Chapter Sixteen

Theory Meets Reality

My Name is Wesley Norris; I was born a slave on the plantation of George Parke Custis; after the death of Mr. Custis, Gen. Lee, who had been made executor of the estate, assumed control of the slaves, in number about seventy; it was the general impression among the slaves of Mr. Custis that on his death they should be forever free; in fact this statement had been made to them by Mr. C. years before; at this death we were informed by Gen. Lee that by the conditions of the will we must remain slaves for five years; I remained with Gen. Lee about seventeen months, when my sister Mary, a cousin of ours, and I determined to run away, which we did in the year 1859 ; we had already reached Westminster, in Maryland, on our way to the North, when we were apprehended and thrown into prison, and Gen. Lee notified of our arrest; we remained in prison fifteen days, when we were sent back to Arlington; we were immediately taken before Gen. Lee, who demanded the reason why we ran away; we frankly told him that we considered ourselves free; he then told us he would teach us a lesson we never would forget; he then ordered us to the barn, where in his presence, we were tied firmly to posts by a Mr. Gwin, our overseer, who was ordered by Gen. Lee to strip us to the waist and give us fifty lashes each, excepting my sister, who received but twenty; we were accordingly stripped to the skin by the overseer, who, however, had sufficient humanity to decline whipping us; accordingly Dick Williams, a county constable was called in, who gave us the number of lashes ordered; Gen. Lee, in the meantime, stood by, and frequently enjoined Williams to “lay it on well,” an injunction which he did not fail to heed; not satisfied with simply lacerating our naked flesh, Gen. Lee then ordered the overseer to thoroughly wash our backs with brine, which was done. After this my cousin and myself were sent to Hanover Court-House jail, my sister being sent to Richmond to an agent to be hired; we remained in jail about a week, when we were sent to Nelson county, where we were hired out by Gen. Lee’s agent to work on the Orange and Alexander railroad; we remained thus employed for about seven months, and were then sent to Alabama, and put to work on what was known as the Northeastern railroad; in January 1863 we were sent to Richmond, from which place I finally made my escape through the rebel lines to freedom; I have nothing further to say; what I have stated is true in every particular, and I can at any time bring at least a dozen witnesses, both white and black, to substantiate my statements; I am at present employed by the Government, and am at work in the National Cemetery on Arlington Heights, where I can be found by those who desire further particulars; my sister referred to is at present employed by the French Minister at Washington and will confirm my statements.¹

WESLEY NORRIS’S testament was given to an antislavery newspaper in 1866 and is one of several accounts of this incident. The story created some uncomfortable negative publicity for Robert E. Lee when it first surfaced in 1859 and continued to haunt him after the war. Its veracity has been questioned by generations of Lee aficionados, and we might be tempted to dismiss it as the exaggerated ranting of a bitter ex-slave. Except for one thing: all of its facts are verifiable.

Lee’s neat philosophy about the relations between master and slave moved from theory to reality in a dramatic way with the death of George Washington Parke Custis in 1857. Never a careful steward of his holdings, Custis had particularly neglected them in his later years. When he died he owned three estates, assorted other properties in the Chesapeake region, and 196 slaves. Most of the land, including Arlington, was not very productive, a number of the properties listed in the will had uncertain boundaries and titles, and Lee estimated that debts ran upward of $10,000, a mighty sum at that time. By the terms of Custis’s will, Lee was made executor of the estate. When he heard the news of his father-in-law’s death, he left his post on the Texas frontier to join the mourners at Arlington.

Custis had provided for his kin in what he believed to be equitable and even grand style. He left his daughter the Washington heirlooms and a life interest in Arlington. These would revert to his eldest grandson upon Mary Lee’s death. The White House and Romancoke estates were given to his other grandsons, and a $10,000 legacy to each of his four granddaughters. The old man also freed his slaves, with the stipulation that the estate debts and legacies were to be paid first and that the manumission was to take place within five years. Custis had meant to be generous, his scanty understanding of the state of his properties and a naïveté about the human reactions such a will would cause made it extremely difficult to fulfill. “He has left me an unpleasant legacy,” Lee would write.²

Lee arrived to find that “everything is in ruins and will have to be rebuilt.”³ Mills, slave dwellings, and mansion houses were leaky and dilapidated. Long-neglected lands were producing little, if any, cash crops. Some of the properties that Custis noted “I may own” did not have deeds or other legal certificates. To pay off the will’s provisions would encumber Arlington, a property valued at $90,000, with a $50,000 debt. In addition, the instructions of the will were contradictory, and Lee thought they would require legal interpretation. Virginia law stipulated that freed slaves had to move out of the state, and that the former master must support any who were under-age, old, or infirm, but no allowance for the newly freed blacks was specified in Custis’s instructions. “There is no such provision nor indeed any for their maintenance which proceeded from his usual want of care in matters of business & I presume a belief that we should take care of them,” wrote Mary Lee in exasperation. The situation was serious enough that Lee doubted he could really comply with Custis’s intentions. “I can now see little prospect of fulfilling the provisions of your Grd father’s will within the space of five years, which seems to be the time, within which he expected it to be accomplished & his people liberated,” he told his eldest son.⁴

Lee put his own money into the effort and tackled the job with his customary conscientiousness. He rebuilt the outbuildings, changed the farming emphasis from livestock to wheat and vegetable production, experimented with fertilizers, and tried deep plowing to tap richer soils. He found progress slow, and the effort extremely frustrating. “Mr. Lee is with me,” Mary Lee wrote to a friend, “but is so harassed with the cares and trouble he had in settling this large estate with very inadequate means, that I do not have the comfort that his presence might otherwise have afforded me.” In the years that Lee managed the Custis estates, he revamped the labor system, upgraded buildings, purchased new tools, and opened virgin lands to cultivation. But he came nowhere near fulfilling the requirements of the will. “I succeed badly,” he told Rooney.⁵

Lee had financial and legal headaches, and the emotional strains of a still-grieving family, but his greatest difficulties came from the estate’s slaves. He understood that they were to be freed and had no intention of thwarting Mr. Custis’s desire. Nonetheless, he took seriously the will’s provision that the emancipation was to take place at the discretion of the executor. There is no evidence that Lee thought of slaves as property in the sense of a liquid asset, to be bred, bought, and sold for profit. But he did see the system in terms that historians would later describe as that of a practical entrepreneur. To Lee the blacks remained bondsmen, a workforce to be used at the owner’s will. It was his right to employ them where and how he wanted, to increase the profits of the estate: “dispose of them at the end of the year to the best advantage,” Lee instructed one agent, who was to handle a half dozen slaves he had wrenched away from Arlington and lodged in a Richmond jail.⁶ If he did not own their souls, Lee certainly believed he owned their skills, their energy, and their time. The Lees could not afford to support a large band of idle workers, and they felt they could not free them immediately and still fulfill both the Virginia laws and the Custis will. The labor of the slaves was the key to enhancing productivity—and productivity was what Lee needed in order to make the property solvent.⁷

In this, his first experience as master of a large labor force, he tried to use the philosophy he had honed over the years. “I wish to make them as comfortable as I can,” he told Custis Lee, and set the slaves to repairing their own houses. His estate accounts show that he spent considerable sums for the slaves’ clothing, food, and medical care. “I desire to do what is right and best for the people,” he later wrote. But he also desired that the slaves should work with a will. He told Arlington’s heir that “while being fair & just you must not neglect your interests,” and as he looked for a new overseer, Lee commented that he wanted an “energetic honest farmer, who while he will be considerate & kind to the Negroes, will be firm & make them do their duty.”⁸ The great challenge was to mesh his concept of responsibility with the slaves’ quite different sense of their obligations.

For slaves, the death of a master was a distressing event, one that threw their world into uncertainty and apprehension. Since they did not control their own future and had no idea what a new master might bring, they were at their most vulnerable. Over the years George Washington Parke Custis had grown more and more lax with his servants, particularly at Arlington. Finally he had asked little of them but to cultivate their gardens and raise the food they would eat.⁹ Now they encountered a master who believed that it was their duty to work and, moreover, was accustomed to the disciplined structure of the army. From his arrival at Arlington, Lee found himself “endeavoring to urge unwilling hands to work” and trying to reorganize his human resources in a rational fashion. Already disgruntled with the taxing new demands, the slaves were further dismayed when Lee began hiring hands to other plantations. With no means of communication, they had no idea where they were being sent, how long they would be there, or what the conditions would be. In addition, Lee rented out so many hands that the black community at Arlington was badly fragmented. The youngest and strongest were chosen to be hired away because they brought in the greatest revenue. By 1859 old men and little boys were the only workers left at Arlington. Worst of all, Lee ruptured the Washington and Custis tradition of respecting slave families. By 1860 he had broken up every family but one on the estate, some of whom had been together since Mount Vernon days.¹⁰ There was singular distress among the slaves, and the community’s opinion that Lee was a “hard taskmaster” and “the worst man I ever see” was sharpened.¹¹ Their response was to withhold cooperation, and finally to protest openly.

Many of the slaves Lee hired away were extremely unhappy. They felt exiled from their friends and families at Arlington and thought the measure a degrading punishment. Three men who were hired off the estate returned after one day “on account of the work being too hard.” Lee reprimanded them and sent them to work for an even more demanding master.¹² Some of the hiring does appear as a kind of punishment, calculated to give difficult workers the discipline of a seasoned overseer, or keep sullen blacks away from the Arlington workforce. This was the case for several slaves whom Lee “could not recommend for honesty”—he hired them in Richmond, where, he noted to Custis, they were “put to your service and mine and much to your mother’s relief.”¹³ The next year, he advised his son, “it may be better to hire them all out. Their presence seems to be of no advantage.” Even faced with a near epidemic of runaways, and with other resistance from the slaves, he turned a deaf ear. His wife, in denial about the social dislocation taking place at her home, could only complain: “The ingratitude & bad conduct of these slaves…has wounded me sorely, some of them now whom I least expected such conduct have done worst of all.”¹⁴ One of those Lee hired out against his will was Wesley Norris.¹⁵

The slaves were increasingly unsettled under Lee’s control, and not just because of his theories of labor management. They believed they were already free.¹⁶ Old Mr. Custis should have been aware of the possibility that his imprecise will would create this kind of discontent, since he had witnessed a similar situation at the Fitzhugh estate. William Henry Fitzhugh had left a will freeing his slaves in twenty years; but in the intervening time they were disgruntled and sullen—so unmanageable that Molly Fitzhugh Custis and her daughter gave up their interest in the property rather than become entangled in the difficult situation.¹⁷ Mount Vernon had also witnessed similar problems. Washington freed his own slaves in his will, but the rest of the Mount Vernon servants belonged to his wife and were not to be freed until she passed away. When news of Washington’s will spread through the quarters, the remaining slaves became so restless that Martha Washington liberated them only a year later. Washington had foretold this, commenting to Mount Vernon tutor Tobias Lear that “the idea of freedom might be too great a temptation for them to resist. At any rate it might if they conceived they had a right to it, make them insolent in a State of Slavery.”¹⁸ At Arlington, this is exactly what happened. Speculation spread quickly through the slave ranks, heightened by promises Custis had purportedly made while he was alive. According to Wesley Norris’s testament, “years before” Arlington’s master had hinted that freedom would come with his death. Other servants recounted how on his deathbed George Washington Parke Custis had gathered them together to take his leave and tell them of their liberation.¹⁹

Among those who heard these tales were reporters for the abolitionist press. Northern newspapers—first the Boston Traveller, then the New York Times and the New York Tribune— all carried the story, which was printed with varying degrees of salaciousness. Wrote the Boston Traveller of the Custis slaves: “it is already whispered about town that foul play is in process in regard to those negroes on the Virginia plantations; that they are now being sold South; and that all of them will be consigned to hopeless Slavery unless something is done.” Lee tried to answer the accusations, saying that the family had no knowledge of the deathbed scene, that the Custis will was available in the county courthouse for all to see, and that there was “no desire on the part of the heirs to prevent the execution of its provision in reference to the slaves.”²⁰ Nevertheless rumors continued to circulate.

As it happens, the hearsay had a disturbing element of truth to it. From the outset Lee had interpreted the Custis will to mean that all the bequests must be paid before manumission. The will itself, however, actually called for land to be sold to pay the debts and legacies, and never states that these obligations should take precedence over freeing the slaves. Soon after he arrived at Arlington, Lee petitioned the courts to give him a ruling on the competing demands of the Custis will. In it he not only asked that “the emancipation of the slaves should be postponed till the said legacies are raised, and the debts of the estate are paid off,” but hoped for a decision that would justify “removing the property of the testator, beyond the limits of the State.” This petition was the servants’ worst fear, and may have been the origin of newspaper gossip about the slaves being sold South. This request would not have actually allowed the slaves to be sold, but it would have permitted Lee to send them out of Virginia, far from their families and the benevolent oversight they had traditionally enjoyed at Arlington. When the court denied Lee’s petition, he applied to the Supreme Court of Appeals of Virginia to have it overturned.²¹

There was thus some justification for the Custis slaves’ fear that they were to be sent south. They had no way of communicating with those who had been hired as far away as Richmond, Hanover, and New Kent counties and did not know their fate. Most importantly, they did not understand why they all had not been immediately freed. Mary Lee indicates that the Lee family tried to explain the situation and motivate the workforce to put forth an effort so that they could be emancipated more quickly. She told a friend that “the servants here have been so long accustomed to do little or nothing that they cannot be convinced of the necessity now of exerting themselves to accomplish the conditions of the will which the sooner they do the sooner they will be entitled to their freedom….”²² Wesley Norris says that Lee “informed” the servants that they must remain slaves for five more years, a message that cannot but have been ill-received. Unfortunately, Lee was notoriously poor at what we would today call “cross-cultural communication.” He did not identify with those outside his class and race, did not like to be familiar with them, and did not really take their side in issues of social justice. He had not been successful, for example, in his attempts to interact with the Comanche on the Texas plains. Lee’s similar failure to communicate with the Custis slaves was to have dire results.

Almost immediately the slaves began to test Lee, and at an early stage he lost control of the situation. Only three months after he returned to Arlington, his wife wrote in some alarm that the slaves were uniting to demand their freedom and that only “the merciful Hand of Kind Providence & their own ineptness I suppose prevented an outbreak.” Four months after that a number of the slaves did rise up against Lee. “I have had some trouble with some of the people,” he wrote to Rooney in May 1858. “Reuben, Parks & Edward, in the beginning of the previous week, rebelled against my authority—refused to obey my orders, & said they were as free as I was, &c, &c—I succeeded in capturing them however, tied them and lodged them in jail. They resisted until overpowered & called upon the other people to rescue them.” Lee kept the three in jail for two months, until they could be hired through a slave trader. He also specified that they were not to be sent back to Arlington at Christmastime, though it was customary for hired servants to be reunited with their families at this season.²³ Several other slaves tried to assert the freedom they believed to be theirs, and it appears from Mary Lee’s diary that those who remained continued to resist their master, causing “constant trouble in our domestic affairs.”²⁴ Lee had had to physically “overpower” the rebels, narrowly avoiding a dangerous revolt at Arlington, and he and the whole household were shaken. Soon thereafter, Wesley Norris, his sister Mary, and their cousin George Parks ran away.

Among the things the Lees seem to have misjudged was how much the Custis slaves wanted to be free. Their perspective was that the black people had led a nearly ideal life at Arlington, where a minimum of work was required and some trouble was taken to provide them a little education and maintain cordial relations. Markie Williams recorded a conversation with George Washington Parke Custis a few years before his death, during which he maintained that his slaves were much better off than the lower classes in England—a standard proslavery argument—and that no counterpart for the situations described in the recently published Uncle Tom’s Cabin could be found at Arlington. “To eat & drink & sleep are the only duties with wh[ich] he has anything to do—with regard to most of them,” Markie noted. “They have their comfortable homes, their families around them and nothing to do but to consult their own pleasure. Their eating & drinking & clothing is all provided for them. And truly in many instance[s] the master is the only slave.”²⁵ Mrs. Lee echoed this opinion in her outrage that one of the runaways was her own chambermaid, who, she maintained, led a life equal to that of her daughters. The troublemakers, she fumed, were those “for whom I have ever since my earliest recollection done all I could.” She asked God to forgive them for their presumption.²⁶ The condescension implicit in these statements, not to mention a flimsy knowledge of the actual conditions of slave life (Lee had found those “comfortable homes” to be nearly falling down) was a measure of the delusion under which slaveholders lived. The Custis and Lee families failed to read the longing in their servants’ hearts, heard what they wanted to believe in professions of close ties between master and slave, and mistook obedience for fealty. They were not alone in this: a few years later plantation owners across the South were stunned by the “betrayal” of their “loyal” and “pampered” servants, who chose to leave at the first chance of freedom. “We wear the mask that grins and lies,” wrote African-American poet Paul Laurence Dunbar of the way slaves protected themselves and manipulated their masters’ perceptions. “It hides our cheeks and shades our eyes…./ Why should the world be overwise?”²⁷

The slaves’ feelings of injustice were heightened by the presence of abolitionists in the neighborhood. By the mid-nineteenth century, abolitionists had stepped up their antislavery campaign, moving from tracts and speeches to active intervention in border areas. Starting around 1830 they waged a consistent campaign in Washington, D.C., the purpose of which was to destroy slavery through a program of guerilla-like activities, including organizing blacks, embarrassing proslavery officials, and aiding runaways. The Lees had been exposed to their activities before, particularly when they lived in Baltimore, and had been concerned about the effect on the servants at that time. Lee wrote his wife that “the abolitionists are very active here & opportunities great. That is the experience of all that have brought their servants here.”²⁸ This was not an idle fear. By 1855, the hated “Yankee emissaries” were so prevalent around the nation’s capital that a special law was passed to prohibit hiring slaves there, lest they fall into the hands of abolitionists. Only a few weeks after the death of G. W. P. Custis, the Lees were upset by two men “constantly lurking about here tampering with the servants & telling them they had a right to their freedom immediately& that if they would unite &demand it they would obtain it.”²⁹ When northern newspapers began writing articles about the situation, some based on hearsay and half-truths, the Lees were incensed. Lee chose to remain silent, but Mary Lee reacted violently, calling the stories “villainous attacks upon my husband by name and upon my father’s memory in language I would not pollute my lips by repeating.”³⁰

One can picture Lee, face taut, contemplating the presence of antislavery activists at Arlington. He had a strong animosity to the abolitionists. Over the years Lee had denounced the “evil passions” of radical Northerners, finally declaring “that they contend for the ruin of the present American Church & the destruction of the present Union.”³¹ The Lees and their kin shared with other landed whites a belief that these were dangerous adventurers, who lacked a true understanding of the relation between master and slave. Having convinced themselves that their servants were content, slaveholders often blamed abolitionists for stirring up feelings of “disloyalty” that the slaves would not have felt on their own. They were outraged that antislavery groups felt they had a right to meddle in the affairs of the South and thought that they should be left alone to solve the problem. They did not see this as a national dilemma to be resolved jointly with the North. In fact, they believed that the abolitionists created a vicious circle by their interference, in which the slaves were worked up into an unnatural discontent, became less docile and more likely to rebel, and as a result had to be treated more harshly. If cruelty was to be found, it was because the abolitionists inspired it, not because they had uncovered it. Lee’s cousin Hill Carter, who in 1834 had written a syrupy tract on the paternalistic management of slaves, became vehement when he spoke of abolitionists. No severity existed in the slave system as he knew it, Hill Carter wrote, and there would be no occasion for it “if the fanatics will only let us alone.” Lee stated this in somewhat loftier terms: the slaves’ emancipation would “sooner result from a mild and melting influence than the storms and contests of fiery controversy.” He challenged the antislavery advocate to “leave the slave alone if he would not anger the master.”³²

It was the unequivocal condemnation of abolition in Franklin Pierce’s December 1856 State of the Union address that caused Lee to write his oft-quoted political diatribe on the peculiar institution. Lee had gotten hold of a copy of the speech in some newspapers his wife sent him in Texas, and it seems to have had a galvanizing effect on him. Pierce had slammed the abolitionists, criticizing their extremism, condemning acts that facilitated the escape of slaves, and labeling them agitators. He blamed them for preparing the nation for civil war “by doing everything in their power to deprive the Constitution and the laws of moral authority and to undermine the fabric of the Union by appeals to passion and sectional prejudice, by indoctrinating its people with reciprocal hatred, and by educating them to stand face to face as enemies, rather than shoulder to shoulder as friends.” It was a remarkable and reckless speech that could only have been delivered by a president such as Pierce, who had already been voted out. Lee agreed with it all. He called the president’s views “truthfully and faithfully expressed” and criticized the abolitionist for “interference in what he has no concern.” Antislavery zealots, Lee concluded, had “neither the right nor the power” to force a change in the South.³³ Usually a master at avoiding political debate and the controversies of his day, Lee had been provoked to take a stand.

Historians have questioned the degree to which abolitionists were responsible for slave escapes, noting that the African-Americans who did run were hardly passive recipients of white planning, often receiving as much help from fellow slaves and free blacks as from professional activists. Abolitionists were certainly present in the Lees’ neighborhood, however, and it is clear from the ensuing newspaper articles that the Arlington slaves were exposed to them. It remains uncertain whether or not antislavery agitators inspired Wesley and Mary Norris and George Parks to run away, as the Lees believed. But run they did, in the late spring of 1859. We know that the incident took place, not only from the account by Norris but from Lee’s own description, as well as court and newspaper records. As Lee describes it, the three “absconded some months ago, were captured in Maryland making their way to Pennsylvania, brought back and are now hired out in lower Virginia.” Records from Westminster, Maryland, show that they were held there just as Norris relates, and that they may have added a guide or additional runaway to the party en route.³⁴ Exactly what happened after they were returned to Arlington is more difficult to determine. The abolitionist press picked up on the story, probably recounted by the slaves, and immediately printed it in sensationalist style. Like Norris, they described a scene of punishment, with the runaways being taken to the barn and whipped. In the newspaper accounts, the events are more dramatic than those later described by Norris, with Lee himself taking the whip when the overseer refused to wield it against the girl, lashing the bare-breasted woman thirty-nine times. Another version, printed about the same time, also has Lee personally administering the blows.³⁵

Did Robert E. Lee indulge in this kind of tyrannical behavior? Generations of Lee-revering biographers have rejected the idea. “It is needless to remark,” said a typical curt commentary, “that while Lee on occasion was a firm disciplinarian, he was never brutal.”³⁶ Historians have long used care in relying on the abolitionist press, geared as it was to passion and propaganda. There are also many questions about the credibility of slave narratives, which were often filtered through antislavery forces, or retold many years later through the subjective pens of white interviewers. The two contemporary versions in the New York Tribune, with a furious Lee seizing the black girl, do seem exaggerated. But Wesley Norris’s more sober account rings true. He was, after all, one of the protagonists, and the tale, though told to an antislavery paper, was given straightforwardly, only a few years after the incident. Moreover, every detail of it can be verified, from the time he ran away (after seventeen months) and the number of slaves at Arlington, from the names of the jail and the overseer (Norris says “Mr. Gwin,” a corruption of his actual name, “McQuinn”) to the place they were taken after the punishment (Hanover County) and their subsequent employment after the war. We know a whipping post stood at Arlington. The added sting of washing the bloodied backs with brine is corroborated by another eyewitness, who also mentions that the whipping was done by the county constable.³⁷ Even the constable’s name is right—Dick Williams. Lee’s account book for June 1859 carries this item: “to Richard Williams, arrest, &c of fugitive slaves—$321.14.” The sum, which did not include the transport of the slaves to Hanover County—Lee paid another $50.53 for that—is exceptionally large. We know that Lee’s standard reward for returning runaways was ten dollars per slave. The previous year Lee’s accounts show that he paid Williams only $57.25 to arrest and detain three other fugitives, and another $37.12 to transport them to Richmond. The costs for the earlier capture had also been inflated by the need to keep them in jail two months. The services rendered by Williams in relation to the Norris party must have been extraordinary to command a fee nearly six times as high as those paid the year before.³⁸

The interior of the slave pen in Alexandria.
LIBRARY OF CONGRESS

Any trial lawyer will tell you that the witness who gives testimony that can be verified on every detail is likely to be considered believable on the whole. Although Wesley Norris’s statement does not entirely fulfill the credibility wish list comprised by some historiographers (it was not, for example, recounted immediately and was almost certainly filtered through a white journalist), it was unquestionably predicated on facts. It does raise a question about why the statements of slaves should be considered any more biased as a source than those of their white contemporaries. Wesley Norris gave his interview after he was freed, when he had nothing to hide, gain, or fear; the fact that it was published in a northern newspaper does not necessarily make the information unbelievable, any more than Hill Carter’s sentimentalized version of ideal slave management, obviously meant for the apologist press, must be taken as entirely insincere. Slave testimony, with all of its qualifications, constitutes a precious insight into the victims’ side of a cruel system. It is no more manipulative than any other historical resource. Indeed, the perfectly accurate source simply does not exist. There seems to be no obvious reason that Norris’s description of his treatment, corroborated by five different witnesses, and substantiated by Lee’s own records, should be discounted.³⁹

Lee never completely denounced the story. “The New York Tribune has attacked me for my treatment of your grandfather’s slaves,” he told his son Custis a few days after the event, “but I shall not reply.”⁴⁰ Years later (years more removed in time than Norris’s statement, if that is our test of credibility), he told a friend that “the statement is not true; but I had not thought proper to publish a contradiction.” And to the same correspondent: “There is not a word of truth in it…. No servant, soldier, or citizen that was ever employed by me can with truth charge me with bad treatment.”⁴¹ But there was more than a word of truth in the accounts: virtually all of it can be directly verified. What Lee may have objected to was the scene of his personally whipping the slave girl, the most doubtful part of the story. That does seem to stand against the class distinctions of the day, for constables such as Dick Williams, who had been paid such a lavish sum, existed precisely to do this kind of demeaning chore. But that he lost control of his famous temper, and demanded punishment as a hindrance to further mischief among the slaves, is entirely in keeping with his previous statements and indeed with his record of advocating punishment, whether for cadets or for slaves, as an exercise in deterrence.⁴² It is doubtful that under the circumstances whipping would have, in his mind, constituted “bad treatment.”⁴³

Lee’s method of directing operations at Arlington had been insensitive to the slaves’ fears, longings, and attachments, and his entire history with the institution had been one of upholding the master’s right to discipline the blacks. In addition, many of the slaves at Arlington had crossed an important psychological barrier, believing that they truly were free. Frederick Douglass and other African-Americans have described the critical moment when their spirits were liberated, even if they physically remained in bondage. After this point there was really no way to control them. Once this occurred at Arlington, Lee lost the power that came from an unspoken recognition of his right to command. If the blacks decided to challenge the master’s prerogatives, he had little choice but to resort to physical force to maintain discipline. This, coupled with the need to make an example of those caught in flight, made whipping the preferred method of punishment. Fugitives seem to have been particularly irritating to masters, both for the trouble it caused to bring them back and for the direct affront to their authority. Whipping was the most common expression of the masters’ frustration. Frank Bell, a slave on an estate near Arlington, gives us some insight into the situation when he tells how his master had never touched one of the plantation blacks, until he ran away one time too many. “Ole Marser was some kind of mad,” Bell recalled. “Cost a lot of money, it did, when you go git a runaway slave. ‘Hue and Cry’ dey called it, you got to put notice in de papers, an’ you got to pay a reward to whoever catches de runaway.”⁴⁴ Fed up with the sullen, uncooperative servants he had been appointed to manage, and seemingly oblivious to their concerns, Lee may well have wanted, as Norris described it, to teach them a lesson they would never forget.

Of course Lee was well within his legal rights to apprehend and punish the runaways. Not only state but federal laws protected the slave owner’s property. There had been laws to return fugitive slaves as early as 1793, though all of them contained loopholes. Throughout the antebellum period southern whites fought to strengthen those laws, especially as fears of abolitionists or insurrection took hold. The Fugitive Slave Act of 1850 was a piece of landmark legislation that theoretically ensured federal support for slaveholders who were trying to recover their property. One of the ironies of this hard-fought compromise is that it was so rarely invoked. The act allowed for a complicated procedure of petitions and warrants, involving federal judges or commissioners, formal determination of ownership, and several hearings before a slave was allowed to be repossessed. Many thought that it had been designed to be so complicated that it would not be used, and in practical terms this seems to have been the case. After nearly a decade of enforcement, only around 200 slaves were ever returned to their masters. Most planters, like Lee, appear to have resorted to private seizures, rather than go through the time-consuming process called for in the law. Whether or not they were in violation for not following the due process is an interesting question. In any case, legal historians maintain that there is no evidence that anyone was ever charged with violating the act because they failed to follow the procedures.⁴⁵

Slaves were things; they had no rights under the law. The master determined the kind and amount of their labor, what they ate and wore, where they went, what they possessed, how they conducted themselves in public, whether or not they were to remain with their families. They could not hold property, be a witness against a white person, or change masters at will. The master was given considerable leeway in their discipline and punishment. Whipping slaves was not an offense; indeed, it was prescribed by law in Virginia and Maryland for everything from straying outside the plantation limits to keeping a dog, even for “beating up” the river to attract fish. The fugitive laws could not protect the owner sufficiently from those slaves who wanted to escape or those who refused to accept their authority. As a result, a complex penal code was established, meant to impress the slave with the master’s sovereignty and to deter trouble. Whipping was not just allowed under the law; it was stipulated in cases of runaways. The owner might exercise some judgment in how his slaves were punished, and occasionally an overzealous master was arraigned for mistreating a slave. But it was the master’s duty to enforce the law and carry out its provisions. If Wesley Norris and his compatriots were indeed whipped, as the evidence suggests, those of Lee’s class and persuasion would hardly have considered it cruel, criminal, or even “bad treatment.”⁴⁶

Lee postponed returning to his military command in hopes of hearing the decision of the court, but after infinite delays rejoined his Texas regiment in 1860.⁴⁷ He largely abandoned the role of executor after this point, and the eruption of war the following year made any further efforts sporadic. As the five-year deadline for liberation approached, Lee discussed a number of schemes for fulfilling all aspects of the will, including keeping the servants indefinitely in bondage. In early 1862, however, the court finally ruled against Lee, stating that the black people were to be liberated with or without the payment of the other legacies, and that the will should be fulfilled by the sale of land as Custis had stipulated.⁴⁸ Lee bowed to this decision and took some trouble behind the Confederate lines to see that the slaves all had their manumission papers. Most were finally freed on January 1, 1863, the final day acceptable to the court. Coincidentally, it was also the day the Emancipation Proclamation took force—giving the Custis slaves a double liberation.⁴⁹ Determined to uphold his trust, Lee used his own funds and the sale of land to accomplish all of G. W. P. Custis’s exacting requirements. He also tried to help some of the freed men hire their labor, and resisted attempts by the white community in the Pamunkey region to keep them in bondage.⁵⁰

In all, Lee passed twenty-six months as executor of the Custis estate. It proved to be one of the most painful experiences of his prewar life. The carefully developed ideals he had tried to live by—of conscientiousness and hard work and a disciplined but just way of treating slaves—failed him when he met with the reality of being a master. He had wanted badly for this work to succeed, both from his sense of responsibility to his wife and late father-in-law, and because he knew that with his soldier’s salary this was the only sizable inheritance his children would receive. It seems also to have shattered any dreams he cherished of leaving the army for the life of a planter; hereafter his fantasies centered on a simple rural existence with labor supplied by the family, not a host of black bondsmen.

Lee was unsuccessful as a master largely because he neglected to see the situation in human terms. He embraced the legal and economic aspects of the master-slave system without really grasping its complex underlying relationships. He never recognized the slaves’ fundamental desire to change their condition; instead he tried to superimpose his sense of “duty” upon them. Moreover, by breaking up families and proposing to ship them far away from their community, he both denied the slaves’ humanity and stepped beyond the genteel code of paternalism that even proslavery men professed. Lee could have freed the slaves immediately at the death of his father-in-law; as executor he had that ability. Virginia law made this difficult, but the law had been circumvented before at Arlington.⁵¹ He could have freed them and rehired them to make the estates solvent, or worked with imported labor. Instead Lee took decisions that ultimately had to be upheld by force. The option he finally chose, of selling land to furnish money for the legacies, was what Custis had specified from the beginning. His failure to communicate on human terms and to see beyond self-interest caused him to mishandle a delicate situation. Lee never lost his legal rights over the slaves, but he did lose his moral authority. And that was because he continued to treat the African-Americans at Arlington as property, when they thought of themselves as free men.