Tuesday, September 22, 2026
Land, Title and Ownership in America at 250 Series
By the time the Civil War was drawing to a close, the United States had spent generations ironing out what to do with an extraordinary amount of land.
The Land Ordinance of 1785 had created an orderly way to survey the western lands. Two years later, the Northwest Ordinance didn’t just establish rules for how territories would eventually become states, it also laid down rules for government and individual rights in the vast territory northwest of the Ohio River. It protected religious liberty, trial by jury and property rights, encouraged education and expressly prohibited slavery and involuntary servitude, except as punishment for a crime. It even established rules for inheritance, dower, conveyances and the recording of real estate.
I’ve recently heard a compelling argument that the Northwest Ordinance deserves to be remembered alongside the Declaration of Independence, Constitution and Bill of Rights as one of America’s great charter documents of freedom. What strikes me is what the Ordinance tells us about the direction the young country was trying, however imperfectly, to move. Where the national government had the opportunity to establish ground rules for a vast new territory, those rules included individual rights, property rights and a prohibition on slavery; compromises were less necessary.
Opportunities to own land were expanding too. As we learned last week from guest blogger Dan Mennenoh, by 1862 the Homestead Act offered 160 acres of public land to an adult citizen or intended citizen willing to settle and improve it. After satisfying the requirements, a homesteader could receive title. Landownership was increasingly within reach of people who might once only have dreamed of it.
Then, as the Civil War approached its end, roughly four million people were emerging from slavery. On Jan. 12, 1865, Union General William T. Sherman and Secretary of War Edwin Stanton met in Savannah with 20 black ministers and church leaders. They wanted to know how the newly freed people understood freedom and how they believed they could best take care of themselves.
Garrison Frazier, a Baptist minister who had purchased his own freedom years earlier, was chosen to speak for the group. “The way we can best take care of ourselves is to have land, and turn in and till it by our labor,” Reverand Frazier told them. Then he went a step further, “We want to be placed on land until we are able to buy it and make it our own.”
Four days later, Sherman issued Special Field Orders No. 15.
That order reserved islands and abandoned rice lands along the coast from Charleston south through Georgia and into northern Florida for the settlement of people newly freed by the war. Families settling there could receive plots of no more than 40 acres of tillable ground.
There was no mule in the order. Surplus Army mules would later be made available to some settlers, helping create the phrase that survived. But the 40 acres were real.
Sherman’s order directed that each head of family receive a written possessory title describing the boundaries as nearly as possible. Military authorities were to protect settlers in possession until they could protect themselves… “or until Congress shall regulate their title.”
These were possessory titles, not fee ownership. But neither were they merely a political promise about something that might happen someday. People could move onto land. They could occupy and work it. They could receive a document describing their possessory interest in it. And the United States military would protect that possession while Congress determined what happened next to their titles.
Congress appeared to be taking the next step. On March 3, 1865, President Abraham Lincoln signed legislation creating the Bureau of Refugees, Freedmen and Abandoned Lands, better known as the Freedmen’s Bureau. The law authorized the Bureau to set aside certain abandoned or federally acquired lands in the former Confederate states and assign parcels of no more than 40 acres to freedmen and loyal refugees.
Occupants would pay rent and were protected in the use and enjoyment of the land for three years. During that period, they could purchase their parcels and receive “such title thereto as the United States can convey.” As was the case for homesteaders in territories to the north: Possession could lead to purchase. Purchase could lead to title. And people began moving onto the land.
For generations, “40 acres and a mule” has survived as shorthand for what newly freed Americans were supposed to receive after the Civil War.
A 2024 investigation examined nearly 1.8 million Freedmen’s Bureau records and identified 1,250 formerly enslaved men and women associated with specific land allotments in Georgia and South Carolina. The researchers found records covering more than 24,000 acres across at least 34 former plantations. Some of the surviving records are clearly labeled “Register of Land Titles Issued to Freedmen.”
Across the region, freed people were occupying parcels, farming them and building communities. By September, Brigadier General Rufus Saxton, the officer Sherman had put in charge of the settlement program, reported that some 40,000 freed people had been settled on 40-acre tracts. One of the names in those records is Pompey Jackson. Jackson had been enslaved at Grove Hill, a rice plantation near Savannah. On April 20, 1865, a federal agent recorded a four-acre allotment to him at Grove Hill.
Something very real was underway. Then the presidency changed.
Lincoln was assassinated on April 14, 1865. Andrew Johnson succeeded him and just six weeks later on May 29, issued an amnesty proclamation for many people who had participated in the rebellion. Those who qualified and took the required oath, received a pardon and restoration of their property rights (except prior rights to enslaved people and certain property already subject to federal confiscation proceedings).
But there was a problem buried in all of this that would become enormously important.
The federal government controlled much of this land because of the war. It did not necessarily own it. Some land had been abandoned by former owners. Some had been seized or otherwise brought under federal control. But unless the United States had actually acquired title through confiscation, sale or another legal process, controlling the land was not the same thing as owning it. That gives insight into the careful language Congress had used months earlier: freed people could purchase land and receive “such title thereto as the United States can convey.”
Johnson’s pardons brought that distinction to the forefront. Former owners began seeking the return of property they had left behind or that had come under federal control during the war. Then, in September, revised Freedmen’s Bureau instructions made clear that land the United States did not actually own could be surrendered to the prior rightful claimant, and that abandoned land held by the Bureau should be restored to owners who had been pardoned by the president.
Suddenly, two federal policies were racing toward the same land from opposite directions. Freed people were already living on some of it under federal authority, holding documents issued by federal officials and expecting that possession might lead to purchase, opportunity and ownership. At the same time, former owners were returning with pardons that restored their property rights. By the fall of 1865, much of the land was being returned to them.
On Edisto Island, South Carolina, the consequences became an illustration of the matter. Freed people there had taken possession of thousands of acres under the federal program. When Freedmen’s Bureau Commissioner O.O. Howard arrived in October as the government attempted to return land to former owners, the residents responded in writing.
They reminded the government that it had encouraged them to take the land in small tracts. They had received certificates. On Edisto alone, they said they had taken up 16,000 acres. And they were prepared to buy it. “We are ready to pay for this land When Government calls for it,” they wrote to President Johnson.
That was what they had wanted from the beginning. It wasn’t mere possession, but ownership they desired. Because ownership offered something possession alone could not: the prospect of safety and security, and a real asset that was theirs to keep, improve, sell or pass on.
Much of the land distributed under Sherman’s order was ultimately restored to its former owners. Pompey Jackson’s four acres at Grove Hill were among them. The government register later carried a single word beside Jackson’s entry and those of many others there: “Restored.”
To bring this part of our story into even sharper focus, consider some of the legacies surviving today. Compare Pompey Jackson’s experience to that of the stories of others, differentiated by circumstance and geography. Fee simple versus mere possessor rights.
Last week, Dan told the story of how my great-great-grandfather Thomas Lamb, an Irish immigrant, used the Homestead Act to claim 160 acres in Kansas. He settled it, improved it, proved his claim and ultimately received a federal patent.
Sandy Wilson found another route to ownership. Born enslaved in Georgia, Wilson paid $100 cash in 1872 for 40 acres of Liberty County farmland near where he had once been enslaved. With that forty acres as their starting point, Wilson’s descendants continued acquiring land around the area. One of them was Myers Anderson, whose grandson would grow up to become Supreme Court Justice Clarence Thomas, according to Ken Foskett’s biography of him.
Pompey Jackson’s path was very different. The four acres he received in 1865 were restored to William Habersham, the man who had enslaved him at Grove Hill. Jackson eventually moved to Savannah, worked as a carpenter, married and raised a family. And in 1894, nearly three decades after losing his four-acre allotment, he finally purchased land of his own, fee simple.
It’s a fascinating look at a point in time when opportunities began taking shape for folks whose prospects were severely limited previously. And while it continued for some, it disappeared out from underneath others.
America had its mechanisms capable of turning settlement, work and time into ownership. Reverend Frazier had asked for something remarkably straightforward for people emerging from slavery that matched the desires of the Kansas homesteaders: put us on land until we are able to buy it and make it our own.
For a few months in 1865, the federal government began building a path that might have done exactly that. Then the government changed direction.
“Forty acres and a mule” did happen. Just not in the way most of us remember it.
Until Next Time,
Mary Schuster
Chief Knowledge Officer
October Research, LLC