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
