marry his chosen partner, travel, vote, or to live, work or be buried where he wished. The frequent revisionist claims regarding Lee's mission have been repeatedly debunked.”

The fact is that Robert E. Lee wrote in a letter in December 1856, “There are few, I believe, in this enlightened age, who will not acknowledge that slavery as an institution is a moral and political evil. It is idle to expatiate on its disadvantages. I think it is a greater evil to the white than to the colored race. While my feelings are strongly enlisted in behalf of the latter, my sympathies are more deeply engaged for the former. The blacks are immeasurably better off here than in Africa, morally, physically, and socially. The painful discipline they are undergoing is necessary for their further instruction as a race, and will prepare them, I hope, for better things. How long their servitude may be necessary is known and ordered by a merciful Providence. Their emancipation will sooner result from the mild and melting influences of Christianity than from the storm and tempest of fiery controversy. This influence, though slow, is sure. The doctrines and miracles of our Savior have required nearly two thousand years to convert but a small portion of the human race, and even among Christian nations what gross errors still exist! While we see the course of the final abolition of human slavery is still onward, and give it the aid of our prayers, let us leave the progress as well as the results in the hands of Him who, chooses to work by slow influences, and with whom a thousand years are but as a single day. Although the abolitionist must know this, must know that he has neither the right not the power of operating, except by moral means; that to benefit the slave he must not excite angry feelings in the master; that, although he may not approve the mode by which Providence accomplishes its purpose, the results will be the same; and that the reason he gives for interference in matters he has no concern with, holds good for every kind of interference with our neighbor, -still, I fear he will persevere in his evil course. . . . Is it not strange that the descendants of those Pilgrim Fathers who crossed the Atlantic to preserve their own freedom have always proved the most intolerant of the spiritual liberty of others?”

I respect my African American friends and clients for who they are, for what they have achieved in their lives through their own hard work and sweat and for the decisions that they have made to better their own lives. I am not sure why two years after America elected an African American President and later reelected him that Ms. McPherson would propagate devisive language and not seek the truth about General Lee. Lee once told the mother of a young boy to teach him to deny himself. What an excellent Christian or even secular principle. Lee’s life is most worthy of celebration.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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Mailing address: Ronald A. Holtsford, Esq., Ronald A. Holtsford, LLC, 7956 Vaughn Road, Box #124, Montgomery, AL 36116, (334) 220-3700 raholtsford@aol.com