| Attorney General James Speed Opinion on Lands Purchased by the United States at Direct Tax Sales - Jurisdiction of Freedmen's Bureau September 6, 1865 Official Opinions of The Attorneys general of the United States, Volume XI |
The direct tax commissioners are not required to give the Freedmen's Bureau possession of any lands
purchased for the United States at direct tax sales, which are subject to redemption under the law, and the
Commissioner of the Bureau has no authority to set apart those lands, or any of them, for the uses
mentioned in the statute of March 3, 1863.
Attorney General's Office,
September 6, 1865.
Sir: It is stated in your letter of the 24th ultimo, that an officer of the Freedmen's Bureau has
made requisition on the direct tax commissioners for South Carolina for certain tracts of
lands purchased for the United States at direct tax sales, made in pursuance of the statutes
regulating the collection of direct taxes in insurrection districts. (Acts June 7, 1862, 12 Stats.,
422, February 6, 1863, Ibid. 640; March 3, 1865, 13 Ibid., 501.)
The first and most important question stated for my consideration, in view of the demand of
this officer, is, whether the tax commissioners are required to give the bureau for the relief of
freedmen and refugees possession of lands purchased for the United States at tax sales,
and which are yet subject to redemption under the statutes regulating the collection of direct
taxes in insurrectionary districts?
Certainly, if such lands are within the jurisdiction of the bureau, and may be appropriated by
it for assignment and slae to persons of the class over which it exercises control, it is the
duty of the tax commissioners to give that bureau possession of the lands, when it may
require them for the purposes mentioned in the statute by which it was established, and
which defines its authority and duty.
The real question for consideration, therefore, is, whether the act of March 3, 1863, does
confer authority on the commissioner to set apart for the use of refugees and freedmen,
lands within an insurrectionary State, which have been purchased at direct tax sales for the
United States, and which are liable to be redeemed within the time limited by the statute?
The first remark I make is, that I do not see how we can hold that any lands bid in by the
United States at these sales are liable to be taken by the Freedmen's Bureau, before the
time for thier redemption has expired, without assuming that Congress intended, in the case
of all lands of this description which that bureau might desire to appropriate, to take away
from their owners the right of redemption, absolutely conferred upon and guaranteed to
them by the statute under which their property was sold.
The second remark I make is, that I do not think that such an intention should be attributed
to Congress, unless we are constrained to adopt that view of its meaning by the imperative
force of the language employed.
I observe, in the third place, that I do not find in the 4th section of the act of March 3, 1863,
which confers the whole of the jurisdiction possed by the Freedmen's Bureau over lands in
insurrectionary States, any words which constrain me to hold that Congress intended to
confer on that bureau the power to annul, in the case of all lands in a southern State, sold
for direct taxes and bid in by the United States, which the bureau might choose to
appropriate, the right of redemption, which by every statutory provision on the subject of the
collection of direct taxes in these States, is recognized as an equity vested in the owners
during the time limited for redemption.
The three foregoing propositions seem to me, as I am at present advised, to solve the
present question. They need but few words in their support. By all the legislation regulating
the sale of property in these States for direct taxes, general, uniform, and just provision is
made to enable owners of property forfeited for non-payment of the taxes to redeem these
lands from sale under certain prescribed conditions and limitations.
The purchasers at the tax sales, whether private individuals or the United States, take titles
subject to this equity of the owners, and which may be liable to be defeated whenever the
owners, or other property persons, within the time limited by law, shall appear before the
respective boards of tax commissioners, and shall be allowed, on compliance with the
statutory conditions, to make redemption of their property from sale.
Let us see now what will become of this equity if the Commissioner of the Freedmen's
Bureau is authorized by the statute of March 3, 1863, to distribute such lands among
persons subject to his jurisdiction, before the times limited for their redemption expire.
Not more than forty acres of land, set apart for the use of loyal refugees and freedmen, the
statute provides, may be assigned to every male of those classes of persons, and every
person to whom an assignment of land may be made, the statute declares, "shall be
protected in the use and enjoyment of the land for the term of three years at an annual
rent." The act further provides, that "at the end of said term, or at any time during said term,
the occupants of any parcels so assigned, may purchase the land, and receive such title
thereto as the United States can convey, upon paying therefor the value of the land." (13
Stats, 508) For a period of three years, therefore, the assignee of any land within the
jurisdiction of the Freedmen's Bureau is protected in its use and enjoyment against all the
world, and at the end of, or at any time before the end of that term, he is guaranteed the
right of purchase on paying for the land assigned to him, its value. Any one can see that
Congress could not have intended that such disposition should be made of the lands to
which the United States may have acquired defeasible title under direct tax sales, before the
term of redemption has passed, be appropriated by this bureau, every provision of the law
touching its redemption from sale. I have already remarked that I should require very strong
words, expressive of such an intention, before I should be inclined to hold that it was the
design of the legislature to work such a result; and that the language of the act of 1863 does
not constrain me to adopt that view of the intention of Congress.
I have on several occasions, in giving opinions on questions arising out of this Freedmen's
Bureau act, deplored the vagueness and indefiniteness which characterize the language of
the statute. Effect cannot be given to the literal import of the words of the 4th section without
attributing to Congress an intention to place in the power of the Freedmen's Bureau, all
lands in the insurrectionary States which the United States may have at any time acquired by
purchase---all lands appurtenant to the custom-house, mints, arsenals, navy-yards and
wharves, which the Government owned in the cities of these States when the rebellion broke
out, and which have come into use again, now the authority of the Government is restored
throughout the South. Congress, perhaps, had the power to give all such property to loyal
refugees and freedmen, as it had the power to take away from the owners of land sold for
direct taxes, the equity of redemption. But we are not to assume that Congress intended to
exercise its power in one case or the other, to the extent indicated, without clear evidence of
such a purpose on the face of the statute.
I am of the opinion that the tax commissioners for an insurrectionary State are not bound to
give the Freedmen's Bureau possession of any lands purchased for the United States at
direct tax sales, and which are yet subject to redemption under the law.
In reply to your second question, I remark that the opinion just given is intended to apply
generally to all lands struck off to the United States at sales for direct taxes, whether
purchased without reference to any specific purposes, or bid in under the direction of the
President, to be used for war, revenue, charitable, educational, or police purposes. Before
the periods for the redemption of such land expires, I hold that the Commissioner of the
Freedmen's Bureau has no authority to set them, or any of them, apart for the uses
mentioned in the statue of 1863.
I believe that the opinion just expressed renders it unnecessary for me or you to determine
what is intended to be asked in the third and last question stated in your letter, which are
copied from the letter of the officer of the Freedmen's Bureau that suggested your
communication to me.
I am, sir, very respectfully,
Your obedient servant,
James Speed.
Hon. Hugh McCulloch,
Secretary of the Treasury.
purchased for the United States at direct tax sales, which are subject to redemption under the law, and the
Commissioner of the Bureau has no authority to set apart those lands, or any of them, for the uses
mentioned in the statute of March 3, 1863.
Attorney General's Office,
September 6, 1865.
Sir: It is stated in your letter of the 24th ultimo, that an officer of the Freedmen's Bureau has
made requisition on the direct tax commissioners for South Carolina for certain tracts of
lands purchased for the United States at direct tax sales, made in pursuance of the statutes
regulating the collection of direct taxes in insurrection districts. (Acts June 7, 1862, 12 Stats.,
422, February 6, 1863, Ibid. 640; March 3, 1865, 13 Ibid., 501.)
The first and most important question stated for my consideration, in view of the demand of
this officer, is, whether the tax commissioners are required to give the bureau for the relief of
freedmen and refugees possession of lands purchased for the United States at tax sales,
and which are yet subject to redemption under the statutes regulating the collection of direct
taxes in insurrectionary districts?
Certainly, if such lands are within the jurisdiction of the bureau, and may be appropriated by
it for assignment and slae to persons of the class over which it exercises control, it is the
duty of the tax commissioners to give that bureau possession of the lands, when it may
require them for the purposes mentioned in the statute by which it was established, and
which defines its authority and duty.
The real question for consideration, therefore, is, whether the act of March 3, 1863, does
confer authority on the commissioner to set apart for the use of refugees and freedmen,
lands within an insurrectionary State, which have been purchased at direct tax sales for the
United States, and which are liable to be redeemed within the time limited by the statute?
The first remark I make is, that I do not see how we can hold that any lands bid in by the
United States at these sales are liable to be taken by the Freedmen's Bureau, before the
time for thier redemption has expired, without assuming that Congress intended, in the case
of all lands of this description which that bureau might desire to appropriate, to take away
from their owners the right of redemption, absolutely conferred upon and guaranteed to
them by the statute under which their property was sold.
The second remark I make is, that I do not think that such an intention should be attributed
to Congress, unless we are constrained to adopt that view of its meaning by the imperative
force of the language employed.
I observe, in the third place, that I do not find in the 4th section of the act of March 3, 1863,
which confers the whole of the jurisdiction possed by the Freedmen's Bureau over lands in
insurrectionary States, any words which constrain me to hold that Congress intended to
confer on that bureau the power to annul, in the case of all lands in a southern State, sold
for direct taxes and bid in by the United States, which the bureau might choose to
appropriate, the right of redemption, which by every statutory provision on the subject of the
collection of direct taxes in these States, is recognized as an equity vested in the owners
during the time limited for redemption.
The three foregoing propositions seem to me, as I am at present advised, to solve the
present question. They need but few words in their support. By all the legislation regulating
the sale of property in these States for direct taxes, general, uniform, and just provision is
made to enable owners of property forfeited for non-payment of the taxes to redeem these
lands from sale under certain prescribed conditions and limitations.
The purchasers at the tax sales, whether private individuals or the United States, take titles
subject to this equity of the owners, and which may be liable to be defeated whenever the
owners, or other property persons, within the time limited by law, shall appear before the
respective boards of tax commissioners, and shall be allowed, on compliance with the
statutory conditions, to make redemption of their property from sale.
Let us see now what will become of this equity if the Commissioner of the Freedmen's
Bureau is authorized by the statute of March 3, 1863, to distribute such lands among
persons subject to his jurisdiction, before the times limited for their redemption expire.
Not more than forty acres of land, set apart for the use of loyal refugees and freedmen, the
statute provides, may be assigned to every male of those classes of persons, and every
person to whom an assignment of land may be made, the statute declares, "shall be
protected in the use and enjoyment of the land for the term of three years at an annual
rent." The act further provides, that "at the end of said term, or at any time during said term,
the occupants of any parcels so assigned, may purchase the land, and receive such title
thereto as the United States can convey, upon paying therefor the value of the land." (13
Stats, 508) For a period of three years, therefore, the assignee of any land within the
jurisdiction of the Freedmen's Bureau is protected in its use and enjoyment against all the
world, and at the end of, or at any time before the end of that term, he is guaranteed the
right of purchase on paying for the land assigned to him, its value. Any one can see that
Congress could not have intended that such disposition should be made of the lands to
which the United States may have acquired defeasible title under direct tax sales, before the
term of redemption has passed, be appropriated by this bureau, every provision of the law
touching its redemption from sale. I have already remarked that I should require very strong
words, expressive of such an intention, before I should be inclined to hold that it was the
design of the legislature to work such a result; and that the language of the act of 1863 does
not constrain me to adopt that view of the intention of Congress.
I have on several occasions, in giving opinions on questions arising out of this Freedmen's
Bureau act, deplored the vagueness and indefiniteness which characterize the language of
the statute. Effect cannot be given to the literal import of the words of the 4th section without
attributing to Congress an intention to place in the power of the Freedmen's Bureau, all
lands in the insurrectionary States which the United States may have at any time acquired by
purchase---all lands appurtenant to the custom-house, mints, arsenals, navy-yards and
wharves, which the Government owned in the cities of these States when the rebellion broke
out, and which have come into use again, now the authority of the Government is restored
throughout the South. Congress, perhaps, had the power to give all such property to loyal
refugees and freedmen, as it had the power to take away from the owners of land sold for
direct taxes, the equity of redemption. But we are not to assume that Congress intended to
exercise its power in one case or the other, to the extent indicated, without clear evidence of
such a purpose on the face of the statute.
I am of the opinion that the tax commissioners for an insurrectionary State are not bound to
give the Freedmen's Bureau possession of any lands purchased for the United States at
direct tax sales, and which are yet subject to redemption under the law.
In reply to your second question, I remark that the opinion just given is intended to apply
generally to all lands struck off to the United States at sales for direct taxes, whether
purchased without reference to any specific purposes, or bid in under the direction of the
President, to be used for war, revenue, charitable, educational, or police purposes. Before
the periods for the redemption of such land expires, I hold that the Commissioner of the
Freedmen's Bureau has no authority to set them, or any of them, apart for the uses
mentioned in the statue of 1863.
I believe that the opinion just expressed renders it unnecessary for me or you to determine
what is intended to be asked in the third and last question stated in your letter, which are
copied from the letter of the officer of the Freedmen's Bureau that suggested your
communication to me.
I am, sir, very respectfully,
Your obedient servant,
James Speed.
Hon. Hugh McCulloch,
Secretary of the Treasury.
| James Speed U. S. Attorney General |
| Hugh McCulloch Secretary of the Treasury |