Publication Date
6-2025
Document Type
Article
First Page
522
Abstract
This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and misrepresented, beginning almost immediately after they were issued—even, in one very important instance, by Sherman himself.
Sherman’s Orders granted 40-acre lots to freedpeople in an unusual way, giving them “possessory titles” to the land. Because the government protected freedpeople’s occupancy of the land in question for only a short while, scholars have generally viewed the Special Field Orders as granting only temporary possession of the land, which could be summarily revoked. But a possessory title actually signified something more substantial: it was the title that a settler acquired to land in the public domain by virtue of possession, which could ripen into full ownership (perfect title in fee simple) if the settler complied with the statutory requirements for securing a public land grant. By the 1860s, most of the available land that constituted the public domain was in the West, and it was in California that Sherman had previously gained specialized knowledge about land claims founded on possessory title.
To understand how possessory title operated is to see a much clearer pathway to land redistribution than scholars have previously recognized. A settler’s possessory title was relative, meaning it could be defeated by someone with better title, and so its soundness was dependent on the government’s willingness to terminate the property interests of previous claimants. Throughout the nineteenth century, Native land title was routinely extinguished in the West, but the termination of property interests could also have taken place in the post-war South, depending on the government’s appetite for confiscating Confederates’ property. In fact, Sherman’s Special Field Orders carved the land grants out of “abandoned” property, a term of art referring to grounds for its military seizure, indicating his understanding that the land was set for future confiscation efforts. Although his orders did not provide a guarantee that Confederates’ property interests would be permanently eradicated, we should understand Sherman’s grant of possessory title as a cognizable property interest, one that would have become meaningful had the government engaged in a serious post-war program of property confiscation.
Repository Citation
Cynthia
Nicoletti,
Reconstructing the Meaning of "Forty Acres and a Mule",
27
U. Pa. J. Const. L.
522
(2025).
Available at:
https://scholarship.law.upenn.edu/jcl/vol27/iss3/1