Washington and Lee University

The Arlington Case: George Washington Custis Lee against the United States of America
Enoch Aquila Chase

Note: The following is taken from the Records of the Columbia Historical Society, Washington, D.C. (volume 31/32), pp. 175–207. This article was published first in the January 1929 issue of the Virginia Law Review (volume 15, pp. 207–33).

George Washington Custis Lee
The United States of America


(Read Before the Society, March 20, 1928)

In May, 1861, when General Winfield Scott ordered his Union troops to cross the Potomac River and take possession of Arlington Heights, he had no thought of embroiling the United States Government in a lawsuit with the son of Robert E. Lee. The measure was purely a military operation for the protection of Washington. Those beautifully-wooded Virginia hills overlooking the National Capital, were admirably situated for purposes of fortification. Once strongly intrenched, hostile batteries would have dominated the city, and their assault and capture would no doubt have presented considerable military perplexity to the Union forces. It is not hard to imagine what would have happened if Confederate cannon had found lodgement on the plateau where today Old Glory waves from the tall flagpole in Fort Myer Military Reservation, and had started practising artillery fire with the White House as a target. It is altogether likely, if such a thing had occurred, that President Lincoln would have had to depart hurriedly for a safer place.

To anticipate such a possibility, which if not prevented promptly would have become a probability as well, General Scott, then Commander-in-Chief of the Northern forces, on May 3, 1861, instructed General J. K. F. Mansfield, Commander of the Department of Washington, to seize and fortify Arlington Heights. For some reason these orders were not carried out until May 24th. The movement of the troops was begun the night of the 23rd; three detachments or columns participated. One column crossed the Aqueduct Bridge at Georgetown; one marched by way of Long Bridge, while the third proceeded by water to the town of Alexandria, Virginia. It was while this last-mentioned column was marching through the streets of the sleepy little town of Alexandria, that Colonel Ephraim Ellsworth, of the New York Fire Zouaves, espied a Confederate flag floating from a small hotel called the Marshall House. He entered the hotel, made his way to the roof and hauled down the flag. As he descended the stairs with the captured banner under his arm, James Jackson, owner of the place, suddenly appeared below with a double-barreled shotgun. Without much ado he emptied both barrels into Colonel Ellsworth, who pitched headlong down the stairs, dead. Jackson had short space of time to contemplate his reckless deed. Almost before the smoke had ceased to curl from his gun-barrels, he was set upon by Ellsworth's men and promptly paid the penalty with his own life. Ellsworth is said to have been the first Union officer to lose his life in the Civil War.

By sundown that evening Arlington Heights was occupied by the soldiers of the Union. There was no opposition; no Confederate troops were in force in the vicinity, nor probably nearer than Fairfax Court House. Robert E. Lee, who on June 30, 1831, at Arlington House, had married Mary Ann Randolph Custis, only child of George Washington Parke Custis, had gone to Richmond to take command of the Confederate Army and lead the Lost Cause of the South. Virginia had seceded from the Union on April 17th, and it was certain even then that her broad domain would be among the first to feel the clash of great armies hurled at one another in civil strife.

The grand mansion, set like a gem amidst the trees overlooking the Potomac and Washington, was deserted. Mrs. Lee was the last to leave Arlington House. She had worked frantically almost up to the middle of May to remove the family pictures, silver plate, furniture and household things to a place of safety, but had not entirely succeeded by the time General Scott's soldiers arrived. However, she herself was safe at Ravensworth, the home of relatives, near Fairfax Court House.

From that day to the present hour the soldiers of the United States have held and occupied the eleven hundred acres of Arlington Estate, the home of George Washington Parke Custis, grandson of Martha Washington, adopted son of George Washington, and whose father, John Parke Custis, was aide-de-campt o General Washington at Yorktown. Beneath his own lofty trees, not far from the mansion, lie the Master of Arlington, and his wife, Mary Lee Fitzhugh Custis. They sleep peacefully beneath the modest marble shafts that mark their graves and pay no heed to the martial tread of the soldiers in blue and all the panoply of war.

By order of Secretary of War Stanton, the remaining, priceless family heirlooms of George and Martha Washington, brought from Mount Vernon years before, were packed up and sent to Washington. It was a long time before any of them were returned to Mount Vernon; some of them never. Few of the Union officers knew that on April 20, 1861, in that little south room on the ground floor of the mansion, Robert E. Lee had penned his famous letter to the Secretary of War, tendering his resignation as an officer of the Army of the United States: “Save in defense of my native State, I never desire again to draw my sword.”

Thus the great Government of the United States seized Arlington, where today many thousand men of the army and navy lie sleeping their last sleep; where thousands of unknown, soldiers are buried, besides the “Unknown Soldier,” whose tomb has become a shrine for all the people and the symbol of a nation's respect.

During the war of the rebellion Washington was rimmed with forts, although many of them were mere earthwork, intrenched camps. At least two were upon Arlington Estate plantation. Upon the present site of Fort Myer, adjacent to Arlington National Cemetery, was Fort Whipple one of the strongest of these hurriedly built, military defenses of the National Capital. Every vestige of Fort Whipple has disappeared long since, but the earthen ramparts of old Fort McPherson are still to be seen within the cemetery walls of Arlington. After the first battle of Bull Run, when the Union troops came streaming back toward Washington in defeat and disaster, thousands of them made camp on these Virginia hills. Numerous field hospitals were hastily constructed to care for the wounded and dying, and all these broad acres were an armed camp. However, no soldiers were as yet buried beneath the sod of Arlington. Not until the spring of 1864, did Lincoln—as the story is told—give his consent to Quartermaster-General Montgomery Meigs for the beginning of the burial of Union soldiers and sailors beneath the trees of Arlington. But that is another story.

Here, it is purposed to tell how George Washington Custis Lee,1 the eldest son of General and Mrs. Robert E. Lee, grandson of George Washington Parke Custis, and great-grandson of John Parke Custis, fought the Government of the United States single-handed in the law courts of the land, to establish his disputed title to his ancestral Arlington Estate.

When George Washington Parke Custis died at Arlington House, on October 10, 1857, he left a will in which he devised the Arlington property to his only child and daughter, Mary Ann Randolph Lee, “during the term of her natural life, together with my horses and carriages, furniture, pictures, and plate, during the term of her natural life.” His will was dated March 26, 1855, and was probated in Alexandria County (now Arlington County, since March 16, 1920), December 7, 1857. “On the death of my daughter, Mary Ann Randolph Lee, all the property left to her during the term of her natural life, I give and bequeath to my eldest grandson, George Washington Custis Lee, to him and his heirs forever, he, my eldest grandson, taking my name and arms.”

During the four years of the Civil War, Mrs. Robert E. Lee was with her husband behind the military lines of the Confederacy. During that absence from her home, the United States, acting through its Congress and other agents, unwittingly executed a plan to deprive her of the Arlington Estate plantation. The execution of that plan had its inception in an Act of Congress dated June 17, 1862, entitled, “An Act for the Collection of Direct Taxes in the Insurrectionary Districts within the United States,” which was amended by the Act of Congress of February 6, 1863. In pursuance of that Act thus amended, certain citizens of the United States were appointed commissioners to execute it in that portion of Virginia in which the Arlington property was located. That execution was to consist in levying and collecting taxes upon real estate, and in default of payment of such taxes, with powers to sell the real estate upon which they were levied. Those commissioners prior to January 11, 1864, established, announced and uniformly followed a rule, under which they refused to receive payment of taxes from anyone except the owners in person. Inasmuch as they were exercising their functions within the military lines of the Federal Army, and inasmuch as Mrs. Lee was within the military lines of the Confederate Army, she could not go to the commissionerps ersonally to pay the taxes due upon her estate. She therefore sent a Mr. Fendall, who appeared before the commissioners as her agent and offered to pay the taxes, interests and costs which had accrued upon the property. But the commissionersr efused to receive the money from Mr. Fendall, and told him they would not take it from anyone but Mrs. Lee in person.

There was only due the sum of $92.07, with a fifty per cent, penalty, when on January 11, 1864, the eleven hundred acres of Arlington Estate plantation were sold “according to law,” as the tax-sale certificate recites:

For Government use, for war, military, charitable, and educational purposes, said commissioners did bid in the same to the United States for the sum of twenty-six thousand and eight hundred dollars, being not less than the taxes, penalty, and costs, and 10 per centum per annum interest on said taxes. *  *  *  *  *

Jno. Hawxhurst,
Gillet F. Watson,
A. Lawrence Foster,
United States Direct-Tax Commissioners
for Virginia.

It was in this manner, then, that the United States acquired its so-called title, which deprived the Lees of Arlington, and gained for the United States the hallowed ground where today lie buried those legions of its heroic dead.

Mrs. Mary Ann Randolph Lee died in November, 1873, having survived her distinguished husband, General Robert E. Lee, who died in October, 1870. Thus her eldest son, George Washington Custis Lee, became entitled to the Arlington property, as remainder-man, after the termination of her life estate, according to the will of his grandfather, George Washington Parke Custis. But long before 1873 the interment of Union soldiers in Arlington had begun. In May, 1864, Quartermaster-General Meigs had prevailed upon President Lincoln to sanction the burial of Union soldiers there, and about two hundred acres of land had been set apart and dedicated as a National Cemetery, by an order of Secretary of War Stanton, dated June 15, 1864. Thousands of the boys who wore the Union blue had by this time joined the master of Arlington, and the small white stones that marked the soldiers' and sailors' graves were being added unto day by day. Even Quartermaster General Meigs himself was one day to find his last resting-place in Arlington. His grave is there today, not more than three hundred yards from those of George Washington Parke Custis and his consort. The great Quartermaster-General and friend of Lincoln is alleged to have been very bitter against Robert E. Lee. It has been recounted that he felt the burial of Federal soldiers in Arlington would forever preclude that broad domain from again passing into the hands and ownership, of the Lee family. He was right and he was wrong.

From the day of his mother's death, George Washington Custis Lee began his efforts to recover Arlington. In vain he tried to persuade the Federal Government to restore to him his property, or to pay him for it just compensation. In April, 1874, in the 43rd Congress of the United States, First Session, there was presented in the Senate a “Memorial of G. W. Custis Lee, of Virginia”; “setting forth—His claim to ‘Arlington,’ and proposing to convey that estate to the United States upon payment of just compensation, and asking Congress to pass a law to provide for the adjudication of his title, and to ascertain the fair value of the property.” On April 6, 1874, it was—“Referred to the Committee on the Judiciary and ordered to be printed.”

The Memorial referred to was in the form of a legal argument, designed to show the Congress of the United States how Mr. Lee had been wrongfully and unjustly deprived of his property by the action of the Federal Government. His plea fell upon deaf ears. The Government had Arlington; the army still held it. Not for a day nor an hour had the armed forces of the United States ceased to exercise dominion over those Virginia hills, since May 24, 1861, when the columns of blue marched across the Potomac from Washington to take possession. What was the necessity for purchasing what the Government already possessed? The tax-title was recorded in Alexandria County, a public record. The United States had already paid twenty-six thousand eight hundred dollars for the eleven-hundred-acre Arlington Estate. It mattered not whether this payment had actually been made, nor to whom. If the Government had paid out of its right-hand pocket into its left-hand pocket, twenty-six thousand eight hundred dollars, nevertheless, for all practical purposes the land had been bought “according to law.” Besides, there were plenty of men in Congress who had scant sympathy with the claim of Mr. Lee, of Virginia. His very name, at least his surname, was enough to deny his claim. The petition came to naught, and the burying of Union soldiers in Arlington National Cemetery went on; the small white stones and the more imposing marble and granite monuments grew in number.

Mr. Lee became discouraged; perhaps he was bitter. His lawyers advised him the United States was a trespasser upon his ancestral estate. He seemed to realize at last that pacific measures were useless; he decided to fight. He willed to carry his claim into the courts to see how blind justice would weigh it in the scales as against the Government of the United States.

Thereupon, in April, 1877, he began his suit in the Circuit Court of Alexandria County, Virginia. He filed suit in ejectment, under Chapter 131, Code of Virginia, naming Frederick Kaufman, Richard P. Strong, and an array of others, as party defendants. He sought to evict all persons from his land. Kaufman was a civilian agent of the War Department, in charge of that portion of the Arlington Estate that had been set apart as a national, military cemetery. Richard P. Strong was an officer of the United States Army, in charge of the remaining portions of the property, which was designated “A Military Reservation pertaining to Fort Whipple.” Both held their joint possession under orders of the Secretary of War. The long list of other defendants was necessary to the technical, legal details of the suit. Most of them were negro refugees set free by the war, and living in the freedmen's village down near the river shore, where the master of Arlington, in happier days gone by, was wont to entertain the picnic sojourners from Washington in the groves of trees near which flowed the famous Custis spring. These darkies and their families had been allowed to settle in this refugee camp during the war, and there they still remained in 1877. Many of them had for years been at work in and about Arlington, doing the manual labor incident to the Government's beautifying of the grounds of the National Cemetery. All had to be encompassedin Mr. Lee's suit to recoverh is property.

Hardly had General Lee begun his suit before the United States Government took a hand in the proceeding. A petition for a Writ of Certiorari, on behalf of Kaufman and Strong, and the other defendants likewise, was filed in the United States Circuit Court for the Eastern District of Virginia, on July 6, 1877. The purpose of this writ was to remove the case from the State court and bring it into the United States Circuit Court for trial. On July 9, 1877, the Writ of Certiorari was ordered to issue, by Mr. Justice Robert W. Hughes, of the United States Circuit Court for the Eastern District of Virginia, and in due time in response to that mandatory writ, the cause was lodged in that court. The attorneys appearing for Mr. Lee were William J. Robertson and Francis L. Smith.

On July 16, 1877, the United States, through its then Attorney-General, Charles Devens, filed a Motion to Dismiss Mr. Lee's suit. The Motion to Dismiss was in the form of a suggestion by the Attorney-General that the United States was in reality the party sued, and hence the action should not be maintained. The Motion reads as follows:

And now comes the Attorney-General of the United States and suggests to the court and gives it to understand and be informed (appearing only for the purpose of this motion) that the property in controversy in this suit has been for more than ten years and now is held, occupied, and possessed by the United States, through its officers and agents, charged in behalf of the government of the United States with the control of the property, and who are in the actual possession thereof, as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designated as the “Arlington Cemetery,” and for the uses and purposes set forth in the certificate of sale, a copy of which as stated and prepared by the plaintiff, and which is a true copy thereof, is annexed hereto and filed herewith, under claim of title as appears by the said certificate of sale, and which was executed, delivered, and recorded as therein appears.

Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration in said suit be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper in the premises.

Chas. Devens,
Atty-Gen'l U.S.

It was rather an anomalous position for the Government to take; asserting that it had for ten years “held, occupied, and possessed” the property by virtue of a tax-sale certificate—a forfeiture title at best—but inasmuch as the Government claimed ownership, ergo the United States Circuit Court had no jurisdiction to entertain the suit. Although the Attorney-General appeared as the champion of Kaufman and Strong, the principal defendants, he specifically informed the court that the rights of the Government were not submitted to the jurisdiction of the court. Who was responsible for the case being taken away from the Virginia State court and removed to the United States Court? Obviously, the Department of Justice through the Attorney-General. Notwithstanding, he directly challenged the court's power to examine into the tax-title to see if Lee had rightfully or wrongfully been deprived of his grandfather's plantation; the court might not sit in judgment of what the United States Government had done through its officers and agents, and the armed forces, acting under the orders of Lieutenant-General Winfield Scott.

The issue on the Government's Motion to Dismiss was promptly joined by a Demurrer filed by Lee's attorneys, and thereafter the cause tediously wended its progress toward the argument upon- this most important question of jurisdiction which had first to be determined before the cause could otherwise be tried on its merits. There were moves and counter-moves by the attorneys upon both sides. Many important questions of law were involved; a great legal chess game was being played. The Attorney-General was aware of the consequences impending. No one understood better than himself that if the United States did not strive mightily to maintain the validity of its tax-sale title to the Arlington Estate, it might be faced with the alternative of disinterring the remains of every soldier and sailor buried in that National Cemetery—and the white headstones were increasing day by day.

Finally, in the early spring of 1878, the jurisdictional question was argued before Judge Hughes, sitting at Alexandria, and submitted. On March 15, 1878, at Richmond, Judge Hughes rendered his first long and ably-considered opinion in the Arlington case. Among other pronouncements of the learned judge in his voluminous opinion, we find the following:

We come, therefore, to the questions of law presented by the suggestion and demurrer. These are two: 1st. Whether the Attorney-General's suggestion is of itself sufficient to defeat the jurisdiction of the court over the cause; and; 2nd. Whether, supposing it has not that effect ipso facto, the court may look into the grounds on which that officer intervenes; in pursuance of the observations made by Chief Justice Marshall in the case of United States vs. Peters, 5 Cranch, 115—“It certainly can never be alleged that a mere suggestion of title in a State to property in possession of an individual must arrest the proceedings of the court and prevent their looking into the suggestion and examining the validity of the title.”

I should compromise the judicial office if I were to devote any serious argument to the first of these questions. The right of every citizen to a judicial determination of a controversy affecting his liberty or property, in which he may be involved, will not be denied at this day in this country. 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. I have no thought that the chief law officer of the United States, who in the performance of his duty in this cause has entered the suggestion now under consideration, claims for his action any such prerogative as that in question. But even if it were possible to conceive that such a pretension could be made, let it be answered that it is a cardinal tenet of the Constitution that the judiciary are an independent branch of the 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. It is useless to dwell upon these topics, but it is appropriate to recall what has been said by luminous jurists of a former era in regard to the decision of questions arising between citizens and their government.

*    *     *    *    *    *

Is it possible, in the light of these cases, to hold, that the fact of the Federal Government being claimant by record-title of property which is made the subject of an indirect suit against it, in possession of the property, and in the actual use of it for public purposes, defeats the juridiction of a court to look into the grounds of its title and decide the action upon its merits? Sitting here in an inferior court, I am not at liberty so to hold, because to do so would be to over-rule the Supreme Court—

*    *     *    *    *    *

A case of such consequences will naturally ascend from this form to the lofty and most profoundly revered tribunal of ultimate resort provided by the Constitution of the United States. With firm judicial confidence I sustain the demurrer of the plaintiff in this cause, and direct that it shall proceed to trial on the issue raised by the plaintiff's answer to the Attorney-General's suggestion. If, then, it shall go up to the Supreme Court, as I doubt not it will do, I shall console myself with the memorable reflection of Lord Nottingham, in the case of the Duke of Norfolk: “I am not ashamed to have made this decision, nor will I be wounded if it should be reversed.”

Such, in part, was the language used by the learned justice below in disposing of the Government's contention that the United States was not answerable before the judicial power for the seizure and retention of the Arlington Estate. The case must be given to a jury. An order dismissing the motion of the Government was signed on April 16, 1878. Thq United States had lost the first battle, notwithstanding an array of legal talent headed by Solicitor-General Phillips. In Lee's legal camp things were looking brighter. But the wheels of justice grind slowly, albeit exceeding fine, and it was nearly a year before the famous case was again in the court-room at Alexandria and ready for a jury to hear the evidence. In the meantime, the lawyers played their chess game and sparred for legal points.

On January 24, 1879, before a jury selected from a special panel, the trial of the Arlington case on the merits was commenced at Alexandria, and continued from day to day until January 30th. After the evidence had all been adduced, the questions of law centered around the giving of instructions to the jury. Numerous prayers for instructions were offered for both sides. Among the prayers granted to Mr; Lee for the jury's guidance in reaching their verdict and which were afterwards claimed as error below, by the Government's counsel in the Supreme Court of the United States, were these:

No. 1. If the jury believe from the evidence that Philip R. Fendall, for and on behalf of the owner of the property in controversy, prior to the sale thereof by the tax commissioners, on the 11th day of January, 1864, offered to pay the amount chargeable on said property, under the Act of Congress entitled, “An Act for the Collection of Direct Taxes in Insurrectionary Districts within the United States and for Other Purposes”, approved June 7, 1862, and the acts amendatory thereof; and that said offer was refused by said commissioners because it was not made by the owner in person, then said sale was unauthorized, and conferred no title upon the purchaser.

No. 2. If the jury believe from the evidence, that the commissioners, prior to January 11, 1864, established, announced, and uniformly followed a general rule, under which they refused to receive, on property which had been 190 Records of the Columbia Historical Society advertised for sale, from anyone but the owner or a party in interest, in person, when offered, the amount chargeable upon said property, by reason of said Acts of Congress, then said rule dispensed with the necessity of a tender, and in the absence of proof to the contrary, the law presumes that said amount would have been paid, and the court instructs the jury that, upon such a state of facts, the sale of the property in controversy, made on the 11th day of January, 1864, was unauthorized, and conferred no title upon the purchaser.

At this time Mr. Justice Hughes considered it expedient and necessary to render his second written opinion in the case, which he did on January 28th. It is patent, of course, that he knew the case was destined for review by the highest court in the land, and that it behooved him to have in the record which would be reviewed there, the fullest exposition of the legal reasoning actuating his rulings upon the law involved. Therefore, we find in his second opinion, these words of logic and wisdom:

If the owner had this right to tender or offer payment of a tax through a friend or agent at any time before a sale, and the right was denied him, then it is difficult to see how a subsequent sale to a particular purchaser could, by ex post facto and penal operation, annul that right. A law which makes such discrimination would seem to be unconstitutional, not only in giving to an act performed by government officials under it an ex post facto and penal effect, but also in depriving a person of his vested right in property by a process other than “due process of law,” as that phrase is used by the Constitution. The impolicy of such a provision of law is as obvious to me as its unconstitutionality. 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 and of all but two thirds of its value; for the period of advertisement added to the sixty days allowed by the act for redemption, would require an illness of less than a hundred days to divest a citizen of his estate. We can imagine, too, a case of even grosser injustice, which might happen by accident, though my respect for the government forbids me to think it could be morally possible by design. 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 pay the amount of his tax,” 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 by accident. I doubt the constitutionality of any provision of a law for raising revenues which would subject to forfeiture lands upon which the taxes, when tendered in behalf of the owner, would by its own terms be prohibited from being received.

The verdict of the jury was for the plaintiff, General Lee. Again the United States had lost the battle. The solemn words of the Constitution—“nor shall private property be taken for public use, without just compensation”—appear to have lost none of their force and effect. On rendition of the jury's verdict, counsel for the Government moved to set it aside as contrary to the law and the evidence of the case. This motion was entered and set for hearing at an adjourned term of the court in April following.

On April 3, 1879, at Alexandria, the motion to set the verdict aside and In arrest of judgment, was argued and submitted. Counsel for the Government laid much stress upon the case of Carr vs. the United States, a case decided by the United States Supreme Court on March 3, 1879, after Judge Hughes had rendered his first opinion on the jurisdictional question in January of the same year. But notwithstandingt he Carr case, a part of the opinion of which he fearlessly pronounced “dictum,” Judge Hughes over-ruled the Government's motion, and judgment on the verdict was ordered entered. Upon this occasion the learned justice added a third, memorandum opinion to the record of the Arlington case. He closed the addenda opinion thus:

The case has gone to a verdict. Nothing remains to be done except to enter judgment so that the case may go before the Supreme Court on a writ of error, or for execution to issue on the judgment. I should not be willing to order the execution under any circumstances; but I see nothing in the case of Carr vs. United States to require me to discuss this suit at the present time.

The Arlington case was finished, insofar as Judge Hughes and the United States Circuit Court for the Eastern District of Virginia were concerned. The trial justice made his difficult rulings and delivered his judicial opinions without “fear, favor, or affection.” He upheld the impartial administration of law and justice in a manner worthy of the highest traditions of our judicial tribunals. Did he seem to waver when he said: “I should not be willing to order the execution under any circumstances”? Not at all; but what did he mean by those words? Simply, that to have ordered the issuance of the dispossessory writ would indeed have created a curious situation, in that, the federal officer charged with the duty of executing it would have found himself confronted with the task of evicting the military authorities of the United States from the Arlington Estate. There is no power in the Federal Judiciary to coerce and compel by force another equal and coordinate branch of the Government to obey its mandate.

The Arlington case was soon lodged in the Supreme Court of the United States, by virtue of two writs of error; one prosecuted by the United States in its own name, and the other by the Attorney-General in the names of Frederick Kaufman and Richard P. Strong. After a lapse of three and one-half years since Judge Hughes' last brief opinion, it was reached for argument on October 18, 1882, and was argued on the 18th and 19th, and submitted. The Solicitor-General and Mr. Westell Willoughby appeared for the United States and Kaufman and Strong, while Mr. William D. Shipman, Mr. A. Ferguson Beach,[note 2] Mr. William J. Robertson,[note 3] Mr. Legh R. Page[note 4] and Mr. Francis L. Smith,[note 5] appeared for General Lee. The opinion of the Court was rendered by Mr. Justice Miller, on the 4th day of December, 1882. It covers twenty-eight printed pages in 106 United States Reports (16th Otto).

After stating some of the preliminary facts necessary to an understanding of the case, the Court propounded its problem, in part, in this language:

If this sale was valid and the certificate conveyed a valid title, then the title of the plaintiff was thereby divested, and he could not recover. If the proceedings evidenced by the tax sale did not transfer the title, then it remained in him, and, so far as the question of title was concerned, his recovery was rightful.

We have then two questions presented to the court and jury below, and the same questions arise in this court on the record:—

1. Could any action be maintained against the defendants for the possession of the land in controversy under the circumstances of the relation of that possession to the United States, however clear the legal right to that possession might be in the plaintiff?

2. If such an action could be maintained, was the prima facie title of the plaintiff divested by the tax sale and the certificate given by the commissioners?

It is believed that no division of opinion exists among the members of this court on the proposition that the rulings of law under which the latter question was submitted by the court to the jury was sound, and that the jury were authorized to find, as they evidently did find, that the tax certificate and the sale which it recited did not divest the plaintiff of his title to the property.

For this reason we will consider first the assignment of errors on that subject.

No substantial objection is seen on the face of the certificate to its validity, and none has been seriously urged. It was admitted in evidence by the court, and, unless impeached by extrinsic evidence offered by the plaintiff, it defeated his title.

When this tax sale was made, the act of Feb. 6, 1863, which substitutes a new section seven for that of the original act of June 7, 1862, was in force. It declares that the certificate of the commissioners given to the purchaser at such sale “shall be received in all courts and places as prima facie evidence of the regularity and validity of said sale, and of the title of the said purchaser or purchasers under the same;” and that it “shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of this act.”

It is in reference to the clause which permits the certificate to be impeached by showing that the taxes had been paid previous to sale that the plaintiff in the present case introduced evidence.

This court has in a series of cases established the proposition that where the commissioners refused to receive such taxes, their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale. Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 id. 549; Atwood v. Weems, 99 U.S. 183.

The Court next took up the questions of the alleged error committed by the trial judge in the lower court, in the matter of giving and refusing instructions to the jury. After setting forth in full three of the instructions, the Court said:

We think these presented correctly to the jury the principle established by the cases in this court above referred to. That is, that the commissioners themselves having established and acted upon a rule that payment of the taxes after advertisement would be received from no one but the owner of the land appearing in person to pay them, that if offered by his tenant, his agent, or his attorney in fact duly appointed, it would be rejected, it would be an idle ceremony for any of these to make the offer, and an actual tender by such persons, as it would certainly not be accepted, need not be made. That the commissioners, having in the execution of the law acted upon a rule which deprived the owner of the land of an important right, a right which went to the root of the matter, a right which has in no instance known to us or cited by counsel been refused to a tax-payer, the sale made under such circumstances is invalid, as much so as if the tax had been actually paid or tendered. The proposition is thus expressed by this court at its last term in Hills vs. Exchange Bank, 105 U.S. 319, as the result of the cases above cited: “It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused.”

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The other point raised is, that the right to pay the taxes between the advertisement and day of sale in any other mode than by personal appearance of the owner before the commissioners, did not exist in cases where the United States became the purchaser. As it could never be known until the day of sale whether the United States would become the purchaser or not, it would seem that the duty of the commissioners to receive the taxes was to be exercised without reference to the possibility of the land being struck off to the United States.

In Cooley v. O'Connor, 12 Wall. 391, it was held that the act contemplated that a certificate of sale should be given when the United States became the purchaser as in other cases, and no reason is shown why that certificate should have any greater effect as evidence of title than in the case of a private purchaser, nor why it should not be subject to the same rules in determining its validity, nor why the payment or tender of the tax, interest, and costs, should not be made by an agent in the one case as in the other.

It is proper to observe that there was evidence, uncontradicted, to show that Fendall appeared before the commissioners in due time, and on the part of Mrs. Lee, in whom the title then was, offered to pay the taxes, interest, and costs, and was told that the commissioners could receive the money from no one but the owner of the land in person.

In all this matter we do not see any error in the rulings of the court, nor any reason to doubt that the jury were justified in finding that the United States acquired no title under the tax-sale proceedings.

In approaching the other question which we are called on to decide, it is proper to make a clear statement of what it is.

The counsel for the plaintiffs in error and in behalf of the United States assert the proposition, that though it has been ascertained by the verdict of the jury, in which no error is found, that the plaintiff has the title to the land in controversy, and that what is set up in behalf of the United States is no title at all, the court can render no judgment in favor of the plaintiff against the defendants in the action, because the latter hold the property as officers and agents of the United States, and it is appropriated to lawful public uses.

This proposition rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the government.

The first branch of this proposition is conceded to be the established law of this country and of this court at the present day; the second, as a necessary or proper deduction from the first, is denied.

The Court then proceeded to discuss at considerable length “on what principle the exemption of the United States from a suit by one of its citizens is founded, and what limitations surround this exemption.” And as to that it observed: “In this, as in most other cases of like character, it will be found that the doctrine is derived from the laws and practices of our English ancestors; *  *  *  .” In a lengthy and profound analysis of the English doctrine upon this subject, and how far it has been recognized and become the law of this country, the Court continued:

Notwithstanding the progress which has been made since the days of the Stuarts in, stripping the crown of its powers and prerogatives, it remains true today that the monarch is looked upon with too much reverence to be subjected to the demands of the law as ordinary persons are, and the king-loving nation would be shocked at the spectacle of their Queen being turned out of her pleasure-garden by a writ of ejectment against the gardener. The crown remains the fountain of honor, and the surroundings which give dignity and majesty to its possessor are cherished and enforced all the more strictly because of the loss of real power in the government.

It is not to be expected, therefore, that the courts will permit their process to disturb the possession of the crown by acting on its officers or agents.

Under our system the people who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.

*    *     *    *    *    *

The earliest case in this court in which the true rule is laid down, and which, bearing a close analogy to the one before us, seems decisive of it, is United States v. Peters, 5 Cranch, 115. In an admiralty proceeding, commenced before the formation of the Constitution, and which afterwards came into the District Court of the United States for Pennsylvania, that court, after full hearing, had decided that the libellants were entitled to the proceeds of the sale of a vessel condemned as prize of war, which had come to the possession of David Rittenhouse as treasurer of Pennsylvania. The district judge had declined to issue any process to enforce his decree against the representatives of Rittenhouse, on the ground that the funds were held as the property of that State, and that as she could not be subjected to judicial process, neither could the officer who held the money in her right. The analogy to the case before us will be seen when it is further stated that this claim of the State to the money had been fully presented, and that the court had decided that the libellants and not the State were legally entitled to it. In that case, as in this, it was argued that the suit was in reality against the State. But, on an application therefor, a writ of mandamus to compel the judge of the District Court to proceed in the execution of his decree was granted. In delivering the opinion, Mr. Chief Justice Marshall says: “The State cannot be made a defendant to a suit brought by an individual, but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, when a State is not necessarily a defendant. In this case, the suit was not instituted against the State or its treasurer, but against the executrixes of David Rittenhouse, for the proceeds of a vessel condemned in the Court of Admiralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but it certainly can never be alleged that a mere suggestion of title in a State to property in possession of an individual must arrest the proceedings of the court, and prevent their looking into the suggestion and examining the validity of the title.”

The case before us is a suit against Strong and Kaufman as individuals, to recover possession of property. The suggestion was made that it was the property of the United States, and that the court, without inquiring into the truth of this suggestion, should proceed no further; and in this case, as in that, after a judicial inquiry had made it clear that the property belonged to plaintiff and not to the United States, we are still asked to forbid the court below to proceed further, and to reverse and set aside what it has done, and thus refuse to perform the duty of deciding suits properly brought before us by citizens of the United States.

It may be said—in fact it is said—that the present case differs from the one in 5 Cranch, because the officers who are sued assert no personal possession, but are holding as the mere agents of the United States, while the executors of Rittenhouse held the money until a better right was established. But the very next case in this court of a similar character, Meigs v. McClung's Lessee, 9 Cranch, 11, shows that this distinction was not recognized as sound. The property sued for in that case was land on which the United States had a garrison erected at a cost of $30,000, and the defendants were the military officers in possession; and the very question now in issue was raised by these officers, who, according to the bill of exceptions, insisted that the action could not be maintained against them, “because the land was occupied by the United States troops, and the defendants as officers of the United States, for the benefit of the United States and by their direction.” They further insisted, says the bill of exceptions, that the United States had a right by the Constitution to appropriae the property of the individual citizen. The court below overruled these objections, and held that the title being in plaintiff he might recover, and that “if the land was private property the United States could not have intended to deprive the individual of it without making him compensation therefor.”

Although the judgment of the Circuit Court was in favor of the plaintiff, and its result was to turn the soldiers and officers out of possession and deliver it to plaintiff, Mr. Chief Justice Marshall concludes his opinion in this emphatic language: “This court is unanimously and clearly of the opinion that the Circuit Court committed no error in instructing the jury that the Indian title was extinguished to the land in controversy, and that the plaintiff below might sustain his action.”

We are unable to discover any difference whatever in regard to the objection we are now considering between this case and the one before us.

After analyzing and comparing a number of other decisions of the Supreme Court, involving the same general principles, Mr. Justice Miller came to a consideration of the case of Carr vs. the United States. It will be recalled that this case had been decided by the Court on March 3, 1879, after Judge Hughes had rendered his first opinion on the jurisdictional question in January (1879), just two months before, although the Carr case had been argued at the October Term, 1878. It was because of this fact that counsel for the Government had counted heavily upon the Carr case at Alexandria in April, 1879, when the motion to set aside the verdict of the jury had been argued. In passing the Carr case, General Lee's long fight for restoration of the Arlington Estate had to cross the most dangerous shoal encountered in its turbulent progress throughout the years since 1878. The learned justice below had analyzed the Carr case at the time he delivered his addendum opinion in April, 1879, and pronounced the very parts of the opinion relied upon by the Government to defeat Mr. Lee's recovery, as “dictum.” In the Supreme Court a majority of the learned justices did not falter when the time came either to repudiate the obiter dictum of Mr. Justice Bradley, or subscribe to it and deprive Mr. Lee of the right to have his ancestral estate of Arlington.

It is true that there are expressions in the opinion of the court in the Case of Carr v. United States, 98 U.S., 433, which are relied on by counsel with much confidence as asserting a different doctrine.

That was a case in which the United States had filed a bill in the Circuit Court for the District of California to quiet title to the land on which a marine hospital had been built. To rebut the evidence of title offered by the plaintiffs, the defendant had relied on certain judgments rendered in the State courts, in which the unsuccessful parties set up title in the United States, under which they claimed. It appeared that the person who was district attorney of the United States had defended these actions, and the question under discussion was whether the United States was estopped by the proceedings so as to be unable to sustain the suit to quiet title. After stating the general doctrine that the United States cannot be sued without her consent, and the further proposition that no such consent can be given except by Congress, which is a sufficient reason why they cannot be concluded by an action to which they are not parties, the learned justice who delivered the opinion proceeded to make some remarks as to cases in which actions would or would not lie against officers of the government in relation to property of the United States in their possession. As these remarks were not necessary to the decision of the point then in question, as the action was equally inconclusive against the United States, whether the persons sued were officers of the government or not, these remarks, if they have the meaning which counsel attribute to them, must rest for their weight as authority on the high character of the judge who delivered them, and not on that of the court which decided the case.

That the United States are not bound by a judgment to which they are not parties, and that no officer of the government can, by defending a suit against private persons, conclude the United States by the judgment, was sufficient to decide that case, and was all that was decided.

(The italics are the author's.)

*    *    *

What is that right as established by the verdict of the jury in this case. It is the right to the possession of the hometead of the plaintiff. A right to recover that which has been taken from him by force and violence, and detained by the strong hand. This right being clearly established, we are told that the court can proceed no further, because it appears that certain military officers, acting under the orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery.

It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defence stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the Government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but 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 to take private property without just compensation.

These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground, as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the departments of the government established by that Constitution. As we have already said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on the part of the executive and the legislative branches of the government. See Ex parte Milligan, 4 Wall. 2; Kilbourn v. Thompson, 103 U.S. 168.

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.

It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government; and the docket of this court is crowded with controversies of the latter class.

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 a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without 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.

It cannot be, then, that when, in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession of the property according to all the forms of judicial procedure, and by the verdict of a jury and the judgment of the court, the wrongful possessor can say successfully to the court, “Stop here, I hold by order of the President, and the progress of justice must be stayed.” That, though the nature of the controversy is one peculiarly appropriate to the judicial function, though the tjnited States is no party to the suit, though one of the three great branches of the government to which by the Constitution this duty has been assigned has declared its judgment after a fair trial, the unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen.

The concluding paragraphs of the opinion of the Court are these:

While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all.

Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive and removable at his pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives.

From such a tribunal no well-founded fear can be entertained of injustice to the government, or of a purpose to obstruct or diminish its just authority.

The Circuit Court was competent to decide the issues in this case between the parties that were before it; in the principles on which these issues were decided no error has been found; and its judgment is


Concurring with Justice Miller in the majority opinion of the Court, were Justices Blatchford, Field, Harlan and Matthews. Those dissenting were, Chief Justice Waite and Justices Bradley, Gray and Woods. The Dissenting Opinion was delivered by Justice Gray and fills twenty-eight printed pages. The minority members of the Court were “of the opinion that the Court had no authority to proceed to trial and judgment; because the suit, which had been commenced against the individual defendants, was thenceforth prosecuted against the United States; *  *  *  *  .”

Again and finally the United States had lost the fight and there was no appeal; the Supreme Court had spoken. The Government found itself adjudged a trespasser upon the Arlington Estate property by the highest judicial tribunal in the country; holding it by force under rules and regulations of the War Department, against the rightful and legal owner, George Washington Custis Lee. A situation indeed! What was to be done about it? If, by any chance, General Lee had changed his mind about conveying his title to the United States for adequate compensation, as he had theretofore offered to do, there were seemingly only two remaining alternatives: First; that the Government would have to disinter the remains of every soldier and sailor buried in their Arlington graves, as well as remove the military post occupying other portions of the estate, or, Second; it could ignore the decision of the Supreme Court and continue a trespasser as theretofore. Fortunately, Lee was magnanimous in victory. The Government was spared further embarrassment, because he agreed to sell to the United States, and the purchase price was fixed at one hundred and fifty thousand dollars—a beggar's price today, but not in 1883, when the land was not held as of much commercial value.

On the third day of March, 1883, the 47th Congress of the United States appropriated one hundred and fifty thousand dollars with which to purchase the Arlington Estate property, and on March 31st, General George Washington Custis Lee signed a deed conveying the land to the United States, which he acknowledged before a notary public on April 24, 1883. This deed was submitted to Attorney-General Benjamin H. Brewster, who on May 8th informed Secretary of War Robert Todd Lincoln, by a “manuscript opinion,” that it would pass a good title to the Government.

Thus the Government of the United States acquired Arlington. On the fourteenth day of May, 1883, just twenty-two years, less ten days, from the time the Union soldiers crossed the Potomac River and took possession, May 24, 1861, the deed was recorded at Alexandria County Court House.

The soldiers and sailors still sleep undisturbed in their graves; the Master and Mistress of Arlington House are hosts to the ever-growing legions of their country's heroic dead.

On Fame's eternal camping ground
   Their silent tents are spread
And Glory guards, with solemn round,
   The bivouac of the dead.


Arlington House, the Seat of G. W. P. Custis, Esq., by Benson J. Lossing, Harper's Magazine, September, 1853.

Historic Arlington, by Decker and McSween, 1892.

The Story of Arlington, by John Ball Osborne, 1899.

The Records of the War Department.

The Records of the Department of Justice.

The Records of the Clerk's Office, Supreme Court of the United States.

The Records of Arlington County Court House.

106 United States Supreme Court Reports.

Volume 15, Federal Cases, Circuit and District Courts, 1789–1880, Cases 8191–8192, George Washington Custis Lee vs. Kaufman and Strong.