|Attorney General James Speed
Opinion on Duty of Commissioner of the Freedmen's
June 22, 1865
Opinions of Attorneys General
It is the duty of the Commissioner of the Freedmen's bureau to take control only of such portions
of the lands described in the statute of 1865, as he may, in the exercise of his authority, set apart
for the use of loyal refugees and freedmen.
Attorney General's Office.
June 22, 1865
Sir: I have received a communication from Major General Howard, Commissioner of Freedmen,
Refugees, and Abandoned Lands, asking my opinion on a question touching his official duty
under the 4th section of the statute of March 3, 1865.
This question should, more regularly, have been submitted to me through you. I have no
authority, as you are aware, to give an official opinion on any question not referred to me by the
President, or the Head of an Executive Department. Presuming, however, that you would have
sent Major General Howard's letter to me if he had desired it, I treat the question as one regularly
submitted, and beg leave now to state to you my views on the point presented.
The point is this: Whether it is the duty of the commissioner, under the act of 1865, to take
charge and control of all abandoned lands, or all tracts of land that have been abandoned, or to
which the United States may have acquired title by confiscation or sale, or otherwise, within the
insurrectionary States, or whether it is his duty to take charge and have control of only such
portions of the said lands as he may, under the direction of the President, set apart for the use of
the loyal refugees and freedmen?
There are few statutes that are disfigured by loose and indefinite phraseology to a greater extent
than the act of 1865, establishing this bureau; but close attention to the words of the more
prominent provisions of the law will enable us, I think, to answer the question of the
Commissioner, without doing much violence to any part of the act. Where Congress, as in this
case, has taken so little pains to express its intention, no man can, of course, be certain that any
construction of the words employed reaches the true meaning of the legislation.
By the 1st section of the act, there is established in the War Department a bureau of refugees,
freedmen, and abandoned lands. to this bureau, the section delares, there "shall be committed,
as hereinafter provided, the supervision and management of abandoned lands, and the control
of all subjects relating to refugees and freedment from rebel States," &c. It will observed, in the
first place, that the absolute supervision and management of abandoned lands--the supervision
and management of such lands, I mean, to all intents and for all purposes---are not committed to
the bureau in this section, but simply the supervision and management of those lands to the
entent, and for the purposes, afterwards provided in the act.
It will be seen, in the second place, that the qualification intended to be introduced by the words
"as hereinafter provided," attach only to the the subject-matter of abandoned lands, and not to
the subject-matter of freedmen and refugees. So that while to the bureau is committed, by this
first section, the control of all subjects relating to refugees and freedmen, without any exception,
qualification, or reservation, it would seem that it is entrusted with the supervision and
management of abandoned lands only to the extent, and in the manner, provided in another part
of the statute. Now the 4th section of the act relates to the authority which the commissioner may
exercise, and the duties he is to perform in regard to abandoned and other lands in the
insurrectionary States. He has authority, under the direction of the President, to set apart for the
use of loyal refugees and freedmen the lands in question; and he is required to assign to every
male of that class of persons, not more than forty acres of such lands.
The first is the only authority, and the second is the only duty, so far as I am able to discover,
that he has to exercise and perform in regard to the lands in question. So far as it may be
necessary for him to exercise superivison and managment of thsoe lands, in order to the full
execution of the authority and the due performance of the duty set forth in the 4th section of the
act, is he required to supervise, and manage them, and no further, as I apprehend.
He has authority under the act to reduce into his control all the lands in question, if they are
needed for the use of the refugees and freedmen, or any portions of them that may be thus
needed; but it is not his duty, under the statute, to assume the control of any lands that he does
not desire to apply to the use mentioned in the statute, or to set apart for the benefit of the
persons who are placed under his care.
It seems to me plain that Congress looked primarily in this legislation to the personal and social
interests of loyal refugees and freedmen, and not to the care of the lands described in the 4th
section of the act. It was intended that the land should be made use of to conserve the interests
of the refugees and freedmen; and that so far as it might be necessary for the commissioner to
supervise, manage, and control the lands, in order to execute the primary design of Congress,
which was to provide, as I have siad, for loyal refugees and freedmen, it was intended that he
should exercise authority given to him by the act, and under the direction of the President, set
apart for the use of loyal refugees and freedmen.
i am, sir, very respectfully,
Your obedient servant,
Hon. Edwin M. Stanton,
Secretary of War
|Attorney General James Speed
|Secretary of War