Why Land Redistribution to Former Slaves Unraveled After the Civil War

On ‘Common Law,’ Cynthia Nicoletti Discusses How a Union Tax Both Enabled and Nullified Black Land Ownership
Cynthia Nicoletti on Common Law

Legal historian Cynthia Nicoletti is the Class of 1966 Research Professor of Law. Photo by Mary Wood

October 29, 2019

A Civil War-era experiment in selling white plantation owners’ land to formerly enslaved people mostly unraveled due to the work of lawyers, University of Virginia School of Law professor Cynthia Nicoletti explains in the latest episode of “Common Law.”

The second season of the UVA Law podcast, hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, is focused on stories about “When Law Changed the World.”

“In this episode, we’re talking about the power of law and lawyers to hold back progress and re-entrench hierarchy and oppression,” Goluboff says.

Many Americans have heard of “40 acres and a mule” — the common phrase used to describe Union Gen. William T. Sherman’s Special Field Orders No. 15, which in January 1865 laid out redistribution of Confederate land in South Carolina, Georgia and Florida to former slaves under certain conditions. That land was quickly returned to white Southerners by President Andrew Johnson in the fall of 1865.

Lesser-known is the Union’s seizure and redistribution of land on South Carolina’s Sea Islands under the U.S. Revenue Act of 1862. Under that law, the U.S. seized lands from Southern landowners who did not pay taxes to the Union. When the Emancipation Proclamation took effect in 1863, freed slaves were able to buy land sold at auction there. Though many black farmers kept the land they bought from the tax auction, the original owners were later compensated for the land, in part because of the actions of lawyers like William Henry Trescot, a plantation owner himself.  

“His job is to go to Washington to try to agitate by whatever means he possibly can put together to get land back for the planters,” Nicoletti says.

Nicoletti, Goluboff and Kendrick also discuss why land redistribution didn’t happen more broadly.

“Nobody really takes that big leap, right?” Nicoletti says. “In general, we tend to think incrementally, we tend not to think ‘Oh, let’s think about remaking the … entire society.’”

Nicoletti is the author of “Secession on Trial: The Treason Prosecution of Jefferson Davis,” which won the Cromwell Book Prize. She is now working on a new book about emancipation and the failure of widespread land redistribution.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places you can listen to podcasts, including Amazon Alexa devices. This episode was recorded at the Virginia Quarterly Review and produced by Robert Armengol and Sydney Halleman.

You can follow the show on the website commonlawpodcast.com or Twitter at @CommonLawUVA.

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