Signposts

New Directions in Southern Legal History

Paul Finkelman, Timothy Huebner, Sally Hadden, Patricia Minter

• Publisher: University of Georgia Press
• Year: 2013
• Print ISBN: 9780820344997, 9780820340340
• eBook ISBN: 9780820345840
• Topic: Law
• Subtopic: Legal History
• Index: Law

In Signposts, Sally E. Hadden and Patricia Hagler Minter have assembled seventeen essays, by both established and rising scholars, that showcase new directions in southern legal history across a wide range of topics, time periods, and locales. The essays will inspire today's scholars to dig even more deeply into the southern legal heritage, in much the same way that David Bodenhamer and James Ely's seminal 1984 work, Ambivalent Legacy, inspired an earlier generation to take up the study of southern legal history.

Contributors to Signposts explore a wide range of subjects related to southern constitutional and legal thought, including real and personal property, civil rights, higher education, gender, secession, reapportionment, prohibition, lynching, legal institutions such as the grand jury, and conflicts between bench and bar. A number of the essayists are concerned with transatlantic connections to southern law and with marginalized groups such as women and native peoples. Taken together, the essays in Signposts show us that understanding how law changes over time is essential to understanding the history of the South.

Contributors: Alfred L. Brophy, Lisa Lindquist Dorr, Laura F. Edwards, James W. Ely Jr., Tim Alan Garrison, Sally E. Hadden, Roman J. Hoyos, Thomas N. Ingersoll, Jessica K. Lowe, Patricia Hagler Minter, Cynthia Nicoletti, Susan Richbourg Parker, Christopher W. Schmidt, Jennifer M. Spear, Christopher R. Waldrep, Peter Wallenstein, Charles L. Zelden.

PART ONE
Colonial and Early National Legal Regimes

In My Mother’s House
Dowry Property and Female Inheritance Patterns in Spanish Florida

Susan Richbourg Parker

PROVERBIAL SPANISH WISDOM admonishes betrothed couples in rhythm and rhyme, Antes de casar, ten casa de morar (Before marrying, have a house to live in). The residents of Spanish Florida developed ways to address this universal concern through combining the laws of the Spanish empire with local realities in the colonial period. In St. Augustine, brides, not grooms, often were the source of the homes for the new family. In part, the reliance on females for homes was a pragmatic response to the number of landless men. In the last quarter of the seventeenth century, men began arriving in Florida from Iberia and from Spain’s colonies to serve as soldiers. While the new military arrivals could offer a prospective wife a soldier’s pay and perhaps money to acquire movable goods, they could not bring land for a home.

The founding settlers’ “utopia of mutual hopes” for La Florida, where commoners would embrace land and profit and nobles would develop agricultural enterprises and acquire vassals, did not come to be. When Pedro Menéndez de Avilés landed at the place he would name St. Augustine in September 1565, he was guided and bound by a contract with King Philip II of Spain, signed on March 15, that apportioned among the king, Menéndez, and his investors the gold and silver, precious stones, pearls, and profits from mines that were to be had in La Florida, an area that included much of North America. The supporting cast of soldier-settlers and craftsmen expected to gain their riches from the acquisition of a parcel of land. No profit would accrue to the black slaves, of course.¹

La Florida did not become a producing region for either Spain’s economic benefit or for the colony’s investors, but its proximity to the Gulf Stream offered an asset that Spain could not risk losing to the control of another nation. Near St. Augustine, the Gulf Stream turned sharply eastward, and the natural propulsion of the current carried Spanish galleons away from the Americas and out into the Atlantic Ocean toward Europe. This route made St. Augustine the last chance for Spain’s fleets to get assistance with navigational problems or aid when enemy vessels threatened.² When 1602 hearings questioned Florida’s benefit to the empire in light of its meager production, justification for maintaining the colony was put forth in the larger context of the colony’s role in providing security to the fleets and therefore to Spain’s economy.³

Spain needed Florida as a military outpost to protect the sea lanes.⁴ Spain’s forays into Mexico and Peru yielded developments that made the Gulf Stream truly a river of silver. Large-scale silver mining provided cargo for the annual fleet of ships that passed by the Florida peninsula on the fast ocean current to Europe. Silver production, which far surpassed that of gold, reached its greatest heights between 1550 and 1570, and St. Augustine was established during the latter years of that period. The continued existence of Florida as a Spanish colony became an expense to the Crown starting in 1570 with a decree that a regular annual royal subsidy would be paid from one of the king’s American treasuries; the first payment was made in 1571. The Spanish Crown could not renounce the costs of Florida without risking the loss of the colony and its protection of the fleets from the Indies. Yet in 1763, Spain would lose Florida as part of the larger imperial chess game of war and territory.⁵

Thus the Euro-American residents of La Florida would receive most of their support from the military payroll or situado (subsidy). Although Florida had some farms and cattle ranches, the majority of Euro-American property owners held real estate as family home sites within the walls of St. Augustine, the colony’s capital city, or nearby areas. Home sites in St. Augustine were not “units of production,” as they were elsewhere in North America, but residences with gardens and some food animals. Families did not rely on their home sites to sustain them or provide purchasing power; instead, the home sites augmented the military salaries and supplies provided by the Spanish Crown to support the soldiers. The focus of real property practices was to ensure living space for families, especially in a town where husbands were often nonlocal and thus nonlanded men.

St. Augustine’s residents adapted the Iberian tradition of the dowry to provide new families with their own homes. Although houses were not the usual dowry, a home site was an asset that a St. Augustine family could offer to hasten a daughter’s marriage to a recently arrived but landless soldier or to make a more beneficial match. If widowed, a woman regained control of her dowry; she did not have to depend on her husband’s legatees and their possible largesse toward her. The dowry house provided her with security and with authority over the property; if she were widowed or her children were orphaned, a family home would still provide shelter. The house might also serve as a magnet, attracting another husband to the widowed woman.

Where land was perceived as a lesser source of wealth, women achieved a more nearly equal claim to land. Historian John Crowley underscores this pattern by asserting that British American tradesmen and merchants were more generous to their widows than were planters. By contrast, in agricultural areas in North America, especially in the British colonies, the concern was usually for maintaining the viability of the productive unit—the farm. Planters often evidenced this perspective by establishing inheritance arrangements favoring the farm’s longevity over a surviving spouse’s needs.⁶

In Spanish Florida, the dominant role of a source of revenue other than land—the military budget—engendered a pattern of residential property ownership through successive female generations. Very few property records remain from Florida’s first two centuries (1565–1763). Those that are available indicate that mothers often passed on home sites to their daughters. In a military town, male roles and values would have dominated society even more than in other kinds of settlements, yet an intensive investigation of documentation pertaining to individual sites illustrates the important role of women in creating St. Augustine’s social and economic stability. St. Augustine’s white female population was almost exclusively Creole (born in the Americas), descending from the earliest settlers. In St. Augustine’s earliest years with its sex imbalance among the Europeans, soldiers from Iberia found wives among the Christianized Native American women. Nevertheless, the Euro-American population came to define itself as Spanish, not mestizo, and over the generations, the Native American ancestry may have become unknown. In the late seventeenth century and the first half of the eighteenth century, many of these women found husbands among the garrison’s soldiers, most of whom came from Spain, with some from Cuba or Mexico. St. Augustine’s society responded to the immigrant husbands’ limited access to real property by providing homes for the families formed by the marriage of a local woman and a newly arrived man. The Laws of the Indies, which applied to all of Spain’s New World colonies, provided a ready legal mechanism in the dowry to accommodate Florida’s specific demographic situation.

Two parcels of land located across the street from each other in St. Augustine exemplify this type of property transfer. Gerónima Rodríguez lived and died in a house on the west side of the Street of the Governor (today’s St. George Street) in the first third of the eighteenth century.⁷ Three generations of daughters would live on the same lot at the end of the alley leading to the fort (figure 1). Gerónima’s mother, Gertrudis de Morales, married three times. Her first husband was a native of Havana, while her second was born in St. Augustine. Gerónima’s father was Gertrudis’s third husband, José Antonio Rodríguez, a native of southern Spain. Like her mother, Gerónima married a Spaniard who was sent to St. Augustine as a soldier. Widower Francisco Navarro arrived in early 1724, and he and Gerónima married in June of that year.⁸

In the joint will with her husband written six weeks before her death in 1737, Gerónima, “sick in body but sound of mind,” claimed ownership of a home and provided the legal description of its lot near St. Augustine’s fort. Both spouses declared that the other was to be their “universal heir.” A year and a half after her death, Francisco married a thrice-widowed St. Augustine woman. We do not know in what house this newly formed couple lived or if the new wife brought any of her own children to join Francisco and Gerónima’s eleven-year-old son, Juan, and nine-year-old daughter, Juana.⁹

In 1745, at age sixteen, Juana Navarro married another man from southern Spain, though he was a merchant, not a soldier. Florida’s transfer to Great Britain in 1763 forced Juana and her family to abandon what had been her mother’s house.¹⁰ In October 1763, Juana; her husband, Salvador de Porras; the couple’s ninth child, a five-week-old baby; and as many as six other surviving children boarded the brigantine San Antonio bound for Havana. The middle child, ten-year-old Catalina, would return after 1784, when Spain regained Florida, bringing her own children to Gerónima’s house.¹¹

Across the street, similar events took place at Victoria Escalona’s home site. Victoria lived on a corner with the north wall of her house bounded by the lane that dead-ended at Gerónima’s fence. In 1743, the widowed and apparently childless Victoria married a soldier from Spain, Martín Martínez Gallegos. Later events suggest that Victoria might well have provided this house, a dowry from her first marriage, for the new marriage. Like Gerónima, she died long before her husband. By virtue of Victoria’s dowry, Victoria’s surviving children and their guardian-father were entitled to continue living in her house. Before the first anniversary of Victoria’s death, her widower buried two of their four or five children within a period of four days. He then married again, choosing not a St. Augustine native but a member of a recent group of German Catholic immigrants who had settled in St. Augustine. Victoria’s widower was able to offer his new bride a home in the house provided by his deceased wife because it was the home of his motherless children. This composite family, including children of the new marriage, also sailed for Cuba in 1763. In January 1764, Juan José Eligio de la Puente compiled a map to depict property ownership in St. Augustine at the time of the evacuation of Spanish residents (figure 2). He listed the remarried Martín Martínez Gallegos as the owner of the house and lot. Yet the property claim made twenty years later in 1784, with its deeds, affidavits, and other documents, showed that the ownership rested with Victoria’s lineage. Victoria’s sister, Lucía, also a 1764 evacuee, returned from Havana in 1784 to reclaim the property for Victoria’s children. Lucía presented a preevacuation resident who testified that there had been “no other resident or owner than Victoria Escalona,” indicative of a dowry ownership in the home.¹²

Documentary Sources

In peace negotiations to end the Seven Years’ War (1756–63), Spain gave up its Florida territory to ransom British-held Havana. Florida’s cession to Great Britain ended two hundred years of Spanish occupation of the peninsula and the Southeast. (In 1763, however, Spain acquired Louisiana from France by the same peace agreement, so the Spaniards retained a presence in the southern part of North America.) The departure of Florida’s Spanish residents between June 1763 and late January 1764 meant the departure of the documentation of their lives as well. The emigration of 1763–64 was the first of several generated by treaty cessions and associated relocation of documents. In 1784, British subjects departed as the Spanish returned to the Florida peninsula, rewarded for declaring war on Great Britain during the American Revolution. In 1821, Spain permanently divested itself of Florida, this time to the United States.

Departing Spanish officials transferred the military and civil records, some of which went to the Office of the Exchequer in Havana.¹³ Some of the documents were stored in other government buildings in Cuba. Official correspondence also rested in other locations, as copies of reports and letters sent from Florida were often sent to administrators in Spain, Cuba, Santo Domingo (now the Dominican Republic), and New Spain (now Mexico). In addition, copies of important letters and reports were sent on more than one ship to guard against loss from shipwreck or water damage. Muster rolls for the St. Augustine garrison offer information about age, birthplace, parentage, physical infirmities, a...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• Introduction
• Part I: Colonial and Early National Legal Regimes
• Part II: Law and Society in the Long Nineteenth Century
• Part III: Constitutionalism, Civil Rights, and Civil Liberties
• Contributors
• Index