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CHAPTER 1

Property, Settlement, and Slavery

—William Wirt to Laura Wirt Randall, December 8, 1827

By the laws of the Spanish Monarchy … your oratrix was entitled to her separate property independent of the control or disposition of the said Defendant, which right has in no wise been changed by the transfer of the Province to the United States, but said property was secured to her by the treaty of Cession and by an Act of the legislative council … according to the right and title by which she held it while the Province was under the dominion of his Catholic Majesty.

—LeSassier v. Alba, Escambia County, Florida, May 1831

In 1831 Victoria LeSassier, a wealthy Pensacola widow in her seventies, divorced her second husband, Pedro de Alba. Deeply in debt, Alba had recently threatened to take control of his wife’s separate estate, which was worth about $36,000. His financial problems had plagued their marriage since 1819, when LeSassier, suspecting that he had attempted to poison her in order to inherit her property, left Alba’s household and went to live with her son. She wrote Alba that she was quitting their marriage because he had treated her so badly that even a slave would have complained, and warned him: “But, Alba, that time of slavery is over. Consider myself your equal in every respect.”¹ A slave owner herself, Victoria LeSassier was well aware of the privileges that her whiteness and wealth produced. It was not until Florida became an American territory, however, that she could sue Alba for a divorce (since divorce had been impossible under Catholic Spain). Unlike most other wives in the United States in the 1830s, she was able to keep and control the property that she had brought into their marriage, which made divorce much more attractive. When LeSassier divorced Alba she regained control over several town lots in Pensacola, thousands of acres of land in West Florida, and twenty enslaved people.² Her story illustrates how Florida’s transition from Spanish colony to U.S. territory resulted in a hybrid legal system that supported white settler colonialism. Legally, Americans did not seamlessly replace civil law with common law; rather they chose to honor some parts of civil and treaty law—even when they challenged common law rules—if doing so favored white settlement in Florida. Under the new regime, white women of property such as Victoria LeSassier (especially those who owned slaves) would benefit in unexpected ways, while Seminoles and blacks would face increasing discrimination.³

LeSassier jettisoned her husband but kept her property in Florida because it was a colonial borderland. Before 1821, Spain ruled Florida, and Spanish civil law granted wives separate property rights and half of marital property, not because it supported female independence but rather due to the continuation of their lineage in marriage. While Anglo wives left behind their families of birth when they married, Spanish wives brought familial ties with them, retaining their maiden names in addition to their married ones. Uniquely, colonial-era Florida wives ended up keeping their separate property rights in Florida after 1821 via treaty law. Article 8 of the Adams-Onís Treaty (in which Spain ceded Florida to the United States) upheld the property rights of all Spanish colonists. Since many women had received or inherited property in Spanish Florida, Article 8 confirmed their right to own separate property even though some of them were married and, therefore, would not have had the right to separate property under the common law. The loophole was accidental, as neither John Quincy Adams nor Luis de Onís said anything about women in their correspondence concerning Article 8. In 1822, Florida’s legislature adopted the common law and explicitly repealed Spanish civil codes, contradicting Article 8 of the treaty for married women. Historians have often accepted this as proof that civil law no longer applied after U.S. annexation, but in fact it necessitated another law. In 1824, “to obviate any doubts,” the Florida Legislative Council specifically confirmed the rights of “husbands and wives” married under civil law to treat their property “in the same manner as they could or might have done under the laws of Spain.” Colonial-era wives kept their separate property, and several cases arose in early territorial Florida to test this law. In most cases colonial-era wives prevailed, especially if they were white.⁴

This chapter examines the intersection of race and gender in the application of property law in Florida in the first decades after it transferred into the United States. Using court records to unearth the material contributions that white women made to settler colonialism and the expansion of racial slavery into Florida, I argue that their property was essential to expansionist domesticity, for through their holdings in household property and enslaved people, white women supported Florida’s colonization. Due to the advantages that civil law granted them in Florida, many wives were able to amass wealth in their own names, making Florida court records an especially rich source of information on women’s property holdings and practices, as women went to court to protect property from competing heirs, creditors, or predatory relatives. Although wives owned all kinds of real and personal property, enslaved human property was more common than any other single type in the court cases involving women surveyed for this study.

Florida’s legislature granted a powerful combination of rights to white wives in the 1820s, but it upheld married women’s property rights, rather than reversing the loophole to follow common law, in order to honor international law and preserve the treaty with Spain, not in order to protect or empower women. At the same time, Florida law began to limit the civil and property rights of nonwhites in Florida, including free people of color, regardless of whether they were married or women, which suggests that there was more at stake than obedience to international law. Although potentially empowering for white women, the legal hybridity that resulted from Florida’s transfer to the United States offered little relief to enslaved people, free blacks, and Native Americans. Many enslaved people—the “property” of whites—were uprooted from their own communities, separated from their families, and sent to labor in Florida’s growing cotton and sugar plantations in the early nineteenth century. Indigenous people in Florida, whose removal became an American goal and the object of the three U.S.-Seminole Wars in that same period, had very recently farmed the ground that they worked. For free people of color, including many people in mixed-race Spanish colonial families, the legal and cultural changes that U.S. rule wrought were also devastating. Although there were rare exceptions, typically U.S. courts ruled in ways that benefited whites (whether male or female), while Native Americans and blacks lost property and autonomy. The rights and property of women of color suffered a much different fate than those of white wives because their presence and independence from whites challenged white supremacy. Rather than understanding these only as contrasting experiences, it is helpful to view them as interlocking parts of U.S. settler colonialism, which used property and property law to expand white settlement and slavery into Florida.

Married women’s property rights in early Florida seem contrary to antebellum gender norms and the common law, which seemingly subordinated married women totally to their husbands. These rights were consistent with expansionist domesticity, however, which enlisted white women to support colonization. Backing white settler colonialism, American lawmakers and judges supported white property ownership (even for married women), black enslavement, and indigenous dispossession. The property this law protected—land, household goods and furnishings, enslaved people—was useful to the material and cultural process of white settler colonialism. Until 1845, common law rules still limited post-1818 white wives’ property rights. Florida passed another law in 1845, the year of Florida statehood, to expand these rights to post-treaty wives. That occurred on the heels of recolonization (1841) and the Armed Occupation Act (1842), policies designed to attract white men and women who were willing to move to a dangerous frontier, recently taken from the Seminoles, and make permanent homes there. In that context, Florida passed the first married women’s property acts in any U.S. territory, though again these were not legal reforms intended to empower women.⁵ Due to the ways that married women’s property (and their legal right to it) supported white settler colonialism in Florida, this chapter places the history of married women’s property law within the history of expansionist domesticity on the southern frontier rather than the history of women’s rights. Doing so reveals that separate marital property rights were among the benefits of Manifest Destiny for white women, benefits that were explicitly denied Native Americans and blacks.

Married Women’s Separate Property Rights

Outside of Florida, most American wives fell under the common law, which designated them femes covert, or women without a legal identity. Upon marriage, a husband became the legal owner of a wife’s property. The only exception was property set aside in a separate trust in a Chancery or Equity Court, which allowed elite families to circumvent common law coverture. Wealthy parents settled separate equity estates upon their daughters (usually when they married) in order to protect property from unscrupulous husbands and to preserve it for male heirs, rather than to empower the women (much as civil law marital property rules intended). Although elite families benefited from this loophole, American wives as a class did not enjoy the legal right to own property as women under civil law did. Of course, white women throughout the United States brought property into marriages and helped their spouses amass wealth and property during marriage, whether wives owned property separately or not. Separate estates and separate marital property rights, however, render women’s capital contributions to their families visible as material contributions.⁶

On a daily basis, the difference between a Spanish wife’s separate property and an American wife’s separate equity estate was small. Neither typically controlled her own property. For example, Victoria LeSassier’s son (and after his death, her niece’s husband) managed her estate. However, differences in their access to the courts, consent requirements, and inheritance law meant that when conflicts arose about property, civil law wives had more options than common law wives. They enjoyed direct access to the courts, had to consent to any property arrangements, and could also manage their own property or choose a new trustee. A married American woman with a separate estate usually did not appoint the trustee or consent to the management of her property. If she became concerned about her estate, she could only complain to the trustees, who might or might not agree with her concerns and might or might not choose to pursue legal action.⁷

Floridian Adeline Townsend learned that her position as a married woman with an equity estate was precarious in the early 1830s. Separated from her husband, Townsend had to appoint a new trustee for her estate when the previous one died. Her brother-in-law, Daniel Griswold, “cajoled” her into entrusting her $20,000 estate to him. After becoming her trustee, he “entirely changed his tone” toward her and was “now lording it over her in the most imperious manner.” In an exasperated petition to the East Florida Court she complained, “The niggardly sums he has supplied were not even sufficient for her absolute necessities.” Noting that she had once had an estate “subject to her own control,” she was now “compelled … to depend upon her own individual labour, and the cold charity of strangers for the common necessities of life.”⁸ There is no decision in the case file and its outcome is unknown, but this petition illustrates how under common law, even wealthy white women could find themselves at the mercy of a judge and virtually powerless over the trustee of their separate estates.

Inheritance rules also differed. Civil law widows inherited their entire dowry plus half of the property made during the marriage, which they fully controlled. In comparison, the common law entitled American widows only to the use of one-third of the husband’s estate during their natural lives. This one-third share, or dower, was a life estate that she could use to maintain herself but which would revert to his heirs after her death. The passing of her spouse meant that a widow faced relinquishing two-thirds of the property to which she was accustomed, since she only got the use of one-third of it. While testators could leave a widow more than her third and give her permanent title rather than a life estate, they could also leave a widow less than a third, a legacy she would have to contest in court. Under these rules, common law widows were subject to the generosity of their spouses rather than entitled to half of the marital property in addition to their own. While civil law required that all husbands treat wives equally, common law made it possible for men to decide how much property and control their widows would inherit.⁹

American rule did expand Florida wives’ options in one way. While Spanish law had forced women to remain in unhappy marriages, several (like Victoria LeSassier) sought relief through divorce in the 1820s and 1830s. In the hybrid legal environment of territorial Florida, such women held separate property, received half of the property amassed during their marriages, and were able to divorce—an empowering set of legal rights that were heretofore unavailable in the United States. While women under the common law could petition for a divorce, they were unlikely to do so since they were less secure in their property rights and often had to petition judges to award them property, rather than bringing their marriage contracts and deeds into court (as civil law wives did).¹⁰

Slavery and Settler Colonialism

White women’s property contributed materially to the expansionist project under way in America’s newest territory in the 1820s and 1830s. The kinds of property that white women went to court to protect in Florida helps to demonstrate the diverse ways in which they used it to support settlement. The women uncovered in the sample of court records examined for this study lived in Florida during the territorial and early statehood years (1821–1860). They resided in Escambia and St. Johns Counties (which contained the colonial capitals of Pensacola and Saint Augustine); in Jefferson, Leon, and Gadsden Counties (in the Middle Florida plantation belt, around the new capitol at Tallahassee), and in Hillsborough County (where Tampa Bay linked cattle ranchers with ports in the Gulf of Mexico and the Caribbean Sea). Records from these different regions captured cases that concerned the property of colonial-era wives as well as that of white American wives who migrated into Florida after 1821, and involved wives who lived in towns, on farms and ranches, and on plantations. While only those with separate property would end up in court, excluding poorer or propertyless women from this analysis, the court cases included here involved a wide range of female-owned property, from kitchen utensils and cows to acres of land and hundreds of slaves. Women owned the same kinds of property as white men in early nineteenth-century Florida: “real property,” such as land, houses, enslaved people, and livestock; and “personal property,” the category the law used to describe household goods, apparel, jewelry, and specie (money).

Spanish colonial women often owned land or town lots and houses, particularly in Florida, where the colonial population was likely to vest brides with land in dowries. Victoria LeSassier owned four houses and five lots in Pensacola and over sixteen hundred acres of land nearby. On a smaller scale, when Josephine Gagnet won a divorce from an abusive drunkard in 1829 she was awarded half of his town lot. Comparatively, white wives in the countryside were less likely to own large amounts of land and were a minority among large landholders. In 1827 Laura Wirt Randall received more than one thousand acres in Middle Florida from her father, U.S. Attorney General William Wirt, but hers was an exceptionally large separate estate.

The frequency of different kinds of property in court records suggests, however, that women were more likely to own enslaved people and household goods than to own land or houses. In 1860, by which time plantation agriculture was firmly established in Florida, there were 268 planters in Florida who held thirty or more slaves and sizeable acreage (from 75 to 15,115 acres); only thirteen of them were women.¹¹ Court records reveal that many women in territorial Florida owned household goods, from humble objects to fancy furnishings. In St. Augustine in 1824, seamstress Eliza Hutchinson found herself in court accused of stealing a shawl, sheets, and eggs from Amelie Nichols. Mary Pemberton took William McVoy to court in 1828, accusing his slaves Lidia and Rachel of stealing clothes from her. Compared to large plantation estates, these matters of personal property appear small, but they were significant to the women attempting to recoup their property. These were also the kinds of property most southern white women of any means held, in part because their families were likely to give them things like clothes or linens, and in part because they probably preferred and felt more entitled to domestic forms of property—the items associated with “women’s work” on a daily basis.¹²

Due to their connection with household property, women often asked for it in estate and divorce cases. Carolina Dunham claimed a portion of the furniture and silver from her family’s home on the Hillsborough River in 1834. She noted that her mother (Mary) had built a large house in Florida, furnished it, owned several enslaved people, and had died in 1833 without repaying $5,677 that Carolina had loaned her in 1830. Additionally, Mary Dunham had bequeathed Caroline a $350 annuity from her estate. David Dunham, Caroline’s brother, the executor of their mother’s estate, refused to pay either the debt or the annuity, claiming that the Florida property had been destroyed by “the hostile Indians.” Caroline complained to a judge that if the estate had been destroyed, David’s neglect rendered him responsible. He had sufficient warning that war was likely, and should have removed and protected the property. Further, Caroline suspected that David had taken the silver, furniture, and enslaved people to St. Augustine and ought to have paid her annuity out of what he had salvaged. She understood the value of silver, furniture, and enslaved human property and believed they could easily be transferred to her or liquidated to cover her inheritance. There is no ruling the record, so it is unclear whether she prevailed.¹³

Similarly, when Nancy and William Johnson filed a joint petition in 1822 to end their marriage, she asked for the return of property she had brought into their household. Both cited mutual “misery and discord,” although Nancy’s separate petition revealed that William was a drunkard, who “squandered his property at the card table” and openly committed adultery. She claimed that several enslaved people, including “Duranda, Honora, Amanda, Rich, Handy, Eddenborough, and William,” some household furniture, and two tracts of land in North Carolina were her own property. William, she complained, had already sold some of it and threatened to sell the rest, turn her out of her rented home in Pensacola, and abandon her. She asked the judge for a divorce, the return of her household furniture, and to set aside seven of the enslaved people in a life estate for her use. No decree appears in this record, but the court did serve William Johnson with a Notice to Appear and sequestered seven enslaved persons and the furniture in preparation for a hearing.¹⁴

After 1845, more recent migrants also began to enter courtrooms to protect their holdings. Nancy Robards’s separate property furnished a well-appointed town house for her family, as befit the wife of a county clerk. The 1848 inventory she filed in Hillsborough County included eight enslaved people, two cows, two horses, a lot in Tampa, a bedstead and furniture, cooking utensils, and forks and knives. In 1849, she added a carriage, more livestock, and fancy furniture.¹⁵

Nancy Jackson’s household boasted fewer luxuries than Robards’s, but she too asked a judge to recoup her marital property. When her abusive husband made off with thirty-two cattle in 1846, Jackson went to the courthouse armed with her receipts, evidence that she had purchased and raised the livestock “on account of herself and children.” As the wife of a smalltime rancher, she was unlikely to have a separate equity estate, but the 1845 extension of separate property rights to all Florida wives allowed her to protect her livestock from her husband, who she claimed failed to provide for his family.¹⁶

When an impending marriage or an irresponsible spouse threatened the property that white wives listed in courthouse inventories and marriage contracts, they used legal means to protect it. From these legal traces of their domestic lives, one can deduce the many kinds of work white women did on an expanding frontier, from raising cattle to creating hospitable and respectable domestic spaces. Like white women across the South, whether they were married to poor white “crackers,” were the wives of “countrymen” (yeoman farmers), or were plantation mistresses, white women in Florida worked hard—probably harder than those who did not live in a frontier territory (while the enslaved people among them often worked harder still). White women did almost every kind of work on small farms except for clearing and plowing new fields (work that enslaved black women were forced to perform). They often raised poultry and dairy cows and had vegetable gardens. Only the most elite did not have to use their own hands to make candles, spin cotton, weave cloth, sew clothes, gather firewood, prepare meals, and plant, tend, and harvest crops. Women, along with their families, cared for children, enslaved people, and livestock. Wealthier mistresses oversaw the labor, clothing, and feeding of their own children and the people their families enslaved, all while enacting the gentility that their class demanded. In Florida, this work was more challenging and was nationally significant because of its frontier context. As the owners of some land, many enslaved people, and a great deal of household furniture and other goods, white women created homes for white families in Florida—the kinds of “civilized” domestic spaces that national policy makers believed anchored white settlers permanently to a territory that would otherwise remain a hostile frontier controlled by indigenous and maroon peoples.¹⁷

The labor of enslaved people supported new white settlements as well, as Florida’s demographic shift toward a population of almost equal numbers of whites and enslaved blacks reveals. Court records make it abundantly clear that, like the Dunham, Johnson, and Robards estates described above, many white Florida wives owned enslaved human property. Enslaved people were also the only class of property to be specifically mentioned in borderlands married women’s property laws. Although not specified in the Florida Acts, human property was more common than any other single type in the court cases involving women that were sampled for this study.

Two other early married women’s property acts that make clear the importance of slaves on expanding frontiers were laws that legislatures passed in Arkansas Territory in 1835 and in Mississippi in 1839. In the Mississippi law, although the initial part of the bill granted married women the right to own both real and personal property separately, every other section of the law spoke only of enslaved human property. When it expanded its first married women’s property act in 1846, Arkansas copied the Mississippi law, adopting a law that protected a wife’s enslaved human property from debts her husband contracted after marriage. This emphasis on enslaved property was in line with a long tradition of planters giving enslaved black people to their female heirs. Female slave owners were not unusual in the antebellum South, where women’s dowries and inheritances often included human beings.¹⁸

Throughout the South and in Florida, slavery granted whites, including women, both material and social privileges at the expense of those they enslaved. Slaves were often a white woman’s most important and valuable investment: her fortunes in the marriage market, in a marriage to a debtor, or in widowhood often rested upon whether she owned enslaved people and how many she possessed. Whites built respectable households, social status, and “whiteness” out of enslaved persons. Enslaved people’s labor saved white women from the most grueling work and also established their white “ladyhood”; these material and social benefits conveyed that white women deserved their status and leisure because they were white. Even for white women in households without enslaved human property, the privileges of whiteness were ensured by the existence of racial slavery. Beyond the social and cultural privileges of whiteness, slavery also produced material advantages for whites. In a new territory like Florida, enslaved people were perhaps a safer investment than land speculation (which men favored), and whites could sell enslaved people quickly if needed. It was not uncommon for white Florida wives to use their human enslaved property as collateral in loans, for example, though that practice also opened the possibility of loss and the displacement of the enslaved people. Women could also easily rent their enslaved property, as labor was in short supply and high demand in territorial Florida. The material value of a slave was not only what he or she would bring at the slave market but also the financial benefits he or she brought an owner when mortgaged or hired out. This practice enabled aspiring planters to clear fields and build homes much faster than they could have using only family labor, or if they had to wait for human property purchased from the Upper South. Rented enslaved people helped build Florida’s infrastructure as they labored in sawmills, turpentine camps, and on the railroad. Those hired by the U.S. military during the Second U.S.-Seminole War were even more directly deployed in service to territorial expansion.¹⁹

Whites benefited from their property rights in enslaved people, but the consequences for enslaved people were dire. Their “natural increase”—children—enhanced the value of a woman’s slaveholding over time, but this resulted in the traumatic division of many enslaved families by sale or in wills. While land was static, household and slave property were dynamic and able to literally move with the changing boundaries of U.S. territory. Some wives’ enslaved property was the only wealth that enabled their husbands to reach planter status, which was often the goal that prompted migration. Enslaved people suffered, however, when taken away from families and communities to new frontiers. In myriad ways, slaves were vital to expansion and settlement in Florida, but the enslaved people whom whites bought, sold, and hired suffered due to their value and mobility. Florida’s enslaved men, women, and children faced harsh working conditions, many were sent or sold away from kin in the Upper South, and all experienced the privations of the frontier and the dangers of U.S.-Indian warfare.²⁰

The court records reflect white women’s material, and perhaps ideological, investment in slavery. When their enslaved property was threatened or damaged, they actively sought protection or redress in the courts. In a survey of county and circuit civil court records in Escambia County, Florida, between 1821 and 1845, eighty-eight cases involved either a female defendant or plaintiff (or both), and forty-five of these cases also concerned an enslaved person or persons. One-third of seventy-eight cases involving a woman and her property in St. Johns County between 1821 and 1845 included enslaved human property.²¹

For reasons related to their value and mobility, some white women preferred enslaved human property. They often specifically asked for their inheritance portion in enslaved people, or to sell land rather than enslaved persons to satisfy debts against an estate, even though by law enslaved human property was supposed to be sold before land in settling an intestate estate. In Gadsden County in 1833 Sarah Stone petitioned the court to settle her deceased husband’s debts through the sale of land rather than enslaved people, as the money she made renting the enslaved people out supported her family. When Margarita Bonifay married John de la Rua, her mother gave her $1,100 in separate property in the form of town lots in Pensacola. In 1832 Bonifay de la Rua became concerned about the depreciation of real estate in Pensacola, so she asked her husband to sell the lots and use the money to purchase an enslaved woman and her four children for her separate estate. He complied.²²

In the context of national and slavery expansion in the South, white wives’ ownership of enslaved people and household property points to their role in the creation of southern households. Such households were rural and patriarchal and were the location of production and reproduction. They required the presence and labor of white women and children and often, enslaved blacks, to produce white mastery and the means of subsistence and profit.²³ Creating such households was directly related to the nationalist project of expansion, as their construction one by one on the Florida frontier eventually created permanent white American settlements.

The separate property of a Middle Florida resident, Laura Wirt Randall, illustrates how white women’s property aided white settler colonialism at the expense of enslaved blacks and indigenous people. Randall moved to Florida in 1827, following her new husband, Thomas, the son of an Annapolis, Maryland, merchant who had studied law and served during the War of 1812. The educated daughter of U.S. Attorney General William Wirt, Laura had family wealth and connections that enabled the newlyweds to enter frontier Florida as elite planters. Laura’s dowry, set aside in a separate estate entrusted to her maternal uncles, included land, furniture, food, china, crystal, and enslaved people worth $5,000. Furthermore, her father worked his Washington connections to get Randall appointed as a judge to the Florida Supreme Court.²⁴

Laura Wirt Randall’s parents were careful to legally protect her separate property. In December 1827, her father wrote to her:

I enclose you the promised deed for the land and negroes, which will have to be executed by your two uncles, the trustees, and then recorded in the court of Leon County, and the sooner you have it attended to, the better. The Judge [her husband, Thomas Randall] will observe that I am guided by a Territorial law of Florida in the form of acknowledgement by your mother and myself, that law adopting the form in use where the parties reside. If there has been any later law which changes the formalities on this subject the Judge will apprise me of it and return the deed for execution anew. If it is desirable for you to have the patents for the land and Tilghman’s Bill of Sale for the negroes, these also will be sent…. instead of having the thirteen negroes mentioned in the original bill of sale you have only eleven: the remaining five hundred dollars which represented the other two negroes, I sent you by the last mail. The negroes I hope will arrive shortly after your receipt of this letter. Your two thousand dollars worth of furniture and provisions will I hope reach you before this letter and put you in better spirits than when you wrote last.²⁵

Her father instructed Laura to protect her new property because as a post-treaty (post-1818) wife in Florida, she fell under common law rules, which allowed her parents to settle a separate estate upon her at the time of her marriage by filing an inventory of her property in a Chancery Court (her property was in Jefferson County, which had just been carved out of Leon County in January 1827).

Laura Wirt Randall’s separate estate had absolutely disastrous consequences for enslaved people and for Native Americans in the region. Laura and her trustees made decisions about her estate in 1827 that uprooted eleven enslaved people from Maryland and relocated them, against their will, to the Randalls’ new plantation, Belmont. When they arrived, the slaves were all sick, a result of their exposure and exhaustion from the long trek to Florida. Many of them were probably also heartbroken. David had been forcibly separated from his wife, Sophy, and their children when Randall purchased him in Maryland. He missed them so intensely that Randall, fearing David “would infest the whole body of the black community with his despondency,” asked William Wirt to purchase Sophy and the children and send them to Belmont in 1828. He did so. One of their children, Sally, was so desperately unhappy at Belmont that she attempted to poison the overseer. Laura Wirt Randall’s “separate property” included at least a dozen people who suffered physically and emotionally as a result of her power to buy them and move them hundreds of miles to labor for the benefit of her new family.²⁶

Belmont’s location in Jefferson County also connects Randall’s property to indigenous dispossession. Middle Florida was not uninhabited virgin forest when the Randalls relocated there in the 1820s. Lower Creeks from Georgia had migrated into the area around 1715 and founded settlements along the Apalachicola River and around Lake Miccosukee (which was just a few miles north of the Randall plantation in Jefferson County; Thomas Randall purchased corn from “Micausukees” in the late 1820s).²⁷ The Apalachicolas and Miccosukees were two of three main indigenous political entities in Florida in the eighteenth and early nineteenth centuries. As the conflicts of the 1810s in West and Middle Florida revealed, control over land in Middle Florida had important geopolitical significance. Americans believed these autonomous Native American peoples, once the allies of British and Spanish foes, now posed a threat to the dominance and safety of Middle Florida’s planters. The 1823 Treaty of Moultrie Creek, made before the Americans had the power to completely displace them, had established small reserves for the Apalachicola chiefs on the lands they already inhabited along the rivers, as well as a reserve further east for Miccosukees and recent Creek refugees from the Red Stick War. Soon, however, the desires for that land expressed by whites like Thomas and Laura Randall would challenge these arrangements.²⁸

Caught up in what Laura called a “mania” for Florida land, her husband, father, and uncles contributed to a booming real estate market in Jefferson County, where land values increased very quickly, from $1.25 per acre in 1828 to $5.00 per acre in 1830.²⁹ Their investments in land, combined with the large numbers of slaves they brought with them, mirrored the movement of many of their neighbors, who all hoped to become wealthy planters. As Americans streamed into Middle Florida, they overwhelmed the indigenous communities there. By 1840, 50.58 percent of the total American population of Florida lived in Middle Florida’s six counties. In Jefferson County, where the Randalls bought land, enslaved people outnumbered free whites (62 percent of total population). The enslaved people on Jefferson County plantations produced 4,639 bales of cotton (15.32 percent of all the cotton grown in Florida in that year). By 1860 enslaved people made up 64.5 percent of the population in Jefferson County, where they toiled in the fields and at the gins that produced 10,847 bales (16.64 percent of Florida’s cotton crop in that year). Jefferson County quickly turned from Native ground to a white plantation agricultural colony.³⁰

As white demand made the land more valuable, and as the population of whites and enslaved blacks became denser, Americans applied increasing pressure on indigenous peoples to leave. Americans wanted the land for growing cotton and feared that Native Americans would offer freedom to enslaved blacks and attack white settler families in retaliation for white encroachment and theft. As a result, some Apalachicola and Miccosukee people voluntarily relocated. In 1833 Apalachicola bands led by John Blount, Davy Elliott, and Yellow Hair (not the Cheyenne warrior famously battled by Buffalo Bill Cody) departed for Texas. Those who remained suffered continued violence and raids from whites. To secure their own protection, they aided the U.S. government during the Second U.S.-Seminole War and even surrendered their guns, which left them defenseless against white attackers and other Native Americans whom they had angered by aiding the Americans. By 1838 the Apalachicolas were in a desperate situation; starving and facing indigenous enemies, they were also denied aid by their white allies. With no other choice available, the remaining Apalachicolas departed for the West in October.³¹

Laura Randall’s separate estate, along with the property that other white wives used to expand slavery and white settlement in Florida, had far-reaching consequences for peoples throughout the American Southeast. The ambitions of whites such as the Randalls resulted in the loss of Native American land and autonomy, which forced indigenous groups to relinquish key parts of their subsistence and identity. In addition, enslaved black men and women lost their health, their spouses and children, and their ties to former homes in other states. The opportunities that whites found in the southern borderlands relied upon the racial ideologies that undergirded Indian removal and racial slavery.

At the same time, while she was privileged by her wealth, Laura Wirt Randall was not empowered by it. Although her decisions had terrible consequences for nonwhites in Florida, her husband and uncles controlled her estate, and her wealth did not grant her the freedom to do as she liked. She reluctantly married at age twenty-four (practically a spinster in that time), and was never happy about moving to Florida. Raised and educated among the Washington, D.C., elite in the early nineteenth century, she tried to settle into housekeeping and motherhood on an isolated frontier but longed to see her friends and family. Depressed and exhausted after a miscarriage, she became dependent on laudanum (a narcotic frequently prescribed to white women for “female complaints” in the nineteenth century). After four pregnancies between 1828 and 1832, Laura Wirt Randall died in 1833 at age thirty after a lingering postpartum illness. Her unhappiness was in no way commensurate with that of the enslaved families or indigenous people her estate helped to displace, but in contrast to the white men of her class, Laura Wirt Randall was hardly an independent citizen with property. She was the carrier of wealth between men: her father, her husband, and her hypothetical sons. Judge Thomas Randall benefited most from her wealth, for his marriage to Laura Wirt garnered him a state Supreme Court appointment and an entrée into the planter elite. The Randalls illustrate that separate property rights accrued to Florida wives because they were white bearers of domesticity and because white wives’ estates generally reinforced the race and gender norms of patriarchy and slavery, not because lawmakers or judges intended to make them the equals of white men.³²

Though it rarely facilitated their liberation, white wives’ property did promote and support white settlement and supremacy in Florida. Enslaved people and domestic property were, like women, mobile. As frontiers expanded seemingly infinitely, women followed, with the things they used to carve “civilization” out of the wilderness. In addition to the material property they brought with them, white women brought domesticity, the cultural ideology that reproduced what Americans believed were white homes superior to the former residences of Native Americans and free blacks. On a frontier, white women’s domestic work acquired nationalist consequences. Expansionist domesticity established and policed the boundary between the “civilizing” culture of the colonizers and the “barbaric” culture of those displaced or colonized.³³

Free People of Color in Court

Enslaved blacks and Native Americans in Florida were not the only people for whom U.S. expansion spelled misfortune. In the territorial period, even as white women’s property rights expanded, U.S. law eroded the civil and property rights of free blacks. Many of them were the wives, consorts, or descendants of prominent white patriarchs and had owned property in Florida before 1821. However, in spite of two articles in the Adams-Onís Treaty that might have protected their rights, over the next four decades the very same courts that upheld the rights of married white women under that treaty eroded the rights of free “Spanish inhabitants” of African or mixed racial descent. Article 8 (mentioned above) protected the property rights of Florida’s Spanish inhabitants (which turned out to include married women), while Article 6 stipulated that “the Inhabitants” of Florida “shall be incorporated in the Union of the United States … and admitted to the enjoyment of all the privileges, rights, and immunities of the Citizens of the United States.” While U.S. officials might have interpreted this to include free blacks, who had enjoyed many civil rights in Spanish Florida, they did not. When it came to the rights of free black Spanish colonists in Florida, U.S. courts almost never fulfilled any of these promises of the treaty. This inconsistency reveals that while U.S. courts and legislators cited the requirements of international treaty law when they granted separate property rights to married white women, race deeply influenced their decision to do so.³⁴

“White” Spanish wives (those not of African descent) were not denied citizenship rights and retained their rights to separate property. As historians David Weber and Frank Marotti have noted, Americans greeted Spanish inhabitants of European descent who remained after the change of flags as allies rather than rivals because they were few in number, there was a desperate need for “civilized” settlers, and they were united against common enemies: Seminoles and Black Seminoles. This aspect of Florida’s transition to U.S. rule illustrates the historical and contingent ways in which race is socially constructed. In the racial landscape of territorial Florida, those who might not have been considered white elsewhere were incorporated into white society because Americans were far more concerned about distinguishing “civilized” whites from blacks and Indians than they were with making distinctions among European Protestants and Catholics. While cultural distinctions remained significant to individual identity, they did not matter structurally.³⁵

This was not the case for Floridians of non-European descent, especially those with darker skin. Local and territorial laws quickly limited the right of free blacks in Florida to assemble, bear arms, serve on juries, testify against whites in court, or marry across the color line. By the 1840s, localities unfairly taxed free blacks and required them to have white guardians. Sheriffs coerced them into manual labor projects, whipped them for misdemeanors, and subjected them to curfews. Free blacks did petition or sue for their rights under Article 6, but U.S. courts did not always uphold their rights, unlike white married women’s property rights, violating the treaty provisions in law and in practice.³⁶

In an increasingly hostile racial environment, many free people of color fought to retain the nearly equal rights and property the Spanish Crown had granted them. Very few of them were successful in court. Women of wealth and status, kin to prominent white men or to powerful Creek or Seminole leaders, met with some success. With the help of several trusted friends and lawyers, Anna Kingsley, the African-born first wife of Scottish land baron Zephaniah Kingsley, managed to protect the enormous legacy that she had helped him build in Florida. In the 1840s, his (white) sister sued for control over the estate, worth upward of $60,000, arguing that because Anna and her children were black they had no rights to property in Florida under U.S. law. A Duval County judge ruled in Anna’s favor, and she retained the estate. The judge cited Article 6 of the treaty (the article that promised citizenship rights) as the legal reason for upholding her property rights.³⁷

The courts did not consistently uphold the rights of free blacks, however, and American law certainly did not confirm them in a separate statute as it had done for rights of white wives. In 1845, two years before the decision in Kingsley’s case, several free blacks in Florida invoked their treaty status to avoid paying a discriminatory state tax. The biracial descendants of another white patriarch, George J. F. Clarke, these litigants were denied citizenship by a disdainful American judge who opined that as “bastard” children born of a black woman, they could not inherit any of the rights their “reputed Father” might have had under Spain. In another case in which the free black plaintiff was the child of two legally married free people of mixed race, the judge ruled that he was still not entitled to the same rights as a “Free White Citizen” because “such a thing” never “would have been admissible … and can never be tolerated.” Although Treaty Article 6 protected the property of Anna Kingsley and her mixed-race children, other free blacks did not find the same protection under the treaty. Shortly after this ruling, many of the biracial members of the Clarke family began a mass exodus out of Florida.³⁸

Furthermore, as did civil law rules for marital property, these legal decisions sometimes directly benefited whites, as unfair taxes often resulted in selling the property of delinquent black taxpayers at auction, where whites could buy it for next to nothing. If they went to court to protest, free blacks (including married women) typically lost their cases and their property. While the treaty had protected colonial wives’ property, and the 1845 Florida law protected all wives’ property, new racially biased American taxation policies resulted in the loss of property for free blacks.³⁹

The story of one of the Clarke descendants, Felicia Garvin (daughter of George J. F. Clarke and his freed slave and wife, Flora Leslie) illustrates how U.S. courts acted in ways that resulted in the loss of black property to whites. In 1842, just before she moved to Philadelphia, Garvin paid Clarissa Anderson $1,000 as down payment on a house in St. Augustine. Garvin instructed her attorneys to pay the remainder of the mortgage with $4,000 from a federal claim, which arrived eight days after she left. However, the attorneys kept the $4,000 intended for the mortgage, and therefore Garvin defaulted. Anderson, a wealthy white widow, kept both the house and the $1,000 down payment when she foreclosed. It is unclear whether Anderson was directly involved in the swindle, but she certainly did not lose anything in the bargain.⁴⁰ Although, like Kingsley, Felicia Garvin was related to prominent, wealthy white men, those connections did not help her in court, where U.S. law failed to protect her interests.

The citizenship promised by Treaty Article 6 also potentially included Native American inhabitants, but President Monroe had quickly announced that indigenous Floridians would not become U.S. citizens. Nevertheless a few indigenous women appear in Florida court records. In 1824 “Buckra Woman” (the only name given to her in the case file) sued Philip Yonge for $3,000, money he owed for cattle purchased from her brother, deceased Seminole chief Payne, in 1808. Surprisingly, a jury of white men found in favor of her suit, which was based on a matrilineal pattern of inheritance in which a man’s sisters, not his wife and children, inherited his property. However, the American judge dismissed the jury’s finding on the basis of “faulty evidence” and on the flimsy technicality that he had no jurisdiction because the case predated the act establishing county courts in the territory (this, of course, had not been a problem for any of the white colonial women whose cases predated 1821).⁴¹ As President Monroe had promised, U.S. courts did not honor the rights of Native Americans who had lived in Florida under Spanish rule as they did the rights of white Spanish inhabitants, even if some of those inhabitants—acting as jurors—thought they should.

Strangely, as they did with civil law precedents in spite of their apparent commitment to American common law, U.S. courts sometimes looked to Native American customary law to decide a case. The disputed ownership of a group of enslaved people that had once belonged to a Creek trader named Philatouche, whom whites called Black Factor, elicited a lengthy court battle in St. Johns County in the late 1820s. Two whites claimed to have purchased the same six enslaved people: twenty-five-year-old Ketty and her two-year-old son, twenty-two-year-old Peggy and her one-year-old baby boy, Fanny (age fifteen), and George (age ten). Margaret Cook and William Everitt each claimed to have purchased them from two different Creeks, Nelly and Nocosilly. Nelly, who sold the slaves to Everitt, was Philatouche’s daughter and so traced her inheritance rights through a paternal line. Nocosilly, who sold the slaves to the Cooks, traced his inheritance rights through a maternal line, claiming that as the son of Philatouche’s sister he had the right to sell them. This case spanned five years, during which witnesses across Florida, Georgia, and Alabama gave an unusually large number of depositions (over twenty-five). The questions asked in those depositions indicate that the judge’s decision, which does not survive in the record, apparently hinged on Creek inheritance law. Creeks were historically matrilineal, but at least one witness claimed that an 1819 Creek law instituted patrilineal inheritance. Since Philatouche died before 1819, according to that same witness, the new patrilineal inheritance law would not have been in effect; therefore Nocosilly was the rightful heir and Margaret Cook the legal owner of the slaves in question. This case only merited all this attention because of the interest that a white woman and man had in it, but it challenges the idea of common law’s hegemony. Furthermore, this case also demonstrates that Native American inheritance customs were changing in antebellum Florida as they came in contact with European and U.S. legal practices, a pattern that is consistent with the literature on Native American societies in the early nineteenth-century American South. Rather than unfailingly subjecting Native American property to common law rules, U.S. judges sometimes relied upon Native American inheritance customs to determine the ownership of property. At the same time, patrilineal (common law) patterns were becoming more dominant within Native societies. Finally, when enslaved people were among the “property” in question, the rights of Native Americans (just like those of whites) could have terrible consequences for blacks.⁴²

These cases illustrate that U.S. courts were actively, if unpredictably, drawing a color line in the 1830s and 1840s. Although they were not unfailing in their discrimination against free black plaintiffs, American lawmakers and judges consistently upheld and protected whites’ claims to property in Florida—especially white claims to enslaved people, land, and the goods that outfitted white households. This pattern exposes that the real goal of territorial government was not to honor treaty rights but to support white settlement. Extending marital separate property to white wives did that, as did denying property and citizenship rights to free blacks and to indigenous people.

Married Women’s Property Law and U.S. Expansion

U.S. courts upheld white women’s property rights with great consistency in antebellum Florida, even as they increasingly discriminated against free black and Native peoples. What might seem haphazard legal choices appear more logical when one considers the ways that letting white women hold property ultimately promoted the expansion of American settlement and slavery. While the extension of separate property rights to Florida wives was more a passive than an active process, it protected women who lawmakers recognized as vital contributors of reproductive and productive labor to white settlements. White female property holders—many of them also slave owners—not only consistently exercised their rights in court but also used their property to help settle Florida permanently for the U.S. as a slave state. Thus separate property rights for Florida’s wives were not just an accident of international diplomacy but part of the structure of white settler colonialism there. That structure, like white women’s exercise of separate property rights, had direct and disastrous consequences for enslaved blacks, free people of color, and indigenous peoples in Florida.

In a broad arc across the southern borderlands, from the Gulf Coast to the Pacific Ocean, American territorial growth into former French and Spanish colonies brought married women’s property rights into the United States in the early nineteenth century. Although each case differed, Louisiana, Texas, and California, like Florida, retained some civil law traditions and allowed wives to own separate property before 1848. No state other than Florida did so due to a treaty provision, so the influence of the treaty in Florida is unique (and perhaps a learning experience for U.S. diplomats). Southern slave states that neighbored these formerly Spanish or French territories passed some of the earliest married women’s property acts in common law states: Arkansas in 1835 and Mississippi in 1839.⁴³

Historians of other borderlands where civil law met common law also cite the expansionist benefits of granting white women these rights. It was not the need to support settlement but the demands of those who had already settled that caused the retention of the civil law in Louisiana. Historian Mark Carroll argues that legislators in Texas employed civil law marital property rules in order to support Anglo-Texan women and their families and to dispossess Native Americans and Mexicans of their lands in Texas. In California, preexisting civil law, the recent married women’s property law reform in New York, and an imbalanced sex ratio together formed the impetus for granting women separate property rights when married. Delegates believed that the measure would encourage “women of fortune” to come to California. Delegates from majority Californio districts were strong supporters of a married women’s property provision and argued for it as necessary to preserve rights already enjoyed by their constituents.⁴⁴

Expansion brought states like Florida, Texas, Louisiana, and California into the United States, where their colonial history of civil law marital property rules challenged the hegemony of common law coverture. While English common law was the most prevalent legal structure in the antebellum United States, its privileged position was not one of total domination. This analysis indicates that the civil law of borderland territories changed the legal rights and perspectives of Americans in some southern states in the first half of the nineteenth century, in spite of their official adoption of common law. This history highlights how expansion changed the nation “at home” even as it remade conquered territories into new American states. The postcolonial insight that colonial encounters usually transform the colonizers as well as the colonized also applies to the legal history of North American expansion.

Expansion provides an alternative historical context for married women’s property rights in the United States. Wives in the early nineteenth-century borderlands became legally entitled to hold separate property differently than women in the Northeast, where historian Norma Basch has shown that woman’s rights agitation and a desire to protect family households from unstable market capitalism encouraged legal reform. The revision of common law statutes happened first in the South and West, where it was shaped by the distinct contours of frontier life, especially slavery and conflict with Native American peoples. Previous studies have focused on the legal reforms achieved by the woman’s rights movement and have dismissed married women’s property rights in the borderlands because their outcomes are disappointingly limited in terms of women’s empowerment. Taking an intersectional approach reveals, however, that married women’s right to separate property in the borderlands did have important outcomes for white expansion and settlement and the growth of racial slavery. This analysis, therefore, places the history of married women’s property law in Florida into the framework of settler colonialism and its concomitant results: the expansion of racial slavery and Indian removal. By doing so, it writes white women into the history of Manifest Destiny, where their labor, property, and responsibility have long been acknowledged but rarely analyzed.⁴⁵

Although lawmakers did not target white wives to benefit from civil law marital property rules, political leaders did believe that white women were very important in frontier Florida. As will become clear in Chapters 3 and 4, lawmakers believed that the presence of white women and families distinguished a permanent settlement from a temporary military occupation and was therefore vital to controlling Florida. Similarly, when individual white women used these laws to protect their holdings, they did not understand them as policies or actions that supported colonization. Nevertheless, women used the property protected by these laws in ways that did just that. While domestic ideology coded white women as passive and dependent, it also (somewhat ironically) granted them an active identity as mobile, homemaking agents, and the household and enslaved human property that they owned in Florida facilitated that role. Women’s property (along with their labor) was a key component of expansionist domesticity.

While white wives, judges, and lawmakers may not have thought about married women’s property as political, it had important political implications. Those stakes are not often obvious in the records themselves, which contain the traces of family and community dramas that sometimes spanned generations. Legal petitions cannot reveal exactly what kinds of ideological investments women, their male kin, or presiding judges may have invested in women’s property, nor can they reliably tell us what motivated these actors. While the law epistemologically defines action and actors, it cannot determine behavior.⁴⁶ What is clear is that white women did not hesitate to exercise their property rights in the courts of territorial Florida, where American legislators and judges did not hesitate to extend the advantages of this legal protection to whites who used their property to expand national borders and slavery in Florida. Since these rights supported white settler colonialism in Florida, they were inherently bound to have negative consequences on enslaved people, free blacks, and Native Americans.

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