Blog of law articles

I guess it has been kinda slow around here when I am headlining a case from 1882, but what the hail.

This month's Smithsonian Magazine has a fascinating account of the history of Arlington National Cemetery, which was formerly the estate of General Robert E. Lee and his wife Mary Lee.

Through procedural hijinks (including the imposition of a 1863 war tax that could only be paid in person) the estate was purchased at auction by the federal government, where the mansion was looted and Union soldiers interred, leading Robert E. Lee to wage a legal battle after the end of the Civil War that led all the way to the steps of the Supreme Court:

Asserting ownership of the property, Lee asked the Circuit Court of Alexandria, Virginia, to evict all trespassers occupying it as a result of the 1864 auction. As soon as U.S. Attorney General Charles Devens heard about the suit, he asked that the case be shifted to federal court, where he felt the government would get a fairer hearing. In July 1877, the matter landed in the lap of Judge Robert W. Hughes of the U.S. Circuit Court for the Eastern District of Virginia. Hughes, a lawyer and newspaper editor, had been appointed to the bench by President Grant.

After months of legal maneuvering and arguments, Hughes ordered a jury trial. Custis Lee's team of lawyers was headed by Francis L. Smith, the Alexandrian who had strategized with Lee's father years before. Their argument turned upon the legality of the 1864 tax sale. After a six-day trial, a jury found for Lee on January 30, 1879: by requiring the "insurrectionary tax" to be paid in person, 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. "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."

The government appealed the verdict 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 that the 1864 tax sale had been unconstitutional and was therefore invalid.

Tipsters, I appreciate it but try to send stuff that at least relates to this century.