The plantation the Lees had known became less recognizable each year. Many original residents of Freedmen's Village stayed on after the war, raising children and grandchildren in the little houses the Army had built for them. Meigs stayed on, too, serving as quartermaster general for two decades, shaping the look of the cemetery. He raised a Greek-style Temple of Fame to George Washington and to distinguished Civil War generals by Mrs. Lee's garden, established a wisteria-draped amphitheater large enough to accommodate 5,000 people for ceremonies and even prescribed new plantings for the garden's borders (elephant ears and canna). He watched the officers' section of the cemetery sprout enormous tombstones typical of the Gilded Age. And he erected a massive red arch at the cemetery's entrance to honor Gen. George B. McClellan, one of the Civil War's most popular—and least effective—officers. As was his habit, Meigs included his name on the arch; it was chiseled into the entrance column and lettered in gold. Today, it is one of the first things a visitor sees when approaching the cemetery from the east.
While Meigs built, Mary Lee managed a farewell visit to Arlington in June 1873. Accompanied by a friend, she rode in a carriage for three hours through a landscape utterly transformed, filled with old memories and new graves. "My visit produced one good effect," she wrote later that week. "The change is so entire that I have not the yearning to go back there & shall be more content to resign all my right in it." She died in Lexington five months later, at age 65.
With her death, her hopes for Arlington lived on in her eldest son, George Washington Custis Lee, known as Custis. For him, regaining the estate was a matter of both filial obligation and self-interest: he had no inheritance beyond the Arlington property.
On April 6, 1874, within months of his mother's funeral, Custis went to Congress with a new petition. Avoiding her inflammatory suggestion that Arlington be cleared of graves, he asked instead for an admission that the property had been taken unlawfully and requested compensation for it. He argued that his mother's good-faith attempt to pay the "insurrectionary tax" of $92.07 on Arlington was the same as if she had paid it.
While the petition languished for months in the Senate Judiciary Committee, Meigs worried that it would "interfere with the United States' tenure of this National Cemetery—a result to be avoided by all just means." He need not have worried. A few weeks later, the petition died quietly in committee, attended by no debate and scant notice.
Custis Lee might have given up then and there if not for signs that the hard feelings between North and South were beginning to soften. Rutherford B. Hayes, a Union veteran elected on the promise of healing scars from the Civil War, was 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 in 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.
The Lees had retaken Arlington.
This left few options for the federal government, which was now technically trespassing on private property. It could abandon an Army fort on the grounds, roust the residents of Freedmen's Village, disinter almost 20,000 graves and vacate the property. Or it could buy the estate from Custis Lee—if he was willing to sell it.