On Hallowed Ground

by Robert M Poole

  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.64 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!”65

  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.66

  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.67

  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.68

  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.69

  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.70

  “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.”71

  On the second question, regarding the legality of the 1864 sale, Miller held that the jury had ruled correctly. Mrs. Lee had attempted to pay the federal tax. She had been refused. The sale was therefore invalid, “as if the tax had already been paid or tendered,” Miller ruled.72 “What is that right as established by the verdict of the jury in this case?” Miller asked. “It is the right to possession of the homestead of the plaintiff … It is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property without due process of law, or take private property without just compensation.”73

  The Lees had retaken Arlington. This left few options for the federal government—now declared to be trespassing. It could abandon Fort Whipple, roust the residents of Freedman’s Village, disinter almost twenty thousand graves, and vacate the property—or it could buy the estate from Custis Lee, if he was willing to sell.

  He was. Both sides agreed on a price of one hundred fifty thousand dollars. Congress quickly appropriated the funds.74 Lee signed papers conveying the title on April 24, 1883, which placed the federal claim to Arlington beyond dispute.75 The man who formally accepted title to the property was none other than Secretary of War Robert Todd Lincoln, son of the Civil War president so often bedeviled by Custis Lee’s father. If the sons of such enemies could bury their differences at Arlington, there might be hope for national healing.76

  With Arlington’s ownership settled, the federal government moved to consolidate its hold on the Lee estate. The army established a permanent presence at Fort Myer, which was transformed into the nation’s premier cavalry facility with the arrival of Maj. Gen. Philip H. Sheridan in 1887. The renowned Civil War cavalryman, newly appointed to command the Army, expanded the stables at Fort Myer, installed fifteen hundred horses there, and pressed them into duty for funerals, parades, and other occasions of high ceremony in the capital.

  The neighboring cemetery, originally designed to cover two hundred acres, continued to grow as veterans aged and died, and Arlington—once the last stop for destitute and unknown soldiers—became the place for burial. Eminent Union generals, among them George Crook, Philip Kearny, Abner Doubleday, and William Rosecrans, helped pave the way to Arlington’s heights, where they competed for prominent burial space around the Lee mansion. By the late 1800s, more than 19,000 servicemen had been laid to rest in the nation’s cemetery.

  More land was needed for new graves, a developm
ent that ultimately doomed Freedman’s Village.77 This ragged community of blacks, still clinging to the bottomlands of Arlington after two decades, had outstayed its welcome on the old estate. Since the onset of war, the federal government and various missionary societies had helped to keep the refugees alive, doling out rations, shelter, clothing, training, spiritual instruction, and jobs for the former slaves. One twenty-nine-year-old government laborer, Jerry Savage, was even outfitted with a wooden leg at the village hospital when he lost his own to frostbite.78 Another refugee, Comilius Camey, age sixty-five, was feeble, friendless, and homeless when he was found wandering in Washington and sent to Arlington for sanctuary in the postwar years.79 Other settlers made the most of their new homes at Arlington; some built additions to their houses; still others built new homes by the river. They planted vines and fruit trees, dug wells, erected chicken houses, and welcomed a second and third generation into their families.

  “The population appears to be quiet and law-abiding, and free from the vice of drunkenness,” an assistant quartermaster reported in the 1880s. He counted 124 dwellings, three shops, two churches, a school house, and a population of 763. The community gave every evidence of becoming a permanent fixture at Arlington.80

  But the settlement was never meant to be more than a brief shelter on the road to self-sufficiency. The war was long over by the 1880s, and many of the freedmen’s once-trim cottages had fallen into decay—something of an embarrassment for a new capital city striving to be modern.“The village is a picturesque jumble of shanties, few of which are worthy of the name of houses,” the Washington Post reported in December 1887.81

  The village did nothing to help African Americans, an unsympathetic visitor wrote after the war. “It has but encouraged his habits of idleness and dependence, and it would seem far better to abandon it as soon as possible, and thus relieve the country of the heavy load of taxation which its support renders necessary.”82

  Just as the federal effort at Reconstruction ran out of steam in the 1870s, compassion for Arlington’s freedmen seemed to waver as the hard work of peace continued. The blacks remaining at Arlington were a daily reminder of how little progress had been made. With no other place to go, freedmen begged for work around the cemetery, where they dug graves, drove wagons, set headstones, and earned between $1 and $1.75 per day.83 They haunted the old estate at all hours, tilling their meager plots and looking decidedly unmilitary—this on a site recently designated as a military reservation encompassing the national cemetery, Fort Myer, and other lands from the original 1,100-acre plantation.84 Although able-bodied residents worked hard and treasured their family life, some freedmen complained when they were not given jobs around the cemetery85 and protested to the War Department when they were asked to work ten-hour days.86

  “We beleave it to be a violation of the Law and, an injustice to the laboring man,” an Arlington hand wrote anonymously to the quartermaster in 1869. “Besides very ill convenience some of us have familys in the city and cannot go home after quitting for it is too late in the evening and too early in the morning for to get over hear in time to go to work … Hear I will close hoping you will give it ameadate notice.”87 When this appeal landed on his desk, Brig. Gen. J. C. McFerran, a deputy quartermaster, did just that. Fuming that the petitioner had gone around him, the general won permission to fire any laborer who complained again. “I am satisfied we can get men who will gladly and willingly work ten hours per day,” McFerran assured his superiors.88 What became of the protesting workers remains unknown, but it was clear that the War Department, which had protected and cared for the residents of Freedman’s Village for so long, was losing patience with them.

  Tolerance for the freedmen reached the breaking point in November 1887. The nights were growing chilly in the Arlington hills, and each morning revealed gray smoke coiling from the scattered cottages of Freedman’s Village, where shivering residents stoked breakfast fires and struggled to warm their thinly planked homes.

  From the Lee mansion where he lived and worked, Arlington Superintendent J. A. Commerford, himself a wounded Union veteran, took in the tableau of puffing chimneys, inspected the wooded hills around his headquarters, and experienced a Eureka! moment: Arlington’s old trees had been going up in smoke, one log at a time, right under his nose. “For the past year,” he reported to the quartermaster, “some of the colored people who live on the reservation have been in the habit of entering the cemetery during the late hours of the night for the purpose of getting wood for fuel … It has been suggested that the most effective way of preventing such thefts is to cause the removal of these people from the reservation.”89 Commerford provided no evidence for his accusation, but he probably needed none. Even without substantiation, his argument carried the day.

  The War Department needed more land and welcomed any pretext for evicting the residents now considered to be squatters at Arlington. Lt. Col. George B. Dandy, newly appointed as deputy quartermaster, seized Commerford’s complaint and bucked it up the line to Brig. Gen. Samuel B. Holabird, who sent it forward to his superiors with an endorsement: “In violation of paragraph #138 Army Regulations, amended by General Order #26, Adjutant General’s Office, 1883, civilians are residing upon the Military Reservation, upon which the Arlington National Cemetery and the Military Post at Fort Myer, Va., are located. This occupation has continued many years, and since the title of the land passed to the United States by purchase, May 18, 1883, no steps have been taken for the removal of these occupants, mostly colored people. In consequence of the complaints now made, it would seem to be proper that they [the freedmen] should be ordered to vacate their holdings, giving them sufficient time for moving their property to prevent suffering.”90 Within days, Holabird received permission to eject the freedmen. The eviction orders, issued on December 7, 1887, cited pertinent army regulations: “No civilian will be permitted to reside upon a Military reservation unless he be in the employ of the government … no permission will be given any one to cultivate any portion of a Military reservation.” The freedmen were given ninety days to gather their possessions and get out.91

  This announcement, coming as a most untimely Christmas present, produced a predictable wave of consternation among village residents, now facing homelessness at the worst time of year. Some complained to the Washington Post, which reported a general “feeling of uneasiness … among the colored people of Freedman’s Village occasioned by the order of the Secretary of War.”92 A resident named Thomas Owens, who told a Post reporter that he had bought his house at Arlington for fourteen dollars in 1868, still paid the equivalent of thirty dollars a month in free labor at Fort Myer. Lucy Harris, informed of the eviction order, rooted around in her papers and came up with a receipt showing that she had paid the quartermaster fifty dollars for her house on October 31, 1868. Now she wondered “if it were really true that they were going to be turned out of house and home,” the Post reported. The New York Herald, still a voice for beleaguered African Americans, took up their cause, warning that Arlington’s “poor, helpless colored men, women, and children shall be driven out of their little homes next February in the bleakest part of the winter—homes in which they have lived undisturbed for nearly a quarter of a century.”93 It was clear that the eviction plans threatened a new controversy over property rights at Arlington.

  Facing that prospect, Secretary of War William C. Endicott did what any seasoned bureaucrat would do: he stalled for time without reversing his decision. He tried to soften the blow by letting it be known, through a reporter at the Alexandria Gazette, that the freedmen could stay in their homes until warm weather arrived. And he announced that those owning houses would be allowed take them apart and move them.94

  This gesture did little to mollify the freedmen. “Nearly all of these houses are so constructed, and in such a condition of decay, as to be useless to take down and move away,” said John B. Syphax, a respected community leader and the first African American elected to the House of Delega
tes, Virginia’s legislature.95 Chosen to speak for his neighbors and relatives, Syphax ably outlined their case to the secretary of war. For more than twenty years, he wrote, freedmen had occupied this corner of Arlington, paying rent, buying houses, working hard, and treating the place as home. They were encouraged to do so by a succession of federal authorities. “Agents representing the government fully impressed upon the people the idea that in some way they would come to possess a valid claim to this part of Arlington,” Syphax argued. The residents had put down roots, he wrote:

  About nine years ago, Lieut. R. P. Strong, then commanding at Fort Myer, gave permission to erect a brick church on the reservation, costing nearly two thousand dollars, and, here again, they were made to believe that their stay would be indefinitely prolonged; therefore, several houses were built, and the spirit of improvement again revived … Many began to plant trees, and make such other improvements as their scanty means would permit … Coming from the shades of the past, these people have proven, in their new condition of self reliance, more thrifty, and less vicious than could be reasonably anticipated … I know not what may be the purpose of the government, or the pleasure of the Honorable Secretary in the premises, but if it be to take this property wholly for National use, I most respectfully ask that an appropriation be recommended of not less than three hundred and fifty dollars a-piece for each owner of a house … Twenty-four years of residence at Arlington, with all the elements involved in this case inspire the hope that full and simple justice will be done to the weakest members of this great Republic. 96