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
