The Threshold of Manifest Destiny. Laurel Clark Shire
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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.
CHAPTER 2
Innocent Victims of a “Savage” War
The citizens of Florida … have been nightly shot down or tomahawked by the light of their own blazing homes.
—Delegate Charles Downing, Florida Territory, July 10, 1840
The barbarities have been perpetrated chiefly upon females.
—Niles’ Weekly Register, October 1, 1836
At ten o’clock on the morning of September 15, 1836, a band of Seminoles and one black warrior attacked the homestead of Clement and Jane Johns, white settlers in East Florida. According to a sensational pamphlet published in the wake of this assault, the attackers shot and killed Clement, leaving Jane to defend herself, their unborn child, and all their property. The attackers shot and scalped Jane Johns and set her house on fire. Miraculously still alive, she lay still until her assailants left, even as the fire spread to her clothes. Once they had whooped and departed, according to one account, she “scraped the blood from her denuded head in her hands and … applied it to the fire,” extinguishing the flames consuming her skirts. In spite of her injuries, Johns managed to get out of the burning house, crawling to a shallow pond nearby. Although she had been shot, scalped, and set on fire, Jane Johns remained alive when her father-in-law found her a few hours later. A remarkable survivor, she became perhaps the most famous victim to survive what Americans called an “Indian depredation” in Florida. The Jacksonville Courier reported the attack on Johns on September 17, 1836, and several regional and national papers printed the details shortly thereafter. The following year printers in Charleston and Baltimore published it in pamphlet form. Her story garnered national coverage because of its sensational and gory details, which pulled at both domestic and nationalist sentiments with the image of a white woman attacked by Indians and an escaped slave.1
Although perhaps the most sensational, Jane Johns’s story was not unique. It exemplifies Florida Indian depredation narratives in which white women and their children suffered injury or death and lost property when attacked by Seminoles. These tales glossed over Indian removal and the expansion of slavery and framed the conflict in Florida as a noble war being waged for the protection of innocent white women and children. In countless bloodcurdling stories Americans recast whites as victims, never perpetrators, of violence, and they continually portrayed Native Americans and blacks as the aggressors rather than the victims. The cultural prevalence and emotional power of these stories shaped policy as well as attitudes in and about Florida in the 1830s and 1840s. American leaders used them to justify the Second U.S.-Seminole War and its expense, to raise militia volunteers, and to pass pro-settler welfare and land policies.