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).
