Revolutionary South By

Propertied White Women, Family Property, and Governance in the Post-Revolutionary

South

Emily Margolis

Department of History Duke University

Date:______Approved:

______Laura Edwards, Supervisor

______Adriane Lentz-Smith

______Juliana Barr

______Philip Stern

Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History in the Graduate School of Duke University

2017

ABSTRACT

Propertied White Women, Family Property, and Governance in the Post-Revolutionary

South

Emily Margolis

Department of History Duke University

Date:______Approved:

______Laura Edwards, Supervisor

______Adriane Lentz-Smith

______Juliana Barr

______Philip Stern

An abstract of a dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History in the Graduate School of Duke University

2017

Abstract

“Propertied White Women, Family Property, and Governance in the Post-

Revolutionary South,” examines white women’s changing legal and social relationship to family property—chiefly land and enslaved people—in the states of North Carolina,

South Carolina, and Louisiana from 1790 to 1840. My research shows that throughout this time, many white women owned and managed land, enslaved people, and other forms of personal property, both formally in their own names, and informally, as representatives of their families. But when state lawmakers amended laws in the decades following the Revolution, they changed white women’s formal legal relationship to family property and enslaved people.

As southern state lawmakers enacted new laws to stabilize and grow their exploitative slave states, they invested a broader class of white men with more authority over family land and enslaved people. Traditional legal customs, which had made room for propertied women to manage family businesses and estates, increasingly gave way to more formal and uniform laws that promoted men’s individual control over family property and collective control over enslaved people. My dissertation argues that new laws had unintended consequences. By making it more difficult to pass property through female family members, these laws could undermine the ability of individual patriarchs to keep property within their families and ensure the status of future

generations. While wealth remained a powerful and meaningful marker, white masculinity gradually became more important in claiming the vote and, more broadly, a voice in public governance. Upon witnessing the indirect and unintended consequences of laws, which in some instances jeopardized women’s control over property, elite white lawmakers (who were the same group that enacted the laws) began to rethink the laws.

Consequently, women, family, and property became a large part of debates about status in the decades following the American Revolution. My conclusions are drawn primarily from legal documents, including state and local court records, state digests and code books, petitions, census records, land grants, conveyance records, wills, and marriage contracts. In addition, this study also pulls from other sources that explain how propertied families and their communities reacted to these legal changes, including memoirs, family papers, newspapers, travel literature, and personal correspondence.

Dedication

To Karl Goodman, I love you more than words can say…and I won’t even try,

because that would just be one more thing I would ask you to edit.

And to Jack Goodman, your giggles, hugs, and cuddles have been the best

motivation to finish.

Contents

Abstract ...... iv

List of Figures ...... viii

List of Abbreviations ...... ix

Acknowledgements ...... x

Introduction ...... 1

Chapter One: Propertied White Women and Family Estates in the Wake of the American Revolution, 1776 to 1812 ...... 37

Chapter Two: Determining Authority and Reforming Property Laws in the New United States, 1776 to 1820 ...... 76

Chapter Three: Married Women and Family Property, 1785 to 1835 ...... 113

Chapter Four: White Women and Slave Codes in South Carolina, 1820 to 1835 ...... 158

Chapter Five: Women of the Ancienne Population, Slaves, and American Governance in Louisiana, 1820 to 1835 ...... 200

Conclusions ...... 250

Bibliography ...... 257

Primary Sources ...... 257

Manuscripts ...... 257

Newspapers and Periodicals ...... 258

Published Primary Sources ...... 260

Secondary Sources ...... 269

Biography ...... 291

vii

List of Figures

Figure 1: “Revenge Taken by the Black Army for the Cruelties Practised on Them by the French” ...... 221

viii

List of Abbreviations

NCDAH North Carolina Department of Archives and History, Raleigh

NARC Notarial Archives Research Center, New Orleans

NOPL City Archives, Louisiana Division, New Orleans Public Library

SCDAH South Carolina Department of Archives and History, Columbia

SCHS South Carolina Historical Society, Charleston

Acknowledgements

Having spent several years on this dissertation, it is a pleasure to finally thank the many people and institutions that helped bring the project into being. First, I would like to thank my adviser, Laura Edwards. She has provided a great deal of guidance and encouragement for the last eight years. She has read every draft, multiple times, and provided insightful and constructive comments each time. Her enthusiasm for history is inspiring and she has been invaluable to the work. I would also like to thank the members of my committee—Adriane Lentz-Smith, Juliana Barr, and Phil Stern—whose feedback has greatly improved the quality of the project. Other historians at Duke have generously provided helpful comments and encouragement that have both helped the project and helped me develop as a historian. I would especially like to thank Reeve

Huston, Sally Deutsch, John Martin, and Pete Sigal. Outside of Duke, in addition to being generous with their time, I received incredibly helpful feedback from Sally

Barringer Gordon, Kirsten Wood, Felicity Turner, and Kimberly Welch. I would also like to thank the members of the Triangle Legal History Seminar and American Society for

Legal History.

My project received generous support from the Duke Graduate School and

History Department, the American Society for Legal History, and Kenyon College. I was particularly fortunate enough to have received funding from the William Nelson

Cromwell Foundation Fellowship for Legal History, the Julian Price Endowed

Dissertation Research and Writing Fellowship, the Richard Watson Fellowship, Anne

Firor Scott Merit Awards; and the Henry G. Dalton Endowed Graduate School

Fellowship.

The archivists and staff at research libraries throughout the South have been courteous and helpful to me. I would like to extend a special thanks to those at Duke

University Libraries, The Historic New Orleans Collection, Louisiana Notarial Archives

Research Center City Archives, Louisiana Division, New Orleans Public Library,

Louisiana State Museum Historical Society, Howard-Tilton Memorial Library, North

Carolina Department of Archives and History, South Carolina Historical Society at the

College of Charleston, and the South Carolina Department of Archives.

My fellow graduate students at Duke have been supportive in many ways.

Samanthis Smalls read and reread more conference papers and chapter sections than I care to mention. Moreover, her friendship has shaped and sustained me as both a historian and a person. Jeannine Cole has also been generous with her critiques and time. I have also benefitted from many conversations about my work with Meggan

Farrish, Ashley Young, Corinna Zeltsman, and Ryan Poe.

Outside of Duke, my dear friends in New York have been incredibly encouraging. Having obtained a Ph.D. herself, Lisa Tsuei was especially generous with

her support, both in our walks and in cooking many meals for me. Her love of learning and life’s perspective inspired me throughout.

I want to thank my family. My sisters Lorie, Ellie, Kelsie, and Krista believed in me and inspire me. My step-father Hugh Sales understood the dissertation process and was a cheerleader throughout. My father-in-law Don Goodman always encouraged me and kept me focused on the ultimate goal of finishing. I want to especially thank my moms, Jo Anne Margolis-Sales and Kathleen Goodman, who have never waivered in their support for me and my pursuit of a Ph.D. in history. Jo Anne Margolis-Sales has always supported me in everything I do, including in my love of learning. Kathleen has been an amazing cheerleader and provided hours upon hours of top-notch childcare.

Without their help, I never would have been able to finish. My dear son, Jack Goodman, provided me with great opportunities for a work break and giggles and hugs that have motivated me to finish. Pearl H. Goodman has been by my side during nearly all of the writing process and taught me that sound of the keyboard can be incredibly soothing.

She has also taught me the value of a midday walk. I owe my greatest thanks to my husband, Karl Goodman. He has supported me every step of the way. He is the first editor I go to and has read every page of every draft, multiple times. He reads every word carefully and critically and is always encouraging. I thank him from the bottom of my heart, for everything. I look forward to our next chapter together.

xii

Introduction

Women in North America have managed property since the colonial period, but not without difficulties. Occasionally, broad political, social, and economic currents intensified communities’ anxieties about women’s control of property and resulted in new legal and social challenges for women. My dissertation shows that the 1820s and

1830s proved to be such a time for white propertied women in the American South. As southern communities negotiated the unstable political, social, and legal terrain of the post-Revolutionary and Early Republic period, white men asserted their expanding legal and social authority over land and enslaved people, at times at white women’s expense.

Sometimes, the challenges white propertied women faced were subtle. For example, court records show that husbands employed new laws to claim control over property inherited by their wives. Other times, however, the challenges white propertied women faced were more dramatic. For example, in a few cases white men used criminal courts and extralegal channels to punish some of the wealthiest local white women for violating slave codes, such as “operating a plantation without a white man present” or

“cruelty to slaves.”

My dissertation, “Propertied White Women, Family Property, and Governance in the Post-Revolutionary South,” examines white women’s changing legal and social relationship to family property—chiefly land and enslaved people—in the states of

North Carolina, South Carolina, and Louisiana from 1790 to 1840. My research shows

that many propertied white women could and did own and manage land, enslaved people, and other forms of personal property, both formally in their own names, and informally, as representatives of their families throughout this time. Although white women from propertied families did not own and control property at the same rates as white men, it was not unusual for these women, in their capacities as wives, mothers, and daughters, to find themselves managing family businesses ranging from small shops to large-scale plantations. These women, after all, were members of the elite and played central roles in maintaining their family’s wealth and privilege. White male family members often allocated family property to their white female relatives to carry out the larger patriarchal project of preserving wealth for multiple generations.

Moreover, southern state lawmakers and local communities typically recognized white women’s authority to claim and control these forms of property as family representatives throughout the first half of the nineteenth century. But when state lawmakers amended laws governing property and social relations in the decades following the Revolution, they changed white women’s formal legal relationship to family estates and enslaved people.

As southern state lawmakers enacted new laws to stabilize and grow their exploitative slave states, they invested a broader class of white men with more authority over property, including family land and enslaved people. Traditional legal customs that had made room for propertied women to manage family businesses and estates

increasingly gave way to more formal and uniform laws that promoted men’s individual control over family property and collective control over enslaved people. By the 1820s and 1830s, white men had acquired new legal tools—derived from a growing body of trusts and estates law, slave codes, and anti-aristocratic legislation—that could be used against female property holders in a way that could alter the way that white women could hold and control property. My dissertation argues that new laws had unintended consequences. By making it more difficult to pass property through female family members, these laws could undermine the ability of individual patriarchs to keep property within their families and ensure the status of future generations. While wealth remained a powerful and meaningful marker, white masculinity gradually became more important in claiming the vote and, more broadly, a voice in public governance. 1 Upon witnessing the indirect and unintended consequences of laws, which in some instances jeopardized women’s control over property, elite white lawmakers (who were the same group that enacted the laws) began to rethink the laws. Consequently, women, family, and property became a large part of debates about status in the decades following the

American Revolution.

1 Borrowing from legal historian Laura Edwards, I use the term “governance” to refer to both formal and informal institutional mechanisms including, but not limited to, the legal system, through which decisions were made about public issues and legal cases. Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 3. 3

Legal changes helped augment white men’s authority over property, in part, because of the self-interests of state-level lawmakers. Throughout much of the South, including the Carolinas and Louisiana, state-level lawmakers were white male representatives from a network of landed slaveholding families. The primary focus of these men was to legitimate their own power to govern and design a body of laws that would allow them and other property owners more individual authority over their economic affairs. In order to maintain control of state-level governing institutions (i.e. the legislative, executive, and judicial branches), southern political leaders drew on older British models of governance to protect property owners’ exclusive power to govern at the state level. They crafted constitutions that limited formal political participation to white men over the age of twenty-one who owned extensive amounts of property, first in the form of land and then more generally in the form of wealth. In doing so, white male state lawmakers secured their own political power and reinforced the connection between extensive wealth, white maleness, and control over the state’s top-levels of governance.2

2 Many historians have highlighted the varied ways wealthy white statesmen tried to legitimate their own power to govern and enhance their authority over their property. See, for example: James Willard Hurst, Law and the Conditions of Freedom: In the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956); Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1967), 283; Rachel Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill: The University of North Carolina Press, 1990), 79–108; Christopher Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion (Cambridge: Cambridge University Press, 2012); Laura Edwards, “The Contradictions of Democracy in American 4

In addition to securing their power over state-level governance, white male lawmakers also sought to gain more power over property, both real and personal. In fact, many propertied white men wanted access to state-level governance because the state had province over property law. As a part of granting themselves more power over property, white lawmakers enacted legal reforms to liberalize inheritance laws.

Specifically, state lawmakers began to privilege simple property ownership and discard property encumbrances. They worked to remove inheritance laws that kept land, bound-up and intact for one family over many generations, and instead, implemented a system that gave individuals within families greater options and dispositional authority over land that they inherited. By providing individuals more authority over their land, lawmakers essentially converted land from a unique asset that could be legally bound to one family for generations, and managed by both male and female family members, into a commodity that could be easily transferred. In doing so, state leaders argued that they were delivering on Revolutionary promises: they granted more property holders more authority over their estates and relatedly, for white men, a better chance at participating in state-level governance.3

Institutions and Practices,” in Re-Imagining Democracy in the Age of Revolutions, ed. Joanna Innes and Mark Philp (Oxford University Press, 2013), 45. 3 Many historians have shown that state leaders were motivated on both philosophical and economic levels to promote simple property ownership and jettison different forms of property encumbrances in order to confer more authority to the property owner. See, for example: Horwitz, The Transformation of American Law, 1870-1960; Gregory Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought (Chicago: University of Chicago Press, 1997); Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” The William and Mary Quarterly 54, no. 2 5

Although state leaders were concerned with maintaining their authority to govern at the state-level their governance, by design, largely stopped there. In order to fulfill Revolutionary promises of more control over governance, state leaders left the business of managing community affairs and social relations to local communities.

Local-level governance managed public offenses and social relations (such as husbands’ treatment of their wives, slaveholders’ treatment of their slaves, and slaves’ interaction with the broader community) as well as more informal types of property claims well into the nineteenth century. Although white men also technically headed the local-level governance (serving as magistrates, circuit, district court judges and jury members), at the community level, one’s reputation, credit, and connections mattered just as much, if not more, than class, gender, or race when it came to making community recognized claims to authority and property. Generally, local governance allowed for easier access to property. Unlike a growing body of state law, local lawmakers recognized that individuals could possess and control property without officially owning it.4 Women

(April 1997): 307–46; Jens Beckert, Inherited Wealth, trans. Thomas Dunlap, English (Princeton: Princeton University Press, 2007); Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. 4 I borrow the distinction between “possess” and “own” from legal historian Laura Edwards. Edwards associates “possess” with local-level laws and “own” with state-level laws. Edwards, The People and Their Peace, 135–36; Although using a different terminology, other nineteenth century legal historians of the south have also shown that southern local level courts recognized that women and other social subordinates, like free blacks and enslaved people could also “possess” property without owning it. For recent works, see: Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003); Kimberly Welch, “Black Litigiousness and White Accountability: Free Blacks and the Rhetoric of Reputation in the Antebellum Natchez District,” The Journal of the Civil War Era 5, no. 3 (September 2015): 372–98. On a broader level, many nineteenth century legal historians have pointed to multiple and sometimes competing levels of government and governance 6

and enslaved people, for example, could possess various forms of personal property and, in some cases, even land, if their male family members or masters had sanctioned it. So, although a growing body of state law claimed that official titles to property were necessary to ensure an individual’s property ownership, local forms of governance recognized informal property arrangements involving a broader class of owners.

Building on recent work from legal historians, my dissertation shows that even though formal property law was an area of law that states had control over, some of the changes to laws regarding property came at the behest of those at the local level.5

Ordinary people at the local level appealed and petitioned for a variety of new state laws that would help them manage local economies and relations. What resulted was a series of new and newly enforced state laws born out of discourse between the state- level lawmakers and local-level petitioners. State-lawmakers were often sympathetic to white male petitioners who framed their requests for new laws in a language that resonated with state-level lawmakers who were concerned about building a more

and noted the varying degrees of flexibility that claimants had at each level. See, for example: William Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996); Kelly Kennington, “River of Injustice: St. Louis’s Freedom Suits and the Changing Nature of Legal Slavery in Antebellum America” (Ph.D., Duke University, 2009), Retrieved from ProQuest.com; Felicity Turner, “Narrating Infanticide: Constructing the Modern Gendered State in Nineteenth-Century America” (Ph.D., Duke University, 2010), Retrieved from ProQuest.com. 5 Many legal historians have shown that communities petitioned state lawmakers for new laws concerning the governance of property. For some examples of this literature, see, for example: Sally Hadden, Slave Patrols: Law and Violence in Virginia and the Carolina (Cambridge, MA: Harvard University Press, 2001); Edwards, The People and Their Peace; Woody Holton, “Equality as Unintended Consequence: The Contracts Clause and the Married Women’s Property Acts.” The Journal of Southern History 81, no. 2 (May 2015): 313– 40. 7

productive and stable economy. Some of the new laws that petitioners requested and that state-lawmakers passed, however, indirectly enhanced white male authority over family property and enslaved people. For example, state lawmakers responded to creditors’ requests to formalize the filing procedure for marriage settlements and contracts, which could protect a married woman’s independent management over her property brought to or acquired in her marriage. Lawmakers in the Carolinas and

Louisiana responded to creditors’ requests, in large part, because creditors argued that the states’ lenient rules governing marriage settlements had been injurious to their business. Consequently, however, marriage settlements and contracts became more cumbersome to create and execute. Without the protections of a marriage settlement or a contract that notated a married women’s separate property, married women became more vulnerable to loosing legal control over the property they brought to marriage, either to her husband’s or husband’s creditor’s control. White men, either in the family as husbands or outside the family as creditors, benefited from the new laws that made marriage settlements more cumbersome to make.

In another example, when locals believed that enslaved people might rebel and endanger their property, they asked the state to expand slave patrol laws. Such petitions requested enhanced authority to police not only enslaved people’s behavior, but also slaveholders’ behavior in managing their slaves. While state-level lawmakers, almost all of whom were slaveholders themselves, had deep respect for private property, new

legislation and judicial decisions show that these lawmakers ceded the point to local communities, granting white men, as representatives of the state enhanced authority to patrol enslaved people, and consequently, also slaveholders. Such new laws changed the ways that individuals within families could manage their estates, both real and personal in their own communities.

Paradoxically, although these newly negotiated laws enhanced white male authority at white women’s expense, in some cases they also jeopardized the family wealth of the same propertied white men who promoted such laws. White women who were important managers of family wealth, began to face new legal challenges that could make owning and managing their property in their own names more difficult, especially if they were challenged by area men. The newly passed laws, which were aimed at promoting greater individual control over property and stabilizing southern slave economies, also facilitated the transition from a hierarchical familial world in which women played an important and recognizable role in property management, to one that theoretically promoted free white men’s exclusive power over property.

Changes to laws that expanded white male authority over property were both shaped by and helped reinforce old misogynistic narratives about women’s necessary subordination to, and dependence upon, men. Sociocultural narratives about family, gender, and property that further affirmed male family members’ authority over property and encouraged women to cede control circulated throughout the nineteenth

century. Newspapers, ladies’ advice books, travel literature, and personal correspondence characterized women who actively managed family property as threatening and emasculating, especially those who were married. Other sources went so far as to accuse such women of not only of upsetting the peace of their household, but also of threatening the new Republic. Women who managed their family’s estates, more than men who managed their family’s estates, symbolized older aristocratic notions of wealth and power, which had been vilified in Revolutionary rhetoric as corrupting and problematic because it kept power concentrated amongst the elite and stunted economic growth. In the new, more democratic era, companionate marriage, in which a woman was to trust her husband with the family finances, was supposed to replace marriages in which women played a role in maintaining a family family’s privileged status through social and business connections and in growing family assets. These sociocultural narratives about family, gender, and property played an important role in shaping ideas about white women and their rightful relationship to property, and in conjunction with new state laws related to property and enslaved people, created an environment in which property attached more easily to white men than to white women.

Although lawmakers throughout the new nation, including in the South, amended state laws and constitutions to incorporate Revolutionary principles by endowing a broader class of white men with more authority over property and more control over their government, they did not “outlaw” women-controlled property. But,

if women were going to control property formally or informally, they needed to be connected to reputable patriarchs who were willing to grant such control to women. To be sure, many men were still willing to grant this level of control because the preservation of family wealth remained important to propertied class. Many lawmakers were unwilling to let the new ideological goals of granting men broader inclusion in the process of governance and greater access to property completely overturn the means by which female family members maintained control of property. Statesmen from propertied families, who relied on their white female family members to help manage their estates, carved out measures to protect their female family members’ formal control of their estates. Female family members could still posses property and many could still control property in their own names. But in many cases, families had to keep abreast of new laws take legal actions to ensure female relatives had such control. Even then, their female family member’s control of inherited property could not be guaranteed. Laws governing separate estates were rapidly changing, especially in the state-level courts.

Local-level courts still generally provided women and other social subordinates easier access to property, in part, because local courts, unlike a growing body of state law, recognized that individuals could possess and control property without officially owning it. This degree of flexibility allowed many women to continue to manage property. But as states made more men the gatekeepers to property, women necessarily grew more dependent upon them.

Although this project highlights the implications of post-Revolutionary legal changes to property laws for white women of the propertied class, my dissertation recognizes that the legal changes also had consequences for black women. Most of the consequences for black women faced were quite different, but some consequences were similar. Like propertied white women, free propertied black women faced challenges to their authority over inherited family property, although these challenges were often exacerbated by race. Secondary literature reveals that on occasion, white men allocated land and enslaved people to free black women with whom they had formed relationships, with varying degrees of approval from the local community. This literature, however, also recognizes that at times these women had their control questioned by white family members who questioned their legitimate ties to the family.6

It is difficult to draw conclusions because the number of free propertied black women was relatively low.

6 Emily Clark, The Strange History of the American Quadroon: Free Women of Color in the Revolutionary Atlantic World (Chapel Hill: The University of North Carolina Press, 2013); Elizabeth Urban Alexander, Notorious Woman: The Celebrated Case of Myra Clark Gaines (Baton Rouge: Louisiana State University Press, 2001). Clark’s work shows the ways in which white men provided for their long-term free women of color partners and their children born in these relationships. In doing so, Clark demonstrates that the notion of providing for family members, did, in some cases, extend across color lines. Alexander’s biography of Myra Gaines, a free woman of color, provides an in-depth examination of one of the most property suits in which Gaines, the daughter of one of New Orleans most wealthy men, Daniel Clark, struggled to legally justify her claim to his fortune. While both of these works focus on free women of color in New Orleans, in my own research, I have found evidence of wealthy white men providing for their long-term free women of color partners and children in South Carolina. For example, former governor of South Carolina, Arnoldus Vanderhorst, granted free woman of color, Hagar Richardson, who also happened to be his former enslaved woman, a considerable estate in Charleston for her and their children’s maintenance after his passing. “Hagar Richardson Estate Papers 1815-1828”, SCHS. 12

Still, the vast majority of black women in the Carolinas and Louisiana faced a very different set of consequences, because they were considered property themselves.

Their bodies, their children’s bodies, and their labor was owned by and made up a significant portion of the wealth of the propertied class. The post-revolutionary changes to property laws explored in this dissertation almost always worked to enslaved women’s disadvantage. New laws minimized their humanity, reinforced their status as personal property, and expanded the ability of white men, whether they were slaveholders or not, to manage and police their daily activities both inside and outside of plantation.7

---

My project is meant to make contributions to the rich and interconnected historiographies of legal history, women’s and gender history, and the history of the

American South. On the broadest level, it joins longstanding conversations about governance and the transition from a hierarchical familial world, substantiated on class and property ownership, to one that theoretically promoted individual equality of all free white men. Legal historians have long argued that this transition altered the way

7 The literature on the southerners’ dedication to the commodification, exploitation, and policing of enslaved people in the first half of the nineteenth century is vast. See for example, Paul Finkelman, ed., Slavery & the Law (Madison: Madison House Publishers,1997); Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999); Hadden, Slave Patrols; Kirsten Wood, Masterful Women: Slaveholding Widows from the American Revolution through the Civil War (Chapel Hill: The University of North Carolina Press, 2004); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge: Cambridge University Press, 2008). Although recent scholarship has illuminated some of the ways enslaved people operated within such oppressive conditions to better their circumstances. See, for example, Penningroth, The Claims of Kinfolk; Kennington, “River of Injustice.” 13

patriarchy and power operated in the legal system in the post-Revolutionary period.

They have shown that broader networks of patriarchal governance (in which grandfathers, fathers, uncles, brothers, husbands, close male family friends and even female family members and friends acting as representatives of their male relatives shared in the management of households and communities) began to compete more with, although it was never fully displaced by, a more narrow form of patriarchal governance in which individual men gained more power over their households and power in their communities.8

In demonstrating individual white men’s augmenting power, legal scholars have pointed to legal changes that promoted individual or private property ownership over ownership of property by a family. Property, many legal historians have argued, was crucial to this transition because property was the material basis of both political and social authority in the first few decades following the American Revolution. Property, which was once understood to be a family resource, in the post-Revolutionary period,

8 Scholars of the early republic have illustrated the transition through a variety of perspectives. Hartz, Bailyn, and Wood illustrate individual white men’s growing power through a ideological and political perceptive. Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt Brace Jovanovich, 1955); Bailyn, The Ideological Origins of the American Revolution; Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969). Klein and McCurry trace the transition by using a social, economic, cultural, and political perspective. Klein, Unification of a Slave State; Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (Oxford: Oxford University Press, 1995). Brewer has illustrated the transition through attention legal changes. Holly Brewer, “The Transformation of Domestic Law,” in The Cambridge History of Law in America Volume I: Early America (1580-1815), ed. Michael Grossberg and Christopher Tomlins, vol. 1 (Cambridge: Cambridge University Press, 2008), 288–323. 14

became increasingly thought of as an individual possession to be held and controlled by the man of the household. These historians have shown that private property became especially popular as more Enlightenment-era philosophers and revolutionary leaders began to question to the divine right of kings and their supporting aristocratic hierarchies. These fixed class system perpetuated the wealth and privileged status of a few through familial holdings. Several legal scholars of the Age of Revolutions have shown that ideas of promoting and protecting private property ownership, as advocated through the rhetoric liberal individualism and republicanism, was instrumental in

shaping both the ideology and the economies of the new nation. 9

Historians of slave law have also pointed to the growing power of white men, as representatives of the state, to police enslaved people in the nineteenth century.

However, this historiography has convincingly argued that white men’s control was not always augmented through individual control. As scholars of slavery have shown, while white southerners had deep respect for the concept of private property, judicial decisions and discussions in letters and newspapers show that they viewed slaves as a

9 For examples of influential works, see: Horwitz, The Transformation of American Law, 1870-1960; Joyce Oldham Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984); Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993); Brewer, “Entailing Aristocracy in Colonial Virginia”; Edwards, The People and Their Peace; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. Legal historians of Early Modern Europe have also noted that common and continental laws acknowledged the importance of protecting and owning property. The rhetoric of absolute property was politically and consequently legally important. For examples of recent works, see: John Brewer and Susan Staves, eds., Early Modern Conceptions of Property (New York: Routledge, 1996); Christopher Brooks, Law, Politics, and Society in Early Modern England (Cambridge: Cambridge University Press, 2009). 15

household property over which full private control may not have been possible.10 As the early republic progressed into the antebellum period, it became clear to lawmakers that enslaved people complicated the narrative of private control of property, primarily because they were fundamentally distinct from land and other forms of personal property. Enslaved people were humans. They had intelligence, a desire for freedom, and as southern governments recognized, a capacity for mobility and destruction that other kinds of property did not. As a result, southern lawmakers, sometimes begrudgingly, passed new laws to create added layers of surveillance of enslaved people and their owners. In passing this new legislation, state lawmakers invested white male slaveholders and non-slaveholders alike with more power to patrol slaves and passed new laws that incentivized community members to report on misbehaving owners as well as problematic enslaved people.

My dissertation affirms the transition from a hierarchical familial world to one that theoretically promoted individual equality of all free white men by also pointing to laws that promoted simple property ownership. But, it goes further and complicates the narrative by gesturing to historiographical arguments from slave law that claim that enslaved people were one kind of property in which white men’s collective power-not

10 See, for example: Judith Schafer, “’Details Are of a Most Revolting Character’: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana,” ed. Paul Finkelman, Slavery & the Law (Madison: Madison House Publishers,1997), 241-267.; Johnson, Soul By Soul; Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, especially 6.; Mark Tushnet, “Constructing Paternalist Hegemony: Gross, Johnson, and Hadden on Slaves and Masters,” in Law & Social Inquiry, Vol. 27, No. 1 (Winter, 2002), pp. 169-188.; Edwards, The People and Their Peace, 132. 16

individual authority grew. In weaving together two seemingly disparate historiographical arguments in legal history and focusing on the gender implications, my dissertation illustrates more fully the consequences for propertied white women and their families. My dissertation shows that some of the new laws enhanced both individual men’s control over family property (which could, and often did include enslaved people) and the authority of white men more generally, over enslaved people.

At the same time as white men’s authority over family property and enslaved people increased, women’s legal authority over these same forms of property decreased in the eyes of state law. Ironically, by shifting the nexus of power from the family-centered propertied class, which included women as important links in the maintenance of family property, to white men more generally, lawmakers risked their own family wealth.

As my dissertation explores the unintended consequences of various new legal changes along gender lines, it also contributes to conversations in women’s and gender historiography about how women and families faired in the aftermath of the American

Revolution. Scholars of gender have debated how the growing emphasis on private property affected women during the Age of Revolutions. Women’s and gender political, social, and legal historians who have focused on the writings of influential

Enlightenment-era philosophers, statesmen, as well as common law jurists, have tended to argue that women lost authority and control over property in the post-Revolutionary period. These scholars have argued that at the same time white men became “freemen,”

(that is, emblematic citizens who were the only ones legally recognized as individuals) they made those who were not “freemen”—such as women, children, and enslaved people—into dependents. Dependents lacked the same kind of legal authority and rights—especially over property. In fact, under state law, white men could claim rights not only in their property and their own labor, but also in the labor and bodies of their dependents. In sum, these historians have argued that white men qualified as freemen

through their rights over dependents who lacked these same state sanctioned rights. 11

Recent social, economic, and legal history literature on women in the early republic, has moved away from such stark gendered binaries and argued that

Enlightenment philosophies and state law did not have as totalizing an effect on the ground as it did in intellectual theory. This new work has claimed that by studying the intellectual tensions in Enlightenment texts, state statues and civil digests, political and social scholars have overemphasized the degree to which women lost control over property in the years immediately following the American Revolution. New works

11 For examples of this early approach to women and gender history, see: Nancy Cott, The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780-1835 (New Haven: Yale University Press, 1977); Mary Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (Cambridge: Cambridge University Press, 1981); Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988); Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Jeanne Boydston, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990); Cornelia Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995); Klein, Unification of a Slave State; McCurry, Masters of Small Worlds; Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996); Carole Shammas, A History of Household Government in America (Charlottesville: University of Virginia Press, 2002); Wood, Masterful Women. 18

have, instead, sought to see women as they were seen everyday by their families, communities, and by different sets of governing and legal principles. This literature has revealed that although women lived in a deeply patriarchal world, which promoted white men’s authority and ability to control some of the most valuable forms of property, they could still make claims to property, including enslaved people, and participate in economic networks. Women, like other subordinates, could employ the complicated logic of patriarchy to make claims to property by arguing that their management would benefit the patriarch’s broader family and interests. In turn, this recent literature has proved how flexible women’s relationship to property and patriarchy could be. Still, all of these recent works acknowledge that this was by no means a world without struggle. Moreover, some have even noted that a husband’s legal authority over his wife’s property was greater by the 1820s and 1830s than it had been in the years immediately following the American Revolution. And although women managed property, they still lived in a patriarchal society that touted, through its cultural narrative, the inferiority and inherent weakness of women of all races, including white.12 My work builds on this body of recent literature and examines those

12 Laurel Ulrich, A Midwife’s Tale: The Life of Martha Ballard, Based on Her Diary, 1785-1812 (New York: Alfred A. Knopf, 1990); Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784- 1860 (New York: W. W. Norton & Company, 1984); Wood, Masterful Women; Glymph, Out of the House of Bondage; Serena Zabin, Dangerous Economies: Status and Commerce in Imperial New York (Philadelphia: University of Pennsylvania Press, 2009); Ellen Hartigan-O’Connor, The Ties That Buy: Women and Commerce in Revolutionary America (Philadelphia: University of Pennsylvania Press, 2009). Chused, Brewer, and Edwards all note that 1820s and 1830s proved to be a period in which husband's authority over property was further codified in state-level law. Richard Chused, “Married Women’s Property and Inheritance 19

moments of struggle and illuminates often-overlooked legal changes that made it difficult for some propertied white women to control property.

Finally, in tracing the rise of new legal obstacles and the evolution of ideas about gender and family property, my dissertation joins a body of literature, which has begun to rethink important historiographical assumptions in relation to sectional differences in the nineteenth-century American South. My project focuses on the Carolinas and

Louisiana in order to explore how gender and class influenced power and property management in what are historiographically assumed to be three very different southern states. While both North Carolina and South Carolina were common law states, at the time under study, the two states had remarkably different reputations. South Carolina was the wealthiest slave state of the South, owing to its staple crop economy. The state also valued its close ties to England and continental Europe and worked to maintain its connections in the years following the American Revolution. Further, it boasted one of the nation’s most populated and urbane port cities – Charleston. The state also featured extreme class divisions, not just amongst free and enslaved people, but also between

Widows in Massachusetts: A Study of Wills Probated between 1800 and 1850,” Berkeley Women’s Law Journal 2, no. 42 (1986): 42-88; Brewer, “Entailing Aristocracy in Colonial Virginia”; Holly Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace. While not focused on land or enslaved people, Block also notes that husbands gained more legal authority over the property in their wives' bodies by the 1820s and 1830s, see: Sharon Block, Rape and Sexual Power in Early America (Chapel Hill: University of North Carolina Press, 2006). Although focused on an early period and in on England and France respectively, Erickson and Diefendorf found that women had greater legal access to property than the many jurist of the era depicted Amy Erickson, Women and Property in Early Modern England (New York: Routledge, 1993); Barbara Diefendorf, “Women and Property in ancien régime France: Theory and Practice in Dauphiné and Paris,” in Early Modern Conceptions of Property (New York: Routledge, 1995), 170–93.

planters and yeomen. In contrast, North Carolina was less economically developed.

While slavery featured prominently in the state’s economy, the economy was more diverse, and slavery played less of a definitive role than it did other slave states.

In some ways, Louisiana shared some similarities with the Carolinas; but, in other ways, it was markedly different. Like South Carolina, Louisiana valued its close ties to continental Europe and had a major port city – New Orleans, which grew to one of the nation’s most dense and developed cities during the period under study. But

Louisiana had a different colonial past. It was not one of the thirteen original British colonies. Instead, it was a territory that had formerly been under the dominion of the

French and Spanish and was summarily incorporated into the U.S. in the early nineteenth century through the Louisiana Purchase. Given its French and Spanish origins, the state also had a very different racial and ethnic composition than the

Carolinas. A large influx of white migrants from Haiti and their slaves during the

Haitian Revolution, along with downward migration of white men from other U.S. states in the early part nineteenth century complicated the composition of the population. Moreover, Louisiana, unlike the Carolinas, was a civil law state. Including

Louisiana in my study provided an opportunity to compare different state legal systems in the budding U.S. My dissertation’s focus on three southern states that varied legally, economically, and demographically, has allowed to me to see trends that challenge some of the longstanding historiographical assumptions about regional distinctiveness in

American history, particularly southern exceptionalism within U.S. history and

Louisiana exceptionalism within southern history.

On the broadest level, my dissertation builds on recent literature that argues that following the Revolution, southern politicians, like their northern counterparts, were reform-minded. They were not, as older literature suggests, immune to the popular philosophical currents liberalism and republicanism. In fact, they drew on the political principles of liberalism and republicanism: private property, individual rights, and a limited but theoretically democratic government that protected those rights and encouraged individual initiative. To be sure, southern lawmakers’ commitment to slavery did mean that their application of liberal principles resulted in vast political exclusion and tremendous legal inequalities. But as recent literature on gender and race has shown, those political exclusions and legal inequalities, while pronounced in the

South, were not unique to it. Northern states in the U.S., and in nations across the

Atlantic also saw growing gender and racial inequalities as their governments embraced new legal initiatives inspired by liberalism and republicanism. The South then, can hardly be categorized as exceptional, as it was indeed connected to the broader Atlantic world through its dedication to Enlightenment era ideals and its consequential similar

legal developments. 13

13 For examples of works that cast the South as exceptional and slow to embrace the tenets of liberalism and republicanism, see: David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca: Cornell University Press, 1975); Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: 22

Further, my dissertation challenges elements of the longstanding historiographical arguments that the civil law state of Louisiana, when compared to common law states in the rest of the U.S., had exceptionally liberal state laws that allowed for women to maintain more control over property. In juxtaposing the legal treatises and some of the statues of common law states to the civil codes of Louisiana, historians have traditionally argued that women property holders in Louisiana legally fared better than their sisters in common law states.14 In contrast, my dissertation argues

Vintage, 1976); Fox-Genovese, Within the Plantation Household; Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (Oxford: Oxford University Press, 1982); Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (Oxford: Oxford University Press, 1984). For works that illustrate the growing northern gender and racial inequalities in the post-Revolutionary era, see, for example: Jeanne Boydston, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic; Cott, The Bonds of Womanhood; David Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (London: Verso, 1991); Tomlins, Law, Labor, and Ideology in the Early American Republic. For works that illustrate how important intellectualism was to southerner elites, see, for example: Maurie McInnis, The Politics of Taste in Antebellum Charleston (Chapel Hill: The University of North Carolina Press, 2005); Michael O’Brien, Intellectual Life and the American South, 1810-1860: An Abridged Edition of Conjectures of Order (Chapel Hill: The University of North Carolina Press, 2010). For works that demonstrate growing southern gender and racial inequalities in the wake of the American Revolution, see, for example: Klein, Unification of a Slave State; McCurry, Masters of Small Worlds; Brewer, “Entailing Aristocracy in Colonial Virginia.” Edwards, especially, makes a very similar argument. Edwards, The People and Their Peace, 15. 14 Historians have long touted the benefits of the civil law and its effects on women’s ability to hold property in North America. For works on Louisiana more specifically see, for example: Elizabeth Warbasse, The Changing Legal Rights of Married Women, 1800-1861 (New York: Garland Publishers, 1987); Katy Morlas, “La Madame et La Mademoiselle: Creole Women In Louisiana, 1718-1865” (Masters Thesis, Louisiana State University and Agricultural and Mechanical College, 2005); Sara Brooks Sundberg, “Women and Property in Early Louisiana: Legal Systems at Odds,” Journal of the Early Republic 32, no. 4 (2012): 633–65; Holton, “Equality as Unintended Consequence.” For works that comment favorably on the benefits of the civil law and its effects on married women's ability to hold property in states other than Louisiana, see, for example: Kathleen Elizabeth Lazarou, Concealed Under Petticoats: Married Women’s Property and the Law of Texas, 1840- 1913 (New York: Garland Publishers, 1986); Joseph McKnight, “Texas Community Property Law-Its Course of Development and Reform,” California Western Law Review 8 (Fall 1971): 117–45; Susan Boyle, “‘Did She Generally Decide?’ Women in Ste. Genevieve, 1750-1805,” William and Mary Quarterly 44 (October 1987): 775–89; Donna Schuele, “Community Property Law and the Politics of Married Women’s Rights in Nineteenth-Century California,” Western Legal History 7, no. 2 (1994): 255; Angela Boswell, Her Act and Deed: Women’s Lives in a Rural Southern County 1837-1873 (College Station: Texas A&M University Press, 2001); 23

that such arguments of exceptionalism fail to account for the multiple, sometimes conflicting, legal spheres that governed women, not just the common law. In making this argument, my dissertation draws on literature in women’s and legal history that has shown that although the common law was particularly restrictive in allowing married women formal legal control over property they brought to or acquired in marriage, equity law and local legal customs were not similarly harsh.15 Equity courts were developed in England a few centuries after the birth of the common law system and provided a separate system of justice from the common law. Unlike the common law, which relied heavily on precedent, equity courts administered rulings based on principles of fairness and did not have to abide by the precedent of common law courts.

Equity courts were implemented in many of the southern states, including the Carolinas.

By the late eighteenth and early nineteenth centuries, equity courts coming out of the

English tradition had crafted a separate body of law that, among many other things, tended to recognize the different forms of separate or encumbered estates of wives (that

Jean Stuntz, Hers, His, & Theirs: Community Property Law in Spain & Early Texas (Lubbock: Texas Tech University Press, 2005); Laurel Clark, “The Rights of a Florida Wife: Slavery, U.S. Expansion, and Married Women’s Property Law,” Journal of Women’s History 22 (Winter 2010): 39–63. 15 Several historians have pointed to the protective powers of the equity courts. See, for example: Mary Ritter Beard, Woman as Force in History: A Study in Traditions and Realities (New York: The Macmillan Company, 1946); Richard Chused, “Married Women’s Property and Inheritance Widows in Massachusetts”; Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, No. 4 (October 1982): 655–85; Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986); Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace; Zabin, Dangerous Economies; Hartigan-O’Connor, The Ties That Buy. 24

were crafted through trusts or contracts) that husbands could not control.16 Moreover, as previously noted, local courts also recognized that individuals—including women and enslaved people—could possess and control property without officially owning it. So, although a growing body of state law claimed that official title to property was necessary to ensure an individual’s property ownership, local law recognized informal property arrangements. Such local governance allowed women to control property. The traditional arguments that promote Louisiana’s exceptional legal treatment of women have tended to ignore the other types of more permissive legal principles and corresponding laws that also governed women in common law states. My dissertation builds on the new literature and argues that historians of women and law in Louisiana have overemphasized the states exceptional legal nature in regards to women’s property. Instead it shows that in the early nineteenth century, white women throughout the South had similar access to property.

Moreover, my dissertation also adds that women in Louisiana also faced new challenges to the legal authority over property as the early nineteenth century progressed. It shows that while Louisiana certainly held tight to a civil law system for property, the state also adopted many “American” legal and social features that

16 Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 657; Salmon, Women and the Law of Property in Early America, 81-119; Brewer, “The Transformation of Domestic Law, ”317–18; Moreover, Shammas contends that Equity law drew on principles that were in some respects similar to the Roman law of Continental Europe. Carole Shammas, “Re-Assessing the Married Women’s Property Acts,” Journal of Women’s History 6, no. 1 (Spring 1994): 10. 25

expanded white male authority at the expense of white women and enslaved people.17

Under American governance, Louisiana state lawmakers, like lawmakers in the

Carolinas, passed laws that while aimed at building a more uniform body of simple property laws, ended up jeopardizing women’s authority over property, when their authority was legally challenged.

My methodology involves combining social, intellectual, and legal history to understand gender and property negotiations both in and out of the courts to ultimately uncover the larger symbolic meaning of these experiences. Borrowing from sociolegal and intellectual historians before me, I explore the reasons why people brought legal charges and the consequences of judicial decisions. In doing so, my project considers both the power of law and ideology in determining and enforcing gender and class hierarchies.

Using a broad range of legal records and other materials from the major port cities of Charleston, South Carolina and New Orleans, Louisiana, as well as their environs, and all throughout North Carolina, my work situates the legal and extralegal cases involving propertied women in their larger context and explores the relationship between gender and property throughout the varied legal and social systems of the

17 Legal historians Schafer and Morris have shown that after Louisiana came under American control, state lawmakers appealed more of the French and Spanish laws that were meant to protect slaves and replaced them with laws that imbued white men with more power over enslaved people. Judith Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1997); Thomas Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina Press, 1999). 26

South. I examine the relationship between gender, power, and property through multiple and often blurring spheres of law in all three states and their accompanying sources, which include: state law—in the form of statutes, digests, slave codes, and appellate decisions; local law—in the form of civil and criminal suits initiated at the district or parish level, wills, marriage contracts, conveyances, and even petitions; and extralegal law—in the form of community gossip and mob violence—which was covered by newspapers, travel literature, and personal correspondence. Newspapers, travel literature, and personal correspondence, memoirs, along with census records and family papers also help me to better recreate the social environments in which challenges were brought against propertied women.

I collected these sources from multiple archives across the South, as well as from new bourgeoning online databases. The bulk of my records came from the South

Carolina Department of Archives and History in Columbia, South Carolina; The South

Carolina Historical Society located at the College of Charleston in Charleston, South

Carolina; the North Carolina State Archives, in Raleigh, North Carolina; the City

Archives in the Louisiana Division of the New Orleans Public Library, The Historic New

Orleans Collection in the Williams Research Center, the Howard-Tilton Memorial

Library of Tulane University, the New Orleans Notarial Archives Research Center, and the Louisiana State Museum Historical Center, all located in New Orleans, Louisiana. I reviewed hundreds of criminal records—which ranged from nearly complete case

records, to indictments only, to simple notations in criminal court minute books.

Criminal records from the early nineteenth-century New Orleans were in particularly short supply. Natural disasters, jurisdiction changes, and lost records meant that for the years under study, the only available criminal records for New Orleans were from 1807-

1812 and 1830-1835. Even these records are incomplete. The criminal records from 1807-

1812, of which there are only about two hundred and forty, tend to be about one to three pages in length. There are a few notable exceptions, namely for crimes of insurrection committed by enslaved people. These case files were longer and more detailed. The records from 1830-1835 are the criminal court of the First Judicial District (Orleans

Parish) Minute Books, which only contains the case title, the charge, the number of times the defendant appeared in court, and generally the outcome of the case. But it does not contain testimony, the names of witnesses, or any substantial details about the case.

Generally, the local criminal records I reviewed from the Carolinas were more complete.

Although, the majority of these records were also only a few pages in length and maddeningly spare in their details. Upon viewing hundreds of criminal court cases, the majority of which were related to crimes that have been studied at length (i.e. assault and battery, larceny, and robbery), I became interested in the rare and less studied crimes—namely crimes derived from slave codes that were used to charge whites, and often white women. But the local cases, being few in number and brief in description,

provided only the starting point for research. Memoirs, family papers, and personal correspondence provide additional insight into local these conflicts.

To situate my anecdotal findings, I also conducted census research for districts in

Charleston, South Carolina and New Orleans, Louisiana. Census records from these two cities allowed me to see a broad overview of how women’s relationship to property was changing in the beginning of the nineteenth century. Early in the research process, I chose to compare the census data for these two sites both because of their similarities as important booming port cities and because I found multiple instances in which white women and, in some cases, white men, were challenged for mismanagement of enslaved people by men outside of their families. Seeing these unusual charges led me to wonder if these cases might be symptomatic of broader social changes. I focused on the districts in which the women who were charged lived and conducted a sampling of over 600 random entries to see if the number of white female-headed households and white female-headed households owning slaves changed over time. I found a slight decline in both cities between 1820 and 1850. The decline is explored in greater detail in chapters four and five. Where possible, I also used census records to determine if complainants in the cases were neighbors, and, if so how their wealth might compare to the defendants by assessing the number of slaves they owned in both in decades surrounding the

accusations.18 These records provided an overview of women’s changing relationship to property.

Undoubtedly, some of the most useful sources came from published materials.

From a research position, the benefit to studying conflicts amongst the propertied class, is that members of the propertied families often left a paper trail. They left behind documents ranging from private papers to published manuscripts in which they shared their opinions on local trends and conflicts, particularly when it involved their family, acquaintances, or property. These sources best illuminate the concerns of state lawmakers and the elite who saw their propertied female family members and friends struggle with some of the very laws they helped create.

Opinions relating to property conflicts appear not only in memoirs and family papers, but also in legal digests, in the reasoning and opinions of appellate cases as recorded in the judicial reports, governor’s papers, and the travel literature. Legal digests and the reasoning and opinions written by judges show almost exclusively the opinions of the propertied class, as nearly all state-level judges in the area and period under study were members of the propertied class. Published biographical sketches of members of the bar confirm their status.

18 Of note: I did not conduct a broad sampling of census records, to see how the number of female-headed households and female headed-households owning slaves changed over time in North Carolina because I did not find the same kinds of criminal cases in this state. Admittedly, however, much more research is needed, as I really only focused on one county’s criminal records in this state. 30

Although written by outsiders, travel literature also often contains the opinions of the propertied class on local gendered property conflicts. Those who wrote and published travel literature were almost all members of the propertied class themselves.

European travelers frequently stayed, as invited guests, in the homes of propertied slave-holding southerners. Although, they were not slaveholders themselves, these visitors were curious about local conflicts, especially as they related to slavery. They frequently recorded the opinions of their hosts and the broader local gossip in their writings.

Travelers and lawmakers from more northern parts of the U.S., who entered the

South to perform jobs also wrote about local conflicts, especially as they related to the management of the slave economy and, in Louisiana what they saw as “anti-American” tensions. As Louisiana had previously been a territory, controlled by French and

Spanish governments, lawmakers, such as Governor William C.C. Clairborne, state

Supreme Court judges (who were appointed by Claiborne), and generals were sent to oversee the conversion of the formerly French and Spanish territory to an American state. Letters and travel literature from these men reveal that the transition was not always seamless. By using a wide range of sources and by comparing different southern states, my dissertation provides fresh insights into the relationship between women, families, property and law in the wake of the American Revolution.

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“Propertied White Women, Family Property, and Governance in the Post-

Revolutionary South,” is divided into five chapters and moves in a roughly chronological order. Chapter one begins on the ground and focuses chiefly on women’s and their families’ formal legal control and informal access to land. I begin by focusing on their access to land because during the eighteenth and very early nineteenth centuries, landownership in the Carolinas and Louisiana constituted the basis of political authority at the state level, and on a social level, also helped to determine local power. This chapter shows that in the late eighteenth and early nineteenth century

Carolinas and Louisiana, membership in powerful families, more than gender, determined whether an individual could access land. Women’s management of real estate played an important role in keeping land within families and thus helping their families remain powerful. Chapter two then takes a “top-down” approach and shows that as the eighteenth century progressed into the nineteenth century state lawmakers in the Carolinas and Louisiana, like many of their counterparts across the nation, gradually implemented a new economic and legal order that promoted individual ownership of land over formal control of land over familial control of land. In restructuring the legal order, lawmakers disrupted former networks of power and property management. The emphasis on individual landownership was connected to state leaders’ efforts to solidify the relationship between the state and a broader base of white male property holders and thus political participants. Political leaders then went a step further and changed

state laws to give individual landholders more authority over their land than they had enjoyed under the British Crown. In providing individuals more authority over their land, lawmakers essentially converted land from a unique asset that tended to remain in the hands of the same family for generations, into a commodity that could be easily transferred and put to its most economically efficient use. Consequently, as lawmakers liberalized property laws, the more general concept of wealth, as evidenced by tax payments on real and personal property, began to displace landownership as a prerequisite for suffrage and political participation. States also decreased the amount of wealth necessary to vote and hold office, which indicates that although white maleness still mattered, wealth became a less important prerequisite for political participation and public governance.

Chapter three shows that as lawmakers in the Carolinas and Louisiana made legal reforms to expand southern white men’s rights to participate in political governance and in the economy, they also granted these men with more authority over family property. Lawmakers continued to change laws governing trusts and estates. A series of new state-level laws helped household property attach more easily to husbands than it did to wives. When state lawmakers initiated such legal reforms, however, they did not always intend to curb wives’ property rights. Instead, they intended such reforms to promote the uniformity of laws and contracts and encourage the creation of a more industrious society. But in passing and interpreting laws aimed at building a more

streamlined and organized slave-based society, legislators and judges created a body of state law that could jeopardize a married woman’s control over family property, especially when that control was challenged by her husband. White men’s expanding political and legal authority had a cultural component as well. Their power both reinforced and was reinforced by cultural narratives that further promoted a husband’s ownership of family property at the expense of a wife’s ownership of family property.

Chapters four and five continue to show the implications of the new legal order by examining moments of contest that appeared before criminal courts and, in some cases, were punished through extra legal channels. Chapter four focuses on South

Carolina, because of its large slave population and deep class tensions. It shows that local communities petitioned for the passage of new state-level slave codes that expanded local authority to police enslaved people. Much to the chagrin of state lawmakers, community members, particularly white men, gained new tools to challenge the authority of problematic slaveholders, including women. Chapter Five explores how a rash of creole women in Louisiana became caught up in governing and property disputes involving enslaved people. The chapter shows how imposition of a new

American form of government in the state jeopardized the old networks and the authority of the French, Spanish, and white creole population, a population that collectively identified themselves as the ancienne population and viewed themselves as distinct from their new American neighbors. The conflicts among Americans and the

ancienne population were not always limited to men. During this time, a number of white creole women became caught up in governing and property disputes. Such women of the ancienne population were seen as problematic because they were often connected to threatening men of the ancienne population and exercised a high degree of control over area property and continued to make claims to property in a time when property granted men more rights (chiefly voting and office holding capabilities) than the same property could grant to women. It argues that cases in which white creole women are accused of property mismanagement, say more about American and creole men’s anxiety over their own authority than they do about women’s ability to manage property.

My dissertation concludes by drawing on a large body of literature which shows that by the late 1830s, southern state legislators began to pass new legislation to protect propertied white women’s control over their property in enslaved people in the form of

Married Women’s Property Acts. Economic downturns and early women’s rights movements made several state lawmakers—including judges and legislators—realize that laws that helped augment white male authority over household property could have detrimental effects for the whole household. Ironically, to address pressing concerns about the broader family’s financial well-being, early women’s rights activists and some politicians of the era appealed to the same framework of individual property rights that had, in part, been responsible for augmenting white men’s power over

property. Politicians and women’s rights activists asked legislators to extend more individual property rights to white women. Certainly, the Married Women’s Property

Acts did not solve all or even address the range of social and legal issues that arouse when white propertied women—married or single—saw their authority challenged. But,

I argue their development does reveal that white lawmakers recognized that the legal system they built indirectly and unintentionally jeopardized their own wealth, as they made it more difficult for women of their same class to retain formal control over their property, when their control was disputed.

Chapter One: Propertied White Women and Family Estates in the Wake of the American Revolution, 1776 to 1812

Following the death of her husband in 1808, Nanette Prud’Homme Duparc and her children jointly inherited a newly constructed Louisiana sugar plantation situated on a coveted tract of land on the Mississippi River. Nanette’s husband, Guillaume Duparc, had received much of the family’s land in 1804, shortly after the Louisiana Purchase, through a generous federal land grant from the new United States. A family memoir indicates that then President Jefferson had seen to it that Guillaume Duparc received the prime tract because Duparc was a seasoned military official who had aided the

Americans in the Revolutionary War and because he was married to Nanette

Prud’Homme Duparc, a woman from one of the most powerful and influential creole families in the area.1 Like many in Louisiana, however, the couple still identified as

French and were highly skeptical of U.S. governance and their new American countrymen. By giving Duparc this valuable piece of land on the Mississippi, Jefferson

1 Here, the term creole refers to white descendants of the French and Spanish who were born in what would become Louisiana. Many early nineteenth century propertied Louisiana families who saw themselves as distinct from their Anglo-American counterparts employed the term. Several other historical subjects and historians studying this era have also made this distinction. See, for example: Harriet Martineau, Retrospect of Western Travel, vol. 1 (New York and London: Sauders and Otley, 1838), 263; Stanley Clisby Arthur, Old New Orleans: A History of the Vieux Carré, Its Ancient and Historical Buildings. (New Orleans: Harmanson, 1936), 5–6; Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album (Vacherie: The Zoe Company, 2001), 122; Paul Lachance, “The Foreign French,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 122; Joseph Tregle, Jr., “Creoles and Americans,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 140. 37

hoped to win favor and ensure Duparc’s and his family’s allegiance to the young and still vulnerable United States. Recognizing the valuable asset he had, Guillaume Duparc, like many men throughout the South, wanted to ensure that the land and the nascent plantation built upon it remained in the hands of his family. To ensure this, he wrote a will in which he left the plantation to his wife and children. Upon his death a few years later, Nanette Prud’Homme Duparc and her children assumed ownership of the plantation. Within a matter of years, Nanette Prud’Homme Duparc turned the fledging plantation into one of the area’s largest and most profitable businesses. Like her husband, she also took care to ensure that the plantation stayed in the family for subsequent generations. 2

In the late eighteenth and early nineteenth century South, membership in powerful families, more than gender, determined whether an individual could access land and the enslaved people that planters exploited to make such land productive.

Propertied white women had access to land and enslaved people because they were representatives of their families and vital to the larger patriarchal project of keeping familial wealth preserved for generations.3 Although French, Spanish, and creoles living

2 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 118–19, 122–23; See, also: Katy Morlas, “La Madame et La Mademoiselle: Creole Women In Louisiana, 1718-1865” (Masters Thesis, Louisiana State University and Agricultural and Mechanical College, 2005), 54. 3 Recent work in European history emphasizes women’s control of land through familial connections and varying legal devises, see, for example: Amy Erickson, Women and Property in Early Modern England (New York: Routledge, 1993); Barbara Diefendorf, “Women and Property in Ancien Régime France: Theory and Practice in Dauphiné and Paris,” in Early Modern Conceptions of Property (New York: Routledge, 1995), 170– 93. New works in Spanish and British colonial North America and the early republic have found similar 38

in Louisiana perceived themselves as distinct from their American countrymen, when it came to female family members’ ability to control property, those familial networks operated in nearly the same way across the South. The Carolinas’ and Louisiana’s less developed body of state property law created room for many of these women to maintain some degree of formal legal control over their family’s estates. Land in particular, was considered by southern state property laws and by statesmen to be a family resource, rather than an individual resource to be controlled by one person. To be sure, women were generally seen as secondary to men of their same station. But many southern families and state officials acknowledged women as valuable managers of family land. Moreover, in the early years of the new republic, state officials also recognized that women’s service to their families had positive ancillary effects. Women’s management of land could also help connect influential families to the new republic.

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patterns, see, for example: Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Hagler Minter (Athens: The University of Georgia Press, 2013), 19–44; Gregory Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought (Chicago: University of Chicago Press, 1997); Cara Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina,” The Journal of Southern History 63, no. 2 (May 1, 1997): 239–68; Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” The William and Mary Quarterly 54, no. 2 (April 1997): 307–46; Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York: W. W. Norton & Company, 1984), 54–86; Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, No. 4 (October 1982): 655–85; Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986); Linda Sturtz, Within Her Power: Propertied Women in Colonial Virginia (New York: Routledge, 2002); Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 72–73, 157–59; Sara Brooks Sundberg, “Women and Property in Early Louisiana: Legal Systems at Odds,” Journal of the Early Republic 32, no. 4 (2012): 633–65. 39

Women’s direct service to their families and indirect service to their governments was hardly an innovative phenomenon in the early republic. Historians have shown that for centuries prior, women living in what would become known as the American South, played an important role in securing and managing land, for both their families and their government.4 During the colonial era, practices of granting land often favored men who undertook special services for varying European empires. 5 These practices of awarding colonial lands to favored men also created a space for women. Female colonists from different European empires often received opportunities to manage and control land that had originally been deeded to men in their families by representatives of the crown.

New literature on Spanish Florida has pointed to St. Augustine as a site where women’s control of land was not just important to their families, but also to Spain’s imperial project. This literature has shown that in St. Augustine, it was the brides, not the grooms who often provided land and homes for their family. Reliance on women for

4 See, for example, the works of: Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996); Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina”; Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida.” 5 The special services varied. Great Britain, France, and Spain all granted land to different investors who hoped to find or cultivate riches in the New World and claim territory on behalf of the metropoles. Governing officials from Great Britain, France, and Spain also granted soldier-settlers or settlers and their families more generally with land in their respective North American colonies. By granting land to soldiers and settlers the British, French, and Spanish empires all hoped to prevent competing European colonizers from encroachment on their lands. British, French, and Spanish officials also granted land to powerful or well-connected men in their metropoles, who might later travel or send family to claim the lands in North America. Peter Charles Hoffer, The Brave New World: A History of Early America (Baltimore: John Hopkins University Press, 2006), 285, 323. 40

homes was, in part, a pragmatic response to the number of landless men. In the late seventeenth century, Spanish soldiers began to arrive to in Florida. St. Augustine was as a crucial military site as it helped the Spanish protect sea lanes used by their fleets transporting silver from Mexico and Peru. When single, landless Spanish soldiers arrived in St. Augustine to manage the outpost, eligible Spanish women could provide these men a marriage and a home. In return, grooms could provide their brides with a soldier’s salary. It then became custom for Spanish women in St. Augustine to pass land on to their daughters, which simultaneously helped support their family for multiple generations and helped keep connections to the empire strong. 6

British women in the Carolinas also played a role in maintaining land for their families, and indirectly, the Kingdom of Great Britain. Historians have shown that female planters in the Carolinas often gained opportunities to manage family land and accompanying plantations. These women served both as helpful managers while male relatives were living and as crucial links in the chain of inheritance when they died.7 For example, in 1739, George Lucas left his seventeen year-old daughter, Eliza Lucas, to

6 Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida.” Of note: Parker argues the choice of St. Augustine brides to identify themselves as Spanish was just that, a choice. St. Augustine’s female population was almost exclusively born in the Americans, descending from the earliest settlers. In St. Augustine’s earliest years, its sex imbalance among the Europeans led soldiers from Iberia to take wives among the Christianized Native American women. Nevertheless, the Euro-American population came to define itself as Spanish, not mestizo. The decision of these women to identify as Spanish points to the importance of identifying with European metropoles in the age of empires. 7 Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina.” 41

manage her family’s three large plantations near Charleston, South Carolina after he was called away on business for the British army. The Lucas family, who had long been involved in colonial business ventures for the British Crown, originally obtained a large portion of their Carolina plantations through connections to the Lord Proprietors of the

Carolinas in the late seventeenth century.8 John Lucas, Eliza’s grandfather, was the first

Lucas to acquire the Carolina land. After his death, John passed the estate to his son

George, who later turned the land and plantation management over to his daughter

Eliza, first while he was away on business, and then as an inheritance after his passing.

Eliza then passed the land onto her sons when they came of age. Eliza’s management was helpful not only to her own family, but also to the Kingdom of Great Britain. Her management allowed her father to continue his service to the British military and simultaneously kept land in the British colony of South Carolina productive and supervised by a British family. Moreover, Eliza is widely credited with pulling the colony out of an economic slump by helping to diversify the region’s economy. Planters in the colony had typically grown and exported rice. But in the 1740s, rice experienced a massive depression. While managing her father’s plantations, Eliza began to experiment with different crops, and discovered a way to successfully cultivate indigo. Her of introduction of commercialized indigo to the region helped revive the economy because

8 King Charles II had originally granted the Lord Proprietors of the Province of Carolina the British colonial lands as reward for helping him regain the throne. Hoffer, The Brave New World, 285, 323. 42

indigo was the most widely used dyestuff in the eighteenth century European textile industry. When the colony began to produce indigo, it became the principal supplier to the British textile industry.9

The practice of granting land to white men who undertook special services for their government, like Guillaume Duparc, extended into the new nation’s early history, even as federal and state officials replaced foreign crowns. Not surprisingly, however, many of the men and families who received large federal and state land grants in new

American republic had come from landed families with vestigial connections to formerly occupying empires, such as Great Britain, France, and Spain. Historians have shown that often these men had participated in the American Revolution either as revolutionaries or as allies to the revolutionaries. In the Carolinas, several propertied men participated in the Revolution as leaders in the rebellion against Great Britain precisely because they wanted more control over the land than they had inherited or

9 For more information Eliza Lucas Pinckney, South Carolina’s indigo production, and the colony’s connection to the broader Atlantic economy see: Harriott Horry Ravenel, Eliza Pinckney (Cambridge, MA: Charles Scribner’s Sons, 1896); Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition,” University of Virginia Press, accessed June 2, 2015, http://rotunda.upress.virginia.edu/PinckneyHorry/; Eliza Layne Martin, “Eliza Lucas Pinckney: Indigo in the Atlantic World,” Center for World History, University of California Santa Cruz, accessed August 1, 2016, http://cwh.ucsc.edu/SocialBiog.Martin.pdf; David Coon, “Eliza Lucas Pinckney and the Reintroduction of Indigo Culture in South Carolina,” The Journal of Southern History 42, no. 1 (1976): 61–76; John McCusker and Russell Menard, The Economy of British America, 1607-1789 (Chapel Hill: University of North Carolina Press, 1985); Joyce Chaplin, An Anxious Pursuit: Agricultural Innovation and Modernity in the Lower South (Chapel Hill: University of North Carolina Press, 1993); R. C. Nash, “South Carolina Indigo, European Textiles, and the British Atlantic Economy in the Eighteenth Century,” The Economic History Review 63, no. 2 (2010): 362– 92. 43

gained under British rule.10 In what would become the state of Louisiana, several men had acted as allies to American revolutionaries, not necessarily because they believed in the American cause, but because they represented the French and Spanish empires that wanted to weaken the British empire by jeopardizing their colonial holdings in North

America.11 Regardless of their motives, these revolutionary participants were frequently rewarded with land titles in the new republic.12 For instance, in the Carolinas, Eliza

Lucas’s sons, Charles Cotesworth Pinckney and Thomas Pinckney had both participated as revolutionary leaders in the rebellion against the British. Subsequently, they both became political leaders in the new state of South Carolina. They later ensured that the state granted them titles to the land they inherited from their mother, which had originally been granted to their maternal great grandfather from the original British

Lord Propitiators of the Carolinas, as well as new land in the state.13 In Louisiana, although Guillaume Duparc did not originally come from a landed family in the region, he had married into one. Nanette Prud’Homme came from a powerful white creole

10 Rachel Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760- 1808 (Chapel Hill: The University of North Carolina Press, 1990); Laura Edwards, “The Contradictions of Democracy in American Institutions and Practices,” in Re-Imagining Democracy in the Age of Revolutions, ed. Joanna Innes and Mark Philp (Oxford University Press, 2013), 40. 11 Larrie D. Ferreiro, Brothers at Arms: American Independence and the Men of France and Spain Who Saved It (New York: Alfred A. Knopf, 2016). 12 “Plats for State Land Grants, 1784-1868,” SCDAH, accessed May 5, 2013, http://www.archivesindex.sc.gov/onlinearchives; “Papers of the Original Claimants, 1777-1851; First Board of Land Commissioners; U.S. Recorder of Land Titles, Record Group 951”, Missouri State Archives, Jefferson City, accessed June 7, 2014, https://www.sos.mo.gov/CMSImages/Archives/resources/findingaids/landcomm/rg951-1.pdf. 13 “Plats for State Land Grants, 1784-1868.” 44

family who traced their roots in the Louisiana territory back to 1699 and had ties to the

French Crown. Nanette was a descendent of the court physician to the French King

Louis XV in France and her father had held the position of “king’s doctor” at the old

French military post of Fort St. Jean-Bapiste, which is now where Natchitoches,

Louisiana stands. This noble connection ensured the Prud’Homme family social standing in Louisiana under both French and Spanish rule. Nanette’s family’s connections also helped ensure that the land they acquired under French rule remained their land under American rule. Moreover, as previously noted, her propertied family’s position, in addition to Guillaume Duparc’s service to the Americans during the

Revolutionary War, won the couple more land under American governance.14

State and federal land grants were extremely important to governments and the inhabitants of the new republic, much as colonial land grants had been to European empires; except, in the new republic, landownership gained new importance to settlers.

Land ownership retained its traditional British political characteristics as the sole source of franchise and office, but experienced some ideological modification as well. In the early years of the new republic, landholders were now considered to possess the economic self-sufficiency and physical independence needed to exercise the individual liberty essential to a republican government. Political leaders expected that ownership of

14 Although originally born in France, Guillaume Duparc had served France’s ally Spain in supporting the thirteen colonies in their rebellion against Great Britain. He had also served as Spanish colonial Commandante of the Pointe Coupée post in what would become Central Louisiana. Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 12. 45

a tangible piece of immovable property would simultaneously promote economic self- sufficiency and social attachment to local communities and thus lead recipients to become the virtuous citizens who were necessary to the maintenance of the republic. By facilitating land ownership, political leaders believed they could both populate their new nation and legitimate their new authority by connecting inhabitants to their new republican governments.15

Still, not every landholder was deemed a virtuous citizen. Women who owned land in their own name still could not vote or hold office. Nonetheless, many men still considered their female family members important to maintaining and operating their real and personal estates, even though popular ideology and even legal documents, such as the 1808 Digest of the Civil Laws Now in Force in the Territory of Orleans, declared that

15 Legal historian Christopher Curtis considers the importance of landholding in the new republic at length. See, Christopher Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion (Cambridge: Cambridge University Press, 2012). But land and its importance to republican leaders has long been noted in the historiography. For traditional works, see, for example: Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt Brace Jovanovich, 1955); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1967); Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969). Of note: Much of the land of young U.S. was disseminated through two types of land grants in the new United States: those granted by the federal government and those granted by state governments. After the American Revolution, the lands that had been claimed by the colonies were ceded to the federal government. In return the federal government allowed those former colonies, now states, to retain the land in their borders. These states became known as “state land states.” The Carolinas, for example, were state land states. Grants differed slightly for the lands that were accumulated after the war, through for example, the Northwest Ordinance and Louisiana Purchase. The lands west of the Appalachian Mountains lay within the jurisdiction of the federal government and became known as “The Public Domain.” In what would become the state of Louisiana, the federal government granted land to individuals. First the U.S. Congress did so directly. Then, in 1805, Congress set up a Board of Land Commissioners, which heard claims through the form of a petition from those individuals who had received land from the French or Spanish governments in the Territory of Orleans and District of Louisiana. States that were later created out in the area of the “Public Domain” became known as federal land states. When Louisiana became a state in 1812, it was federal land state. 46

women were “by their sex alone, rendered incapable of various civil engagements and functions.”16 Male land surveyors and politicians worked to ensure politically and socially connected women could gain access to land through land grants. In the

Carolinas and in Louisiana, female petitioners, acting as representatives of their families, received land from both state land grants and federal land grants. The claims of female family members were the same as those of male family members, in the sense that real estate, however acquired, would enhance the family’s wealth, which could then pass to family descendants and provide more opportunities for male family members to participate in state politics.17 While women made a smaller number of petitioners than men, their claims were not insignificant. For example, in Charleston, South Carolina,

16 The 1808 Digests proclaim from the outset that “Article 1 - The sex alone which distinguishes men from women, establishes some essential differences between them, with respect to their civil, social and political rights… Article 2- Whilst men are capable of all kinds of engagements and functions, unless disqualified by reasons and causes applying to particular individuals only, women are, by their sex alone, rendered incapable of various civil engagements and functions; thus, for example cannot exercise offices of magistrate or representative, nor have they a right to elect or to be elected representatives of the people.” A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government (New Orleans: Bradford & Anderson, 1808), 2. For secondary literature on women’s “natural” subservience in popular ideology, see for example, Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs. New scholarship has shown that North American women from the colonial period to the early nineteenth century have used connections to powerful male relatives to enter into local markets to conduct business in the form of services and sales in order to help support or grow their family’s wealth. In addition to Serena Zabin, Dangerous Economies: Status and Commerce in Imperial New York (Philadelphia: University of Pennsylvania Press, 2009); Ellen Hartigan-O’Connor, The Ties That Buy: Women and Commerce in Revolutionary America (Philadelphia: University of Pennsylvania Press, 2009); see also works like Laurel Ulrich, A Midwife’s Tale: The Life of Martha Ballard, Based on Her Diary, 1785-1812 (New York: Alfred A. Knopf, 1990). Less historiographical attention has been paid to women who used these connections to gain access to land, but they did gain access. 17 Parker makes a similar point, see specifically: Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida,” 19, 21, 38. 47

about forty female petitioners gained over thirteen thousand acres of land in and near the city alone from 1790 to 1813.18

Many of the female recipients relied on family connections when making claims and records suggest that some, if not most, of these women received land grants because of their familial connections to powerful men. Sometimes female petitioners’ connections to men in their family were clear. For example, Mary Hughs received two different tracts of land, one of 286 acres on July 2, 1795 and the other of 201.75 acres on

July 3, 1795, on the Edisto River that cut through Charleston District, Barkely County and St. George’s Parish. On July 2, 1795, in the same region, Calib Hughs received 500 acres.19 Because the two Hughs made claims to land in the same area and at the same time as each other, their holdings likely represented a family estate in which either Mary

Hughs or the family collectively thought it best that she own land in her own name.20

In other cases, the connections of female petitioners to influential patriarchs have been lost to time. For example, in South Carolina, Ann Parsons and Penelope Ray successfully petitioned for 990 acres and 500 acres in their own names respectively, but their broader patriarchal connections are not clear.21 Unlike the case of Mary Hughs,

18 Some of these land grants may not have been new land that was granted by the state to individuals. Rather, the grants may have been awarded to individuals who already had connections to the land as previous recipients of British land grants. But the records do not always make distinctions between individuals who had already settled the land and those individuals who were new recipients. “Plats for State Land Grants, 1784-1868.” 19 Mary Hughs, Ibid.; Calib Hughs, Ibid. 20 Ibid. 21 Ann Parsons, Ibid.; Penelope Ray, Ibid. 48

these women’s names in property records are not listed near a man with the same last name. There are several possible explanations for why such women were granted land.

The first, and most likely, is that these women were either daughters, sisters, or widows of powerful men in the community, but those connections are not visible in the records because the men did not make claims to property at the same time these women submitted petitions. Those connections might also be difficult to trace because the women had different last names from their fathers, brothers, or even deceased husbands. Most of the South Carolina state land grants that do list female claimants fail to include any title that would denote marital status, such as “Miss,” “Mrs.” or

“Widow.” It is also possible that these women may have been reputable women in the community and therefore able to make claims to land without the immediate oversight a familial patriarch. Instead, land commissioners may have assumed that the community would help look after her and her land because of her high status.

Title traditions in the Louisiana Territory made women’s familial connections more obvious. Of the female petitioners, widows especially comprised a significant portion of land recipients. For many propertied widows in the early nineteenth century, even though they were technically single, they were not necessarily disconnected from power. In fact, in addition to their husband’s estates, recent literature has shown that

propertied widows typically also inherited their husband’s privileged positions.22 Many widowed women relied on the connection to their deceased husband to validate their claims to land they inherited and wanted recognized.23 Upon her husband’s death, a widow and her community often jettisoned her title “Mme.” or “Mrs.” and replaced it with “widow” or “veuve” (French for widow) or “vve” (the abbreviated version of veuve). Even widows who changed their last names after their husband’s death, because they remarried or reverted to their maiden names, made sure to use the name of their deceased husband on their petitions if his name brought more leverage than her new name. For example, in 1798 one successful petitioner, Sarah Ruddell received 240 arpents on lake St. Francis. She is recorded as “Sarah Ruddell (widow of Nicolas

Auger).”24

In the late eighteenth century North Carolina, family petitions and ownership of land are even clearer in the state land grants. Individuals, including some women, did make claims to land in North Carolina. But families also did so, and families were

22 See, for example: Kirsten Wood, Masterful Women: Slaveholding Widows from the American Revolution through the Civil War (Chapel Hill: The University of North Carolina Press, 2004); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge: Cambridge University Press, 2008). 23 Louisiana Territory land grants reveal that successful women petitioners were almost exclusively widows. “Papers of the Original Claimants, 1777-1851; First Board of Land Commissioners; U.S. Recorder of Land Titles, Record Group 951.” 24 1 arpent equals about .84 acres and 1 perch equals about .004 acres. Sarah Ruddell (Widow Nicolas Auger), Ibid. Interestingly, in the Louisiana Territory, widows were not the only ones to make their connection to powerful male relations clear when petitioning for and successfully receiving land. Sons did so as well. Henry Bollinger, for instance, noted that he was the “son of John” when he claimed 957 arpents and 79 perches in 1806. His framing that points to the power of family connections in the case of land aggregation even for men. Henry Bollinger, Ibid. 50

identified as just that—as families. Just over 300 families made successful petitions for land, ranging from 1 to 5,850 acres. Most of the claims were made in the 1780s, with the land issued to the family in the mid-1790s, in counties including Yancey, Sampson,

Wilkes, Tyrrell, Wake, and Union. These family claims are remarkable because individual family members are not listed in the indices. In addition, in a few cases multiple families made a claim to land collectively. For instance, the Allen family,

Dickinson family, and Collins family all appear together when making a claim to land in

Tyrell County.25 The ability for a family or multiple families to make a claim to property suggests that in the late eighteenth century, conceptions of property ownership did not just favor the individual. While individual property ownership was still more common, the nascent state of North Carolina still embraced the concept that land could be held by a family or a network of families.

Although national and state leaders in the new U.S. granted new land to, or recognized previous holdings of, several locally influential men, women, and families in order to enhance governing authority, loyalties to the new state and national governments were mixed. While many former British subjects in the Carolinas, like the descendants of the Lucas family, had readily embraced U.S. rule, several of the formerly

French and Spanish subjects in Louisiana Territory, like the Duparcs, were more hesitant

25 David McCorkle, “North Carolina Land Grant Images and Data” NCDAH, accessed April 4, 2014, www.nclandgrants.com. 51

to accept their new government and countrymen.26 In this era, geopolitical tensions among empires, like those of France and Great Britain, bred social antagonisms even in remote lands. French and Spanish bitterness toward the British and their descendants continued to exist on American soil even after the authority of the old empires began to fade.

Records from the late eighteenth century and the early nineteenth century demonstrate a mutual distaste between the descendants of the French and Spanish in

Louisiana and the new Americans. These tensions, however, expressed themselves in different and sometimes complicated fashions. Many of the French, Spanish, and their creole descendants living in what would become Louisiana still saw themselves as different for a few reasons. To begin with, unlike the Americans, the French and the

Spanish in Louisiana had not rebelled against their respective Crowns. In fact, as will be further explored in chapters two, three, and five, many championed their respective empires. 27 Also, although the French and Spanish had shared an uncomfortable alliance with the Americans from the formerly rebellious colonies, their support for the

Americans had largely been indirect. They did not champion the American cause, but

26 A wide range of literature has illustrated white men’s’ varying degrees of allegiances to the new republic. This literature also notes that enthusiasm for the new federal and states government, then, much like now, varied greatly depending on broader political, economic, and social trends. For some recent literature, see, for example: Klein, Unification of a Slave State; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion; Edwards, “The Contradictions of Democracy in American Institutions and Practices”; Lachance, “The Foreign French”; Tregle, Jr., “Creoles and Americans.” 27 See for example, Lachance, “The Foreign French”; Tregle, Jr., “Creoles and Americans.” 52

rather supported the Americans chiefly to hurt the British, who was a mutual nemesis.28

When the French empire handed their Louisiana land over to the United States, their settlers continued to articulate a disdain for their new American neighbors and were hesitant to embrace their new forms of governance. Moreover, the French and Spanish were hesitant to surrender the comfort of those profitable existing networks, which had provided them social and business security. 29 Many Americans also conceived of themselves as distinct from the French, Spanish, and creoles to their South. They called the new Southern neighbors “hot blooded,” “lazy,” and “incapable business men.”30

Although this tension may not have been a clear-cut British and French/Spanish rivalry, the “anti-American,” “anti-French,” and “anti-Spanish” sentiments would later be rearticulated as tensions between the “ancienne population” (who were comprised of the

French, Spanish, and creoles) and “Americans.”31

Despite Jefferson’s efforts to win over the ancienne population by granting land to key influential members, a large segment of the ancienne population still resented and distrusted their new American government and countrymen. The ancienne population’s

28 Ferreiro, Brothers at Arms. 29 Both primary and secondary literature has pointed to these tensions, see, for example: Martineau, Retrospect of Western Travel; Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album; Tregle, Jr., “Creoles and Americans,” 264–67. 30 “Vexatus Toties, Nunquamne Responam?,” Le Courrier de La Lousiana (Louisiana Courier), June 4, 1821; Martineau, Retrospect of Western Travel, vol. 1. 264–67; Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 118, 123; Henry Rightor, Standard History of New Orleans, Louisiana (Chicago: The Lewis Publishing Company, 1900), 180–88. 31 The French used a similar term, they called themselves (along with the Spanish and Creoles, the “civilisées anciennes.” See: “Vexatus Toties, Nunquamne Responam?”; Lachance, “The Foreign French”; Tregle, Jr., “Creoles and Americans.” 140. 53

anti-American sentiments grew, in part, because many of the ancienne population believed that Americans were withholding land grants. When it came to land grants in the Louisiana Territory, those who had previously received land from the French and

Spanish empires were supposed to have their land claims recognized by the new United

States. Such recognition, however, could be difficult to obtain. Enough petitions for land were rejected in the Louisiana Territory from 1805 to 1812 that it created an ongoing public outcry. Those protests were what led to the creation of a second board of Land

Commissioners in 1832.32 The federal government’s denial of land to many former

French and Spanish settlers further fueled the bitterness of the ancienne population toward the new Americans.

Families, and women as part of those families, also helped maintain tensions between the ancienne population and Americans, which in turn, influenced local land distribution. New Orleans sacramental records indicate that in the early nineteenth century, many creole women married men from France and Spain instead of other creole men or Americans. However, creole men still outnumbered American men as the husbands of creole women.33 It is difficult to know with certainty how American men

32 See an “Act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the district of Louisiana.” “Papers of the Original Claimants, 1777-1851; First Board of Land Commissioners; U.S. Recorder of Land Titles, Record Group 951.” 33 Charles Nolan, ed., Sacramental Records of the Roman Catholic Church of the Archdiocese of New Orleans, 1804- 1831, trans. J. Edgar Bruns, vol. 8–19 (New Orleans: Archives of the Archdiocese of New Orleans, 1993); Lachance, “The Foreign French.” Legal historian Susan Richbourg Parker sees a similar pattern in Spanish colonial St. Augustine, Florida. Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida.” 54

received this preference. But one source seems to indicate that there seems to have existed a mutual distaste between white creole women and American men. As Joseph

Tregle, Jr. tell us, one American man wrote to his friend in Massachusetts and said, “‘I would not marry a girl born & brought up in New Orleans, if she was the most beautiful thing on Earth & owned every plantation in Louisiana and Mississippi!” 34 Nonetheless, women of the ancienne population’s marital preference for men of the ancienne population seems to have kept real estate in the hands of the ancienne population, at least in the first decade of U.S. governance.35 In the very early nineteenth century, the ancienne population controlled the vast majority of businesses and real estate in Louisiana, especially in and around the city of New Orleans. As a result, the low rates of marriages between white creole women and American men appears to have initially bore significant consequences with respect to land, wealth, and political connections. For example, men often received a dowry or family gifts of land and slaves from both their bride’s family and their own parents upon marriage. In addition, men also inherited local connections through their bride’s family.36 Propertied women of the ancienne population could, therefore, be gatekeepers to wealth, useful connections. Their alliance with men through marriage or kin networks could enhance their husbands’ power. To be sure, it was not just that

34 Tregle, Jr., “Creoles and Americans,” 148. 35 Carlos Turdeau, “Plan of the City of New Orleans and The Adjacent Plantations: Compiled in Accordance with an Ordinance of the Illustrious Ministry and Royal Charter, December 24, 1798.” New Orleans: James A. Gresham, 1875. Digital Library, University of North Texas. Accessed March 9, 2015. https://digital.library.unt.edu/ark:/67531/metadc29433/; Tregle, Jr., “Creoles and Americans.” 36 Lachance, “The Foreign French,” 121. 55

women of the ancienne population disliked Americans; many also valued their identity and the connections to the ancienne population that they and their families often worked to maintain.

There were, however, also instances in which discrimination against Americans in matters of real estate was even more direct. The Duparcs, for example, actively discriminated against Americans. In addition to fairly standard provisions regarding the family estate, Guillaume Duparc’s will contained a special provision in regards to any potential disposal of the land and plantation. Given the nascent state of the plantation,

Duparc recognized that the family may fail to keep the business intact. So his will requested that “if my descendants intend to sell the plantation, I want them to sell it to a person who will be able to pay for it quickly, but above all, not to an American person, to avoid all the trickery and chicanery to the members of my own family from this sort of people.”37 Nanette Prud’Homme Duparc, understood her late husband’s concerns and shared his distrust of their new neighbors. According to a family memoir, she made disparaging comments about Americans on numerous occasions, calling them “clumsy,”

“gauche,” and “socially inferior.”38 Nanette and her children honored Guillaume’s wishes. The land and sugar business stayed in family hands for several generations,

37 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 118. 38 Ibid., 118, 123. 56

with female members at the helm, until it was sold to another family with French connections.39

The tensions between the ancienne population and Americans seems to have exaggerated the differences between the two and made it difficult for these two populations, as well as some historians studying Louisiana at this time, to see that families, in general, tended to rely on women help keep property within their families. 40

More frequently than receiving land from the state or federal government through land grants, women, like men, received land directly from family members.41 During the early republic, property typically transferred within families on one of two occasions: death or marriage. At both times, property usually transferred from either one spouse to another, and/or, from parents to their children. Death, marriage, and re-marriage were not infrequent occurrences. Women and men’s relationship statuses were frequently influx. Given the prevalence of what we would now consider an early death (average life expectancy for both men and women was around 37 in 1798) and disease epidemics like yellow fever and cholera, families typically took steps to ensure that the family’s

39 The descendants of the Duparcs sold it to the Waguespack family in 1891. Ibid., 4–6, 123; Molly Reid and Mark Lorando, “Creole Country: Laura Plantation Rises From the Ashes,” The Times-Picayune, August 11, 2007, accessed August 2, 2016, http://blog.nola.com/living/2007/08/creole_country_laura_plantatio.html. 40 Warbasse, Morlas, and Sundberg have all argued that women in the civil law state of Louisiana had an easier time controlling family property under the state’s civil laws than women in common law states. Elizabeth Warbasse, The Changing Legal Rights of Married Women, 1800-1861 (New York: Garland Publishers, 1987); Morlas, “La Madame et La Mademoiselle: Creole Women In Louisiana, 1718-1865”; Sara Brooks Sundberg, “Women and Property in Early Louisiana: Legal Systems at Odds,” Journal of the Early Republic 32, no. 4 (2012): 633–65. 41 “United States Land and Property,” Family Search, accessed January 2, 2014, https://familysearch.org/learn/wiki/en/United_States_Land_and_Property. 57

property would be divided among all surviving members in the immediate family.42 In many instances, families, especially those with valuable property, used legal documents like wills and marriage settlements to ensure that property would pass to both female and male family members.

Historians have shown that in the wills made in the late eighteenth century, fathers and mothers tended to will most of their real and personal estate to their surviving spouse and then the remainder, if any, to their sons and daughters.43 Certainly there could be disparities in the land granted to children. Many cases existed in which sons received more land than daughters. But in several cases, daughters received at least some land. In one example, a planter named Henry Baker willed his son over three hundred acres and also gave his three daughters “all my pofsefsion [sic] of Land I have in the Province of Georgia.”44 Wills like this one suggest that fathers wanted to make sure that all of their children, regardless of their gender, received some property after

42 J. David Hacker, “Decennial Life Tables for the White Population of the United States, 1790–1900,” Historical Methods 43, no. 2 (April 2010): 45–79; For works on the South more particularly, see: Salmon, Women and the Law of Property in Early America; Edwards, The People and Their Peace; For inheritance practice in the nineteenth century more generally, see, for example: Yvonne Pitts, Family, Law, and Inheritance in America: A Social and Legal History of Nineteenth-Century Kentucky (Cambridge: Cambridge University Press, 2013); Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (Cambridge, MA: Harvard University Press, 2012). 43 Salmon, Women and the Law of Property in Early America; Lebsock, The Free Women of Petersburg; Pitts, Family, Law, and Inheritance in America. 44 Henry Baker “South Carolina, Probate Records, Bound Volumes, 1671-1977, Charleston, 1776-1784, Vol. 18.,” Ancestry.com, accessed June 4, 2013, www.ancestry.com. Made on July 20, 1773 but recorded in the 1776-1784 will book. 58

their passing to ensure that their heirs’ daily maintenance was not disrupted by their deaths.

Women’s inherited land also appeared in other state records, like plat maps. For example, a 1798 map of New Orleans and its environs shows that a Madame Juazante owned 2.5 arpents on the Bayou Gentilly. The map lists Madame Juazante as an “absent heiress.” Just above Madame Juazante’s tract of land, a plat shows that a Mrs. Vve

Lawrence owned 17 arpents.45 Although the title traditions in the Carolinas were typically not as clear, a 1789 plat map of Charleston, South Carolina shows the “Estate of

Mrs. Judith Wragg.”46 The notation “Mrs.” does indicate that Judith Wragg was at some point married, although it is likely that Mrs. Judith Wragg was widow. Anglo-English title trends favored using a women’s first name, in addition to her last name, after her husband passed, (i.e. Mrs. Samuel Wragg—when a husband was alive, and Mrs. Judith

Wragg after her husband had passed).47 It is nearly impossible to know if she inherited the land on the plat from her husband, or a different relative, but it is highly likely that the land was inherited. In the late eighteenth century, the Wragg family of Charleston was large. There were also several Wragg women named Judith in the late eighteenth

45 Carlos Turdeau, “Plan of the City of New Orleans and The Adjacent Plantations: Compiled in Accordance with an Ordinance of the Illustrious Ministry and Royal Charter, December 24, 1798.” 46 “The 1789-90 Charleston County, Register of Mesne Conveyance Records, Vol. B-6, 1789-90 Start P. 518 Vol. D-6, 1789-90; Vol. E-6, P. 517 1790-92.” 1792 1789, SCDAH. 47 Alexandra Buxton, “When ‘Mistress’ Meant ‘Mrs.’ and ‘Miss’ Meant ‘Prostitute,’” New Republic, September 12, 2014, accessed June 28, 2017, https://newrepublic.com/article/119432/history-female-titles-mistress-miss- mrs-or-ms. 59

century, so it is difficult to know, definitively, how Judith acquired her land. But a cross check with the state land grant indices reveals that Judith Wragg was not an original recipient of a state land grant—or, at least, there is no record showing her as recipient of a state land grant.48

Until very late eighteenth century, women in the Carolinas also gained informal opportunities to manage large estates through the inheritance law of primogeniture.

Primogeniture required the land of a person who died intestate (without having made a will) to pass to the oldest male heir. But in several instances male heirs were so young that mothers or older sisters assumed control until the eldest son was ready to manage the family estate.49 Eliza Lucas was one of many who found herself in this position. A few years after proving herself an accomplished planter, Eliza married Charles

Pinckney, a fellow planter and became a mother of three children. When her husband died in 1758, she resumed full management not only of her father’s plantations, which she had inherited, but also of her husband’s plantation, which her oldest son, Charles, had inherited as a consequence of the British law of primogeniture. Charles was only twelve and still in school in England when his father died and was certainly not ready to manage the affairs of a plantation. Eliza encouraged him not to rush his studies and

Charles abided by his mother’s advice. Eliza managed the plantations for the next

48 “Plats for State Land Grants, 1784-1868.” 49 Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina.” 60

twelve years while Charles finished secondary school, law school, and, at his mother’s counseling, advanced botany courses in Europe.50

Even in Louisiana, where primogeniture did not exist, women gained informal opportunities to manage estates, even when they inherited a plantation jointly with male relatives. Women gained managerial positions in their families’ businesses, not just out of necessity, as in cases where husbands or fathers had died and sons either did not exist or were not of age, but also because such women were recognized as capable managers.

For example, in the first few years following Guillaume Duparc’s death, although the family had inherited the plantation jointly, Widow Duparc realized that her two oldest children, both sons, did not have the necessary attributes to manage the affairs of the plantation.51 But she and her youngest child, her daughter, did. She sent her eldest son away to boarding school in France and relegated her middle son to field management.

With her sons demoted, Widow Duparc and her daughter proved to be astute businesswomen, as they diversified the plantation’s crops and grew the plantation into a major sugar producer. In 1829, years before her death, Widow Duparc decided to retire from daily management, but she made sure to cede official control of the plantation management to her married daughter, Elisabeth Duparc Locoul. Under Elisabeth

Duparc Locoul’s management, the plantation continued to turn healthy profits for the

50 Ravenel, Eliza Pinckney; Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition”; Coon, “Eliza Lucas Pinckney and the Reintroduction of Indigo Culture in South Carolina”; Martin, “Eliza Lucas Pinckney: Indigo in the Atlantic World.” 51 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 125, 130. 61

Duparc family well until the 1840s. 52 As the Duparc’s case helps illustrate, women’s control of family land often proved helpful in ensuring that wealth would grow and pass to new generations of the family.

Besides death, marriage was another event that often occasioned the transfer of a family’s land and enslaved people to female family members. In marriage, wives could and did maintain varying degrees of formal and informal control over property they brought to marriage. Married women’s legal rights to property have long been the subject of historiographical analysis and debate. Traditionally, scholars studying this era have pointed to the common law legal principles of coverture described by William

Blackstone in his Commentaries on the Laws of England Vol. I, Tapping Reeve in his The

Law of Baron and Femme, and the reasoning of state Supreme Court judges in common law cases, and state statues to argue that from the late eighteenth century through the first half of the nineteenth century, married women had limited managerial authority over property they brought to or acquired in marriage.53 Under the principles of

52 Ibid., 123, 126, 130–31. 53 A wide-ranging list of scholars have gestured to the idea that wives were subsumed by the husbands in marriage. Welter addresses this from a cultural perspective. Barbara Welter, “The Cult of True Womanhood: 1820-1860,” American Quarterly 18, no. 2 (Summer 1966): 151–74. Cott, Ryan, Fox-Genovese, and McCurry address women's dependency from an economic, political, and social perspective. Nancy Cott, The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780-1835 (New Haven: Yale University Press, 1977); Mary Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790-1865 (Cambridge: Cambridge University Press, 1981); Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (Oxford: Oxford University Press, 1995). Pateman makes a philosophical argument about women's limited rights. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988). 62

coverture, a husband and wife became “one person in law” during their marriage. In

Blackstone’s formulation, a wife’s legal identity was “suspended…or at least incorporated or consolidated into that of the husband” during marriage, she became

known as a feme covert. 54 As a result, coverture afforded a husband absolute control over the personal property his wife, the feme covert, brought to the marriage. All property a wife brought to, earned in, or inherited during marriage became her husband’s. He could, for example, sell her enslaved people, spend her money, or appropriate her furniture. 55 However, newer literature in legal history has argued that in the late eighteenth and early nineteenth century, the legal principles of coverture and even the state statutes were not static, uniform laws; they had different consequences in different places at different times. In general, the laws were not as restrictive in late eighteenth and early nineteenth century as they would become in the 1820s and 1830s. Historians have noted that in the wake of the American Revolution, the new state and territorial governments were relatively weak, so the restrictive legal principles, including

Dayton and Shammas both argue that by the end of the eighteenth century, the common law drastically restricted married women's rights. Cornelia Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995); Carole Shammas, A History of Household Government in America (Charlottesville: University of Virginia Press, 2002). 54 William Blackstone, Commentaries on the Laws of England, Vol. 1 (London, 1765-69; Reprint, Chicago: University of Chicago Press, 1979), 430. 55 Blackstone, Commentaries on the Laws of England, Vol. 1; Scholars have also cited Tapping Reeve's The Law of Baron and Femme as being highly influential in shaping law, but legal historian Holly Brewer has argued that Reeve was largely reproducing Blackstone's categories of domestic relations. Tapping Reeve, The Law of Baron and Femme, of Parent and Child, of Guardian and Ward, of Master and Servant, and of the Powers of Courts of Chancery: With an Essay on the Terms, Heir, Heirs, and Heirs of the Body (New Haven: Oliver Steele, 1816); Holly Holly Brewer, “The Transformation of Domestic Law,” in The Cambridge History of Law in America Volume I: Early America (1580-1815), ed. Michael Grossberg and Christopher Tomlins, vol. 1 (Cambridge: Cambridge University Press, 2008), 290–91. 63

coverture, at this level of government did not necessarily define local practices. While certainly married women did not have power equal to their husbands in marriage, in many cases a husband’s powers over his wife and her property were weaker in practice than Blackstone or state statutes depict. 56 So, even though statutes informed by the principles of coverture could be found in all common law states, and similar marriage laws even made their way into the Louisiana Civil Code Digests by 1808, the presence of these principles did not mean they were actively enforced. 57 Such laws, moreover, did not strip married women of their property completely. Even laws shaped by the most restrictive principles of coverture did not terminate a woman’s control over the real property she brought to marriage. Instead the laws only limited her control.58

Women’s historians have shown that southern lawmakers wanted some protections for married women and determined that real property was a special kind of property that had an intrinsic value and could be used to support a woman and her family in times of hardship. Under the legal principles of coverture, a husband could not sell any real estate a wife brought to their marriage without her consent. Determination

56 Brewer, “The Transformation of Domestic Law,” 290–91. Edwards makes a similar point as she notes that: "Blackstone's version of a husband's authority over a their wives acquired force in legal practice after the Revolution, especially in civil matters relating to property." Edwards, The People and Their Peace, 104. 57 For examples of similar laws in Louisiana, see: A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 26-28. 58 Many historians have pointed to the disconnect between written law and legal practice during this era, see for example Salmon, Women and the Law of Property in Early America; Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005); Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace. 64

of a wife’s consent varied from state to state.59 In the Carolinas, conveyance law dictated that a wife’s consent should be determined by her signature on the deed and her declaration in a private examination, conducted by local authorities, that she acted of her own free will and not under the pressure of her husband. 60 This legal procedure demonstrates that lawmakers acknowledged the possibility of opposing interests: a husband might want to sell a wife’s land against her wishes and she might need protection from his coercion. Thus, lawmakers indirectly admitted that wives possessed rights in land that their husbands could not abrogate. 61 The 1789-1790 Charleston

Register of Mesne Conveyance records provides numerous instances in which this legal procedure appears to have been enforced, and husbands and wives acted together to release lands in fee simple to buyer. Interestingly, these same records also show instances in which married couples leased, not sold, land to other men as the notation of the wife’s name appears in addition to her husband’s. Even though a husband had the right to exclude his wife from such managerial participation under the state’s common law, it appears that it was custom in Charleston to have the wife’s express permission or, at least, to add her name to the lease—a practice that demonstrates a husband’s recognition of his wife’s part ownership of the land. Take for example, the case in which

59 See, for example: Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace; Salmon, Women and the Law of Property in Early America. 60 Salmon, Women and the Law of Property in Early America, 7, 19. 61 Brewer and Salmon have made similar points. Brewer, “The Transformation of Domestic Law,” 300; Salmon, Women and the Law of Property in Early America, 6-13. 65

John Routledge and his wife Elizabeth leased land to Thomas Radcliffe. It is clear that the leased land in question was Mrs. Routledge’s land because there are instances in which John Routledge made leases and releases that year that did not include his wife’s name on the lease, which suggests that he distinguished his property from his wife’s property.62 Nonetheless, when it came to Mrs. Routledge’s land the records show her involvement in managing the land, even if it was just by lending her name to the record.

Common law, moreover, was not the only body of law governing women in the

Carolinas. As legal historians have pointed out, equity law also played a role in the disposition and control of land.63 Equity law was developed in England a few centuries after the birth of the common law system and provided a separate system of justice from the common law. Unlike the common law, which relied heavily on precedent, equity law administered rulings based on principles of fairness and did not have to abide by the precedent of common law courts.64 By the late eighteenth and early nineteenth centuries, equity courts coming out of the English tradition had crafted a separate body

62 “The 1789-90 Charleston County, Register of Mesne Conveyance Records, Vol. B-6, 1789-90 Start P. 518 Vol. D-6, 1789-90; Vol. E-6, P. 517 1790-92.”SCDAH. 63 Mary Ritter Beard, Woman as Force in History: A Study in Traditions and Realities (New York: The Macmillan Company, 1946); Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982); Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Salmon, Women and the Law of Property in Early America; Shammas, A History of Household Government in America, 33; Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace. 64 Beard, Woman as Force in History: A Study in Traditions and Realities; Warbasse, The Changing Legal Rights of Married Women, 1800-1861; Basch, In the Eyes of the Law; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Salmon, Women and the Law of Property in Early America; Shammas, A History of Household Government in America, 33; Brewer, “The Transformation of Domestic Law”; Edwards, The People and Their Peace. 66

of law that, among many other things, tended to recognize the different forms of separate or encumbered estates of wives (that were crafted through trusts or contracts) that husbands could not control. 65 Equity law in many common law states, including the

Carolinas, was first administered by the British and American Courts of Chancery and then later called the Court of Equity.

In the Carolinas, equity law was particularly generous in allowing married women to own and control property separate from their husbands if they had a formal contract called a marriage settlement. Marriage settlements were made both by families whose daughters were marrying for the first time and by widows who were remarrying.

A marriage settlement created a separate estate for a wife that could be either managed by her directly, or by her trustees (usually male relatives or friends), or by she and her husband jointly. Marriage settlements helped keep a portion of family property protected from a husband’s of his creditors’ control. Families and widows making marriage settlements for their female family members or themselves did so to protect her from financial deprivation during marriage and from becoming public charges in widowhood. Widows did so for the same reason. Additionally, marriage settlements could also provide parents, grandparents, and widows with the assurance that family fortunes would not be spent before their children and grandchildren came of age.

65 Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 657; Brewer, “The Transformation of Domestic Law,” 317–18. 67

Settlements for separate estates for women also frequently included clauses guaranteeing the inheritances of any existing children or any issue that would come from the marriage because families believed in the larger patriarchal project of keeping the family bloodline secure.66 While certainly the majority of settlements were made among the wealthy because they could be costly to make, women who married shopkeepers, inn-owners, and artisans also made them. Moreover, while marriage settlements were not numerous, they still were, as historians have pointed out, theoretically an important alternative to the common law. 67

Families who made marriage settlements and set up separate estates and trusts for their daughters often did so because they loved their daughters and they knew that marriage made daughters, more so than sons, legally vulnerable to losing control property over property, particularly personal property, which, in the Carolinas, included slaves. Under the common law, married women had less control over personal property they brought to, or accumulated in marriage, than real property. Parents and widows recognized that the developing and precipitous economy increased the likelihood that a married woman might well lose such property to her husband’s

66 Marriage settlements could be made before a marriage or even after a marriage. According to Salmon, marriage settlements in South Carolina were made far more frequently before marriage; however, there were instances, like when a married woman inherited property, in which she made settlements during their marriage. Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 657; see also: Edwards, The People and Their Peace, 159, 172–185. 67 See, for example: Salmon, Women and the Law of Property in Early America, 83; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Edwards, 172-185. 68

creditors. In addition, cautionary tales of errant husbands surfaced in newspapers and reminded readers that women could be victimized in marriage. For example in 1790, a

Charleston newspaper published a piece entitled “Journal of a Married Women, for One

Day.” The article depicts a married woman’s struggles with a drunk and belligerent husband who spends his nights away from her and comes home to sleep during the day.

She makes him toast, muffins, and chicken soup, only to have him tell her that it is

“wishy washy fluff” and that he would rather dine out. The piece ends on the question

“Ladies, how do you like it?”68

In addition to marriage settlements, it appears that sometimes women also made wills in an attempt to keep their own real property under their control until their demise. For example, on March 4, 1788, Elizabeth Frogatt, wife of Addin Frogatt, willed the “Tract of Land that John Spencer Willed to me” to her husband, however, she specified that “he and his Heirs Executors and Assigns shall have that Said Tract of Land at his or their Disposal … at my Desease [sic] and not before [emphasis mine]…”69

Elizabeth likely included this language to help protect her control of the land until her death. Unfortunately, we cannot know if this will, protecting her property for herself, would have been upheld in the state’s chancery courts. The South Carolina’s chancery

68 “Journal of a Married Women, for One Day,” The City Gazette, or The Daily Advertiser of Charleston, June 29, 1790. 69 Will of Elizabeth Frogatt, “South Carolina, Probate Records, Bound Volumes, 1671-977, Charleston, Wills 1786-1793, Vol. 24.” 69

court records appear to be silent on such a unique form of self-assurance. However, historians have shown that Chancery Courts did uphold marriage settlements.

During the early part of the nineteenth century, South Carolina’s Chancery Court judges made several decisions in which they interpreted marriage settlements liberally – often to a married woman’s favor.70 In 1811, for example, the South Carolina Court of

Chancery heard the case Elizabeth Rivers v. the Executor of Thomas Rivers. Elizabeth Rivers, the widow of Thomas Rivers, filed a bill to enlarge the provisions she received from his estate. Prior to their marriage, Mr. Thomas Rivers was a widower with three children and a “good estate” and Mrs. Elizabeth Rivers (then Mrs. Cromwell) was a widow, with two children and property of “small value, consisting of a small house and lot in the city, and two negroes.” Before they married, Thomas agreed, in writing, to renounce all the rights to every part of Elizabeth’s property he would acquire by the marriage, and to leave its profits wholly to her disposal and to bequeath to her, by his will, “sufficient and competent” maintenance during her life. After the execution of the agreement, the two married and lived together “in harmony and affection till his death.” After

Thomas’s death, however, Elizabeth was unhappy with her inheritance from her late husband. She felt he had failed to uphold the terms of their marriage settlement. In his will Thomas willed to Elizabeth a house and lot in town. Elizabeth was dissatisfied with

70 Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Salmon, Women and the Law of Property in Early America. 70

this provision and deemed it not “sufficient and competent maintenance.” The judges agreed with Elizabeth and decided that it was not adequate provision for her maintenance “proportioned to his estate” and enlarged the portion she inherited.71

Women in South Carolina could find legal support outside of the equity courts as well. State legislatures heard petitions from wronged married women with a sympathetic ear. In 1789, Mary Cumming petitioned the South Carolina State legislature to sell and convey land she had inherited from her father, even though she was married.

Mary’s father had died intestate (without making a will) and, under the existing rule of primogeniture, because no male heir was alive, her father’s lot in the city of Charleston and tract of land in Beaufort district went to Mary and her two sisters. The sisters had decided to sell the property and use the cash to support their own families. Mary had a child with her husband, Andrew Cumming, who was a British subject who had left her and the state of South Carolina after the American Revolution. Since his departure, Mary claimed he had not “afforded any comfort or maintenance to her or her said child.”

Mary needed the money from the land to support herself and her child. However, when she had joined together with her sisters and had contracted for the sale of the lands, the legality of her title had been disputed because she was a married woman. It is unclear from the records who disputed her title to the land, but either the buyers, or possibly the

71 Elizabeth Rivers v. the Executor of Thomas Rivers, 3 Reports of Cases Argued and Determined in the Court of Chancery of the State of South-Carolina 188 1776-1813. 71

state land conveyance officers, questioned her ability to sell the land because they believed that as a married woman, she could not contract without her husband’s permission. The Senate and House of Representative sitting in General Assembly responded to Mary Cumming’s petition and made it lawful for her to sell and dispose of her share of the lands.72 Lawmakers confirmed that was in everyone’s interest to ensure that women, especially those with errant or absent husbands, could support themselves.

While at the state-level, married women in the Carolinas were governed by common law and equity law, married women in the Louisiana were governed by community property laws under the civil law system. Unlike equity law, which governed issues relating to property broadly, the community property system primarily existed to provide for the wife, who was presumably weaker, and to curb the power of the husband. Under this system, married women could write wills without the permission of their husbands. If they felt their husbands were being particularly unfair or absent from the management of their marital property, they could appeal to a judge.73

This law allowed women like South Carolina’s Mary Cumming to receive permission to enter into a contract without taking the extraordinary step of petitioning the legislature for approval.

72 “An Act to Enable Mary Cumming to Sell and Convey Certain Lands in the Districts of Charleston and Beaufort” No. 1441. Thomas Cooper, ed., The Statues at Large South Carolina: Act, 1786-1814, vol. 5 (Columbia: A.S. Johnston, 1839), 99. 73 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 28. 72

Certainly not all women needed to wait until the death of a beloved family member or take measures prior to marriage to receive control of estates. During the late eighteenth and early nineteenth century family run property was dynamic and involved the participation of all relatives.74 This is clear in both legal documents and family papers.75 In the case of the Duparcs, for example, even though Widow Duparc managed the plantation with her daughter, the enterprise still remained a family business. Both of her sons became involved in different aspects of the planation’s business. After he returned from boarding school, Widow Duparc helped pay for a French Quarter home for her oldest son, Louis Duparc and his wife. In return, she requested that the he market the family’s crops and serve as her business agent in the city. The Duparc family memoir suggests that Louis was happy with this arrangement because he found city life much more exciting than being confined to a comparatively isolated plantation. Flagy, the middle child and the Duparcs’ only other son, enjoyed his role as overseer and begged his mother to let him continue to serve in this position. She capitulated and he managed the field operations of the Duparc business for thirty years. 76

74 Many historians have made this point, for more recent literature on the eighteenth century and early nineteenth century, see, for example: Ulrich, A Midwife’s Tale; Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina”; Zabin, Dangerous Economies; Hartigan-O’Connor, The Ties That Buy. 75 Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition”; Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album; “Louisa S. McCord Family Papers (formerly known as Dulles-Cheves-McCord-Lovell Papers), 1786-1954” (1103.00), SCHS; “Graham Family Papers, 1793-2004” (MSS 561), THNOC; “James Thorn Letters, 1860-1861”(MSS 448), THNOC; “Hagar Richardson Estate Papers, 1815-1828” (1169.02), SCHS. 76 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 125–26, 130. 73

Still, the late eighteenth and early nineteenth century was by no means a golden age for women’s property rights. Women’s aggregation of land greatly depended on the goodwill of family members who passed property to them and local men who served as land commissioners, notaries, judges, and legislators who executed wills, oversaw conveyances, and marriage settlements.77 As propertied white women and their families went about their daily affairs and managed their estates in the aftermath of the

American Revolution, state lawmakers began to change laws that related to the ownership of property and made property and wealth central to political participation.

Although initially, states recognized a family’s ability to hold land and slaves, state lawmakers in the Carolinas and Louisiana began to liberalize property laws to promote individual—not family—ownership of property. In promoting individual property ownership over family ownership of property, state laws disrupted the some of the very networks women used to control property. Consequently, women who had been able to gain access to land and enslaved people, because they were recognized by state officials as valuable members of families, encountered new laws that made it more difficult to allow women to continue to control such property, if their control was challenged by a white man.

77 Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina”; Hartigan-O’Connor, The Ties That Buy; Edwards, The People and Their Peace; Erickson, Women and Property in Early Modern England, 234. 74

State lawmakers did not necessarily intend to sever women’s control over property. Instead, these lawmakers abolished some of the property encumbrances that created space for women to manage property because they wanted to enhance their authority over their own property and, on a philosophical level, abolish laws which perpetuated the wealth of a few at the exclusion of many. Such lawmakers believed that such old world legal vestiges posed threats to their new world order and individual property ownership was vital for a new democracy. As state administrators changed laws, it became clear they had the interest of white males, not their white female family members in mind.

Chapter Two: Determining Authority and Reforming Property Laws in the New United States, 1776 to 1820

During her time as plantation manager, Eliza Lucas Pinckney, like Nanette

Duparc, demonstrated her ability to oversee a large business and even expanded the local colonial economy, which for the most part was headed by men. But the legal structures that had favored family management of property, and which had allowed

Eliza to play a significant role in South Carolina’s economic development in the colonial period, were about to change. As states and a new nation formed in the wake of the

American Revolution, political leaders not only reformed governments, they also reformed laws that governed family property. As a woman, Eliza was not allowed to officially participate in the political process related to the creation of her state government. There is also no evidence that she ever protested her inability to participate. Her lack of protest may be because the patriarchal world that she inhabited had afforded her great opportunities. She lived in environment where family names and family estates mattered. This patriarchal world valued her participation in the elite social and economic markets because she was a representative of the powerful Lucas and Pinckney family. In this world, where family connections were central to the order, she was not just a woman. Although she did not officially participate in Revolutionary politics, her sons did. As some of the most propertied men in the South Carolina, thanks in large part to their mother’s astute management of the family estate, her sons also

became political leaders in South Carolina during and after the war. She expressed pride in her “two ‘rebel’ sons” as they represented South Carolina in the war against Britain and then oversaw the structuring of the state of South Carolina.1

In the decades after the American Revolution, state lawmakers in the Carolinas disrupted pre-existing networks of power and property management as they gradually implemented a new legal and economic order that promoted individual landownership at the expense of ownership of land by a family. Lawmakers’ dedication to individual landownership arose in part from their efforts to deliver on Revolutionary promises of allowing more control over property and in part from their beliefs that promoting such individual control would help solidify the relationship between the state and its people.

Many of the legal changes emanated from state political leaders’ gradual introduction of state-level legal changes to promote male-centered individual political participation, as opposed to familial connections. In the Carolinas, the constitutional framers began by keeping male landownership remained as a prerequisite for political participation, but banned hereditary political offices. Then, at the end of the war, states began to grant large tracts of land to families and, in turn, new political participation privileges to male representatives of those families. Next, lawmakers changed state laws to give individual landholders more authority over their land than they had enjoyed under the British

Crown. In providing individuals more authority over their land, lawmakers essentially

1 Harriott Horry Ravenel, Eliza Pinckney (Cambridge, MA: Charles Scribner’s Sons, 1896), 3. 77

converted land from a unique asset that tended to remain in the hands of the same family for generations, into a commodity that could be easily transferred and put to its most economically efficient use. As lawmakers liberalized property laws, the more general concept of wealth, as evidenced by tax payments on real and personal property, began to displace land ownership as a prerequisite for suffrage and political participation. States also decreased the amount of wealth necessary to vote and hold office, which indicates that while white maleness still mattered, wealth became a less emphasized prerequisite for participation in state governance. In turn, a broader class of white men became able to participate in politics.2

The post-Revolution liberalization of property laws created unease and at times a highly antagonistic relationship between those who believed in keeping land as a special kind of property that could be held by families for generations, thus ensuring their families’ perpetual political participation, and those who wanted to redefine land as a freely alienable economic commodity while still protecting landowners’ ability to participate in political governance.3 Opposition to legal reforms became particularly

2 Several historians have made similar points, see for example: Rachel Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill: The University of North Carolina Press, 1990); Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009). 3 Many scholars have pointed to the rise of individualism in the late eighteenth and early nineteenth centuries. See the following for examples of the gender and household formulations of these sociopolitical and legal transformations: Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988); Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” The William and Mary Quarterly 54, no. 2 (April 1997): 307–46; Holly Brewer, “The Transformation of Domestic Law,” in The Cambridge History of Law in America Volume I: Early America (1580-1815), ed. 78

hostile in Louisiana in the 1810s and 1820s after the state had been summarily incorporated into the new nation through the Louisiana Purchase.4 Ultimately, those who believed that land should be a fungible asset succeeded and the social and political changes they implemented made it more challenging for family-owned estates to stay bound up as unified, large estates for generations.

---

Historians have shown that as soon as Revolutionary leaders declared independence from Britain, they began to structure a new government that aimed to give inhabitants of the United States more control over their property than they had under British rule. They did not, however, want to completely remake the existing political and social systems. In forming their new government, the political leaders of the American Revolution sought to purify a corrupt constitution inherited from Great

Britain and prevent the regrowth of power by birthright. Responding directly to the grievances that colonists had leveled at the British Empire, political leaders in the

Second Continental Congress decentralized power by moving it from the British sovereign into a confederacy of states, leaving state leaders to structure the government

Michael Grossberg and Christopher Tomlins, vol. 1 (Cambridge: Cambridge University Press, 2008), 288– 323; Edwards, The People and Their Peace. 4 See for example: Joseph Tregle, Jr., “Creoles and Americans,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 131-185; James Lewis, The Louisiana Purchase: Jefferson’s Noble Bargain? (Charlottesville: Thomas Jefferson Foundation, 2003); Jon Kukla, A Wilderness So Immense: The Louisiana Purchase and the Destiny of America (New York: Anchor, 2004); Bernard Sheehan, “Jefferson’s ‘Empire for Liberty,’” Indiana Magazine of History 100, no. 4 (December 1, 2004): 346–63; Nathalie Dessens, Creole City: A Chronicle of Early American New Orleans (Gainesville: University Press of Florida, 2015). 79

and laws within their own states.5 Many states framed constitutions that began the work of untangling the political ties between bloodlines and governing power. State constitutional framers in the Carolinas ensured that political offices would not be hereditary, as they had been under the British monarchy. Moreover, the new state government in South Carolina limited nepotism by crafting a constitution that prohibited the father, brothers, or sons of the governor from serving on his privy council. 6 Many states leaders did, however, maintain a feature of British governance: male property ownership and wealth remained central to political participation.7

According to legal historian Christopher Curtis, the centrality of property ownership to political participation came about in part because of Thomas Jefferson’s

5 Many historians of the American Revolution have made these points. See, for example: Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1967), 283; Christopher Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion (Cambridge: Cambridge University Press, 2012). As Edwards reminds us, by choosing to organize the national government as a loose confederation of states through the Articles of Confederation, the Second Continental Congress left the task of creating ties between the state and its people—as the rhetoric of the Revolution promise it would— to the framers of state constitutions in order to legitimate the authority of the state. As historians have reminded us, states varied in the types of relationships they created with their “people.” On one end of spectrum some states, like Pennsylvania applied broad Revolutionary principles to political relationships at home as they declared rights for its people and extended suffrage to all free men over the age of twenty-one. On the other end of spectrum were states like South Carolina, which took a much more narrow visions of the people’s relationship to the government as they made no mention of the people’s rights and restricted suffrage and governance to an elite property holders. Laura Edwards, “The Contradictions of Democracy in American Institutions and Practices,” in Re-Imagining Democracy in the Age of Revolutions, ed. Joanna Innes and Mark Philp (Oxford University Press, 2013), 40–54. 6 “Constitution of North Carolina,” December 18, 1776, Article XXII, The Avalon Project, Yale University, accessed March 16, 2015, http://avalon.law.yale.edu/; “Constitution of South Carolina,” March 19, 1778, Article IX, The Avalon Project, Yale University, accessed March 16, 2015, http://avalon.law.yale.edu/. 7 Brewer, “Entailing Aristocracy in Colonial Virginia”; Brewer, “The Transformation of Domestic Law”; Edwards, “The Contradictions of Democracy in American Institutions and Practices”; “Constitution of North Carolina,” December 18, 1776; “Constitution of South Carolina,” March 26, 1776, The Avalon Project, Yale University, accessed March 16, 2015, http://avalon.law.yale.edu/. 80

pre-war calls to purify the legal frameworks of landownership by returning them to the

“Saxon” standards. On the eve of the American Revolution, Jefferson highlighted the connection between land ownership and self-governance by linking voting rights to land ownership. Under British common law, the freehold was the source of the franchise. All political and legal rights emanated from a person’s relationship to the land, which in turn shaped the political order. Under British imperialism, the crown had sovereign dominion over all lands of the realm, including, of course, its empire’s colonial settlements. Certainly, colonists’ ownership of land came with rights and privileges, but these rights were not unconditional and could ultimately be overridden by the monarch.

Therefore, the monarch, theoretically, was the ultimate owner of all land. Settlers in the

American colonies could reap benefits from the land that they settled and made productive, but they were still mere tenants subject to the sovereign’s true ownership.

As historians have noted, when the colonists perceived problems with British imperial policy, their discussions soon turned to problems with property rights under the British monarchy.8

In his influential A Summary View of the Rights of British America, Jefferson objected to this imperial system of tenures that had served as the foundational principle of English property law. He claimed that the Norman Conquest had illegitimately introduced the crown’s tenurial claim, which was the foundation of the prevailing

8 Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion, 33. 81

system of land ownership in feudal law.9 Jefferson instead advocated for allodial title, which allowed real property to be owned absolutely, free and clear of any sovereign.10 In making this claim, he suggested “that private land ownership represented the true custom of the British people and the original basis of the English common law” and that both the English in Britain and those settlers in its colonies had been subject to a great legal fiction imposed by William the Conqueror that “all lands in England were held either mediately or immediately of the crown.” Jefferson suggested that the colonists throw off the “Norman yoke” because “America was not conquered by William the

Norman.”11 Jefferson’s ideas on men’s natural right to absolute ownership of land did not stem solely from his belief in righting what he perceived to be a historical wrong.

Many of the new nation’s political leaders believed individual ownership as a necessary and chief component of self-governance.12 As previously noted in chapter one, in the

9 Beverley Bond, Jr., The Quit-Rent System in the American Colonies (New Haven: Yale University Press, 1919).; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion, 20–21, 33, 44. 10 Setting aside the question of whether of not true feudalism or feudalism ever existed in England or it’s colonies, these narratives were woven into the debate over absolutism and republicanism by historians and political theorists of the seventeenth and eighteenth century. Brewer, “Entailing Aristocracy in Colonial Virginia,” 339. 11 Thomas Jefferson, “A Summary View of the Rights of British America” 1774, The Avalon Project, Yale University, accessed March 16, 2015, http://avalon.law.yale.edu/. Jefferson was not the only one to make this claim, the controversial concept of the Norman Yoke was familiar to late eighteenth centurions as it had been persistent historical trope since as earlier as the seventeenth century during the English Revolution; however, Curtis argues that Jefferson was “principally responsible for carrying the allodial revolution forward.” According to Curtis, Arthur Lee, Thomas Mason, Robert Carter Nicholas, and John Randolph all published separate commentaries on the constitutional crisis regarding the legal fiction of sovereign dominion. 12 Jefferson’s arguments were influential in this period, but many believed Jefferson’s call for allodial title should be tempered. When Jefferson first wrote his arguments presented in A Summary View of the Rights of British America, he sent it to the delegates of the first Continental Congress. He hoped it would inform the 82

early years of the new republic, landholders were now considered to possess the economic self-sufficiency and physical independence needed to exercise the individual liberty essential to a republican government. Political leaders expected that ownership of a tangible piece of immovable property would simultaneously promote economic self- sufficiency and social attachment to local communities and thus lead recipients to become the virtuous citizens who were necessary to the maintenance of the republic. 13

When political leaders in the new U.S. designed their new national and state governments, they drew on many traditions of social and political thought, ranging from British conservative philosophers to advocates of the continental Enlightenment,

protest resolution being drafted by the assembly to address the King. The legislators found Jefferson’s ideas too audacious to endorse. Soon sentiments would change. Thomas Jefferson, “A Summary View of the Rights of British America”; Gregory Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought (Chicago: University of Chicago Press, 1997), 51–55; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion, 20–21. 13 Legal historian Christopher Curtis considers the importance of landholding in the new republic at length. See, Christopher Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. But land and its importance to republican leaders has long been noted in the historiography. For traditional works, see, for example: Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt Brace Jovanovich, 1955); Bailyn, The Ideological Origins of the American Revolution; Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969). Of note: Much of the land of young U.S. was disseminated through two types of land grants in the new United States: those granted by the federal government and those granted by state governments. After the American Revolution, the lands that had been claimed by the colonies were ceded to the federal government. In return the federal government allowed those former colonies, now states, to retain the land in their borders. These states became known as “state land states.” The Carolinas, for example, were state land states. Grants differed slightly for the lands that were accumulated after the war, through for example, the Northwest Ordinance and Louisiana Purchase. The lands west of the Appalachian Mountains lay within the jurisdiction of the federal government and became known as “The Public Domain.” In what would become the state of Louisiana, the federal government granted land to individuals. First the U.S. Congress did so directly. Then, in 1805, Congress set up a Board of Land Commissioners, which heard claims through the form of a petition from those individuals who had received land from the French or Spanish governments in the Territory of Orleans and District of Louisiana. States that were later created out in the area of the “Public Domain” became known as federal land states. When Louisiana became a state in 1812, it was federal land state. 83

and from traditional interpretations of ancient Roman civilization to progressive views of a new American people. Sometimes, these political philosophies were in conflict with one another and spawned debates.14 Jefferson’s arguments against the tenurial system and promotion of allodial title were connected to these debates and campaigns for individual ownership of land across the Atlantic. The French Phyisocrats, like Jefferson, called for private ownership of land; however, in Great Britain, those who supported the enclosure movement and sought to increase individual responsibility for land still balked at fully embracing private land ownership.15 In the budding U.S., political leaders found Jefferson’s arguments influential, but many believed Jefferson’s call for allodial title should be tempered. Ultimately, political leaders across the new U.S. agreed that land should be held in “fee simple” and subject to eminent domain, which granted the

14 See for example conflicts in: Louis Hartz, The Liberal Tradition in America;; Bailyn, The Ideological Origins of the American Revolution; Gordon Wood, The Creation of the American Republic, 1776-1787; Michael Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame: University of Notre Dame Press, 1996); Trevor Colburn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Indianapolis: Liberty Fund, 1998); Edwards, The People and Their Peace; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion; Edwards, “The Contradictions of Democracy in American Institutions and Practices.” 15 An economic school founded in eighteenth century France, Phyisocrats promoted the idea that land is source of wealth and that government policy should not interfere with natural economic laws. Phyisocrats attacked mercantilism for its emphasis on manufacturing and foreign trade as well as its large-scale economic regulations. In England, the enclosure movement (a.k.a inclosure movement) was the aristocratic movement to take land that had formerly been available to the public for grazing animals and growing food, and change it to privately managed land, usually with walls, fences or hedges around it. The English government started enclosing land through “Inclosure Acts” popular from 1801 to 1845 claiming large fields could be farmed more efficiently than individual plots allotted from common land. Profits were kept by the aristocrats who now had legal rights to the confiscated land. See for example, E.P. Thompson, The Making of the English Working Class (New York: Vintage, 1966); Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion, 12; Liana Vardi, The Physiocrats and the World of the Enlightenment (Cambridge: Cambridge University Press, 2014); “Enclosing the Land,” UK Parliament, accessed July 20, 2015, http://www.parliament.uk/about/living- heritage/transformingsociety/towncountry/landscape/overview/enclosingland/. 84

owner the right to dispose of property at will, but still allowed the land to be taxed and state and the federal government the opportunity to expropriate private property for public use after compensating the owner.

Although there were quibbles over the details, the notion of individually controlled property ultimately became popular among a broad class of philosophers and lawmakers in the new U.S. and across western Europe. In the new U.S., Propertied leaders crafted state constitutions that banned hereditary offices and limited familial nepotism, but at the same time, secured for themselves and members of their class more freedom to control property and participate in governance, as states still required extensive landownership for office positions.16 In the Carolinas, and most of the other thirteen states, the higher the office, the more land, or more valuable the land, one was required to hold in order to be eligible for office.17 For example, property ownership was required in order to be an elected member of the General Assembly of North Carolina. A member of the Senate had to own at least three hundred acres while a member of the

House of Commons had to own no less than one hundred acres. A governor (who was elected by members of the House of Commons and the Senate) had to own land and tenements worth more than one thousand pounds, which likely would have translated

16 Edwards, “The Contradictions of Democracy in American Institutions and Practices,” 41; Brewer, “The Transformation of Domestic Law,” 316. 17 Eligibility requirements for voters and elected officials varied by state, and some emphasized property ownership—in real and personal forms—more than others. “Constitution of North Carolina,” December 18, 1776, Articles V-IX; “Constitution of South Carolina,” March 26, 1776, Article XI. 85

into well over three hundred acres of land.18 In order to vote for the state senators, one had to own over fifty acres in the county in which they voted. Residents of North

Carolina who did not own property could only vote for members of the House of

Commons, and even then, only if they had paid taxes.19

In the years after the Declaration of Independence, Eliza Lucas Pinckney’s family, like other members of the South Carolina landed elite, gained more authority to participate in government and to control their property, at the expense of other smaller landholders in South Carolina.20 Both of her sons, Charles and Thomas, participated in structuring of the new national and state governments. Charles was a member of the

South Carolina Senate during the American Revolution and Thomas was governor of

South Carolina from 1787 to 1789. Charles helped expand the power of the South

Carolina aristocracy in governing the state and built important trade relationships with

England. Thomas, as governor, helped maintain such relations.21 South Carolina’s 1778 state constitution enumerated several explicit requirements, both for voters and those

18 While the numbers are not yet available for North Carolina, Holly Brewer estimates that in Virginia, North Carolina’s neighbor, in 1760 rural land prices were about £1.33/acre. So in rural Virginia in 1760, £1000 would have bought one around 752 acres. Assuming land prices rose by 1776 and considering that more developed land would have been more expensive, it is still safe to estimate that £1000 would have bought you more than 300 acres. 19 “Constitution of North Carolina,” December 18, 1776, Articles V–IX. 20 Many historians have shown that in its early years, South Carolina planters secured for themselves authority in government at the expense of smaller landholders. See for example: Edwards, “The Contradictions of Democracy in American Institutions and Practices,” 42. 21 Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition,” University of Virginia Press, accessed June 2, 2015, http://rotunda.upress.virginia.edu/PinckneyHorry/; Ravenel, Eliza Pinckney. 86

wishing to hold state office. White men were the only group eligible to vote and had to own no less than fifty acres of land or a town lot in order to vote for members of the

House of Representatives. More extensive property ownership was required for membership in the General Assembly. In order to hold a seat in the Senate, a potential member had to possess a settled plantation or freehold valued at least two thousand pounds in the district or parish that he intended to represent. Even a non-resident of the district or parish could be elected to represent such parish or district as long as the elected representative owned a freehold in the parish or district valued at seven thousand pounds or more. In order to sit as a member of the House of Representatives, or even to vote for a member of the House of Representatives, one had to hold fifty acres or pay state taxes equivalent to the sum of taxes on fifty acres. The framers also required that the governor of South Carolina own a “settled plantation or freehold” in the value of at least ten thousand pounds.22 Some sources estimate that these new suffrage requirements led to the disenfranchisement of close to 90% of the state’s population. 23

Not surprisingly, the disenfranchisement of so many Carolina inhabitants did result in complaints, and at times civil unrest. The rhetoric of the American Revolution, had, after all, promised that local people would have more control over their own

22 In the 1776 South Carolina State Constitution, the amount of taxable land one needed to own in order to vote was determined by “the election act.” As of yet, I have to the “election act” with this relevant information. “Constitution of South Carolina,” March 19, 1778. 23 See for example, Laura Edwards, “The Contradictions of Democracy in American Institutions and Practices,” 42; Klein also discusses how un-democratic ("in the modern sense of the word") political participation was in South Carolina in years following the Revolution. Klein, Unification of a Slave State, 160. 87

government. Historian Rachael Klein explains that, especially in South Carolina, residents complained that the governing slaveholding elite of the coastal region did not always have in mind the concerns of those small planters and yeomen farmers in the western part of the state.24

Although it certainly was not a complete or immediate solution, state leaders addressed these concerns, in part by making land more readily available. Political leaders of the Carolinas gradually enfranchised more citizens by granting certain inhabitants large tracts of land. From 1784 to 1790, South Carolina granted approximately 15,700 tracts of land to inhabitants. Most of the grants were for tracts of land that exceeded one hundred acres. In the years following the end of the war, many white male recipients of land grants found themselves owning hundreds of acres of land. This move, at least theoretically, would not only give more families property, but also grant the male heads of household a sufficient amount of land to participate in politics and, consequently the governance of their own state. State lawmakers used these state land grants, and the corresponding political rights, to enhance the connection between the people and their state and help quell discontent.25

24 For information relating to the political, social, and economic differences between the coastal regions of South Carolina and the backcountry, see for example: Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (Oxford: Oxford University Press, 1995). 25 “Plats for State Land Grants, 1784-1868,” SCDAH, accessed May 5, 2013, http://www.archivesindex.sc.gov/onlinearchives; David McCorkle, “North Carolina Land Grant Images and Data” NCDAH, accessed April 4, 2014, www.nclandgrants.com. 88

Shortly after lawmakers in the Carolinas, along with most other states, made landownership a requirement for political participation, they also abolished legal institutions that encumbered land and limited an owner’s dispositional authority, thereby granting the landed the more authority over their property than they had experienced under the British Crown. Political leaders began to liberalize property laws by abolishing such restrictive legal land institutions as entail and primogeniture.26

Entail, also referred to in some contexts as fee tail, allowed property-holders to draft a will specifying who would inherit their land for unlimited successive generations. Thus, it allowed the original landowner to control the inheritance of their property and ensure that it remained within their family. When land was entailed (i.e.,

“held in fee tail”), the holder could not sell, devise by will, or otherwise alienate the property. Instead, land passed automatically by operation of law to the original property owner's heirs upon his or her death.27 The concept of entail included several subcategories, including entails that could be restricted to fee tail male, and allow only male heirs to inherit, or to fee tail female, and allow only female heirs to inherit.28

26 See for example, Brewer, “Entailing Aristocracy in Colonial Virginia.” 27 See for example, Robert Morris, “Primogeniture and Entailed Estates in America,” Columbia Law Review 27 (January 1927): 24–51; Stanley Katz, “Republicanism and the Law of Inheritance on the American Revolutionary Era,” in Property Rights in American History: From the Colonial Era to the Present, ed. James Ely, Jr. (New York: Garland Publishing, Inc., 1997), 157–86; Brewer, “Entailing Aristocracy in Colonial Virginia”; Brewer, “The Transformation of Domestic Law”; John Hart, “‘A Less Proportion of Idle Proprietors’ Madison, Property Rights, and the Abolition of Fee Tail” 58, no. 1 (January 1, 2001); Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. 28 Other special entails could restrict inheritance in various ways. Brewer points to many different instances of entail in England and Virginia. For example, she finds an entail “could be initially limited to children 89

Unlike entail, under which women could hold land, primogeniture dictated that the eldest living son (known as the “heir at law”) inherited all the real property of a father who died intestate. If a family had no sons, then daughters inherited jointly.29

But, if a will had been made, then the will’s stipulations would govern and primogeniture would not go into effect. Primogeniture was chiefly a holdover from

English common law. In early modern England, primogeniture governed not only land transfers, but also honorary titles and political offices, such as royal status and membership in the House of Lords.30

Political and philosophical leaders of the time who claimed that individual property ownership was central to a well-functioning republic argued that legal institutions like entail and primogeniture threatened republics by keeping wealth and political power in the hands of a few for potentially unlimited generations. 31 Efforts to abolish entail and primogeniture were not merely confined to legal discussions of property law or the law of trusts and estates. Scholars have argued that the debates over

born to a particular married couple, in which case, if the wife died childless and the husband remarried and had issues, such issue could not claim the estate. Fee entails could also be conditions in the they could be broken or forfeited if certain conditions were not met—for example, that the heir must live on the estate.” Brewer, “Entailing Aristocracy in Colonial Virginia,” 314. 29 Ibid. 30 With the exception being the County of Kent. Lee Alston and Morton Schapiro, “Inheritance Laws Across Colonies: Causes and Consequences,” The Journal of Economic History 44, no. 2 (June 1984): 277–87; Brewer, “Entailing Aristocracy in Colonial Virginia.” 31 Brewer notes that St. George Tucker claimed alluded to this concern when he stated: “When the Revolution took place, a different mode of thinking succeeded; it was found that entails would be means of accumulating and preserving great estates in certain families, which would, introduce all the evils complained of in England, but be utterly incompatible with the genius and spirit of our constitution and government.” Brewer, “Entailing Aristocracy in Colonial Virginia,” 343. 90

inheritance through entail and primogeniture that waged in early modern England, as well as in the new United States, were about political sovereignty itself.32 Seventeenth century English political theorist Sir Robert Filmer, who advocated patriarchal political theory in Partriarcha, claimed that paternal authority was natural and that the rights of the father—even his authority over siblings—passed to the eldest son. Filmer, placing the origin of kinship in this combination of paternal authority and primogeniture, traced the sovereignty of English kings back to Adam’s rule in the Garden of Eden.

Philosophers from John Locke and Algernon Sydney, to James Harrington, and Thomas

Paine, all argued that abolishing primogeniture was vital to establishing a republican form of government.33 In fact, John Locke directed the first of his Two Treatises of

Government to refuting Filmer’s arguments for primogeniture.34

The assault on primogeniture and entail philosophically challenged both the way that royalists justified authority and the way political power was allocated through inheritance. Primogeniture, in particular, justified monarchy itself. Influential philosophers and political leaders reasoned that if governing titles were no longer guaranteed though bloodlines, then neither should large tracts of lands (which were

32 John Locke, Two Treatises of Government: In The Former, The False Principles, And Foundations Of Sir Robert Filmer, And His Followers, Are Dectected And Overtrhown. The Latter Is An Essay Concerning The True Original, Extent, And End of Civil Government (London: Black Swan, 1689); Pateman, The Sexual Contract; Brewer, “Entailing Aristocracy in Colonial Virginia”; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. 308. 33 Brewer, “Entailing Aristocracy in Colonial Virginia,” 308. 34 Locke, Two Treatises on Civil Government; Brewer, “Entailing Aristocracy in Colonial Virginia.” 308. 91

typically associated with political titles) be held in perpetuity, especially now that landownership was so vital to political participation.35 Virginia statesmen like Jefferson and George Mason, along with legal scholars and political theorists like St. George

Tucker and Thomas Paine, claimed that such old world vestiges posed threats to their new republican order. Conservative legal scholar James Kent summarized the perceived necessity for abolition when he said, “Entailments are recommended in monarchical governments, as a protection to the power and influence of the landed aristocracy; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction.”36

Leaders and legal theorists recognized that these initiatives to end entail and primogeniture granted landholders like themselves and their heirs more freedom to control property. In abolishing entail and primogeniture, such leaders turned land into a commodity that could belong completely to individuals. It could be bought, sold, mortgaged and ultimately put to its most efficient use in the marketplace.37 The conversion of land into a commodity expanded the freedom to contract, helped unravel

35 Brewer notes that Virginia statesmen like Jefferson and George Mason, along with legal scholars and political theorists like St. George Tucker and Thomas Paine, claimed that such old world vestiges posed threats to their new world order. Jefferson again leaned on the idealized narrative of “Saxon” standards of rightful property ownership and argued that entail and primogeniture needed to be abolished to eliminate “every fibre… of aristocracy” and to lay “a foundation…for a government truly republican.” Brewer, “Entailing Aristocracy in Colonial Virginia.” 307-308. 36 Statement made in 1827. Quoted in Jens Beckert, Inherited Wealth, trans. Thomas Dunlap, English (Princeton: Princeton University Press, 2007), 161. 37 Ibid., 307. Curtis argues, efforts to abolish entail “represented an effort to renovate the relevance of landed status in an emerging commercial world.” Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion, 12, 57. 92

tangled lines of property ownership, made it easier to identify and prosecute debtors, streamline finance, facilitate mortgages, and generally increase both circulation of and access to capital. Economic and legal historians have connected the rise of more liberalized property laws to burgeoning capitalist markets. These historians have argued that entails had the ancillary effect of imposing sharp restraints on the free flow of capital, in addition to land. While similar numbers are not yet available for the

Carolinas, legal historian Holly Brewer suggests that entails controlled three-fourths of the land in tidewater Virginia by the time of the Revolution. Landownership became an important issue among state leaders, in part, because they perceived a shortage of purchasable land and prevented the flow of land to those who could utilize them. 38

Even the pro-republic idealist political leaders and philosophers, who appeared to advocate for freer markets on a purely philosophical level, were likely motivated on some level by their desire for greater freedom to leverage their assets and grow their wealth.39 Legal institutions like entail and primogeniture kept large tracts of land bound up for generations and made the sale of such property difficult. Scholar Jens Beckert reminds us that when James Kent, for example, challenged entails, he was writing

38 See, for example: Joyce Oldham Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984); Brewer, “Entailing Aristocracy in Colonial Virginia,” 343–45; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. 39 See Appleby, Capitalism and a New Social Order; Brewer, “Entailing Aristocracy in Colonial Virginia”; Curtis, Jefferson’s Freeholders and the Politics of Ownership in the Old Dominion. 93

against the backdrop of concentrated land along the Hudson Valley in New York.40

Others, like Jefferson, had frustrating first-hand experiences with entailed property. For example, Holly Brewer explains that Thomas Jefferson’s wife, Martha Wayles Jefferson, owned 1,200 acres in Cumberland Country that had been entailed on her by her grandfather. Because Martha and Thomas Jefferson lived in Albermarle County, they felt that the land that Martha owned was too far away from Thomas’s estate to efficiently manage and they wished to sell it. They appealed to the House of Burgess in

1774 to have the entail docked, which was one of the only ways one could legally be released from entails. Their appeal was rejected, which likely helped fuel Jefferson’s interest in abolishing entail.41

Despite the compelling arguments that prominent lawmakers and philosophers made against entail and primogeniture, the debate to abolish these institutions was bitter. Those who had land entailed to them saw entailed land as valuable in that it helped guarantee the right of the male representative of the family to participate in politics generation after generation. In addition, because family members who held entailed land typically generated revenue from such land, they were wary of reform.

Brewer explains that the wealthy Virginian Landon Carter wrote to George Washington and expressed his disgust with Jefferson’s bill to abolish entail. He took the bill as an

40 Beckert, Inherited Wealth. 41 Brewer, “Entailing Aristocracy in Colonial Virginia,” 327–28. 94

indication that Jefferson must be “a midday drunkard.” Edmund Pendleton proposed the abolition bill in Virginia with a provision that would require the consent of both the current tenant in tail and the next heir in order to dock an entail, which would have left the institution essentially intact given the natural self-interest of the next heir. The provision had a substantial amount of support, but ultimately was not included in the bill. However, on the other side of the debate, families who might have lost land (and status) with the abolition of entail may have ultimately supported its abolition, in part, because restrictions imposed by entails were felt keenly by later generations. Entailed land could also bankrupt a family or prevent a family from getting loans if they could not sell or mortgage the land they held.42

All states in the new republic ultimately decided to end the institution of entail.43

Virginia spearheaded the effort and effectively abolished entail in October 1776 by passing a law that converted fee tail estates into fee simple estates, explicitly extinguishing the corresponding interests of the “the issue in taille, and those in reversion and remainder.” The state thus transformed fee tail estates already in existence, as well as future fee tail estates, into estates owned in fee simple.44 The

Carolinas, again, followed Virginia’s example. South Carolina abolished entail in 1776.

North Carolina’s 1776 state constitution ordered that the future legislature “regulate

42 Ibid., 313, 341. 43 Robert Morris, “Primogeniture and Entailed Estates in America”; Beckert, Inherited Wealth. 44 Hart, “‘A Less Proportion of Idle Proprietors’ Madison, Property Rights, and the Abolition of Fee Tail,” 168; Stanley Katz, “Republicanism and the Law of Inheritance on the American Revolutionary Era,” 301. 95

entails, in such a manner as to prevent perpetuities,” and it officially abolished entail in

1784.45

To be sure, while politicians banned the legal regulations that allowed land to be held in perpetuity, they did not ban the practice of passing down family property.

Initially, many families of the new republic were unwilling to relinquish practices that preserved family land and wealth. As fee tail estates were converted into fee simple estates, families found ways to maintain old traditions. For example, although entail in the form described here was legally abolished, life estates became a popular alternative.

Families employed life estates to ensure that wealth stayed within their family for at least two generations following the death of the original landowner. Life estates occurred when a person willed real property to an inheritor for that inheritor’s natural life and then, when the inheritor died, to another person chosen, this time in fee simple, by the creator of the original will. For example, in 1791, a planter named Benjamin Elliott made his mother, Elizabeth Elliott, the executrix of his will and then gave her “the use of all and singular my Estate - both real and personal…for and during the Term of her natural life and no longer.” After his mother’s death, he willed the whole of the estate, both real and personal, to his nieces “Eliza Drayton and Margaret Drayton (children of my beloved Sister Elizabeth Saunders Drayton, wife of Glen Drayton Esquire) and to

45 Stanley Katz, “Republicanism and the Law of Inheritance on the American Revolutionary Era,” 301; “Constitution of North Carolina,” December 18, 1776. 96

such other child or children as my said sister Elizabeth may have, or be pregnant with at the time of my decease, to be equally divided between and among them…and each of their Heir and Assigns absolutely forever.”46

The property in life estates was similar to property held in fee tail. The first person who inherited the land could use the land as they saw fit, but they could not sell, devise by will, or otherwise alienate the property because it was already willed to another person after the death of the first recipient. For example, Elizabeth Elliott could not sell any land she received from her son Benjamin because after she died, it was already willed to his two living nieces and any other nieces or nephews his sister

Elizabeth Drayton might bear during Benjamin’s life. The life estate granted by Benjamin

Elliot differed from entail in that it allowed his two living nieces (and any other nieces or nephews his sister Elizabeth Drayton might bear) to then will or sell the land to whomever they wished, meaning the land did not have to remain in the family.47

The popularity of life estates demonstrates the ongoing salience of the idea that families should hold land for multiple generations. Testators in this period, like

Benjamin Elliot, may have been hesitant to abandon the practice of keeping an estate intact for multiple generations for several possible reasons. Testators may have resisted

46 “Will of Benjamin Elliott” South Carolina Probate Records, Bound Volumes, 1671-1977, Charleston, Wills, Vol. 24), 786–787, Ancestry.com, accessed March 19, 2015, www.ancestry.com. In addition, this will complies with the rule against perpetuities by specifying that the nieces and nephews who stood to inherit land had to be alive at the time of Benjamin Eliott’s death. 47 The language of “heirs and assigns” is what then made the land held “in fee simple” because one’s heirs does not have to be one’s descendants, they could be anyone chosen by the creator of the will. 97

the idea of immediately breaking up an estate because the profits generated by large estates, such as plantations, might exceed the sum of the profits generated by smaller, separately managed tracts. Benjamin Elliot may have had this very concern when he decided to will his entire estate to first to his mother, intact and then, after the estate had successfully provided for his mother during her life, equally between this nieces in order to provide for each of them. Benjamin may have assumed that at the time his nieces inherited the estate, they would be older and have accumulated more property through inheritance from their parents or through marriage. His estate, then, would have been merely a source of supplemental income. Additionally, in an era where disease could devastate a community, or routine events like childbirth could be fatal, testators knew that life could be fleeting. Ensuring a detailed contingency plan for a testator’s loved ones would have been even more practical and necessary in this context. If the person who initially inherited the property died intestate, the original testator could have peace knowing that the property would still pass to pre-selected heirs. Moreover, testators perceived certain family members as vulnerable – including women and children – and therefore made provisions to afford those most vulnerable and their caregivers (or even those they cared for) with protection. Elliot may have been motivated by this concern when he willed his estate to specifically female members and their heirs.

Notably, Benjamin Elliot deliberately structured his will to keep the property out of Elizabeth’s then current husband’s control (or any future husband’s control, should

she become widowed and remarried) by ensuring that property would go directly to her children, and any children she might later have. In doing so, Elliot attempted to protect the blood descendants of the Elliot family line, and exclude descendants of the Drayton family line. For example, if Elizabeth had died, and her husband (still the guardian of his and Elizabeth’s children, who were Elliot’s blood nieces) had remarried and bore more children through his new wife, his children from Elizabeth would not have to share the property they received from Elliot with their new half-siblings. In these cases, it becomes clear how powerful bloodlines remained in the aftermath of the Revolutionary War.

Nevertheless, the preference for individually owned property (at the expense of family-owned property) continued to grow, especially as states across the nation began to abolish primogeniture. It took somewhat longer for the Carolinas and many other states in the new nation to abolish primogeniture in cases of intestate death (which occurs when a person—in this case a parent—dies without making a will), but most had by 1791.48 In the case of North Carolina, it took a series of legal changes before female children could inherit in cases of intestate death on par with male children. Most legal historians argue that primogeniture remained intact in North Carolina until 1784, when the North Carolina legislature replaced primogeniture with a system under which, in the case of intestate death, the father's real property would be shared among all of the

48 According to Robert Morris, primogeniture existed in New York until 1786, Rhode Island until 1798 (except for 1718-1728), Maryland until 1786, Virginia until 1785, North Carolina until 1784, South Carolina until 1791, and Georgia until 1777. 99

deceased's male children. However, the female children were still excluded from the property distribution under the 1784 legislation.49 Historians have generally accepted that it was not until 1792 that the North Carolina law was again changed to allow multigeniture (dividing the estate among all the children, male and female).50 Similarly,

South Carolina’s 1790 constitution directed the legislature to pass laws that abolished primogeniture and create laws for equitable distribution of the real estate of those who died intestate, which the legislature accomplished with the passage of new intestacy laws in 1791. 51

As with entail, not everyone celebrated the end of primogeniture. Eliza Lucas

Pinckney’s published family papers reveal elites’ hesitation to let go of primogeniture.

Eliza’s second born son, Thomas Pinckney who served as governor of South Carolina from 1787 to 1789, lamented the demise of primogeniture precisely because it affected

49 Morris, “Primogeniture and Entailed Estates in America”; Alston and Schapiro, “Inheritance Laws Across Colonies: Causes and Consequences.” 50 However, multigeniture (dividing the estate among all the children) laws existed in black letter form as early as 1766 in North Carolina. According to the 1766 Complete Revisal of all the Acts of Assembly, of the Province of North-Carolina, Now in Force and Use, the rules of intestacy held that after the surviving spouse received her third share, the remaining estate would be divided equally “amongst the Children of such person dying intestate.” No gender discrepancy is made. So at the very least, concepts of multigeniture were on the books, if not in practice, prior to the Revolution. Complete Revisal of All the Acts of Assembly, of the Province of North-Carolina, Now in Force and Use: Together with the Titles of All Such Laws as Are Obsolete, Expired, or Repealed: With Marginal Notes and References, and an Exact Table to the Whole (Newbern: James Davis, 1773), 343–344; See also: Henry Potter, Bartlett Yancey, and George Mendenhall, Laws of the State of North-Carolina: Including the Titles of Such Statutes and Parts of Statutes of Great Britain as Are in Force in Said State : Together with the Second Charter Granted by Charles II to the Proprietors of Carolina, the Great Deed of Grant from the Lords Proprietors, the Grant from George II to John Lord Granville, the Bill of Rights and Constitution of the State : Including the Names of the Members of the Convention That Formed the Same, the Constitution of the United States, with the Amendments and the Treaty of Peace of 1783: With Marginal Notes and References (Raleigh: J. Gales, 1821). 51 “Constitution of South Carolina,” June 3, 1790; Morris, “Primogeniture and Entailed Estates in America.” 100

family dynamics. As a second son, Thomas theoretically stood to gain financially from the abolition of primogeniture in cases of intestate death. When asked how he felt about the abolition of primogeniture in South Carolina, he replied “that the changed condition of things had evidently made it necessary to abolish the law,” but that he, personally, had benefited from its moral effect. He claimed, “I never felt myself as fatherless as I should have done, had I not had my brother to look to as an authority, and he always felt a paternal responsibility toward me.”52 While he recognized that the liberalization of property laws followed Republican ideals, he still felt that abandoning primogeniture – a vestige of the old world aristocracy – might well affect intra-family relationships. 53

With land more equally divided among members of the family, it might disrupt the sense of extended familial care. The eldest son, might no longer worry about caring for his mother and siblings (like his mother, brothers, and sisters) and instead only worry about his own property and the property’s utility to himself and immediate family (wife and children, if he had any).

Not all politicians lamented the potential change to family dynamic. In fact,

Jefferson saw the abolition of entail and primogeniture as potentially helpful to improving intra-family dynamics. While Jefferson does not go so far to say that he believed the abolition of entails would benefit the individual father of each household,

52 Ravenel, Eliza Pinckney, 208–9. 53 Ibid. 101

he suggested that entails ability to keep land in the family line, may make children more unruly. In the preamble to Jefferson’s bill to abolish entail in Virginia, Jefferson made it clear that he had the welfare of the family in mind. He wrote: “Whereas the perpetuation of property in certain families …sometimes does injury to the morals of youth, by rendering them independent of, and disobedient to, their parents.”54

The abolition of entail and primogeniture, more than the expansion of political participation through property ownership, represents a significant ideological step toward individualism and away from the control of property by families. Likewise, lawmakers justified the abolition of primogeniture by claiming that primogeniture was not only unfair to the other sons, and in some cases, daughters, but also necessary to break from this monarchial tradition of patriarchal authority, which passed to the eldest son, and justified the institution of monarchy.

In abolishing these two legal institutions, lawmakers demonstrated that they were motivated on a philosophical level to strengthen connections between the people and the state by allowing more opportunities for large estates of family-held land to be parceled out and inherited among more heirs or sold to non-family members. For example, an estate like the one Eliza Pinckney’s oldest son Charles had inherited through primogeniture would now be split between all of the heirs, including the

54 Quoted in B. L. Rayner, Sketches of the Life, Writings, and Opinions of Thomas Jefferson: With Selections of the Most Valuable Portions of His Voluminous and Unrivaled Private Correspondence (New York: A. Francis and W. Boardman, 1832), 137; Beckert, Inherited Wealth, 160. 102

females. With these changed inheritance laws, more sons had more opportunities to own land in their own names’ and gain the rights that accompanied landownership. In the

Pinckney’s case, Thomas, the second son, then, would also likely receive enough land to grant him voting and office rights. Notably, Eliza’s youngest child, a daughter, would have also received land. But as a woman, she would not have received the same voting rights as her brothers. In abolishing these two legal institutions, state lawmakers acted as self-interested landowners themselves, likely wanted to exercise greater control over their own lands.

By breaking down rigid patriarchal institutions that controlled property ownership and implementing multigeniture, may seem at first to have been beneficial to elite women. But by eliminating an important means by which women controlled property as family representatives, the abolition of entail likely diminished the ability of elite women to control property. Brewer has shown that fathers in Virginia often granted entailed property to their daughters, and not only when families lacked sons. Some entails started with daughters, so that fathers could prevent a husband from controlling or selling the family’s land, preserving it intact for his daughter and her children. Even in cases where entails favored the male line, over time they limited the power of the husband-patriarch and often allowed elite and middling women to gain control over

103

large estates.55 Additionally, the introduction of multigeniture brought with it no protection from a daughter’s husband who may want to sell or mortgage her inherited property and thus enhanced the power of the husband-patriarch over his wife.56

While the concept of family property continued to be important in the years immediately following the Revolution, it was increasingly eclipsed by the concept of individual property owned by one man as head of the household.57 The abolition of the legal institutions that ensured land would be held in perpetuity by members of one family represented more than just the rise of liberalized property laws. It also signaled a significant change in the very conception of land ownership. Land, which was once imagined as an asset bound to a family for generations, became a commodity that could be disposed of at the will of the individual in control of the land. This small change, although seemingly liberating for the men and women of propertied families, significantly altered old networks though which multiple members of the family could participate in the management of such land. As the liberalization of property laws turned land into a disposable commodity to be individually owned, it fundamentally changed members of propertied families’ relationship to the state. In the Carolinas and throughout the South, more white men from propertied families could vote and

55 Brewer, “The Transformation of Domestic Law,” 301. 56 Ibid., 343-345. 57 Holly Brewer makes a similar argument. Ibid., 316; See also: Appleby, Capitalism and a New Social Order; James Henretta, The Origins Of American Capitalism: Collected Essays (Boston: Northeastern, 1991). 104

participate in governance, but propertied women still could not. While white men were growing more important to state governance, white women were largely left behind.

As the nineteenth century progressed and individual men gained more control over property, wealth replaced land ownership as a prerequisite for political participation. Powerful elites, like Eliza’s sons Charles and Thomas, still remained influential leaders in the decades following the war, but by 1790 they also began to share political authority with a broader class of white men. In 1790, South Carolina’s amendment to its state constitution made voting practices more inclusive. The South

Carolina Constitution granted free white men over the age of twenty-one who had paid a tax the previous year of “three shillings sterling toward the support of the government” the right to vote for members of the House of Representatives and the

Senate.58 South Carolina thus made property ownership in general (given that taxes in this period are almost always taken from property ownership of some kind), instead of land alone, a prerequisite for voting. In doing so, state leaders ensured that the new capitalists who wanted freedom to liquidate or leverage their land could still maintain their connection to governance and participate in the political process.59 Still, the same voting rights that accrued to men of a certain wealth did not accrue to women.

58 The governor was still required to hold a property or settled plantation worth 1500 pounds sterling. “Constitution of South Carolina,” June 3, 1790. 59 Many historians have made the argument that elite conservatives vision of the U.S. being ruled by an elite aristocracy were steam rolled by the more democratic impulses of the American Revolution, Gordon Wood 105

In their continual process to purify and improve upon a corrupt British colonial order and forge tighter bonds between the people and their state government, more states throughout the new United States continued to extend suffrage, and the South was no exception. In 1810, the year Henry Middleton, a Jeffersonian Democratic-

Republican assumed governorship, South Carolina lawmakers amended the state constitution and again made voting yet more inclusive by allowing free white men over the age of twenty-one (with the exception of “paupers, and non-commissioned officers and private soldiers”) to vote for either branch of the legislature.60 For South Carolina, a state controlled by a tight network of slaveholders that had disenfranchised nearly 90% of the state in 1778, this represented a significant increase in political participation and a major move toward male-centered individualism.

Movement toward male-centered individualism occurred similarly throughout the south, but opposition to legal reforms became particularly hostile in Louisiana, a territory that, despite the protest of many of its inhabitants, had been abruptly integrated into the new United States. In 1803, the United States bought the Louisiana

Territory from France, inheriting a population of French, Spanish, and Creole people. As noted in chapter one, the French, Spanish, and creole people – or ancienne population, as

is one example. Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford: Oxford University Press, 2009). 60 “South Carolina State Constitution,” South Carolina - Key State Documents, accessed March 13, 2015, http://www.carolana.com/SC/Documents/sc_constitution_1790.html. 106

they would come to refer to themselves, resisted the idea of becoming “American.” 61

For decades after the Louisiana Purchase, the ancienne population continued to identify as different from the Americans. This resistance to identify as American may have arisen, in part, because the ancienne population, at least initially, did not have the same revolutionary fervor as their new American countrymen. According to historian Thomas

Ingersoll, French, Spanish, and Creole settlers in the Louisiana Territory were not as unhappy with their respective monarchies as the British colonists had been. The French living in what would become the state of Louisiana, for example, did not complain of the

“Norman yoke” described by Jefferson, perhaps because the some of them were literally the descendants of the Normans. Louisiana elites typically maintained greater allegiance to their monarch than the American colonists had held to theirs. In fact, Ingersoll claims that although French planters (who were the majority of planters in the region) felt abandoned by the Crown when it ceded control to the Spanish Crown in 1762, they still continued to see themselves as French. They rose up and exiled the governor sent by the

Spanish in 1768, set up a transitional independent government and then implored Louis

XV to take them back into his empire.62 This sentiment carried over into the nineteenth

61 The French used a similar term, they called themselves (along with the Spanish and Creoles, the “civilisées anciennes.” “Vexatus Toties, Nunquamne Responam?,” Le Courrier de La Lousiana (Louisiana Courier), June 4, 1821; Historians Paul Lachance and Joseph Tregle Jr. both use the term to apply to the populations I have identified here. Paul Lachance, “The Foreign French,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 122; Tregle, Jr., “Creoles and Americans,” 140. 62 Certainly some embraced popular sovereignty, but this democratic ideal did not gain the same traction in the Louisiana territory as it did in parts of the newly created United States in the late eighteenth century. 107

century, even after multiple regime changes. As one English visitor put it, the French planter was seen “as a Frenchman venturing his life, enduring a species of banishment, and undergoing great hardships for the benefit of his country” still yearning to return to

France.63

Tensions between the formerly French and the new “Americans” persisted, and may have been made worse by the fact that many Frenchmen in the regions repeatedly stressed the difference and ignored the similarities between their customs and customs of their new American government. On broad structural governing issues, Louisiana political leaders, including many of whom were members of the ancienne population, crafted the Louisiana Constitution to look markedly similar to the constitutions of the

Carolinas. The numerous resemblances between the governing frameworks of Louisiana and the Carolinas emerged, in part, because the Northwest Ordinance, which did not apply to Louisiana but which nonetheless established the framework for admitting all new states into the Union, required a certain degree of consistency among the new territories and the existing states. Moreover, Louisiana, like the Carolinas, and most of

Thomas Ingersoll, “The Law and Order Campaign in New Orleans, 1763-1765: A Comparative View,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Hagler Minter (Athens: The University of Georgia Press, 2013), 49, 58-59. 63 Louisiana’s local system of governance depended more heavily on the foreign French Crown’s appointment of local leaders than Britain’s North American colonies had experienced. Unlike the colonists in the land controlled by British, the colonists in Louisiana generally accepted the presence of a French standing militia. Edmund Burke, The Works of The Right Honourable Edmund Burke, vol. 9 (London: Henry G. Bohn, 1846), 63; Ingersoll, “The Law and Order Campaign in New Orleans, 1763-1765: A Comparative View,” 49, 58–59. 108

the other states throughout the new U.S. limited suffrage to white men and political offices to white propertied men.

From a governance perspective, Louisiana was markedly different from other states in that it kept its civil law system. However, even though Louisiana remained a civil law state and many in Louisiana emphasized its difference, many of the codes looked markedly similar to statues in the common law states, including some involving more equal distribution of family wealth as inheritance.64 Nonetheless, the political and legal philosophy of individual property ownership, which emphasized the use of trusts and estate documents as well as contracts for business and tax purposes in order to make clear precisely who owned each part of a family’s land, struck some of the ancienne population as particularly “American.” According to the Duparcs’ family papers,

Americans amended the Civil Codes of Louisiana in 1824 to include a system of “forced inheritance” that would break Creole estates into smaller tracts and make them available to American buyers. The Duparcs claimed that the Americans claimed that Creoles had a “stranglehold” on Louisiana real estate, natural resources and the state’s sugar and cotton based economy and wanted access to valuable land and participate in the profitable economy. The family papers claim that: “The Anglo intent was to destroy the

64 On resistance to the introduction of common law in Louisiana, see for example: John Hood, Jr., “The History and Development of the Louisiana Civil Code,” Louisiana Law Review 19, no. 1 (December 1958): 18– 33; Roger Ward, “The French Language in Louisiana Law and Legal Education: A Requiem,” Louisiana Law Review 57, no. 4 (Summer 1997). 109

Creole estates, carving them into ever-smaller pieces and making them more available to

American buyers.”65

However, the perceived “American” affront on the existing laws and customs of the ancienne population, was not unique to Louisiana, nor to the United States.

Burgeoning capitalist economies were displacing the mercantilist economies across the

Atlantic.66 Scholars have shown that the redactors of the Code Napoleon in France were consumed with revolutionary distrust of concentrated wealth and some have even argued that their prime objective was to break up large landed estates and to prevent their consolidation in the future.67 While the American Revolution would seem to have placed the United States at the forefront of efforts to liberalize and modernize property laws, the actual amendment of laws related to sustained inherited privilege—both in terms of governance and property ownership—were widespread and occurred not only throughout the new United States, but also throughout parts of the Atlantic as republics replaced monarchical regimes. Even the “forced inheritance” the Duparcs referred to was likely “forced heirship.” The forced heirship practiced in Louisiana was derived from Roman and French law and Germanic customs that had roots that tracing back to the Middle Ages. Under forced heirship, all children of a deceased person had a right to

65 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 135–36. 66 See for example, Colin Mooers, The Making of Bourgeois Europe: Absolutism, Revolution, and the Rise of Capitalism in England, France and Germany (London: Verso, 1991); Jack Greene and Philip Morgan, eds., Atlantic History: A Critical Appraisal (Oxford: Oxford University Press, 2008). 67 Gerald Le Van, “Alternatives to Forced Heirship,” Tulane Law Review 52, no. 1 (1978 1977): 33; See also, Beckert, Inherited Wealth. 110

a portion of the deceased’s estate.68 But the Duparcs saw this not as an enforcement of their own civil laws, but as an imposition of American legal practices.

The inheritance laws that the ancienne population perceived as “American” further exacerbated ancienne population’s resentment of their new countrymen. Much like the

Landon Carter in Virginia, the Duparcs also protested the liberalization of property laws. Unlike the Carter, the Duparcs interpreted the implementation of such laws as an

American attempt to dislodge the ancienne population from their family lands. Tensions between the Americans and the ancienne population were so intense that they seem to have blinded the ancienne population to the fact that liberalization of property laws occurred in European empires as well.

Not ready to let go of their customs, the Duparcs used legal maneuvers to curb the effects of the changes to property inheritance laws. According to the Duparc’s family papers, they were one of many French Creole families that believed that incorporation was necessary to prevent their land and business from being broken up by increasingly prevalent “Anglo” inheritance laws.69 In 1829 to “thwart this American intrusion,”

Elisabeth Duparc Locoul and her brothers formed a family corporation – called the

68 Although unlike multigeniture, which was enacted in cases of intestate when no will had been made, forced heirship was a legal device that limited the testamentary powers of an individual married/and or with children. It was to prohibit a married individual and/or a parent from disinheriting their spouse or children. 69 Laura Locoul Gore, Memories of the Old Plantation Home: A Creole Family Album, 135–36. 111

Duparc Frères et Locoul Sugar Company.70 For the Duparcs, the incorporation of a family operation worked and they managed to protect their family estate and business for the next thirty years.71 Although Elisabeth Locoul and her brothers successfully used sophisticated legal maneuvers to retain control of the estate their family had held since the Louisiana Purchase, other families, particularly the women in other families, would not be as fortunate.

The same ideology that renounced a system of fixed class and political status and propelled concepts of individual property ownership also shaped the legal debate about the rest of the household and the pattern of authority within it.72 These broad changes— which transitioned power away from families as a group and concentrated it in the hands of individual white men—altered propertied white women’s formal legal relationship to family property. Against this backdrop of changing conceptions of property control and political participation, white propertied women, as we will see in the remaining chapters, experienced new legal challenges to their control of property.

70 Ibid., 135. 71 Ibid., 138. 72 Holly Brewer makes a similar argument. See: Brewer, “The Transformation of Domestic Law,” 316. 112

Chapter Three: Married Women and Family Property, 1785 to 1835

In 1833, Abigail Rudisell became so upset with her husband’s management of their enslaved people, that she sought legal intervention. Without her consent, Abigail’s husband had sold an enslaved woman whom Abigail had inherited from her farther.

Abigail wanted the enslaved woman returned. Because Abigail was married at the time she inherited the enslaved woman from her father, the enslaved woman technically belonged to her husband under the common law. But Abigail argued that because her father had explicitly said in his will that the enslaved woman was for “her and her heirs proper use,” he had clearly meant to form a separate estate for her sole use.1 Separate estates allowed married women to maintain control over property they brought to a marriage, and, depending on how it was worded, limited or excluded their husbands’ control.2 She appealed to North Carolina’s State Supreme court, which was sitting in equity—precisely because it was the only state court at the time that had the power to recognize and enforce separate estates for married women.3 Chief Justice Ruffin, however, writing for the Court, disagreed with Abigail’s interpretation of her father’s

1 Abigail M. Rudisell v. Robert Watson, 2 North Carolina Reports: Equity Cases Argued and Determined in the Supreme Court of North Carolina 430 1831-1834 at 432. 2 Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, No. 4 (October 1982): 655–85; Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986) 81–120. 3 Louis Towles, “Chancery Court,” ed. William S. Powell, Encyclopedia of North Carolina, University of North Carolina Press, 2006, accessed June 1, 2017, http://www.ncpedia.org/chancery-court; “North Carolina Court History - The North Carolina Court System,” accessed June 1, 2017, http://www.nccourts.org/County/Orange/Documents/ChathamOrange_NCCourtHist.pdf. 113

will. Although he acknowledged that there were pre-existing cases in which a wide range of language was ruled acceptable to create a separate estate, he also cited newer cases that limited the language that could be used to create a separate estate for married women in wills. Justice Ruffin claimed that the language used by Abigail’s father (or, in

Ruffin’s words, the “unskillful” draftsman) was too ambiguous for Abigail’s argument to be sustained in light of recent cases, or original principles. Further, Justice Ruffin made it clear that he believed it was problematic to violate Abigail’s husband’s common law right to manage the enslaved woman when he said: “At law a gift of chattels to the wife is a gift to the husband. As a general principle, the rule of equity is the same.”

Justice Ruffin then dismissed the case. Abigail’s case is important, not because one woman failed to see her authority over inherited enslaved women recognized. Instead, the case is important because it was one of the earliest examples of the state narrowing its definition of what constituted a separate estate for married women in equity law.4

During the Early Republic, as state-level lawmakers in the Carolinas and

Louisiana made legal reforms to expand southern white men’s rights to participate in political governance and in the economy, they also granted these men with more formal legal authority over family property.5 State lawmakers implemented a series of subtle

4 Rudisell v. Watson, 2 North Carolina Reports at 433. 5 This argument builds on longstanding arguments in legal history. See for example, Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982); Holly Brewer, “The Transformation of Domestic Law,” in The Cambridge History of Law in America Volume I: Early America (1580-1815), ed. Michael Grossberg and Christopher Tomlins, vol. 1 114

and often overlooked legal changes to rules governing family estates, including the ways separate estates could be created through marriage settlements, marriage contracts, and wills, as well as the way intra-family contracts could be structured. Such new state legislation, Supreme Court, and equity court rulings helped—at least on a theoretical level—household property attach more easily to husbands than it did to wives. When state lawmakers initiated such legal reforms, however, they did not always intend to curb wives’ property rights. Instead, they intended such reforms to promote the uniformity of laws and contracts and encourage the creation of a more industrious society. But in passing and interpreting a series of laws aimed at building a more streamlined and organized slave-based society, legislators and the judiciary created new state-level rules that could jeopardize a married woman’s control over family property, especially when that control was challenged by her husband. White men’s expanding political and legal authority had a cultural component as well. Their power both reinforced and was reinforced by cultural narratives that further promoted a husband’s ownership of family property at the expense of a wife’s ownership of family property.

---

The primary legal changes that enhanced men’s formal legal access to family property at the expense of female family members had roots in lawmakers’

(Cambridge: Cambridge University Press, 2008), 288–323.; Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: The University of North Carolina Press, 2009); Woody Holton, “Equality as Unintended Consequence: The Contracts Clause and the Married Women’s Property Acts,” The Journal of Southern History 81, no. 2 (May 2015): 313-340. 115

revolutionary desires to promote individual property ownership and jettison many types of property encumbrances that were explored in chapter two. In the late eighteenth and early nineteenth century, as southern lawmakers in common law states liberalized inheritance laws—for example, by abolishing entail and replacing primogeniture (which made the oldest son heir to the family estate) with multigeniture

(which allowed a more even distribution of real and personal property among all children) in cases of intestate death in the Carolinas and enforcing forced heirship in

Louisiana—they increased the likelihood that more sons and daughters were likely to inherit some family property in their own names.6 However, at the same time they liberalized inheritance laws, they did not strengthen laws that protected a daughter’s ability to maintain control of property when she became a wife.7 Instead, legislators augmented husbands’ authority over household property. In the deeply patriarchal south, a husband legally stood as head of the household property in both common law states and the civil law state of Louisiana. A wife could legally abrogate his authority

6 This point has made by many legal historians of the early republic, for recent works, see: Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” The William and Mary Quarterly 54, no. 2 (April 1997): 307–46; Brewer, “The Transformation of Domestic Law,” 317; Sara Brooks Sundberg, “Women and Property in Early Louisiana: Legal Systems at Odds,” Journal of the Early Republic 32, no. 4 (2012): 651. 7 For economic and social reasons, many daughters did become wives. Lindsay Keiter, “Meer Mercenary Views: Marital Strategy and Economic Volatility in the Late-Eighteenth and Nineteenth Century South” (Southern Association for Women Historians Conference, Charleston, SC, 2015). 116

and retain formal legal control of her property she brought to or acquired during her marriage, but generally only if she had such property designated as a separate estate.8

In the common law states of North Carolina and South Carolina, separate estates worked by curbing the effects of coverture. In the Carolinas, when a woman married, she became legally categorized as a feme covert. As a feme covert she became subject to a series of state laws (including both statutes and common law rulings) inspired by the principles of coverture, which were largely derived from William Blackstone’s highly influential Commentaries on the Laws of England.9 Blackstone infamously described coverture in terms in which a husband and wife became “one person in law” during their marriage. In Blackstone’s formulation, a wife’s legal identity was “suspended…or

at least incorporated or consolidated into that of the husband” during marriage. 10 As a

8 Many legal historians have discussed the importance of separate estates in the late eighteenth and early nineteenth centuries, see for example: Basch, In the Eyes of the Law; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 655–57; Salmon, Women and the Law of Property in Early America, 80–83; Brewer, “The Transformation of Domestic Law,” 317; Ellen Holmes Pearson, Remaking Custom: Law and Identity in the Early American Republic (Charlottesville: University of Virginia Press, 2011), 105–11; Edwards, The People and Their Peace; Sundberg, “Women and Property in Early Louisiana,” 636. 9 William Blackstone, Commentaries on the Laws of England, Vol. 1 (London, 1765-69; Reprint, Chicago: University of Chicago Press, 1979). Scholars have also cited Tapping Reeve's The Law of Baron and Femme as being highly influential in shaping law, but Brewer has argued that Reeve was largely reproducing Blackstone's categories of domestic relations. Tapping Reeve, The Law of Baron and Femme, of Parent and Child, of Guardian and Ward, of Master and Servant, and of the Powers of Courts of Chancery: With an Essay on the Terms, Heir, Heirs, and Heirs of the Body (New Haven: Oliver Steele, 1816); Holly Brewer, “The Transformation of Domestic Law,” 290–91. 10 Blackstone, Commentaries on the Laws of England, Vol. 1, 430; Although Blackstone’s Commentaries have traditionally been viewed by historians as synthesizing static preexisting domestic relationships, recent literature has persuasively argued that Blackstone’s Commentaries and common law court rulings and legislation in both England and the United States that were inspired by the simple categories of husband and wife actually augmented the power of the husband patriarch during the Age of Revolutions. See, Brewer, “The Transformation of Domestic Law,” 290–91. Edwards makes a similar point as she notes that: 117

result, coverture afforded a husband absolute control over the personal property his wife brought to the marriage. All property a wife brought to, earned in, or inherited during marriage became her husband’s. He could sell her enslaved people, spend her money, or appropriate her furniture.11 By current standards, it seems ludicrous and cruel to liken enslaved people to inheritable personal property, such as furniture. In the early nineteenth century Carolinas, however, enslaved people constituted personal property.12

Such legal categorization simultaneously allowed slave-owners to dehumanize enslaved people and readily profit from and trade the labor of the slaves, who worked both inside and outside of the home.13 Enslaved people constituted some of the most valuable and contentious forms of personal property a wife could own. In addition to gaining control of his wife’s valuable personal property, including enslaved people, a husband also had managerial control over his wife’s real property, although he could not sell it without

"Blackstone's version of a husband's authority over a their wives acquired force in legal practice after the Revolution, especially in civil matters relating to property." Edwards, The People and Their Peace, 104. 11 Blackstone, Commentaries on the Laws of England, Vol. 2, 132, 136, 255, 293, 355; Elizabeth Chudleigh Bristol, The Laws Respecting Women: As They Regard Their Natural Rights (London: J. Johnson, 1777), 148–63; James Kent, Commentaries on American Law, vol. II (New York: O. Halsted, 1826), 151–54; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 655. 12 Edwards makes a similar point. Edwards, The People and Their Peace, 158. 13 For legal works that explore the consequences of categorizing enslaved people as chattel, see, for example: Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1707–91; Paul Finkelman, ed., Slavery & the Law (Madison: Madison House Publishers,1997); Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996); Judith Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1997); Thomas Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina Press, 1999). 118

her consent. 14 In this era, in order to legally prevent her personal or real property from coming under the control of her husband, a wife needed to demarcate her property as a separate estate.15

The delineation of separate property was also necessary in the in the civil law state of Louisiana. While the territory of Orleans, and later the state of Louisiana, operated under civil code and did not uphold the rules of coverture per se, husbands still became the “head and master” of household property, which was comprised of

14 As noted in chapter one, determination of a wife’s consent varied from state to state. Salmon writes that in South Carolina, conveyance law dictated that a wife’s consent was, “indicated by her signature on the deed and her declaration in a private examination [conducted by local authorities] that she acted of her own free will and not under the coercion of her husband.” In North Carolina, married women’s consent was determined through a similar examination process in which local authorities were tasked with confirming that a wife wanted to sell her land of her own volition, and “without fear or compulsion of her husband.” Salmons argues these legal procedures demonstrate that lawmakers acknowledged the possibility of opposing interests: a husband might want to sell a wife’s land against her wishes and she might need protection from his coercion. Thus lawmakers indirectly admitted that wives possessed rights in land that their husbands could not abrogate. Salmon, Women and the Law of Property in Early America, 7, 19. John Haywood, A Manual of the Laws of North Carolina: Arranged under Distinct Heads in Alphabetical Order: With References from One Head to Another When a Subject Is Mentioned in Any Other Part of the Book than under the Distinct Head to Which It Belongs, vol. 2 (Raleigh: J. Gales, 1814), 202, see also 195. 15 In referring to separate estates for married women, the English chancery court chancellor in Lee v. Prieaux stated “The [common] law undoubtedly gives all to the husband, unless something is done to prevent it from doing so.” Lee v. Prieaux was influential to North Carolina equity law, as Ruffin cited the case in Rudisell v. Watson. Lee v. Prieaux, 29 The English Reports Chancery 596 1557-1865; Rudisell v. Watson, 2 North Carolina Reports at 432. A large body of secondary literature has also pointed to the need to create separate estates for married women, if a wife wished to maintain formal legal control over her estate. See, for example: Mary Ritter Beard, Woman as Force in History: A Study in Traditions and Realities (New York: The Macmillan Company, 1946); Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York: W. W. Norton & Company, 1984), 84–86; Elizabeth Warbasse, The Changing Legal Rights of Married Women, 1800-1861 (New York: Garland Publishers, 1987); Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Salmon, Women and the Law of Property in Early America; Cornelia Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995); Sundberg, “Women and Property in Early Louisiana”; Richard Chused, “Married Women’s Property and Inheritance Widows in Massachusetts: A Study of Wills Probated between 1800 and 1850,” Berkeley Women’s Law Journal 2, no. 42 (1986): 42-88; Edwards, The People and Their Peace, 159–60. 119

community property and the dowry (also called dotal property) that his wife brought to marriage. There were limits on the husband’s control, however. As in the Carolinas, a husband could not sell “immovable” property from his wife’s dowry without his wife’s permission. Unlike in the Carolinas, enslaved people counted as immovable property.16

Separate estates that allowed women to maintain legal control over a variety of personal and real property were important to families (as well as individual women) because they could help maintain family wealth for multiple generations. Even in an era when individual property ownership was promoted over more complicated forms of familial control, wealthier families still maintained the concept of multigenerational wealth by creating separate estates for daughters and grandchildren.17

16 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government (New Orleans: Bradford & Anderson, 1808), 332, 336. Historian Sara Sundberg has argued that a wife’s tacit mortgage in her dowry and enslaved people’s categorization as immovable property under Louisiana law was probably very important to women living in the largely agrarian state. These provisions likely increased the probability that women had land and the labor to work the land during their widowhood. But Sundberg also acknowledges that these were benefits that accrued to women at the end of their marriages, not during. Sundberg, “Women and Property in Early Louisiana,” 648. 17 Edwards and Salmon make very similar arguments for the early nineteenth century. Edwards, The People and Their Peace, 158–59; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830.” Erickson has seen similar trends in modern England. Amy Erickson, Women and Property in Early Modern England (London and New York: Routledge, 1993). Several historians have made similar claims about much of colonial North America, see for example: Gregory Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought (Chicago: University of Chicago Press, 1997), 158–84; Cara Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina,” The Journal of Southern History 63, no. 2 (May 1, 1997): 239–68; Holly Brewer, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” The William and Mary Quarterly 54, no. 2 (April 1997): 307–46; Lebsock, The Free Women of Petersburg; Linda Sturtz, Within Her Power: Propertied Women in Colonial Virginia (New York: Routledge, 2002), 19–70; Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Hagler Minter (Athens: The University of Georgia Press, 2013), 19–44. 120

Settling separate estates on female family members proved especially wise in the turbulent economy of the early republic. Families in the first half of the nineteenth century endured periods of both rapid economic growth and panic and loss associated with modern capitalism. A series of technological and transportation advances, such as the invention of the cotton gin, the steamboat, and trains, and well as the development and expansion of canals and railroads, made it more profitable for planter families to exploit slave labor as they could more easily transport cotton in both national and international markets. But rapid land speculation, international drops in cotton prices, ineffective regulation of currency all contributed to economic recessions in the new

United States and the Panics of 1819 and 1837.18 Legal historians of the early republic have shown that if fathers and husbands settled separate estates on their daughters or wives, they could help protect the familial property from their own losses by keeping family assets out of the reach of creditors.19

Although separate estates could provide useful protection to families as the U.S. economy grew in the early nineteenth century, state-level lawmakers in the Carolinas

18 For recent works that show the deep international ties of the South to the broader global economy and cast the slave-based society as a capitalist society, see: Sven Beckert, Empire of Cotton: A Global History (New York: Alfred A. Knopf, 2014); Edward Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014). 19 Legal historian Norma Basch points to an increase in legislation to protect a married woman’s property in following the Panic of 1819. She writes, “Much of the early support for a married women’s statue focused on the economic dislocations of men...” Norma Basch, In the Eyes of the Law, 122–26; also cited in: Salmon, Women and the Law of Property in Early America, 97. Leigh Fought makes a similar comment in Southern Womanhood and Slavery. Leigh Fought, Southern Womanhood and Slavery: A Biography of Louisa S. McCord, ed., 1810-1879 (University of Missouri Press, 2003), 63. 121

and Louisiana made separate estates more onerous to make by passing new, subtle restrictions. Separate estates which allowed a marrying or married woman to retain her property for her separate use and management could be created through multiple forms, including marriage settlements or contracts, wills, and trusts. These forms of separate estates remained important forms of conveyance during the early nineteenth century.

However, legislators passed new laws and judges ruled in a fashion that required the construction and execution of such separate estates to become more formal and uniform, which caused some separate estates to become invalidated.

On the legislative front, lawmakers in the Carolinas formalized the process through which marriage settlements could be created shortly after becoming American states. Technically, marriage settlements could be made to protect a wife’s or a husband’s control of property.20 According to the records available, the vast majority, however, were made to protect property for a wife as she was more vulnerable to losing control of property she brought to marriage under the common law.21 As long as both husband and wife agreed to the terms, marriage settlements could be made either before a couple married or after a couple married.22 The vast majority, however, were made

20 Haywood, A Manual of the Laws of North Carolina, vol. 2; Part II: 4–5; Walter Clark, William Saunders, and Stephen Weeks, The State Records of North Carolina (Goldsboro: Nash Brothers, 1906), 733; Thomas Cooper, ed. The Statutes at Large of South Carolina, vol. 4 (Columbia: A. S. Johnston, 1838), 656–57; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661. 21 Salmon has conducted an in depth study of marriage settlements in South Carolina, the data referenced comes from her work. 22 Anne Miller v. Lemuel Bingham & al. Executors, & c., 1 The North Carolina Supreme Court Sitting in Equity 423 1840-1841; Haywood, A Manual of the Laws of North Carolina, vol. 2; Part II: 4–5; Clark, Saunders, and 122

before a couple married when a woman had the most leverage. Most post-nuptial settlements were made when a woman unexpectedly inherited a property over which she wanted to maintain managerial control. Other post-nuptial marriage settlements were made in cases where a husband was experiencing financial difficulties and the couple, or the broader family, thought it best to protect some assets in the wife’s name to prevent creditors from seizing more of the couple’s property.23 Marriage settlements could be structured as formal trusts, in which a third party (usually a male family member of the wife) was the manager (also known then as the master) and the wife was the beneficiary. They could also be established by direct agreements between the husband and wife.24 Most importantly, prior to 1785, couples were not required to register their marriage settlements.25 Thus, families could make marriage settlements for

Weeks, The State Records of North Carolina, 733; Cooper, ed. The Statues at Large South Carolina: Act, 1786-1814, vol. 5: 656–57; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661. 23 For more information on the reasons why families in New York and the Carolinas created marriage settlements, see, for example: Basch, In the Eyes of the Law; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661; Salmon, Women and the Law of Property in Early America; Edwards, The People and Their Peace, 159–60. 24 Salmon notes, however, that South Carolina Courts preferred that separate estates for women take the form of a trust instead of a direct agreement. Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661; The equity case, Harriet Freeman et al. v. Willie Perry et al. seems to suggest Justices in North Carolina also preferred that marriage settlements for women take the form of a trust instead of a direct agreement. Freeman et al. v. Perry et al., 2 Equity Cases in the Supreme Court of North Carolina 243. According to "An Essay on 'separate Use,'", the same seems to be true of separate estates in England in early nineteenth century, see, for example: “An Essay on 'Separate Use',” Property Lawyer 5 (1827): 295–318. 25 Haywood, A Manual of the Laws of North Carolina, vol. 2; Part II: 4–5; Clark, Saunders, and Weeks, The State Records of North Carolina, 733; Cooper, ed. The Statues at Large South Carolina: Act, 1786-1814, vol. 5: 202–3. Although, some couples did register their marriage settlements with the secretary of the state before 1785. In fact, Salmon’s study of South Carolina marriage settlements from 1730 to 1830 shows that from 1771-1780 123

the their female family members and keep records of those contracts locally, even within their own families.26

For practical business reasons, creditors disliked that marriage settlements did not have to be formally filed and could be kept in the hands of contracting parties.

Creditors complained that unfiled marriage settlements were injurious to their business because unfiled marriage settlements allowed indebted husbands to hide assets under his wife’s name after he had defaulted on loans. Thus, a husband could keep property in his wife’s name that might otherwise be seized by creditors, all without the prior knowledge of the creditor. Such loopholes, creditors argued, needed to be closed.27

Responding to creditors’ complaints that marriage settlements were too informal and easy to make, in 1785, South Carolina and North Carolina state legislators changed

one hundred and seven couples filed marriage settlements. Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 656–60. 26 According to Salmon, compared to other states, especially those in New England, married women in the Carolinas had an easier time creating marriage settlements and seeing their contracts upheld in court. The Carolinas permissive position on married women’s property derived in large from its dedication to the English style equity law, which in England was practiced in the chancery court. Since the sixteenth century, many individuals and families in the propertied classes of English society developed and employed separate estates in the form of marriage settlements and relied on chancery courts to uphold them. By the eighteenth century marriage settlements had become an important part of property law and were theoretically accessible to all families. When they were still British colonies, the Carolinas established courts of chancery and transferred much of the law and precedents on marriage settlements and other forms of separate estates employed by married women from England. Although marriage settlements could theoretically be made in the New England states of Massachusetts and Connecticut, these same settlements could not be enforced, because both of these states had no chancery courts. Because the legislative assemblies refused to give any court the power to enforce trust estates, they essentially created a policy of opposition to trust estates. Salmon, Women and the Law of Property in Early America, 81–83, 120–23. 27 North Carolina and South Carolina legislators noted creditor complaints in the preamble to acts that required marriage settlements be filed. Clark, Saunders, and Weeks, The State Records of North Carolina, 733; Cooper, ed. The Statutes at Large of South Carolina, vol. 4: 656–57. Salmon also noted such complaints for South Carolina, see: Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661. 124

the laws governing marriage settlements. Both of the Carolinas passed new laws that required all newly created marriage settlements be publicly filed. In South Carolina, legislators required that marriage settlements be filed in Charleston with the secretary of the state within three months of the contracts execution. North Carolina made the filing process somewhat easier by requiring that marriage settlements be registered within seven months at the county level.28

In the civil law state of Louisiana, the procedure for protecting a married woman’s property was similar to that of common law states. But instead of creating marriage settlements, a woman had to specify in her marriage contract the property over which she wanted to retain ownership. There were two types of properties to which she could claim as her own in her marriage contract: the dotal (or dowry, property was property a wife brought to the marriage and it was property her husband gained managerial control over) or the paraphernal property. While husbands maintained managerial control of dotal property during the marriage under Louisiana law, wives held tacit mortgages on such property. So when the marriage ended, wives expected to see the full value of the dotal property returned to them or their heirs. A wife had more control over her paraphernal property than her dotal property. A husband did not gain

28 Haywood, A Manual of the Laws of North Carolina, vol. 2; Part II: 4–5; Clark, Saunders, and Weeks, The State Records of North Carolina, 733; Cooper, ed. The Statutes at Large of South Carolina, vol. 4: 656–57; Cooper, ed. The Statues at Large South Carolina, vol. 5: 202–3. While it is clear from a legal standpoint and practical standpoint that marriage settlements became theoretically more difficult to execute, it is impossible, to know how many couples who might have otherwise held contracts, would have been dissuaded by the new changes. Couples who decided not to make settlements obviously left less of a record. 125

managerial rights over his wife’s paraphernal property. Paraphernal property was a wife’s to manage. However, she could not dispose of her paraphernal property without her husband’s consent. 29

After becoming subject to U.S. governance, legislators in the Territory of New

Orleans passed a new code of laws requiring marrying couples to file matrimonial contracts at the local level. Further, the contract had to be made into an act before a notary (who, under the civil law of Louisiana, were both lawyers of noncontroversial private law and public officers with the authentication power of the state who could draft and record contracts for private parties) and two witnesses. Privately made agreements were strictly prohibited.30 These filing procedures were later recognized and maintained by the state of Louisiana.31

On their surface, laws that tried to balance the interests of creditors and families sounded like good public policy. Marriage settlements and marriage contracts could still be made as long as they were recorded. When created, they still afforded families the ability to protect a portion of family wealth from being seized by creditors in cases of insolvency.32 Nonetheless, when state legislators amended laws and required that all

29 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 326; Wheelock Upton and Needler Jennings, eds. Civil Code of the State of Louisiana: With Annotations (New Orleans: E. Johns & Co., 1838), 362; Also noted in: Sundberg, “Women and Property in Early Louisiana,” 648. 30 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 324. 31 Upton and Jennings, eds. Civil Code of the State of Louisiana, 361. 32 Salmon makes a similar point. Salmon, Women and the Law of Property in Early America, 96. 126

marriage settlements and marriage contracts follow formal filing procedures, they made separate estates more cumbersome. Compared to North Carolina, South Carolina’s new filing procedures seem especially burdensome. While North Carolinians could file their marriage settlements in the county in which they lived, South Carolinians could only file with the secretary of the state in Charleston, no matter where in South Carolina a married couple lived. Contracting parties living in the western part of the state had to file within the same time frame as those living in Charleston, which meant they had to be diligent in ensuring the contract be taken a long distance across the state and filed.33

Even in Louisiana, where marriage contracts could be filed locally, obtaining two witnesses and filing with the notary was important. If the procedure was not followed, a wife could lose control of her property. 34

In 1830, a married Louisiana woman with the last name Savenet failed to have her authority recognized by the state’s Supreme Court because she did not follow the new legal procedures when creating a separate estate. Her husband had sold land she believed to be part of her previously declared paraphernal property, and she wanted to reclaim it. Savenet had a notarial act, declaring the ground part of her paraphernal property and one individual had witnessed the act. The parish court had been lenient

33 Cooper, ed. The Statutes at Large of South Carolina, vol. 4: 656–57; Haywood, A Manual of the Laws of North Carolina, vol. 2; Part II: 4–5; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 659. 34 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 324. 127

and even though the act only had one witness, not two, as required by state law, the court found in her favor. However, when the man who had purchased the lot from

Savenent’s husband appealed, the Supreme Court of Louisiana reversed the decision of the lower court. Judge Martin, writing on behalf of the State Supreme Court of

Louisiana, declared that because the notarial act had only one witness, not two as required by the law it was not “an authentic act.” The lower court, Judge Martin argued, should not have admitted the notarial record of Savenent’s paraphernal property as evidence, because it did not meet the new legal standards.35 While the ultimate outcome from Savenent is unknown, what is known is that, without the official paraphernal property title, her ownership to the land was less clear. Consequently, her husband’s legal authority over the land was strengthened.

State-level legal changes that allowed family property to attach more easily to men than to women was not just limited to new legislative initiatives. At times, judiciary action also augmented men’s legal control, especially a husband’s legal authority, over family property. Most of these changes were not outward attempts to usurp women’s control over family property. Instead, most of the changes came as state courts attempted to build a more uniform body of property law. Nonetheless, the new rulings

35 Savenet et al. v. Le Breton et al., 4 Condensed Reports of Cases in the Superior Court of the Territory of Orleans, and in the Supreme Court of Louisiana 597 1809-1830; Upton and Jennings, eds. Civil Code of the State of Louisiana, 361. 128

did, at times, enhance male authority over property and consequently jeopardize women’s control of family property.

Nineteenth century legal historians have noted that as the nineteenth century progressed, equity began to merge with common law.36 In considering the implications of the growing importance of common law for women and their relationship to their husbands and family property, some historians of the early republic have found that as a more restrictive form of common law became favored, husbands’ power over their dependents and family estates increased during the early republic.37 Some scholars have even argued that common law judiciary support of husband’s rights over property that his wife brought to marriage was so strong, that in the 1840s and 1850s, judiciary action played a role in limiting the scope of legislation aimed at protecting a Married Women’s control over her property (known as the Married Women’s Property Acts). 38 The same

36 Charles McCormick, “The Fusion of Law and Equity in United States Courts,” North Carolina Law Review 6, no. 3 (1928): 283; Beard, Woman as Force in History: A Study in Traditions and Realities; Edwards, The People and Their Peace, 105. 37 Beard argued that nineteenth-century lawyers, feminist reformers, and professional historians also helped to elevate the common law over equity law and other legal traditions, both in practice and historical memory. Beard, Woman as Force in History: A Study in Traditions and Realities. While focused more on changes in the common law that occurred in the colonial period and very early national period, Brewer argues that "a husband's powers under the common law were not nearly as strong in 1600 as they would be two centuries later." Brewer, “The Transformation of Domestic Law,” see especially, 297, 317. Brewer also makes a similar argument in By Birth or Consent, Brewer, By Birth or Consent. Edwards both highlights the same point made by Beard and by focusing on the period from 1787-1840, she adds to conversation by demonstrating how the growing professionalization of law and state lawmakers dedication to more uniform and sophisticated property laws through state statutes and common law could overshadow other legal venues, including equity law. Edwards, The People and Their Peace, see especially 8-9, 105. 38 See, for example: Basch, In the Eyes of the Law, 200–223; Richard Chused, “Late Nineteenth Century Married Women’s Property Law: Reception of the Early Married Women’s Property Acts by Courts and Legislatures,” American Journal of Legal History 29 (1985): 3–35; Michael Dougan, “The Arkansas Married 129

general trend can be seen in a series of North Carolina equity court cases on married women’s separate estates as created through wills that occurred even before the passage of the Married Women’s Property Act. When it came to constructing separate estates for married women through wills, some key North Carolina equity court cases suggest that the state’s equity court could be instrumental in incorporating the principles of common law and consolidating state law in a fashion that helped to augment a control’s over property. In their reasonings and decisions, some North Carolina justices indicated a clear interest in aligning equity law decisions more closely with the common law tenet that husband’s should retain control over property brought to marriage.

In 1833, when Abigail Rudisell appealed to North Carolina’s Supreme Court, sitting in equity, the relatively new state court had little local precedent regarding the creation of separate estates for married women via wills.39 To be sure, courts sitting in equity (also known during this time as the chancery courts in England and in South

Carolina) theoretically did not have to abide by precedent. Equity law, which was a

Women’s Property Law,” Arkansas Historical Quarterly 46 (Spring 1987): 16–21; Kathleen Lazarou, Concealed Under Petticoats: Married Women’s Property and the Law of Texas, 1840-1913 (New York: Garland Publishers, 1986); Warbasse, The Changing Legal Rights of Married Women, 1800-1861, 237–44; Carole Shammas, “Re- Assessing the Married Women’s Property Acts,” Journal of Women’s History 6, no. 1 (Spring 1994): 14–15; Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 290– 92; Holton, “Equality as Unintended Consequence,” 337. 39 In his ruling, Justice Ruffin cites no local precedent. From my own research, I discovered another case. William Gilliam, Administrator of Joseph Welch v. Joseph B. Welch, Administrator of Elizabeth Welch was decided during the same year and term as Rudisell v. Watson. However, Gilliam v. Welch was heard by the North Carolina Supreme Court, not the North Carolina Supreme Court sitting in equity. Nonetheless, both cases had nearly identical outcomes. In both cases, the Justices determined that a bequest of an enslaved person to a married woman created with the language, “for her proper use,” did not vest to the wife a separate and exclusive right to the enslaved person. 130

separate jurisdiction with its own body of law, differed from common law in large part because courts sitting in equity were supposed to rule on principles of fairness, while common law courts administered rulings based on precedent (also known as stare decisis). Nonetheless, as legal historians have pointed out, during the eighteenth and early nineteenth centuries, the chancery in England maintained a strict tradition of following their own precedent and many of the American chancery courts followed suit.40 In fact, even after the Carolinas declared their independence from Britain, many of the decisions coming out of the British chancery courts continued to serve as precedent for equity courts in the U.S. in the first decades following the American Revolution. The

Carolinas continued to select and import precedents related to separate estates arising from cases involving married women in England.41

Even though North Carolina had little local precedent regarding the creation of separate estates for married women via wills, Justice Ruffin, who presided over

Abigail’s case, sought to ground his decision in English precedent when writing the court’s opinion. Upon doing his own legal research, Ruffin found that no technical

40 Stanley Katz, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 260–61; Salmon, Women and the Law of Property in Early America, 121. 41 Salmon has argued that historians of early America have not fully appreciated the importance of the British perspective on trust estates. Although, she later claims that “after the American Revolution, American chancery courts became more independent of English precedent, developing new rules of their own to deal with questions of women’s property.” See Salmon, Women and The Law of Property, 82. 131

language was required to create a separate estate.42 Nonetheless, he selected cases that made it appear as if British chancery courts placed an emphasis on upholding a husband’s right to manage property his wife brought to or inherited during their marriage. According to Ruffin’s analysis, British chancery courts had recently begun the process of narrowing the definition of what constituted a separate estate for married women when property was bequeathed to a woman through a will.43 To be sure,

Ruffin’s research of English chancery law on the creation of separate estates via wills for married women was not entirely thorough, at least in the sense that there were other

English equity cases that spoke to similar issues present in Abigail’s case that he did not cite in his decision. But an article on separate use in the English law journal Property

Lawyer suggests that Ruffin was not entirely off base. In the article, the cases cited also made it appear that British Chancery courts did begin to narrow the definition of what constituted a separate estate for married women when property was bequeathed to a woman through a will. Moreover, it appears that courts sitting in equity placed additional emphasis on upholding a husband’s right to manage property his wife

42 Ruffin states: “I admit however, that no technical terms are necessary to express either intent. But it is to be considered whether the intention to create a separate use can be collected here.” Rudisell v. Watson, 2 North Carolina Reports at 435. Ruffin does not state how he knows this, but it is possible that he knew this from reading Reeve’s Baron and Feme. In Women and the Property of Law in Early America, Salmon explores the creation of separate estates for married women. In the section entitled “Doctrine of Intentions” she notes that in his commentaries Reeve wrote that when creating a separate estate, “Technical terms are not necessary to create this separate property. If it can be inferred from the words of the conveyance, that it was the intention of the grantor, that she should have the things granted to her separate use, that is sufficient.” See Salmon, Women and The Law of Property, 220n63. 43 Rudisell v. Watson, 2 North Carolina Reports 430. 132

brought to or inherited during their marriage as the eighteenth century progressed into the nineteenth century.44

From the eighteenth and into the early nineteenth century, the rulings of the

English chancery courts cited by Ruffin demonstrate a willingness and flexibility to interpret wills in a fashion that afforded wives separate control over estates they inherited. 45 The pattern of flexibility in these earlier English chancery court cases is consistent with trends that legal historians have noted for the period, namely that eighteenth and early nineteenth century equity law was an arena of law that could mitigate the harshness of the common law.46 To be sure, testators had to make some attempt to specify that the inheriting married woman should be allowed separate control. One eighteenth century equity judge, known as a chancellor in England, summarized the court’s leniency by stating that, in his estimation, “The [common] law

44 Of course, as the article was published in 1827, there may have been additional relevant English chancery court cases between 1827 and 1833 when Rudisell v. Watson went before Ruffin. Further, while a useful source on the more relevant chancery court cases on separate use, it is also possible that the article left out additional chancery cases that may have been relevant. “An Essay on ‘Separate Use.’” 45 The examples listed in Rudisell v. Watson, 2 North Carolina Reports 430 include: Lee v. Prieaux, Adamson v. Armitage; Hartley v. Hurle, Ex Parte Ray. The 1827 article “An Essay on ‘Separate Use,” cites nearly the same cases as Ruffin (except Hartley v. Hurle), and includes some additional cases, such as Woodman v. Horsely, and an older 1725 case Bennet v. Davis. “An Essay on ‘Separate Use.’” 46 See, for example: Basch, In the Eyes of the Law, 21; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830”; Salmon, Women and the Law of Property in Early America, 89–119; Brewer, “The Transformation of Domestic Law,” 317–18; Holton, “Equality as Unintended Consequence,” 330–31. 133

undoubtedly gives all to the husband, unless something is done to prevent it from doing so.47

In the cases cited in Ruffin’s decision, it appears as if in late eighteenth and early nineteenth centuries, English chancery courts allowed a wide range of structures and language to count as “something” to create separate estates for married women via wills. Testators could bequeath property to a woman through a trust or directly for her control, so long as the will contained language that led the chancellors to believe that the bequeathed property was for the married woman’s separate use. 48 However, women who had property bequeathed to them in a trust with some variation of language to suggest separate use by the woman, seem to have the most luck in seeing their separate estates in marriage upheld. For example, in the 1791 case, Lee v. Prieaux, the chancellor ruled that a provision which stated the profits of a trust were to go “into the proper hands of the wife” constituted a separate estate for the married woman.49 The vice- chancellor in another case in 1800, Hartley v. Hurle ruled that the profits of a trust that were said to be “for the livelihood of the wife” and “to be paid into her proper hands” created a separate estate for the feme covert.50 In the 1815 case Ex Parte Ray, the vice-

47 Lee v. Prieaux, 29 The English Reports Chancery 596. 48 “An Essay on ‘Separate Use.’” 49 Lee v. Prieaux, 29 The English Reports Chancery 596; also noted in Rudisell v. Watson, 2 North Carolina Reports at 432. 50 Hartley v. Hurle, 31 The English Reports Chancery 727 1557-1865; While the exact language cited above was not cited in Rudisell v. Watson, a similar quote was given. Ruffin claimed Hartley v. Hurle held that "into the proper hands of the wife" created a separate estate. Rudisell v. Watson, 2 North Carolina Reports at 433. 134

chancellor noted that “The Courts have gone a great way in abridging the marital rights of the husband,” and then ruled in favor of the feme covert as he found that the language “sole” as in “sole use” was ruled to be synonymous to “separate “ as in

“separate use”—apart from the feme covert’s husband.51 In another 1815 case, Adamson v.

Armitage the phrase “for her own sole use and benefit” was found to create a separate estate.52

But, according to the later cases cited by Ruffin and additional cases cited in the

1827 article on “Separate Use,” around the 1820s, the English chancery courts began to depart from such flexible interpretations and what constituted a separate estate for married women in wills began to narrow. The vice-chancellors’ reasoning in the later cases Ruffin cited showed a desire to promote a husband’s authority over property his wife brought to marriage, in accordance with the principles of common law. Several of the cases cited in the 1827 essay on “Separate Use,” also point to the narrowing

51 Ex Parte Ray, 56 The English Reports Chancery 74 1815-1865. In his decision, Ruffin cited Ex Parte Ray and noted that "sole" was the legal equivalent to "separate." Rudisell v. Watson, 2 North Carolina Reports at 432. 52 Adamson v. Armitage, 34 The English Reports Chancery 571 1557-1865. In his decision, Ruffin cited Ex Parte Ray and noted that "sole" was the legal equivalent to "separate." Rudisell v. Watson, 2 North Carolina Reports at 432. Two cases were exceptions, Lumb v. Milnes and Jones v. ____ (later discovered to be Johnes v. Lockhart). In the 1800 case Lumb v. Milnes, the mere presence of a trust set up to simply benefit a married woman, without specific language noting that it was for her separate use, was deemed insufficient to create a separate estate. In Johnes v. Lockhart it was ruled “for her own use and benefit” would not create a separate estate, even if the word “sole” were not there. But confusingly, both Ruffin and the 1827 essay on “Separate Use,” note for that for a period after these cases were decided, many English chancellors, including those in Adamson v. Armitage and Ex Parte Ray believed the outcome was the opposite (namely “for her own use and benefit did create a separate estate”). Therefore, they used the case as precedent to support their decisions that “for her own sole use and benefit” created separate estates. Rudisell v. Watson, 2 North Carolina Reports at 434; “An Essay on ‘Separate Use,” 296.

135

definition of what constituted a separate estate for married women.53 Two cases, cited in both Ruffin’s decision and in the 1827 essay on “Separate Use,” clearly illustrate the change. In the 1819 case Wills v. Sayers and the 1821 case Roberts v. Spicer, the vice- chancellors drew a sharp line between accepting “for her own sole use and benefit” and

“for her own use and benefit.” The chancery courts ruled that the words “her use” or

“her own use and benefit,” did not imply the creation of a separate estate.54 In doing so, the vice-chancellors created important precedent in which they declared the words

“sole” or “separate” were important for clarity. The vice-chancellor in Wills v. Sayers concluded that: “In equity, as at [common] law, a gift to the wife is a gift to the husband, who, being bound to maintain the wife, is entitled to her property.” The vice-chancellor claimed that a court of equity would uphold a separate estate for the sole and separate use of a wife, but only when the intention of the testator is “unequivocally declared.”55

In deciding Abigail’s case, Justice Ruffin applied the more recent English equitable principles that he found, and, notably, went a step further. Justice Ruffin made

53 In addition to the ones Ruffin cites, the essay cites the 1823 cases Green v. Otte and Packwood v. Maddison. According to the article, in Green v. Ottee court ruled that “to become her’s absolutely” did not pass as a separate estate. In Packwood v. Maddison, the court ruled that for the “support” of a married woman did not create a separate estate. “An Essay on ‘Separate Use,’”296. 54 Wills v. Sayers, 56 The English Reports Chancery 756 1815-1865; Roberts v. Spicer, 56 The English Reports Chancery 983 1815-1865; Also cited in: “An Essay on ‘Separate Use,’”297-298; Rudisell v. Watson, 2 North Carolina Reports at 434. Of note: Interestingly, the chancery courts ruled in both Wills v. Sayers and Roberts v. Spicer that some of the property willed to the wives was for their separate use. But the property that was for their separate use was in different clauses which created trusts for them and therefore made it more clear to the judges that husbands were not have control of such specified property. 55 Wills v. Sayers, 56 The English Reports Chancery at 756. Ruffin says something similar, he says: ”The court…only sustains [separate estates] when it is unequivocal and expressed in unambiguous terms.” Rudisell v. Watson, 2 North Carolina Reports at 432. 136

the husband’s managerial rights paramount and narrowed the definition of what constituted a separate estate for married women via a will. Ruffin began his opinion by echoing, almost verbatim, the Vice-Chancellor in Wills v. Sayers when he stated: “At

[common] law a gift of chattels to the wife is a gift to the husband…as a general principle the rule of equity is the same…because…he is legally chargeable with the maintenance of the wife and the family.” But Ruffin added that the reason why common law and equity law invested husbands with authority over property a wife inherited was because “he can manage it better than the wife.” He also added that although equity could recognize a married woman’s separate estate, “it is not favored.” Ruffin then returned to the most recent English equitable principles and stated that in order for the court to recognize the separate estate of a married woman, the testator had to signal the creation of a separate estate with “unambiguous language.” The court had to be sure that testator meant to give the property to the wife and “exclud[e] the husband.”56

Ruffin admitted that he struggled with determining Abigail’s father’s wishes and wanted to err on the side of protecting her husband’s marital rights. Upon looking at the

56 Rudisell v. Watson, 2 North Carolina Reports at 434; Judge Ruffin’s actions in limiting what constituted a separate estate for married women via a will under equity jurisprudence coincided with what scholars have identified to be broader judiciary actions to limit the ability of married women to control separate estates in the nineteenth century. Scholars, focused on the impact of the early Married Women’s Property Acts passed in states throughout the U.S., found that state judiciaries played a role in limiting the scope of the legislation. See, for example: Basch, In the Eyes of the Law, 200–223; Richard Chused, “Late Nineteenth Century Married Women’s Property Law,” 3–35; Dougan,“The Arkansas Married Women’s Property Law;” Lazarou, Concealed Under Petticoats; Warbasse, The Changing Legal Rights of Married Women, 1800-1861, 237–44; Shammas, “Re-Assessing the Married Women’s Property Acts,” 14–15; Hartog, Man and Wife in America, 290–92; Holton, “Equality as Unintended Consequence,” 337. 137

will in its entirety, Ruffin noted that Abigail’s father had used the same language that he had used in willing the enslaved woman to Abigail (“to be for her and her heirs proper use”) in a clause when willing two enslaved women, as well as other personal property, to his other married daughter. Abigail’s father, however, had not used any similar language when willing property his sons. As men did not have to worry about losing managerial authority over property in marriage, the context, Ruffin admitted, suggested that Abigail’s father probably tried to create separate estates for his daughters and his daughters’ heirs. But although Ruffin conceded that it was “more than probable that the testator meant to exclude the husband,” he ultimately concluded that, “the husband cannot be excluded without plain recorded words.”57 Ruffin stated that he could find no case in which “to be for her and her heirs proper use” was tantamount to creating a separate estate for the wife at the exclusion of her husband and thus he could not be convinced that the language alone was enough to “destroy the right of the husband.”58

In reaching this verdict, Ruffin appeared to weigh the rights of the husband versus the wife. He determined the rights of the husband were too great to be overcome by anything but extremely clear language. Ruffin’s verdict promoted the rights of the husband over family property and helped narrow the definition of what constituted a separate estate for a married woman as he created new precedent that determined that

57 Rudisell v. Watson, 2 North Carolina Reports at 433, 435, 440. 58 Ruffin also noted that although it was not required, it did not help that Abigail’s father had not put the title to enslaved woman in a formal separate trust for her when he devised the enslaved woman to her. 138

the language “to be for her and her heirs proper use” did not make a separate estate for women.

The refusal to see “for her proper use” as sufficient to create a separate estate for married women was echoed that same year and term in North Carolina’s common law

Supreme Court. In December of 1833, a remarkably similar case went before the North

Carolina Supreme Court, although this time, the court was not sitting in equity. 59 In

Gilliam v. Welch, Elizabeth Welch was a married woman, who had inherited an enslaved woman named Esther from her father. Elizabeth’s father had bequeathed Esther to

Elizabeth and used the language “for her proper use.” At the time of the Supreme Court case, both Elizabeth Welch and her husband Joseph Welch were deceased. But the

Administrator of Joseph Welch’s estate wanted to recover Esther from the Administrator of Elizabeth Welch’s estate. The Administrator of Joseph Welch’s estate claimed that because Elizabeth had been married to Joseph at the time she inherited Esther, Esther belonged to Joseph Welch. The Administrator of Elizabeth Welch’s estate disagreed and claimed that the words “For her proper use” created a separate estate for her. Even though the court was sitting as a common law court, and not in equity, Supreme Court

Justice Daniel, like Ruffin, cited the chancery court cases Wills v. Sayers and Roberts v.

59 The case had been tried before at the local level and the presiding Judge directed the jury that the bequest made to Elizabeth fell to her husband because he had legal title. As a result, the jury found for the Administrator of Joseph Welch. Unhappy with the ruling, the administrator of Elizabeth Welch’s estate appealed. Her administrator claimed that because Elizabeth’s father had employed the language “for her proper use” when bequeathing Esther to Elizabeth, he had intended to make a separate estate. Therefore, he argued, the local judge had misdirected the jury. 139

Spicer and concluded, as Judge Ruffin did, that “for her proper use” did not constitute a separate estate.60 With these nearly identical decisions in Rudisell v. Watson and Gilliam v.

Welch, the North Carolina state courts built a more uniform body of law and strengthened a husband’s authority over property his wife inherited in marriage.61 Still, while the decisions in Rudisell v. Watson and Gilliam v. Welch were and would continue to be important to state-level lawmakers and the creation of future state law, the results appear to be slow to reach the masses.

Although decisions at the state-level narrowed the language necessary to create a separate estate for married women, ordinary people were less aware of such developments in equity law. Records of wills from this era in North Carolina are not

60 Although, interestingly, when the court was sitting as a common law court, the reasoning of Justice Daniel suggests that that the court may have been more lenient than the equity court if the Elizabeth Welch’s father’s will had only used “for her proper use” when bequeathing property to his daughters. Context seems to have mattered more to Justice Daniel than to Justice Ruffin. Ibid., at 247. 61 Interestingly, Salmon claims the opposite to be true in South Carolina from the eighteenth century to the 1830. She argues that in South Carolina, “chancellors were making it easier to create separate estates by will or deed of gift. Initially they required donors to use specific, formulaic words, such as ‘to her sole and separate use,’ when giving property to a married woman, and to appoint trustees.” Later, however, the chancery courts came to “assume that a devise or bequest to a married woman was intended for her sole separate use, even when words establishing a separate estate did not appear. For the broader trend she points to Reeve’s Baron and Feme and notes a section in which he wrote: “Technical terms are not necessary to create this separate property. If it can be inferred from the words of the conveyance, that it was the intention of the grantor, that she should have the tings granted to her separate use, that is sufficient.”(see, Reeve, The Law of Baron and Femme, 164). Specifically, for South Carolina she cites an 1814 case Johnson v. Thompson in which the words “fairly inferred” qualified to create a separate estate through a gift of personal property. She also points to an 1821 case Lowndes v. Champneys in which the chancellor claimed that “technical language is not necessary—All that is requisite is that the intention of the gift should appear manifestly to be for the wife’s separate enjoyment without which the Court will not suffer the legal rights of the husband to be superseded.” The language sounds striking to Ruffin’s and Daniel’s decisions. But Salmon interprets this to be more generous to married women as opposed to being more restrictive. She does, however, see other states, such as Pennsylvania, as being more restrictive than South Carolina, as Pennsylvania “would not recognize the creation of a separate estate by will unless the wording was explicit.” Salmon, Women and the Law of Property in Early America, 97-99. 140

complete. But in those that are filed, it seems that most testators did not keep up with equity court decisions or did not seem concerned that property willed to female family members would fall under the control of the husbands of those female family members.

Many of the 1834 and 1835 wills of North Carolinians contained no special protective provisions for female family members and instead, willed property directly to them.62

Some wills did contain special provisions that complied with older English standards for the creation of separate estates. For example, the 1834 will of Williams G. Berry used language that compiled with the older English Equity court definitions of a separate estate (as in Adamson v. Armitage) but not Ruffin’s current interpretation in Rudisell v.

Watson. Berry requested that his plantation be sold and the proceeds of the sale go to his wife “to have and to hold to her own use and benefit for life [emphasis mine].”63 Other wills contain provisions that make it appear as if the testator tried to create a separate estate for wives or daughters, but did not use the words “sole and separate use,” nor did they explicitly ban a husband’s control over the estate. Instead, many tried to create life estates that guaranteed that property would be used for a female relative’s maintenance

62 For example, Mary Dunn, who could not even sign her own name, willed one dollar to each of her daughters (in addition to apparel), with no special provisions. In Dunn’s case her own illiteracy would have stopped her from keeping up with equity court decisions. But it seems that even her literate scribe failed to keep up with the changes. Will of Mary Dunn, North Carolina, County Court of Pleas and Quarter Sessions, Mecklenburg County, North Carolina, 1835, Ancestry.com, accessed March 3, 2017, www.ancestry.com. Even John Burgess, who owned substantially more property than Mary Dunn, and appears literate (or could at least sign his own name) also failed to create special provisions for his wife or daughters. Will of John Burgess, North Carolina, County Court of Pleas and Quarter Sessions, Mecklenburg County, North Carolina, 1835, Ancestry.com, accessed March 3, 2017, www.ancestry.com. 63 Will of William G. Berry, North Carolina, County Court of Pleas and Quarter Sessions, Lincoln County, North Carolina, 1834, Ancestry.com, accessed March 3, 2017, www.ancestry.com. 141

during her life and then pass to other heirs.64 For example, one of the more popular provisional phrases was: “to have and posses during their natural life, and after their death the said property…to descend and be transmitted to their heirs.”65 The lack of awareness amongst a broad class of testators in the Carolinas is not entirely surprising.

After all, the decision to narrow the definition of what constituted a separate estate for married women was made in the discretion of equity court judges, not through petitions from ordinary people.

Of course, there were some testators who took special care to ensure they used

“unambiguous” language to create a separate estate for married women. Like North

Carolina, the chancellors in the Equity Courts of South Carolina also tended to enforce separate estates for married women when the property was deeded in a trust and contained provisions that made it clear the property was for the married woman at the exclusion of her husband.66 Several propertied individuals in South Carolina complied with the courts preference when crafting their wills. For example, Mary Oats bequeathed the whole of her estate—real and personal—to Captain Thomas Davis and

Samuel Wagner in a trust, with strict instructions to permit Mrs. Mary E. Wilson, the

64 See chapter two for more information on life estates. 65 See, for example: Will of John Bost, North Carolina, County Court of Pleas and Quarter Sessions, Rowan County, North Carolina, 1834, Ancestry.com, accessed March 3, 2017, www.ancestry.com.; Will of John Conyers, North Carolina, County Court of Pleas and Quarter Sessions, Franklin County, North Carolina, 1834, Ancestry.com, accessed March 3, 2017, www.ancestry.com. 66 See, for example: Thomas M’Donald v. Elijah F. Crockett, Nathaniel Wade and Wife and Thomas Lee, 2 Chancery Cases Argued and Determined in the Court of Appeals of South Carolina 130 1827. Salmon also makes this point, see: Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” 661n17; Salmon, Women and the Law of Property in Early America, 114–15. 142

wife of John Wilson, to have the full use and enjoyment of her estate—both real and personal—for and during the full end and term of her natural life:

“Freed and discharged from the debts and control of her husband John Wilson, in as full and ample a manner as if she the said Mary E. Wilson were sole and unmarried, so that the said John Wilson may not have any interest in my said estate either present or contingent on any authority, power or control over the estate so as above bequeathed by me to the said Mary E. Wilson” 67

John Axson used similar language when he willed his married daughter fifteen hundred dollars and the “the interest on the same” and stated that this inheritance was

“in no way to be made liable for the debts of her husband but is to be held in trust by my

Executors or such person or persons as my said daughter may appoint, for her sole and separate use.”68 If such language were reviewed by South Carolina’s chancery court, no chancellor would be confused about Oats and Axson’s intentions as testators.

Likely though, for the majority of North Carolinian testators and their female heirs, no consequences came from ignoring the narrowing state-level requests for creating a separate estate. Certainly, recent scholarship has shown that the laws of coverture, although present in legal treatises, and on state statute books, tended to be more draconian in theory than in practice. On the ground, many husbands allowed their wives control over the property they brought to or inherited in marriage and even local

67 Will of Mary Oats, Probate Judge, Charleston County, South Carolina, 1834, Ancestry.com, accessed March 3, 2017, www.ancestry.com. 68 Will of John Axson, Probate Judge, Charleston County, South Carolina, 1834, Ancestry.com, accessed March 3, 2017, www.ancestry.com. 143

courts tended to recognize a wife’s authority over the property she brought to or inherited in marriage. But this same literature has noted that this was also not the golden age of women’s property rights. A married woman’s ability to control property was largely based on the largess of her husband or other powerful male family members

that could both provide her with property and protect her claims to that property. 69

Special attention to the state courts’ reasoning and new narrowing definitions of separate estates via wills, did matter, however, to those North Carolina women who were unlucky enough to have husbands that challenged their control. As the nineteenth century progressed, Rudisell v. Watson and Gilliam v. Welch became precedent to encourage further restrictions on what constituted a separate estate for married women and therefore ensured their separate management. For example, in 1842, Christina

Crawford, like Abigail and Elizabeth before her, tried to claim that the enslaved people her father had bequeathed her were for own separate use, after her husband sold them to pay his own debts. But when she appealed to the North Carolina Supreme Court, which was sitting in equity, Judge Gaston refused to recognize the enslaved people as a separate estate for Christina because the language was not clear enough to abrogate the husband’s “marital right.” Christina’s father had used the previously noted common provisional phrase: “to have and posses during their natural life, and after their death

69 Historians have seen this throughout varying common law places and in different periods of history. For example, Erickson sees this in early modern England. 144

the said property to descend and be transmitted to their heirs,” probably, in an attempt to create a life estate. But Judge Gaston ruled the phrase was not tantamount to creating a separate estate for a married woman. Justice Gaston stated that: “The court will not force a construction to raise a trust for the separate use of the wife, nor gather the intention that a separate estate is limited for her, from terms that are ambiguous or equivocal.” In his holding, Gaston did not cite any English precedent. He did not have to; North Carolina had its own local precedent and he cited both Rudisell v. Watson and

Gilliam v. Welch. 70

These developments in North Carolina’s legislation and equity law in 1830s and early 1840s not only made it more difficult to create separate estates for married women via a will, but also made it harder for women to retain such control through multiple marriages. In Miller v. Bingham, Anne Miller had inherited five enslaved people from her father during her first marriage. Her father had complied with the new legal developments. He put the enslaved people in a trust that was managed by Anne’s brother for Anne and her heirs and specified that the enslaved people and the profits of their labor were for Anne’s “sole benefit…during her life...” While the court acknowledged that the will clearly made a separate estate that protected her managerial rights during her first marriage, problems arose when her male relatives began to die

70 Christina Crawford and others v. John J. Shaver, 2 Reports of Cases in Equity Argued and Determined in The Supreme Court of North Carolina 238 1841-1843. 145

off. In the years following her father’s passing, Anne’s first husband died and she remarried. Then her brother, who managed the trust, died. The equity court appointed

Anne’s new husband as trustee of her inherited property and he took possession of the enslaved people. Later, he died. Anne then asked the executors of her second husband’s estate for an account of the “rents and hires” of the enslaved people. But the executors of her second husband’s estate claimed the enslaved people belonged to the estate of her second husband, and no longer to her. Anne disagreed and argued that her father’s will would prove that she was legally entitled to the profits of the enslaved people. But in

Miller v. Bingham the Supreme Court of North Carolina, sitting in equity, did not side with Anne. Judge Daniel, writing for the court declared that “Where property is conveyed to a trustee, in trust for the sole and separate use of a woman then married, and she survives her husband and marries a second time, the wife no longer holds the property to her sole and separate use.” Instead the personal property “vests in her second husband.” Judge Daniel suggested that if Anne had wanted to keep her property separate from her second husband, she should have taken measures before or during her second marriage to keep it separate – for example, by creating a marriage settlement.71

Husbands growing legal authority over their wives’ property seems to have generated some concern amongst propertied women and their families. Wives’ property,

71 Miller v. Bingham et al., 1 The North Carolina Supreme Court Sitting in Equity 423. 146

after all, was generally seen as a family resource that would support the wife during her life, and then pass to children, or extended family in cases where there was no living children. Many times, relatives worked to help women regain some control over familial property. For example, Ann Reid Lovell’s family rallied to support her after her second marriage soured. Ann was a widow and one of the wealthiest planters in Orangeburg

County, South Carolina when she married James Lovell in 1788. Lovell won the widow

Reid’s hand in marriage and rights to property after claiming to be a Revolutionary War hero who had served as General George Washington’s private secretary. Family papers indicate that not long after the two wed, problems arose. The family discovered that

James Lovell had lied about his connections to Washington and moreover, he began to manage the plantation in fashion to which Ann Lovell objected. Ann’s powerful extended family made it clear to James that they sided with Ann. James Lovell then left

Ann in 1806 to live in New Orleans, although the two did not formally divorce.72

Ann Lovell and her family soon began to take legal measures to ensure Ann could reclaim control of the large estate. Family papers indicate that in 1811, Ann worked with her brother-in-law to create a post-nuptial marriage settlement in the form of trust. Ann’s brother-in-law managed the trust in name, but the trust was designed to allow Ann to manage her estate as if she were unmarried (or a “feme sole” in common

72 Ann Lovell was related to some of South Carolinas most affluent planters and powerful lawmakers – David James McCord and Langdon Cheves. “Louisa S. McCord Family Papers (formerly known as Dulles- Cheves-McCord-Lovell Papers), 1786-1954”, SCHS; For more information on Ann Lovell's close relationship to these men and their families see: Fought, Southern Womanhood and Slavery. 147

law language) Moreover, the trust explicitly excluded James Lovell from claiming any property that she accrued by her own “separate industry and by inheritance.” Family papers indicate that Ann and her brother-in-law got James Lovell to agree to the 1811 post-nuptial settlement.73

Still, sometimes the best advice relatives had was to encourage married women to settle outside of the courts. Trusts could be made, but trusts did nothing in and of themselves. For example, cases where contracting members violated the terms of the trusts, little could be done unless courts enforced the trusts. Ann Lovell was unfortunate enough to learn this lesson when, in 1826, James Lovell resurfaced to challenge the terms of the post-nuptial trust. Ann Lovell’s brother had died without having created a will, and as a result Ann inherited a quarter of his large estate. Having learned of Ann’s brother’s passing, James Lovell wanted to claim his martial share of her inheritance.

Even though Ann had inherited her share of his estate without any protective provisions that could raise a separate estate, the 1811 trust was supposed to protect any property she accrued by “inheritance” for her separate use. But before asking the South Carolina chancery court to uphold the terms of her trust, Ann began her own legal research to try and determine how she might fare against her estranged husband’s challenges. She reviewed a copy of one of state’s reports on cases argued and determined in the court of

73 Contract is in: “Louisa S. McCord Family Papers (formerly known as Dulles-Cheves-McCord-Lovell Papers), 1786-1954,” SCHS 148

chancery and sought the counsel of her nephew-in-law, Judge Langdon Cheves. 74

Ultimately, Ann did not seem to be comforted by what she learned from her nephew and the court’s record. Instead of appealing to the chancery court, she begrudgingly offered James $6,000 in order to buy out his share, in order to retain complete control of the inherited estate.75 James agreed, although he made it clear in a later letter that he believed he had been generous in accepting only $6,000. It seems that Ann preferred

74 Interestingly, all the cases Ann took notes in the state’s reports on cases argued and determined in the court of chancery had nothing to do with the enforcement marriage settlements, of which there were a few cases. Instead, she took notes on the cases that focused on inheritance and wives ability to obtain control of their property at the exclusion of their husbands. It is unclear why Ann focused on the cases that involved inheritance and not on cases that involved marital trusts. It could be because she was a legal novice, or it could be she chose to ignore the trust cases because she had not followed proper filing procedures for her marital trust, or it could be another reason that has been lost to time. But one case that she reviewed and took notes on, seems particularly troubling to her. In reviewing Elizabeth Greenland alias Brown v. Cornelius Brown, Ann Lovell learned that husband’s augmenting power in the new legal landscape was particularly strenuous for propertied women in bad marriages. As property attached more easily to husbands, some wives ended up having to make uncomfortable comprises when their relationships soured. Elizabeth Greenland did. It was shortly after Elizabeth Greenland, a wealthy widow, married Cornelius Brown, an Englishman who had recently moved to South Carolina, that she began to suspect that Brown would try and sell all the property he had acquired in the marriage and abandon her for a wife he already had in England. Convinced that Brown’s plan and marital power would leave her in “penury and want,” Greenland appealed to South Carolina Chancery Court. She asked the court to order Brown to return all the property he had received from her. Brown claimed that he was not legally married to a woman in England (although he had cohabitated with her), and insisted, that because he had used some of his own money to increase the couple’s holdings, he should not have to return control of the property to her. The court ultimately decided to restrain Brown, but they did not force him to return Greenland’s property to her. Instead the court ruled that the couple would have to convey the large estate to trustees for their joint use. With the court’s decision, Greenland did not regain full control. Instead, she had to continue to share with her husband and hope that the trustees assigned to the couple would honor her management wishes over her husband’s. Elizabeth Greenland alias Brown v. Cornelius Brown, 1 Reports of Cases Argued and Determined in the Court of Chancery of the State of South Carolina 196 1776-1813.; “Louisa S. McCord Family Papers (formerly known as Dulles-Cheves-McCord-Lovell Papers), 1786-1954.” SCHS 75 “Louisa S. McCord Family Papers (formerly known as Dulles-Cheves-McCord-Lovell Papers), 1786-1954.” SCHS 149

making a compromise on her own terms to taking her chances in court and risking that the court might award James more control than she was comfortable giving him.76

Women in Louisiana faced different legal obstacles than those in the Carolinas, in part because Louisiana was a civil law, not a common law state.77 And while much of the literature on Louisiana women has exaggerated the advantages that Louisiana women had over their common law southern sisters, Louisiana’s civil law did have slightly more generous inheritance laws for married women.78 Married women in Louisiana had an easier time retaining legal control over property they inherited during marriage than married women in the Carolinas. Under Louisiana’s civil law, property that a wife inherited during marriage counted as paraphernal property. And while a wife could not

76 “Dulles-Cheves-McCord: Ann Lovell Paper“ Louisa S. McCord Family Papers (formerly known as Dulles- Cheves-McCord-Lovell Papers), 1786-1954.” SCHS 77 From the time the ancienne population learned they were to be incorporated into the new U.S., they fought and won the ability to retain their civil law system, at least for matters relating to property. 78 Sundberg pointedly makes this case, as she emphasizes the advantages the Louisiana has women had over their common law sisters. But Sundberg does not address how equity law or local legal practices affected legal outcomes for women in common law states. Sundberg, “Women and Property in Early Louisiana.” More generally, historians have emphasized the positive effects of civil law for women's property holding abilities, especially for French and Spanish colonial America, see for example: Susan Boyle, “‘Did She Generally Decide?’ Women in Ste. Genevieve, 1750-1805,” William and Mary Quarterly 44 (October 1987): 775–89; Deborah Rosen, “Women and Property Across Colonial America: A Comparison of Legal Systems in New Mexico and New York,” William and Mary Quarterly 60 (April 2003): 355–81; Vaughan Baker, Amos Simpson, and Mathé Allain, “Le Mari Est Seigneur: Martial Law Governing Women in French Louisiana,” in Louisiana’s Legal Heritage, ed. Robert Macdonald and Edward Haas (Pensacola: Peridido Bay Press, 1983), 1–6; Jack Holmes, “‘Do It, Don’t Do It!’ Spanish Laws on Sex and Marriage,” in Louisiana’s Legal Heritage, ed. Robert Macdonald and Edward Haas (Pensacola: Peridido Bay Press, 1983), 19–42; Judith Gilbert, “Esther and Her Sisters: Free Women of Color as Property Owners in Colonial St. Louis, 1765-1803,” Gateway Heritage 17, no. 1 (1996); Recently, however, legal historians are more broadly arguing that too much emphasis has been given to Louisiana's exceptional legal history. See, for example: Sean Patrick Donlan, “Brief Reflections on the New Louisiana Legal History 200 Years of Statehood, 300 Years of Civil Law: New Perspectives on Louisiana’s Multilingual Legal Experience,” Journal of Civil Law Studies 5 (2012): 67–80. 150

dispose of it without her husband’s permission, she could manage the property without any interference from her husband. Moreover, the property was protected from her husband’s creditors.79 But American governance introduced new changes to laws governing family contracts.

From the time Louisiana became a U.S. territory, many of the ancienne population were skeptical of American governance. Rumors that the U.S. government would jeopardize the ancienne population’s vast property holdings consistently swirled. Many of the ancienne population had resisted U.S. governance, fearing that their rule would upend local legal customs and jeopardize their vast property holdings. 80 In 1821, many of the ancienne population believed that their fears had been realized. That year, the Louisiana

State Supreme Court’s decided that all family contracts, meetings of creditors, and awards of arbitrators must be drawn up in English under the penalty of being declared null and void.81 Many families began to panic, fearing that the decision could bring on the ruin of thousands of families, rich or poor. Some even pointed to the possible gender

79 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 334; J.P. Benjamin and T. Slidell, Digest of the Reported Decisions of the Superior Court of the Late Territory of Orleans, and of the Supreme Court of the State of Louisiana (New Orleans: J. F. Carter, 1834), 177. 80 See for example: Joseph Tregle, Jr., “Creoles and Americans,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 131–85; James Lewis, The Louisiana Purchase: Jefferson’s Noble Bargain? (Charlottesville: Thomas Jefferson Foundation, 2003); Jon Kukla, A Wilderness So Immense: The Louisiana Purchase and the Destiny of America (New York: Anchor, 2004); Bernard Sheehan, “Jefferson’s ‘Empire for Liberty,’” Indiana Magazine of History 100, no. 4 (December 1, 2004): 346–63; Nathalie Dessens, Creole City: A Chronicle of Early American New Orleans (Gainesville: University Press of Florida, 2015). 81 “Vexatus Toties, Nunquamne Responam?” Le Courrier de La Lousiana (Louisiana Courier), June 4, 1821. 151

implications, claiming that women would be disproportionately affected. Because women of the ancienne population seldom learned to read in English, the court’s

“tyrannical” decision would deprive women of understanding their own family contracts.82

Although the implementation of English as the sole legal language for civil arrangements may have been perceived as an outcome of the Americanization of laws and an attack to the ancienne population of Louisiana, it was simply a part of the emergence of a new nation increasingly dedicated to capitalist industrial organization.

Legal documents that could be understood by the Americans who governed the territory made trade more efficient, streamlined finance, and generally increased both circulation of and access to capital.83 Requiring English as the new legal language was a part of a larger effort to create a republic in which contracts, including those made between families, were uniformly drafted and interpreted.

Likely though, part of the ancienne population’s incensed reaction to the court’s decision arose from the fact that the state’s Supreme Court was one branch of government under which they had little control at the time. In 1821, the Louisiana State

Supreme Court consisted exclusively of non-native Louisianan justices, who were

82 R.Z., “Promissa Adimplebo,” Courrier de La Louisiane, July 30, 1821. The outrage of the ancienne population, especially the French, was known throughout the new nation. One Charleston paper describes the French citizens in New Orleans as “vehemently incensed” by the Court's decision. City Gazette and Commercial Daily Advertiser, June 28, 1821. 83 Many historians have written about this, see for example: Brewer, “Entailing Aristocracy in Colonial Virginia.” 152

characterized by the ancienne population as “Americans.”84 Under U.S. governance,

Louisiana’s governor got to appoint the court’s justices. At the time the justices were appointed, William C.C. Claiborne was governor of Louisiana. The local population had not elected Claiborne. Instead, he had been appointed President Jefferson in order to oversee the transfer of Louisiana to the U.S.

But the ancienne population was not without legal recourse. Members of the ancienne population had more control over the state’s Senate and House of

Representatives.85 These legislators responded to the concerns of many in the ancienne population who believed their family’s property, especially property owned by women, was threatened by the Supreme Court’s decision to require that all family contracts, meetings of creditors, and awards of arbitrators be drawn up in English. In 1822, the general assembly passed an act that dictated that family contracts could not be “attacked or invalidated on the ground that it …[was] drawn up in the French language.” Further, it decreed that any family contract “made or executed in the French language, shall be quite as legal and binding upon the parties as if the same had been made or executed in the English Language.”86 If any creditor challenged a family contract transcribed in

84 Warren Billings, “The Supreme Court of Louisiana, 1813-2013, A Bicentennial Sketch” (New Orleans: The Louisiana Supreme Court, 2013), 11–14. 85 David Poynter, “Membership in the Louisiana House of Representatives,” Louisiana House of Representatives, 2017, accessed June 1, 2017, http://house.louisiana.gov/H_PDFdocs/HouseMembership_History_CURRENT.pdf. 86 Louis Moreau Lislet, A General Digest of the Acts of the Legislature of Louisiana: Passed from the Year 1804 to 1827 Inclusive, and in Force at This Last Period with an Appendix and General Index (New Orleans: Printed by Benjamin Levy, 1828), 458. 153

French, the courts now would have to honor the new state law that protected French family contracts.

Still, while legislators acted to ensure family contracts could be in French as well as English, propertied Louisiana women still faced other cumbersome legal requirements when protecting their separate control of property. Like legislators in the

Carolinas, Louisiana legislators were sympathetic to creditors’ desires for clear and widely understood titles to family property and recognized that in their multilingual state, language barriers made transparency more challenging. They also recognized that when a woman married, it was assumed that her husband would have legal managerial authority over most of the household property. As a result, legislators upheld another law that dictated that if a wife obtained a separation of property, while married, notice of the separation must be published three times, within three months of the judgment, in both “English and French languages, in at least two of the newspapers which are printed in New-Orleans.”87 In sum, the law added additional burdens to the wife, to make her separation of property clear to all creditors.

Though it was lawmakers’ dedication to more business-friendly policies and a more uniform body of property law that were chiefly responsible for the changes to the rules governing separate estates for women, popular misogynistic narratives also influenced lawmakers and their decisions. Changes to laws that expanded a husband’s

87 Upton and Jennings, eds. Civil Code of the State of Louisiana, 375. 154

authority over property both were shaped by, and helped reinforce, old misogynistic narratives about a wife’s necessary subordination to her husband for the well-being of the marriage and family. Such widespread sociocultural narratives, which were articulated in sources such as ladies’ advice books, travel literature, newspapers, and personal correspondence, affirmed a husband’s authority over property and encouraged

wives to cede control. 88 For example, in his married women’s advice book, Samuel K.

Jennings scoffed at wives who believed themselves “superior skill in the management of an estate…and therefore wrest every thing out of the hands of their husbands”89

Jennings’ sentiments reverberated in the laws of the era. Ruffin, for example, in Abigail

Rudisell’s case stated that the reason why common law and equity law invested husbands with authority over property a wife inherited was because “he can manage it better than the wife.”90 In Louisiana, the sociocultural idea that wives’ control of property should be secondary to their husbands seems to have influenced the language of the marital codes which decreed husbands were the “head and master” of household

88 See, for example: Samuel Jennings, The Married Lady’s Companion, or Poor Man’s Friend, Second Revision (New York: Lorenzo Dow, 1808), 116; Benjamin Henry Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820 (New York: Columbia University Press, 1951), 24; “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC; “Louisa S. McCord Family Papers (formerly known as Dulles-Cheves-McCord-Lovell Papers), 1786-1954.” SCHS; One man wrote in a Mississippi newspaper, that if a wife and mother controlled more of the family property, then “...Children will disregard the advice, the admonitions, and the commands of their father” instead “they will look up to her and not to him.” Mississippi Free Trader and Natchez Weekly Gazette, February 26, 1839; also cited in, Katy Morlas, “La Madame et La Mademoiselle: Creole Women In Louisiana, 1718-1865” (Masters Thesis, Louisiana State University and Agricultural and Mechanical College, 2005), 7. 89 Samuel Jennings, The Married Lady’s Companion, or Poor Man’s Friend, 68; reprinted in: Nancy Cott, ed., Roots of Bitterness: Documents of the Social History of American Women (New York: E.P. Dutton & Co., 1972), 116. 90 Rudisell v. Watson, 2 North Carolina Reports at 431. 155

property.91 Even in equity cases where the courts recognized the separate estates of married women, other patriarchal elements often influenced the ruling. Women tended to have more success seeing their separate estates upheld if their property was in a trust.

Trusts, by their nature required a trustee (also known as the manager of the trust), which, legally (if not in practice) prevented a wife from direct and complete control over her estate. Almost all of the trustees for married women were men, usually a family member from her side of the family.

These sociocultural narratives about family property and gender played an important role in shaping ideas about women and their rightful relationship to property, and, in conjunction with new state laws related to property, created an environment in which property attached more easily to men than to women. As states augmented a husband’s legal authority over his wife’s property, many propertied women learned of the importance of their connections to a broader network of men – men in their families, men in the courts, and male friends. 92 Women needed to be well connected to family

91 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government, 336; Thomas Morgan, ed., Civil Code of the State of Louisiana with the Statutory Amendments, from 1825 to 1853, Inclusive; and References to the Decisions of the Supreme Court of Louisiana to the Sixth Volume of Annual Reports (New Orleans: Bloomfield & Steel, 1861), 494. 92 As previously noted, Edwards and Salmon make very similar arguments for the early nineteenth century. Edwards, The People and Their Peace, 158–59; Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830.” Erickson has seen similar trends in modern England. Erickson, Women and Property in Early Modern England. Several historians have made similar claims about much of colonial North America, see for example: Alexander, Commodity & Propriety: Competing Visions of Property in American Legal Thought, 158–84; Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina”; Brewer, “Entailing Aristocracy in Colonial Virginia”; Lebsock, The Free Women of Petersburg; Sturtz, Within 156

and area patriarchs because new state laws made it more difficult for them to control property in their own names. As the relationship between white maleness, property, authority became more clearly defined, wives had less legal recourse to regain control.

Her Power, 19–70; Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida.” 157

Chapter Four: White Women and Slave Codes in South Carolina, 1820 to 1835

In 1825, sitting on South Carolina’s Court of Appeals, Court Judge Abraham Nott presided over a case that seems to have troubled him. Elizabeth Blythe, a widow who owned a large plantation in Georgetown, South Carolina, was convicted in the district court of violating a new state slave law: operating a settled plantation without “a white man present, capable of performing patrol duty.” Blythe appealed because, she argued, the local courts were misapplying the new criminal law. The statute made exceptions for all slave owners, men or women, who lived on their plantation for at least seven months out of the year. As she lived on and actively managed her plantation, Elizabeth Blythe claimed she met the legal requirements. But the local Georgetown jury had disagreed.

They convicted Blythe based on a technical reading of the law. Like many members of the propertied class, Blythe owned several adjoining plots of land. Because Bltyhe’s home was not situated the same plot of land on which her slaves quarters stood, the jury claimed she did not technically live on her plantation. Judge Nott was not impressed with the local court’s creative interpretation of the fact pattern. Judge Nott agreed with

Blythe that the local court had misapplied the new state law and ordered that a new trial be granted. In his reasoning, Judge Nott made it clear that the new slave code was enacted to prevent the “mischief” of slaves who might “endanger” the community by requiring that an owner or, in place of an owner, a white man, be physically present on

158

their plantation for the majority of the year. As Blythe lived near her slaves and routinely managed them by herself, Judge Nott claimed that she had “amply fulfilled…the spirit of the act…” Moreover, Judge Nott challenged the logic behind the conviction and zeroed in on the role gender may have played in the jury’s decision. He asked: “Suppose Mrs. Blythe actually had a white man living on the lot where she resides…or suppose a gentleman, the owner of a plantation residing in the same situation and superintending his own business, could there be any doubt that it would be a compliance with the regulations of the act?”1 With this incisive question, Judge Nott implied that Blythe had been shadow boxing the jury’s real concerns – that she was a white woman managing a large plantation without the aid of a white man.

Historians studying slave laws have tended to focus on the way slave laws have affected enslaved people, and for good reason. Slave laws were enacted to police enslaved people and had by far the greatest consequence for enslaved people. But slave laws could affect white southerners, particularly white women as well. New state slave laws were, on some occasions, applied to regulate how whites managed the people they claimed as slaves. To be sure, charges brought against whites under the slave codes were still relatively unusual, especially when compared to other crimes like assault and battery, larceny, or other forms of theft. But the few surviving records show that when

1 The State v. Elizabeth Blythe, 3 Reports of Cases Determined in the Court of Appeals of South Carolina 363 1825-1826.; David McCord, ed., The Statutes at Large of South Carolina: Acts Relating to Corporations and the Militia, vol. 8 (Columbia: A. S. Johnston, 1840), 540. 159

applied to whites, slave codes could be used against white women, particularly those who were already vulnerable because of their relationships within the community. The language and application of the laws in South Carolina are particularly revealing.

Between the Revolution and the Civil War, South Carolina legislators endowed a broader class of white men with more rights and responsibilities over governance and property, solidifying the connection between white maleness and mastery over enslaved people and family property. The laws reflected a situation in which white women’s ability to step in and fill roles associated with men became more difficult. The cases involving white women who were independently managing enslaved people suggest the nature of those changes. These few cases also provide a unique opportunity to see how lawmakers at both the local and state level anxiously responded when the very laws they helped create were used against white propertied women.

This chapter focuses on two new South Carolina slave laws, one in 1819 that forbid “operating a plantation without a white man present” and one in 1834 that forbid

“trade with Negroes for cotton.” 2 These laws affirmed longstanding practice, which gave community members the power to police their neighbors’ relationship to their enslaved people—practices that were not unique to South Carolina, even when they

2 Thomas Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia: With an Appendix, Containing the Patrol Laws; the Laws of the Government of Slaves and Free Persons of Colour; the Decisions of the Constitutional Court and Court of Appeals of South-Carolina Therein; and an Abstract from the Rules and Regulations of the United States’ Army (Charleston: A.E. Miller, Printer and Publisher, 1830), 138; McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540; David McCord, ed., The Statutes at Large of South Carolina: Acts Relating to Corporations and the Militia, vol. 6 (Columbia: A. S. Johnston, 1839), 516. 160

were not formalized by statute. 3 Although application of these laws and the resulting accusations of property mismanagement likely originated in personal feuds and local circumstances that have been lost to time, the cases explored here suggest the role that gender played in their application.

---

As described in the previous two chapters, southern states had been modifying their laws since the American Revolution to promote individual white men’s legal rights over family property, especially land and slaves. But, as scholars have shown, while

3 Louisiana passed a similar law that required every proprietor of a plantation to “permanently keep” a white person for every thirty slaves on the plantation. Acts Passed at the Session of the Legislature of the State of Louisiana (New Orleans: W. Van Benthuysen & P. Besancon, Jr., 1815), 30–34; also noted in E. Russ Williams, “Slave Patrol Ordinances of St. Tammany Parish, Louisiana, 1835-1838,” The Journal of the Louisiana Historical Association 13, no. 4 (Autumn 1972): 399–400. North Carolina had a law similar to South Carolina’s law forbidding slaves to “trade for cotton.” The laws regarding trading with slaves in North Carolina, while similar to South Carolina, differed in that whites in North Carolina could generally trade with slaves if the slaves had written permission from their “master, mistress, or overseer.” This also used to be the case in South Carolina and remained the case for items other than cotton, rice, wheat and corn. But in 1834, South Carolina modified the trading laws to ban all trading with slaves for important commodities such as cotton, rice, wheat, and corn. John Haywood, A Manual of the Laws of North Carolina: Arranged under Distinct Heads in Alphabetical Order: With References from One Head to Another When a Subject Is Mentioned in Any Other Part of the Book than under the Distinct Head to Which It Belongs, vol. 2 (Raleigh: J. Gales, 1814), Part II: 155,165–6,181; Henry Potter, Bartlett Yancey, and George Mendenhall, Laws of the State of North-Carolina: Including the Titles of Such Statutes and Parts of Statutes of Great Britain as Are in Force in Said State : Together with the Second Charter Granted by Charles II to the Proprietors of Carolina, the Great Deed of Grant from the Lords Proprietors, the Grant from George II to John Lord Granville, the Bill of Rights and Constitution of the State : Including the Names of the Members of the Convention That Formed the Same, the Constitution of the United States, with the Amendments and the Treaty of Peace of 1783: With Marginal Notes and References (Raleigh: J. Gales, 1821), 1484; McCord, ed., The Statutes at Large of South Carolina, vol. 6: 516. Still, North Carolinians and Louisianans do not seem to have used these two slave codes against white women in the same fashion as South Carolinians. I have found two instances in North Carolina in which one married couple was charged with trading with slaves, but these charges were brought in an earlier period - 1805. I have yet to find any cases in Louisiana in which any person was charged with operating a plantation without a white person present. Admittedly, much more research on the operation of these two laws in these two states needs to be done. I suspect that the lack of charges has more to do with a lack of research dedicated to these charges than a lack of charges brought under these two laws – against men or women. State v. Thomas Crabtree and Elizabeth Crabtree, Criminal Action Papers, Orange County, NCDAH. 161

white southerners had deep respect for the concept of private property, judicial decisions and discussions in letters and newspapers show that they viewed slaves as a household property over which full private control may not have been possible.4 As the early republic progressed into the antebellum period, it became clear to lawmakers that enslaved people complicated the narrative of private control of property, primarily because they were fundamentally distinct from land and other forms of personal property. Slaves were humans. They had intelligence, a desire for freedom, and as southern governments recognized, a capacity for mobility and destruction that other kinds of property did not.

Slave owners’ ability to privately control their slaves elicited even more concern in the decades after the American Revolution. In the early nineteenth century, white southerners faced increasing internal and external pressures to abolish slavery.

Internally, white southerners faced pressure from slaves and free blacks themselves.

Since their internment in America, enslaved people and free blacks routinely challenged slavery: sometimes through everyday resistance, sometimes through open protest, and

4 See, for example: Judith Schafer, “’Details Are of a Most Revolting Character’: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana,” ed. Paul Finkelman, Slavery & the Law (Madison: Madison House Publishers, 1997), 241-267; Walter Johnson, Soul By Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999); Sally Hadden, Slave Patrols: Law and Violence in Virginia and the Carolina (Cambridge, MA: Harvard University Press, 2001), especially 6; Mark Tushnet, “Constructing Paternalist Hegemony: Gross, Johnson, and Hadden on Slaves and Masters,” in Law & Social Inquiry, Vol. 27, No. 1 (Winter, 2002), pp. 169-188; Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 132. 162

sometimes through large-scale rebellions.5 Externally, scholars have shown that enslaved people and free blacks found a growing sympathetic audience as the abolitionist movement spread across northern United States and the Atlantic. The anti- slavery rhetoric of the American Revolution and the bourgeoning free labor movement of the North, which accompanied the industrial revolution, fueled northern abolitionists’ efforts to end slavery in their states.6 Most had abolished or devised plans for slavery’s elimination by 1799.7 Southern lawmakers also witnessed the collapse of slavery to their south. In 1804, Haiti became the first nation run by formerly enslaved people after a slave insurrection on the French colony of Ste. Domingue turned into a full-scale revolution against mighty Napoleonic French Empire. The Haitian Revolution proved that a planter’s dominion over enslaved people could not be taken for granted.8

5 See, for example: Herbert Aptheker, American Negro Slave Revolts (New York: Columbia University Press, 1943); James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1985); Stephanie Camp, Closer to Freedom: Enslaved Women and Everyday Resistance in the Plantation South (Chapel Hill: The University of North Carolina Press, 2004). 6 As manufacturing, not large-scale agrarian production, became the industry of the North, more northern laborers began to espouse their dedication to free labor. See, for example, Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (Oxford: Oxford University Press, 1984). 7 By 1799, lawmakers in Vermont, Pennsylvania, New Hampshire, Connecticut, Massachusetts, Rhode Island, and New York had all either directly outlawed slavery or begun the process of gradual emancipation of the slaves belonging to residents of their states. For example, in 1777, the lawmakers in Vermont framed their Constitution in a fashion so that it partially banned slavery as it freed women older than 18 and men older than 21. In 1780, Pennsylvania passed “An Act for the Gradual Emancipation of Slaves,” freeing the future children of slaves. Those who were enslaved at the time of the passage of the Act remained enslaved for life. This act becomes a model for many other Northern states and by 1799 New Hampshire, Connecticut, Rhode Island, and New York had all passed similar acts. Massachusetts was unique in that the state Supreme Court outlawed slavery in 1783, declaring it violated the state’s constitution. “Constitution of Vermont - July 8, 1777,” The Avalon Project, Yale University, accessed March 16, 2015, http://avalon.law.yale.edu/. 8 See, for example: David Geggus, ed., The Impact of the Haitian Revolution in the Atlantic World (Columbia: University of South Carolina Press, 2002); David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in 163

At the same time slavery was collapsing in states and countries across the

Atlantic, it became more important to many white southern planters. The invention of the cotton gin and the industrial revolution made cotton one of the South’s most valuable commodities. White southern planters relied heavily on slave labor to produce cotton. In addition to cotton, South Carolina planters depended on slave labor to produce other valuable commodities such as rice and indigo. The confluence of the growing anti-slavery movement and related rebellions fanned southern planters’ fears that abolitionists would continue to spread revolutionary ideology and encourage more slave rebellions, thus endangering the lives and property of slaveholders, as well as the institution of slavery itself. Anxieties were particularly acute in coastal regions of the

Carolinas, where wealth was the most concentrated and slaves dramatically outnumbered whites.9 From slaveholders’ perspective, the well-documented slave rebellions and abolitionist sentiment that was gaining traction across the Atlantic threatened not only their property in slaves, but also slavery as institution. And a threat to slavery was a threat to their livelihood.

the New World (Oxford: Oxford University Press, 2006); W. Caleb McDaniel, The Problem of Democracy in the Age of Slavery: Garrisonian Abolitionists and Transatlantic Reform (Baton Rouge: Louisiana State University Press, 2015). 9 According to Klein, “Slaves in the coastal districts of Charleston, Beaufort, and Georgetown composed 71 percent of the population.” Rachel Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill: The University of North Carolina Press, 1990), 128. For information on the Carolinas anxieties see, especially, Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 146–47. 164

State lawmakers in southern states recognized that an institution with the volatility and economic importance of slavery needed to be managed carefully. As a result, southern state legislators passed more laws aimed at regulating the behavior and oversight of enslaved people.10 The new laws often emerged in the aftermath of perceived crises, like slave rebellions. Sometimes these laws originated from the discussion and concerns of legislators themselves, and in other instances, laws had roots in petitions from ordinary people or local communities.11

When synthesizing all the new slave codes in his 1848 digest, The Negro Law of

South Carolina, Judge John O’Neall’s, revealed he had mixed feelings on the changes. As both a slave-owner and lawmaker, Judge O’Neall’s commentary makes it obvious that he supported passage of laws that he believed would regulate and stabilize slavery. He noted early in the work that by striking the right legal balance, he believed that southerners would “have nothing to fear for negro slavery.”12 But he also chafed against some of the laws that simultaneously limited an owner’s authority over their slaves and

10 South Carolina, for example, either passed new laws or modified old slave codes in 1800, 1809, 1817, 1819, 1820, 1834, 1835, 1837, 1841, and 1844. As judge John Belton O’Neall argued in his legal digest The Negro Law of South Carolina, by developing a balanced system of slave laws, South Carolinians would, “have nothing to fear for negro slavery. Fanatics of our own, or foreign countries, will be in the condition of the viper biting the file. They, not us, will be the sufferers.” Although lawmakers consistently changed and debated the efficacy of such slave laws, in reality, they were creating for themselves and other slave owners the illusion, rather than the reality of stability and control. John Belton O’Neall, ed., The Negro Law of South Carolina (Columbia: J.G. Bowman, 1848), 12; Condy, A Digest of the Laws of the United States & the State of South- Carolina Now of Force, Relating to the Militia; David McCord, ed., The Statutes at Large of South Carolina: Containing the Acts Relating to Corporations and the Militia., vol. 8 (Columbia: A.S. Johnston, 1840), 538. 11 Paul Finkelman, ed., Slavery & the Law (Madison: Madison House Publishers, 1997); Thomas Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina Press, 1999); Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas; Edwards, The People and Their Peace. 12 John Belton O’Neall, The Negro Law of South Carolina, 12. 165

encouraged broader communal policing of enslaved people. When commenting on a law that restricted the kinds of property that slave-owners could allow their slaves to posses, Judge O’Neall’s resentment of the law and its apparent use becomes clear when he states: “All these matters are between the master and the slave, in which neither the public nor prying, meddling, mischievous neighbor, has anything to do.”13

Certainly, recent scholarship has made it clear that adherence to the new state laws varied widely. Sometimes districts knew of some of the laws, but disregarded them if the new rules infringed on customary practices. Other times, local communities failed to enforce new state laws because they did not know such state laws existed.14 Districts, did, however, tend to enforce those laws that they petitioned for and consequently had implemented by the state.15

The law that forbid “operating a planation without a white man present” had its origins in a petition from the coastal district of Beaufort, South Carolina; not surprisingly, the surviving records indicate that law seems to have been most widely employed by other coastal districts. Importantly, the gender specific language of the state law did not exist in the original 1818 petition. Instead, the original petition asked

13 Ibid., 22. 14 See, for example: Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003); Edwards, The People and Their Peace; Kimberly Welch, “Black Litigiousness and White Accountability: Free Blacks and the Rhetoric of Reputation in the Antebellum Natchez District,” The Journal of the Civil War Era 5, no. 3 (September 2015): 372–98. 15 Edwards, The People and Their Peace; Michael Johnson, “Denmark Vesey and His Co-Conspirators,” William and Mary Quarterly 58, no. 4 (October 2001): 915–76. 166

“for a law to compel owners of plantation, who do not reside thereon during the year, to keep some white person there, capable of performing patrol duty.”16 But when the act passed in 1819, it specified: “That every owner of any settled plantation, shall employ and keep on such plantation, a white man capable of performing patrol duty…”17

The new gender language derived, in part, from state lawmakers’ attempts to keep the language of the law consistent with other laws passed simultaneously. The law mandating the presence of a white man on a plantation was actually a part of a much broader legislative act that was aimed at ensuring a “more effectual performance of

[slave] Patrol Duty.” 18 In this broader legislative act, South Carolina legislators modified existing slave patrol laws in a fashion that moved official policing of slaves from slaveowners, who could be male or female, to white men. 19 Slave patrols were a kind of district police that patrolled on a routine basis (usually every two weeks, unless a crisis required their immediate deployment) and enforced slave codes in an attempt to keep enslaved people in a position of subordination. Legal historian Sally Hadden explains that from 1739 to 1819, all owners of plantations, including women, were supposed to be enrolled by militia officers and selected for routine patrol duty in their

16 “State Legislature,” Carolina Gazette, December 26, 1818. 17 Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia, 138; McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540. 18 McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540. 19 See, for example: Schafer, “’Details Are of a Most Revolting Character’”; Walter Johnson, Soul By Soul; Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, especially 6.; Mark Tushnet, “Constructing Paternalist Hegemony: Gross, Johnson, and Hadden on Slaves and Masters.” 167

districts. The legislature had reasoned that all owners of a settled plantation ought to contribute to the service and security of their own district. Women could and routinely did provide substitutes for patrol service; in fact, Hadden has found no instance in which a white woman served on a slave patrol.20 But in 1819, the South Carolina legislature passed a new wide-sweeping legislative act that changed the requirements for patrol enrollment. It barred women from direct participation and made all able- bodied free white males between the ages eighteen and forty-five liable to be chosen by the local militia captain for patrol duty. These men could only claim exemption if they did not own slaves, but could also choose to be a part of the patrols if they wished. And some did wish to participate, because, in South Carolina, patrollers received financial compensation for their service. However, as slave-owning women were no longer

“capable of performing patrol duty” these mistresses were expected to provide an able- bodied white male substitute between the ages of eighteen and sixty.21 Thus, new slave patrol laws made official slave patrolling strictly a man’s affair and excluded explicitly.

To be sure, recent scholarship has shown that local South Carolina communities recognized the authority of white women – wealthy or not – as valuable members of communities who could manage and help police slaves. But this literature also recognizes that women were largely left out of the state-level conversations about the

20 Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 2n11, 73. 21 Ibid., 73; McCord, ed., The Statutes at Large of South Carolina, vol. 8: 538-540; Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia, 121. 168

control of slaves. Women proved marginal in the development of state law, in part because they made up a smaller population of independent planters and, in part, because the idea that men were best suited to oversee the management of slaves still prevailed. 22

Although official state slave patrolling became strictly a man’s affair, legislators caveated the law that forbid “operating a plantation without a white man present capable of performing patrol duty” to allow for a wider range of slave managers. As previously noted, masters and mistresses of any age were exempted from this law if they resided on their plantation for at least seven months during the year or if they employed less than ten working enslaved people.23 The seven-month requirement was to allow for the coastal Carolina customary practice of operating plantations remotely during periods of disease, which typically ran from the last week of May until November.

Historians have noted that during this time, planters in the coastal regions of the

Carolinas and Georgia rarely visited their plantations and instead then managed remotely via the task-system. Under the task-system, enslaved people performed a set of chores or “tasks” at their own pace. Afterwards, they were typically free to hunt, rest, or cultivate their own produce. While white masters and mistresses were away, several left

22 Kirsten Wood, Masterful Women: Slaveholding Widows from the American Revolution through the Civil War (Chapel Hill: The University of North Carolina Press, 2004); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge: Cambridge University Press, 2008); Edwards, The People and Their Peace. 23 Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia, 138; McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540. 169

the care of the plantation to a head slave known as a driver, not a white overseer, who

would make sure the “tasks” were carried out. 24 The new law was implemented to curb the amount of time enslaved people would be left alone to run the plantation without white supervision and ensure that their independence from whites lasted no more than five months.25

The exceptions of the law reflect the tensions of the time. While the law promoted white male oversight of slaves, it recognized that other people besides white men between the ages of eighteen and sixty might own a plantation with more than ten slaves. And those other owners, white women included, had property rights.

Lawmakers determined that the state could not and should not take their plantation away from them because of their age or gender. Owners were entitled to supervise their plantation as long as they were physically present for at least seven months out of the year. But in cases where an owner was not present for the required time, a white man was the only acceptable substitute.

State lawmakers, who were almost all large slaveholders themselves, had a vested interest in ensuring that the law did not completely infringe on planters’ rights,

24 For information regarding the South Carolina planter’s seasonal absence, the “task-system,” the laws governing enslaved people, and enslaved peoples’ relative independence while masters were away see, for example: Charles Joyner, Down by the Riverside: A South Carolina Slave Community (Urbana: University of Illinois Press, 1984); Loren Schweninger, “Slave Independence and Enterprise in South Carolina, 1782-1865,” South Carolina Historical Magazine 93 (April 1992): 101–25; Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas; Penningroth, The Claims of Kinfolk; Wood, Masterful Women; Edwards, The People and Their Peace. 25 The State v. Elizabeth Blythe, 3 Reports of Cases Determined in the Court of Appeals of South Carolina at 363-364. 170

including women. Female family members were crucial to the maintenance of family lines and family property. Many of the lawmakers had mothers, wives, daughters, or sisters that they had personally relied on to manage their family’s plantation while they were away on business and had wills that showed that they trusted these women with the care of their estates for future generations after their passing.26

While slave owners, whether male or female, still had the greatest measure of control over their slaves, state laws continued to strengthen local men’s abilities more generally to oversee slaves.27 For example, South Carolina passed more laws aimed at enhancing the development and reach of slave patrols and empowering community members to directly police slaves. In times of crisis, such as when insurrections seemed imminent, white male authority over slaves expanded rapidly. White men who did not own slaves were called upon to help restore order. In her memoir, Harriet Jacobs, who was a slave in North Carolina during Nat Turner’s rebellion in 1834, recalled that poor white men greatly enjoyed newly expanded power to police slaves, and consequently, slave owner’s management of slaves, as they got the opportunity “to exercise a little

26 Secondary literature has longed echoed this finding: Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, No. 4 (October 1982): 655–85; Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986);Wood, Masterful Women; Edwards, The People and Their Peace; Serena Zabin, Dangerous Economies: Status and Commerce in Imperial New York (Philadelphia: University of Pennsylvania Press, 2009); Ellen Hartigan-O’Connor, The Ties That Buy: Women and Commerce in Revolutionary America (Philadelphia: University of Pennsylvania Press, 2009); Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Hagler Minter (Athens: The University of Georgia Press, 2013), 19–44. 27 McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540. 171

brief authority.” 28 Although Jacobs was living in North Carolina at the time, Hadden argues that similar patterns can be seen in South Carolina and Virginia when white communities felt particularly fearful.

Moreover, South Carolina not only included more white men of different classes when whites believed insurrections loomed, but they also considered expanding the power those white men would have while patrolling. Hadden notes that, for example,

South Carolina reinforced old laws that allowed slave patrols to whip enslaved people if they were found outside of their owner’s property without a permit from their owner.

Patrol laws even allowed patrollers to enter homes they deemed disorderly to search for errant slaves. One proposal made in the wake of a slave revolt would have altered South

Carolina’s patrol laws so the patrols could enter plantations, note any absences, and whip the missing slaves whenever they were next encountered.29 The law would have invaded the private property of plantation owners, permitting patrollers to police the internal affairs of the plantation and act as an outside overseer. Not surprisingly, the proposed law died in committee.30 Still, the message was clear, in times of crisis, official and unofficial slave patrols acted as a kind of equalizer of white men in the sense that

28 Harriet Ann Jacobs, Incidents in the Life of a Slave Girl, ed. Lydia Maria Francis Child (Boston: Published for the Author, 1861), 98, Documenting the American South, University of North Carolina, accessed March 9, 2016, http://docsouth.unc.edu/fpn/jacobs/jacobs.html#jac97; Also described in: Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 146. 29 Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 151. 30 Ibid., 150–51. 172

more white men were vested with the authority to police slaves, as property of other private citizens.

In the records that have survived, not many slaveholders, women or men, appear to be charged with violating the new law, although the absence of such prosecution does not necessarily mean that plantation owners were always compliant. For example, census records from 1820s and 1830s show that in the planter communities of St. John’s

Parish and St. James Goose Creek, two low country districts of Charleston, several white-owned plantations are listed without any white person living on the plantation.

The plantations were owned by both men and women and varied in size from large

(with over ninety slaves) to small (with ten or fewer).31 Instead, the relatively low number of accusations in the coastal region likely stemmed from the fact that accusing a local community member of mismanaging their own estate was sure to create tensions between the planter and their accuser.

State lawmakers seem to have anticipated this hesitancy and attempted to mitigate it by providing an economic incentive for reporting. The law that forbid operating a settled plantation without “a white man present, capable of performing patrol duty” carried with it financial benefits for those who reported on misbehaving slave owners. If found guilty of such mismanagement, the owner of the plantation

31 Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1820; Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. John’s,” 1820; Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1830. 173

would have to pay fifty cents per slave on the plantation, per month the slave had worked without a white man overseeing the plantation. The collected fine was to be split equally between the state and the informer.32 Still, the fine does not appear to have encouraged widespread reporting. Instead the law’s construction may have only incentivized targeted reporting.

White women were not the only people indicted for “operating a plantation without a white man present.” In the surviving records from Charleston, the majority of plantation owners indicted for this crime were white men. But the white women who were indicted were of much greater wealth and higher status than the men who were charged. This pattern is reflected in the charges William Davis initiated against his neighbors in 1822. William Davis was a planter with twenty-five slaves in St. James

Goose Creek, a district of Charleston.33 In addition to accusing a woman named

Elizabeth Wragg of “operating a plantation without a white man present,” Davis also accused four white men of the same crime. According to criminal records, Wragg owned a plantation with ninety slaves while the men Davis accused had between ten and twenty-five slaves. 34 Like many criminal indictments from the nineteenth century, the

32 Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia, 138; McCord, ed., The Statutes at Large of South Carolina, vol. 8: 540. 33 Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1820. 34 Isaac Porcher had a plantation with ten slaves, Thomas Scriever had a plantation with fifteen slaves, William Mazyck, Esq. had a plantation with sixteen slaves, and Rev. Milward Pogson had a plantation with twenty-five slaves. A note: William Mazyck’s and Thomas Scriever’s indictments are improperly filed in Isaac Porcher’s file. State v. Elizabeth Wragg, May 1822, Indictments, Court of General Sessions, Charleston 174

records on these individuals are maddeningly spare in their details, which make it necessary to rely on contextual evidence to help substantiate an analysis.

In 1822, the same year that Davis accused five of his neighbors of mismanaging their property, Charlestonians believed they came close to experiencing a major rebellion. A former enslaved man named Denmark Vesey, was rumored to have begun organizing a revolt. White Charlestonians’ belief that Denmark Vesey had been planning a large-scale insurrection certainly made many area planters nervous that unattended slaves might be dangerous.35 Davis may have been one of these planters. But it is unlikely that this reason alone was enough to encourage these specific accusations.

Census records for the same area seem to indicate that there were several plantations, owned by men and women, that listed no white person as living on the estate.36 The plantations varied in size from large (with over ninety slaves) to small (with ten or

District, SCDAH; State v. Isaac Porcher, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. William Mazyck, Esq., May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. Thomas Scriever, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. Rev. Milward Pogson, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH. 35 Thomas Wentworth Higginson, “The Story of Denmark Vesey,” The Atlantic, June 1861, accessed April 2, 2016, http://www.theatlantic.com/magazine/archive/1861/06/denmark-vesey/396239/; Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 146–47; Douglas Egerton, He Shall Go Out Free: The Lives of Denmark Vesey (Madison: Madison House Publishers, 1999); Maurie McInnis, The Politics of Taste in Antebellum Charleston (Chapel Hill: The University of North Carolina Press, 2005); Edward Pearson, ed., Designs against Charleston: The Trial Record of the Denmark Slave Conspiracy of 1822 (Chapel Hill: University of North Carolina Press, 1999); Michael Johnson, “Denmark Vesey and His Co-Conspirators”; Edwards, The People and Their Peace, 289–90. 36 Also Hadden notes that after a revolt appeared quelled, patrols returned to their pre-insurrection state. “Even up risings of great magnitude could not spur whites to maintain their heightened vigilance indefinitely.” Based on this argument, I would think that community policing might follow a similar pattern. Therefore, it might not necessarily have been fear that drove Davis to make the accusations. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas, 149–50. 175

fewer). But William Davis did not accuse any man that owned more slaves than he did.37

It is more likely that Davis had both some pre-existing issue with the slaveholders he accused and viewed them as individuals he could afford to alienate.

Although the personal aspects of the case are unclear, the identity of the people

Davis chose to accuse of plantation mismanagement–one woman who owned a large planation and four less-wealthy male planters–reveals aspects of the social dynamics at play in 1820s Charleston. Davis appears to have selected only those who he could afford to alienate, and for good reason. Southern historians have shown that early nineteenth century community members, whether independent patriarchs or social subordinates

(such as white women, free people of color, or enslaved men or women), all needed to keep good reputations if they wanted to live a peaceful and prosperous life. Keeping a good reputation typically meant dutifully performing one’s social role in the existing hierarchies and not legally challenging those with more authority without the aid of a powerful ally.38 In this environment, class hierarchies still overlay gender and race hierarchies, and white men with more wealth outranked white men with less.39

37 See, for example: Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1820; Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. John’s”; Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1830. 38 See, for example: Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton: Princeton University Press, 2000); Edwards, The People and Their Peace; Penningroth, The Claims of Kinfolk; Kimberly Welch, “Black Litigiousness and White Accountability: Free Blacks and the Rhetoric of Reputation in the Antebellum Natchez District.” 39 See, for example: Klein, Unification of a Slave State; Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (Oxford: 176

Therefore, Davis had to balance the odds of upsetting the local order, which might jeopardize his own reputation, against the likelihood of securing a conviction, and, consequently, compensation. Three of the four men Davis accused had fewer slaves and, therefore, were of lower status than Davis. Davis likely saw these three men as relatively safe to accuse. Davis was right in his calculations, at least with respect to the man who owned only ten slaves as the small planter was convicted.40 The other two men who owned fewer slaves than Davis may have been convicted as well, but it is unclear from the court records, which like many nineteenth century criminal records, simply trail- off.41

Unlike the other three men William Davis accused of slave mismanagement, one man, named Rev. Pogson, owned as many slaves as Davis; but Pogson does not seem to be a typical “independent” patriarch. What may have made Pogson safer to accuse, in

Davis’s eyes, was his ties to Elizabeth Wragg—the only woman Davis reported—and

Pogson’s position within the Wragg family. Elizabeth Wragg was Pogson’s sister in-law.

He likely acquired his plantation through his marriage to Elizabeth Wragg’s sister,

Oxford University Press, 1995). Although both Klein and McCurry look for ways in which white men of lower classes united politically and even ideologically with planter men of higher classes, they both still acknowledge the very real existence of class hierarchies. In fact, one of the uniting factors that McCurry explores is that men of the lower classes also believed in a man’s right to be the master of his home, which included the property and subordinates of the home. 40 State v. Isaac Porcher, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH. 41 State v. William Mazyck, Esq., May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. Thomas Scriever, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH. Incomplete records are common in the early nineteenth century local court records. 177

Henrietta.42 The marriage contract between Pogson and Henrietta Wragg has not yet surfaced, if one was even made. But because his plantation adjoined the larger Wragg plantation that was owned and managed by Elizabeth, it is highly likely that Rev.

Pogson’s land, and some, if not all, of the slaves he managed, had been given to him by the Wragg family as a dowry.43 Still, his plantation was much smaller and ancillary to

Elizabeth Wragg’s large plantation, which she, not he, independently managed. He, therefore, was secondary in power and wealth to his wife’s sister. So although Pogson owned as many slaves as Davis, his property may have appeared to be under the aegis of, or at least intertwined with, the plantation of Elizabeth Wragg. Unfortunately,

Pogson’s legal fate is unclear, as his court records are also incomplete.44

Given the power of class hierarchies in South Carolina, it is clear that when

William Davis accused Elizabeth Wragg of operating a plantation without a white man present, he was taking a risk. Elizabeth Wragg was a large planter and the only large planter Davis accused. She owned far more slaves than Davis. She had ninety, he had twenty-five. Her wealth, in theory, should have given her an elevated status. But Davis, it seems, did not believe that the same status that would have accrued to a man of her

42 South Carolina Genealogies Articles from The South Carolina Historical (and Genealogical) Magazine, vol. IV, Rhett-Wragg (Spartanburg, SC: The Reprint Company, Publishers, 1983), 435–39. 43 State v. Rev. Milward Pogson, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH. 44 Ibid. 178

wealth, accrued to her, likely, because more than most female planters in the area, she was both very independent and had problematic family connections.

In particular, Elizabeth Wragg had no apparent solid patriarchal connections that might keep her insulated from accusations. She was not married and both her brother and father were deceased.45 Further, her family name came with its own potential problems. The Wragg family was one of Charleston’s oldest, and in colonial times, most powerful English families. Her ancestors had had connections to the Lord Proprietors of

Carolina in England and had spent the last century as local leaders in the colony. Her grandfather became a member of both the Provincial House of Commons and a member of the Council. Elizabeth’s father, born in South Carolina, was an attorney, colonial legislator, and plantation owner. When the Revolutionary War began, however, his staunch British loyalty led to his expulsion from South Carolina. On his voyage to

England, he drowned in a shipwreck, presumably leaving his holdings in South

Carolina to his wife and their four children, who still remained in South Carolina. By

1802, Wragg’s mother and older brother had passed away and leaving behind her and her two married sisters.46 Sometime between 1802 and 1820, Wragg, who was

45 South Carolina Genealogies Articles from The South Carolina Historical (and Genealogical) Magazine, IV, Rhett- Wragg: 436–39. According to the 1820 U.S. Population Census of St. John’s Parish in Charleston, SC, Elizabeth Wragg headed a plantation in 1820. Of Note: The census record is improperly filed under Christ Church Parish on acenstry.com. Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. John’s.” 46 South Carolina Genealogies Articles from The South Carolina Historical (and Genealogical) Magazine, IV, Rhett- Wragg: 436–439. Harriette Kershaw Leiding, Historic Houses of South Carolina (J.B. Lippincott, 1921), 179

unmarried, became the primary holder of the plantation.47 Her family’s loyalist ties and her lack of other immediate male blood relatives likely made her a more marginalized member of the community, and therefore more vulnerable to Davis accusations, even though she was wealthier than Davis.

Davis’s decision to bring the case before the local courts suggests that he believed that his accusation was a worthwhile risk. As a seemingly independent woman, Wragg seems to have lacked the same social clout as other area planters, especially male planters, that might make retaliation a significant concern. And, if she were found guilty, Davis, the informer, would receive a sizable payout. He accused Wragg of operating her plantation without a white man present for two years. Because she owned ninety working slaves, if she was found guilty, she would have had to pay $1,080. Half of the fine would be paid to Davis.

Interestingly, Davis’s bold decision to accuse a female planter with more property than he had did not pay off. Wragg’s case was dropped after the Grand Jury decided not to bring a case against her. It is possible that members of the Grand Jury felt there was not enough evidence against Wragg.48 Or the jurors may have been concerned

47 According to the 1820 U.S. Population Census of St. John’s Parish in Charleston, SC, Elizabeth Wragg headed a plantation in 1820. Of Note: The census record is improperly filed under Christ Church Parish on acenstry.com. Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. John’s.” 48 There is a note on William Davis deposition that says: “The witness to prove the case James Bognall the overseer on the plantation at present.” It seems Bognall may have been Wragg’s overseer, but was evidently not around enough to be seen by Davis for two years. State v. Elizabeth Wragg, May 1822, Indictments, Court of General Sessions, Charleston District, SCDAH. 180

that a case against Wragg would open the door to similar cases against prominent planters in the area.49 Although Wragg was fortunate in that she escaped formal prosecution, three years later, the Georgetown courts were not as kind to Elizabeth

Blythe, another large-scale female planter.

The gendered overtones present in Elizabeth Wragg’s case become more obvious in the case of Elizabeth Blythe. Unlike Wragg, Blythe did not have the same problematic family connections. In fact, Blythe was born into one of the most powerful families in

Georgetown—the Allston family. One her relatives, Joseph Alston, had served as governor of South Carolina from 1812-1814. Throughout her life, she remained a part of a powerful family and connected to an influential extended familial and social network.

Problems arose, however, when Elizabeth wanted to manage the plantation by herself. Nearly forty years before Bltyhe was charged with operating a settled plantation without “a white man present, capable of performing patrol duty,” she became the independent owner of the large plantation and expressed her desire to oversee the management of the estate without an overseer. According to land records, in 1789, when

49 As legal historian Laura Edwards argues in The People and Their Peace, local courts often upheld local arrangements, even if they were at odds with state law. As a wealthy white owner’s absence seems to be customary, the jury may have been hesitant to convict Wragg. Edwards, The People and Their Peace. Moreover, in atleast one other case, jurists were sympathetic to the heir of loyalist. In examining a case in which the heir of a loyalist claimed his mother’s land that she had left behind in Massachusetts during the Revolution, Linda Kerber found Massachusetts justices were sympathetic to the heir’s claim. They believed that because his mother had been married to his loyalist father who left the country, she could not and should not be punished (by having to forefit her land to Massachusetts) for upholding her marriage vows. Her land, could therefore, be claimed by her heir. Linda Kerber, “The Paradox of Women’s Citizenship in the Early Republic: The Case of Martin vs. Massachusetts, 1805,” The American Historical Review 97 no. 2 (Apr., 1992), 349-387. 181

she was still an Allston, she inherited the Friendfield rice plantation on the Waccamaw

River from her fiancé, John Waties (who was also her cousin), after his untimely death.50

The plantation came equipped with a large number of slaves and according to family memoirs the plantation was relatively isolated, which concerned her family. The family memoirs claim that the scale and location of estate was not conducive to management by a single young woman. Initially, Elizabeth tried to manage the plantation remotely. She hired a series of white male overseers, but told family members that she disliked their management of her slaves. So, in order to gain full control of her slaves, Elizabeth

Allston decided to marry Dr. Joseph Blythe in 1791, and moved onto the plantation.51

The pressure Elizabeth Allston faced to bring a white man on to help her manage the estates reveals how messy ideas about gender and property ownership could be at the turn of the century. Although, in this earlier period, the state had fewer and less uniform laws that visibly promoted white male’s presence on plantation, some women still felt pressure from their families and communities to bring in a white man.

The pressure Elizabeth Allston faced to bring on a white man is not surprising.

Recent scholarship on white female plantation owners has noted that single plantation

50 Elizabeth Waties Allston Pringle, Chronicles of Chicora Wood (New York: C. Scribner’s Sons, 1922), 74–75; South-Carolina-Plantations.com, “Friendfield Plantation - Georgetown - Georgetown County,” Belle W. Baruch Foundation, 2016, accessed January 12, 2016, http://south-carolina- plantations.com/georgetown/friendfield-waccamaw-river.html; Suzanne Cameron Linder, Historical Atlas of the Rice Plantations of Georgetown County and the Santee River (Columbia, S.C: Published by the South Carolina Department of Archives and History for the Historic Ricefields Association Inc, 2001), 24–26. 51 Pringle, Chronicles of Chicora Wood, 74–75. 182

mistresses fared best if they involved male relatives in the daily operations if they made it look like their management was temporary. In other words, female plantation owners benefited the most when they appeared to abide by broad patriarchal expectations and helped their families remain wealthy and powerful. They did not benefit when they marketed themselves as autonomous individuals. In minimizing the public appearance of their independence, these female plantation owners helped to conserve the eras patriarchal structure.52

Elizabeth Bltyhe’s practical decision to marry, in order to give the appearance of propriety, turned out to be only a temporary fix. The couple lived together on Blythe’s plantation for twenty-seven years before Joseph Blythe died in 1818. Because the couple had no children, Elizabeth Blythe regained sole control of the plantation.53

Problems arose again for Elizabeth Bltyhe during her widowhood when she again tried to manage the plantation by herself. According to the 1820 census, Elizabeth

Blythe continued to live on the plantation with a hundred and twelve slaves and no other white person in the years following her husband’s death.54 Blythe may have felt that her increased maturity and her decades of experience serving as plantation manager

52 Cara Anzilotti, “Autonomy and the Female Planter in Colonial South Carolina,” The Journal of Southern History 63, no. 2 (May 1, 1997): 239–68; Wood, Masterful Women; Glymph, Out of the House of Bondage. 53 Pringle, Chronicles of Chicora Wood, 74; South-Carolina-Plantations.com, “Friendfield Plantation - Georgetown - Georgetown County”; Bureau of the Census, “United States Census, Population Schedule, South Carolina, Georgetown,” 1830; “South Carolina Marriage Index, 1641-1965,” Ancestry.com, accessed January 18, 2016, www.ancestry.com; “U.S., Find A Grave Index, 1600s-Current” Ancestry.com, accessed January 18, 2016, www.ancestry.com. 54 Bureau of the Census, “United States Census, Population Schedule, South Carolina, Georgetown,” 1820. 183

earned her the right to live and manage her slaves as she pleased. But in the years that followed, members of her community felt otherwise. As previously noted, in 1825, community members and local legal officials took the recently passed state law the forbid operating a settled plantation without “a white man present, capable of performing patrol duty” and chose to interpret it in a fashion so that they might convict

Bltyhe. By convicting Blythe, the Georgetown jury attempted to punish her financially

(as the punishment for violating the law was a fine) and tried to pressure her to bring a white man on to help oversee her estate. Lucky for Bltyhe, Judge Nott of South

Carolina’s Appeals Court was more sympathetic to Elizabeth Blythe.

Blythe’s case is important because it provides a rare opportunity to witness a conversation between state-level lawmakers and local legal officials about a white propertied women’s independent management of a large inherited family plantation through a criminal case. The course of the messy exchange makes it clear that Blythe’s case is emblematic of larger societal concerns about the changing relationship between class, property, gender, and the power to govern.

As the Blythe case demonstrates, interesting tensions existed between the state and local courts on this matter. The fact that the local Georgetown jury of men worked to interpret the law differently than the appellate court is not entirely surprising. Recent scholarship has shown that in the early nineteenth century, southern local courts often interpreted laws and made rulings in a manner that was intended to promote the peace

184

and protect the local social order, even if they recognized that they were violating the spirit of the state law.55 This meant that some local rulings ignored state-sanctioned individual property rights. The local courts seem to have deliberately done so in Blythe’s case. For some reason, the greater Georgetown community seems to have felt Elizabeth

Blythe was, in some way, problematically managing her plantation. It is unclear if her gender was the source of the community’s concern, part of the community’s concern, or had nothing to do with community’s concerns. Certainly, Bltyhe’s family memoirs seem do suggest that as a woman, she long felt pressure to bring in a white man to help with the management of the enslaved people on her plantation, but it does not specify if this pressure came from family, community, or both. But unfortunately, it is impossible to know for sure the concerns may have been at play that helped spawn the original accusations and conviction. The original local court records—which would have included information about her accuser, witnesses, and possibly other details that may have shed light on the local dynamics—are lost to time and circumstance.56 Whatever the reason, the local court interpreted the law in the manner necessary to convict Blythe. By

55 Edwards, The People and Their Peace; Kelly Kennington, “River of Injustice: St. Louis’s Freedom Suits and the Changing Nature of Legal Slavery in Antebellum America” (Ph.D., Duke University, 2009), Retrieved from ProQuest.com; Kimberly Welch, “Black Litigiousness and White Accountability: Free Blacks and the Rhetoric of Reputation in the Antebellum Natchez District”; Felicity Turner, “Narrating Infanticide: Constructing the Modern Gendered State in Nineteenth-Century America” (Ph.D., Duke University, 2010), Retrieved from ProQuest.com. 56 The Court of General Sessions records, along with all other local legal records kept by districts officials in Georgetown for the years prior 1862 were burned in 1865. During the Civil War, Georgetown officials sent their records to Chesterfield County, South Carolina for safekeeping. Union troops destroyed the records in 1865. “South Carolina Archives Summary Guide: Georgetown County” SCDAH, accessed March 3, 2016, http://www.archivesindex.sc.gov/guide/CountyRecords/rg0022.htm. 185

convicting Blythe, the Georgetown community made it clear to her and the larger community that her sole management of her estate was a problem.

In applying the law to convict Blythe, the local court seemed to have a fundamentally different interpretation of the “spirit” new state law, one that was broader than the state. The local court seemed to believe that the law could be used to criminally convict those plantation owners who were endangering their communities by failing to effectively be present, manage, and otherwise “live” on their plantation and manage their enslaved people. Ironically, they tried to enforce the law by being very literal in their interpretation. In convicting Bltyhe, the local court demonstrated its willingness to punish one of the community’s wealthiest members because they believed, for some reason, be it her gender or not, that her management of her plantation’s enslaved people was endangering the community. They almost certainly knew that they were reaching to make the new state law useful for their purpose of punishing Blythe, but they did so anyway. At the local level, Bltyhe’s class, family connections, and individual property rights did not matter more than keeping the local peace.

In his decision, Judge Nott explored the politics of the local court and its creative interpretation of the new state law. In contrast to the jury that convicted Blythe, Judge

Nott was not from Georgetown. As an outsider, unfamiliar to the particular local dynamics, he believed that the conviction had ultimately been about Bltyhe’s gender.

186

Conviction based on gender was a problem for Judge Nott, likely both because the state law was designed to allow a plantation owner, regardless of their gender, to manage their property, and because he was a part of social and political circles in which white female family members played valuable roles in managing plantations on behalf of their male relatives. Like many state judges and legislators, Judge Nott relied on his wife to manage his plantation when he traveled to work as an Appeal’s court Judge. Moreover,

Judge Nott was also a federalist. As a South Carolina Federalist, he belonged to same party as Eliza Lucas Pinckney’s two sons, Charles Cotesworth Pinckney and Thomas

Pinckney, as well as Elizabeth Wragg’s brother-in-law, William Loughton Smith.57 As a prominent judge and member of this elitist political party, it is almost certain that Judge

Nott would have known these men and something about their families. Eliza Lucas

Pinckney was an especially esteemed planter and agriculturalist in her time, and had found herself in a situation similar to Elizabeth Blythe’s when she inherited a plantation from male relatives.58 It is conceivable, then, that Judge Nott’s opinion may have been influenced by personal circumstances and the political and social ideology that had favored the practice of allowing women to own and control property, including

57 Ulrich Bonnell Phillips, The South Carolina Federalists, with Accompanying Documents; (New York: Macmillan, 1909); Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition,” University of Virginia Press, accessed June 2, 2015, http://rotunda.upress.virginia.edu/PinckneyHorry/; South Carolina Genealogies Articles from The South Carolina Historical (and Genealogical) Magazine, IV, Rhett-Wragg: 435–39; John Belton O’Neall, Biographical Sketches of the Bench and Bar of South Carolina, vol. 1 (Charleston: S.G. Courtenay, 1859), 121–23. 58 Harriott Horry Ravenel, Eliza Pinckney (Cambridge, MA: Charles Scribner’s Sons, 1896); Constance Schulz, “The Papers of Eliza Lucas Pinckney and Harriott Pinckney Horry, Digital Edition.” 187

plantations, because women were thought to be important representatives of their families. Judge Nott had likely seen women like Elizabeth Blythe who had inherited plantations from male relatives and who had come to manage those plantations effectively.59

In addition to Blythe’s case having problematic gender implications, Judge Nott expressed concern that the local court’s decision limited landowners’ authority over their property, and in fact, called into question the very definition of a plantation. The local court had claimed to convict Blythe, not because she was a woman, but because she lived in house on a town lot adjacent to her slaves’ quarters. It did not seem to matter to the local jury that Blythe owned the land in between her home and her enslaved people’s home. When Blythe appealed the case, the tone of Judge Nott’s decision makes it clear that he found the local court’s reasoning and its broader implications ridiculous and unfair to landowners who wanted to operate plantations. In his reasoning he explains that owners should be allowed to “live on any part his land…however distant it may happen to be from his slaves.”60 Moreover, he explains that the word ‘plantation’ means any body of land consisting of one or several tracts on which is a planting

59 Judge Nott was fifty-seven years old when he ruled on Elizabeth Blythe’s case. United States Congress, “Nott, Abraham (1768-1803),” Biographical Directory of the United States Congress 1774-Present, accessed November 11, 2015, http://bioguide.congress.gov/scripts/biodisplay.pl?index=N000161. 60 The State v. Elizabeth Blythe, 3 Reports of Cases Determined in the Court of Appeals of South Carolina at 364. 188

establishment.”61 He emphasized the point by arguing that “…whether part of his land should happen to be checked off upon paper or parchment as town lots or not, can in my view, make no possible difference in the construction of the act…”62

At the state level, Judge Nott rejected the local court’s interpretation and administration of the law. As a planter and lawmaker, he had, it seems, different conceptions about the relationship between class, gender, property, and the power to govern, much of which was self-interested. Judge Nott’s reasoning makes it clear that one’s class and individual rights to govern and manage one’s property mattered a great deal. He believed, and he supposed that the propertied state legislators who originally passed the law also believed, that although laws could be enacted to prevent gross negligence of one’s property in enslaved people that might lead to slave rebellions, owners should not be micromanaged. He said as much in his reasoning when he claimed that the “interest of the owner would induce him to exercise” effective management. He goes further by claiming that the state law cannot make it a requirement to force an owner to “attend to all the minute detail of [managing a] plantation business,” but it can require that the owner be in position to enable effective management with judicial intervention.63 Moreover, it seems that to Judge Nott, the fact

61 Condy, A Digest of the Laws of the United States & the State of South-Carolina Now of Force, Relating to the Militia, 138. 62 The State v. Elizabeth Blythe, 3 Reports of Cases Determined in the Court of Appeals of South Carolina at 364. 63 Ibid., vol. 3: 363–64. 189

that Blythe was a woman was secondary to her status a member of the propertied class and well-connected Allston family. As the legal individual owner of the plantation, she had property rights that the state, especially in the post-Revolutionary period, was interested in upholding. Judge Nott expressed sympathy for her because he believed in this era full of anxiety and fear of slave rebellions her gender made her an easy target.

But she was, in his eyes, and in the eyes of state law, still allowed to manage her property.

Still, even when court officials intervened on behalf of propertied women who had their management questioned by members of their community, it could be difficult for them to rebound. Even though Elizabeth Blythe was granted a new trial and a grand jury decided to drop the case against Elizabeth Wragg, both women appear to be affected by the charges brought against them and the accompanying pressures they faced. In 1830, just five years after Judge Nott granted her a new trial, Elizabeth Blythe appears on the U.S. Census of Georgetown as living on an estate with no slaves.

Elizabeth Wragg, left her Charleston plantation and moved to Georgetown where she is recorded as having only fifteen slaves, seventy-five less than she held previously.64 It is certainly possible that there were other reasons why Blythe and Wragg gave up so many slaves and, consequently their plantation businesses. Age or changing finances may

64 Records remain unclear on the fate of Blythe’s slaves. It is clear, however, that Wragg deeded her nephew William Wragg Smith a portion of her slaves in 1828. 190

have played a role. But according to her grandniece’s memoir, since Blythe had inherited the plantation, she had felt pressure to bring a white man onto the estate.65 It is particularly striking in Blythe’s case that such a wealthy propertied woman would go from having one-hundred and twelve slaves to having none, not even a few as personal servants as Wragg seems to have kept.

Although fear of white women’s inability to prevent slave rebellions had real consequences for women like Wragg and Blythe, such fears seem to have roots in popular gender narratives, rather than in real rebellion experiences. Women had been managing plantations with slaves for years without incident. None of the highly popularized slave rebellions that stoked southerners’ fear had begun on plantations owned and operated by women.66 Still, as state lawmakers expanded male legal authority over slaves, they gave men more tools to use against propertied women.

New slave codes had consequences for some of the less prosperous women in

South Carolina as well. Trading with slaves proved to be another legal tool that local men used to challenge some women’s authority over property. The 1835 Charleston criminal records show an increased prosecution of women, both married and single, for violating the new 1834 slave code that forbade “trade with negroes for cotton.”

65 Pringle, Chronicles of Chicora Wood, 74–75. 66 In fact, according to an article in The Atlantic (albeit, it was published nearly forty years after the event), it was a slave, Devany, that reported to his mistress and her young son that slaves were planning an insurrection in and around Charleston. The insurrection Devany was referring to, was the one planned by Denmark Vesey. Thomas Wentworth Higginson, “The Story of Denmark Vesey”; Aptheker, American Negro Slave Revolts. 191

Much like the law that forbid owners for operating a plantation without a white man present for more than five months out of the year, the act that forbid “trade with negroes for cotton” was implemented to curb what scholars have shown to be a common practice. Although enslaved occupied the lowest class of society, many still developed business relationships with whites in their communities. The literature on slaves and property during this period highlights the vast informal trade networks that slaves created with local whites that existed from the colonial period well into the Civil War.67

Throughout this time, South Carolina passed or modified different laws restricting trading with slaves. For example, in 1817, prior to the passage of the 1834 law which banned shopkeepers from buying cotton (as well as rice, corn, or wheat) from slaves,

South Carolina legislators passed a law that banned shopkeepers from buying any item from a slave, unless the slave had written permission from his owner to sell the item.68

With time, however, the laws became stricter. The 1834 law, which banned shopkeepers from buying cotton, rice, corn, or wheat from slaves, did not make exceptions for those slaves who had written permission from the owners. Slaves could still sell other items, besides cotton, rice, corn, or wheat, to shopkeepers if they had permission from their owners, but the specific items - cotton, rice, corn, or wheat, were

67 Penningroth, The Claims of Kinfolk; Loren Schweninger, Black Property Owners in the South, 1790-1915 (Urbana: University of Illinois Press, 1990); Loren Schweninger, “Slave Independence and Enterprise in South Carolina, 1782-1865”; Philip Morgan, “The Ownership of Property by Slaves in the Mid-Nineteenth- Century Low Country,” The Journal of Southern History 49, no. 3 (1983): 399–420. 68 John Belton O’Neall, The Negro Law of South Carolina, 46. 192

strictly banned under the new act, “with or without a permit.”69 This ban on trading with slaves was intended to restrict the economic opportunities for enslaved people and reduce the likelihood that slaves would take property from their owners and then sell the property directly to area shopkeepers. Although the law supposedly protected masters, in reality it simultaneously limited an owner’s management over their enslaved people and expanded community members ability to police them. While an owner might still allow his enslaved people to grow their cotton, rice, wheat, or corn, an owner could not, under the new law, give his or her slaves permission to then sell their commodity on the open market.

Still, even after state legislators banned such economic exchanges in the letter of law, slaves and shopkeepers continued to trade. Recent scholarship makes this clear.70

But in 1835, men in Charleston used this new legal tool to challenge the ability of white women and enslaved people to engage in commerce. To be sure, like the law that forbid operating a settled plantation without “a white man present, capable of performing patrol duty,” very few Charlestonians were charged with this new offense. In 1835 for example, the year after this activity was made illegal, only three people were charged

(although there were eight different indictments). But, because the wider practice of

69 McCord, ed., The Statutes at Large of South Carolina, vol.6: 516; Howell Henry, “The Police Control of the Slave in South Carolina” (Vanderbilt University, 1914), 82. 70 See, for example: Penningroth, The Claims of Kinfolk; Edwards, The People and Their Peace; Ellen Hartigan- O’Connor, The Ties That Buy: Women and Commerce in Revolutionary America (Philadelphia: University of Pennsylvania Press, 2009); Zabin shows that this practice extend back into the colonial period and well outside of the South in her study of New York. Serena Zabin, Dangerous Economies, 59. 193

trading with slaves remained so common, those rare instances in which whites are actually prosecuted are deserving of closer examination.

In the eight indictments of “trading with a negro for cotton” in 1835, two women

Mary Daniels and Elizabeth Mills were indicted. One them – Mary Daniels – was indicted four times. Only one man, Mary Daniel’s husband, was indicted and he was indicted on other counts. Although the number of people charged with this crime in

1835 is small, the pattern of the indictment seems to demonstrate that community members used legal means to discipline white women who challenged the property- centered patriarchal order and, in Mary’s case, her husband who, like Pogson, was deemed an ineffective patriarch.71

The charges brought against women are particularly revealing of how anxious

Charlestonian men could become when white women and enslaved people traded property together, without the direct supervision of a white patriarch. Take, for example, the case of Elizabeth Mills. In the early spring of 1835, Elizabeth Mills was indicted for purchasing one bag of cotton, valued at eighty cents, from a slave. She claimed innocence but the local court found her guilty and she was ordered to pay fifteen dollars.72 Elizabeth Mills likely lived alone. While Elizabeth Mills is not listed in

71 An early case also seems to fit this pattern. Francis Duc and Magdalene Duc were both indicted for trading with slaves. I did not include them in the above numbers because the limited details of the indictment do not say what the two purchased from the slaves. State v. Francis A Duc and Magdaline Duc, 1830, Indictments, Court of General Sessions, Charleston District, SCDAH. 72 State v. Elizabeth Mills, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 194

the 1835 Charleston Directory, there are four Mrs. Mills listed in the 1830-1831 City

Directory. One Mrs. Mills is listed as operating a boarding house and two others are listed as widows with no professions.73 As a white woman, likely living alone in a patriarchal society, Elizabeth Mills was held to a different standard than men around her. She, like men around her, traded with slaves. But unlike such men, Elizabeth Mills was prosecuted for trading with a slave for a relatively small amount of cotton.

Mary Daniels experienced similar frustrations as she was indicted several times throughout the year. Her neighbor James Hector reported to local authorities that she had traded with slaves for cotton. Hector knew that Mary’s husband John was, by profession, a shopkeeper and cotton trader.74 He also knew that, John Daniels, like many other shopkeepers and cotton traders, frequently traded with slaves.75 But on the day that Hector went to the local officials, he was not interested in reporting John. Instead,

73 James Hagy, ed., Directories for the City of Charleston, South Carolina: For the Years 1830-31, 1835-36, 1836, 1837-1838, and 1840-41 (Baltimore: Clearfield Company, Inc., 1997), 20, 52, Ancestry.com, accessed January 19, 2016, www.ancestry.com; See also, Morris Goldsmith, Directory and Strangers’ Guide, for the City of Charleston and Its Vicinity, From the Fifth Census of the United States (Charleston: Printed at the Office of the Irishman, 1831); The Charleston Directory; and Register, for 1835-6. Containing the Names, Occupations, and Residences of Persons in Business, &c. Collected by James Smith and The City Register; Consisting of A Variety of Useful Information, Connected with Our Trade and Commerce. (Charleston: Daniel J. Dowling, 1835). 74 John’s profession and propensity for trading cotton with slaves is apparent in a separate indictment. Moses Levy accused John Daniels of trading with slaves several months after Hector accused Mary Daniels of trading with slaves. In his deposition, Levy states that he saw three slaves enter into the “shop or house” of John Daniels. The case against John Daniels was dropped by the state as the prosecutor issued as nolle prosequi. State v. John Daniels, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 75 For information on the common practice of trading with slaves, see: Penningroth, The Claims of Kinfolk; Loren Schweninger, “Slave Independence and Enterprise in South Carolina, 1782-1865”; Schweninger, Black Property Owners in the South, 1790-1915; Berlin and Morgan, The Slaves’ Economy; Morgan, “The Ownership of Property by Slaves in the Mid-Nineteenth-Century Low Country.” In addition to showing the cultural acceptance of exchanges between slaves and free whites, Edwards shows that local courts often recognized slaves rights to posses property and engage in such trades. Edwards, The People and Their Peace, 146. 195

his focus was on Mary. Hector explained that he knew John was temporarily out of town, and while he was away, Mary continued to conduct business. He claimed that

Mary “received onto her premises” at least eight slaves “carrying with them each parcels of cotton,” and the slaves left the premises without the cotton. Therefore, he argued,

Mary Daniels must have traded with the slaves for the cotton.76 Although Hector and other men in the community recognized Mary’s husband as a legitimate shopkeeper and trader in cotton, and generally gave him greater leeway to trade with slaves, Mary, apparently enjoyed no such privileges.

Accusations of trading cotton with slaves were difficult for the accused to overcome. The 1834 law made no presumption of innocence. It put the burden of proof on the party accused of trading cotton with the enslave person, not the accuser nor the state. If an enslaved person entered into the shop with cotton and left without cotton, the shopkeeper had to prove they had not purchased any cotton from the enslaved person.77

Presumably by proving there was no additional cotton in her home after the enslaved person left. As Mary lived with her husband above his shop, where he housed cotton

76 State v. Mary Daniels, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. John Daniels, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 77 McCord, ed., The Statutes at Large of South Carolina, vol.6; Henry, “The Police Control of the Slave in South Carolina.” In his digest, Judge O'Neall seems to have missed this 1834 Act that forbid shopkeepers from trading cotton, as well as a few other local commodities such as rice, wheat, and corn. Instead O'Neall describes the 1817 law, which allowed shopkeepers to trade with slaves if slaves had a permit to trade from their owners. It is easy to see why O'Neall might miss the 1834 Act. I have found no appellate cases that would require judges to more closely interpret the Act. Instead, only a few local level cases exist. In the records that have survived, women were disproportionately accused and convicted of violating this law. John Belton O’Neall, ed., The Negro Law of South Carolina, 46. 196

and traded it frequently, she faced a nearly insurmountable burden of proof. Her husband, the technical shopkeeper, did not escape prosecution entirely. The law would not allow him to. As the shopkeeper, he was legally liable for the actions of any “clerk or agent” who would do business on his behalf.78 According to the case notes, at one time, the two were found guilty and sentenced to three months in jail and a hundred dollar fine.79 Mary Daniels, conversely, was charged and served more time than her husband

John. It seems the problem, for the local prosecutor and the neighbors, was not that John

Daniels was trading with slaves (although he seems to have to have done so regularly), it was that his wife Mary also took a role in her husband’s business. While new cases emerged against Mary Daniels, the prosecutor dropped all the subsequent cases against

John Daniels.80

In the records that have survived, the cases against women contrast to the cases against men. In 1835, besides John Daniels, no other man was accused of trading with slaves for cotton.81 There was, however, one man who was indicted and convicted for selling liquor to a slave. Jurgen Wilken was accused of trading with selling liquor to

78 McCord, ed., The Statutes at Large of South Carolina, vol.6; Henry, “The Police Control of the Slave in South Carolina.” 79 State v. John Daniel and Mary Daniel, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 80 State v. John Daniels, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 81 There were two earlier indictments brought against men. One indictment was brought against Henry for trading wine – a spirituous liquor – to a slave. Another indictment was brought against Edwards Woods for trading with slaves. It is unclear what Woods traded with the slaves. State v. Henry Otten, 1830, Indictments, Court of General Sessions, Charleston District, SCDAH; State v. Edward Woods, 1830, Indictments, Court of General Sessions, Charleston District, SCDAH. 197

slaves, an offense generally thought more problematic than trading cotton because liquor was believed to make slaves more unruly and unpredictable.82

The concept that a neighbor might challenge a propertied woman, especially one outside of his family, for how she managed her property was certainly not new or unique to early antebellum South Carolina. Historians of women in North America have discovered similar periods in which women’s management of property came under closer scrutiny as broad social and economic currents intensified communities’ anxieties about female property owners. What was new to South Carolina was the increasing vulnerability of slavery at a time when slavery was becoming more important to the southern economy. Also new were laws, meant to protect the institution of slavery that had the ancillary effect of granting locals new tools for policing their neighbors’ management of their enslaved people.

The confluence of the broad economic, social, and legal developments seems to have created an environment that presented new legal challenges for slaveholders, especially female slaveholders. From 1820 to 1830, the census records from St. James

Goose Creek, the section of Charleston in which William Davis lived, show a slight decline in the percentage of female-headed homes owning slaves. In 1820, white women who owned slaves headed 8.98% of the households in St. James Goose Creek.83 In 1830,

82 State v. Jurgen Wilken, 1835, Indictments, Court of General Sessions, Charleston District, SCDAH. 83 Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1820. 198

white women who owned slaves headed only 6.94% of the households in St. James

Goose Creek. Perhaps the case against Elizabeth Wragg served as cautionary tale to her neighbors.84 More likely, however, more men gained responsibility for family estates, at least in their name. In this new era, not only did women’s role in society shift, but so did men’s. Men who appeared to be subordinate to the women in their families or who could not control the actions of women in their family seem to be seen as weak patriarchs and were consequently punished by their communities. But men who stepped up and policed their neighbors saw their collective authority expanded.

Although state legislators did not necessarily design the new laws—including new slave codes—to exclude women, the consolidation of legal and social authority into a broader class of white men, sometimes came at white women’s expense.85

84 Bureau of the Census, “United States Census, Population Schedule, South Carolina, Charleston, St. James Goose Creek,” 1830. 85 Certainly, as previously detailed, such a legal promotion of men’s private rights over such household property generated conflicts as wives, mothers, daughters, and sisters also had interests in such property. Women could find legal ways to work around such control, however, under the default settings of state changes to private property men still had private rights to household property. See also: Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, MA: Harvard University Press, 1977); Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Victoria Bynum, Unruly Women: The Politics of Social and Sexual Control in the Old South, Gender & American Culture. (Chapel Hill: University of North Carolina Press, 1992); McCurry, Masters of Small Worlds; Peter Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995); Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997); Edwards, The People and Their Peace, 136. 199

Chapter Five: Women of the Ancienne Population, Slaves, and American Governance in Louisiana, 1820 to 1835

On April 10, 1834, an elderly enslaved woman took a calculated risk. She set fire to her creole mistress’s French Quarter mansion to capture the attention of those outside the home.1 According to a local paper, she claimed that she had started the fire “with the intention of terminating the sufferings of herself and her companions, or perishing in the flames.”2 The confession of arson and the narrative of suffering and desperation were risky. White southerners usually minimized the sufferings of the enslaved and reframed the violence used against them as necessary discipline. Moreover, acts of arson on an owner’s or any other white persons’ home, usually resulted in rabid condemnation of and death for the enslaved perpetrator. But the elderly enslaved woman did not have a typical mistress. Her mistress, Madame Delphine Macarty Lalaurie, proved was a litigious and ruthless businesswoman who had attracted the attention of New

1 According to Harriet Martineau, an English outsider frequently called the first female sociologist, visited New Orleans in 1838 creoles meant natives. She most frequently employs the term when referring to white French and American creoles in her memoir Retrospect of Western Travel after her 1838 New Orleans visit. Harriet Martineau, Retrospect of Western Travel, vol. 1 (London: Sauders and Otley, 1838), 263. For Stanley Arthur, creole meant “French or Spanish or a mixture of these races, and far from being one of a colored blood, the New Orleans Creole is a product of our most exclusive and clannish strata of society.” Stanley Clisby Arthur, Old New Orleans: A History of the Vieux Carré, Its Ancient and Historical Buildings. (New Orleans: Harmanson, 1936), 5–6. Joseph Tregle, Jr. also describes these ethnic divisions. When I use the term creole, I am combining the two definitions but am leaning more heavily on Arthur’s definition as I believe it best illustrates the identity of a population who increasingly saw themselves as more European than American. Because the colony was traded between French and Spanish hands for nearly eighty years before becoming an American colony, the French and the Spanish had more time to intermingle and become more a folded in population. Therefore, they could divide and define themselves more readily apart from the entering Americans who were only New Orleans neophytes. 2 L’Abeille, April 11, 1834. 200

Orleanians as she grew her estate into one of the largest in the city. Her mistress’s frequent property related lawsuits against area men in the 1820s and 1830s were particularly ill timed. During the early nineteenth century, American men and men of the ancienne population were engaged in a fraught battle for control of property, power, and governance in Louisiana, and challenges from women were particularly unwelcome. And although the elderly slave almost certainly knew that although most cases of slave abuse were never prosecuted, and, in fact, were becoming increasingly difficult to prosecute under state law, she could still capitalize on the increasing unpopularity of her mistress. Because Mme. Lalaurie’s home was situated in a neighborhood full of powerful men, many of whom Lalaurie had sued, the enslaved woman knew that she could create a situation that invited the vexed men to enter her mistress’s home to hear her complaints and bear witness to her and her companions’ condition. Her hope was likely that she and her fellow bondsmen would be removed to safer bondage. Her gamble paid off. Instead of being punished for arson, she and her fellow bondsmen were taken from Lalaurie.3 The neighborhood men also saw the condition of Mme. Lalaurie’s enslaved people as an opportunity for reprisal against

Mme. Lalaurie. After removing the household slaves, local men started a legal investigation into Mme. Lalaurie’s alleged abuse of her slaves. The investigation,

3 “The Collins C. Diboll Vieux Carré Digital Survey,” THNOC, accessed October 13, 2015, http://www.hnoc.org/vcs/. 201

however, was quickly rendered moot by a mob of vigilantes who nearly destroyed

Lalaurie’s home and drove her and her family from the city.

From the 1820s to the mid-1830s, Louisiana experienced turbulent social changes as a result of new American governance. The anxieties surrounding American governance were born out of tensions generated by competition between American men and men of the ancienne population as both fought for control of the governance of the state and its resources. Both American men and men of ancienne population expressed concern that their inability to control governance would jeopardize their own property holdings and ability to acquire and accumulate wealth. The conflicts among Americans and the ancienne population were not always limited to men. During this time, a number of creole women became caught up in governing and property disputes. Such women of the ancienne population were seen as problematic because they were often connected to especially threatening men of the ancienne population, they exercised a high degree of control over area property, and they continued to make claims to property in a time when property granted men more rights (chiefly voting and office holding capabilities) than the same property could grant to women. In addition, creole women, more than men of the ancienne population, represented the opaque and exclusionist forms of family property that were being undermined in favor of individual property ownership, which was associated most clearly with men. Overlooking the fact that mastery over slaves was predicated on violence, travel literature and personal correspondence from the early

202

nineteenth century indicates that creole women in and around New Orleans, as a category, developed a reputation for being exceptionally cruel to their slaves.4 In particular, from 1819 to 1834, New Orleanians identified seven women of the ancienne population—Mme. Tremoulet, Mme. Turpin, Mme. Marigny, Mme. Conrad, Mme.

Lanusse, Mme. Delphine Macarty Lalaurie (also known as Widow Blanque and Mme.

Lalaurie), and Mrs. Pardos—as specifically problematic. At least three of those seven—

Mme. Lalaurie, Mme. Lanusse, and Mrs. Pardos—met with white vigilante violence, the threat of vigilante violence, or public condemnation in the international press.5 To be sure, men were also accused of abusing slaves. But creole women seem to have garnered special attention in part, because of their gender and their connections to an old world governing regime.6 Against the backdrop of the anxious transition from governance by

4 Major Amos Stoddard, Sketches, Historical and Descriptive of Louisiana (Philadelphia: Mathew Carey, 1812), 324; Benjamin Henry Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820 (New York: Columbia University Press, 1951), 53; Martineau, Retrospect of Western Travel, vol. 3; Fredrika Bremer, Homes of the New World: Impressions of America, vol. 2 (New York: Harper & Brothers, Publishers, 1853); John Kendall, “Shadow Over the City,” Louisiana Historical Quarterly XXII, no. 1 (January 1939): 142–65; Carolyn Morrow Long, Madame Lalaurie, Mistress of the Haunted House (Gainesville: University Press of Florida, 2012), 75; Nathalie Dessens, Creole City: A Chronicle of Early American New Orleans (Gainesville: University Press of Florida, 2015). 5 See for example: “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC; Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820., 53–54; Herbert Asbury, The French Quarter: An Informal History of The New Orleans Underworld (New York: Alfred A. Knopf, 1936), 248; Lyle Saxon, Fabulous New Orleans (New York: The Century Company, 1928); Long, Madame Lalaurie, Mistress of the Haunted House, 83; Dessens, Creole City, 152–153. 6 John Kendall, “Shadow Over the City,” Louisiana Historical Quarterly XXII, no. 1 (January 1939): 144–147; Christina Vella, Intimate Enemies: The Two Worlds of the Baroness de Pontalba (Baton Rouge: Louisiana State University Press, 1997), 21. Five men surface in the remaining early nineteenth century criminal records of New Orleans and in secondary literature for this time frame. In 1831, Bernard Chapiau and Francois Trepagner were both convicted of cruelly treating slaves. Francois Trepanger was found guilty and ordered to pay $200 dollars and the costs of prosecution. The criminal court minute books list only a defendant’s appearances in court along with judicial procedures and rulings but leaves out the testimony that led to 203

the ancienne population to governance by Americans, cases in which creole women were accused of aggressive management of their slaves tend to say more about the anxieties of American men and men of the ancienne population who competed for control over land and slaves, and in turn, status, than they do about white creole women’s propensity toward employing exceptional violence in managing their slaves.

---

When Louisiana became an American state, many members of the ancienne population resented the growing American governance in the region and the influx of

“Americans” into the region. 7 The ancienne population attempted to prevent American

such rulings. It is possible that Trepagner may have been prosecuted because he may have been related to the Trepagners who were killed by slaves in the 1811 slave rebellion outside of New Orleans noted later in the chapter. As Trepanger, he may have come under greater scrutiny because local feared the failures of his ancestors might be passed onto to him. State of Louisiana v. Francois Trepagner, 1831, Criminal Courts of the First Judicial District, New Orleans, NOPL. According to Carolyn Morrow Long, when a jury returned guilty verdict for Bernard Chapiau, his attorney John Grymes was given permission to file grounds for a new trial. The final outcome of the case is unknown. In 1832, Pierre Soulé (F.M.C.), was charged with “inflicting cruel punishment on a slave.” The case, however, was dismissed when the deputy Attorney General entered a nolle prosequi. Louis Donnet was charged with killing a slave, that same year, but a jury found him not guilty. In 1834, Patrick Sheeran was also charged with “assaulting and cruelly beating a slave,” but, like with Pierre Soulé (F.M.C.), the case was dropped after a nolle prosequi was entered. Long, Madame Lalaurie, Mistress of the Haunted House, 85. Two other men were accused of cruelty to slaves before 1819. In 1808, Thomas Bailey was accused of maiming his own slave by severing off the enslaved man’s ear for punishment, the outcome of this case is entirely unknown. Territory of Orleans v. Thomas Bailey, 1808, New Orleans City Court, Territory of Orleans, NOPL. In 1810 Charles de Salles was accused of murdering an enslaved boy who did not belong to him. While the final case outcome is unknown, the case was ruled a true bill by a grand jury. 7 As noted in chapters one, two, and three, tensions between the ancienne population and Americans existed long before the Territory of Orleans transferred to the United States. Hostilities amongst the French, Spanish, and British immigrated from European metropoles to North American colonies hundreds of years before. Even as the British in America came to see themselves as distinct from their British forbearers and French and Spanish control receded, old antagonisms were slower to fade. For more information, see chapters one, two, and three. Lachance and Tregle, Jr. make similar arguments. Paul Lachance, “The Foreign French,” in Creole New Orleans: Race and Americanization, ed. Arnold Hirsch and Joseph Logsdon (Baton Rouge: Louisiana State University Press, 1992), 101-130; Joseph Tregle, Jr., “Creoles and Americans.” 204

control of the state and state lawmaking efforts. In the first two decades following the

Louisiana Purchase, the ancienne population was relatively successful as they still retained control over much of the property and businesses of New Orleans, which was partially a function of their greater numbers and partially an outcome of their attempts to keep their social and economic networks closed to what some referred to as “Yankee buzzards.”8 The ancienne population’s resistance to new Americans and their businesses led to a segregated New Orleans landscape. Historians have shown that when

Americans immigrated to the city, they tended to move to a relatively small four-block area of the French Quarter below Canal Street, where they lived and built their own businesses in what was deemed “the American Section.”9 The ancienne population so consistently resisted patronizing those who did not appear to be a part of their network, that it became obvious to the first Governor of Louisiana under U.S. rule, William C.C.

Claiborne. Recognizing this form of resistance, Governor Claiborne advised his English-

American friends Benjamin Henry Latrobe and his son, who were both architects, that when applying to New Orleans City Council to design the waterways of New Orleans in

1811, the men should downplay their English-Americaness.10 Instead, he advised, they

8 According to Paul Lachance, the French and Spanish made up more than three-fifths of the city’s population between 1806-1807. Lachance, “The Foreign French,” 101. See also Incog, “To Brother Jonathan,” Orleans Gazette and Commercial Advertiser, June 21, 1819; Tregle, Jr., “Creoles and Americans,” 147, 152–153, 171. 9 See, for example: Tregle, Jr., “Creoles and Americans,” 151–155. 10 Benjamin Henry Latrobe considered himself and his son Englishmen, although the two had spent decades living in the mid-Atlantic before moving to New Orleans. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, xv. 205

should emphasize aspects of themselves and their family that appeared French – such as their French last name, French education in Baltimore, and ability to speak French fluently. The charade paid off. According to Claiborne and Benjamin Henry Latrobe, their appointment as the city’s waterways architects revealed the power that appearing

French had in a city that was increasingly hesitant to favor those who were not.11

As noted in chapter one, women of the ancienne population also played a part in both generally resisting Americans and in supporting men with close connections to foreign empires. Their marital patterns demonstrate their hesitancy to embrace

American men, which in turn seems to have impacted local property ownership. New

Orleans sacramental records indicate that in the early nineteenth century, many white creole women married men from France and Spain instead of other white creole men.

However, white creole men still seem to outnumber American men as the husbands of white creole women.12 This marital preference—whether for social, linguistic, or religious reasons— likely had important consequences because marriage often occasioned the acquisition of significant property. Men often received a dowry or family

11 Of note: Benjamin Henry Latrobe’s son, Henry Latrobe, first secured the appointment as architect of the city’s waterways after impressing the New Orleans City Council. But when his son died in 1817 of yellow fever, Benjamin Henry Latrobe assumed control of the project and continued to emphasize aspects of himself to appear French. Ibid. 12 Charles Nolan, ed., Sacramental Records of the Roman Catholic Church of the Archdiocese of New Orleans, 1804- 1831, trans. J. Edgar Bruns, vol. 8–19 (New Orleans: Archives of the Archdiocese of New Orleans, 1993-2004. Legal historian Susan Parker sees a similar pattern in Spanish colonial St. Augustine, Florida. Susan Richbourg Parker, “In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida,” in Signposts: New Directions in Southern Legal History, ed. Sally Hadden and Patricia Hagler Minter (Athens: The University of Georgia Press, 2013), 21–24. 206

gifts of land and slaves from both their bride’s family and their own parents upon marriage. In addition, men also inherited local connections through their bride’s family.13 Because white propertied creole women could be gatekeepers to wealth and useful connections, their alliance with men through marriage or kin networks could enhance their husbands’ power. For example, all of the women who faced accusations of slave abuse appear to have married men of the ancienne population.14 Through their marriages, these women seem to maintain connections to foreign empires and local ancienne population networks. Moreover, their marriages to these men allowed their respective husbands access to, in some cases, very valuable family connections and

13 Lachance, “The Foreign French,” 121. See chapter one for more on property’s importance to and transference in marriage. 14 Delphine Macarty’s first husband, Ramon López y Ángulo, the Spanish intendant, was a native of Spain. Her second husband, Jean Blanque, and her third husband, Louis Lalaurie, were both natives of France. Sacramental records describe Blanque as being born in Nay in the province of Bearn (probably Nay- Bourdettes, in the Southwestern part of France). Celeste Macarty married Paul Lanusse, a native of France. Stanley Arthur and George Campbell Huchet de Kernion, Old Families of Louisiana (Baltimore: Clearfield Company, Inc., 2009 (originally published in 1936), 332. Mme. Marigny, was a descendant of one of the “finest” creole families, married Bernard Marigny who was from one of the area’s most prominent creole families. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820., 54; Grace King, Creole Families of New Orleans (New York: The Macmillan Co., 1921), 23, 29; Herman Seebold, Old Louisiana Plantation Homes and Family Trees (New Orleans: Pelican Press, 1941), 131; Edwin Clarence Carter, ed. The Territorial Papers of the United States, Volume IX, Territory of Orleans, 1803-1812 (Washington, D.C.: Government Printing Office, 1940), 258. While the records make it difficult trace the maiden names and genealogical history of Mme. Tremoulet, Mme. Turpin, Mme. Conrad, and Mrs. Pardos, all of these women were identified by one source as being creole, and their married names suggest their husbands were affiliated with the ancienne population. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818- 1820., 53–54. Mme. Tremoulet, was married to Bernard Tremoulet, who, was either born in France or was creole. Her husband’s first name comes from: Stanley Arthur, Old New Orleans, a History of the Vieux Carre, Its Ancient and Historical Buildings (Westminster: Heritage Books, 2007), 245. Latrobe identifies her husband's hotel as the "only French boarding house in the city." He also notes that Tremoulet had lived in New Orleans under the French, Spanish, and American governments. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820., 24. Mme. Turpin, who was Mme. Turpin’s daughter, seems to have married a man who was also either creole or a native of Europe. The surname’s history suggests ties to France. Mme. Conrad and Mrs. Pardos follow this same pattern, although Pardos seems to be Spanish instead of French. Patrick Hanks, ed., Dictionary of American Family Names (Oxford: Oxford University Press, 2003). 207

property. Husbands could then use these connections and property to enhance their status, and, in some cases, access political offices in the new American government. In contrast, to an American man trying to gain a foothold in and around New Orleans, finding himself walled off from white creole women and their valuable martial property and local familial connections, likely fueled tensions between the ancienne population and new American immigrants. 15

Several Americans expressed concern that their authority over Louisiana might, at any point, be jeopardized. Ironically, the U.S. system of governance contributed to this concern. Fears stemmed, in part, from the fact that land-holding men in Louisiana, many of whom were influential and had ties to France and Spain, were entitled to vote and hold office under U.S. governance. Several of these men of the ancienne population were, indeed, nominated to state or local governing positions. 16 By allowing the loyal former

French and Spanish subjects to participate in governance of the new republic, Americans in Louisiana and across the U.S. claimed that France and Spain might re-acquire the territory with aid of local political allies. One writer for the Charleston Courier had recently returned from Paris and claimed that Bonaparte hated the new Americans, with

15 Although it is difficult to know with certainty how American men received this preference. One source seems to indicate, there seems to have existed a mutual distaste. As Tregle, Jr. tell us, one American man wrote to his friend in Massachusetts and said, “‘I would not marry a girl born & brought up in New Orleans, if she was the most beautiful thing on Earth & owned every plantation in Louisiana and Mississippi!” Tregle, Jr., “Creoles and Americans,” 148. 16 Claiborne specifically mentions how beneficial the Macarty connections were to Blanque in a letter to President Madison. Carter, ed., The Territorial Papers of the United States, Volume IX, Territory of Orleans, 1803- 1812, 248–54; See also, Paul Lachance, “The Foreign French.” 208

a passion that exceeded his abhorrence of the British. He claimed: “The British

[Bonaparte] hates, and dreads, and respects. The people of this country he detests and despises— He detests [author’s emphasis] us as a progeny of the British, and as citizens of a free government. He despises [author’s emphasis] us as a body of traders, according to his view, without national fame or national character; without military strength or military virtues.” The writer identifies “Louisiana as the great depot of the machinery of the hostile policy of France towards this country.” After obtaining information in Paris, the author is fully convinced of the bad faith of the French government in ceding the

Louisiana Territory to the United States, and “of its intention to resume possession by force, when an opportunity should offer. Since the period of the purchase emissaries have gone at different times from this country to France, in order to represent to the

French government, the advantage it would derive from regaining and holding

Louisiana as a colony.” The author believes that French loyalists in Louisiana were in the process of using Bonaparte’s hatred of the new United States to convince him to reclaim the territory. 17

17 “Review of ‘A Letter on the Genius and Dispositions of the French Government, Including a View of the Taxation of the French Empire, & C. & C.’” Charleston Courier, June 2, 1810. In addition, historians have shown that in addition to suffering from the economic instability that had plagued the United States after the Revolutionary War, newly settled lands between Appalachians and the Mississippi constantly endured Spanish, English, and French meddling on the northern and southern borders as well as Indian attacks. Prior to the Louisiana Purchase, perhaps most disconcerting to western settlers, was the failure of the governments in Philadelphia and Washington to secure an outlet for the region’s agricultural production. Spain, and then France, who controlled the Louisiana territory until 1803, had control over two major port cities – St. Louis and New Orleans. News Orleans was a particularly important port city because it allowed for easy access to international markets. Prior to 1795, Spain (which then controlled the city) had 209

Many of the husbands and male family members of the accused women arose suspicions of treason during the early years of American rule. These men, many of whom had originally gained land and maintained wealth through their connections to the French and Spanish empires, seemed especially threatening to American men. Mme.

Lalaurie’s father and brother (who also happened to be Mme. Lanusse’s uncle and cousin) were identified as citizens “attached to the Spanish monarchy” by Louis de

Clouet, a Louisiana native and representative of King Ferdinand of Spain, who wanted to see Spain retake Louisiana.18 A friend of the Macarty family reported that Mme.

Lalaurie’s father made his old world allegiances known as he continued to wear, until his death in 1824, “a powdered head” and regalia of the “old régime.”19 Mme. Lalaurie also married men affiliated with foreign empires. Her first husband, Ramon López y

Ángulo, was the Spanish intendant when Louisiana was under Spanish control.20 Her

periodically closed the port to American trade and thus greatly impeded western settlers’ ability to engage in international trade, causing them to lose faith in their national government and threaten to secede from the union. See for example: Jon Kukla, A Wilderness So Immense: The Louisiana Purchase and the Destiny of America (New York: Anchor, 2004); Bernard Sheehan, “Jefferson’s ‘Empire for Liberty,’” Indiana Magazine of History 100, no. 4 (December 1, 2004), see, especially, 352; Lachance, “The Foreign French”; Wim Klooster, Revolutions in the Atlantic World: A Comparative History (New York: New York University Press, 2009). 18 Even though her father had originally been knighted by the French monarchy, he had faired well under Spanish rule and therefore was more flexible in his old world allegiances. Stanley Faye, ed., “Louis de Clouet’s Memorial to the Spanish Government, December 7, 1814 (Conditions in Louisiana and Proposed Plan for Spanish Reconquest),” Louisiana Historical Quarterly 22, no. 3 (July 1939): 22; See also, Long, Madame Lalaurie, Mistress of the Haunted House, 42. 19 Hon. Charles Gayarré, “Barthélemy de Macarty’s Revenge,” in Harper’s New Monthly Magazine, vol. LXXX (New York: Harper & Brothers, Publishers, 1890), 278; Quote also printed in, Long, Madame Lalaurie, Mistress of the Haunted House, 21. 20 As intendant, he was as representative of the royal treasury and had jurisdiction in matters of justice and commerce. Junius P. Rodriguez, ed., The Louisiana Purchase: A Historical and Geographical Encyclopedia (Santa Barbara: ABC-CLIO, 2002), 233; Long, Madame Lalaurie, Mistress of the Haunted House, 25. 210

second husband, Jean Blanque, and her third husband Louis Lalaurie were both natives of France, and Blanque, especially, was thought to have troubling ties to his motherland.21 In 1810, when Blanque was nominated by the House of Representatives of the Territory of Orleans for the ensuing Legislative Council, Governor Claiborne warned

President Madison that Blanque was “much disliked by most native Americans residing in and near New Orleans.” Claiborne explained that according to local “American” gossip, Blanque’s loyalties were believed to be “wholly foreign” and that Blanque exhibited “strong partialities for his native Country, France [emphasis his].”22 Louis de

Clouet also claimed that Blanque, who was named as a potential state senator, was operating in Louisiana on behalf of the French. In addition, Governor Claiborne wrote that he also distrusted Paul Lanusse, Mme. Lanusse’s husband. Although his allegiance to France did not appear to be as clear as Jean Blanque’s, Governor Claiborne noted that

Lanusse had a reputation as being “rather inclined to dissimulation.” He added that his character traits made him “unfit for Political or Civil appointments,” under the new

American regime.23 Moreover, Bernard Marigny, who was married to Mme. Marigny and one of the largest property holders in the area, repeatedly expressed disdain for

21 Sacramental records describe Blanque as being born in Nay in the province of Bearn (probably Nay- Bourdettes, in the Southwestern part of France). Nolan, ed. Sacramental Records of the Roman Catholic Church of the Archdiocese of New Orleans, vol. 9. 22 Claiborne tempers his analysis only slightly by adding: “But I should be wanting in Candour, were I not to add, that his conduct has not (in my opinion) been such, as to justify the fears & the prejudices, which some of my Countrymen here, feel of & towards him.” Carter, ed., The Territorial Papers of the United States, Volume IX, Territory of Orleans, 1803-1812, 869–871; also cited in Long, Madame Lalaurie, Mistress of the Haunted House, 41. 23 Carter, ed., The Territorial Papers of the United States, Volume IX, Territory of Orleans, 1803-1812, 252. 211

Americans and his admiration for France. He served as President of the Louisiana State

Senate in 1822 to 1823. Monsieur Tremoulet, Mme. Tremoulet’s husband and Mme.

Turpin’s father, also expressed his preference for old world governments over American governments. Anti-American sentiments were so intense that some de Clouet noted that the French faction hoped to manipulate the electoral process to ensure that men sympathetic to their cause occupied important governmental positions.24

American men saw women of the ancienne population as extensions of family members with foreign allegiances, and for good reason. Many of these women actively affirmed their foreign allegiance. And, even they did not actively affirm foreign allegiance, they did often help secure the power of men of the ancienne population by bringing property and wealth to the marriages with such men and avoiding marriage to

American men.

Ultimately, the ancienne population was not able to return Louisiana to French or

Spanish rule. Louisiana historians have shown that split allegiances between France and

Spain, lack of concerted efforts to mobilize, and France and Spain’s dwindling interests in the territory, all contributed to the maintenance of American governance.

The longer the American government stayed in power, the more the ancienne population claimed that despite their voting capabilities and political offices, American

24 Stanley Faye, “Louis de Clouet’s Memorial to the Spanish Government, December 7, 1814 (Conditions in Louisiana and Proposed Plan for Spanish Reconquest)”; also mentioned in, Long, Madame Lalaurie, Mistress of the Haunted House, 41–42. 212

jurisprudence and the Supreme Court of Louisiana (not the state legislature), gradually eroded their potential access to lawmaking positions and power over property.25 Despite the efforts of the ancienne population to resist American rule, they could not monopolize control of the state’s economy and government for very long. By the 1820s, the ancienne population was beginning to lose its grip on the resources and laws of the state. They blamed their loss of control on changes the new American government made in which they had little to no say.26 Moreover, many interpreted the rulings of the new state

Supreme Court, which was comprised almost exclusively of outside American men that had been appointed by the state’s American governor, William C.C. Claiborne, as threatening. Specifically, as previously noted, they claimed that the state Supreme

Court’s 1821 decision that required all family contracts to be drawn up in English as an

American attempt to swindle the ancienne population out their family property. They complained once again in 1821 that the court also mandated English be the only official language of the state bar. Editorials in newspapers indicate that many members of the

25 Certainly, there were divisions among the ancienne population that reflected the region’s history. Some allied themselves with the French empire, others with the Spanish, while others balanced their support for the two continental powers or supported U.S. rule. Still, while divisions were certainly not static or always clear-cut, alliances typically formed more easily amongst the French, Spanish, and creole in Louisiana than between them and their new American countrymen. These tendencies resulted in tensions generally being rearticulated as rivalries between the ancienne population and the Americans. Sometimes alliances were even mixed within their own families. But it is clear that men often hinted at if not all out paraded their loyalties. The broader community made it a habit to gossip and try and know whose allegiances fell where. 26 As discussed in previous chapters, the ancienne population specifically complained that the Board of Land Commissioners, which was comprised of outside American men, made it difficult to land. In the first few decades, the Commissioners were in change of dispensing federal land grants, which recognized the previous land holdings of and granted new land to men in the area. First Board of Land Commissioners; U.S. Recorder of Land Titles, Record Group 951”, Missouri State Archives, Jefferson City, accessed June 7, 2014, https://www.sos.mo.gov/CMSImages/Archives/resources/findingaids/landcomm/rg951-1.pdf. 213

ancienne population were outraged.27 The ancienne population interpreted this ruling as an attempt to dislodge them from the governing hierarchy in their own state by

“Americaniz[ing] the bar.”28 Their reaction may have been extreme, in part, because in the early part of the nineteenth century, illiteracy in French, let alone in English, was rampant among the ancienne population of Louisiana. According to Louisiana historian

Paul F. Lachance, “The ‘State of Wretched Ignorance’ of the ancienne population was one of the arguments Governor Claiborne used to rationalize the delay in granting Louisiana statehood and self-government.”29

The ancienne population saw some their fears over losing control of their lawmaking abilities realized less than two decades later when Americans displaced the

French in the legal profession. By 1839, Americans made up about 78% of those admitted to the Louisiana bar.30 It is, of course, impossible to know if requiring the

Louisiana Bar to be taken in English is chiefly responsible for this change, or if it is just one correlating factor amongst others, including American immigration. After all, from

27 Le Courrier de La Lousiana (Louisiana Courier), May 16, 1821; Le Courrier de La Lousiana (Louisiana Courier), May 21, 1821; “Vexatus Toties, Nunquamne Responam?” Le Courrier de La Lousiana (Louisiana Courier), June 4, 1821; Roger Ward, “The French Language in Louisiana Law and Legal Education: A Requiem,” Louisiana Law Review 57, no. 4 (Summer 1997), 1286. 28 The author of the article went so far as to argue that such a ruling threatened the existence of their civil law tradition and represented an attempt to lay the groundwork for the imposition of common law by stating: “The object of the rule in question, is… facilitate the introduction of that common law so long wished for, which will erect her majestic throne in our courts, and jointly with her uterine sisters, chicanery, confusion and instability, rule over the fortunes and honor of the people.” “Vexatus Toties, Nunquamne Responam?”. 29 Lachance, “The Foreign French,” 122–23; Tregle, Jr., “Creoles and Americans,” 142. 30 Elizabeth Gaspard, “The Rise of the Louisiana Bar: The Early Period” (Masters Thesis, University of New Orleans, 1985), 2–8; Tregle, Jr., “Creoles and Americans,” 160. 214

1805, a year after the Louisiana Territory had become a part of the new United States, to

1830, the population of New Orleans alone had more than quadrupled, due in large part to the influx of men from across the U.S. who hoped to turn a profit in the burgeoning city.31 Whatever the root cause, the displacement of the ancienne population from the legal profession led many of the ancienne population to believe their status and governing powers were threatened. According to the ancienne population, in one year, the Supreme

Court of Louisiana had not only made it more difficult for them to manage their own family property, but also made it more difficult to participate in a prominent profession related to the governance of the state and that influenced the very laws that ruled their lives.

American displacement of the ancienne population was not limited to the legal profession. By the 1830s, Americans were also beginning to displace the ancienne population in a variety of businesses. Americans thrived in commercial activity. A variety of new industries emerged after steamboats made it possible to transport great amounts of natural resources down river to the levees of the upper city. Many Americans found jobs with the insurance companies, commodity brokers, exchanges, commission merchants, wholesale warehouses, specialty retail stores, and banks. Tregle Jr. argues that Americans had become so dominant in the business world that New Orleans

31 Gilbert Din and John Harkins, The New Orleans Cabildo: Colonial Louisiana’s First City Government, 1769-1803 (Baton Rouge: Louisiana State University Press, 1996), 6; “1830 United States Census. Orleans Parish, New Orleans, Louisiana.” 215

newspapers regularly began to use the terms “commercial quarter” and “American

Section” almost interchangeably. With all this development, the American Section quickly expanded. By the mid-1830s, the first five blocks of Chartes below Canal were lined with American bookshops, dry good emporiums, and jewelry stores.32

As American businesses continued to develop in this area, several men of the ancienne population began to panic. An 1833 letter to the editor printed in New Orleans’

The Bee by an individual going by the name of “creole” claimed that “Almost every monied institution in the city is in the hands of the American population.” He listed several major banks and noted that they had “American presidents, and American cashiers [emphasis his].” He explained that French population would settle by

“divid[ing]” their “power” with their new American “brethren” but they cannot tolerate

“all power passing from the hands of the [French] into the hands of the [Americans].”

He goes on to say that he admires the enterprise of Americans but “As a creole, I protest against a monopoly of our monied institutions, by our American brethren.” He argues that the Americans “ought to be satisfied with share of power” implying that they had taken more of their share. “This” he says, “I know to be the feelings of hundreds, and it is hoped that we shall act in concert.”33 Bernard Marigny, husband to Mme. Marigny— one of the women accused, also expressed similar concerns. Marigny, who owned most

32 Tregle, Jr., “Creoles and Americans,” 155. 33 Creole, “Mr. Editor,” The Bee, May 22, 1833. 216

of the real estate in the eastern part of New Orleans, felt the Americans encroaching close to his property. He proclaimed that the intolerable Americans had become so entrenched in the upper part of New Orleans, at the expense of the ancienne population, that municipal policy needed to be changed or Americans needed to be removed.34 This demand for a redistribution of power speaks to the anxiety that men of ancienne population felt when they saw their dominance begin to dwindle. 35

Although American men who gained a degree of control over the state’s economy and government never saw their governing authority usurped by foreign empires, their resentment of the ancienne populations’ clear foreign allegiances and anti-

American sentiments still made their way into their criticism of the ancienne population.

In fact, many Americans blamed those same allegiances for the eventually resulting in a decline in the ancienne population’s control over area resources. Americans resisted the argument that American governance introduced new laws to intentionally oust the ancienne population from property they held for years. Instead, Americans claimed that the ancienne population failed because they lacked necessary business acumen. The

34 Tregle, Jr., “Creoles and Americans,” 155; Tregle, Jr. pulled this information from: Bernard Marigny, Mémoire de Bernard Marigny, Habitant de La Louisiane: Addrressé à Ses Concitoyens (Paris: Trouvé, 1822), 56. 35 Latrobe claims that although in the first few decades of nineteenth century American men and men of the ancienne population made competing claims to legal authority, by the mid-1830s, men of the ancienne population gradually became “reconciled to the American jurisprudence.” Although factions of the ancienne population, both men and women, resisted and bemoaned the influx of Americans and their businesses into their city, it soon became clear there was little they could do to stop the flow of American immigrants, and over time, American rule began to appear more permanent. The ancienne population appeared to recognize the futility of their efforts to keep social, governance and business networks closed to Americans. But this does not mean the anxieties and frustrations disappeared with reconciliation. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 127. 217

ancienne population, Americans contended, failed to understand the new economic environment, preferring instead to rely on social identities and exclusionist networks based in vestigial connections to foreign empires, not their own skill, to maintain and acquire wealth. Newspapers characterized men of the ancienne population as foolish businessmen, who could only survive in a world where old world connections, rather than intelligence or skill, guaranteed success.36 In 1804, Governor Claiborne also wrote similar statements about several New Orleans men of the ancienne population. He called one of Louisiana’s most wealthy and influential members of the ancienne population a man “without abilities either natural or acquir’d…He is principally distinguished by his vanity… & blind attachment to the French nation.” He described another as having

“pretty extensive family connections” and being “pretty Rich…which neither his talents nor his mode of life” otherwise provided.37 In 1819, Benjamin Latrobe held up Monsieur

Tremoulet as another example. Tremoulet, who was married to Mme. Tremoulet and father to Mme. Turpin, was also the owner of the Tremoulet hotel. He explained that under the Spanish and French governments, Tremoulet had acquired a fortune and excelled in managing the hotel. His business ventures, however, failed under the

American government. According to Latrobe, when Louisiana came under American

36 See, for example: Charleston Courier, May 12, 1810; Tregle, Jr., “Creoles and Americans,” 148. 37 For his descriptions, Claiborne relied on an American named Evan Jones who had lived in the New Orleans for decades before New Orleans became an American territory and a man named Labigarre, who Claiborne described as “a Frenchman by birth but an American in all his partialities” for their impressions of the city’s most “prominent” and influential characters. The men listed several men of the ancienne population as foolish. 218

control, banks began to offer new types of credit facilities that Tremoulet did not fully comprehend. Tremoulet co-signed loans for acquaintances without realizing that if they defaulted, he would be responsible for the unpaid debt.38 Mme. Lalaurie’s deceased husbands also seemed to prove this point. Succession records and civil court records show that both López y Ángulo and Blanque were spendthrifts who had brought her to the edge of financial ruin. 39

Americans not only criticized men of the ancienne population’s ability to understand and excel in the modern economy, they also doubted the ancienne population’s ability to effectively manage enslaved people, one of the South’s most valuable and, as explored in chapter four, potentially dangerous forms of property.

Although slave rebellions occurred throughout the American South and Atlantic, the

Haitian Revolution and accompanying local rebellions had particularly salient consequences in Louisiana. To many American men, the Haitian Revolution, which began in 1791 and ended in 1804, represented the failure of French patriarchs to control slaves and protect families. One influential work from 1805, An Historical Account of the

Black Empire of Hayti, described and lauded the prowess, intelligence, and effectiveness

38 Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 24. 39 “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 73,” July 9, 1816, NARC; Reiterted in: “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 72,” January 17, 1816, NARC; “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 71,” November 10, 1815, NARC; Also in: Widow Blanque v. Syndics of the Creditors of Jean Blanque, 1815, Orleans Parish Court, Orleans Parish, NOPL; “Marriage Contract between Delphine Macarty and Louis Lalaurie, Acts of Felix de Armas, Vol. 13,” January 12, 1828, NARC; See also: Long, Madame Lalaurie, Mistress of the Haunted House, 49, 52. 219

of Haiti’s black troops against the French. Marcus Rainsford, the book’s author, was a career officer in the British Army. His narrative of the Haitian Revolution, the first in the

English language, included many powerful images. One image, entitled “Revenge

Taken by the Black Army for the Cruelties Practised On Them By The French,” depicts black troops hanging several French soldiers on the hillsides of St. Domingue (see

Figure 1 below).40

40 Marcus Rainsford, An Historical Account of the Black Empire of Hayti (London: J. Cundee, 1805), 337. 220

Figure 1: “Revenge Taken by the Black Army for the Cruelties Practised on Them by the French”

These powerful images almost certainly haunted planters throughout the South, who routinely inflicted violence upon their slaves. But the image’s title validated Americans’ fears of slave rebellions and their belief that members of the ancienne population were exceptionally cruel.

221

Americans in Louisiana became especially distrustful of white Haitian war refugees, many of whom had brought slaves or had become slaveholders again shortly after arriving in New Orleans. Governor Claiborne wrote to the U.S. Secretary of State, explaining that, “The native americans[sic], and the English part of our society…(with some few exceptions) appear to be prejudiced against these Strangers, and express great dissatisfaction that an Asylum in this territory was afforded to them.”41 Many historians have noted that the large influx of French war refugees from St. Domingue to Louisiana raised local concerns that these former plantation owners were incapable of effectively managing their slaves and apt to bring with them slaves who would spread revolutionary ideas among American slaves.42

Two slave rebellions that occurred in Louisiana in the late eighteenth and early nineteenth centuries gave Americans more reason to be concerned about French planters. In a 1795 slave uprising at Point Coupée, slaves sang revolutionary songs in which they singled out one French planter for being particularly barbaric.43 In an uprising in 1811, hundreds of slaves organized outside of New Orleans with plans to take the city. It was rumored that the insurrection’s leaders had participated in the

Haitian Revolution.44 One hundred and fifty U.S. troops mobilized to quell the uprising.

41 Dunbar Rowland, ed., Official Letter Books of W.C.C. Claiborne, 1801-1816, vol. 4 (State Department of Archives and History, 1917), 363–364; Lachance, “The Foreign French,” 107. 42 Kendall, “Shadow Over the City,” 144, 146–147; Lachance, “The Foreign French,” 103-115. 43 Vella, Intimate Enemies, 88. 44 Kendall, “Shadow Over the City,” 144. 222

In both instances the rebellions had started on the plantations of men belonging to the ancienne population.45 Such circumstances allowed white American slaveholders to conveniently overlook other slave rebellions that were happening throughout the South and believe that only certain types of owners – in this case, French – were exceptionally cruel and inept at controlling their slaves.

Although the rebellions started on the plantations of men, many Americans went a step further and claimed that women of the ancienne population in particular were exceptionally problematic owners. Rumors that these women slaveowners abused their slaves seem to have started in American circles. As far back as 1812, rumors and travel literature marked these women as exceptionally cruel, especially in comparison to

Americans. Major Amos Stoddard, a native New Englander stationed in Louisiana wrote that although white creole women were refined in manners, they were “habitually cruel to their slaves.” Latrobe echoed Stoddard’s sentiments when he wrote that, “The general character of the masters & mistresses of the slaves in this city… is, that the

Americans treat & feed & cloth[e] their slaves well, but that the creoles are in all these respects comparatively cruel to these unfortunate people.” In his account, all of the violence was enacted by white creole women. Latrobe claims to have borne witness to

45 In response to the revolt, the heads of the surviving participatory slaves were struck off and impaled on high poles at intervals along the river roads leading into New Orleans. They remained on their posts until the moldered away in hopes that they would terrify other slaves into submission. Ironically, this violence, which was sanctioned by the state, was depicted as necessary justice, not cruel or unusual punishment. Ibid., 144–47; Vella, Intimate Enemies, 21. 223

the violence of two of the women – Mme. Tremoulet and Mme. Turpin. Latrobe claims that while he was staying Hotel Tremoulet, Mme. Tremoulet stripped, confined, and whipped one of her best slaves until she drew blood because the enslaved woman

“failed (because it was impossible)” to make the bed of guest at a scheduled time.

Latrobe also claims Mme. Turpin, Monsieur and Mme. Tremoulet’s daughter was an accomplice to the abuse because she encouraged her mother to recruit a man to assist in the beating to ensure more force would be used.46 The names of Mme. Marigny and

Mme. Conrad, Latrobe reports, came from local gossip. Community members claimed that both the “first wife” of Bernard Marigny and woman named Mme. Conrad also ordered that their slaves be stripped and confined while they underwent “punishment of the whip.”47

Ironically, the same month that Latrobe categorizes white creole women as exceptionally cruel, he also applauds the new, narrower definition of abuse in the 1806

Louisiana Black Code, which was passed and heavily influenced by new American governance. As legal historian Judith Schafer notes, at the beginning of the nineteenth century, when compared to the rest of the American South, slaves in Louisiana had

46 In Latrobe’s description, Monsieur Tremoulet was conspicuously absent while his wife and daughter managed, or mismanaged, the hotel bondswoman. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 53–54. Kendall argues that creole women appeared so cruel to their slaves to Americans because creoles and members of the ancienne population were deeply terrified of their slaves. Kendall explains that the creole had in recent memory the Haitian revolution as well as the 1811 slave uprisings. Americans, many of whom dwindled in over the subsequent decades, were less likely to share these fearfilled memories because they were new to the region. Kendall, “Shadow Over the City.” 47 Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 53–54. 224

unique rights, including the right to self-purchase and the right to petition to be sold away from a cruel master.48 Legal historian Thomas Morris further explains that

Louisiana had both civil and criminal protective statutes. The civil statute allowed community members to petition district judges and ask that an ill-treated slave be removed from their owner’s possession and sold when they believed the owner was cruelly treating their slave(s).49 Yet in 1803, when the United States took possession of

Louisiana, laws protecting slaves from abuse gradually diminished. In 1806, the new territorial legislature amended the Black Code (Code Noir) and narrowed the scope of what could be defined as cruel treatment. Taking cues from South Carolina’s slave laws, section 16 of the new “Crimes and Offenses” unit defined cruel treatment as death or some other punishment other than “flogging, or striking with a whip, leather thong, switch or small stick” or placing a slave in “irons” or “confining a slave.” The exceptions were some of the most common violent methods of discipline that slave owners used, and as many slaves reported, still very cruel.50 Section 17, initially appears to provide a

48 Judith Schafer, “Details Are of a Most Revolting Character: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana,” in Slavery & the Law, ed. Paul Finkelman (Madison: Madison House Publishers, 1997), 241. 49 Thomas Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina Press, 1999), 186. 50 Louis Moreau Lislet, A General Digest of the Acts of the Legislature of Louisiana: Passed from the Year 1804 to 1827 Inclusive, and in Force at This Last Period with an Appendix and General Index (New Orleans: Printed by Benjamin Levy, 1828), 118; John Belton O’Neall, ed., The Negro Law of South Carolina (Columbia: J.G. Bowman, 1848), 20; Similarly noted in: Schafer, “’Details Are of a Most Revolting Character,’” 242. Thomas Morris notes that shortly after the Stono Rebellion, mid-eighteenth century South Carolina legislators endeavored to show their version of "humanity" as they adopted a law that allowed the state to criminally punish problematic masters. Predating the Louisiana law, the South Carolina law also permitted owners to 225

reprieve for slaves as it provided that if a slave were “mutilated, beaten or ill-treated” when no witnesses were present, the owner or person responsible for managing the slave would be prosecuted for cruelty unless he or she could produce evidence to the contrary. However, the crafters of the Black Code left an easy out for slaveholders: a prosecuted owner could clear himself by “his own oath.” 51 This provision drastically weakened the law and made clear that masters were the ultimate authority with respect to the discipline of their slaves. In 1825, the Louisiana state legislature acted again and further restricted options for prosecuting slave abuse when they amended the Civil

Code of the state of Louisiana. Chapter Three’s Article 192 of the state’s Civil Code mandated that juries had to criminally convict slaveholders of cruelty before authorities could force owners to sell an allegedly abused slave.52 This eliminated the ability of individuals to use the civil courts to accuse an owner of slave abuse. Legal historian

Judith Schafer explained that this law was upheld by the Louisiana Supreme Court in the 1831 case Markham v. Close, when the justices confirmed that one citizen cannot sue another alleging slave abuse. 53

whip or beat their slaves with "'a horsewhip, cowskin, skin, switch or small stick.'" Further it allowed for putting a slave in "'irons, or confining or imprisoning the slave." The law allowed for a fine up to a hundred pounds if a guilty owner put out the eye, cut out the tongue, castrated, or did "'cruelly scald, burn, or deprive any slave of any limb or member.'" Morris, Southern Slavery and the Law, 1619-1860, 183. 51 Ibid.; Similarly noted in: Schafer, “’Details Are of a Most Revolting Character,’” 242. 52 Thomas Morgan, ed., Civil Code of the State of Louisiana with the Statutory Amendments, from 1825 to 1853, Inclusive; and References to the Decisions of the Supreme Court of Louisiana to the Sixth Volume of Annual Reports. (New Orleans: Bloomfield & Steel, 1861), 33. 53 Prior to reaching the state Supreme Court, Markham had presented a petition to the District Court of Opelousas (about a hundred and forty miles northwest of New Orleans) in which he alleged his neighbor, 226

The changes in Louisiana that expanded an owner’s right to discipline his or her slaves arose at a time when similar legal changes were taking place in other southern states. Infamously, in 1829, the supreme court of North Carolina affirmed in State v.

Mann an owner’s absolute authority over his or her slaves and found that North

Carolina could not find slave owners liable for violence they inflict on their own slaves.54

Writing on behalf of the court, North Carolina Supreme Court Judge Thomas Ruffin said that, although, as a man, he lamented deliberate “cruelty and deliberate barbarity” done unto slaves, as a judge, he believed that the court could not “allow the right of the master to be brought into discussion in the Courts of Justice.” Ruffin acknowledged that violence was inherent to slavery: “This discipline belongs to the state of slavery. They cannot be disunited, without abrogating at once the rights of the master, and absolving

Close, had cruelly beaten his own slave, Augstin. Markham had no title to the slave. Markham claimed to act as public prosecutor and requested that the court sell Augustin away from Close. Close admitted to beating Augustin. But Close argued that Augustin deserved the punishment. He had received the beating after being brought back from Mississippi “after absconding for a considerable time.” Witnesses testified that Close had beaten Augustin so badly that he had “very much cut and skinned” him. Augustin was unable to sit or lie on his back. Another neighbor complicated the testimony when he stated that Close was not a “cruel or severe master.” He had witnessed and even partaken in the beating, which was administered repeatedly because Augustin refused to go with his master. The district court judge placed the case on the docket as a civil action. Close protested that Markham had no right to initiate such a suit, as the proceedings were unknown to the law. Still the lower court rejected Close’s argument and ordered Close to sell the slave. Close appealed to the state Supreme Court. Writing for the court, Associate Judge Alexander Porter, he denied that Markham had any right to institute such a suit. Referencing section 16 of the Black Code and article 192 of the Louisiana Civil Code, Porter claimed that excessive cruelty was a public offense that had to be publically prosecuted and ruled that no Louisiana court could order the sale of slave from an owner without criminal conviction. Markham v. Close, 6 Reports of Cases Argued and Determined in the Supreme Court of Louisiana and in the Superior Court of the Territory of Louisiana 292 1830-1831; also noted in: Judith Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1997), 54–55; Long, Madame Lalaurie, Mistress of the Haunted House, 84. 54 State v. Mann, 13 N.C. 263 1829, American Legal History, Columbia Law, accessed May 3, 2016, http://moglen.law.columbia.edu/twiki/pub/AmLegalHist/TedProject/Mann.pdf. 227

the slave from his subjection…”55 Certainly, North Carolina never had the same kind of protections that Louisiana had for its slaves and Louisiana never embraced this unlimited definition of slave discipline. But at a time when continued slave rebellions helped make slavery a more contentious institution, state-level lawmakers across parts of the South afforded masters more leniency to use violence to discipline their slaves, not less.

Judges had their own interests in limiting state oversight of and interference in an owner’s discipline over their slaves. Many of these judges were slaveholders themselves. Several left management of their slaves to overseers or other family members while they traveled to practice law. Louisiana’s Markham v. Close case in 1831 shows that the state’s supreme court was concerned about individuals bringing civil suits that would require the courts to police the master/slave relationship. Writing on behalf of the court, Associate Justice Alexander Porter, reasoned that such intimate suits might well open the door to suits prompted by “envy” or “malice.” 56 Justice Porter although not a native of Louisiana, had resided there for over 20 years and was keenly aware of that Louisiana’s turbulent social dynamics might generate an unusual amount of cases driven by such motivations. According to a biography of Porter in the Columbia

Law Review, after years of studying business and common law in Nashville, Tennessee,

55 State v. Mann, 13 N.C. 263 1829. 56 Markham v. Close, 6 Reports of Cases Argued and Determined in the Supreme Court of Louisiana and in the Superior Court of the Territory of Louisiana at 295; Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana, 54–55; Long, Madame Lalaurie, Mistress of the Haunted House, 84. 228

Porter decided to emigrate to Louisiana in 1810 after reading about its fertile lands. He hardly received a warm reception. Upon arriving in Louisiana, he stopped at a plantation and asked the owner for a glass water before he continued on his journey.

The owner responded by turning his dogs on him—the “American” outsider—driving

Porter off his estate. Likely drawing on his intimate knowledge of his state, Porter seems to have recognized that in addition to ordinary neighborhood disputes that might give rise such suits, Louisiana, in particular, was undergoing profound social changes that could provoke even more lawsuits. He, like the other justices, wanted to limit the role courts would play in mitigating suits that might result from these changes.

Although the introduction of American governance expanded the power that

Louisiana slave-owners had over their slaves at the state-level and made it more difficult to use the courts, especially states courts as venues for punishing cruel slave owners, it could not regulate public opinion. As a result, gossip, rather than formal legal action, appears to be the primary vector through which locals spread the rash of accusations regarding white creole women’s treatment of slaves. 57 And while New Orleanians, such

57 Although, admittedly, it is difficult to know this for sure. New Orleans criminal records for this period are spotty, and for many of the relevant years discussed here, nonexistent. For example, the city archives only have the records of the criminal cases tried by the Orleans County Court for the years 1805-1807 and the City Court (which replaced the County Court in 1807) for the years 1807-1812. These records vary greatly. Some contain only the defendant’s name, the date, the charge, the victim’s name, and sometimes the outcome of the case. Some, from the later years, include, bond documents, arrest or search warrants, statements or testimony, orders to the sheriff to arrest the defendant. There is a large gap, and then from December 1, 1830 until October 30, 1835, then May 25, 1840 to June 4, 1840, the city of New Orleans has Criminal Court Minute Books of the First District of Orleans Parish. The Minute Books only contain the defendant’s name, the charge, the date(s) they appeared in court, and what issue relating to the case was 229

as Latrobe, generally agreed with state-level lawmakers that “flogging, or striking with a whip, leather thong, switch or small stick” or placing a slave in “irons” or “confining a slave” were “not cruel punishments” and “just and humane,” when these actions were taken or ordered by the named white creole mistresses, they became, in Latrobe’s eyes and the eyes of the American community of New Orleans, cruel.58

Women of the ancienne population who had enough wealth to own enslaved people became the clearest symbol of the threat posed by the ancienne population to

American men. These women were affiliated with the ancienne population, which already bore a reputation as antagonistic and hyper-competitive with Americans. They were also viewed as exceptionally brutal slaveowners in many American minds. In addition, popular gender narratives depicted white women as secondary to men and generally weaker in character because they were more prone to extremes.59 Writing about the rumors that the women of the ancienne population were “the worst slaveowners”,

Fredrika Bremer, a Swedish abolitionist traveling through the American South during

decided (typically, pleas, jury members names on the case, requests for bail, and the verdict).Criminal Courts, Orleans Parish, NOPL, accessed May 6, 2016, . 58 Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 56–57. 59 The list of these works chronicling popular depictions of white women in the antebellum era are long and varied. See, for example: Barbara Welter, “The Cult of True Womanhood: 1820-1860,” American Quarterly 18, no. 2 (Summer 1966): 151–74; Kathleen Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill: University of North Carolina Press, 1996); Laura Edwards, Gendered Strife & Confusion: The Political Culture of Reconstruction (Urbana: University of Illinois Press, 1997); Kirsten Wood, Masterful Women: Slaveholding Widows from the American Revolution through the Civil War (Chapel Hill: The University of North Carolina Press, 2004); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge: Cambridge University Press, 2008); Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009); Hartigan-O’Connor, The Ties That Buy. 230

the antebellum period, claimed that if such rumors were true, “it must proceed from their temperament being in general more excitable, and from the climate having an unusually irritating effect upon the nervous system by stimulating character: besides which, women usually exceed men in their extremes either good or evil; they are by nature more eccentric, more spiritual, nearer the spirits, whether they be angels or devils.”60 Latrobe explained that his knowledge of such dark violence colored his view of these women at all times. While attending a ball in New Orleans he said that even when he saw the “assemblage” of “beautiful faces and forms collected in one room, all pale, languid, & mild. I fancied that I saw a cowskin in every pretty hand gracefully waved in dance…”61 On a practical level, and leaving aside gender narratives,

Americans feared that if a woman poorly managed her slaves, she not only jeopardized the welfare of her own property, but she also jeopardized well-being of the community and the broader southern economy, which depended on the exploitation of enslaved people.

Set against the inherent violence of slavery, the accusations in white communities that women were especially cruel says more about existing tensions between the

Americans and the ancienne population, as well as gendered narratives, than it does about women’s exceptionally cruel treatment slaves. A long and rich historiography has

60 Fredrika Bremer, Homes of the New World: Impressions of America, 2: 245. 61 Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 54. 231

employed slave narratives from across all slaveholding states to catalogue routine use of corporal punishment, severe abuse, and even the murder of slaves at the hands of masters, mistresses, and overseers. This same historiography has also shown that, generally, such violence drew little or no outside interference, largely because of whites’ view of such violence as legitimate discipline or property management.62 Violence was endemic to the institution of slavery and oftentimes sanctioned by state law, no matter how much the narrative of paternalism tried to downplay this dark reality.63

White Americans public opinion about cruelty to slaves seemed to be more influenced by the identity and reputation of the slaves’ owners than the nature of the actual abuse suffered by slaves. 64 As legal historians studying local criminal and civil

62 The list of these works is long and varied. See, for example: Kenneth Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (New York: Vintage Books, 1956); Stanley Elkins, Slavery: A Problem in American Institutional History (Chicago: The University of Chicago Press, 1959); Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made, First Printing (New York: Vintage, 1976); Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988); Jennifer Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge & New York: Cambridge University Press, 2008), 5–7, 35; Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana, 28–57; More specifically on the lack of legal prosecution of slave abuse, see: Schafer, “’Details Are of a Most Revolting Character’”; Morris, Southern Slavery and the Law, 1619-1860, see especially pp. 182–208. 63 Less than a mile away from the Lalaurie’s lived Johnson Bell, a saloon owner who owned a slave a named Frank Bell. Frank Bell recounted stories of abuse and maiming in WPA narratives. In his interview he explained that he married when he was seventeen. Johnson Bell ran her off. Frank Bell snuck off at night to see his bride, but Johnson Bell found out. Frank Bell explained “[Johnson] takes a big long knife and cuts her head plumb off, and ties a great, heavy weight to her and makes me throw her in the river. Then he puts me in chains and every night he come and give me a whippin’, for long time.” The Federal Writers’ Project, Slave Narratives: A Folk History of Slavery in the United States From Interviews with Former Slaves - Texas Narratives, vol. 16 (Washington, D.C.: The Library of Congress, 1941), 60. 64 For accounts of ill-treatment of slaves from former slaves perspective, see, for example: Frederick Douglass, Narrative of the Life of Frederick Douglass, Documenting the American South; Harriet Ann Jacobs, Incidents in the Life of a Slave Girl, ed. Lydia Maria Francis Child (Boston: Published for the Author, 1861), 232

court records in the South have shown, the identification of offenses had just about as much to do with the reputation, “credit,” and social position of the offender and the accusers as it did about the offense itself. Gossip assessed the credit or reputation of an individual and disparaging gossip about a local individual could have devastating consequences, potentially leading to legal or extralegal prosecution.65 As state laws and local practices were frequently influx in the early antebellum period, disparaging gossip also served as another community means of punishment.

Gossip, rather than formal legal action, appears to be the primary vector through which locals spread the rash of accusations regarding white creole women’s treatment of slaves. Although, it is admittedly difficult to know this for sure. New Orleans criminal records for this period are spotty, and for many of the relevant years discussed here, nonexistent. 66 In the records that do exist, none suggest that Mme. Tremoulet, Mme.

; The Federal Writers’ Project, Born in Slavery: Slave Narratives from the Federal Writers’ Project, 1936-1938, 17 vols. (Washington, D.C.: The Library of Congress, 1941). 65 In The People and Their Peace, Edwards explains that, “everyone participated in the identification of offenses, the resolutions of conflicts, and the definition of law.” This meant that offenses did not have to be enshrined in state law to appear before the local courts, or in other circumstances, be punished through in extralegal venues. Edwards, The People and Their Peace, 7. 66 For example, the city archives only have the records of the criminal cases tried by the Orleans County Court for the years 1805-1807 and the City Court (which replaced the County Court in 1807) for the years 1807-1812. These records very greatly. Some contain only the defendant’s name, the date, the charge, the victim’s name, and sometimes the outcome of the case. Some, from the later years, include, bond documents, arrest or search warrants, statements or testimony, orders to the sheriff to arrest the defendant. There is a large gap, and then from December 1, 1830 until October 30, 1835, then May 25, 1840 to June 4, 1840, the city of New Orleans has Criminal Court Minute Books of the First District of Orleans Parish. The Minute Books only contain the defendant’s name, the charge, the date(s) they appeared in court, and what issue relating to the case was decided (typically, pleas, jury members names on the case, requests for bail, 233

Turpin, Mme. Marigny, or Mme. Conrad were charged with any criminal offense, despite substantial evidence of punishment of these women through gossip.

Initially, the ancienne population appeared to be incensed that Americans gossiped and categorized women of the ancienne population as exceptionally violent in their management of their slaves, especially when the gossip was directed at the most prominent women. Both Mme. Lanusse and Mme. Lalaurie were extraordinarily elite.

The women, who were cousins, were born into the powerful Macarty family. Both owned large plantations outside of the city and split their time on their plantation and in their French Quarter estates. When the American rumors began about Mme. Lanusse, she was married to Paul Lanusse, the powerful local merchant who had spawned area distrust about foreign allegiances. When the rumors about Mme. Lalaurie’s cruel treatment of slaves began, she was a new widow (then known as Widow Blanque) whose deceased husband, Jean Blanque had been a powerful man in the ancienne population circles and feared by American men. American gossip and the travel literature held that these women were protected from criminal charges because their dedicated

“kinsmen,” members of the ancienne population, denied such charges and worked to protect these women from legal consequences.67

and the verdict).Special Collections at the New Orleans Public Library, “Criminal Courts, Orleans Parish, New Orleans Public Library,” accessed May 6, 2016, . 67 Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 54; Harriet Martineau, frequently called the first female sociologist, visited New Orleans in 1838 and claimed in her Retrospect of Western Travel that upon hearing the gossip, an American lawyer sent a young French creole studying law to deliver hint to 234

But the protection extended to these women was not absolute. When these same women directly challenged men of the ancienne population’s authority over property, they saw their protective networks recede. As men of the ancienne population and American men competed for power, wealth and control of the state, women of the ancienne population became vulnerable to accusations of slave abuse, especially if such women had also directly challenged men by claiming property and power. Although Mme.

Lanusse and Delphine Macarty, were both members of the powerful Macarty family, they both also happened to be litigious, and made several claims against American men and men of the ancienne population.68

One particularly interesting lawsuit involved Mme. Lanusse, Mme. Lalaurie, a local male planter of the ancienne population named John Anthony Philippon, Jr., and two of Mme. Lanusse’s slaves. In 1827, Widow Lanusse brought a lawsuit against Philippon

Mme. Lalaurie that she might be charged with cruel treatment of her slaves, if she did not change behavior. "The young man returned full of indignation against all who could suspect this amiable woman of doing anything wrong." Martineau, Retrospect of Western Travel, vol. 1: 264–265; Fredrika Bremer, The Homes of the New World: Impressions of America, vol. 1 (New York: Harper & Brothers, 1853), 244–245. 68 From 1816 to 1834, Mme. Lalaurie appears in court records in ten different civil suits. Widow Blanque v. Syndics of the Creditors of Jean Blanque, 1815, Orleans Parish Court , Orleans Parish, NOPL; Widow J. Blanque v. Louis Tabary, 1815, Orleans Parish Court , Orleans Parish, NOPL; Blanque (Widow) v. Blanque (her husband), syndic of creditors of, 1813-1835, Orleans Parish Court , Orleans Parish, NOPL; Blanque (Widow) v. Blanque (her husband), syndic of creditors of, 1813-1835, Orleans Parish Court , Orleans Parish, NOPL; Delphine Macarty, wife of Louis Lalaurie v. William Fisher, 1813-1835, Orleans Parish Court , Orleans Parish, NOPL; Delphine Macarty (wife of L. Lalaurie) v. Thomas Cahallin, 1831, Orleans Parish Court , Orleans Parish, NOPL; Delphine Macarty (wife of Louis Lalaurie) v. John R. Grymes, 1832, Orleans Parish Court, Orleans Parish, NOPL; Delphine Macarty v. Louis Lalaurie, 1832, First Judicial District Court, Orleans Parish, NOPL. Mme. Lanusse, like Mme. Lalaurie engaged in multiple civil court suits after her husband’s death in 1825. Widow Lanusse v. Julian Dufart, 1827, First Judicial District Court, Orleans Parish, NOPL; Celeste Macarty, Widow of Paul Lanusse v. Philippon, 1828, First Judicial District Court, Orleans Parish, NOPL; Celeste Macarty (Widow Paul Lanusse) v. Agathe Fauchon (F.W.C.), 1813-1835, First Judicial District Court, Orleans Parish, NOPL; Celeste Macarty v. John Minturn, 1813-1835, First Judicial District Court, Orleans Parish, NOPL; Celeste Macarty v. Jean Lanna, 1832, First Judicial District Court, Orleans Parish, NOPL. 235

in which she accused him of stealing two of her slaves. Mme. Lanusse claimed that she sent the pair to the plantation of her cousin, Mme. Widow Blanque, to work. She claims that the slaves were off washing clothes and then “suddenly disappeared.” They were spotted later being used by Philippon on his plantation near Mme. Widow Blanque’s.

She wanted the seizure and sale of the slaves, plus $20 for every month he had had them, $50 for the lost clothes, plus the costs of prosecution. In sum, she claimed she was owed $37,893.43 in damages. Philippon, who was a wealthy planter, employed a lawyer who challenged the petition on technical grounds and claimed that the petition did not comply with the new legal procedures. From there, the records of the case trail off. This was not the first time Mme. Lanusse accused an area planter of stealing her one of her enslaved people. In 1826, she accused William Flanakin of absconding into the Arkansas

Territory with Toby, one of her younger enslaved people. She went as far as to hire a

Little-Rock attorney to pursue a suit against Flanakin so that she could regain control of

Toby.69 Although the ultimate outcome of both the cases are unknown, what is known is that compensation for her loss of property mattered enough to Widow Lanusse that she was willing to take other powerful planters to court and accuse them of taking her slaves.70 Such bold accusations and direct challenges almost certainly brought her own

69 Marie Celeste Lanusse (nee Macarty) v. William Flanakin, 1826, Territory Briefs and Records, Superior Court of Arkansas, University of Arkansas at Little Rock, William H. Bowen School of Law, Territoral Briefs and Records, accessed September 4, 2016, http://144.167.100.214/arcourts/case-061/61.1.htm. 70 Celeste Macarty, Widow of Paul Lanusse v. Philippon; Bureau of the Census, “United States Census, Population Schedule, Louisiana, St. Bernard,” 1830. 236

management of slaves under scrutiny. It probably did not help matters that, in addition to accusing area men of stealing her slaves, she also brought five other civil suits against local New Orleanians.

Although Delphine Macarty does not seem to have accused any area men of stealing her slaves, she did use the legal system to her full advantage. Unlike her deceased husbands, Mme. Lalaurie was much more financially adept. During the thirteen-year period that followed her second husband’s death, she salvaged her dower from her husband’s creditors and more than doubled the size of her estate, in part by crafting lucrative land deals that were often to the disadvantage of area men.71 Even after she remarried and became Mme. Lalaurie in 1828, she refused to let her much younger and socially weaker husband take the reins of her estate and remained active in the management of her plantation and real estate dealings.72 Delphine Macarty can be found brokering land and loan deals with area men. When men defaulted on their payments, she took them to court, and if they could not come up with the payment, she used the law to evict them and charge them rent for the time they had spent on her

71 “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 73,” July 9, 1816, NARC; Reiterted in: “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 72,” January 17, 1816, NARC; “Inventory of the Succession of Jean Blanque, Acts of Pierre Pedesclaux, Vol. 71,” November 10, 1815, NARC; Also in: Widow Blanque v. Syndics of the Creditors of Jean Blanque; “Marriage Contract between Delphine Macarty and Louis Lalaurie, Acts of F. de Armas, Vol. 13,” January 12, 1828, NARC; See also: Long, Madame Lalaurie, Mistress of the Haunted House, 49, 52. 72 “Marriage Contract between Delphine Macarty and Louis Lalaurie, Acts of Felix de Armas, Vol. 13.” 237

property.73 For example, in 1829, Delphine Macarty sold land in New Orleans to Thomas

Cahallin. Cahallin took immediate possession of the lot, agreeing to pay four hundred dollars, with interest payable at six and twelve months. But, according to Delphine

Macarty’s petition, Cahallin failed to make the scheduled payments. She claimed that although she “often amicably requested” that Cahallin fulfill the conditions of the agreement, he refused. Cahallin tried to obfuscate his obligation to pay Macarty by claiming that he, Cahallin, had entered into a separate deal with a man named Joseph

O’Rames and that Joseph O’Rames told Cahallin that he would pay Cahallin’s debts to

Macarty for him. Still, Macarty received no payment for the land she sold Cahallin.

Delphine Macarty requested that the court require Cahallin return the lot to her, pay two hundred dollars in damages, plus the cost of the suit she brought against him. On

January 10, 1831 judgment was rendered in Delphine Macarty’s favor. The lot was returned to her and she was awarded a thousand dollars for damages and court costs.74

73 In these cases, the only role Delphine Macarty’s new husband, Louis Lalaurie, was to lend his name to add legitimacy to the claims. Otherwise, Louis Lalaurie seems to have had no role in her financial decisions. Almost immediately after their marriage, Jean Boze, who was Mme. Lalaurie’s neighbor, wrote that the two did not “have a happy household; they fight, often separate, and then return to each other, which would make one believe that someday they will abandon each other completely.” Jean Boze was right on one aspect, their marriage in a traditional sense, did not last long. In 1832, she successfully sued Dr. Lalaurie for a separation in bed and board, after she claimed that he had abused her. But although, the two obtained a separation, and Dr. Lalaurie even set up a separate residence the two still came occasionally cohabitated. Their temporary reconciliations were notorious. And while notarial records show that she gained control over the majority of the couple’s assets, including the French Quarter mansion and the majority of the slaves, Lalaurie was stated to be “present and accepting for his wife” and his signature appears next to hers on later notarial acts. “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC; Delphine Macarty v. Louis Lalaurie. Acts of Felix de Armas, April 11, 1833, vol. 38, act 183, NARC, New Orleans. The Bee, April 12, 1834. 74 Delphine Macarty (wife of L. Lalaurie) v. Thomas Cahallin. 238

Both women had been from powerful families and were clearly concerned about protecting their property, but they seemed to miss or ignore some of the important rules of social etiquette that were necessary to preserving a reputation and long-term credit in their new economy. There was a careful balance businessmen and women in the early nineteenth century had to strike. They had to manage their assets but not come off as too aggressive and alienate to many indebted neighbors. Historians have shown that across the Atlantic, merchants would only selectively go after those debtors who they could afford to alienate.75 Both women came off as too aggressive and too protective of their property. In an environment where property was hotly pursued and men of the ancienne population were accused of being particularly bad at business, women like Mme. Lanusse and Delphine Macarty, who emasculated area men by making several disparaging legal accusations and/or accumulating wealth at the expense of area men, seem to be especially threatening and vulnerable to accusations of problematic property management. Both Mme. Lanusse and Delphine Macarty appear to have, in their many lawsuits, misstepped and alienated the wrong people. By the late 1820s, these factors seem to have helped make these women the target of intense gossip, even amongst the ancienne population.

75 Edwards, The People and Their Peace; Serena Zabin, Dangerous Economies: Status and Commerce in Imperial New York (Philadelphia: University of Pennsylvania Press, 2009); Ellen Hartigan-O’Connor, The Ties That Buy: Women and Commerce in Revolutionary America (Philadelphia: University of Pennsylvania Press, 2009). 239

These elite and litigious women of the ancienne population eventually became the subjects of gossip amongst men of the ancienne population as well. However, the discussion did not just center around their treatment of slaves, but also the new

American laws that made it more difficult to prosecute slave abuse. The earliest accounts of rumors amongst the ancienne population that Mme. Lanusse and Delphine Macarty abused their slaves come from the 1828 letters of Jean Boze. Jean Boze, who was a local business manager and plantation overseer who worked for a French nobleman. Boze wrote frequently to his employer. In addition to keeping his employer abreast of the daily affairs of the plantation, he shared the city’s gossip, including stories about the slave abuse. According to widespread gossip amongst the ancienne population, Mme.

Lanusse had begun to develop a reputation for having a “cruel nature with her slaves”.

He also noted that Delphine Macarty, then known as Widow Blanque, was criminally charged with abusing her slaves, but that because of her wealth and the flexibility of the new laws, she “had always managed to free herself from it.”76

76 “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC; Also quoted in Dessens, Creole City 152. Some sources—emanating from American and European—travel literature also claim that she was criminally convicted but had friends and family members buy the slaves at auction and return them to her. And, according to A Digest of the Civil Laws Now In Force in the Territory of Orleans, a slave-owner could be compelled by the courts to sell their slaves at public auction, if they were convicted by a judge of cruel treatment toward their slaves. The intention of this punishment was “place [the slaves] out of reach of the power which [their] master has abused.” If this story about her ability to circumvent the legal repercussions is true, it would also help explain why New Orleanians were so quick to act with vigilante violence instead of leaving the matter to the courts... “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC; Martineau, Retrospect of Western Travel, vol. 1: 263; Herbert Asbury, The French Quarter: An Informal History of The New Orleans Underworld, 247–51; Dessens, Creole City, 21, 151–52. A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government (New 240

Jean Boze was correct that the new slave codes made it more difficult to secure convictions for slave abuse, in particular because a prosecuted owner could clear himself by “his own oath.” 77 This provision drastically weakened the law and made clear that in the eyes of state law, masters were the ultimate authority with respect to the discipline of their slaves. According to rumors amongst the ancienne population, Delphine Macarty employed this loophole to clear her own name.78 Although known surviving criminal minute books do not present any evidence that Delphine Macarty was criminally charged, there is some evidence buried in a civil suit that she brought against John R.

Grymes that seems to corroborate the rumors. Macarty’s civil suit records include a receipt that shows she paid the American attorney John R. Grymes for legal defense in a criminal matter in 1829. The receipt does not specify the criminal accusations, but it does note that it was a criminal matter.79

Orleans: Bradford & Anderson, 1808), 42. Latrobe claimed Mme. Lanusse had also come under judicial scrutiny and local a man testified about her barbarous behavior to a grand jury. However, the complaint, which had been made while her husband was still living, had been hushed up out of respect for her husband, which shows that local men showed sensitivity for Mr. Lanusse, the patriarch, but certainly not for the slaves. Latrobe, Impressions Respecting New Orleans; Diary & Sketches, 1818-1820, 54. The known surviving criminal minute books or the notarial records of the period do not corroborate either story that Mme. Lanusse or Delphine Macarty were criminally changed or convicted with slave abuse. 77 Lislet, A General Digest of the Acts of the Legislature of Louisiana, 118; Similarly noted in: Schafer, “’Details Are of a Most Revolting Character,’” 242. 78 Armand Saillard, Les Adeventures Du Consul de France de New Orleans À Carthagene, ed. Max Dorian and Dixie Reynolds (La Rochelle, France: Editions Navarre, 1981), 101–3; Long, Madame Lalaurie, Mistress of the Haunted House, 97. 79 Specifically, the receipt states: “Rec’d of Mme. Lalaurie Three Hundred Dollars for my fee for defending the prosecution of the state against her in the criminal court – signed John R. Grymes.” Delphine Macarty v. John R. Grymes. Later reports from the travel literature of Harriet Martineau and Fredrika Bremer claimed that neighbors suspected abuse because they could hear screaming coming from the home. Martineau, Retrospect of Western Travel, vol. 1: 264; Fredrika Bremer, Homes of the New World: Impressions of America, 2: 241

Although Macarty may have been able to skirt court sanctioned penalties, New

Orleanians recognized there were other venues of justice that could be use to exact punishment and send a message when an offending community member breeched the peace. New Orleanians seemed to believe that Mme. Lalaurie got her due punishment on April 10, 1834 when one of Mme. Lalaurie’s enslaved women set fire to her French

Quarter mansion, and ended her tenure as an elite New Orleans’ resident and prominent businesswoman. As crackling flames broke through her home and cast off pillars of dark smoke, New Orleanians rushed to the scene. According to an ancienne population newspaper, local men, who stated that they long believed that she managed her slaves with the same fierceness that she managed her business, claimed that once they entered the home to extinguish the fire, their suspicions were confirmed. Local newspapers reported that witnesses claimed to find evidence of cruelty toward the

Lalauries’ slaves.

After years of rumors and strained toleration of Mme. Lalaurie’s litigious and nonconforming behavior, locals seem to have seized upon the fire, set by an enslaved woman, as an opportunity to enter her home and create claims that would ensure her

244. Family sources printed nearly a hundred years later claimed that it was Dr. Lalaurie’s primitive orthopedic treatments that he used to treat Delphine Macarty’s crippled daughter, not the torture of the family’s slaves that accounted from the screams emanating from the family home. “DeBuys Family Papers”, Special Collections, Howard-Tilton Memorial Library; Long, Madame Lalaurie, Mistress of the Haunted House, 58. 242

punishment.80 In reaction to this discovery, New Orleanians bore down on her with public condemnation and vigilante vengeance. After a mob nearly tore down her ornately furnished home and forced her and her family to flee to France, local papers reported that she and her weak husband had received the “punishment they so richly deserved.”81 Mme. Lalaurie’s story spread quickly from New Orleans, across the South and into the North, and became both a national sensation and infamous cautionary tale, especially to white creole women in New Orleans.82

Mme. Lalaurie’s vulnerability in the new social order is apparent in the fact that slave-owning New Orleanians were willing to reinterpret the fire set by Mme. Lalaurie’s slave as a justified act of desperation, instead of a dangerous act of insurrection, as they

80 When local men, some of whom, Mme. Lalaurie had been in property disputes with, entered the home an elderly enslaved woman confirmed what they had already wanted to believe. She claimed she and her fellow bondsmen had endured the harsh management of her creole mistress long enough. She set fire to Mme. Lalaurie’s home to capture the attention of the city. The elderly slave almost certainly knew that although most cases of slave abuse were never prosecuted, but she hoped to capitalize on the increasing unpopularity of her litigious mistress. Her gamble paid off. 80 The neighborhood men saw the condition of Mme. Lalaurie’s slaves as an opportunity for reprisal against Mme. Lalaurie. The Bee, April 11-12, 1834. 81 Interestingly, none of the New Orleans newspaper accounts held Louis Lalaurie even partially responsible. His absence is conspicuous given that newspaper accounts claimed Louis Lalaurie was present at the French Quarter home during the fire and even obstructed the rescue of the slaves; the rumors of slave abuse did not start until her marriage to Louis Lalaurie; the era of patriarchy and paternalism should have held him as head of the home and responsible for the female behavior within; and Madame Lalaurie had successfully sued him three years early for long term spousal abuse. The Bee, April 11-12, 1834; Le Courrier de La Lousiana (Louisiana Courier), April 10, 1834; Louisiana Advertiser, April 11, 1834; “Vengeance Du Ciel! Decouverte D’un Grand Crime/Revenge of Heaven! Discovery of a Great Crime,” L’Abeille, April 11, 1834; “Affaire Lalaurie,” L’Abeille, April 12, 1834. 82 See, for example: Baltimore Gazette & Daily Advertiser, Baltimore, MD, April 26, 1834; American, New York, NY, April 28, 1834; Evening Post, New York, NY, April 28, 1834; Eastern-Shore Whig & People’s Advocate, Eastern, MD, April 29, 1834; The Alexandria Gazette, Alexandria, VA, April 30, 1834; “Revolting Details,” Philadelphia Inquirer, Philadelphia, PA, April 30, 1834; The Liberator, Boston, MA, May 3, 1834; “Cruel Treatment of Slaves,” Norfolk Advertiser, Dedham, MA, May 3, 1834; New-Hampshire Gazette, Portsmouth, NH, May 6, 1834; “Slavery,” American Advocate, Hallowell, ME, April 11, 1834. 243

might otherwise have done, particularly if the property had been owned by a white man. According to witnesses, Judge Canonge and a group of men found “Seven slaves more or less horribly mutilated.” Judge Canonge’s contemporaneous statement, and, subsequent deposition emphasized not the details of the abuse, but the “mutilation” of the slaves. His careful choice of words indicates that he likely tried to fit his testimony neatly within the framework of sections 16 and 17 of the Black Code, which allowed criminal prosecution for “mutilation, severe-ill treatment, or killing of a slave.”83 The language of “mutilation” was particularly important because other eye witnesses generally noted that the slaves had been confined, chained and exhibited cuts that correlated with whip marks, all of which constitute permissible forms of discipline under the Black Code.84 On the other hand, mutilation, a subjective term, was expressly forbidden by the Black Code. Within hours, the story that pinpointed Mme. Lalaurie as the culprit of abuse spread through the city and caught the attention of newspaper editors, city officials, and thousands of New Orleanians.

Although there is evidence in newspapers that Judge Canonge may have hoped to provoke legal prosecution, other New Orleanians, including some men of law, were complicit in extralegal violence against Mme. Lalaurie. The New Orleans sheriff, for

83 Lislet, A General Digest of the Acts of the Legislature of Louisiana, 118; Similarly noted in Schafer, “’Details Are of a Most Revolting Character,’” 242. 84 Many reported the slaves had been undernourished but this was not uncommon throughout slavery. In his interviews, Frank Bell claimed he was often not provided with food and in order to survive he had to eat the scraps customers left behind. Interview with Frank Bell, Texas Narratives, vol.16, pt. 1, pp. 59-61. 244

instance, did not interfere until the next morning, which allowed rioters more than twelve hours to enter the Lalaurie home and cause significant property damage.85 The

Bee reported that sheriff Holland had decided to intervene only after the rioters had threatened to pursue other New Orleanians who were rumored to be cruel to their slaves.86 To New Orleanians, including some of those in the ancienne population, the extralegal venues of vigilante violence and discursive punishment became necessary venues of justice because many feared she could use the legal system to her advantage as she had in the past. Armand Saillard, the French Consul to New Orleans, claimed that

“if she reappeared before the criminal court, a new perjury would still be enough to exonerate her.”87

Even after the mob had successfully exiled Mme. Lalaurie and her family, discursive punishment of Mme. Lalaurie continued in southern, mid-Atlantic, and northern newspapers. Much of the newspaper coverage seems to have focused on Mme.

Lalaurie’s gender, just as much as they focused on the claims of abuse. L’Abeille de la

Nouvelle Orleans (the French version of The Bee, which used different imagery to condemn Lalaurie), illustrated the connection between the terror of the image of the abused slaves and the horror of having discovered that a woman implemented the abuse. L’Abeille de la Nouvelle Orleans deemed her a “Monster” and ominously claimed:

85 The Bee, April 12, 1834. 86 The Bee, April 12, 1834; The Louisiana Advertiser, April 12, 1834; The Bee, April 15, 1834 . 87 Armand Saillard, Les Adeventures Du Consul de France de New Orleans À Carthagene, 101–3; Long, Madame Lalaurie, Mistress of the Haunted House, 97. 245

“She will not dare longer, engage in acts of cruelty that make one shudder especially when they are exercised by a woman…it was not yet known how far could the barbarity of female executioner could go… It was hoped that the flames would be vengeance for many plans made by the woman who dishonored her sex.”88 Similar language was used in Connecticut’s The New-London Gazette as the writer claimed surprise and disbelief that an “inhuman wretch could have been found in existence in a civilized community…and could much less have thought that the wretch existed in the form of woman!” 89 The language implies that writers would have been more understanding if such violence came at the hands of a man, who, thanks to prevailing cultural gender narratives, were cast as the ones with the authority to enact violence both in the name individual discipline and for the broader project of white patriarchal supremacy.

Other women of the ancienne population were caught in the wake of popular fury.

A little over two months later, New Orleanians publicly accused another creole woman,

Mrs. Pardos, of “revolting cruelty” toward her female slave.90 Newspapers from

88 The Bee, April 11-12, 1834.; L’Abeille, April 12, 1834. Other area newspapers printed similar stories that ran for multiple days, often spinning out of control. One article in The Louisiana Advertiser alleged that once the seven slaves had been removed from the Lalaurie house and taken to the Cabildo, they were given food. Two ate too rapidly and died the next day. The newspaper also claimed that rioters had dug up the Lalaurie’s yard and found the remains of slaves. Three days later, a retraction was printed that clarified that no slaves had died since being confiscated, nor had any remains been found in the Lalaurie yard. The Louisiana Advertiser, April 12, 1834. The Bee, April 15, 1834. As eyewitnesses seem to contain the same hyperbolic language. When the slaves were removed from the house and taken to the Cabildo, one man Armand Saillard, the French Consul said he saw a slave who’s head appeared dislodged. He may have been accounting for Françoise, the slave known as “the hunchback.” Long, Mistress of the Haunted House, 80. 89 The New-London Gazette and General Advertiser, May 7, 1834, New-London Connecticut. 90 The Bee, June 25, 1834. 246

Alexandria, Virginia to Hallowell, Maine covered the various stories.91 Besides this public condemnation, very little else is known about Mrs. Pardos. Not long after Mme.

Lalaurie was exiled and Mrs. Pardos was publically accused, Mme. Lanusse joined her cousin Mme. Lalaurie and moved to France as rumors spread amongst the ancienne population that she would be next. Jean Boze claimed that on the day of the riot at the

Lalaurie home, the mob also began to search for Mme. Lanusse and “If [the mob] had been able to discover any property belonging to her, she would have undergone the same fate as Madame Lalaurie.” 92

As American men and men of the ancienne population vied for control over the state and over property in the area, community members overlooked the inherent violence of slavery in general and instead promoted the idea that only a few members of the community were problematic slaveholders. Although women like Nanette Duparc,

91 For articles covering Mme. Lalaurie, see for example: Baltimore Gazette & Daily Advertiser, Baltimore, MD, April 26, 1834; American, New York, NY, April 28, 1834; The Evening Post, New York, NY, April 28, 1834; Eastern-Shore Whig & People’s Advocate, Eastern, MD, April 29, 1834; The Alexandria Gazette, Alexandria, VA, April 30, 1834; “Revolting Details,” Philadelphia Inquirer, Philadelphia, PA, April 30, 1834; The Liberator, Boston, MA, May 3, 1834; “Cruel Treatment of Slaves,” Norfolk Advertiser, Dedham, MA, May 3, 1834; New- Hampshire Gazette, Portsmouth, NH, May 6, 1834; “Slavery,” American Advocate, Hallowell, ME, April 11, 1834.; For articles covering Mrs. Pardos, all reprinted from The Bee of June 26, 1834, see for example: The Alexandria Gazette, Alexandria, VA, July 12, 1834; “Barbarity,” American Traveller, Boston, MA, July 15, 1834; The Camden Mail, Camden, NJ, July 16, 1834; New-Bedford Gazette and Courier, New Bedford, MA, July 21, 1834; American, New York, NY, July 25, 1834; National Gazette, Philadelphia, PA, July 26, 1834; The New-York Evangelist, New York, NY, July 26, 1834; New York American, New York, NY, July 29, 1834; Albany Argus, Albany, NY, August 1, 1834; Providence Patriot and Columbian Phoenix, Providence, RI, August 2, 1834; The Jerseyman, Morristown, NJ, August 13, 1834. 92 “Ste-Gême Family Papers, 1799-1904” (MSS 100), THNOC. See also Long, 96, 130. Baltimore Gazette and Daily Advertiser, July 9, 1835. Reprinted from the New Orleans Bee, June 25, 1834. Widow Lanusse v. Julian Dufart; Celeste Macarty, Widow of Paul Lanusse v. Philippon; Celeste Macarty (Widow Paul Lanusse) v. Agathe Fauchon (F.W.C.); Celeste Macarty v. John Minturn; Celeste Macarty v. Jean Lanna. 247

of chapter one and two, had been able to, and could still be able to some extent, assume an active role in the management of their family businesses and homes, as Louisiana developed into an American state and the social, legal, and economic environment changed, making more independent forms of management more difficult for women.

Although free white men of the nineteenth century cast Mme. Lalaurie and other white creole women as exceptionally violent, slaves did not. Corporal violence was so pervasive that slaves did not draw distinctions in treatment between Americans and creoles, nor for that matter did they see much of a difference between masters and mistresses. Slaves reported cruel treatment at the hands of many slaveholders, revealing that violence was endemic to the institution itself without regard for socially constructed white hierarchies.93 Instead of proving that white creole women were exceptionally cruel mistresses, these accusations and accompanying threats of violence say more about the precarious situation of American men’s and men of the ancienne population’s own authority in society and over slaves.

The accusations and attacks on these women served as a cautionary tale to other slaveholding women and, in addition to broader ethnic and gender battles for power and property, seem to have had a discernable impact on women’s ability or willingness to control the South’s most valuable forms of property—land and enslaved people. The seven cases of public condemnation correlate with another important trend, a decrease

93 Glymph, 88-89. 248

in the number of female slaveholders. For example, over 600 samplings from 1820 to

1850 census records indicate that the city of New Orleans saw a noticeable decrease in

the percentage of female-headed households owning slaves. In 1820, slaveholding

female-headed households made up approximately 21% of the city’s entire slaveholding

population, but by 1850, slaveholding female-headed households only comprised

around 14% of the city’s entire slaveholding population.94 This trend suggests that the

struggle for control between Americans and the ancienne population did not result solely

in explosive instances of punishment, as in the case of Mme. Lalaurie and Mrs. Pardos.95

More broadly, it shows that a woman who managed such large amounts of property in

and around a burgeoning city in which American men and men of the ancienne

population fought to claim their own, drew uncomfortable scrutiny and, it seems,

encouraged some women to cede, if not control, then at least the title of these valuable

forms of family property to other men.

94 1820 New Orleans City Federal Census; 1850 Orleans Parish Slave Schedules – District 3 Federal Census Records. 95 Thomas Morris sees a similar pattern continue in the lower courts outside of New Orleans in the 1840s and 1850s, although the accusations seem to taper off. Two female slave owners in the records, the outcome of the case is unclear. Male acquitted. In St. Landry’s Parish, a women named Elizabeth Rabassa was accused of beating her slave Martha “with stick, stones, hot irons and knives.” Elizabeth defended her actions by claiming that Martha had a long history of uncontrollable, vicious behavior and that Martha’s previous owner had severely beat her for theft. Rabassa claimed that the beating she had given Martha was “‘as house keepers generally chastise their servants but never cruelly.’” Shortly after the case began, there was a mistrial. Rabassa posted a bond to appear seven months later. She did not appear as she had promised to and eight months later an execution was issued against her property for the bond and costs. In 1850 Felonise Isreal Lapointe was charged in a second case. She was accused of “cruelly mutilate, beat, ill treat and [inflict] other punishments” a seven year-old slave girl but the case trails off there. The only other case Morris highlights is of William Rawley, who, on the other hand, was acquitted of a charge of cruel ⁠ punishment in 1845 in West Felic iana Parish. Morris, Southern Slavery and the Law, 1619-1860, 147. 249

Conclusions

After touring much of the eastern coast of the U.S. in the early 1830s, Harriet

Martineau wrote in her book Society in America that: “…I never met any lawyer, or other citizen with whom I conversed on the subject, who was not ashamed of the barbarism of the law under which a women’s property goes into her husband’s hands along with herself.”1 Although some men, including the practitioners and makers of law, expressed sympathy for white women and their limited ability to control property, particularly in marriage, literature on the early nineteenth century has shown that it was chiefly the self-interest of these state lawmakers that eventually motivated them to pass new laws to increase free white women’s control over property.

Scholars have long argued that the disastrous financial panics, which plagued the first half of the nineteenth century, paved the way for the early Married Women’s

Property Acts. In the early 1800s, most economic downturns occurred following speculation in commodities, especially cotton, and in productive assets, particularly land and enslaved people. Enslaved people were of course, the victims who suffered the most from ensuing foreclosures, which often forced permanent separation from their parents, children, or friends. But it was white male constituents who were in the position to

1 This well-known and often cited quote is frequently used as evidence that propertied women in civil law states faired better than propertied women in common law states, as Martineau was speaking specifically about the common law after having visited Louisiana. But the line also reveals that at least some practitioners and lawmakers themselves recognized that broader legal gender discrepancies in property ownership could be problematic. Harriet Martineau, Society in America, vol. 3 (London: Sauders & Otley, 1837), 122. 250

demand relief. During this time, state legislators, many of whom were planters who became insolvent themselves, struggled to create a set of laws that would balance the interests of both creditors and a broader base of voters. On one hand, state legislators had to craft policies to convince creditors to invest their wealth by reassuring them that they would be able to recover it. On the other hand, state legislators also sought to create policies that would shelter their constituents from the worst effects of periodic economic downturns.2

By the late 1830s, several state legislators realized that many of the recently developed laws that helped augment white male individual authority over household property could have detrimental effects for the whole household, especially in times of economic downturns. Ironically, to address pressing concerns about the broader family’s well-being, early women’s rights activists and some politicians of the era appealed to the same framework of individual property rights that had, in part, been responsible for

2 See, for example: Peter Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (Madison: State Historical Society of Wisconsin, 1974), 16–30; Basch, Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell University Press, 1982), 154; Richard Chused, “Married Women’s Property Law: 1800-1850,” The Georgetown Law Journal 71 (1982): 1361, 1401–2; Marylynn Salmon, “Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730 to 1830,” The William and Mary Quarterly 39, No. 4 (October 1982), 660; Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York: W. W. Norton & Company, 1984), 57, 60; Carole Shammas, “Re-Assessing the Married Women’s Property Acts,” Journal of Women’s History 6, no. 1 (Spring 1994): 11; Woody Holton, “Equality as Unintended Consequence: The Contracts Clause and the Married Women’s Property Acts,” The Journal of Southern History 81, no. 2 (May 2015), 315–18, 324. Holton argues that the Married Women’s Property Act of Mississippi arouse, in part, as a last resort, because the 1787 U.S. Constitution (namely Article I, Section 10 - “Obligation of Contracts”) banned states from safeguarding debtors through relief measures of the sort politicians had often adopted in the 1780s, including commodity payment legislation (which allowed debtors to pay off their creditors with property other than the scarce gold and silver) and stay laws (which temporarily protected debtors’ property from seizure by their creditors). 251

augmenting white men’s power over property. Politicians and women’s rights activists asked legislators to extend more individual property rights to white women.3

The appeal to the framework of individual property rights was hardly a unique political strategy. Scholars have shown that a range of people, including enslaved people themselves, made appeals to individual rights to advocate for freedom over themselves and their property.4 But propertied white women had the advantage of being intimately connected to white propertied politicians through recognized family bonds. And although enslaved people often shared households and sometimes relations with their propertied white owners, they were rarely recognized as family members on equal footing with white members. As a result white women benefitted most from legislation that provided some protections for their dispositional control over property, especially enslaved people.

In 1839, Mississippi became the first common law state to pass protective legislation for married women, but to be sure, the act was limited.5 Mississippi’s

3 Basch, In the Eyes of the Law, 116, 172–74; Lebsock, The Free Women of Petersburg, 57; Elizabeth Warbasse, The Changing Legal Rights of Married Women, 1800-1861 (New York: Garland Publishers, 1987); 150–51; Shammas, “Re-Assessing the Married Women’s Property Acts,” 26; Holton, “Equality as Unintended Consequence,” 329–30. 4 Shammas, “Re-Assessing the Married Women’s Property Acts,” 26; Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009); Laura Edwards, “The Contradictions of Democracy in American Institutions and Practices,” in Re-Imagining Democracy in the Age of Revolutions, ed. Joanna Innes and Mark Philp (Oxford University Press, 2013), 40–54. 5 Warbasse, The Changing Legal Rights of Married Women, 1800-1861, 137–138, 159n2; Richard Chused, “Married Women’s Property Law,” 1399; Michael Dougan, “The Arkansas Married Women’s Property Law,” Arkansas Historical Quarterly 46 (Spring 1987), 17, 25; Holton, “Equality as Unintended Consequence,” 252

legislation, like other southern states’ marital property legislation before the Civil War, focused on enslaved property to the near exclusion of other kinds of property.

Historians have argued that legislators focused on protecting wives’ property in slaves because creditors frequently seized enslaved people brought to or inherited in marriage.

Enslaved people were uniquely vulnerable to confiscation because they were both mobile and of high value. The married women’s property acts did not protect wives’ land from seizure for the simple reason that their land was already protected. In states across the U.S., married women were permitted to own land, and while they could not manage or profit from it during their marriage, no one could take it without their consent.6 By allowing the wife to maintain the title to the enslaved people she had brought to or inherited in marriage, lawmakers ensured that the disposition of this valuable property was shielded from creditors (chiefly her husband’s).

Mississippi’s 1839 Married Women’s Property Act also reflected the self-interests of state lawmakers, as husbands, and to some extent, the creditors with whom state

314n4. Interestingly, according to Warbasse and Holton, the bill that was proposed was far more expansive in granting married women rights than the act that passed. Holton has called the proposed bill a “visionary document” as it would grant married women in Mississippi the right to retain all the property she owned on her wedding day and all the money she earned and all the gifts she inherited afterwards. She would also gain dispositional authority over all the money generated by these assets. Moreover, she would gain that statutory right to draw up a last will and testament. 6 The Territory of Arkansas and Maryland also passed legislation that titled wives to enslaved people to the near exclusion of other kinds of property. T.J. Fox Alden and J.A. Van Hoesen, A Digest of the Laws of Mississippi, Comprising All the Laws of a General Nature, Including the Acts of the Session of 1839 (New York: Alexander S. Gould, Printer, 1839), 920–21; Richard Chused, “Married Women’s Property Law,” 1398–1400; Dougan, “The Arkansas Married Women’s Property Law,” 17, 25; Warbasse, The Changing Legal Rights of Married Women, 1800-1861; Holton, “Equality as Unintended Consequence,” 314–15. 253

lawmakers were trying to negotiate. The law did not allow a wife complete control over her enslaved people. Instead, lawmakers crafted the legislation in a fashion that made enslaved people more like land in the sense that while it allowed wives to keep the title to the slaves that they brought to or inherited in marriage and prevented anyone from taking the slaves without consent, the management of the enslaved people still legally belonged to their husbands. Lawmakers, many of whom were married to women who had brought enslaved people to or inherited enslaved people in marriage, benefited from the structure of the law. As husbands, they could still legally manage a wife’s enslaved people, but their creditors could not seize the enslaved people if the couple became finically insolvent. Mississippi’s 1839 Married Women’s Property Act then ultimately ended up looking much like Louisiana’s civil codes that counted the enslaved people and the land that a wife inherited in or brought to marriage as her “immovable property.” Wives had dispositional authority over their “immovable property.” Neither her husband or creditors could seize the property from her without her consent. 7 Still, lawmakers tried to incorporate the interests of creditors into the new legislation.

Enslaved people and other types of property that a wife received from her husband, after their marriage, did not belong exclusively to her. Postnuptial gifts could be seized

7 A Digest of the Civil Laws Now In Force in the Territory of Orleans, with the Alterations and Amendments Adapted to Its Present System of Government (New Orleans: Bradford & Anderson, 1808), 332, 336; Sundberg, “Women and Property in Early Louisiana,” 648. 254

by creditors.8 In other words, lawmakers tried to prevent husbands from sheltering property from their creditors by gifting property to their wives after business deals soured.

Certainly, the Married Women’s Property Acts did not solve all or even address the range of social and legal issues that arose when white propertied women—married or single—saw their authority challenged. To be sure, scholarship has shown that the passage of early Married Women’s Property Acts in the South were almost certainly more a self-interested debtor relief law for the white male propertied legislators, than an act to promote martial equality.9 Moreover, it took years before all states passed legislation to allow married women to retain formal rights over property brought to or inherited in marriage.10 Even then, scholars have debated whether or not these early

8 Holton, “Equality as Unintended Consequence,” 334. 9 Chused, “Married Women’s Property Law,” 1400–1404; Warbasse, The Changing Legal Rights of Married Women, 1800-1861, especially chapter four; Shammas, “Re-Assessing the Married Women’s Property Acts,” 24; Holton, “Equality as Unintended Consequence,” 334; Joshua Rothman, “The Contours of Cotton Capitalism: Speculation, Slavery, and Economic Panic in Mississippi, 1832-1841,” in Slavery’s Capitalism: A New History of American Economic Development (Philadelphia: University of Pennsylvania Press, 2016), 122– 45. 10 Scholars have shown that early legislative efforts to enhance married women’s control over property were not always permanent or complete in states throughout the South in the first half of the nineteenth century. While some states throughout the South followed Mississippi’s lead and passed similar protective legislation, others toyed with similar measures but ultimately waited. For example, as a Territory, Arkansas had passed similar legislation before Mississippi in 1835. But, the law did not initially pass over into statehood. Although the Arkansas legislator passed a bill in 1840, modeled closely after Mississippi’s Married Women’s Property Act, Arkansas’s Governor Archibald Yell vetoed the bill. Yell’s veto claimed that granting legal rights to women would destroy the family. Dougan, “The Arkansas Married Women’s Property Law”; Holton, “Equality as Unintended Consequence,” 314; The Carolinas were also slower to adopt state-level legislation to protect married women’s property rights until after the Civil War, when their property in enslaved people was made obsolete, in large part, by enslaved people themselves. Chused, “Married Women’s Property Law,” 1366–1367n27; “Constitution of North Carolina,” March 17, 1868, accessed September 27, 2017, http://www.ncleg.net/library/Documents/Constitution_1868.pdf; The 255

legislative changes actually made any practical difference for women in the years leading up to the Civil War.11 Nevertheless, their development does reveal that white lawmakers recognized that the legal system they built had indirectly and unintentionally jeopardized their own wealth, as they made it more difficult for women of their same class to retain formal control over their property, when their control was disputed. Lawmakers recognized that the legal changes that had helped augment their and a broader class of white men’s authority over property, had different consequences for their white female family members. And the wealth of their female family members, in turn, affected them. More legislation, they decided would not help only their female family members retain wealth, but themselves as well.

Honorable K. Edwards Greene, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” The Campbell Law Review 18, no. 2 (Spring 1996): 205. 11 Suzanne Lebsock, “Radical Reconstruction and the Property Rights of Southern Women,” The Journal of Southern History 43, no. 2 (1977): 197; Basch, In the Eyes of the Law, 9; Richard Chused, “Late Nineteenth Century Married Women’s Property Law: Reception of the Early Married Women’s Property Acts by Courts and Legislatures,” American Journal of Legal History 29 (1985): 3–35; Nancy Cott, The Grounding of Modern Feminism (New Haven: Yale University Press, 1987), 186–87; Shammas, “Re-Assessing the Married Women’s Property Acts.” 256

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Mississippi Free Trader and Natchez Weekly Gazette (Natchez, Mississippi)

National Gazette (Philadelphia, Pennsylvania)

New-Bedford Gazette and Courier (New Bedford, Massachusetts)

New-Hampshire Gazette (Portsmouth, New Hampshire)

New-Orleans Argus (New Orleans, Louisiana)

New-York American, (New York, New York)

New-York Spectator (New York, New York)

Norfolk Advertiser (Dedham, Massachusetts)

Orleans Gazette and Commercial Advertiser (New Orleans, Louisiana)

Philadelphia Inquirer (Philadelphia, Pennsylvania)

Providence Patriot and Columbian Phoenix (Providence, Rhode Island)

Raleigh Register and North Carolina Gazette (Raleigh, North Carolina)

The Alexandria Gazette (Alexandria, Virginia)

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259

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Biography

Emily Margolis was born in Dayton, Ohio on June 28, 1984. She graduated magna cum laude from Kenyon College, in Gambier, Ohio where she earned a Bachelor of Arts after majoring in Honors American Studies. In 2012, she received Master of Arts in history from Duke University in Durham, North Carolina. Her academic honors include the William Nelson Cromwell Foundation Fellowship for Legal History (2014); a

Duke University Julian Price Endowed Dissertation Research and Writing Fellowship

(2012-2013); two Richard Watson Endowed Research Fellowships (2015, 2012); two Anne

Firor Scott Merit Awards (2011, 2014); and a Kenyon College Henry G. Dalton Endowed

Graduate School Fellowship (2009-2010).

291