Ownership of Fort Sumter
By
Bob Huddleston

        Article I, Section 8 of the Constitution provides clear instructions about how and under what circumstances the United States government may acquire title to property located within a state:

"Congress shall have the Power …. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings."

        This was interpreted by the first congresses to require that when any Federal installation was to be built within the boundaries of the state, the government had to purchase the property (unless it lay within the Public Domain) and the state legislature had to pass a law agreeing to the acquisition of the property. From the earliest days of the Republic, states have proved very agreeable to government installations, both from the money spent locally to build the fort or court-house, as well as the government payroll which would follow.
        The process was very simple: a state would, through its members of Congress and senators, argue that the National Interest required that a fort be built, such as one in the middle of Charleston Harbor. The necessary legislation would pass Congress and be signed by the President. Then the state legislature would pass a law granting title (if the state owned the property) or affirming title (if the land was privately owned) to the United States. The one general exception was a clause inserted to allow state officials to enter the Federal property to seize fugitives from justice or to serve civil process papers. Depending upon the property in question there might also be affirmations of the right of eminent domain, i.e., if the private owner was unwilling to sell, the property would be appraised and, under the Fifth Amendment, the government would judicially take title, paying the owner the appraised price. In other cases, the state's approval was contingent upon the Federal government using the land. South Carolina's legislature was so anxious to have Fort Sumter, that it provided for the first two and left out the third exception.
        It is important to note that then - and now - the government refused to accept property where there was any other restriction. The state gave up all rights it might have in the property. Otherwise Congress would refuse to appropriate the necessary funds to build the installation. The States bent over backwards to make certain they got their share - and then some - of the Federal budget, including quickly removing impediments to the government acquiring title.
        And it is important to note that the title given to the United States was fee simple, with specific notice that the property was exempt from any state or local taxes. Except for the qualification that the property could be entered to seize fugitives, the property passed in perpetuity to the Federal government.
        Two examples of how this worked will make this clearer:
        In 1827, Fort Leavenworth was established in the Indian Country. The land was not in a territory or state and was part of the Public Domain. The Interior Department transferred ownership to the War Department. There was no need to seek a state's approval.
        However, in 1861, the area was admitted to the Union as part of the state of Kansas. And the new state quickly passed legislation to permit the government to continue to own the military reservation. Of course Kansas in 1861 had every reason to approve this: aside from the military payroll, there was the little matter of the Civil War!
        Notice that Kansas had to approve the transfer and continuation of the fort, even though there was no question about the legal title of the fort and, even though the land had been acquired before Kansas existed as a state and had been used by the Federal Government for twenty-five years as a military garrison, the new state still had to approve the use of the property.
        The other example is Arlington Estate, the home of George Washington Custis, who had died in 1857, and willed it to his grandson, George Washington Custis Lee, with a life estate to his daughter, Mary Ann Randolph Lee, wife of Robert E. Lee. In May 1861, the property, consisting of 1,073.4 acres, was occupied by the United States because of its strategic location "within the military lines and the immediate scene of important military operations against an enemy then in arms against the government." Since Mary Lee failed to appear to pay the taxes on the land, in 1863, title passed to the Untied States "for Government use for war, military, charitable, and educational purposes." Of course a portion became Arlington National Cemetery and the remainder Fort Myer.
        After the Civil War and after the death of his mother, G. W. C. Lee filed suit, claiming the government's seizure was illegal. In 1883, the Supreme Court ruled in Lee's favor. Since the government did not want to move the thousands of bodies already there, to say nothing of giving up the use of Fort Myer, and since the Lee family did not want to move back into Arlington House, with the memories of those graves, the United States accepted an offer of Lee to retain title in return for $150,000.
        On March 31, 1883, the Secretary of War (ironically he was Robert Todd Lincoln!) paid G. W. C. Lee $125,000, conveying the estate in fee simple. The remaining $25,000 was retained until the legislature of Virginia passed the necessary law required by Article I, Section 8 of the U.S. Constitution. On March 25, 1883, Virginia having agreed to the transfer, Robert Lincoln paid Lee the remaining $25,000.
        The Virginia act, approved February 23, 1884, reads:

        "Whereas Robert T. Lincoln, Secretary of War of the United States, has made application to this General Assembly, for its consent to the purchase by authorities of the United States of a tract of land described as follows: [legal description deleted]; therefore,
        "1. Be it enacted by the General Assembly of Virginia, That the consent of this state is hereby given to the purchase of said tract of land, but this consent is given subject to the following terms and conditions, to wit: That this State retains concurrent jurisdiction with the United States over said tract of land, so that courts, magistrates and officers of this state may take cognizance , execute such process, and discharge such legal functions within the same as me be not incompatible with the consent hereby given.
        "2. That said tract of land and the buildings now or that may be hereafter erected thereon, and any property of the United States, on such tract, are hereby exempted from all taxes imposed by this state, or by the constituted authorities of Alexandria County, and this exemption shall be in force from the date of said purchase by the United States, …and shall continue only so long as the United States shall be and remain the owner of said tract of land; and all taxes, and county, township and district levies, due or claimed to be due, for, against or upon said real estate since the same went into possession of and has been held and used by the United States authorities, as aforesaid, are hereby released and discharged."

Fort Sumter

        The same process was followed in the acquisition of the various harbor installations in and around Charleston: Forts Moultrie and Sumter, Castle Pinckney, and Charleston Arsenal.
        In the specific case of Fort Sumter, in 1827, Secretary of War John C. Calhoun had approved the construction of a new fort in the harbor. The first appropriations were made by Congress in 1828 and construction started on the harbor shoal. In November, 1834, after the United States had expended roughly $200,000, one Major William Laval, Esq., claimed title to the "land" which included the under-construction fort.
        A South Carolina statute passed in 1791 established a method by which the state disposed of its vacant lands (we tend to forget that much of the territory of the states was empty in the Nineteenth Century: in the original thirteen states, this land was held by the states; in the remaining part of the country, it was held by the Federal government, except in Texas, where the public lands were retained by the state when it was admitted). Laval used the law to claim title to the land - but he described it in a vague manner and given the lack of decent maps of any of the country, his vagueness hid the exact location of the tract he claimed.
        When Laval appeared on the scene, the Corps of Engineers stopped work and asked for instructions. It appeared that Laval had filed a proper claim for the land - except that the "land" was below low tide and therefore exempt from purchase.
        Well South Carolina was aghast! They did not want to lose the fort to protect themselves, nor the payrolls that would come with the completed fort.
        The result was a state law:

Committee on Federal Relations
In the House of Representatives, December 31st, 1836

        "The Committee on Federal relations, to which was referred the Governor's message, relating to the site of Fort Sumter, in the harbour of Charleston, and the report of the Committee on Federal Relations from the Senate on the same subject, beg leave to Report by Resolution:

        "Resolved, That this state do cede to the United States, all the right, title and claim of South Carolina to the site of Fort Sumter and the requisite quantity of adjacent territory, Provided, That all processes, civil and criminal issued under the authority of this State, or any officer thereof, shall and may be served and executed upon the same, and any person there being who may be implicated by law; and that the said land, site and structures enumerated, shall be forever exempt from liability to pay any tax to this state.

        "Also resolved: That the State shall extinguish the claim, if any valid claim there be, of any individuals under the authority of this State, to the land hereby ceded.

        "Also resolved, That the Attorney-General be instructed to investigate the claims of Wm. Laval and others to the site of Fort Sumter, and adjacent land contiguous thereto; and if he shall be of the opinion that these parties have a legal title to the said land, that Generals Hamilton and Hayne and James L. Pringle, Thomas Bennett and Ker. Boyce, Esquires, be appointed Commissioners on behalf of the State, to appraise the value thereof. If the Attorney-General should be of the opinion that the said title is not legal and valid, that he proceed by seire facius of other proper legal proceedings to have the same avoided; and that the Attorney-General and the said Commissioners report to the Legislature at its next session.

        "Resolved, That this House to agree. Ordered that it be sent to the Senate for concurrence. By order of the House:

"T. W. Glover, C. H. R."
"In Senate, December 21st, 1836

"Resolved, that the Senate do concur. Ordered that it be returned to the House of Representatives, By order:

Jacob Warly, C. S.

        Poor Maj. Laval lost his scheme to blackmail the United States!
        For those wishing to further pursue the ownership of Fort Sumter, et. al, most major libraries will have American State Papers: Documents Legislative and Executive of the Congress of the United States, Military Affairs, vol. 5, Twenty-third Congress, Second Session, No. 591, "The Construction of Fort Sumter, Charleston Harbor, South Carolina," pp. 463-472.
        The War Department became concerned in the 1890s that they might not have clear title to all of their various installations, so they had a civilian attorney in the Judge Advocate General's office research the chain of title. Fortunately for us, not only were the various National Cemeteries still War Department properties, but so were most of the forts used in the early Republic, the Civil War and the Indian Wars.
        The result was James B. McCrellis, Military Reservations, National Military Parks, and National Cemeteries. Title and Jurisdiction, Washington: Government Printing Office, 1898. If you can not locate a hard copy, CIS has copied McCrellis on microfiche: U.S. Executive Branch Documents, 1789-1909: War Department, W 1002.8.

This page published 01/13/05

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