#3: Arlington Returns to the Lees

First off, there is a partial retraction (or at least a semi-correction) of last week's story of the origin of Taps... that didn't take long! Then, after years of unsuccessful attempts to recover the property and buildings of the former Arlington plantation, the Supreme Court rules in favor of the Lee family. So, what is the US Government going to do with the 20,000 military members interred there?!

This week's ghosts are some of the former slaves who became known collectively as Freedmen and came to live on the former-Arlington Plantation:

1. Danella Warris
2. Betsy Hunter
3. Juley Fitzure
4. Stephen Young
5. Frank Docket
6. Ben Johnson

For more information, including links to stream the show, visit the GoA website: https://www.ghostsofarlingtonpodcast.com 

Transcript

Episode 3: Arlington Returns to the Lees

Well, this didn’t take long – I have a correction to make. Last week I shared the story of the bugle call Taps, a story that I have read in multiple sources. Apparently, the story is just that, a story. Right after I published last week’s episode, I was listening to one of my favorite history podcasts – by the way, if you visit the podcast’s website: www.ghostsofarlingtonpodcast.com you can find a list of my favorite podcasts in the “My Playlist” tab. Anyway, I turned on Rich & Tracy Youngdahl’s The Civil Way (1861-1865): A History Podcast and tuned in to their 100th episode civil war music extravaganza where, to my dismay, they completely shoot down the Dan Butterfield authored “Taps” narrative. They said that according to an article titled “The True Story of Taps” from the August 1993 issue of Blue & Gray magazine, Dan Butterfield did not write “Taps” in 1862. 

According to authors Joseph Whitney and Steven Sears, the earliest version of a bugle call that can be positively identified as “Taps” is in an 1836 tactics manual; there is shows up as the second half of the infantry tattoo call, which at the time was the last call of the day. They also found a second example in an 1861 manual called The Regulation United States Drum and Fife Instructor. That manual has the earliest know example of the name “Taps” being specifically associated with the call to extinguish light.

If true, this seems to indicate that Butterfield did not write “Taps” but Rich & Tracy do go on to say that we can credit Butterfield with leading the post-war Army board that for the first time in US military history, standardized the official manuals for the fife, drum, and bugle which guaranteed that “Taps” would be the official call for lights out. There you have it; on with the show.

Welcome and thank you for joining me for Ghosts of Arlington Podcast; Episode 3: Arlington Returns to the Lees. <PLAY THEME> Last week we talked about Brigadier General Montgomery Meigs turning Arlington into a military cemetery, in part because of the critical need for new burial locations and in part because of his enmity towards Lee and wanting to make it impossible for the Lee family to regain the rights to their home after the sensation of hostilities, which – unbeknownst to anyone at the time – was less than a year away. Today we will see that a few thousand interred Union soldiers on their property was not going to deter the Lee family from petitioning for their home back.

On April 9, 1865, General Lee surrendered the Army of Northern Virginia, affectively ending the American Civil War. Mop up operations continued for another month and on May 9th, President Andrew Johnson issued the May 9th Declaration: declaring, despite the fact that there were still small pockets of resistance in the South, that armed resistance was virtually ended. The Lees would spend the rest of their post-war lives trying to regain possession of Arlington, while Meigs would continue working to thwart those attempts. Mrs. Lee was more vocal than her reserved husband, and often publically discussed her anger at how the Federal government was handling what she still considered her rightful home. In one such instance she said, “My heart will never know rest or peace while my dear home is so used & I am almost maddened daily by the accounts I read in the paper of the number of interments continually placed there… If justice & law are not utterly extinct in the U.S. I will have it back.” Such outbursts did not help her cause as they fueled adverse comments in the press and hard feelings amongst the radical Republicans who had zero sympathy for any of the leaders of the recent rebellion. 

General Lee was more understanding of the political reality and kept his ambitions for Arlington away from the public eye. He did find Francis L. Smith, a sympathetic Washington lawyer who was willing to quietly research the case, and Lee confided to his elder brother, Smith Lee, that he did want to regain Arlington and particularly to end the practice of burying the dead, which would only happen through its restoration to the family. Although this dream seemed unrealistic, key members of the Lee family did make discreet visits to the property. The most detailed reconnaissance report came from Lee’s daughter Mary, who reported that the landscape had been greatly changed by the felling of most trees on the plantation; cutting of several new roads, scarring the hills; and the construction of fortifications, barracks, and the Freedmen’s Village. She went on to describe the home’s interior with broken doors, broken mantels, and none of the furnishings they had not been able to take when they evacuated. She finished her report mentioning the cemetery, which stretched out for acres and acres and concluded her letter saying, “it was a very trying visit, more painful than even I expected… it was a beautiful bright nice day and the view was lovely but the whole face of the country so utterly changed that turning my back on the house I could scarcely recognize a feature of it.” Shortly after Mary’s clandestine visit, Smith Lee made his own trip to the property, where he walked away believing that plantation could be made habitable again. Unfortunately for the Lee’s, Smith was not as discrete as his niece and before he left Arlington, he shared this opinion with the cemetery superintendent, Army Captain James M. Moore. Under orders from General Meigs to look after the cemetery, Captain Moore shot off a report to his superiors, including his recommendation for more burials at the cemetery, specifically near the mansion. About the same time that Moore’s note became public, another of Mrs. Lee’s outbursts appeared in the Philadelphia Press where she insisted that she would regain Arlington. She also admitted that she had petitioned President Andrew Johnson to return her property. An editorial in response to Mrs. Lee pointed out that <quote> among other obstacles she will probably encounter is the fact that 12,000 Union soldiers have been buried upon its soil. Sixty brave officers sleep their last sleep in the grounds which surrounds the family mansion… it is of course impossible that the nation can surrender the graves of so many of its defenders to the leader of armies they volunteered to oppose. <end quote>  One sentence in this editorial – the one mentioning the brave officers – was underlined in the heavy blue pencil Meigs often used for annotating records, and the clipping was placed in the quartermaster’s files. 

Meigs, the consummate bureaucrat, had outmaneuvered Lee, the consummate strategist, for possession of the high ground. To ensure that he kept it, the quartermaster urged Secretary of War Edwin Stanton to ensure the government had a sound title to the property. Meigs would return to this refrain again and again in the years to come. For the present, Meigs arranged for the army of the dead to continue to grow at Arlington. During a ten-day period in December 1865, a burial crew moved 297 bodies that had been buried in a wartime graveyard in Alexandria to Arlington. Other crews went into the capital were they cleared temporary burial sites, moving those remains to, Arlington. At the same time, Meigs dispatched Captain Moore into the Virginia countryside to locate and rebury tens of thousands of Union soldiers from battlefields within a 35 mile radius of Washington, from Manassas to the Rappahannock River. Given the rushed nature of battlefield burials, Moore’s task took several months to complete and resulted in thousands of remains being listed as unknown. In September 1866, Meigs received word that the last of the unknowns from Manassas – the site of the first and second battles of Bull Run – and the surrounding sites had been recovered and moved forward with plans to honor them. Excavating a huge pit twenty feet in diameter and twenty feet deep around on the southwest boarder of Mrs. Lee’s garden, CPT Moore ordered a mass grave dug to be Arlington’s first memorial to unknown soldiers. 

A reporter came to witness the mass burial and reported that <quote> a more terrible spectacle can hardly be conceived than is to be seen within a dozen rods of Arlington mansion… Down into this gloomy receptacle are cast the bones of such solders as perished on the field and either were not buried at all or so covered up as to have their bones mingled indiscriminately together. At the time we looked into this gloomy cavern, a literal Golgotha, were piled together skulls in one division, legs in another, and ribs in another, what were estimated as the bones of two thousand human beings. <end quote> Meigs put the number at 2,111. When the mass burial was complete, Meigs, a skilled architect, designed a stone sarcophagus to be set over the pit and had an inscription carved into the face of the monument: <quote> Beneath this stone repose the bones of two thousand one hundred and eleven unknown soldiers, gathered after the war from the fields of Bull Run, and the route to the Rappahannock. Their remains could not be identified, but their names and deaths are recorded in the archives of their country; and its grateful citizens honor them as of their noble army of martyrs. May they rest in peace! – September, A.D. 1866. <end quote> By placing this monument, Meigs  erected another burrier to Lee’s return and established Arlington’s long tradition of honoring unknown soldiers, a military ritual that would be refined with each successive war. 

Regardless of these moves by Meigs to shore up the government’s claim to Arlington, Lee continued to meet with his lawyer, in the hope that Arlington might be returned to his family – if not to his wife, then to his eldest son George Washington Custis Lee, designated as Arlington’s heir in his grandfather’s will. Their last known consultation was in July 1870; the question of Arlington’s ownership was still up in the air when Robert E. Lee passed away on October 12, 1870 at the age of 63 in Lexington, Virginia where he was serving as the president of the Washington University. Within weeks of her husband’s death, Mrs. Lee petitioned Congress to form a joint committee, to examine the federal claim to Arlington, disclose the number of graves there, and report on what terms a suitable spot for a cemetery can be purchased in the neighborhood, and the probable cost of moving the remains. The resolution was introduced by the politically tone deaf Kentucky Democratic Senator Thomas Clay McCreery and produced a torrent of protest from the Republican dominated senate. Senator George Franklin Edmunds, a Vermont Republican labeled the resolution as repugnant to notions of justice. Regardless of Edmunds’ warning, McCreery not only introduced the resolution, but took the time to eulogize the late Confederate general and ask, “was he not a hero?” McCreery’s colleagues in the Senate, several of whom had served as officers in the Army opposing General Lee, spent the next hour answering that question in the negative. Nevada Senator James Warren Nye, who had been particularly close to the late president Abraham Lincoln, described Mrs. Lee’s petition as an insult to all who had been killed for the cause of the Union and refused to disturb these dead to make room for a traitor’s widow. Realizing his mistake a little too late, McCreery tried to withdraw his resolution but his opponents insisted on a vote and the petition was soundly defeated, fifty-four to four. The debate on the senate floor helped elevate Arlington’s status from a potter’s field created in the heat and desperation of war towards a cemetery hallowed in the national imagination and a symbol of honor and sacrifice. Some of the words being thrown around included: the sacred dead, the patriotic dead, and martyrs. Nobody was going to yield that piece of ground without a fight. Meigs’ preemptive occupation of Arlington was working. 

In the years following the war, the number of troops stationed at Arlington was reduced, but those who stayed reinforced Fort Whipple, one of the six Civil War forts constructed on Arlington’s heights. Covering 256 acres of the original property, Fort Whipple was eventually renamed Fort Myer and is still there today. By the time Mrs. Lee petitioned congress, Arlington held 16,000 graves and was suffering a decline as it gained in prestige; weeds moved in, the mansion leaked, the burial mounds sagged as coffins decayed, and wooden headboards rotted and fell away. The Grand Army of the Republic, an organization that had become a powerful advocate for veterans following the war, complained about the cemetery’s appearance. In response to the complaints, the quartermaster department began tending to the grounds, tidying the paths between the graves, patching up the old house (which would continue to leak for years), and introduced the now ubiquitous white marble headstones. The wooden headboards cost between $1.25 and $1.50 each, but they had to be repainted regularly and even when properly maintained were not expected to last more than five years. With his usual attention to detail, Meigs researched and estimated it would cost more than $1 million to install marble headstones at each grave. In an effort to save money, Meigs proposed that instead of marble, galvanized iron markers should be used. At $2 a pop, these new head stones would not cost much more than the wooden markers and would last for decades. Several of these iron markers were ordered, but proved to be unsightly, difficult to read, and maligned by nearly everyone except the frugal Meigs – who held out for his iron markers for nearly three years, when pressure from the Grand Army of the Republic convinced Congress who appropriated the $1 million needed to purchase the marble markers. 

During these post-war improvements, 1000 former slaves still lived in the Freedman’s Village – transforming their temporary refuge into a permanent settlement mainly because they had nowhere else to go. Some of the occupants had managed to purchase their five to ten acre plots of land after the war, while many continued to rent their plots from the government for a nominal fee; a platoon of thirty soldiers from the 107th regiment of the US Colored Troops kept the peace in the village and prevented outsiders from hassling the residents. Former slaves such as James Parks continued to live and work at the cemetery; Parks in particular would remain at the cemetery for decades to come. Other freedmen worked as cemetery gardeners, laborers, and teamsters. Many grew their own produce to sell at markets in the capital as they had done during plantation days. This village was an additional hurdle the Lee’s would need to overcome it they were to regain their property.

In June 1873, Mrs. Lee visited Arlington, more than a decade after she left the plantation. Accompanied by a friend, she rode onto the property in an open carriage and toured the grounds for three hours. She never got out of her coach but did ask for a drink of water from the Arlington spring; someone brought it to her along with a handful of flowers. Following the drink, she drove away. Mrs. Lee said the only good thing that came from her visit was having no desire to ever return – the change was so complete that Arlington in no way resembled her former home. Mary Custis Lee died in Lexington, Virginia five month later at the age of 65 and was laid to rest beside her husband on the Washington University campus. 

With the death of their matriarch, the Lee family’s hopes for Arlington fell on shoulders of Robert and Mary’s eldest son, George Washington Parke Custis Lee. For Custis Lee, gaining the estate was part filial obligation and part self-interest. He had no inheritance beyond the property at Arlington, now encumbered by thousands of graves, a crumbling manor house, a military outpost, a refugee village, and what seemed like an unshakable federal claim of ownership. 

Custis himself was nothing if not his father’s son. He attended the US Military Academy at West Point and graduated first in his class in 1854 while his father was the school’s superintendent; he entered the Army Corps of Engineer, as his father had done, and resigned his commission at the outbreak of the Civil War and joined the Confederate Army. Within months of his mother’s passing, Custis resumed the campaign for Arlington, returning to Congress with another petition. This time, the petition went forward without the inflammatory suggestion that Arlington be cleared of graves. Instead, while acknowledging the realities at Arlington he asked for an admission that the property had been taken illegally and requested just compensation for it. No exact dollar amount was mentioned but he did offer to give up the title to Arlington in exchange for a settlement. His expertly argued petition, which ran to 6,000 words, strongly suggests that he was getting advice from Francis Smith, the attorney who had tried to help his father. As part of the argument, Custis referenced that when his mother had sent an agent to pay the tax levied on Arlington, that agent had been turned away and the money rejected. Custis now claimed that recent Supreme Court rulings invalidated any government claim to Arlington. Simply put, Mrs. Lee’s good faith attempt to pay the tax was the same as if she had paid it. 

Custis Lee’s petition went to the Judiciary Committee and was left to languish for months. Congress remained sharply divided along regional lines, and Montgomery Meigs was still very active as the quartermaster general and once again took up the call for the government to make sure its title to Arlington could stand up to scrutiny. Meigs needn’t have worried, the petition quietly died in committee without ever coming up for debate. Following yet another defeat, it is possible that Custis’ would have given up his efforts to regain Arlington if not for several signs that the political situation in the United States was beginning to change and the icy relations between the North and South were beginning to thaw. 

Going back a few years, on May 30, 1868 the nation celebrated its first official Decoration Day, the precursor to Memorial Day. Timed to coincide with the blooming of spring flowers, the commemoration was established to honor America’s war dead. The event – organized by the Grand Army of the Republic – saw hundreds of politicians, spectators, and old warriors gather around the Arlington House to hear speeches from prominent Civil War veterans, including former major general and future president James  Garfield. Following the speeches, the large crown moved to the Tomb to the Unknown Civil War Dead, decorated with garland and flags; and then throughout the cemetery to decorate all of the graves, except those of the few hundred Confederate POWs who had been buried there. Conspicuously absent from the solemn service were any Confederate veterans who had been expressly barred from attending the ceremony. 

Now, six years later, the War Department eased its restrictions on former Confederate soldiers participating in Decoration Day at Arlington. The War Department also allowed several southern memorial associations to provide new headstones for the Confederate gaves at Arlington. After a decade of Reconstruction politics – a serious impediment to north-south reconciliation was on the verge of collapse. In the tightly contested presidential election of 1876, Ohio governor Rutherford B. Hayes, a Union general who had been wounded during the war, was elected under the promises to appoint a southerner to his cabinet, withdraw federal troops from South Carolina and Louisiana, and to finally reunify the North and South. Hayes won the White House by a single electoral vote, and though it wasn’t known at the time, he sympathized with the plight of the Lee family. He visited Arlington in 1866 while serving in congress and later confided to his wife that General Lee had received the severest punishment of any southerner <quote> expelled from such a paradise, and it made a graveyard for 12,000 Rebel and loyal dead! <end quote>. Almost immediately after Hayes’ inauguration, Custis Lee renewed his petition for Arlington – this time through the circuit court in Alexandria. In the three years since his last failed attempted to regain Arlington, Custis had hardened his legal position: instead of just asking for monetary compensation, he now asserted his ownership over the property and ask the court to evict all trespassers who had occupied it since the 1864 tax auction. 

After some finagling by the government, the case moved to the US Circuit Court for the Eastern District of Virginia where Judge Robert W. Hughes, appointed to the bench by president – and hero of the Civil War – Ulysses S. Grant, would hear the case. Arguing the position of the government, US Attorney General Charles Devens – a thrice-wounded Union officer and national commander of the Grand Army of the Republic – filed a motion to dismiss Custis Lee’s suit. Devens reasoned that the government had lawfully acquired Arlington by an act of Congress and presidential order, had held the estate for more than a decade, and was using it as public property of the United States in the exercise of their sovereign and constitutional powers, as both a military station and a national cemetery. As these uses were clearly laid out in the certificate of sale, Devens further argued that the court had no jurisdiction to hear Custis Lee’s case. Months of legal maneuvering followed and when all was said and done, Judge Hughes decided that the case would go forward, ruling “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.” Hughes ordered a jury trial and Lee’s suit, argued by Francis L. Smith was decided after a six day trial. On January 30, 1879 – fifteen years after the government purchased Arlington at auction – the jury announced that by requiring the insurgency 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 the law. The government appealed the decision to the Supreme Court, which also ruled for Custis Lee in a 5-4 vote: the 1864 tax sale had been unconstitutional. The Lees had retaken Arlington and the federal government, the soldiers stationed at Fort Whipple, and everyone living in the Freedman’s Village were now trespassing. Oh, so were the nearly 20,000 interred remains on the property.

Spoiler alert – as I’m sure you know, or at least suspect, that this is not the end of the story, and I hope that I am not giving too much away when I say that next week we will cover exactly how the federal government went about securing the legal title to the land. 

And as always: “Fear not death for the sooner we die, the longer we shall be immortal.” <PLAY THEME>