Mrs. Dred Scott

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Yale Law Journal
Volume 106
Article 2
Issue 4Yale Law Journal
1997
Mrs. Dred Scott
Lea VanderVelde
Sandhya Subramanian
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Mrs. Dred Scott
Lea VanderVeldet and Sandhya Subramanian"
In the progression of American people toward freedom, the contributions
of one person whose life was central to that struggle have long been ignored:
Harriet Robinson Scott, "Mrs. Dred Scott."
Dred Scott v. Sandford' stands in infamy in American constitutional law
and the history of the Supreme Court. The Court denied Dred Scott's assertion
of freedom in sweeping language.2 Most work on this famous case focuses on
its conventionally significant features: the case itself, the legal records, the
judges and lawyers, their ideologies and biographies, and the significance of
the case in the Lincoln-Douglas debates, in the Civil War, in the
Reconstruction Amendments and in the Reconstruction Court. No one has
I Professor of Law and Faculty Scholar. University of Iowa College of La%% I %sould like to thank
Laura Cooper and her family for their hospitality as I read Laurence Taltaferro's papers in Minneapolhs
I would also like to thank Bill Nelson, Cass Sunstem. Leslie Schwalm. Medc Weiner. Jon Carlson.
Margaret Raymond, Thomas Shaw, and Paul Finkelman for insightful comments on earlier %ersionso f this
work. Research credit must go as well to Lisa Emesti. Bridgett Williams. John Searles. and Gerald Bosch.
who tackled some of the thorniest research issues with skill and aplomb.
It J.D., 1996, Yale Law School; Associate, 1996-97. Ropes & Gray: Clerk. 1997-98. Judge Thomas.
Ninth Circuit Court of Appeals. I would like to thank my parents and Charles McGuire for their patience
and support throughout the process of preparing this Article.
1. 60 U.S. (19 How.) 393 (1857).
2. In the 7-2 United States Supreme Court opinion by Justice Tancy. the Court held that
I. Congress had no authority to eliminate slavery in any of the federal temitones.
2. Dred Scott was not a citizen of the United States, nor was he permitted to use the courts of
the United States to sue for his freedom;
3. Because Congress had no authority to eliminate slaver in the federal temitones and because
Dred Scott was not a citizen of the United States, the federal courts did not hasc junsdiction over
Dred Scott's claim;
4. Dred Scott's residency in free temtory did not make him free because the 1820 .Mdissoun
Compromise violated the Fifth Amendment Due Process Clause by depnving slaveholders of their
property;
5. Dred's residence in another state, Illinois. had no effect on his status as a slae once he
returned to Missouri, at which point Missouri law. not Illinois law. applied
See id. at 452-54.
In its most infamous pronouncement, the Court majority maintained that "[Negroesi had for more than
a century before been regarded as beings of an inferior order, and altogether unfit to associate %kitht he
white rae ... and so far inferior, that they had no nghts which the white man %%as bound to respect
Id. at 407.
3. In fact, the Reconstruction Congress frequently stated that the purpose of constitutional reform was
to cure, as they called it, "Dred Scott-itus." See ALFRED ALVINS, THE RECO.STRLCTO*, AstF%D.%E.%""S"
DEBATES (1974). These facets of Dred Scott have been abundantly explored in both legal and historical
sources. See generally THE DRED ScOTT DEcISION (Stanley 1. Kutler ed.. 1967) (collecting pnmary and
contemporary legal and journalistic accounts of Dred Scott to construct "biography*" of case). WALTER
EHRLICH, THEY HAVE No RIGHTS: DRED SCOTr'S STRUGGLE FOR FREDom (1979) (Investigating
background of Dred Scott decision, including history of lawyers and judges inoled), DON E_
1033
1034 The Yale Law Journal [Vol. 106: 1033
focused on the eye of the hurricane: the quiet, silent family members whose
lives were at stake in that litigation.4 Dred Scott, the named plaintiff, died in
1858. Although a friend purchased Dred's freedom for him after his cause was
lost, he never saw the Jubilee, Emancipation, or the passage of the Thirteenth
Amendment. Harriet Robinson Scott, his lawfully wedded wife, did. She
brought her own case for freedom, a case that was submerged in his. She lived
through the protracted litigation, the fame and infamy that the case brought, the
purchase of freedom, the birth and raising of two children, her husband's
death, and finally, the Jubilee. Nonetheless, conventional history has relegated
her life to a footnote.
Focusing on Harriet's life highlights the nature of her contributions to
America's progress toward freedom. First, recognizing the precarious position
Harriet occupied at the intersection of multiple oppressions illuminates the
force of these oppressions and the contradictions among them. The malleability
of the identity categories that produced these oppressions-race, class, gender,
enslavement--exposes the arbitrariness of the conventional legal analysis that
determined slaves' fates from their residential histories.
The complexity of the forces at work in slaves' existences also allows us
to respond to the major mysteries that have surrounded the Dred Scott case:
Why did Scott, a formerly enslaved person in free territory return to a slave
state if, by doing so, he risked re-enslavement? Why would Dred Scott not
have taken one of the many opportunities that his extended sojourn in free
territory offered for escape? Moreover, if Dred prized his freedom so highly,
why would he not have filed his lawsuit in free territory rather than returning
to slave territory to sue for his freedom? What took him so long to decide to
assert his freedom?5 Harriet's presence and her life with Dred suggest answers
to these questions that transcend the usual dichotomies of slavery and freedom,
agency and helplessness.
Second, a proper understanding of Harriet Robinson Scott's distinct legal
claims exposes a crucial error in legal strategy made by the Scotts' lawyers:
They overlooked the legal theory based on Harriet Robinson Scott's personal
circumstances that would have made her case for freedom a stronger one than
her husband's. Facts and contexts matter. Conventional legal scholarship has
not inquired into the extent to which the Dred Scott decision hinged on the
FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLMCS (1978)
(situating Dred Scott in legal, political, and historical context and exploring case's significance in Civil
War, Reconstruction Amendments, and Reconstruction Court); VINCENT C. HOPKINS, DRED SCOTT'S CASE
(1951) (focusing on legal proceedings of Dred Scott); JOEL PARKER, PERSONAL LIBERTY LAWS, AND
SLAVERY IN THE TERRITORIES (Boston, Wright & Potter 1861); THEODORE CLARKE SMITH, PARTIES AND
SLAVERY, 1850-1859 (1906) (examining Dred Scott decision and its implications for Lincoln-Douglas
debates).
4. Photographs of Harriet, Dred, and their two daughters are reproduced at Appendix A.
5. Dred Scott left free territory at Fort Snelling on May 29, 1840. His master, Dr. John Emerson, died
in Davenport, Iowa on December 29, 1843, and Dred and Harriet Scott filed their suits for freedom on
April 6, 1846. See infra notes 215-17 and accompanying text.
19971 Mrs. Dred Scott 1035
specific details of Dred Scott's life story.6 Consequently, legal thinkers have
not investigated the potential consequences of the suit involving the other
plaintiff, a woman, who arguably had a better claim to freedom. And yet Dred
Scott's case, of all the freedom suits filed in the 1840s, was the context in
which the Supreme Court wrote its nation-splitting words.
Third, we undertake this analysis as part of the work of compensatory as
well as transformative history. As Justice Brennan has said, "We remain
imprisoned by the past as long as we deny its influence in the present."7 Once
we recognize Harriet's role in the litigation, we can never again see the
infamous case of Dred Scott v. Sandford as a simple dichotomy between a
white male master, John Sanford, and an enslaved black man. Instead, a new
image emerges of a black family negotiating the difficult channels of passage
6. Conventional legal scholarship has considered the tactical choices that the Scotts' attorney made
in bringing the litigation, first in state court, and then in federal court. In the state litigation, the Scotts'
attorney faced the task of proving that Dred had been taken to reside on free soil and that Mrs Emerson
now claimed or held him as a slave. Their theory was a conventional one: Having resided permanently on
free soil, Dred was free, rendering Mrs. Emerson's actions in holding him in bondage a trespass Then. in
Scott v. Emerson, 15 Mo. 576 (1852), Justice Scott of the Missouri Supreme Court overthrew decades of
well-settled Missouri precedent, see infra note Il l. to deny freedom to Dred Scott on the basis of the
permissive nature of comity: It held that Missouri was not obligated to enforce other states' laws that were
hostile to its own law.
Against this backdrop, the decision of the Scotts' lawyers to sue in federal court emerges as a strategy
aimed at circumventing the constraints of comity. The pnnctple of federal supremacy meant that a favorable
federal decision would have trumped slave states' unwillingness--demonstrated by Justice Scott's
opinion--to enforce laws bestowing freedom upon slaves who had resided on free soil. Accordingly. the
Scotts' lawyers launched their Supreme Court argument for the Scotts' freedom from a foundation focusing
on federal citizenship. They pointed out that "citizen" and "inhabitant" or "fret inhabitant" had been used
interchangeably in state and federal law and in the Articles of Confederation's pnvileges and immunities
clause. Although the Constitution's Privileges and Immunities Clause mentioned only "'citizens." this change
in diction surely did not exclude free Negroes from citizenship. since the kind of public outcry that would
have responded to such an exclusion had not occurred. In addition, the Scotts' law ers asserted that free
Negroes were entitled to claim a species of citizenship: Their political disabilities did not divest them of
civil rights, such as owning property, carrying on business, and suing in federal court. Even if the Privileges
and Immunities Clause did not include them, their rights under the Diversity of Citizenship Clause remained
intact. See FEHRENBACHER, supra note 3, at 295-96.
First, the Scotts' attorneys distinguished Strader %:G raham. 51 U.S. (10 How.) 82 (1850). in which
the Supreme Court had refused to accept jurisdiction on the grounds of the absence of a federal question.
In Dred Scott, there was no such jurisdictional problem, since federal jurisdiction was original and
depended on the parties rather than the law to be applied. Second, they attacked the argument that Dr.
Emerson had been a military sojourner with the retort that there was no evidence in the record to show that
Dr. Emerson had resided or claimed a residence elsewhere while he was living at a series of military posts
See FEHRENBACHER, supra note 3, at 297-98.
Third, the Scotts' attorneys attempted to discredit Justice Scott's opinion. Not only had the decision
disregarded well-settled Missouri precedents, but it had also erroneously regarded the enforcement of
Illinois law as imposing a penalty on slaveholders-forfeiture of their property-rather than as a recognition
of the legal consequences of a slaveowner's voluntary removal to a free state to reside there with a slave
While the Scotts' lawyers acknowledged that a sovereign state might limit its obligations of comity by
refusing to enforce other states' laws that ran counter to its own laws, they emphasized that Missoun had
never adopted a policy against suits for freedom. See id. at 298.
Finally, the Scotts' attorneys defended congressional power over slavery in the ternitones. They argued
that the Constitution had endowed Congress with the power to dispose of federal lands and to "make all
needful rules respecting the territory"--powers that Congress had repeatedly exercised, that the Supreme
Court had confirmed, and that the nation at large had respected almost unquestioningly for half a century
See id.
7. McCleskey v. Kemp. 481 U.S. 279, 344 (1987) (Brennan. J .dissenting).
1036 The Yale Law Journal [Vol. 106: 1033
to freedom to preserve the family's integrity against the ravages of slavery.
What was lost in the Dred Scott case was not simply an individual man's
claim to go where he pleased, nor simply the opportunity to recognize racial
equality or even racially neutral legal rules. What was lost was the opportunity
to recognize a new kind of freedom-a freedom of family continuity, cohesion,
autonomy, and privacy. Moreover, the loss of this opportunity in Dred Scott
deprived modem commentators of an opportunity as well: the opportunity to
recognize that coercion can impel individuals to seek legal recognition from
the state for these dimensions of freedom.
Lying at the intersection of an array of potentially disempowering forces,
Harriet Scott's story is at once frustrating, challenging, and rewarding-
frustrating, because it has been so long obscured; challenging, because it
pushes us to examine the contingency of history and to consider the
contingency of the present and the possibility of "creating something else to
be";' rewarding, because it allows us to pay respect to the experience of
human beings living in circumstances that they did not create but that they
sought to improve.
To acknowledge the mutability of identity classifications and their
relationship with the law, we adopt a methodology that repudiates rigid
dichotomies between agency and coercion. As Mark Tushnet explains: "By
definition, slavery established a hierarchy of subordinate slaves and
superordinate masters. But those two classes did not exhaust the social groups
in the society ....- 9T ushnet highlights the consequences of the existence of
a third group, a large group of free white laborers, nonslaveowners that
challenged the validity of this dichotomy.'0 In this Article, we focus on yet
another group that challenged the dichotomy. Within the society of the
Northwest Territory and the St. Louis frontier, there were not only free white
nonslaveowners who broke down the dichotomy, there were also free blacks
and white indentured servants. The lack of rigidly reinforced class and race
distinctions allowed greater mutability of classification of members in these
various subordinate groups. A slave did not necessarily wear chains, a free
black did not always have papers, and an apprentice or indentured servant
could be hired out as readily as slaves. On the frontier, all suffered from the
vagaries of harsh weather, disease, climate, and potential starvation. All
8. TONI MORRISON, SULA 44 (1975)
9. MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY 1810-1860, at 37 (1981).
10. Tushnet explains:
If the classifications of slave and master were the only ones available, nonslaveowners could
reasonably fear that they would be treated as a subordinate class.... Law could provide such
assurances by drawing rigid lines around the class of slaves, thereby guaranteeing that the lesser
protections that the law gave to slaves would not seep into the law governing
nonslaveowners .... (T]he categorizing effect of race had the additional attraction of inserting
nonslaveowners into the highest class in the hierarchy instead of creating an intermediate
category for them.
Id. at 38.
19971 Mrs. Dred Scott 1037
laboring people owed obedience to, and followed the orders of, those who
commanded them. Whipping and physical chastisement were considered
appropriate punitive responses for the infractions and crimes of many types of
subordinate persons-enlisted men, tribal people, and children, as well as
servants. Further blurring the distinctions between categories, some masters
even referred euphemistically to the subordinate persons, who in other contexts
would be deemed slaves, as "servants." Hence, within this region there was no
single signifier, no sine qua non of slave, indentured servant, or "hired man"
status. The terms and the indicia of status among and between these
subordinated groups were continually contested.
Moreover, among these several tribes, cultures, and races, the primary
racial, ethnic, and cultural divide was not between black and white, it was
between Native American and settlement culture. Within this divide,
Americans of African origin were affiliated with the dominant settlement
culture. African Americans who married Sioux or Ojibwa women were
denominated as part of the fur traders rather than the tribal peoples." One
observer noted that the "Indians thought much of negroes-called them black
men, or black Frenchmen."'12
As Tushnet writes:
Every legal rule imposes an artificial order upon social reality by
ignoring the complexity of that reality and focusing instead on some
elements that can be identified and manipulated without too much
conceptual or practical difficulty .... [Tihere are limits to acceptable
artifice, set by the importance of these aspects of social reality that
are treated artificially. The difficulty for slave law was that
categorization forced the law to disregard the reality of the very
institution that defined slave society. The vacillation between race and
status as the ground for classifying illustrates the problems, for
whichever ground was chosen, the rules would have to ignore the
actual interplay between race and status.13
II. See 1836 Wisconsin Territorial Census Listing (Minn. Histoncal So'). St Paul. Minn ) (on file
with authors) (listing James Thompson among fur traders). In fact. there ssere multiple cultures and races.
The predominant cultures were the Sioux, the Ojibwa. the French fur traders, the military, and the servants
See M.M. Hoffmann, New Light on Old St. Peter's and EarlY St. Paul. 8 MNIN HIST 27, 27-32 (1927)
12. Lawrence Taliaferro, Auto-Biography of Maj. Lawrence Tahaferro (Written in 1864). in 6
COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 189. 235 (St. Paul. Minn. Pioneer Press 1894)
[hereinafter 6 COLLECTIONS].
13. TUSHNET, supra note 9, at 40. Tushnet also states:
Of course we should not overestimate the role of the law generally, or of such details as
categorization, in securing the political allegiance of nonslaveowners. The depth to v'hich
consciousness of the law and its details penetrated any but the most advanced segments of the
ruling class is problematic and is probably impossible to determine now . Categorization in
the law could support other elements of a general structure of thought esen though it rarel) had
to be called on directly in the effort to secure political allegiance.
Categorization also simplified the judges' job by reducing the number of cases they had
to consider when deciding a new case. Without some limit on the range of analogy, judges
would have to address in an articulate way every analogy offered by ingenious litigants When
1038 The Yale Law Journal [Vol. 106: 1033
Unfortunately, many legal scholars and historians of the Dred Scott
decision have relied too heavily upon the more formalistic categorization.
Many have thought that, before Dred Scott, the broad prohibitory language of
the territorial charters of freedom like the Northwest Ordinance meant that
bound slaves were magically set free upon reaching free soil. 4 This image
of a sharply rigid dichotomy between slave status and free status (and between
slave states and free states), drawn along jurisdictional lines of the Northwest
Territory (or still later, the Mason-Dixon line), belies a much more contested
and complex political reality of ranges of coercion and agency. What was
necessary to make a formerly enslaved person free once he or she came into
free territory? Was freedom the default assumption, or something that had to
be established by ceremony? In the particular case of the Scotts, marriage
added further complexity, influencing the hierarchy of agency and coercion in
their lives. Thus, gender and race were compounding systems of subordination
in Harriet Scott's status.
The fluidity of this analysis and the focus on both legal strategy and the
state of the law prior to the decision counters the inevitability of the Dred
Scott holding; it is only in retrospect that Dred Scott seems like a foregone
conclusion. Post-Civil War histories left Dred Scott's legal flaws unexamined.
A war and constitutional reform had changed the course of legal logic.
Between 1858 and 1865 (the date of passage of the Thirteenth Amendment),
legal scholars criticized the decision within their own terms, but once again,
those thinkers' selective vision about gender led them to neglect Harriet's legal
claim to freedom. It is really only with the current recognition of feminism, 5
a firm category becomes established, judges can reject proposed analogies, and lawyers will not
think of them, on the simple ground that, for example, the present case involves slaves, whereas
the suggested precedent involved free persons, without having to consider whether the rationale
of the precedent is equally applicable to slaves.
Id. at 38-39 (citations omitted). As we shall see, this analysis has special force in the context of Harriet
Robinson Scott, whose lawyers not only failed to see the similarities between her challenge and her
husband's, but the differences that strengthened her claim to freedom.
14. Such a conception of liberty did guide the Ohio Supreme Court in Anderson v. Poindexter, 6 Ohio
St. 622 (1856). The court distanced slavery from natural or common law: "[Tihe common law confers no
right of property in persons. It can exist only by municipal authority. Slavery is entirely local in its
character, and is repugnant to reason and the principles of natural law, wherever it subsists." Id. at 628.
The rule controlling personal property could be confined to those things that all countries regarded as
"proper subjects of acquisition and of ownership," id. at 630, as framed by the common law. Therefore,
the rules governing chattels could not be applied to human beings, "over whom no exercise of the rights
of ownership [could] be asserted by either the natural or the revealed law." Id. at 628. Far from being "a
natural right, coeval [sic] with man's existence, and consistent with the laws of the Creator and the
principles of justice," id. at 622, the exercise of a right to human property relied on "force and oppression"
and constituted "a violation of laws and principles, both human and divine, under the sanction of local and
peculiar legislation," id. Naturally, because of slave states' deviation from the overarching principles of
natural law, it followed that "if a person claimed as a slave in Kentucky comes into Ohio by the direction
or consent of his owner, to perform for him menial services here, even temporarily, the constitution and
laws of Ohio operate on the condition of such person, and effect his immediate emancipation." Id.
15. Feminist scholars and others have lately invoked the methodology of instability and plurality in
imagining continually shifting identities, partly in awareness of the shifting mutability of legal classification.
See generally Lea VanderVelde, Hidden Dimensions in Labor Law History: Gender Variations on the
1997] Mrs. Dred Scott 1039
intersectionality,16 intersubjectivity, and the variety and complexity of slave
existence 7 that this analysis is possible."5 This criticism does not merely
Theme of Free Labor, in LABOR LAW IN AMERICA: HISTORICAL AND CRMCAL ESSAYS 99, 121
(Christopher J.T omlins & Andrew J.K ing eds.. 1992) (exploring issues of instability and plurality in legal
analysis).
Judith Butler and Teresa de Lauretis have recently sought to use instability and plurality to concei'e
of new identity possibilities. For instance, Butler describes her central goal in formulating a "genealogy'
of sex, gender, and desire as "refus[ing] to search for the origins of gender, the inner truth of female desire.
a genuine or authentic sexual identity that repression has kept from %ies .The task of this inquiry is
to center on-and decenter-such defining institutions: phallogocentsm and compulsory heterosexuality -
JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTIrrY at viii-Ix (1990).
Butler's focus on instability, however, keeps her from forging the constructi'e project that is our goal
More hospitable to construction as well as deconstruction is Teresa de Lauretis. %%ho explains the
evolving notion of self in feminist scholarship:
What is emerging in feminist writing is .. .the concept of a multiple. shifting. and often self.
contradictory identity... an identity that one decides to reclaim from a histor) of multiple
assimilations, and that one insists on as a strategy: "'[Women [ofm ixed heritage) ssho, told to
choose between or among identities, insist on selecting all." Representing the conditions of
existence of those subjects who are muted, elided, or unrepresentable in dominant discourses.
this new understanding of the nature of identity actually opens up the possibility to "set about
creating something else to be."
Teresa de Lauretis, Feminist Studies/Critcal Studies: Issues. Terms, and Contexts, in FE~tIis-r STI. DIES.
CRITICAL STUDIES 9-10 (Teresa de Lauretis ed.. 1986) (second alteration in original) (citations omitted)
Reclaiming an identity in terms of multiplicity and heterogeneity better achieves both compensatory and
transformative goals. The story of Harriet Robinson Scott offers a prime example of ho%% %%omen's li'.es
need to be reclaimed for themselves and for their impact on the flow of history
16. This viewpoint translates into an awareness of multiple possibilities at each juncture in time and
thereby places an incident or a life in historical context. A useful metaphor for this approach ist,h e
chemical concept of resonance hybridization. This metaphor likens the myriad possibilities of a person's
agency and its constraints, and of her enslavement and freedom to resonance structures molecular structures
that differ only in the position of electrons. Each of these structures represents a particular configuration
of components-in chemistry, electrons; in the social reality of slavery, the variable of Iicd experience
No one structure completely describes a chemical species, which can be understood as a hybrid of tso or
more structures of similar energy; no structure is completely "true" or "false." See ANDREW STREIrVEISER.
JR. ET AL, INTRODUCTION TO ORGANIC CHEMISTRY 12 (4th ed, 1992) Ne',erthcless. %%hen Pauling
discussed resonance, he did not mean to suggest that "molecules in two or more different states in
oscillating equilibrium were actually present in the system." WILLIAM H. BROCK. TilE NORTON HISTORY
OF CHEMISTRY 503--04 (1993).
This model of resonance hybridization illustrates the insights that Kimberl Crenshaw. and Angela
Harris have discussed in their work on intersectionality and the problems and benefits of representing
multiple selves. See, e.g., Kimberl- Crenshaw. Mapping the Margins: Intersectionalht. Identity Politics.
and Violence Against Women of Color. 43 STAN. L. REV. 1241 (1991) (assailing contemporary feminist
and antiracist discourses for their failure to consider intersectional identities. such as %om en of color, using
"intersectionality" to denote race and gender's interactions in shaping multiple dimensions of black
women's lives, which cannot be adequately captured by looking at race or gender separately), Angela
Harris, Race and Essentialism in Feminist Legal TheorY. 42 STAN. L REV. 581 (1990) (asserting that
identity consists of multiple consciousness; resisting feminist legal theory's impulse to%%ard gender
essentialism, which silences black women's voices, fragmenting them into "race" and "'gender" facets,
rather than understanding them as issuing from multiple selves). A resonance-inflected model attempts to
reflect the true lability of life, life's protean characteristics, and the failure of any single theoretical model
or paradigm to describe life's characteristics fully, with any far-reaching results.
17. Accounting more faithfully for the circumstances of women's lives not only fills in a significant
gap in documenting human experience, but it also turnosu t to change our visions of reality itself In this
approach, Harriet Robinson Scott looks more like a hero of her own life. See generally LINDA GORDON.
HEROES OF THEIR OWN LIVES (1988) (assembling case studies to describe lives of victims of family
violence, who, nonetheless, saw themselves as heroes of their own lives). As Victoria Bynum has said-
If we view power only in the context of a person's ability to dominate and control
another, then subordinate people appear as little more than mer masses .... Human agency and
resistance fade from view when we rivet attention solely on sexual, racial, and economic forces
1040 The Yale Law Journal [Vol. 106: 1033
indict the Scotts' lawyers for their short-sightedness. Rather, it brings these
insights to bear on the Scotts' claims to freedom and the historical moment
that was theirs. By understanding the milieu in which they lived, we can begin
to comprehend the Scotts' actions, what this litigation meant to them, why
their case of all cases reached the Supreme Court, and what it can teach about
the nature of agency within systems of subordination.
Harriet Robinson Scott brought her own case for freedom in 1846. In this
Article, we examine three distinct legal claims that she could have raised. First,
we demonstrate that, even according to the conventional analysis-which
determines the status of subject persons by examining their sequence of
residences-focusing on Harriet's circumstances could have produced a
different outcome.'9 Both the judges and the lawyers in the Dred Scott case
performed this analysis on the basic residential facts of Dred's life. They
neglected to undertake a similar examination of Harriet's residential history,
particularly where her life's residential pattern differed from her husband's and
where her life history presented additional complicating issues about the
presence of slavery in free territory.20 When they bracketed the issue of
Harriet's freedom within her husband's case, the Scotts' lawyers submerged
her claim in his, making his legal reality hers as well. Yet applying even a
conventional analysis of residence to determine Harriet's status suggests that,
in focusing only on Dred, the Scotts' lawyers actually made it easier for the
Taney Court to resolve the case against the Scott family. Had the Court been
predisposed to draw a line between free and enslaved individuals, Harriet's
and exclude the people who wield and respond to those forces.
VICTORIA BYNUM, UNRULY WOMEN: THE POLmCS OF SOCIAL AND SEXUAL CONTROL IN THE OLD SOUTH
3 (1992).
Moreover, by examining the interstices and margins of canonical historical accounts, feminist scholars
have encountered race and class dynamics that have foregrounded men's and some women's experiences
at other women's expense. Focusing on the gritty circumstances of Harriet's life, rather than on the
abstractions of male and female, white and black, freedom and slavery, "normal" and "other," allows us
to examine these dynamics in the context of the limitations imposed upon female agency within historically
contingent constraints. In reclaiming Harriet Robinson Scott's story for itself, we further the feminist
mission of creating a history that attends more closely to women's lives. See GERDA LERNER, BLACK
WOMEN IN WHITE AMERICA (1972) (reclaiming histories of black women's lives); see also MELTON
MCLAURIN, CELIA, A SLAVE (1991) (reconstructing life of enslaved woman who killed master who had
kept her as concubine). Thus, Harriet Robinson Scott's experiences offers us a historically specific, agentive
perspective on the convergence of race, class, and gender in law and society in the United States during
the middle of the nineteenth century.
18. As Peter Kolchin has observed:
For years, historians treated slaves primarily as objects of white action rather than as subjects
in their own right, and largely ignored the behavior and beliefs of the slaves themselves.
Reacting against this emphasis, many scholars have more recently focused on the slaves as
actors, stressing the world they made for themselves rather than the constraints imposed by their
owners. [N]either slaves nor slave owners can be understood in isolation from each other: a
well-rounded study of slavery must come to grips with slaves as both subjects and objects and
must consider slavery from the perspective of both the masters and the slaves ....
PETER KOLCHIN, AMERICAN SLAVERY at x-xi (1993).
19. See infra Part III.
20. The consequences of these factors, factors that were largely beyond the subject's control,
emphasize the arbitrariness of freedom and enslavement for descendants of Africans.
1997] Mrs. Dred Scott 10,41
history of residence would have presented a stronger case for freedom than
Dred's. Thus, even within the terms of standard legal analysis, Harriet would
have been a better plaintiff than Dred.
Second, we examine how Harriet's master constructed her marriage as a
gift of freedom in the prelegalistic society of the frontier."' We argue that
when Harriet's master, Indian Agent Major Lawrence Taliaferro, -gave" her
to Dred in marriage in a civil ceremony that he conducted himself, he intended
to give Harriet her freedom and probably understood the consequence would
be to free Dred as well. This conclusion is supported by his statements and the
circumstances of her marriage. Within the confines of life on the Western
frontier, where Major Taliaferro was the civil authority, the justice of the
peace, and the recorder of important deeds, a public ceremony of marriage
conducted by him was as much of a public, documented grant of freedom as
any enslaved woman could expect.
Third, and most importantly, we examine a claim derived from the
fundamental incompatibilities of two competing patriarchal institutions: slavery
and marriage.-- Before 1857, when the Supreme Court decided Dred Scott,
marriage and slavery were viewed as sufficiently incompatible in most
Northern states that a slave's marriage to a free woman was deemed to
emancipate the slave. In contrast, facing the same incompatibility between
marriage and slavery, Southern states resolved the contradiction by denying the
institution of marriage as a civil contract to slaves who married other slaves
or even free persons. Thus, Southern slaveowners opportunistically supported
the social framework of marriage when they believed that it enhanced the
sexual and affective stability of large slave populations, but did not hesitate to
separate enslaved spouses whenever it suited their own goals. Drawing upon
those disparate approaches to the legal and social meaning of slave marriage,
we demonstrate how marriage served different purposes in different places and
at different times. Further, we argue that the legal significance of Harriet
Robinson and Dred Scott's Minnesota marriage should have been governed by
the Northern treatise writers and Northern ideals of domestic life rather than
by Southern slaveholders' opportunism. Thus, the "Mrs." attached to Harriet
Robinson Scott's name gave her one of her strongest legal claims to freedom.
I. THE RAW MATERIAL OF HARRIET ROBINSON Sco"rr's LIFE
Understanding the circumstances of Harriet Robinson Scott's life in terms
of the coercive effects of such analytic categories as race, property, labor, and
gender is vital for two reasons. First, it allows us to recreate the history of
21. See infra Section III.B.
22. Cf. Lea VanderVelde, The Legal Ways of Seducton,. 48 STAN. L RE% 601, 876-83 (1996)
(employing similar analysis to demonstrate how male-ccnitered household sstems of father and mastcr-i
could challenge each other for dominance in legal rule. but femalc-centered households could not)