The Threshold of Manifest Destiny. Laurel Clark Shire
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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