Lee is now responsible for an unholy mess
The two paragraph’s I highlighted in Custis’s Will are important.
Let’s start with the bequest of $10,000 to be given to his heirs. $10,000 was a staggering amount of money in 1859. That would be approximately $306,000 in today’s money. Which is fine, except for the fact that Custis died deeply in debt. He had racked up nearly $1 million in debt in today’s money.
That is math that simply did not add up. While nearly $1 million in debt, he left monetary legacies of over $1 million to his heirs. What was the plan to address this glaring discrepancy? The labor of EPs. Custis’s expectation was his EPs would labor on the various Custis estates, and EPs would be hired out to work for other people in other parts of Virginia. Together, these two groups of enslaved people would not only pay off the enormous debt Custis left his heirs…they would also generate the funds to meet the financial legacies Custis left to his heirs.
Custis’s Enslaved People
I will be spending some time collectively discussing the enslaved people Custis held. It is only fair and respectful to them that we know their names:
Two Fundamental Issues Lee had to Face
There were two fundamental issues Lee had to face. Custis was aware of both. Lee was equally aware of both. The first was the state of the properties Custis left to his heirs. The second was the health and well being of those enslaved on the various Custis properties. The three main properties – Arlington, White House, and Romancock – were in an appalling state of disrepair at the time of Custis’s death. It would require an additional expense, in excess of the $1 million debt, to accomplish the more immediate repairs that were required.
The year Custis died, 1857, he wrote a letter to his new manager at White House that he was “greatly pained, disappointed and mortified to hear” how terrible the state of the enslaved was there, and their “deprivations”, noting that “it ought not to be so, my negroes have been heavier worked than many slaves in Virginia, so much so, that neighbors of my estates have addressed to me anonymous letters complaining of the subject” (McElya , Micki. The Politics of Mourning, Harvard University Press via https://books.google.com/books?id=iHbEDAAAQBAJ&lpg=PT21&dq=condition%20of%20custis%20Romancoke%20slaves&pg=PT22#v=onepage&q=condition%20of%20custis%20Romancoke%20slaves&f=false).
Let that paragraph sink in for a moment. He cites ‘estates’, plural. His neighbors’ complaints paint a picture of neglected EPs who were near starvation and dressed in rags. His neighbors bitterly complained to Custis and the local authorities about EPs who roamed the nearby countryside hunting for food, and gathering what sustenance they could to feed themselves and their families. What’s remarkable for the time, Custis’s neighbors squarely laid the blame for what was occurring in their neighborhoods at Custis’s feet. As lamentable as their physical, and I can suppose mental, state was at the time, Custis still thought them capable of generating over $2 million in revenue. This would had been a herculean task even if all his enslaved people had been in the prime of their life, and physically fit. Instead, a third of his EPs were either very old, and past working, or too young to work. The remainder were in too poor a physical state to meet this expectation. Remember this point. I will be returning to it.
In his 1859 court filing Lee himself discusses the condition of the EPs who were enslaved on the properties he was now tasked with administering:
Your orator [Lee] further shews that many of said slaves, on account of their advanced, or tender years, are incapable of labor, and are a charge on the testators [sic] estate, and some of them will so continue to be (unless they die in the interim) until their emancipation.
We hear from Lee himself on the subject through his son. His son wrote a letter to a friend in 1870 discussing the Romancock property:
My “Romancoke” farm was situated in King William County, on the opposite side of the Pamunkey River, and some fifteen miles east of “White House.” We [Lee and his son] arrived there in the afternoon, having come down by the steamer, which at that time ran from “White House” to Baltimore. “Romancoke” had been always a dependency of the “White House,” and was managed by an overseer who was subordinate to the manager on the latter estate. There was on it only a small house, of the size usual in our country for that character of property. I had taken possession in 1866, and was preparing to build a more comfortable residence, but in the meantime I lived in the house which had been occupied by the different overseers for about seventy-five years. Its accommodations were very limited, simple, and it was much out of repair. Owing to the settling of the underpinning in the centre, it had assumed a “sway- backed” outline, which gave it the name of the “broken-back house.” No repairs had been attempted, as I was preparing to build a new home.
At this point I feel for Lee. I do. He didn’t ask for any of this. Lee’s own father, Henry “Light Horse Harry” Lee had died so deeply in debt that Lee’s family had lost everything. To be immersed into the same scenario must have been a nightmare. A nightmare that was in no way made any easier by the paragraph in Custis’s Will that freed his enslaved people:
And upon the legacies to my four granddaughters being paid, and my estates that are required to pay the said legacies being clear of debt, then I give freedom to my slaves, the said slaves to be emancipated by my executors in such manner as to my executors may seem most expedient and proper, the said emancipation to be accomplished in not exceeding five years from the time of my decease.
That is one grammatically tortured sentence. One that was open to different interpretations. If you are like me, and rooting for the EPs, you will focus on the freeing of slaves. If you’re down with securing the individual $10,000 bequests to the heirs, you will read it quite another way – with an emphasis on the money more than the enslaved people. Lee seemingly made a prudent choice: he filed a Chancery Suit to receive court guidance in the matter.
Bear in mind swathes of slave holding society was against the interests of EPs. It’s worth remembering that enslaved people had no rights. They weren’t even citizens of the United States. The Virginia courts were stacked full of men who were enslavers, or whose families were enslavers. At the very least, a goodly portion of the people who elected them and put them into office were enslavers. There were more than a few white supremacists on the benches too. So, to me, it came as no surprise when the court ruled in Lee’s favor: hire out the slaves, work the others, raise the money, and then free them. However, the stipulation was that Lee had five years to accomplish this. Where the court did balk was the prospect of Lee’s enquiry as to whether he could extend the period of enslavement if the revenue Lee needed wasn’t generated within that five-year period. His request for such a consideration was flatly denied. I can almost hear what the judges had to say to Lee on the day their decision was handed down: “Son, you barely have a handle on things as it is with your people serving five years. Now you’re talking about possibly extending that even further? Son, we admire your gumption, we truly do, but that dog just won’t hunt.” The last thing anyone would have desired was an open slave rebellion; especially a rebellion formed by those who had been promised freedom, and then had it delayed. That would have been a golden opportunity for abolitionists. No one in Lee’s slave owning world wanted that.
While the court ruled against Lee in the matter of extending the length of enslavement for his EPs, it gave him everything else he requested. The full case file has been digitized by the Library of Virginia and is available for download on its Virginia Memory website via https://www.lva.virginia.gov/chancery/case_detail.asp?CFN=013-1859-017.
Note: The images that accompany this article have been transcribed. The transcriptions appear beneath the images.
This cause came on to be heard this 21st day of May 1859, upon the bill, exhibits and answers of Mrs M A R Lee, and the infants by their guardian and ???, on consideration whereof, the court doth adjudges, order, and decree, that according to the construction of the last will and testament of George W. P. Custis, first the devise to his daughter, Mrs M A R Lee, of the “Arlington House Estate”, does not embrace the slaves, or any personal property, except the personal property enumerated in that clause of the will.
2nd: That it is the duty of the executor [Lee] to pay the debts of the estate, and that the perishable and personal property (slaves and specific legacies excepted) is the fund to be appropriated in discharge of the debts.
3rd : If any surplus of the personal estate remain after the payment of debts, the residue is to be applied in payment of the legacies, and the lands, directed to be sold, an to be sold, and applied in the same way, and the hire of slaves, and the rents, issues, and profits of the White House, and Romancock estate, all also to be applied without distinction, until the devisees respectively arrive at age. When the elder devisee arrives at age, he will be entitled to an apportionment of the charge, as between the estates according to their respective values. And the whole of the rents, issues, and profits, of the other devisees, will be appropriated in discharge of the legacies until he arrives at age if not sooner paid off.
4th: The slaves are entitled to their freedom at the expiration of five years from the death of the testator or sooner if the legacies are paid off. The executor to give deeds of emancipation.
5th: If the legacies are not paid off by the personal property, hire of slaves, rents, and sale of the real estate, charged with the payment at the end of five years, the portion unpaid remains a charge of the White House, and Romancock estates, until paid. The division takes the estate “Cum O*??”.
What strikes me most is that at no point does anyone appear to say that paying off the debt, raising the funds to pay the financial bequests, and freeing the EPs were in any way achievable. Had justice truly been blind, and fair, I would have expected a ruling along these lines: sell whatever real and personal property you have to in order to pay down the bulk of the Custis debt. This would have paid down a significant chunk of the debt, even with the properties in such a poor state of repair. From there, Lee could have worked out a plan to raise additional funds, not the full $50,000, to pass on to the heirs. There was no legal obligation to pay the heirs $10,000 each. That was merely Custis’s wish and desire. This was a wish and desire his estate was in no way financially capable of paying. Custis knew this when he died.
Had things been arranged along the lines I have suggested; the EPs could have been freed sooner than the five years allocated.
That was not what happened. Inevitably, there were repercussions.