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Note of Argument of Appellant©


Having established that General Lee was not a slave whipper, we must now deal with the reality that, like every other white man in the America of 1860, he was a racist who put the interest of his own family ahead of the interest of the Custis slaves. What a surprise! He's a match for Lincoln─not to mention Hiram Grant─who had no problem telling his audiences, when push comes to shove, he stands with his own race against the African.

“I have no purpose to introduce political and social equality between the white and black races. There is a physical difference between the two, which, in my judgment, will probably forever forbid their living together upon the footing of perfect equality; and inasmuch as it becomes a necessity that there must be a difference, I am in favor of the race to which I belong having the superior position.”


Pryor’s narrative with supporting footnote:


This passage of  Pryor’s demonstrates her prejudice against Lee, and her lack of objectivity in presenting the truth of history. She writes that there were “rumors” the Custis slaves “were now being sold South;” and then tells us that “the hearsay had a disturbing element of truth to it,” because, she says, in his petitioning the courts to give him a ruling on the competing demands of the Custis will, “Lee not only asked  that `the emancipation of the slaves be postponed till the legacies [and debts] had been [paid] off, but hoped for a decision that would justify `removing the property of the testator, beyond the limits of the State.’”

Setting Pryor’s artful use of verbs aside, what in fact happened? The Custis will did contain “competing demands.” On the one hand, the testator clearly intended that the labor of his slaves be used by his executor to pay off the debts of the estate and the legacies he bequeathed to his four granddaughters. On the other hand, the testator intended that his slaves be manumitted by the executor no later than five years after the date of his death. The problem for his executor was how to enforce his intent when the full execution of one part of it depended upon the other part. But who was to decide what the testator would want done, if the debts and legacies were not paid off by the end of the five year term?

Given the terms of the will, the executor might think that the testator would want the slaves manumitted within five years of his death, even though the legacies had not been fully paid, because the balance of legacies could be paid by selling off all or part of the lands (White House and Romancoke) bequeathed to his two grandsons, William Fitzhugh Lee and Robert E. Lee Jr.

Note: The qualification as to the time of manumission is void as a matter of law as to the executor’s duty to pay the debts of the estate; i.e., the testator cannot manumit his slaves through the device of a will until the creditors of his estate have been fully paid. If such were allowed the result would be a fraud upon the creditors. The legacies are a different matter. As to them the testator, as Custis did, can instruct the executor to manumit his slaves before the legacies bequeathed to his granddaughters are fully paid, leaving the balance to be paid as a lien on the real property bequeathed to his grandsons.


One supposes reasonably, given the terms of the will, that the executor might have decided the question on his own, but Lee was obviously constrained in his mind by the conflict of interest between not only the testator’s grandsons and granddaughters but also between them and the slaves. Using his power as executor Lee might have simply decided the question in favor of his family’s interest in getting both the legacies fully paid and keeping all the lands, for how were the slaves to complain? But Lee knew, if he were to continue as executor, choosing between conflicting interests was not his call to make but the law’s. So, Lee retained an attorney named Francis L. Smith to file a Bill of Complaint in the Circuit Court of Alexandria County which prayed primarily for instruction regarding this question. And, in presenting the question to the court, it was Smith the lawyer, not Lee the client, who offered the court an interpretation of the will that, if adopted by the court, would have resulted in the slaves remaining in bondage beyond the five year period Custis had specified in one clause of his will.

According to George Combs, Special Collections Manager of the Kate Barrett Library in Alexandria Virginia, Pryor spent a week at the library while researching her book and it was there that she appears to have obtained the “Note of Argument of Appellant.” When asked where the document came from, Mr. Combs stated he had “no idea” as the document as he found it upon my inquiry, he said, was inside an unmarked folder (He may have left unsaid that the “unmarked folder” was, in fact, inside a box). When asked a second time, Combs stated the document had been with the library for “twenty years.” When asked again for the name of the person or entity that gave the document to the library, Combs declined to respond. In searching for an answer to the question─from where and from whom did the document come from?─I found the library’s reference to Box 240 as containing the “Francis L. Smith Papers” and wrote to Mr. Combs this:

Mr. Combs responded with,

Today, Mr. Combs’ website identifies Box 240 this way:

Note: Since G.W.P. Custis’s death in 1857, there has not existed a “Custis family.”Francis Lee Smith, the lawyer, had six children. It appears that no descendants from this issue are alive today. It does not appear that a depository exists in which papers relating to Francis L. Smith or his children contain a document from which the Note of Argument came from.


It is peculiar that Mr. Combs has no problem connecting gifts of documents to a specific person, except when the “Note” Pryor found in the collection is the issue.

More peculiar still, is the fact that the “Note of Argument” has no place in the ordinary procedure of appeal. Today, lawyers file briefs which contain their arguments. Whether this was the case in 1859, I cannot say. But I can say it was not the practice of the time to file a “Note of Argument” with the court, and an examination of the published decisions of the Supreme Court contained in the Official Reports (Vol. XVI Grattan) show no example of such a “Note” in any of them.

Making the matter of the Note’s authenticity even more mysterious is the fact that, based on an extensive search of all possible sources, the “Note” in Mr. Combs’ hands is the only copy that exists in the world. Assuming attorney Smith, for some unfathomable reason, caused the oral argument he may have made before the Supreme Court, to be type-set and printed, a reasonable person in his shoes would hardly have had one copy printed. What would be the point of it? Yet no other copy of it exists in the world? How can this be? So, though we have no foundation for the document being authentic, as opposed to being manufactured more recently than the time of the actual appeal, here it is.

Note: Page 1 of the Note accurately states the substance of the will.

Note: As to the first issue the Note raises, that regarding the question whether the phrase in the first clause─My Arlington House estate─includes the Arlington slaves was answered in the negative by the circuit court and this interpretation was confirmed by the Supreme Court. Had lawyer Smith’s interpretation been accepted by the Court, it would have meant that the Arlington slaves would have remained slaves during Mary Lee’s life.


The Supreme Court held further that the executor’s duty was to use the money received from the labor of the Arlington slaves, either on the farm, or through their hires off the farm, to help pay off the debts of the estate and the legacies. Had the debts remained unpaid at the end of the five year term specified in the will, the slaves would still not be manumitted as the consequence would be a fraud on the creditors not yet paid. Only if the debts were all paid by the end of the five year term would the slaves be entitled to immediate manumission, regardless of the fact that the legacies remained unpaid. The testator worded his sentence containing the manumission time limit to include reference only to the legacies. 

Note: A search of the Virginia Supreme Court’s decisions for the period of 1850 to 1867 reveals one reported decision in which attorney Smith appears as counsel for a party on appeal. He appeared as appellate counsel in the United States Supreme Court in two cases. The record shows that attorney Smith was a successful lawyer whatever his area of practice was, but the interpretation of the will he offers the court on the issue of the testator’s intent as to the timing of emancipation of the slaves seems to border on the frivolous to me.


It is true that in one clause of the sentence at issue, the testator speaks of emancipation as linked in time to the legacies being paid off─”that upon the legacies being paid off, then I give freedom to my slaves”.  But that clause is plainly qualified by the final clause of the sentence─the said emancipation to be accomplished in not exceeding five years from my death.” So, as a matter of technicality, it is within the realm of proper practice of probate law, for a lawyer to say that a “patent ambiguity” exists in the will─an ambiguity that Lee, as executor, was not willing to resolve himself without the involvement of the court. Pryor, of course, faults him for this, as it means to her Lee meant to cheat the slaves of their freedom. But, then, it is hardly fair of her when Lee is but exercising his legitimate right as executor to seek instruction from the court.

Note: The last substantial issue Smith raised was whether the executor was authorized by law to remove the slaves from Virginia, not to sell them but to hire them. The circuit court had answered this question in the negative and the Supreme Court agreed. Given the ruling, it is not reasonable to believe Wesley Norris was sent out of the State to labor as a hire in Alabama. Although it is possible the reason he ran away is that, before the circuit court ruling came down, he had been told he was going to be sent to Alabama. It turns out that Robert W. Smith, a brother of Francis Lee Smith, was visiting Alexandria about this time. Robert had a plantation in Alabama. But this is pure speculation, as no facts exist which allows us to connect the two dots.


The difference between decent men and unscrupulous men is that, in pursuit of their self-interest, decent men follow the law and unscrupulous men do not. Here, Lee, in his capacity as executor, was faced with a conflict between the interest of his sons, in using the slaves to work the lands their grandfather bequeathed them, and the interest of his daughters in receiving the money their grandfather bequeathed them, and the interest of the slaves in their freedom. Given the state of affairs that existed, in 1858, Lee understood it was unlikely that crops grown on the lands by the labor of the slaves, coupled with the money gained from their hires, would be enough to pay off both the debts and the legacies within five years of Custis’s death. The consequence would be, he knew, that the unpaid balance of the legacies would constitute a lien on the lands bequeathed to his sons, probably requiring the estate to sell all or part of the lands to satisfy the legacies, because the estate had no money to pay for hires. So he went to lawyer Smith, who was his cousin, and relied upon him to make a case that might advance his family’s interest over the slaves’ interest.

The contrast ought to be remembered, here, between Washington’s financial situation at his death and Custis’s. Washington, living large off slavery in the 18th Century, died a very wealthy man, the consequence of which was that, being without children, he not only willed his slaves to be manumitted but also he willed for their use a large fund of money which supported all of them to the moment of their death, the last of them dying thirty years after him. Living in the 19th Century, on land inherited from his father as well as from Washington, Custis did not have great financial wealth; and so he left his slaves─upon manumission─to shift for themselves in the world, a telling example of how close to economic collapse the institution of slavery really was, in 1857.

It ought to be remembered, also, that R.E. Lee never sold a slave, as Hiram Grant did. Grant resigned from the U.S. Army in 1854, and between that date and 1858, the same as Lee with Custis’s estate, he managed his father-in-law’s 1,000 acre farm in Missouri; in the process overseeing forty slaves, at least one of which he personally owned. Trying for a time to farm a parcel his father-in-law gave him, he gave it up in 1859, and, in doing so, he agreed to manumit his slave for a “valuable consideration;” i.e., either the slave paid Grant money for his manumission or some third person did.


Deed of Manumission filed in St. Louis Circuit Court, 1859

(It is possible that Grant took a nominal sum merely for form.)

 The following letters of Lee demonstrate that there was never a moment that he did not intend to follow the law.

“Arlington 27 Nov. 1858


My Precious Son


I again sit down to write to you in the hope that some of my letters may find you. I have not heard from you since last summer.  (After 3 years at Harvard, Rooney took a commission in the U.S. Army and, in Nov. 1858, was in Utah.). . .


[Several paragraphs of family news follows]


One of the objects I hoped to attain by my stay I have been already disappointed in; viz: the construction of your dear grandfather’s will by the Circuit Court of [Alexandria County]─the directions for my guidance under it. I wrote to you all about this in previous letters. The Court has adjourned without giving me the construction. [a phrase here cannot be deciphered but it does not match Pryor’s words] It will not meet again for six months.”


Lee’s letter to Rooney Lee, Nov 1858



Clerk’s Minutes Showing What Happened in the Circuit Court

First Page of Circuit Court’s Decree Filed May 25, 1859

Plainly, contrary to Pryor’s statement that “the court denied Lee’s petition,” the circuit court issued its decree which answered each of the six questions Lee’s Bill of Complaint raised. The answers, taken verbatim from the decree, are as follows:

“First, the devise to [the testator’s] daughter, Mrs. M.A.R. Lee, of the Arlington `estate’, does not embrace the slaves, or any personal property, except the personal property enumerated in that clause of the will.


Second, that it is the duty of the executor, to pay the debts of the estate, and that that the perishable and personal property (slaves and specific legacies excepted) is the fund to be appropriated in discharge of the debts.


Third, If any surplus of the personal estate remain after the payment of the debts, the residue is to be applied in payment of the legacies, and the lands, directed to be sold, and to be sold, and applied in the same way, and the hires of the slaves, and the rents, issues, and profits of the White House, and Romancoke estates, are also to be applied without distinction [?} the devises respectively [?] [?]. . . . (The rest of the paragraph unintelligible to me.)


Fourth, 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 manumission.


Fifth, If the legacies are not paid off, by the personal property, hires of slaves, rents, and sale of the real estate charged with their payment at the end of five years, the portion unpaid remains a charge on the White House and Romancoke estates until paid. The devisees take the estate [Latin phrase meaning subject to lien].


Sixth, The powers and duties of the executor are limited to the State of Virginia. He should not place the assets of the estate beyond its jurisdiction.


Seventh, It is the duty of the executor to work the estates of White House and Romancoke, but if he can satisfy a court of equity that the interests of the parties [?} would be promoted by [?] the land and hiring out the slaves, the court would order him to do it.


Eighth, And therefore and upon the foregoing construction of the said will, the court doth order and decree that one of the court’s commissioners estimate and report the relative value of the White House and Romancoke estates.

What Pryor was thinking when she wrote “Lee’s petition was denied” escapes comprehension altogether.

The Process of Appeal

The circuit court clerk’s minutes establish that Lee’s wife and children were made compulsory defendants in the action, appearing according to the court through a “guardian ad litem” as to the children and by a “next friend” as to the wife. The available record does not disclose the identity of who these persons were. The only lawyer identified in the record is Francis L. Smith who appeared in the action, at the level of the circuit court, as attorney for R.E. Lee, executor.

Clerk’s Minutes in Supreme Court re filing of Appeal

According to a minute order entered in the Virginia Supreme Court of Appeal, on October 12, 1859, R.E. Lee, as executor, did in fact petition the Court of Appeal to review the decree of the circuit court. What specific aspect of the decree was at issue on the appeal, the court record does not disclose. What is known is that, on November 22, 1861, the Supreme Court of Appeal, reversing some element of the circuit court’s decree, affirmed the major parts of it.



What follows was received through the auspices of the Librarian of the Virginia Supreme Court and appears to constitute the Supreme Court of Appeal’s decision, affirming and reversing in part the decree of the circuit court. Exactly what part of the decree was reversed requires legal analysis that is too time-consuming to be indulged in at the moment.

Here follows the text of the Supreme Court’s opinion in print.

In the Supreme Court of Appeal of Virginia

Robert E. Lee, Executor of the last will and testament of

George Washington Parke Custis, deceased Appellant

Mary Anne Randolph Lee, wife of Robert E. Lee by Mr. Arthur Taylor

her next friend, George Washington Custis Lee, Henry Fitzhugh Lee,

Mary Lee, and Robert E. Lee Jr., Anna Lee, Anges Lee, Mildred Lee

appearing by Arthur Taylor their guardian et litem. Appellees

Upon an appeal from a decree pronounced by the Alexandria County Circuit Court

on the twenty-fifth day of May 1859 in a suit in which the Appellant was plaintiff and

the appellees were defendants.

This day came the appellant by his counsel and the appellees [?] solemnly called came not, whereupon the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of the appellant’s counsel, is of the opinion that, under the last will and testament of G.W.P. Custis, the devise and bequest to his daughter, Mary Anne Randolph Lee contained in the first clause does not embrace the slaves or any other personal property, except the personal property enumerated in that clause.

Note: The executor’s attorney, Francis L. Smith, is arguing that the word “estate” in the first clause, when considered in light of the clauses which follows, suggests the intent of the testator was to include in his bequest the slaves at Arlington; i.e., that the slaves constitute part of “my Arlington House estate.” The circuit court had rejected this interpretation of the will and, if this document is considered to be the Supreme Court’s decision in the case, the circuit court’s view has been upheld.


It is the duty of the executor to pay the debts of the estate, and the whole estate, real and personal, is liable therefore; the primary fund for the payment of debts consists of the personal estate not specifically disposed of, including the hires of such of the slaves and such of the personal property as may not be considered by the executor necessary for the proper working of the White House and Romancoke estates.

The subject liable to the payment of the legacies to the testator’s four granddaughters consists:

First, of the lands directed to be sold for that purpose;


Second, surplus of the personal estate primarily liable for the payment of debts that may remain after their payment;


 Third, the rents and profits of the White House and Romancoke estates and of the slaves and other property that may be worked thereon until the slaves are entitled to their freedom─and if there be then any balance of the legacies remaining unpaid, such balance shall be paid out of the proceeds of sale of personal property (other than the slaves) worked on said estates and out of the rents of said estates. The said legacies bear interest from the end of one year from the death of the testator.


Note: It appears that lawyer Smith probably made the argument before the Court that it was the intent of the testator that the legacies to his granddaughters be paid out of the profits of the White House and Romancoke estates which he intended to be worked by the slaves assigned to those farm until the legacies were paid in full.


It appears that the circuit court rejected this view and that the Supreme Court upheld this view on appeal. It appears that the Supreme Court held that, if the legacies were not paid before the date the slaves were entitled to their freedom (i.e., five years from the date of the testator’s death) then the unpaid balance of the legacies constituted a lien against the real estate of White House and Romancoke.

So much of the personal property (other than slaves) which is not specifically disposed of, as may remain after the payment of debts and the said legacies, is subject to distribution according to law, the testator having died intestate as to it.

The slaves, if not necessary for the payment of debts, are entitled to their freedom at the expiration of five years from the death of the testator, or sooner if the said legacies are paid off. The executor is to give deeds of emancipation.

Note: Since the Supreme Court upheld the circuit court’s decree that the testator, by use of the phrase “my Arlington House estate” in the first clause of the will, did not intend that the Arlington slaves be included, as part of his daughter’s life estate, Mary Lee was not legally entitled to the use of such slaves. But Lee, as executor, was entitled to use the slaves on behalf of the estate to raise money, through their hires, to pay down the estate’s debts and legacies.


The powers and duties of the executor are limited to the State of Virginia. He should not place the assets of the estate beyond its jurisdiction.

It is the duty of the executor to work the estates of  White House and Romancoke, but if he can satisfy a court of equity that the interest of the parties interested would be promoted by renting the lands and hiring out the slaves, the court would order him to do it.

The several devises to William Henry Lee and Robert Edward Lee of the White House and Romancoke estates are contingent upon their respectively attaining the age of twenty one years at which time the estates vest in interest, but neither of the said devisees is entitled to the possession and enjoyment of the estate devised to him until the legacies to the four granddaughters have been fully paid; therefore it is decreed and ordered that so much of the decree aforesaid (i.e., the circuit court decree) as conflicts with the foregoing opinion is erroneous, and that the same be revised and annulled and that the use thereof be affirmed, and that the appellant out of the estate of the testator in his hands to be administered, do pay unto the appellees, as the parties substantially prevailing, their costs by them expended in defense.

And it is ordered that the cause be remanded to the circuit court for its decree to be entered and for further proceedings to be had therein, in conformity with the foregoing opinion and decree which is ordered to be certified to the said circuit court.

Note: It is unclear in what way the “appellees” are the “prevailing” parties, entitled to costs and attorney fees. The executor has no personal interest in the action. He is, in essence, a stakeholder.


From the terms of the will and the text of the Court’s opinion, it seems reasonably clear that Lee’s action in appealing the circuit court ruling is primarily based upon a conflict of interest between the testator’s granddaughters and the testator’s grandsons. If the White House and Romancoke estates are to be held hostage to the payment of the legacies of the granddaughters, then the lands of the estates must be sold, to the extent necessary to pay the balance of the legacies still unpaid at the time the slaves are entitled to their freedom. So, then, while the conflict gives rise to the issue of when the slaves are entitled to their freedom─five years from the death of the testator, as the will in one clause expressly states, or only when the legacies are paid in full which will occur who knows when─ it makes sense that the executor would move the court to resolve it.


Here is how Pryor deals with the reality of the case. After telling us that, “When the [circuit] court denied Lee’s petition, he applied to the Supreme Court of Appeals of Virginia to have it overturned,” supporting this statement with the above referenced footnote, she completely ignores the Court of Appeal’s decision and goes off on her continuing tirade about the “Custis slaves fear that they were to be sent south, etc, etc. 

What was R.E. Lee’s interest in the appeal to the Supreme Court? He had no personal interest as a beneficiary under the Custis will. The only interests at stake, regarding the slaves, were that of his wife and sons. His wife’s interest involved the issue of whether the Arlington slaves were hers to use during her life. His sons’, Rooney and Robert E. Lee Jr.’s, interests involved the issue of whether the labor of the slaves could be used until  the liens their sisters’ legacies imposed upon the real property were paid─the conflict in the testator’s intent being evident when the language of different parts are compared.

As a legal matter R.E. Lee’s interest in these issues was solely the interest of the executor to carry out the testator’s intent as divined by the courts. His letters to his sons written in the months following the Supreme Court’s decision, when he was in South Carolina preparing the State’s coastal defenses, make this too plain for argument. 

Joe Ryan Comments 

I am reminded of Shakespeare’s scene on the plains of Philippi, in Julius Caesar, when Mark Anthony comes upon Brutus’s corpse and says, “This was the noblest Roman of them all: All the conspirators, save only he, did that they did in envy of great Caesar; He only, in a general honest thought and common good for all, made one of them. His life was gentle, and the elements so mixed in him that Nature might stand up and say to all the world, `This was a man.’”

The fact that the “Note” exists is surprising, as is the existence of the hand-written clerk’s minute record setting forth the decision of the Supreme Court; the latter document being in the possession of the Virginia State Library while the “Note” is not.

Ordinarily, before the war as well as after, decisions of the Virginia Supreme Court were published in book form, the books called Official Reports. From 1861 to 1867, none of the Court’s decisions were printed for publication. In 1867, Volume 16 of Grattan’s Reports was published by J. Randolph & English. This volume contained decisions for the year 1861, but only two such decisions are found in the volume and neither is the Custis decision.



Presumably, the Randolph & English Co. simply failed to obtain a copy of the Custis decision, when it published Volume XVI in 1867. The volume was reprinted by another company in 1895, and, again, in 1901, and the new printer likewise failed to include the decision. What is clear, however, is that the “Note of Argument of Appellant” was not a document prepared as a requirement of the Court’s appellate procedural rules and was not included as a matter of custom in the Official Reports of decisions of the Court; nor was it published in the newspapers of the times. So, what was the purpose of spending money to type set, print and publish it? No one knows. And it is equally strange that, before Pryor inserted it into her footnote, not only had it never appeared in an historian’s work before but it is the only known copy of the Note in existence. The idea that Francis L. Smith, the lawyer, would have created the document as a single print makes no sense. Yet there it sits at Mr. Combs’ desk, all alone in the world.


            Judge Moncure

Judge Lee

Judge Robertson

Judge Allen

Finally, given how the historians rail about the horrors of slavery, here is an example of how the law of antebellum Virginia actually worked.


It is possible, of course, that the Lee family descendants were, and perhaps are still, in possession of the Supreme Court’s decision as Lee’s letters to his sons reflect; and, thus, possibly the Note of Argument of Appellant came from their treasure chest. (Which explains how Pryor knew where to find it.)

Mrs. Pryor and Lee Descendants

With Mary C. Lee’s Trunks 

Note: Further research reveals that, in fact, one copy of the “Note of Argument” of Francis L. Smith in the Custis case, was offered for sale by Swann’s Galleries of New York, in 2005, two years before Pryor’s book was published. The document, not sold, was returned to its consignor who the records of Swann’s do not disclose.



William Day is a bookseller and collector of African memorabilia, who states he cannot recall who consigned to him the Note for sale, or who it was he returned it to. Given the fact that, at the present time, only one copy of the document can be said to exist in the world, it is reasonable to think the copy now in the possession of the Alexandria library is the same copy that was previously in the possession of Day. Given all the circumstances of the case, it may well be the fact that it was Pryor that slipped the document into the possession of the library, thus creating a depository for it she could cite as her source in her footnote.

It appears, therefore, that the Note document is, in fact, authentic. It appears further that the custom among appellate lawyers of the times, was to cause their argument to be printed and the printed text be delivered to the appellate court. This custom is expressed in the syllabus of the Virginia Supreme Court case of Bailey et al. v. Poindexter’s Ex (1858) 55 Va. 132, 14 Gratt. 132, in which the following is stated:

“The case was argued at great length, in writing, by John Howard, for the appellants, and by Branch, for the appellees. The reporter has found it impossible to combine in one all the arguments on a side. He is indebted to Mr. Howard for the note of his argument; and has selected that of Mr. Patton on the part of the appellees.”

The Note of Argument of Francis L. Smith, found in the Alexandria library today, is missing its face sheet or caption cover. One explanation for this, is that whoever is responsible for slipping it into the library’s hands intentionally held the cover back, as it may contain marks or notations that reveal where it came from.




Joe Ryan


General Lee Slave Whipper