The Last Battle of the Civil War: United States versus Lee, 1861–1883 by Anthony J. Gaughan (review)

Americans today know Arlington National Cemetery as a peaceful location—the final resting place of thousands of American soldiers and the site of countless solemn ceremonies. But during the nineteenth century, as Anthony J. Gaughan shows, the grounds at Arlington were anything but peaceful. Originally the estate of the Custis and Lee families, the land just to the south of the Potomac took on both strategic and symbolic importance during the Civil War. In 1861, the United States Army seized the estate; in a few years, it created a refugee camp for freed slaves, and, eventually, it established a cemetery for Union war dead. These actions led to a dispute over the Arlington lands that culminated in an 1882 U.S. Supreme Court case. Gaughan skillfully traces the controversy and convincingly connects it to the larger context of postwar reconciliation.

The first few chapters cover the history of the lands and origins of the case. In 1778 Jack Custis, Martha Washington’s son from her first marriage, purchased eleven hundred acres south of the Potomac, land that dramatically increased in value when President Washington selected the site just across the river to be the new national capital. Jack Custis’s son, Parke, later inherited the lands from his father and in 1802 began construction of Arlington House, a renowned antebellum mansion that housed an extensive collection of Washington’s personal effects. Parke Custis’s daughter, Mary, eventually married the successful U.S. army officer Robert E. Lee and in 1857, at Custis’s death, Mary Lee became the legal owner of the Arlington home and grounds. Virginia’s secession and the outbreak of war prompted Union troops to cross the Potomac in May 1861, but initially the federal government made no claim to ownership of Arlington and even sought to protect the home’s valuable contents from vandals. Only with the passage of the controversial Doolittle Act of 1862 did the federal government attempt to seize the property. The act imposed a tax on lands in the Confederate States and gave landowners sixty days to pay before the government auctioned the land. Although Robert E. Lee’s first cousin attempted to pay the tax, the federal tax commissioner refused to accept payment by anyone but the legal owner. In the meantime, in 1863 missionaries and the U.S. military established Freedman’s Village there, an extensive settlement that included “schools, a hospital, a chapel and dozens of two-family homes” (30). A year later, the War Department officially purchased the land in a Treasury Department auction and established a national cemetery as well. Montgomery C. Meigs, quartermaster general of the Union army, hoped that converting the Lees’ lands into a cemetery “would serve as a grim reminder of the harm done by Lee’s decision to join the Confederacy,” and Meigs personally supervised the burials of dozens of Union soldiers in Mary Lee’s rose garden (35). Over time, while Freedman’s Village gradually fell into obscurity (and eventually dissolved), the federal government devoted its attention and resources to the cemetery.

The bulk of the book traces the dispute over whether the federal government held appropriate legal title to the land, which Gaughan adeptly frames against the backdrop of postwar politics and law. After Robert E. Lee’s death in 1870, Democratic senator Thomas McCreery of Kentucky first questioned the government’s title to Arlington, but his attempt to pass an inflammatory joint resolution in Congress succeeded in generating more outrage than support. “Disturb these dead, and for what?” Gaughan quotes Republican senator James Nye of Nevada: “To make room for a traitor’s widow” (47). A pair of U.S. Supreme Court decisions pertaining to the Doolittle Act, unrelated to the Lee lands, paved the way for a judicial rather than a political solution. The first of these decisions held that...