The Arlington Cemetery Case: A Court and a Nation Divided

Abstract

The Arlington Cemetery Case: A Court and a Nation Divided ANTHONY J. GAUGHAN Seventeen years after the Confederate general Robert E. Lee surrendered at Appomattox, his eldest son won a sweeping victory over the federal government in the United States Supreme Court. On December 4, 1882, the Supreme Court upheld a federal trial court’s ruling that the United States government’s claim of title to Arlington National Cemetery rested on an invalid tax sale. The Justices thus affirmed the lower court’s verdict that George Washington Custis Lee (“Custis Lee”), eldest son of Mary and Robert E. Lee, held legal title to Arlington. The Supreme Court also upheld the lower court’s decision to permit Custis Lee to bring suit against the government officers who occupied 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, commonly known as the Arlington case, made it clear that the Lee family, and not the United States government, owned Arlington. The Arlington case arose from a fascinat­ ing historical background. Prior to the Civil War, Arlington was a slave plantation owned by Mary Lee, the wife ofRobert E. Lee and the great-granddaughter of Martha Washington. The Lee family home—known as Arlington House—stood atop a sprawling, 1100-acre hillside estate along the Virginia side of the Potomac River. Arlington’s location provided its residents with a spectacular view ofthe na­ tion’s capital. But the qualities that made the Lee estate so attractive also posed a threat to the City ofWashington. ArlingtonHouse stood just over two miles from the White House and three and a half miles from the Capitol building; the estate property near the Potomac was even closer. If the Confederates had oc­ cupied Arlington, they could have rained ar­ tillery shells on the White House and other government buildings. Federal control of Ar­ lington was thus essential to the security ofthe nation’s capital.1 As the Civil War began, the Lee family home at Arlington stood in the line of fire between North and South. For three decades before the war, Robert E. Lee served as a ca­ reer United States army officer. But after the Confederate attack on Fort Sumter in April 2 JOURNAL OF SUPREME COURT HISTORY Mary Lee, the wife of Robert E. Lee and the great-granddaughter of Martha Washington, inherited Arlington House, a slave plantation that stood atop a sprawling, 1,100-acre hillside estate along the Virginia side of the Potomac River. Robert E. Lee’s bedroom is pictured above. 1861, Lee resigned from the U.S. Army and accepted a commission as a general officer in the Confederate Army. Lee’s decision to side with his home state of Virginia and the Confederacy sealed Arlington’s fate. On the night of May 24, 1861, 10,000 Union soldiers commanded by General Charles W. Sandford crossed the Potomac River from Washington D.C. and occupied the Lee estate at Arlington. When the Union troops arrived at Arlington House, they discovered that the Lees had al­ ready departed to Richmond. Only the family’s servants remained behind to be awakened by the soldiers.2 There was no question that the army had a legal right to seize the Arlington estate. The courts have long recognized that the President and the military have the authority to seize private property during wartime emergencies. In the 1851 case of Mitchell v. Harmony, the Supreme Court held, “There are, with­ out doubt, occasions in which private prop­ erty may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy.”3 At the same time, however, the Court also emphasized that the Takings Clause of the Fifth Amendment remained in effect during wartime. However, as the Justices noted in their ruling in Mitchell, “Unquestionably, in such cases, the government is bound to make full compensation to the owner” of property seized by the military.4 Nevertheless, for more than twenty years after Arlington’s seizure, Congress refused to pay compensation to Mary Lee, Arlington’s legal owner, or her son and heir...