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 %ersionsof 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 %kiththe 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 %:Graham. 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 ....-9 Tushnet 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 12 men, or black Frenchmen."' 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 3would have to ignore the actual interplay between race and status.1

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.Tomlins & Andrew J.King 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 [ofmixed 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 is,the 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 %omen 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 turnsout 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) 1042 The Yale Law Journal [Vol. 106: 1033 residence that would have established her legal claim for freedom. Second, as we assemble the fragments of her life, we begin to see a person with an evolving identity, a person moving through various force fields of coercion and autonomy as she moved through several states, communities, ages, and life circumstances. These changes produced in her a desire for greater freedom but also forced her to negotiate freedom, autonomy, and family privacy within an ever-shifting frame. We argue that this model is truer to the human experience of freedom. Freedom itself is situational and historically contingent and, as such, must be continually negotiated. Categorical classifications themselves have coercive effects on persons' lives, and few "choices" are free. Only fragments of Harriet Robinson Scott's life have survived in the historical record; these remain open to interpretation, in the absence of more complete information about the details of her existence. In the ownership of Major Lawrence Taliaferro, United States Indian Agent for the entire Upper Mississippi River region, she arrived at Fort Snelling at some point between the mid-1820s and 1835.23 She was married to Dred Scott sometime in 1836 or 1837,24 when she was about seventeen years old and he was about forty.25 In addition to serving Taliaferro, she was hired out to at least two other employers at Fort Snelling: Lieutenant Thompson and his family in 1837, and Major Plympton.26 She bore Dred Scott two sons, who died in infancy, as well as two daughters-Eliza and Lizzie-who became parties in the lawsuit.27 She left Fort Snelling with Dred in April 1838, joining Dr. Emerson in Fort Jesup, Louisiana, only to return to Fort Snelling later that year in October 1838 and remain there until 1840. In 1840, the Scotts left Fort Snelling again with their first daughter, Eliza, and the Emersons and moved

23. At least one commentator has designated a period around this date as the point of Harriet's arrival at Fort Snelling. See EHRLICH, supra note 3, at 99 n.116 (noting that Harriet was brought to Fort Snelling "sometime between 1833 and 1835"); id. at 20 (noting that Harriet herself thought it most likely that she had arrived at Fort Snelling in 1835). Ehrlich believed that Taliaferro "frequently visited his native Virginia, bringing back with him slaves for use in the agency or to hire out at Fort Snelling." Id. Among these was Harriet. See id. From Taliaferro's journals a more complex story emerges. For more on the origins of Harriet Robinson, see Lea VanderVelde, Harriet, of Color (Sept. 1, 1996) (unpublished manuscript, on file with author). 24. See EHRLICH, supra note 3, at 21. 25. The estimate of Dred's age is subject to some uncertainty. We believe the most reliable source of information is Taliaferro, who estimated Dred's age at marriage as about 40. See id. at 199 n.16 (citing unidentified newspaper clipping found in Taliaferro papers quoting Taliaferro and published during his lifetime); see also note 131. 26. See EHRLICH, supra note 3, at 22. 27. Walter Ehrlich calls Eliza's birth "one of the most misunderstood events in the unfolding narrative of Dred Scott," presumably alluding to most commentators' failure to understand that the date of Eliza's birth in the Supreme Court readings could not be reconciled with the sequence of events in the Scotts' lives. See id. at 23. Ehrlich sifts through evidence that places Eliza's birth either in 1840 or 1838, and finally concludes that she was bom in October 1838, contradicting the pleading and the decision in the record of the United States Supreme Court. See id. at 24-25. Reverend Charles E. Snyder agrees with Ehrlich, finding that the court records erred; according to Snyder, in 1857, Eliza was almost 19, and Lizzie was about a year younger. See Charles E. Snyder, John Emerson, Owner of Dred Scott, 21 ANNALS OF IOWA 441, 451 (1938). 1997] Mrs. Dred Scott 1043 to St. Louis.28 Thus, the Scotts met in free territory and moved between slave and free territory together three times. Much of what is known about Harriet's existence comes from the court records themselves, as a series of lawyers attempted to construct her life in terms of the elements they thought necessary for legal purposes to win her freedom. Although Harriet was illiterate and left no writings of her own,' her master, Major Lawrence Taliaferro, was a conscientious correspondent and chronicler of daily life. His journals, his correspondence, his biography, as well as the writings of his many visitors and acquaintances, provide additional documentation of the circumstances in which Harriet lived. Because Taliaferro was a lone source of hospitality at this remote outpost where the curious came to view the wilderness and its Indian inhabitants, dozens of the decade's famous men sat at his table and, presumably, were served by Harriet Robinson. After Dr. Emerson's death in December 1843, Mrs. Emerson moved back to St. Louis and eventually to Massachusetts. The Scotts appear to have been left in the partial control of Mrs. Emerson's brother-in-law, Captain Henry Bainbridge, who himself was transferred into and out of St. Louis during this time, and they were hired out to another party-Samuel Russell-in March 1846, a month before they filed suit for freedom." During the trial, the Scotts, whose labors were under the command of the sheriff and whose wages were impounded by the court, appear to have worked almost exclusively for their lawyers. 31 After the case was lost, Harriet, freed along with Dred and her daughters by the Blows, worked as a washerwoman. 2 She died at some unspecified point after the trial ended. Although a tombstone has since been erected to mark Dred's grave in St. Louis,33 no such tangible symbol memorializes Harriet's life. From this brief outline, what is known about Harriet Robinson Scott's environment can be used to elaborate on and conjecture about the further details of her life. We need not discard one potential interpretation for another, but can accept that they all contribute to our historical understanding.

28. See EHRLICH, supra note 3,at 23-25. 29. See id. at 43 ("Neither Dred Scott nor his wife could write his or her name, and so they signed the petitions [seeking their freedom] with theirmarks."). 30. See John A. Bryan, The Blow Family and Their Slave Drrd Scott. 4 Mo HIST SoC'Y Bt .._ 19. 20 (1948). 31. In March 1848, two years into the court proceedings, Edmund C. La Beaume. a St Louis lawyer whose sister was connected to the Blow family by marriage. hired Harmet and Dred from the sheriff for five dollars a month. See HOPKINS, supra note 3. at 14. 32. See EHRLICH, supra note 3,at 182. Dred worked as a porter in a St. Louis Hotel. retained to chat with the guests so that they could say they had met the famous Dred Scott. See id. 33. See id. at 183-84. Dred's burial place was commemorated with some fanfare in the 1920s with the engraving of a tombstone. Taylor Blow, who purchased the burial site for Dred. bought three grase sites in this interracial graveyard, but true to segregationist practices. Dred is buried in the center grave shile the adjacent graves were left vacant so that the adjoining graves of white people are not next to a black man's grave. Telephone Interview with Kenneth Kaufman, Ph.D., St. Louis University. St. Louis. Mo. (Apr. 10, 1996). 1044 The Yale Law Journal [Vol. 106: 1033

A. Harriet'sEarly Life

One of the difficulties of research about the lives of enslaved descendants of Africans in America is that to trace the genealogy of an individual, one must trace the genealogy of his or her masters. 4 The genealogy of masters, of course, is often preserved for reasons other than shedding light on the lives of the people they enslaved. Slaves' lives were not documented, except in the most basic or dramatic of human experiences: birth, death, accidents, transport, and sales. For the day-to-day circumstances of their lives one must read across the historical record, observing what can be seen out of the corner of one's eye. Such statements as "fires were built" or "an elaborate dinner was held" are often the documentation of the existence of slaves' efforts. Even the use of the passive tense, as in "fires were built," eliminates the actor, the builder, the working person as agent. In addition, within the confines of a historiographical tradition that has focused primarily on male slaves, research has centered on Dred's series of masters35 to the virtual neglect of Harriet's. Additional evidence about Dred's life can be discerned by examining documents left by Harriet's master. Moreover, Harriet's chain of owners would have determined the details of her life circumstances and the strength of her own legal claim to freedom. We can only speculate on Harriet's parentage and her date and place of birth. Harriet was probably born in the United States. The fact that her name was Robinson may mean that "Robinson" was the name of the family that 36 owned her mother, since that was the customary naming practice of the day. The name "Harriet" may have been given to her by her mother or it may have been given to her as a new name by her owner, Major Taliaferro, perhaps 37 inspired by the name of a nearby lake in the Minnesota area, Lake Harriet. Taliaferro is said to have inherited Harriet rather than having purchased her.38 She could have come from Hagley, King George County, Virginia, the area in which he was born. 39 Or she could have come into Taliaferro's

34. See DAVID T. THACKERY, AFRO-AMERICAN FAMILY HISTORY AT THE NEWBERRY LIBRARY: A RESEARCH GUIDE AND BIBLIOGRAPHY 2 (1988); TOMMIE MORTON YOUNG, AFRo-AMERICAN GENEALOGY SOURCEBOOK 45 (1987). 35. See, e.g., EIRLICH, supra note 3, at 9-29; FEHRENBACHER, supra note 3, at 239-49. 36. The fact that she had a last name may mean that she was never really a slave at all. 37. The lakes themselves were named after a variety of captains' wives. Lake Harriet was named after Colonel Leavenworth's wife but given Harriet's age at the time of her marriage there is little likelihood that Harriet Robinson was owned by the Leavenworths. See WARREN UPHAM, THE WOMEN AND CHILDREN OF FORT ST. ANTHONY LATER NAMED FORT SNELLING 25 (1915). Harriet was a fairly popular name for the time. Another of Taliaferro's slaves was named Charlotte and there was a Lake Charlotte in the immediate vicinity as well. See id. It is possible that these individuals were renamed upon reaching the area, much as Dred Scott's name is said to have been changed by him from the name "Sam," under which he was known when he belonged to the Blows. See Bryan, supra note 30, at 226. 38. See EHRLICH, supra note 3, at 21. 39. There is a Robinson family listed on an early map of King George County having a homestead just across the creek from the Taliaferro family's home. See Map of King George County, Virginia (1781) (King George Count), Registrar of Deeds Office, King George, Va.) (on file with authors). 1997] Mrs. Dred Scott 1045 ownership through his marriage in 1828 to Elizabeth Dillon, the daughter of an innkeeper in the mountain spa community of Bedford, Pennsylvania; slaves often figured as part of the dowries of women in slaveholding states. "0 The Taliaferro family registers list no Robinsons in Lawrence Taliaferro's lineage.4' Since Taliaferro's mother did not die until 1836," some years after Harriet had been at Fort Snelling, it seems unlikely that Taliaferro would have inherited Harriet from his parents.43 If Harriet had been a Virginia slave, it is unlikely that she would have been a field hand or an agricultural worker. There would have been very little use for those skills at a Minnesota frontier fort, and it would have been foolhardy for Taliaferro to have bothered to transport her from Virginia to Fort Snelling. Instead, one would think that a field hand would have been sold in Virginia, and her story, as well as her possible claim to freedom, would have ended there. It is likely that the claim that Taliaferro inherited Harriet along with his many slaves was more euphemism than truth. Taliaferro had two or three slaves at Fort Snelling as early as 1826, a brief two years after his journals lamented the shortage of manual labor in the area and before he received any major inheritance.44 Although by 1828, perpetual hereditable slavery was no longer legal in Pennsylvania,45 Elizabeth's father, Humphrey Dillon, was a slaveholder, and he registered three slaves in the Bedford County register in

40. The Catterall collection of cases are replete with litigation involving such claims. See 4 HELEN T. CATTERALL, JUDICIAL CASES CONCERNING AMERICAN SLAVERY AND THE NEGRO 103-04. 130-31 (1926-37) (discussing cases). 41. These registers were compiled by twentieth-century descendants of the Tahaferro family for the purpose of establishing their lineage to Revolutionary War soldiers in order to gain admittance to the Daughters of the American Revolution. See WILLIE CATHERINE IVEY. ANCESTRY & POSTERITY OF DR. JOHN TALIAFERRO & MARY (HARDIN) TALIAFERRO, 1733-1821. at 92 (1926): NELL (WATSON) SHERMAN. TALIAFERRO-TOLIVER FAMILY RECORDS (1961). 42. See Lawrence Taliaferro, Journals of Lawrence Taliaferro (Mar. 5. 1836). in Minn Historical Soc'y, Lawrence Taliaferro Papers (Helen M. White ed., 1813-1868) (microfilm on 4 reels) [hereinafter Journals of Lawrence Taliaferro]. 43. There is another woman of color, Eliza Johnston, listed in Lawrence Tahaferro's 1850 census household entry as having her birthplace in Virginia and then bearing a child in Minnesota. suggesting that some of the slaves that Taliaferro owned in Minnesota had been taken there from Virginia. Tahaferro's patrimonial home state. See 1850 U.S. Census for Bedford Borough. Pa. (Seeley G. Mudd Library. Yale University, New Haven, Conn.) (on file with authors) (listing household of Lawrence Tahaferno. age 56. male, as including Eliza Johnston, 38 year-old free black bom in Virginia. and Susan Johnston. 16 year-old free mulatto, born in Minnesota). 44. See Journals of Lawrence Taliaferro. supra note 42 (Mar. 29. 1826: May 31. 1826) (refernng to bound boy William and slave Eliza). Almost all of his journal entries of 1824 relate his complaints of the difficulty of finding laborers to assist him. See generally id. (1824). 45. Under a gradual emancipation statute passed in 1780. had Harriet remained in Pennsylvania for longer than six months, she would have been freed. This statute freed all slaves' children born within the state, all slaves who were not registered before November I. 1780. and any slaves kept in Pennsylvania longer than six months. See PAUL FINKELIMAN, AN IMPERFECT UNION: SLAVERY. FEDERALISM. AND COMITY 46-48 (1981). Nonetheless, Elizabeth Dillon's father Humphrey Dillon ran an inn in the spa community of Bedford. Pennsylvania. Under local custom, children bom to slave mothers could be registered for slase status until they reached the age of 28. Humphrey Dillon registered three children of Eliza Diggs in the 1820s. Interview with Kay Williams, Genealogical Researcher. Old Pioneers Library. Bedford. Pa. (Sept 16. 1996) 1046 The Yale Law Journal [Vol. 106: 1033 the 1820s.46 He may have given Harriet to Elizabeth and Lawrence Taliaferro as a wedding present.47 If Harriet came into Taliaferro's ownership through his marriage, she may have been a chambermaid or housekeeper in the inn owned by Elizabeth's family. Such a slave would have been a suitable wedding dowry and useful for assisting Elizabeth in her move from the relatively genteel life of Bedford to the Northern frontier. Whatever Harriet Robinson's life beforehand, she probably arrived at Fort Snelling in the early 1830s. 48 Major Taliaferro made trips back East every year of the 1830s and every trip took him through St. Louis and Louisville, both of which had thriving slave markets.49 Moreover, there is evidence in other sources that Major Taliaferro's associate, the Indian Subagent, procured slaves from the St. Louis slave market on his travels to St. Louis.5 Reasoning instead from the pattern of slaves' lives, Harriet's life as a young slave would have had two important junctures when her residence was most subject to change. Slave children were often kept by their mothers or grandmothers in a relatively protected state of childhood until age seven." Slave narratives often relate that the harsh reality of what slave status meant set in only when the child attained the age of seven, since their caretakers benevolently sought to keep from them the brutal fact of their status for as long as possible.52 At age seven, the child would either be assigned duties, put to work, or sold away from the nursery or mother.53 But a seven-year-old slave girl would have been of little use at a frontier fort. Unless Harriet came as a child in the company of her mother, it is more likely that she came to Fort

46. See Copies of Humphrey Dillon's Slave Registration Papers (Old Pioneers Library, Bedford, Pa.) (on file with authors) (showing registration of children born to Eliza Diggs for purposes of securing their servitude until age 28). 47. Pennsylvania was remarkable for its antislavery sympathies. First, although its population included many Southern visitors who brought their slaves with them, its influential inhabitants counted Quakers, who were adamantly opposed to slavery, among their number. Second, Pennsylvania witnessed the birth of the nation's first active antislavery society, the Pennsylvania Abolition Society. Finally, Pennsylvania's emancipation statute was aimed at phasing out slavery, albeit gradually. See FINKELMAN, supra note 45, at 46-47. Although the Philadelphia region of Pennsylvania supported antislavery measures, it is not clear whether the same was true for the mountain resort town of Bedford near the Maryland border. The best analysis of Pennsylvania's gradual emancipation law in practice can be found in DWtGcIT LOWELL DUMOND, ANTISLAVERY: THE CRUSADE FOR FREEDOM IN AMERICA 46-52 (1961). 48. It is even possible that Harriet Robinson was born in the Northwest Territory. There is a tenuous connection to some abandoned children of a Dakota woman and a fur trader named "Robinson." See I GEORGE W. FEATHERSTONHAUGH, A CANOE VOYAGE UP THE MINNAY SOTOR 312-13 (Minn. Historical Soc'y 1970) (1847). 49. Taliaferro's journeys were routinely documented in his journals. Riverboat travel to St. Louis and up the Ohio River was the preferred means of travel in this decade. See generally WILLIAM J. PETERSEN, STEAMBOATING ON THE UPPER MISSISSIPPI (1968). 50. See, e.g., Rachael v. Walker, 4 Mo. 350, 350 (1836) (indicating that Indian Subagent, Mr. Langham, was involved in purchase of plaintiff). 51. Some Missouri documents show that slave children were sold away from their mothers as early as two years of age. Telephone Interview with Kenneth Kaufman, supra note 33. 52. See, e.g., FREDERICK DOUGLASS, MY BONDAGE AND MY FREEDOM 29-32 (Johnson Publ'g Co. 1970) (1855); HARRIET JACOBS, INCIDENTS INTHE LIFE OF A SLAVE GIRL 5-6 (L. Maria Child & Jean Fagan Yellin eds., Harvard Univ. Press 1987) (1861). 53. See, e.g., JACOBS, supra note 52, at 9-Il. 19971 Mrs. Dred Scott 1047

Snelling around the time of the other important event in slave children's lives. At age thirteen or fourteen, the slave child would come of age. At this point in their lives, slave girls would be sold as slave women and net a higher price. Advertisements posted sales for enslaved women as "slaves likely," meaning likely to bear children.54 When Harriet Robinson arrived at Fort Snelling, she entered a distinct, albeit small subculture encompassing people of African descent. Several officers at the Fort, many of the French fur traders, and the Indian Agent had slaves of African descent. Over the course of his lifetime, Major Taliaferro had some twenty-one slaves, but it is unlikely that he ever had more than two or three at a time. Although he acknowledged in his later writings that these twenty-one people were slaves, he routinely referred to them as "servants" in his journals.55 During the 1820s and 1830s, the Mississippi River served as a conduit not only for the fur trade and civilian and military settlement, but also for the slave trade, as slave labor was employed to support both fur trading and military efforts. As settlement increased during the Mississippi Valley's fort-building era, military outposts were built from the Jefferson Barracks at St. Louis to Fort Madison, to Fort Armstrong (Rock Island, Illinois), Fort Crawford (Prairie du Chien), and Fort Snelling (St. Paul). During the 1830s and 1840s, Indian policy and the protection of fur trading and lead manufacture dictated this construction of forts, and these years were marked by Indian wars, such as the great Black Hawk War, and a succession of treaties. 6 The federal government's direct participation in the spread of slavery into the Northwest Territory has not been very extensively documented. Recently uncovered evidence suggests that as the military presence and culture expanded 5 in the region, so too did the slave trade. ' The Army would pay any officer an additional allowance, often the same amount that a private would earn, for the "keeping" of one servant since officers were expected to uphold a certain

54. Such women were more highly valued for their reproductive capabilities. See infra note 126. 55. In the spring of 1832, when Taliaferro appears to have left Minnesota permanently. his journals note that he is traveling with three servants. See Journals of Lawrence Tahaferro. supra note 42 (July 14. 1832). Lawrence Taliaferro's papers also list an amount of money paid for a dwelling for "scrvants."the term he always used in referring to his slaves. Interestingly. theamount wvas less than the amount he paid for the construction of a stable for his horses the same summer. See id.The fact that he would have separate "servant" quarters constructed suggests that he had more than one slasc A single slave would probably have slept on a mat rolled up in the kitchen. On the other hand. his subagent. Mr.Langham. also had slaves so the separate "servant quarters" could have been for the combined slaves of the two Indian Agents. It is also possible that some of these 21 slaves remained in Pennsylvania. where Talaferro maintained a residence after 1836. 56. See generally FRANCIS PRUCHA. BROADAX AND BAYONEr. TIlE ROLE OF TIIE UNITED STATES ARMY IN THE DEVELOPMENT OF THE NoRTHwEST. 1815-1860 (1953) (discussing Indian policy during first half of nineteenth century). 57. See Lea VanderVelde, Slaves in Free Territory (Sept. 1.1996) (unpublished manuscript, on file with authors) (documenting existence of slaves at Fort Snelling. Fort Crawford. and Fori Winnebago and suggesting degree of military involvement in procuring and transporting slaves into free tertory). 1048 The Yale Law Journal [Vol. 106: 1033 class status while in service even on the frontier.58 Officers sometimes simply pocketed the money. However, when an officer married, he frequently availed himself of a servant allotment to buy or rent a slave of his own to allow his wife to maintain herself without the domestic drudgery to which householding working-class women were subject. Many of the officers were graduates of West Point and second (or younger) sons of Virginia families. Their brides were often prized as ladies of culture and bearing; the officers apparently 59 solved the problem of a domestic labor shortage by importing slaves. Since St. Louis was the major slave market for this part of the country, it was common practice to send downriver for a slave via the nascent but growing steamboat industry. There is no doubt that the development of riverboat travel on the Mississippi hastened this importation of enslaved people as it permitted more rapid transportation of people and provisioning of the forts. For example, when Lieutenant Thomas Stockton married, he sent Captain Langham to Jefferson Barracks to procure a slave for him.60 At Fort Snelling, Captain Langham, the Indian Subagent, was a frequent traveller to St. Louis, and could therefore serve as a go-between in bringing slaves and other provisions to military posts.6' Thus, notwithstanding the terms of the Northwest Ordinance and the Missouri Compromise that banned slavery and involuntary servitude throughout the Northwest Territory and the Missouri Compromise lands, there were, in fact, small African-American communities attached to the military forts. Indeed, the 1830 territorial census lists slaves.62 Although there were other slaves at Fort Snelling, Major Taliaferro was probably the largest slaveowner there.63 His journal lists a trip he took East departing from St. Louis with three "servants" accompanying him.' 4 There

58. See Edward D. Neill, Early Days at Fort Snelling, in I COLLECTIONS OF THE MINNESOTA HISTORICAL SOCIETY 420 (St. Paul, Minn., Pioneer Press 1872) [hereinafter I COLLECTIONS]. 59. Once slaves had been brought to the frontier fort, they would be reassigned from one master to another as necessary. Taliaferro reports that "Capt Plympton wishes to purchase Eliza. I informed him that it was my intention to give her her freedom after a limited time. but Mrs. P. may keep her for 2-3 years." Journals of Lawrence Taliaferro, supra note 42 (May 29, 1826). Similarly, in a letter of July 1833, Dr. Jarvis, the post's surgeon at the time, wrote to his family that: "Mrs. T. [presumably Mrs. Taliaferro] intends to go in a few days .... I shall not want Plum as a servant." Id. (July, 1833). Presumably, he would be able to have one of the Taliaferros' servants. Later letters on the subject of expenses indicate that he was paying a regular amount for a servant's services. See generally Letters of Dr. Nathan Jarvis (Jarvis letter file, Minn. Historical Soc'y, St. Paul, Minn.) (on file with authors). 60. See Rachael v. Walker, 4 Mo. 350, 351 (1836). 61. Telephone Interview with Thomas Shaw, Historian, Historic Fort Snelling, Minn. (June 3, 1996). 62. The 1849 Minnesota census lists only 40 free persons of African descent in the entire state, 30 of whom lived in St. Paul, distributed among seven families, and two of whom lived at Fort Snelling. See David Vassar Taylor, The Blacks, in THEY CHOSE MINNESOTA: A SURVEY OF THE STATE'S ETHNIC GROUPS 73 (June Drenning Holmquist ed., 1981). 63. See Jeffrey A. Hess, Dred Scott: From Fort Snelling to Freedom, in HISTORIC FORT SNELLINO CHRONICLES 2 (1975). In addition, Colonel Josiah Snelling, the builder and first commander of the Fort in the 1820s, had kept a slave to wait on his family. See id. About the time that Dred Scott and Harriet Robinson were married, Lieutenant J.B.W. Stockton at Fort Snelling arranged to buy Rachael in St. Louis and deliver her to Fort Snelling; four years later Rachael won her freedom in Missouri courts by the argument that her stay at Fort Snelling had made her a free woman. See id. 64. See Journals of Lawrence Taliaferro, supra note 42 (July 14, 1832). 1997] Mrs. Dred Scott 1049 were thirty officers stationed at Fort Snelling during the 1830s, roughly six or seven at a time, which would probably mean an estimated slave population of perhaps fifteen to twenty enslaved people attached to the Fort and the Indian Agency.65 The presence of this entire community of enslaved people at the federal fort presents an obvious legal contradiction. Fort Snelling was in free territory: It straddled the head waters of the Mississippi River, where slavery had been prohibited since 1787. The Missouri Compromise provided:

That in all that territory ceded by France to the United States, under the name of Louisiana, which lie north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, and is hereby, forever, prohibited.6

These words were even stronger than the analagous provisions of the Northwest Ordinance 67 and the U.S. Constitution." Quite literally, therefore, Harriet and any of the other members of this community could not be deemed to have been held to servitude in some other state, if her master resided, as he continued to, in the free territory. This was the standard means of analyzing 69 slave or free status based on residence used in most cases. The presence of this entire community of enslaved people attached to the federal fort presents an additional point of interpretation. Harriet was not the personal slave of a master who happened to be passing through free territory or engaged in a temporary sojourn there. Harriet was part of an entire community of slaves, many of whom were bought from St. Louis slave markets under the auspices of the U.S. Military and Indian Agent Bureau to

65. Telephone Interview with Thomas Shaw. supra note 61 66. Missouri Compromise, ch. 22, § 8, 3 Stat. 545. 548 (1820). 67. Article VI of the Northwest Ordinance, creating the Northwest Temtoty. 5tated There shall be neither Slavery nor involuntary Servitude in the said temitory Proidcd always that any Person escaping into the same, from whom labor or serv.ice is la% fully claimed in any one of the original States, such fugitive may be lawfully reclaimed and concyed to the person claiming his or her labor or service as aforesaid. I Stat. 51 (1787), reprinted in THE NoRTHwEST ORDINANCE. 1787- A BIcEj.NTIu'%IAL HANDBOOK 72 (Robert M. Taylor, Jr. ed., 1987). 68. The relevant portion of Article IV states: No Person held to Service or Labour in one State. under the Laws thereof. escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to %hom such Service or Labour may be due. U.S. CONST. art. IV, § 2, cl. 3. Similarly, the Thirteenth Amendment states, in pertinent pan: Neither slavery, nor involuntary servitude, except as a punishment for crime %%hercofthe party shall have been duly convicted, shall exist within the United States. or any place subject to their jurisdiction. Id. amend. XIII, § 1. 69. See In re Mary Clark, I Blackf. 122 (Ind. 1817); It rs Ralph. I Morms I (lowsa 1839) 1050 The Yale Law Journal [Vol. 106: 1033 redress what was perceived as a serious labor shortage and to assist in federal objectives. These individuals' slavery was not the simple byproduct of the inheritance of Southerners who went North with their personal property. Several of these individuals were purchased in the St. Louis slave market expressly for the purpose of making the trip and they were paid for with monies specifically allotted for their labor by the U.S. government.70 By allowing and even indirectly encouraging the presence of slaves at the federal fort, the U.S. government gave a unique institutional legitimacy to slavery at Fort Snelling and the other Northern forts. As a consequence, the introduction of slavery there was all the more pronounced and all the more threatening to the fragile cooperation between North and South.

B. The Marriage and Its Symbolism

Sometime between May 8, 1836, and September 14, 1837, a remarkable event occurred in Harriet Robinson's life. In a formal ceremony performed by Major Taliaferro, she was married to Dred Scott, slave of Dr. John Emerson, the post surgeon. This event bears enormous significance in determining Harriet's claim to freedom. Investigating the sociopolitical context of the event and of Major Taliaferro's attitude toward marriage further illuminates that significance. As the Indian Agent, Major Taliaferro served as the Justice of the Peace for the area. He was the civilian authority and would have had legal authority to marry anyone in the territory who was not under military authority. It was extremely difficult to find someone to officiate at a marriage in the region. Major Taliaferro was also, in a sense, the territory's religious authority. Although many fur traders were Catholic and would travel downriver to have their marriage ceremonies performed by a priest,72 Major Taliaferro performed marriages for the Protestant squatter-settlers of the Camp Coldwater area and for fur trading families who did not wish to undertake the trip

70. See Rachael v. Walker, 4 Mo. 350 (1836) (describing circumstances of Rachael's procurement from St. Louis market); John H. Bliss, Reminiscences of Fort Snelling, in 6 COLLECTIONS, supra note 12 (describing his family's stop at St. Louis slave market to buy two slaves before reaching Fort Snelling): Snyder, supra note 27, at 442 (describing Emerson's purchase of Dred Scott just before he left St. Louis for his first army assignment at Fort Armstrong). 71. See W.H.C. FOLSOM, FIFrY YEARS IN THE NoRTHwEsT 91-92 (St. Paul, Minn., Pioneer Press Co. 1888). Under the heading, "Marriage Under Difficulties," Folsom writes: In the olden time officers could not always readily be found to execute the laws. Parties desiring to be married, being unable to secure the services of a minister or justice of the peace, would seek for an officer on the other side of the river, get on a raft or boat, cast off the fastenings and under the concurrent jurisdiction of the state and territorial authorities, would be pronounced "man and wife." Parties have had the same rite performed in the winter season while standing on the ice of the St. Croix midway between the two shores. Id. 72. See Records of Bishop Loras (Papers of Bishop Loras, Loras College, Dubuque, Iowa) (on file with authors). 1997] Mrs. Dred Scott 1051 downriver.73 As a member of the Presbyterian church in an area without a resident chaplain, minister, or priest, therefore, Taliaferro performed these ceremonies clothed in spiritual and religious authority. In addition to his status as civil authority in the Territory, as the Indian Agent, Taliaferro assumed a particular mission. He was engaged not only in negotiating treaties and making peace between the American government and the various warring tribes, he was also engaged in advancing the federal policy of domesticating the tribes by ordering seeds, hoes, and plows, and in teaching them to be the yeoman farmers that federal Indian policy 74 would later

73. See Taliaferro, supra note 12. at 234-35. 74. Taliaferro's journals of 1824 through the 1830s give detailed entries about his attempts to encourage farming among the Sioux at a place he called his "Lake Harriet experiment.- Journals of Lawrence Taliaferro, supra note 42 (Sept. 4. 1835; Feb. 12, 1836). Taliaferro's experiment seems to have been even more of a personally inspired project than a government mandate in those years. During the first half of the nineteenth century, the government's intention to "'civilize" Indian tribes coexisted with its countervailing intentions to prevent the extinction of Indian tribes and to push them ever closer to the frontier, away from more settled portions of the country. According to Francis Prucha. the proposals focusing on bettering Indians' condition all embodied "a deepseated and common conviction of what civilization meant, even though most of the officials concerned never bothered to think philosophically about the concept." FRANCIS PAUL PRUCHA. THE GREAT FATHiER: TIlE UNITED STATES GoVERN'tE:r AND THE AMERICAN INDIANS 135-36 (1984). Such officials relied on the accepted wisdom of the day, which reflected ideas that were pan of their \Vestern European heritage. To civilize meant to bring to a state of civility out of a state of rudeness and barbarism, to enlighten and refine. It meant as a minimum to lead persons who lived a natural life in the wilderness, relying upon hunting and gathering, to a state of society dependent upon agriculture and domestic arts (spinning and weaving); to this was added instruction in reading. writing, arithmetic, and the truths of the Christian religion. Id.at 136. Although the problem of educating and civilizing the Indians occupied the minds of government leaders from the founding of the Republic, it was not until 1818 that the notion of education began to figure prominently in government proposals. Until that time, treaties generally provided for lands to be ceded and for annuities to be paid. In some cases, mills were also built, and the support of a blacksmith was provided. but the intention that underlay these provisions involved fulfilling the Indians' material needs rather than "instruct[ing] them in these necessary industrial arts." LAURENCE F. SCIMECKEBIER. TIi OFFICE OF INDIAN AFFAIRS: ITS HISTORY, ACTivmES AND ORGANIZATION 38 (1927). According to Schmeckebier. the concept of educating the Indians first appeared in the legislative branch, with a report of the House Committee on Indian Affairs of January 22, 1818: [N]othing which it is in the power of the Government to do would have a more direct tendency to produce this desirable object [civilization] than the establishment of schools at convenient and safe places among those tribes friendly to us .... Id.at 39 (citation omitted). Subsequently, this Committee introduced a bill, passed at the end of the next session of Congress, which permanently appropriated $10,000 for both industrial and scholastic education. according to the following terms: That for the purpose of providing against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be. and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent. to employ capable persons of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic, and performing such other duties as may be enjoined, according to such instructions and rules as the President may give and prescribe for the regulation of their conduct, in the discharge of their duties. Id. (citation omitted). However, because the government did not possess the -administrative machinery- to implement this plan of civilization, the annual appropriation of S10.000 was shared among many missionary organizations, who also received the treaty funds that later became available for education Thus. 1052 The Yale Law Journal [Vol. 106: 1033

endorse. One of the domesticating influences that Taliaferro sought to 75 encourage was Western-style Christian marriage. Sexual relations between soldiers stationed at Fort Snelling and Indian women were a constant source of difficulty and instability for the relations between the Indians and the Fort. Taliaferro had quarreled with his then- commanding officer Captain Gale over whether the frequent visits of Indians into the fort complex had been undermining Taliaferro's efforts as Indian Agent to deal effectively with the tribes. Captain Gale had objected that restricting visits would lower soldier morale. After several weeks of quarreling, Captain Gale finally issued the following order:

The Commanding Officer has within a few mornings past discovered Indian women leaving the garrison immediately after reveille. The practice of admitting Indians into the Fort to remain during the night is strictly prohibited. No officer will hereafter pass any Indian or Indians into the garrison76 without special permission from the Commanding Officer.

Taliaferro also commented in his diaries about the unfortunate spread of venereal disease among the native women.77 Social instability and bloodletting resulted from numerous incidents of military men assaulting Indian women. Taliaferro regularly reported these incidents in his journals because, as he was in charge of maintaining civil relations with the tribes, the tribes would bring their grievances to him. In his journals, Taliaferro documented the efforts he took to raise these issues with the commanding officer of the Fort.78 In a similar vein, one military family

from the period spanning the years from 1819 to 1842, missionaries entirely directed the education of Indians, holding complete power over the expenditure of the funds that the government allotted to them. See id. at 40. The intended function of education in managing Indian tribes is exemplified in the attitudes and work of Carey Allen Harris, Commissioner of Indian Affairs from 1836 to 1838, which executed Jackson's Indian removal policy and increased the government's control over relocated tribes in the West across the Mississippi. He hoped that these programs would "mak[e] Indian youth more amenable to American policies." THE COMMISSIONERS OF INDIAN AFFAIRS, 1824-1977, at 20 (Robert M. Kvanicka & Herman J. Viola eds., 1979). In pursuit of this goal, Indian schools were meant to enroll only those pupils whose parents possessed "the power to influence the sentiment or the conduct of others favorably." Id. (quoting letter from Harris to Henry Dodge (July 29, 1836)). Thus, for Harris, "education was a convenient form of social control." Id. (quoting letter from Harris to Henry Dodge (July 29, 1836)). Far from being an altruistic gesture (even within an ethnocentric world view that conceived of Western culture as the highest possible attainment of civilization), the educational goals of Harris and his contemporaries were closely linked to their need to control and domesticate Indian tribes. 75. See infra notes 83-85 and accompanying text. 76. E.D. Neill, Occurrences in and Around Fort Snelling, in 2 COLLECTIONS OF THE MINNESOTA HISTORICAL SocIETY 21, 38 (Philadelphia, Henry B. Ashmead Book & Job Printers, 1860). 77. See Journals of Lawrence Taliaferro, supra note 42 (Dec. 6. 1827). 78. Major Taliaferro's journals chronicle a series of such incidents. See Journals of Lawrence Taliaferro, supra note 42 (Dec. 6, 1827) ("Indian women at Fort Snelling have V.D. badly"); id. (Aug. 12-14, 1830) ("servant girl struck by Sioux Indian"); id. (July 8, 1831) ("2 soldiers attempting violence on 2 young Indian women, reported to officer, nothing done"); id. (July 17, 1834) ("assault on women. 2 soldiers, drunk during a Hay cutting party, reported to Major Bliss for having beaten 2 Sioux women."). 1997] Mrs. Dred Scott 1053

who kept a "nice-looking yellow girl"79 as a slave decided to send her back to St. Louis to the slave market, not because she was not a good servant but because she had become "such an attractive belle among the soldiers."' o Major Taliaferro often expressed concern in his journals about the habits, quarreling, and lack of sensibilities and propriety of men stationed for long periods of time at the remote camp." He complained that the Army practice of stationing of soldiers at Fort Snelling for ten-year stints reduced the men to virtual animals and eliminated from them the finer sentiments of civilization. 2 Thus, an actual marriage ceremony performed by Major Taliaferro had important symbolic significance within the local multicultural community. Confronted with the task of bringing civilization to this remote Northern camp, Taliaferro regarded marriage as an institution with great domesticating potential. Marriage was intended by Major Taliaferro to reinforce and regularize the family structure within many cultural groups. 3 Marriage would

79. Bliss, supra note 70, at 335. 80. Id. at 336. 81. See Journals of Lawrence Taliaferro. supra note 42 (Apr 13. 1828) 82. See id. 83. Central to government officials' vision of "civillizng" Indian ibes %%as the ncessit) of imparting to Indians a reverence for and a family-oriented stake in property Memll Gates. member and secretary of the Board of Indian Commissioners. articulated this vision in a long paper on Indian policy. ,.hich %%as printed in the Board's 1885 Annual Report: "The family is God's unit of society On the integnit) of the family depends that of the State. There is no civilization deserving of the name %%here the family is not the unit of civil government." Merrill E. Gates. LaUnd and Lan as Agents ti EhUrczUnmg Indians. in AMERICANIZING THE AMERICAN INDIANS 45. 50 (Francis Paul Prucha ed. 1973) In this belief. Gates was simply following the lead of Bntish Moral Philosopher William Pale). tthosc work had profoundly affected American reformers since the 183 0s Accordingly. it %%as crucial to shore up the individual's (read: individual man's) commitment to his family as opposed to his tribe In keeping ".ith this goal, officials discouraged polygamy and promoted strong intranuclear family tics including. of course. marital ties: Thus the family and a homestead prove the salvation of those ,,hom the tribal organization and the reservation were debasing.... In this way, too, family affection and care for the education and the tirtue of the ,oung are promoted. Thus such law as is necessary to protect virtue, to punish offenses against purity. and to abolish polygamy, will be welcomed by the Indians These lav.s enforced %%illhelp still further to develop true family feeling. Family feeling growing stronger and stronger as all the members of the family work on their own homestead for the ,,elfare of the home. ,.ill itself incline all toward welcoming the reign of law. and will increase the desire of all for s) stematic education. Id. at 52. Henry Teller, Secretary of the Interior, sounded similar themes in directis expressing his discomfort with remnants of Indian culture that countered the government's efforts to transform Indians into American citizens. Quoting from a letter to the Commissioner of Indian Affairs that he %%rote on December 2, 1882, he asserted: The marriage relation is also one requinng the immediate attention of the agents While the Indians were in a state of at least semi-independencc. there did not seem to be any great necessity for interference, even if such interference was practicable (,,hich it doubtless %,asnot) While dependent on the chase the Indian did not take many wives. and the great mass found themselves too poor to support more than one; but since the Government supports them this objection no longer exists, and the more numerous the family the greater the number of the rations allowed. I would not advise any interference with plural marnages of that character The marriage relation, if it may be said to exist at all among the Indians. is exceedingly lax in its character, and it will be found impossible, for some time yet. to impress them usith our idea of 1054 The Yale Law Journal [Vol. 106: 1033 domesticate the native peoples in the Territory. Marriages performed among the people living at Camp Coldwater would turn the wandering squatters into more stable settlers. Marriage would set a standard for the soldiers stationed at the Fort, whose sensitivities, Taliaferro often complained, had been blunted by their extensive time living in the wilderness. Since Major Taliaferro was the only authority on Indian policy within 200 miles for an area that covered what would become three large states, his vision of marriage's civilizing function had a significant impact upon Indian policy. In Taliaferro's autobiography, written in 1864, Taliaferro reflected on his actions as explicitly designed for this purpose.

In order to enforce morality as far as practicable, being the highest officer at the post, [I] induced many traders with growing Indian families to legitimize their children by marriage. There being no minister in the country, [I] officiated as a justice of the peace, and united many ..... 4

Although Taliaferro did not explain the disposition of all of his slaves, he is explicit in his autobiography in documenting the marriage of Dred Scott and Harriet Robinson. Major Taliaferro noted that he performed the marriage of Dred Scott and Harriet Robinson, his "servant girl," whom he "gave" to Dred.85 By reference to other events, we can date the marriage as having occurred at one of two times: early after Dred's arrival at Fort Snelling, or the following year, after the treaty of 1837. The marriage must have taken place sometime between May 8, 1836, when Dr. Emerson arrived at Fort Snelling with Dred,

this important relation. The marriage state, existing only by the consent of both parties, is easily and readily dissolved, the man not recognizing any obligation on his part to care for his offspring. As far as practicable, the Indian having taken to himself a wife should be compelled to continue that relation with her, unless dissolved by some recognized tribunal on the reservation or by the courts. Some system of marriage should be adopted, and the Indian compelled to conform to it. The Indian should also be instructed that he is under obligations to care for and support, not only his wife, but his children, and on his failure, without proper cause, to continue as the head of such family, he ought in some manner to be punished, which should be either by confinement in the guardhouse or agency prison, or by a reduction of his rations. Henry M. Teller, Courts of Indian Offenses, in AMERICANIZING THE AMERICAN INDIANS, supra, at 295, 297. Subsequently, in 1892, Commissioner of Indian Affairs Thomas J. Morgan, in listing the regulations for courts of Indian offenses, included a provision punishing "(p]lural or polygamous marriages" with fines, sentences to work at hard labor, and deprivation of rations. See Thomas J. Morgan, Rules for Indian Courts, in AMERICANIZING THE AMERICAN INDIANS, supra, at 300, 302. These sanctions indicate the government's intention to make monogamous marriage the cornerstone of its civilizing efforts by the 1880s. 84. Taliaferro, supra note 12, at 234-35. 85. Id. at 235. Accounts of the events leading up to this marriage differ. Ehrlich describes Harriet and Dred as becoming "closely attached" and subsequently married. EHRLICH, supra note 3, at 20. All the other accounts simply narrate the fact of Harriet and Dred's marriage, without preamble. No description of slaves' courting at Fort Snelling exists. For a description of slaves' courting practices in plantation areas, see EUGENE D. GENOVESE, ROLL, JORDAN, ROLL 469-71 (1974). 19971 Mrs. Dred Scott 1055 and September 14, 1837, when Lieutenant James Thompson, who hired Harriet 6 from Dr. Emerson rather than from Major Taliaferro, came to Fort Snelling.s Dred Scott, whom the Blow family had brought to St. Louis from Virginia by way of Alabama, had been sold to Dr. John Emerson for $500 to serve as his personal valet or "body servant." 87 While there is no record of a previous marriage for Harriet, there are accounts that Dred had had an earlier wife from whom death or the dictates of enslaved life had separated him." By focusing on the life of Harriet's master, we can narrow the range of possible dates for her marriage. Dr. Emerson and Dred Scott arrived on May 8, 1836; by June 25, Taliaferro was actively involved in prenegotiations to the Treaty of 1837.89 Harriet Robinson and Dred Scott might have been married in that first month of their acquaintance. Knowing that he was leaving for the East for some time, Taliaferro, in a show of paternalism that would have been characteristic of him, would have made some provision for Harriet rather than leaving her adrift without the protection of a master at Fort Snelling. He could have rented her out, as he documents the renting out of some others of his slaves from time to time, or he could have married her into the protectorship of Dr. Emerson, who would have been certain to keep her safe and see that she had food in the intervening winter. Food was in especially short supply during the winter months and one of the few ways to assure that someone in the area would regularly have food was to attach them to Army personnel, who would be more likely to be guaranteed food. The other time the wedding could have occurred was in the dramatic summer of 1837, which witnessed a major treaty negotiation between Governor Henry Dodge, the fur traders, and the Sioux and Ojibwa tribes, with the

86. See EHRuICH, supra note 3, at 21. 87. Bryan, supra note 30, at 224-27. Ehrlich, interpreting the evidence of the sale. suggests a theory that would have placed the date of sale before the death of Peter Blow, the head of the Blow family, but does not necessarily disturb the conclusion that the Blow family sold Dred to Dr. Emerson. See EURLILit. supra note 3, at 11-15. Another commentator reports: It is not surprising that Scott's two-year stay at Fort Snelling attracted little attention from other residents of the post. At that time all officers were entitled by law to a certain number of servants while on active duty. The expense of these servants was partially subsidized by the government, army regulations declaring that "'all officers be allowed, for each private servant... the pay, rations, and clothing, of a private soldier, or money in lieu thereof." Hess, supra note 63, at 1. 88. There had been no children of the first marriage, nor was there a record of an earlier divorce or the identity of Dred's first wife. One account, published in a Minnesota newspaper on the 125th anniversary of the event, relates that Scott was permitted to marry a young slave belonging to a neighbor in St. Louts. "In a few short months, (his] bride was sold at auction and shipped to a plantation in Arkansas. causing him to attempt an escape. He was caught by professional slave catchers, brutally beaten and returned to his owners." Denise Johnson, Trial of Dred Scott Began in Minnesota. ST. PAUL PIONEER PRESS. Oct. 7. 1979, at 18. The article adds: "He then renamed himself Dred Scott." Id. 89. Dr. Emerson and Dred Scott arrived at Fort Snelling from Fort Armstrong with the Fifth Infantry after the fort at Fort Armstrong was decommissioned. Interview with Thomas Shaw. supra note 61. An extensive account of the treaty negotiations is provided in MARCUS L. HANSEN, OLD FORT SNELUING 1819-1858, at 176-86 (1918). 1056 The Yale Law Journal [Vol. 106: 1033 encampment of several thousand Indians around the Fort. Taliaferro continued to lay the plans for a major treaty negotiation. For her part, Harriet probably helped to prepare the ritual dinners that, along with ritual dances, accompanied the negotiation of the treaty.90 During this hectic period, the Fifth Infantry returned to Fort Snelling to maintain security during the negotiations.9 Finally, an agreement was set on July 29th that year, followed by still more dancing by the Ojibwa braves. 92 In the course of this important event, it would seem unlikely that Major Taliaferro would have had much time to marry Harriet Robinson and Dred Scott. Major Taliaferro subsequently left Fort Snelling to escort a Sioux delegation to treaty negotiations in Washington, D.C.93 Yet one month later, after the visiting dignitaries and many of the tribes had left, it was noted in the later litigation that Dr. Emerson, and not Major Taliaferro, had hired out Harriet's services to the household of yet another officer, Lieutenant James L. Thompson and his wife, for the time until Christmas. 94 Thus, it seems prudent to surmise that, if the marriage was performed at any time in 1837, it was after the major treaty negotiations during the month of August. Two other significant events occurred during the summers of 1836 and 1837. First, Rachael, a slave who had been brought to Fort Snelling in the early 1830s to serve another army lieutenant, successfully sued for her freedom in Missouri courts in St. Louis.' Rachael's case set the precedent on which the Scotts would later pin their own claims for freedom. Rachael had been brought to Fort Snelling by the Indian Subagent,96 the master in the next house, and had been at the Fort from 1830 to 1831. Should Harriet have arrived by then, she would most certainly have known Rachael personally. Word of Rachael's later success would likely have reached Fort Snelling because Rachael's success would have affected the slaveholding stakes of all owners in the Fort community. People stationed at the Fort were especially eager for news from St. Louis, which they viewed as the closest city of real civilization, as well as for news about others who had left the Fort. Taliaferro's

90. Even if Harriet had been married to Dred the previous summer, her services would have been called upon for this major event. Dr. Emerson was not married at this point and he had no need to support an extensive domestic lifestyle. Major Taliaferro's wife was not in attendance to assist him, but given the sheer magnitude of the social event of treaty making that Taliaferro was planning, Taliaferro would have called on all of his "servants" and perhaps even those of other owners. 91. Telephone Interview with Thomas Shaw, supra note 61. 92. See HANSEN. supra note 89, at 183. For an extensive account of the treaty negotiations, see id. at 176-86. 93. See id. at 184. 94. In fact, late in the fall of 1837, Dr. Emerson also left Fort Snelling. Dr. Emerson finally received his long-awaited transfer papers back to the civilization of St. Louis. Dr. Emerson may have anticipated these papers coming through when he placed Harriet with the Thompsons. At any rate Dr. Emerson left the Scotts behind. His papers arrived so late in the fall that the riverboats had stopped running and he had to travel by canoe, so leaving the Scotts at Fort Snelling was prudent. See EHRLICH, supra note 3, at 21. 95. See Rachael v. Walker, 4 Mo. 350, 350 (1836). 96. See supra notes 50-55 and accompanying text. 1997] Mrs. Dred Scott 1057 journals, in fact, note that he received letters from two principal witnesses in the case-Rachael's prior owner, Lieutenant Stockton, and the Quartermaster Josiah Brant (who had arranged Rachael's purchase)-six months earlier, just at the time that the lower court had summoned witnesses in her case. 7 Secondly, the transfer and resignation of some of Fort Snelling's officer personnel that year would have led to shifting arrangements for slave labor at the Fort. This change of military officer personnel triggered changes in the needs for labor and led some officers to manumit their slaves. For instance, when one officer, Lieutenant Bliss, resigned to move his family back East, he manumitted his slave, Hannibal, who had been purchased for his family's stay at Fort Snelling.9" Over the several years following her marriage, Harriet's life would have been occupied with pregnancies. Harriet bore Dred Scott four children, two sons and two daughters, but only the daughters lived. The court documents list their oldest daughter, Eliza, as born "on board the Steamboat Gipsey north of the north line of the State of Missouri & upon the River MIississippi."' Eliza's place of birth would be critical for the later suit for freedom. In attempting to date the birth of Eliza, some historians have interpreted her name as a tribute to Dr. Emerson's new bride, Eliza Irene Emerson, whom he did not marry until 1838.' 00 These historians have failed to note, however, that "Elizabeth," the long name for "Eliza" and the name of Dr. Emerson's new wife, was Major Taliaferro's wife's name as well. Mrs. Taliaferro was sometimes referred to as 'dear cousin Eliza" by Taliaferro's correspondents.'0 ' The naming of their second daughter, Lizzie, follows this naming pattern of "Elizabeth." Were the two girls named after Eliza Emerson, Elizabeth Taliaferro, or, in yet another alternative, Elizabeth Blow?e z Virtually every white mistress of influence in either Dred or Harriet Scott's lives was named "Elizabeth."

97. See Journals of Lawrence Taliafcrro. supra note 42 (Nov. 26. 1835). The same mail dchcr) brought Taliaferro both letters. Josiah Brant procured Rachael in theSt. Louis slave market See id Rachael sued for her freedom on March 23 of that year. See Original Court Papers and Transcripts. Rachacl v Walker, 4 Mo. 350 (1836), recorded by Clerk of Court. May 16. 1836 (StLouis County Clerk of Court. St. Louis, Mo.) (on file with authors) [hereinafter Rachael Papersl 98. See Bliss, supra note 70, at 336. Other than the account of this e%ent in memoirs. %%ehase been unable to find a document of manumission for Hannibal. 99. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393. 398 (1857). 100. Both Ehrlich and Fehrenbacher assert that Eliza was named after Dr. Emerson'- %tfe. Eliza Irene Emerson, without considering the possibility that both she and Lizzie might ha e been named after Major Taliaferro's wife, Elizabeth Dillon Taliaferro. See EIRLICII. supra note 3. at 25. FEHRE-NBACIIER. supra note 3, at 246. 101. Journals of Lawrence Taliaferro, supra note 42 (Jan. 2. 1829) (letter from Joseph Street). 102. Elizabeth Blow was the daughter of Peter Blow. Dred Scott's original o%%ner. and %%as the sister of Taylor Blow, who arranged for Dred Scott's burial. Elizabeth may also have been responsible for selling Dred to Dr. Emerson. See FEHRENBACHER, supra note 3. at 241 1058 The Yale Law Journal [Vol. 106: 1033

But perhaps Eliza was not named after a white woman at all. Perhaps she was named instead after the slave Eliza from Taliaferro's household. 03 One of the first of Taliaferro's slaves referred to extensively in his journals was a slave woman named Eliza who bore a girl child and later a son, who died. Harriet probably would have assisted in these births. Eliza was later promised her freedom by Taliaferro, events that Harriet may have wanted to memorialize. Another name on Taliaferro's list of slaves he had owned was "Lizzie," the name of the Scott's other daughter. By looking only at Dred's series of residences and not Harriet's, one misses this possible nuance.' 4 Harriet's second daughter Lizzie was born in Missouri at the military post called Jefferson Barracks in St. Louis, within the slave state of Missouri. 05 But if Harriet were free at this point, Lizzie, as the daughter of a free mother, would herself have been free, regardless of her place of birth."o Hence, in the later lawsuit, the freedom of three members of the family hinged directly on establishing Harriet's freedom rather than Dred's. In April 1838, Dr. Emerson sent for the Scotts to come to Fort Jesup, Louisiana, 0 7 only to return to Fort Snelling in October 1838, with them, the newborn Eliza, and his new bride. In 1840, Dr. Emerson left Fort Snelling once again, this time heading for Florida, leaving the Scotts with his wife in

103. Indeed, this latter explanation gains strength from Peter Kolchin's observation that it was a widespread practice for slaves to avoid naming their children after their owners. See KOLCHIN, supra note 18, at 46. Major Taliaferro's journal states: "note servant girl Eliza delivered of a female child this morning after 1:00 a.m." Journals of Lawrence Taliaferro, supra note 42 (Feb. 23, 1831). Harriet was probably in Major Taliaferro's household at this time. Still later, Taliaferro's journals mention the death of Eliza's five- and-a-half-month-old son Jarvis. See id. (Sept. 9, 1836). Eliza's name is also the first name on the list of slaves Major Taliaferro says that he freed. See Lawrence Taliaferro, Handwritten list of "21 freed from slavery," in Minn. Historical Soc'y, supra note 42. 104. Elizabeth Fox-Genovese notes: Names held great symbolic significance for slaves, as for slaveholders. Especially under conditions in which families could all too easily be fractured by sales, the choice of a name could provide an important link in the delineation of kin and a statement of an independent identity. To this day, Afro-American women in the deep South make up names for their children that symbolically confirm the bearer's unique identity. Slaveholders considered it a sign of condescension and interdependence to bestow their own names on their slaves' children, but many slaves saw that benevolence as an act of usurpation. ELIZABETH Fox-GENOVESE, WITHIN THE PLANTATION HOUSEHOLD 325 (1988) (citation omitted). Fox- Genovese also recounts the story of Sarah Wilson, whom her mistress named Annie, but whom her own mother had named Sarah. Sarah's mother was afraid to change the child's name until her mistress's death. See id. at 324. 105. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 398 (1857) (quoting agreed statement of facts by counsel for both parties). 106. The states generally adopted the rule that the status of the child followed that of the mother. For example, under one 1785 Virginia statute, reproduced in John Codman Hurd's treatise, "no person shall henceforth by [sic] slaves except such as were so on the first day of this present session, and the descendants of the females of them." 2 JOHN CODMAN HURD, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES 4 (Boston, Little, Brown & Co. 1862); see also id. at 14, 146, 160-61; THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 42-49 (1996); GEORGE M. STROUD, A SKETCH OF THE LAWS RELATING TO SLAVERY IN THE SEVERAL STATES OF THE UNITED STATES OF AMERICA 1-2, 9-10 (Negro Univs. Press 1968) (1865). 107. See EHRLICH, supra note 3, at 22. 1997] Mrs. Dred Scott 1059

St. Louis.'0 8 In 1842, he returned to St. Louis for a leave of absence, and when he went back to Florida, Mrs. Emerson accompanied him.' Although we do not know whether the Scotts ever went to Florida as well, we can speculate that the Scotts probably would have remained behind in St. Louis, since whites feared the prospect of African slaves running away to aid in the uprising during the Seminole War."0 At any rate, by March 1846, at the inception of the lawsuit, Dred, Harriet, and their daughters were in St. Louis and had been there for some time.

II. ORIGINS OF THE LAWSUIT AND THE MEANS TO ACHIEVE FREEDOM

In 1846, Harriet, now 28, and Dred, now 51, instituted their suits for freedom, a set of lawsuits that would last for eleven years."' Two separate suits were filed in the Circuit Court of St. Louis County against Mrs. Emerson, one by Dred Scott and the other by Harriet Robinson Scott.

Dred Scott v. Irene Emerson was docketed as No. 1 for the November term, 1846; Harriet Scott v. Irene Emerson was No. 2. With the exception of the initial petitions of April 6, 1846, almost all the proceedings in the ensuing litigations were exactly the same. Then, on February 12, 1850, an agreement was made that "inasmuch as the points and principles of law to be decided [in the two cases were] identical," only Dred Scott v. Irene Emerson would be advanced, and any determinationl2 in that case would apply to Harriet's suit as well."

108. See id. at 23. 109. See id. at 26. 110. Regarding the role of African Americans in the Seminole Wars. see JOitN MAIfIO.N. HISTORY OF THE SECOND SEMINOLE WAR 1835-1842 (rev. ed. 1991): and KENNETH WIGGINS PORTER. TiE NEGRO ON THE AMERICAN FRONTIER: SELECT PRELIMINARY STUDIES (1971). 11I. The Scotts' litigation went through a tortuous course. When the Supreme Court handed do%%n the decision in 1857, that decision was the culmination of more than a decade of litigaton. At first. the litigation consisted of two lawsuits filed in the Missouri Circuit Court at St. Louis. The trial court issued a verdict in favor of Mrs. Emerson, but granted the Scotts a new trial. Mrs. Emerson's lawyers appealed to the Missouri Supreme Court, but to no avail. After a trial that ended with a verdict making Dred and Harriet nominally free, Mrs. Emerson's lawyers pursued another appeal to the Missouri Supreme Court. At this point, these lawyers also stipulated that the high court's decision in Dred's case would determine Harriet's fate as well. Writing for the majority in 1852. Judge Scott ruled against the Scotts. The court departed from the line of Missouri precedents that freed slaves who had established a permanent residence in free territory. While adhering to the principles of comity. the judge lauded the civilizing force of slavery in an opinion whose scope encompassed both residence and mere sojourning. In November 1853, the Scotts' attorneys filed a suit for freedom on Dred's behalf in the United States Circuit Court for the District of Missouri. The federal forum's diversity jurisdiction purportedly arose from a transfer of ownership of the Scotts from Mrs. Emerson to her brother. John Sanford. a resident of New York. In 1854, after a preliminary ruling by Judge Wells that Dred Scott qualified as a citizen for purposes of diversity, the trial court followed the reasoning of the Missouri Supreme Court to deny Dred Scott his freedom. Finally, in 1857, the United States Supreme Court held that Dred Scott was not free. For a lengthy description of the case's procedural and substantive aspects, see FEHRENBACHER. supra note 3. 112. EHRLICH, supra note 3, at 43. 1060 The Yale Law Journal [Vol. 106: 1033

With this unobtrusive, seemingly technical, legal gesture, the Scotts' lawyers buried Harriet's case and may have sealed the Scott family's fate.

A. Impetus Toward Freedom

In the mid-nineteenth century, slaves who sought their freedom confronted a monumental task. Only three alternatives were open to them: manumission,' 13 escape, and suits for freedom. The Scotts chose to sue. We have only circumstantial information about how, why, and when Dred and Harriet Scott felt the impetus to sue for freedom; their impetus to sue for freedom at this point in their lives is one of the mysteries of the lawsuit. Why did the Scotts not sue earlier? Why did the Scotts choose to sue rather than simply flee to free territory? There has been extensive speculation about the reasons for the suit and why this suit, of all the freedom suits, ultimately spurred the Supreme Court Justices to pen their infamous words. Almost every generation of historiographers has speculated about Dred Scott's impetus to freedom. These speculations have all considered only Dred Scott's motivations.

113. Slaveowners' power to manumit their slaves was actively regulated by Southern legislatures in the nineteenth century. Indeed, most of the states of the Deep South prohibited manumission except by a legislative act that rewarded individuals for "meritorious service." See, e.g., 2 HURD, supra note 106, at 143 (quoting Mississippi statute permitting emancipation "only for meritorious services on application to the legislature, and security given"). Courts adopted varying attitudes toward slaveowners' wills manumitting slaves, but the judicial trend lay in the direction of overturning such wills. See KOLCIItN, supra note 18, at 128. Deepening the trend away from manumission still further, at least two Southern states prohibited manumission unconditionally by the decade before the Civil War. See id. Writing in 1862, John Codman Hurd collected state statutes addressing slavery and freedom. His work identifies two states-Arkansas and Louisiana-that absolutely prohibited the manumission of slaves by 1860. See 2 HURD, supra note 106, at 165-66, 174. At the same time, several other Southern states, such as the Carolinas, Georgia, and Mississippi, as well as border states like Delaware, imposed conditions on manumission ranging from prohibiting testamentary (sometimes called "post-mortem") manumission to requiring manumitting slaveowners to post security. See id. at 76-77, 82, 99, 109, 143, 149. Compounding the legal difficulties surrounding manumission were the social and economic difficulties of gaining freedom from slaveowners who were often opportunistic, if not actively hostile, about slaves' liberation. Owners sometimes manumitted slave women who had been their mistresses and the mothers of their children. Many slaves were also freed by will. Some of these testamentary manumissions required the freed slaves to reimburse the estate's heirs for their loss, while a few slaves were permitted to pay the price of freedom in installments. See HARRISON ANTHONY TRExLER, SLAVERY IN MISSOURI 1804-1865, at 219-20 (1914). Often, economic considerations carried the day, with slaves or their friends or relatives buying their freedom. See id. However, such exchanges required not only the money to make the barter-a difficult obstacle to overcome, since any property "owned" by slaves technically belonged to their masters-but also a master sympathetic to manumission. This second requirement was even more difficult to satisfy than the first. For instance, in her novelized autobiography, Harriet Jacobs recounts her struggles with her master, who refused to allow her to purchase her freedom and the freedom of her children after she refused to become his mistress. See JACOBS, supra note 52, at 80-85. Nevertheless, some slaves did manage to achieve freedom through manumission with varying degrees of success in different regions of the South. In St. Louis County, Missouri, where Dred and Harriet Scott filed their petitions for freedom in 1846, slaves were "steadily and increasingly liberated" after 1830. See TREXLER, supra, at 224. To be sure, not many slaves were manumitted in any given year; 4 were manumitted in 1830, 3 in 1831, 12 in 1832, 3 in 1833, 28 in 1836 and 1837, and 49 in 1855 and 1858. See id. This number of manumissions was anomalous in the state, which as a whole manumitted few slaves. See id. at 223. 1997] Mrs. Dred Scott 1061

In 1907, Frederick Trevor Hill asserted that financial motives underlay the suit. Although the suit was aimed at winning the Scotts' freedom, Hill maintained that its true purpose was to facilitate a second suit against the Emerson estate to recover back wages in the wake of a judicial finding that Dred Scott had been held illegally as a slave." 4 But Hill's theory has proven implausible. Two aspects of Hill's argument, pointed out in a 1929 historiography,t 5 suffer fatal weaknesses. First, the origin of Hill's claim was traced to a statement in the 1903 death notice of Dr. Emerson's widow, Mrs. Emerson-Chaffee, that the lawsuits' objective was to "pave the way" for the later suit for back wages."16 Although this idea may have formed in Mrs. Emerson-Chaffee's mind in her later years, "its emergence, nearly sixty years after the event, [was] ... too late to entitle it to serious consideration."' " Second, and more persuasively, Dr. Emerson's estate had long been settled by 1846, lIg leaving no monies against which a wage claim could have been filed. Mrs. Emerson-Chaffee did collect all of the Scotts' wages impounded by the court for the duration of the trial. Thus, the wage claim theory may have loomed larger in Mrs. Emerson-Chaffee's mind than in the Scotts'."' Harriet was absent from these analyses. Vincent Hopkins's 1951 book on the Dred Scott case endowed Dred with some additional agency that had been absent from earlier accounts. Hopkins represented Dred as filing suit on the heels of Mrs. Emerson's refusal to allow him to purchase his own and his family's freedom. Nonetheless, Harriet was 20 again virtually absent from this rendition.' Don Fehrenbacher pursued a similar avenue of analysis in 1978. He discounted the Hill thesis, observing that it was rare for successful plaintiffs in freedom suits to win compensation for services performed before they instituted suit. Fehrenbacher allowed the possibility that Dred Scott himself had formulated the idea of suing for freedom: "From his travels, he had no doubt gained some measure of self-reliance, as well as a fund of practical knowledge, and suits for freedom occurred often enough to be common talk among St. Louis slaves."' '12 However, the most likely alternative, in Fehrenbacher's mind, was that Dred's decision emerged from discussions with old friends,

114. See FREDERICK TREVOR HILL, DECISIVE BATTrLES OF TiE LAW 116-18 (1907) 115. See F.H. Hodder, Some Phases of the Dred Scott Case. 16 MISS. VALLEY Hts-r REV 3 (1929) 116. See id. at 5. 117. Id. 118. See id. at 5-6. 119. As Professor Frank Hodder concluded, "'ITlhere was no other purpose in bringing the original suits than to secure the freedom of Scott and his family, in order that whatever money they earned might be applied to their own support." Id. 120. See HOPKINS, supra note 3, at 10-12. Jeffrey Hess argues that Scott first tried to purchase his freedom but Mrs. Emerson refused. See Hess, supra note 63, at 2-3. Howevr. Charles Snyder beliccd that, "Mrs. Emerson did not want to own slaves, but she doubted her right to emancipate the Scotts under the terms of her husband's will." Snyder, supra note 27. at 458. 121. FEHRENBACHER, supra note 3,at 251-52. 1062 The Yale Law Journal [Vol. 106: 1033 such as the Blows, and with new acquaintances whose sympathies he had swayed. 122 Fehrenbacher never considered that the lawsuit might have originated with Harriet. Harriet, too, had traveled and could have drawn upon a friendship network. Harriet was more likely than Dred, who arrived at Fort 23 Snelling later than she, to have known Rachael personally. Even Walter Ehrlich, who has examined the details of the case's origins more thoroughly than any other commentator, followed the historical conventions of the time by considering only Dred's motivations as central to his 1979 book. Ehrlich concluded that "[t]he suit originated because Dred Scott genuinely wanted freedom and because he secured the advice and assistance of friends whose only interest in the case, at the outset at least, was to aid him in obtaining that freedom."' 24 Within a theoretical model that posits only two dichotomous alternatives, slavery and freedom, the advantages of freedom seem so self-evident that few scholars have examined other coercions and constraints on the lives of enslaved persons. The problem with the pure "quest for freedom" hypothesis is that it begs the questions: Why then? Why not earlier? Why not flee rather than sue? By examining motivations in their context of coercion and opportunity, we can produce a more complex historiography about freedom, a historiography that considers Harriet's agency as well as the multiple coercions that shaped the specific circumstances of enslaved people's lives. By examining the details of lived experience and legal constraint, we can see that it is entirely plausible that Harriet alone, or that the Scotts together, framed the initial impulse to freedom out of a desire to keep the family intact and to protect the daughters. It is also entirely plausible that Dred's dependency, rather than his quest for independence, drove the lawsuit in some less obvious ways. To explain why Mrs. Emerson defended herself so vigorously against the Scotts, conventional historians have represented Dred Scott as valuable chattel property.' 'However, the true value of the "human property" probably lay in claims to Harriet, Eliza, and Lizzie Scott. Of the members of the Scott family with economic value as human property, it was Harriet and the daughters who would probably have commanded the largest wages and sale

122. See id. 123. See supra text accompanying note 97. 124. EHRLICH, supra note 3, at 35-36. Once again, Harriet was peripheral to Ehrlich's focus on Dred's intentions, though, as Ehrlich himself notes, Harriet's personal connections may have catalyzed the lawsuit. Ehrlich raises a number of possibilities to explain the identity of the "friends" who may have guided "an illiterate slave who could not even sign his name" to the knowledge that "he had a legal basis for freedom," id. at 35, suggesting that the Blows, their relatives, and their personal networks of friends may have advised and assisted Dred, and that the first attorney associated with the case came into contact with the Scotts through Harriet's membership in the Second African Baptist Church, see id. at 35-39. 125. See, e.g., Bryan, supra note 30, at 19 (ascribing motivation for Mrs. Emerson's defense to Dred Scott's seeking back wages against Emerson's estate). 1997] Mrs. Dred Scott 1063 price at auction. 126 In 1846, it appears that Dred was no longer able to work productively, and hence, he was of lesser value as "enslaved property." Dr. Emerson had long since stopped taking Dred along with him in his travels. 27 When Emerson died in Davenport, Iowa, it appears that neither Dred nor Harriet had been in his direct service for some time. Moreover, at Dr. Emerson's death, rather than enlisting Dred to work, Mrs. Emerson seems to 128 have cast the Scotts adrift.

126. We can estimate the prices that the Scotts would have commanded at an auction by looking at comparable figures from that time period and region. In Professor Harnson Trexler's book. Slavery in Missouri, he provides several benchmarks for estimating the value of the members of the Scott family as slaves, an estimated value that would change over the period of the litigation. From the third decade of the century on there is an increase in %alue. In 1838 prime hands were bringing from S600 to 5900 in St. Louis. Up to 1840 female slaves were worth from S300 to $350 when men were bringing from $500 to S600. Children from two to five years of age were sold for from $100 to S200. TREXLER, supra note 113, at 38-39. Assessing Dred's value in 1846, one must first recognize that he would not be deemed to be a prime hand. Dred was of small stature, over 50 years old. and probably suffering from tuberculosis at the time As a small man, he would probably never have commanded the full price of a prime hand. e.en in his twenties. The diminished value of elderly slaves is indicated by two sets of comparisons Although in 1854. when slaves were at their peak value in the century. prime hands could go for almost S1000, a man of 58 years was worth only one tenth of that: S 115. See id. at 39. In another 1850s listing sith slase prices ranging as high as $1000, the value of two presumably elderly slaves. "Lucy. and Scrvtis. her husband" %%as set at only SIO; their yearly hire value together was set at 50 cents. See id at 32. If signs of Drcd's tuberculosis were already evident, these symptoms of suffering would have loswered his price still further One St. Louis letter stated harshly: "Sister... desires me to say that Dr. Johnson was to see the Negro Woman Elinzra [sic] & pronounces her not worth a Cent as she is deformed & diseased in several ways & thinks it will in all probability terminate in Consumption." Id. at 32 n.89 (quoting letter in Sublette Papers). As for the girls, Eliza (age 10) and Lizzie (somewhere between newborn and age 7). their value as slaves would have depended on their age. Girls aged 10 swere worth S200-S300 in 1838. and probably slightly more by 1848. If Lizzie was a baby, her value would have been estimated in conjunction with that of her mother as somewhere between $350 and S600 combined. If Lizzme was closer to 7 in age. she may have brought as much as $200 by herself. See id. at 39 (citing values in 1838 for Lucy. aged 10. $300. Sophia, aged 5, $200, children under 3, valued at S75-S100). At approximately age 28, Harriet was in the prime of her working life. Her salue may base been around S400--S600, see id. at 39-41, and she may have earned S42-S60 per year %sere she hired out. see id. at 30 n.86. Yet, if Lizzie was still very young. Harriet's value would hase been reduced by her need to attend to Lizzie. See id. at 39. Thus, the primary value of the Scott family as slaves lay in Harriet's market ssorth. secondarily, the value lay in the daughters' market worth. Dred's value could not have been much by these estimates In fact, eleven years after the beginning of the suit, a St. Louis reporter estimated Dred's ssorh at about $350 See Dred Scott Free at Last: Himself and His Family Emancipated. ST. Louis DAILY EvEsING NEWS. May 26, 1857, at 2 ("He is getting to be pretty well advanced in years. and, as a slave. ssould be estimated at about 5350."). This evidence also supports the inference that the lawsuit was a matter of family cohesiveness. If the suit had only been fostered for the purposes of Dred's manumission. one ssould expect that Dred's title could have been purchased for relatively little. The fact that Dred %%-asnot separately purchased to attain this end seems to suggest that the larger underlying purpose of the suit was to keep the family intact. 127. It appears that, by the time of Emerson's death. Dred had not accompanied the peripatetic doctor for about three years. See EHRLICH, supra note 3, at 25. 27-28. 128. See supra text accompanying note 30. Emerson did not list the Scott family in his will even though he made a point of specifically bequeathing his medical books to his brother. See Will of John Emerson, Probated in the Scott County Court (Scott County Courthouse. Dasenport. Iowa) (on file with authors). 1064 The Yale Law Journal [Vol. 106: 1033

Having reached the relatively advanced age of 51 by the year 1846, Dred had come to the age at which slaves were considered elderly. In many slave cultures, particularly within the Virginia slave community in which Dred had been born, slaves lived out their old age in relative retirement.29 The normal life expectancy of enslaved men was less than 40.'3 This fact would have affected both Dred's thoughts about seeking freedom and his value to those who would hold him in slavery. Indeed, Mr. Scott was, by all accounts, a small man who had served most of his life as a personal valet. 3 The primary buyers of slave men in the St. Louis market sought strong men for agricultural labor in Southwestern Missouri and still further south along the 32 Mississippi.

129. Genovese contrasts "slaveholders' boast of tender care" of their aged slaves with the abundant evidence of neglect, which often manifested itself in owners' manumission of old slaves for the purpose of escaping responsibility for them. See GENOVESE, supra note 85, at 520. As Genovese suggests: With blacks as well as whites considered "old" at fifty, slaves of that age commanded no higher a purchase price than eight-year-old children on the open market during the 1850s, and the temptation to cut them loose remained strong among less scrupulous masters. Ironically, the stiffening laws against manumission may have provided the slaves with firm protection at this point. Some urban slaveholders solved the problem by sending their old slaves out to peddle or beg and thereby bring in some income as well as support themselves. Id. (footnote omitted). 130. See Richard H. Steckel, Slave Mortality: Analysis of Evidence from Plantation Records, in 2 WITHOUT CONSENT OR CONTRACT: THE RISE AND FALL OF AMERICAN SLAVERY 393 (Robert William Fogel & Stanley L. Engerman eds., 1992). Steckel summarizes previous findings of an estimated female life expectancy at birth of 27.8 to 38.1 years. See id. at 394. Deviating from the methodologies that relied on census data and mortality estimation techniques to produce these estimates, Steckel examines slave mortality by using records from I I large plantations that spanned a period of 80 years. He concludes that the expectation of life at birth, according to different methods of computation, was between 32.5 and 35.0 years for females, and between 31.6 and 33.9 years for males. See id. at 399. 131. According to Frank Leslie's Illustrated Newspaper, Dred Scott was 5 feet 6 inches tall and of a rather light frame. The reporter describes meeting him at his home in St. Louis and being met by Harriet while Dred slept behind a pile of clothes she had been ironing. See Visit to Dred Scott-lis Family--Incidentsof His Life-Decision of the Supreme Court, FRANK LESLIE'S ILLUSTRATED NEWSPAPER, June 27, 1857, at I [hereinafter LESLIE]. The price for elderly slave men fell off considerably once they reached a certain age. William Brown, a slave who worked for a slave trader, describes his task preparing the old slaves for market: I was ordered to have the old men's whiskers shaved off, and the grey hairs plucked out where they were not too numerous, in which case [the trader] had a preparation of blacking to color it, and with a blacking brush we put it on .... These slaves were then taught how old they were .... [A]fter going through the blacking process they looked fifteen years younger. TREXLER, supra note 113, at 48 (quoting William Brown). Discrepancies about Dred's age tend to turn on the interpretation of two different assessments. Dred is said to be listed as "Sam" in the 1818 Southampton County tax lists in a category that stated he was then more than 16 years of age. See DICTIONARY OF AMERICAN NEGRO BIOGRAPHY 548 (1982). That would place his birth as occurring before 1802. The Dictionary of American Negro Biography lists his birthdate as around 1795. See id. Although some sources suggest that Dred Scott and John Emerson were roughly the same age, in comparison to John Emerson who was described as a giant of a man, Dred may have appeared younger than his true age. In 1836-37, when Dred and Harriet were married, Major Taliaferro, who not only would have had time to observe Dred, but also to reflect on his age, estimated that Drcd was 40 years old. That would place his birth as occurring in 1796. Therefore, the best estimate seems to be that by 1846, when his suit was filed, he was 51 years old. 132. See TREXLER, supra note 113, at 10-15. 1997] Mrs. Dred Scott 1065

Moreover, by 1846, Dred's ability to work was probably already afflicted by the body-weakening tuberculosis that would end his life twelve years later.'33 Tuberculosis had already taken the life of forty-four-year-old Dr. Emerson, seven years his junior." The fact that Dr. Emerson, himself suffering from tuberculosis, which would have weakened his stamina, failed to ask Mr. Scott to accompany him on his last few voyages may indicate that Mr. Scott himself had already become debilitated by the same disease. Contemporary observers have characterized Mr. Scott as "lazy and shiftless," a caricature that certainly draws in large part from recognizable racist biases. 3 5 Nonetheless, his age and his weakness from tuberculosis may have appeared as laziness, so these caricatures may have been based on Mr. Scott's actual inability to work. Mr. Scott, aged fifty-one by the time of the filing of the lawsuit, was, in all likelihood, at the end of his working days, ready for retirement, and more likely to have been considered an economic liability than 36 an asset. Dred's stage of life may well have figured in Mrs. Emerson's decision about the Scotts' future. Slave masters sometimes attempted to set their elderly

133. Tuberculosis was the cause of death of one of the slaes at Fort Snelling just before Ded amved See Letter from Dr. Nathan Jarvis to William Jarvts (Jarvis letter file, Minn Histoncal Soc'y. St Paul, Minn.) (Nov. 30, 1835) (on file with authors). Tuberculosis involhes the mcobacreriumn tuberculosis., or tubercle bacillus, which travels on dust particles or airborne droplets. Although it can occur any%%hcre in the victim's body, tuberculosis most commonly afflicts the lungs. which furnish the disease %%ith favorable conditions to thrive. As the lungs gradually dissolve, the victim begins to cough up blood, and suffers from a daily fever, weight loss, fatigue, and heart palpitations or chest pain. Eventually. if tuberculosis goes untreated, the victim is likely to die. See MARK CALDWELL. THE LAST CRtSADE: THE WAR O, CONSUMPTION, 1862-1954, at 5-9 (1988). Active tuberculosis may spread the infection for months or ecn years before death or containment of the disease. See MICHAEL E TELLER. THE Ti. BEJCI. LOSIS MOVEMENT: A PUBLIC HEALTH CAMPAIGN IN TIE PROGRESSIVE ERA 2 (1988) Unsurprisingl). then. in its dormant form, tuberculosis can take decades to kill its victims. Eleanor Roosesclt. for example. died in 1962 from a tuberculosis lesion she acquired in 1919. See GEORGINA D FELDBERG. DISEASE AND CLASS: TUBERCULOSIS AND THE SHAPING OF MODERN NORTH AMERICAN SOCIETY 2 (1995) In Missouri, in the decade between 1850 and 1860. consumption caused bets'ecn 15%7c-30% of all deaths. See id. at 13. Thus, the Emerson and Scott families uere at a sizable risk for contracting tuberculosis while they were living in St. Louis; their urban location only increased that risk See id at 29 Of course, blacks and whites not only experienced tuberculosis differently, but %re perteired as experiencing it differently. White physicians and commentators commonly believed that blacks %%ere healthier, based on Africans' superior resistance to heat and malaria, as uell as an idealized conception of slave life. Southerners, in particular, thought that blacks suffered from a unique form of consumption. "'negro consumption." See id. at 23-24. J.D.B. De Bow. whose Review sang the praises of Southern slavery and cotton, demonstrated that throughout the South, phthisis accounted for far fewer deaths among blacks than among whites. Blacks believed tuberculosis to result from potsoning, and physicians often linked it to the habit of dirt-eating. The form of tuberculosis contracted by blacks usually resulted in death; by the end of the century, clinicians had concluded that "'negro consumption- was an acute variant of tuberculosis in whites. See Marion M. Torchia, Tuberculosis Among American Negroes: Medical Research on a Racial Disease, 1830-1950, in FROM CONSUMPTION To TUBERCULOSIS: A DOC.ME,,TARY HISTORY 495. 501 (Barbara Gutmann Rosenkrantz ed.. 1994). 134. Dr. Emerson was born in Pennsylvania around 1802 or 1803. See EHRLICI. supru note 3. at 16 135. Dred's so-called "'laziness" invokes an eptthet that white slavcholderi frequently flung at slases. See GENOVESE, supra note 85, at 295-324 (comparing accusation of 1aziness" %ith alternative interpretations of work ethic, including slaves' conceptions of ssorkl. 136. But see supra note 126 (recounting contemporary newspaper report estimating Dred's .orth at $350). 1066 The Yale Law Journal [Vol. 106: 1033 slaves adrift when they were no longer useful in order to avoid paying for their continued maintenance. In the Deep South, where a stricter social culture of slavery prevailed, the peer pressure that other masters brought to bear kept masters of elderly slaves from turning them Out.137 However, in urban areas or in other areas where there was no similarly effective peer monitoring and pressure, states recognized the problem of masters abandoning elderly slaves by requiring masters to be responsible for the costs of maintaining the slaves they manumitted-especially elderly slaves. This legislative measure shifted responsibility back to the slave masters rather than throwing responsibility for providing for indigent former slaves on the state's charitable rolls. To prevent slave masters from simply discharging their obligation of care for slaves when the slaves no longer were useful, states sometimes erected further barriers to manumission.'38 In Missouri, the legislature had done exactly that. Limitations in Missouri law were adopted "[t]o prevent the free negro becoming a burden to society."'' 39 The Missouri statute governing the emancipation of slaves provided that "[t]he person emancipating a slave ... shall be held to support and maintain such slave.""'4 The statute continued:

First, where the slave shall not be, in the judgment of the court, of sound mind and body; second, where the slave shall be above the age of forty-five years; and, third, where the slave, being a male, shall be under the age of twenty-one years; or, being a female, shall be under the age of eighteen years; and the circuit court of the county, where the person emancipating the slaves resides, may, upon application of any inhabitant of the county, order the sheriff to distrain and sell so

137. See id. at 520. One of the first things masters did at the time of emancipation was to cut their losses by turning out their elderly slaves. 138. In its 1795 Freedom Suit Act, Virginia set forth formalized procedures allowing slaves to sue for their freedom informa pauperis and, incredibly enough, appointing counsel for indigent slave petitioners. See A. Leon Higginbotham, Jr. & F. Michael Higginbotham, "Yearning to Breathe Free": Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. REv. 1213, 1235-36 (1993). However, despite the apparent liberality of some of the statute's provisions, its underlying intention clearly was not to facilitate suits for freedom, but to free slaveholders from the harassment of frivolous habeas corpus suits. In effect, slaves had to obtain their masters' consent in order to sue: Slaveowners were required to provide the court with a deposit equal to the slave's worth, or the court would hold the petitioner and charge the owner for its expenses in holding the slave. Furthermore, if the petitioner failed in his or her suit, anyone who had aided the suit was required to forfeit $100 to the slave's owner. Finally, a successful suit did not entitle the freed slave to monetary damages or labor profits. See id. Missouri had adopted a somewhat similar provision allowing indigent slaves to be declared informa pauperis and triggering the appointment of counsel. See TREXLER, supra note 113, at 211. Counsel had been appointed for Rachael under this provision. See Rachael Papers, supra note 97. Still later, in 1855, Missouri restricted access to habeas corpus for any "negro or mulatto held as a slave" or "arrested as a fugitive from service." TREXLER, supra note 113, at 212 n.18. 139. TREXLER, supra note 113, at 209. 140. Mo. REV. STAT. ch. 167, art. II, § 4 (1845). 1997] Mrs. Dred Scott 1067

much of the personal or 14real estate of such person, as shall be sufficient for that purpose. 1

Mr. Scott, possibly suffering from tuberculosis by this time, would probably have been found of unsound body, and he was definitely over forty- five years old. Both daughters, Eliza and Lizzie, as females under the age of eighteen, were presumed by the legislation to be dependent. Thus, by emancipating the Scotts, even if she had been predisposed to do so, Mrs. Emerson would have come within the ambit of the financial liability created by the statute, authorizing the sheriff to "distrain and sell a sufficient amount of her property, personal and real estate, in order to continue to maintain" three 4 2 of the four members of the Scott family. 1 A calculating slaveowner would not simply have set the price of the Scotts' freedom at their lost value, but would have added the costs of bonding an amount for their continued maintenance as well. Emancipating Dred, Eliza, and Lizzie would have cost Mrs. Emerson the liability for their maintenance without allowing her to 4 3 control their labors or keep their wages. Although the Emerson estate has not been considered very sizeable by conventional historians,'" Emerson was actually on the threshold of becoming a successful capitalist in Davenport, Iowa when he died. He had bought land there and in St. Louis, and he claimed to have an interest in a steamboat. 45 His business partners, George Davenport and Antoine LeClaire,

141. Id. It is not clear whether this statute was triggered only upon application of an inhabitant of the county after manumission when there were circumstances demonstrating that the freed person could not support him or herself or whether this was a consideration routinely taken into account prcmanumission with the posting of a bond. Trexler seems to suggest that it was an after-the-fact matter. See TREXLER. supra note 113, at 209. Yet in 1856, when Taylor Blow was able to manumit the Scott family, he posted a substantial bond of S1000 up front. See Dred Scott's and Hartnet Scott's Free Negro Bonds (Mlay 4. 1858), in Free Negro Bonds, Dexter & Tiffany Collection. box 62. folder 6 (Mo. State Historical Soc'y. St. Louis, Mo.) (on file with authors); see also FEHRENBACHER. supra note 3. at 569 142. Mo. REV. STAT. ch. 167, an. II, § 4. 143. The statute also provided that if emancipated slaves were delinquent in paying taxes and their property was insufficient to cover the cost of the taxes, the person who had emancipated them would be responsible for paying the taxes: When any slave, emancipated by virtue of this act, shall neglect or refuse to pay any taxes or levies imposed by law, and the collector shall not find property of such liberated slave out of which to make such tax or levy, it shall be the duty of such collector to distram and sell, of the goods and chattels of the person who shall have liberated such slave, if he be in his county, as much as will be sufficient to pay such tax or levy, as if the same had been assessed to such person himself. Id. § 8. 144. See Snyder, supra note 27, at 441-58 (detailing dealings between Emerson and LClaire). 145. By contrast, Frank Hodder notes: Dr. Emerson's estate could not have been large. His property in St. Louis consisted of nineteen acres of land, three miles west of the city, and a few articles of household furmiture. Alexander Sanford, to whom was committed the settlement of the St. Louis property, filed a bond of $4,000 for the execution of the trust. Emerson's property in Davenport is said to have been larger but the inventory has been lost, so that its amount cannot be ascertamed. Hodder, supra note 115, at 3. 5. 1068 The Yale Law Journal [Vol. 106: 1033 were two of the wealthier men in that area. 46 However, the estate was tied up with debts and obligations. Perhaps Mrs. Emerson could not afford the sort of magnanimity that characterized Major Taliaferro (and, perhaps, her husband), or perhaps she was not particularly predisposed to it. Mrs. Emerson's father and brother were vehement proslavery men and closely connected with the Chouteaus, the fur trading family who not only kept extensive numbers of slaves, but were also among the most active litigators in Missouri courts against slaves' freedom.'47 Consequently, two factors probably kept Mrs. Emerson from manumitting the Scotts. Not only is it likely that Mrs. Emerson came under the sway of her father's influence with her husband's death, 48 but, in any event, under Missouri law, emancipating Dred would have been a bad financial decision. Accordingly, instead of manumitting the Scotts or hiring them out, it appears that for some period of time Mrs. Emerson let the Scotts fend for themselves. Probably seeking work and help, Dred Scott turned to his previous owners, the Blow family, who felt some loyalty to him. Harriet, it seems, turned to her church community. 49 Only some time later did Mrs. Emerson's family seek to hire the Scotts out. 5

146. See Snyder, supra note 27, at 440-61. For further reading documenting the business tics between LeClaire and Davenport, see Charles Snyder, Antoine LeClaire, The First Proprietorof Davenport, 23 ANNALS OF IOWA 79 (1941). 147. Telephone Interview with Kenneth Kaufman, Ph.D, St. Louis University, St. Louis, Mo. (Mar. I, 1996). Evidence of the Chouteaus' active presence in court is available in the Catterall cases. See 5 CATrERALL, supra note 40, at 105-13 & n.7. 148. See 5 CATrERALL, supra note 40, at 105-13 & n.7. 149. Telephone Interview with Walter Ehrlich, Professor Emeritus, University of Missouri-St. Louis, St. Louis, Mo. (Jan. 30, 1996). 150. This inaction seems a bit perplexing. Here is a young widow with a two-month-old child who nonetheless does not seem to ask for domestic help from any of the three women in the Scott family. Certainly more research into Irene Sanford Emerson Chaffee's motivations would be welcome. Her resistance to the Scotts' attempts at emancipation runs contrary to empirical evidence regarding the disposition of slaves by slaveholding women. See SUZANNE LEBSOCK, THE FREE WOMEN OF PETERSBURG: STATUS AND CULTURE IN A SOUTHERN TOWN, 1784-1860, at 137-41 (1984). There is some lack of evidence as to whether Irene Sanford Emerson ever personally became involved in hiring the Scotts out. The best evidence of their being hired out comes from the Russells, who testified at trial. In that testimony the Russells were somewhat vague about whether it was Mrs. Emerson or her father, Alexander Sanford, who had hired the Scotts out. Russell testified that he paid the monies to her father, Mr. Sanford, "for Mrs. Emerson." Original Court Papers and Transcripts, Dred Scott v. Emerson (unreported case) (Dred Scott Papers file, Mo. State Historical Soc'y, St. Louis, Mo.) (on file with authors) [hereinafter Dred Scott v. Emerson Papers]. Mr. Sanford may have been collector of monies as well as the purveyor of the Scotts' services. This issue had legal consequences in the suit since the Scotts were required to demonstrate that Mrs. Emerson had held them in service. When Russell testified, to the surprise of the Scotts' attorney, that he had never held them directly from Mrs. Emerson, the initial suit was resolved against the Scotts on the ground that the Scotts had not proven they had been held by Mrs. Emerson. See id. The irony of this circumstance has been pointed out by numerous commentators: In effect, because the Scotts could not prove Mrs. Emerson had held them as slaves, they still were her slaves, rather than declared free. See, e.g., FEHRENBACHER, supra note 3, at 254 ("The decision produced the absurd effect of allowing Mrs. Emerson to keep her slaves simply because no one had proved that they were her slaves."). 19971 Mrs. Dred Scott 1069

The most obvious puzzle involves the timing of the suit. Dred and Harriet would have had many opportunities for escape when they were separated from Dr. Emerson. Why did they not seize upon one of these opportunities'?"' They traveled back to slave territory with Dr. Emerson twice. What finally convinced them to sue for their freedom in 1846? The methodology of this Article-focusing on the specific details of the Scotts' lives and the sociolegal context in which they lived-suggests that the impetus for freedom may have lain in the Scotts' desire to preserve the integrity of their family. Faced with the constant threat of family dissolution, enslaved African Americans had to find safety in whatever institutions were available to them. A more complex, multivariate vision of slavery and the relative freedom available to African Americans leads us to a deeper understanding of the countervailing coercions slaves encountered. In this framework, recognizing the importance that family stability may have held in the Scotts' calculation makes sense of an otherwise puzzling pattern of action-or inaction. For Dred Scott, there would have been no reason to seek freedom until Dr. Emerson's death. Until that point, although Dr. Emerson's patterns of travel and frequent absences often left Dred unsupervised, the opportunity to escape did not appeal to him. Instead, he stayed close to his wife and family. His constancy becomes more readily comprehensible when we remember that he had already once experienced permanent separation, his first wife having been sold away from him.' 52 Moreover, the Scotts must have felt some security in their marriage, which had been formalized. They did not simply "'jump the broom," as slave custom provided;' 53 instead, they were formally married by the leading civil authority in the territory. That ritual performance would have given them a greater sense of secure family ties and autonomy. Within Dred's set of choices at that time, remaining with Dr. Emerson, who supported the continuity of Dred's family, represented a willing subordination to one coercive institution-slavery-in exchange for another range of freedom. Under the protectorate of Dr. Emerson, the Scotts could carve out a sphere of personal and familial independence. Dr. Emerson's relationship to Mr. Scott, and later with Harriet and the children, appears to have been more benevolent than the customary relation imagined between master and slave. It appears that Dr. Emerson, in contrast

151. An interesting comparison can be made between those histonans sho hac asked. "Wh, did the Scotts not escape?" and those who question the legitimacy of Battered Vomen's S)ndromc by inquiring skeptically, "Why did she not leave?" Although the oppressions in each of these scenarios are different, in both cases we do more justice to subjects' agency by recognizing the nature and magnitude of the forces that influence them to stay in oppressive situations, rather than simply %%ondenng %hy they do not lcasc 152. See Johnson, supra note 88, at 18. 153. See GENOvESE, supra note 85, at 475. 1070 The Yale Law Journal [Vol. 106: 1033 to Mrs. Emerson, was not a slaveholder by family heritage or tradition. Dr. Emerson only ever owned one slave, Dred Scott, whom he purchased in anticipation of his travels as an Army Post Surgeon into the Northwest 54 Territory. Only one little-known historical incident remains to provide insight into the nature of the relationship between the two men. The story is told to illustrate Dr. Emerson's impulsiveness, but when read from another angle, it seems to reveal that Emerson had a protective and respectful regard for Scott. According to this story, Dr. Emerson stood up for Mr. Scott in a manner uncharacteristic of slaveholders. In 1918, Marcus Hansen recounted the incident as follows:

Dr. John Emerson was a giant in body and impulsive in spirit. On a certain day in early winter when the quartermaster was distributing stoves to the officers, Dr. Emerson asked for one for his negro servant. This the quartermaster refused, saying that there were not enough in store; whereupon the doctor insinuated that the statement was a lie. Upon being insulted thus the quartermaster struck his companion between the eyes. Emerson turned on his heels im- mediately, but he returned in a few minutes with a brace of pistols which he pointed at his assailant. The fighting spirit of the quartermaster fell at the appearance of these weapons, and he started across the parade ground on a run followed by the doctor. A third character appeared in the person of Major Plympton, the commanding officer, who arrested Dr. Emerson. This episode gave rise to a great commotion in the garrison. One group who wanted some excitement urged that only in blood could the quarrel be settled; while the other group sought for peace, knowing that there was no other physician nearer than Prairie du Chien. Not for several days was the quarrel patched up, and then the terms were never made public.'

John Emerson appears to have put his personal prestige and honor on the line in order to obtain a precious and limited commodity, a stove, for Dred and his wife. Stoves were symbols of considerable functional importance in the Northern Fort community. By means of a stove, unlike a fireplace, an entire room could be heated. A stove in sleeping quarters meant that one did not have to lie near the open fire and rise continually during the night to bank the fire to keep warm. A stove meant independent quarters at the cramped garrison. Enlisted men slept without stoves, two to the bed, four to the bunk, three bunks to the

154. See Bryan, supra note 30, at 227. There is some evidence that Emerson owned another slave named Nelson who attempted to sue him for freedom in St. Louis while Emerson was stationed elsewhere. See EHRLICH, supra note 3, at 29; FEHRENBACHER, supra note 3, at 245. Further documentation of this individual has been hard to find. 155. HANSEN, supra note 89, at 65-66. Among later secondary sources, only Fehrenbacher recounts this incident and then only in part. See FEHRENBACHER, supra note 3, at 246-47. 1997] Mrs. Dred Scott 1071 barracks rooms in the Minnesota winters that often reached twenty or thirty degrees below zero.'56 Stoves were restricted in distribution to officers and enlisted men who had wives. 57 A stove meant that Dred Scott and his family could establish their own household space within the Fort's hospital barracks. A stove was a means to achieve family privacy and independence. There were plenty of rooms at the stone and wooden barracks, but the stove provided the family hearth. By attempting to secure a stove for the Scotts, Dr. Emerson indicated support for the Scotts' family privacy and cohesion. Other official documentation attests to Mr. Scott's independence in maintaining his own household. Dred Scott himself is listed by name in the 1836 territorial census, which lists only heads of households and not household dependents. The appearance of his name in this census recognizes him as the head of his own household, suggesting that he lived as a free man in free territory. '58 Dr. Emerson's death ended the Scotts' independence. After Dr. Emerson's death, residing in his household and being part of his estate no longer guaranteed the security of the Scotts' marriage or family; instead, it threatened it. It was well known among slaves that one of the consequences of a master's death was the dissolution and liquidation of his holdings." 9 Similar circumstances-death of a master-had occasioned Dred Scott's sale to Emerson in the first place and, possibly, his forced separation from his first wife. If the family were sold, it was highly unlikely that the four Scotts could stay together, since it was unlikely that a single owner would buy them. It was more probable that they would be split apart and some members of the family would be sold downriver ---a danger that had prompted other slaves to sue. 161

156. See Recreated Display at Historic Fort Snelling Barracks, St Paul. Minn 157. Telephone Interview with Thomas Shaw, supra note 61. 158. See Appendix B. It is cuious that he is listed as having so many dependents Escn if he, Hamet. and one of the sons who died in infancy are counted as present, there are still too man) persons atibuted to his family. Perhaps the census taker did not carefully differentiate the boundares of an Afncan American's household and included other slaves at the Fort in his tally. 159. See, e.g., JACOBS, supra note 52, at 7-9 (describing transfer of narrator after death of her osncr) 160. In St. Louis, William Walker, who had purchased Rachael and from w'hom she had won her freedom, was a notoriously brutal slave dealer who collected Missoun slases for the gulf markets See TREXLER, supra note 113, at 46 n.151. The multitude of instances of separating families according to the dictates of the slave market bears witness to many slaveowners' opportunism John Blassingame, concluding that the forcible separation of families was "'the most brutal aspect of slavery.- JOHN W BLASSINGAME, THE SLAVE COMMUNITY 173 (2d ed. 1979). nonetheless approached it exclusively from the perspective of disempowered male slaves, helpless to protect their wises and children from sale. In actuality, the narratives of female ex-slaves asserted a sense of rage and powerlessness that was just as vivid. See, e.g., MARTHA GRiFFrrHs, AUTOBIOGRAPHY OF A FEMALE SLAVE (New York. Redfield 1857). JACOBS, supra note 52. Of course, apologists for slavery sought to deny that the splinenng of families was a prominent feature of the slave trade. See. e.g., Governor Hammond's Letters on Slaver. 8 DE Bow's REv. 122-23 (1850) (asserting that "an object of prime consideration with slaseholder- tis) to keep families together"). 161. See infra note 171 and accompanying text. 1072 The Yale Law Journal [Vol. 106: 1033

To sue for freedom was a bold move. In a freedom suit, the Scotts had to stake out the position that Mrs. Emerson had imprisoned them illegally as a fundamental element of the suit. 62 Had they failed to prevail, they might have expected retaliation for what would clearly have appeared to the slave master to be a hostile act.' 63 It was not a position from which subservient persons with responsibility for dependent family members could easily retreat. Focusing solely on Dred Scott's agency and motivation, however, risks falling into the same trap as other historians. A better answer to the question of why Harriet did not seek freedom earlier through escape lies in the particularities of her own experience. Compensatory feminist thought requires us to consider her life motivation. One cannot ignore the gendered and affective dimensions of the hardships a flight would have entailed. The bonds of attachment to Dred may have kept her from escape, but her responsibilities during the previous ten years-bearing four children, nursing two, and burying the other two-would have made it difficult for her to muster the physical and psychological strength necessary to contemplate escape. What record there is suggests that keeping the family together was Harriet's primary focus. Some insight into her motivation can be gleaned from the circumstances that prompted Rachael to sue. Rachael was brought from Prairie du Chien to St. Louis to be sold at the slave market soon after she had had a baby, James Henry.' 64 What prompted her owner to sell her at that point is unknown, but it is clear that to sell her and her child profitably, he had to bring them as he did to the St. Louis market. At St. Louis, she and her baby were first sold to one purchaser, Joseph Klunk, and soon after to a dealer in slaves, William Walker. 65 The court documents explain that her reason for bringing suit at that time was that Walker "[was] about to take ...Petitioner and the child down the Mississippi River probably to New Orleans for sale . . . and [she prayed] that the said Walker may be restrained from carrying her or said child out of the jurisdiction ... till the termination of said suit."' 66 An attorney 67 was appointed for Rachael, since she attested that she was a poor person. Rachael was aided in her suit by the filing of an affidavit by a man only ' 6 identified as "John, a colored man."' 1 John did not sign his name but was duly sworn and attested with a cross. 69 Later statements in the record state that Walker "with force and arms ... assaulted the said plaintiff and her then

162. See EHRLICH, supra note 3, at 42-43. 163. Granted, the formality of the procedures governing suits for freedom might have diminished this impression since the allegation of illegality was a prerequisite of the suit. Yet nothing could entirely eradicate the essentially adversarial nature of freedom suits. 164. See Rachael Papers, supra note 97. 165. See id. 166. Id. 167. See id. 168. Id. 169. See id. 1997] Mrs. Dred Scott 1073 and there did beat and bruise and illtreat and strike and also then and there imprisoned the said plaintiff," for which she claimed damages of S500. " " These few facts establish four relevant circumstances that framed Rachael's suit: first, her wish to hold onto her baby, whose name is repeatedly mentioned in the transcript; second, her fear of being sold downriver, particularly at a time when her baby was so dependent on her;"7 ' third, the assistance in bringing suit that she received from John, a man of color, who attested that he had seen her at Prairie du Chien; and fourth, her experience of some physical brutality at the hands of William Walker, a slave trader.' " Harriet's and Rachael's suits should be compared in the context of other St. Louis freedom suits filed in the St. Louis courts. Kenneth Kaufman asserts that the majority of freedom suits filed by slaves in St. Louis courts were, in fact, filed by slave women.'"3 Kaufman speculates that women would have had a greater reason for seeking freedom because sale could forcibly separate them from their children.'74 Indeed, like Rachael, Harriet may have been primarily concerned with keeping her family intact. In addition, Harriet may have experienced abuse that resembled Rachael's. Taken from her family of origin to the outer frontier of Fort Snelling at age fifteen or perhaps even earlier, Harriet may also have suffered the sexual abuse (from the soldiers or other men) that many enslaved women experienced and feared,' and may therefore have welcomed the protection that Dred offered in a sphere of companionate marriage 7 6 within the larger protectorate of Dred's master, Dr. Emerson. Although we do not wish to imply that Rachael's experiences were necessarily the same as Harriet's, the similarity of their situation and the evidence of other slave women with children filing suits for freedom suggest

170. Id. 171. Trexler relates the following story about the sla.e trader. William Walker Once while on a negro buying expedition Walker \%as anno)ed b) the continual %%ailhngof an infant in the gang. He seized it from the mother and ran intoa wa)side house ,,iththe child hanging by one leg. Despite the shrieks of the mother he gase itto a soinan sho thanklully received it. The gang then marched on to St. Louis TREXLER, supra note 113, at 46 n.151. 172. The nature of a suit for freedom required her to attest that she had been itprisoned See EHRLICH, supra note 3, at 34. 173. Telephone Interview with Kenneth Kaufman. supra note 33 174. Id. 175. Many other slaveowners forced enslaved women to offer their sexual fasors "',.illngl,"to a%,otd the beatings that would otherwise follow: Many of the black autobiographers recounted stones of slave 'nomenbeing forced to submit to white men: Henry Bibb's master forced one slase girl to be his son's concubine. \t F Jamison's overseer raped a pretty slave girl: and Solomon Northup's o.,ner forced one s1ass, "Patsey," to be his sexual partner. BLASSINGAME, supra note 160, at 154-55; see also Fox-GE.NOV-SE. supra note 104. at 325-30 idcscnbing slaveholders' efforts to exploit enslaved women sexually, and enslad ,,onen's acts of resstanc ) For additional descriptions of white masters' sexual predation. see JACOBS. supra note 52. at 27-57 Melton McLaurin explores the case of a slave woman who killed the master v.ho had forced her t) become his concubine. See MCLAURIN, supra note 17. 176. Cf KOLCHIN, supra note 18, at 140-41 (descnbing relatiel, egalitanan inantal standards of slaves). 1074 The Yale Law Journal [Vol. 106: 1033 the possibility of a larger pattern that includes Harriet's and Rachael's actions.' 77 There is additional information to suggest that keeping the family together was Harriet's primary focus.178 Much later, when the dispute was finally resolved by the purchase of the family's freedom, St. Louis newspapers reported that the girls had been hidden away during part of the litigation pending its resolution. In a newspaper column reported after the U.S. Supreme Court decision, the St. Louis Daily Evening News stated:

[Dred's] daughters, Eliza and Jane [sic], were, virtually, free before, having achieved their freedom by their heels what the more conscientious Dred could not secure by ten years of litigation. Their whereabouts have been kept a secret, though no effort has been, and none probably would have been, made to recover them. Their father

knew where they were, and could17 9bring them back at any moment. He will doubtless recall them now.

Harriet was seen as protective of her husband long after the family's freedom had been purchased. When members of the press showed up at their home unexpectedly in 1857, Harriet is reported to have said, "'Why don't you leave that [man] alone?""' 8 She is portrayed as fearful even then that he would be abducted by one of the slave traders reputed to have stolen freedpeople's papers and sold them back into slavery or by one of the promoters who attempted to sell Dred Scott's notoriety by taking him on a publicity tour. That this fear continued to run deeply in Harriet is regarded with sport by the reporter knocking at her door. But for a woman who had fought for her family's ability to remain together for more than eleven years, that fear must have been very real. The press insisted on taking pictures of the Scotts. Harriet only finally agreed to allow daguerreotypes of the family members to be taken not for the fame they could attain, but upon the promise that the family would be provided copies for their keeping.' 8' This portrait suggests a woman who was deeply committed to her family's preservation, continuity, and well-being.

177. See supra note 164 and accompanying text. 178. The reporter for Frank Leslie's Illustratedrendered Harriet's first question: "Wat de white men come arter dat nigger for?" LESLIE, supra note 131, at I. The newspaper reports her further statements: "She knew de white men did want Dred, and was trying to get him away; dat some gentlemen had promised to give Dred one thousand dollars a month if he would trabel thro' de North; dat de people wanted to see him; but," she added, "she'd always been able to yarn her own livin, thank God, and yam an honest one, and she didn't want money got in dat way; she didn't believe any good would come of it; 'twas de debil's work." Id. at 2 (quoting Harriet Robinson Scott). We reprint this excerpt in its entirety as written by the newspaper, acknowledging that by substituting "d" for "th" in "the" and "that," "b" for "v" in "travel" and "devil," and "yam" for "earn," the reporters attempted to distance Harriet Scott's pronunciation from proper spellings. 179. Dred Scott Free at Last: Himself and His Family Emancipated,ST. LOUIS DAILY EVENING NEWS, May 26, 1857, at 2. 180. See supra note 178. 181. See id. 1997] Mrs. Dred Scott 1075

Harriet could have believed herself free by reason of the marriage. The stove incident and the census suggest that she and her husband lived as free as circumstances at Fort Snelling would permit. There would have been no reason for her to insist immediately on a hypothetically greater sphere of freedom for herself. Once she entered the phase of her life when she began to bear children, Harriet's need for maintenance may have tied her more securely to Dred. Those are not the circumstances in which women flee to uncertain promises of freedom. With Dr. Emerson's death, however, the prospect of the family's dissolution would have struck a fearful chord in Harriet. She may have witnessed or experienced separation by her own transfer to Taliaferro. Somehow Harriet came into Taliaferro's ownership; she was not born into it. She would remember some origins in her childhood, of another time, another family of origin, and another separation, and she may have wished to spare her daughters a similar fate. Another factor that might have increased Harriet's anxiety about sale after Emerson's death was the fear of being sold down the river by St. Louis traders like William Walker. The "fierce reputation" of cotton and sugar cane work was especially strong for slaves who had sampled town life.' "2 For the Scotts, the fierce reputation of the cotton and sugar cane belt would have been more than hypothetical. During their brief sojourn to Louisiana with Dr. Emerson for five months in 1838, the Scotts had probably observed the harsh conditions of Southern plantation slavery first-hand. In 1838, while Harriet was pregnant with her first daughter, the Scotts would have traversed the entire length of the Mississippi and traveled up the Red River to Fort Jesup." 3 During this odyssey, they would have been able to witness the harsh cane and sugar plantation life that awaited slaves sold downriver.'" Thus, the Scotts would have felt the danger especially keenly. They had spent most of their time in military forts. Their work there probably bore little resemblance to the field work that they might be called upon to perform as the result of a sale. As for Eliza and Lizzie, their whole lives had been bounded by the successive environments of garrison and city. For the children, every facet of plantation life would have been bewilderingly unfamiliar. Knowing this, their mother must have been all the more anxious to forestall a sale that could splinter her family.

182. See RICHARD C. WADE, SLAVERY IN THE CrrY 64. 207-08 (1964). 183. See EHRUCH, supra note 3, at 22-25; FEHRENBACHER. supra note 3. at 245-46 184. For a description of the harsh system of slave life from the perspecti~e of Northem blacks who encountered it for the first time, see SOLOMON NORTHUP. TWELVE YEARS A SLAVE (Sue Eaton & Joseph Logsdon eds., 1968). 1076 The Yale Law Journal [Vol. 106: 1033

Harriet may also have been aware of the particular threat that sale posed to her daughters. Adolescent girls, sold in slave markets, were priced for their child-bearing potential. Even Harriet, now age twenty-eight, four times a mother, would have been listed as a "likely" slave woman and sold for reproductive purposes.185 Harriet would have known about the indignity of bearing children for other masters, and the additional indignity of casual sexual predation and oppression. Most importantly, they would have been experiences that Harriet would have feared for her daughters. 8 6 In 1846, at the beginning of the lawsuit, Eliza was already eight years old, ready to be placed in other households or sold away from her family if the owners' financial opportunism so dictated. Lizzie was no older than seven,8 7 the age at which slave children often first discovered the cruelties of their slave existence by being sent to work or assigned away from their mothers.'

185. Enslaved women's capacity to reproduce was crucial in determining their value. When William Law Olmstead investigated United States slavery, he received a report asserting: In the states of Maryland, Virginia, North Carolina, Kentucky, Tennessee and Missouri, as much attention is paid to the breeding and growth of Negroes as to that of horses and mules. Further south, we raise them both for use and for market. Planters command their girls and women (married or unmarried) to have children; and I have known a great many Negro girls to be sold off because they did not have children. A breeding woman is worth from one-sixth to one- fourth more than one that does not breed. W.E.B. DuBois, BLACK RECONSTRUcTION 44 (1935). Another planter "calculated that the moment a colored baby was bom, it was worth to him $300." Id. at 43 (citation omitted). 186. See BLASSINGAME, supra note 160, at 154 ("The white man's pursuit of black women frequently destroyed any possibility that comely black girls could remain chaste for long. Few slave parents could protect their pretty daughters from the sexual advances of white men."). To fend off such predation, young enslaved women may have resorted to tactics similar to those that Harriet Jacobs's persona, Linda Brent, was forced to employ: forming a sexual liaison with one white man to ward off the advances of another, her master, whom she deeply feared and despised. See JACOBS, supra note 52, at 54-57. 187. Considerable confusion surrounds Eliza's and Lizzie's ages. See supra note 27. Reverend Charles Snyder believed that Eliza and Lizzie were only a year apart in age, bom in 1838 and 1839 respectively. See Snyder, supra note 27, at 451. However, Walter Ehrlich, while placing Eliza's birth in 1838, concurs in the statement of facts in the Supreme Court opinion in placing Lizzie's birth seven years later, in 1845. See EHRLICH, supra note 3, at 23-25, 27. Several contingencies affect the interpretation of Eliza's and Lizzie's birthdates. An independent source, Reverend Brunson corroborates Dred's presence on the Gipsey, traveling northward to Fort Snelling in 1838. See FEHRENBACHER, supra note 3, at 246. If it was on this trip aboard the Gipsey that Eliza was born, she, the oldest daughter, would have been eight years old in 1846 when the suit was filed. It is possible that the Scotts traveled upon the Gipsey earlier, when Dr. Emerson sent for them to join him and his new bride in Louisiana. It is unknown how the Scotts made that voyage in April of 1838, but at most Eliza's birth at that time would make her only a few months younger at trial. 188. Children under seven served little purposeful use within the household or other economy. See DOUGLASS, supra note 52, at 30-32. See generally GRIFF1THS, supra note 160 (describing childhood blissfully ignorant of slavery's realities). Although no mention is made anywhere of hiring out Eliza or Lizzie, Wade quotes a number of city advertisements seeking boys as employees or apprentices. See WADE, supra note 182, at 43. In Slave Testimony, John Blassingame also includes an interview with an ex- plantation slave from Virginia who was hired out to work at age seven. See Interview with Samuel Ballton, in New York, N.Y. (Sep. 8, 1910), reprinted in SLAVE TESTIMONY 543, 545-47 (John W. Blassingame ed., 1977). Another ex-slave from Charleston, South Carolina was apprenticed to a black tailor at the age of seven and later served as a clerk to a black barber. See SLAVE TESTIMONY, supra, at 618-20. Perhaps predictably, all of these accounts of child employment involve boys' work; however, it seems reasonable that girls also may have worked within the domestic sphere, if not in factories and on railroads. 1997] Mrs. Dred Scott 1077

Some combination of these factors-fearing sale to the countryside, witnessing Eliza and Lizzie leaving the safer sanctuary of childhood, and knowing that Dr. Emerson's death could fragment her family-may have prompted Harriet to bring suit. Freedom in the abstract was probably not the absolute objective for the Scotts; its imperative may instead have been a relative one. 89 Because the circumstances of continued enslavement were likely to become intolerable,"g the decision to sue for freedom may have been a pragmatic imperative for the Scott family, an action sustained by them much as their family sustained them,

189. Dean Avi Soifer's account of Betty's Case. 20 Monthly L Rep 455 tMass 18571. concretely illustrates the dilemma the Scotts must have faced in negotiating the crosscutting d)namcs of seeking freedom and preserving family relationships. Betty was a young slase from Tcnnes,.ee whose owners. the Sweets, had brought her to Massachusetts, prompting female antislas cry actisists to file a habeas corpus petition challenging the Sweets' detention of Betty. See A%i Soifer. Status. Contracts. and Prunies Unkept. 96 YALE L.J. 1916, 1922 (1987). After interviewing Betty. Chief Justice Shau of the Masachus etts Supreme Court reported that Betty "ha[d] a husband in Tennessee and other relatics. that she [%%as)much attached to Mr. and Mrs. Sweet: [was] very well treated by them, and desireld] to remain and return with them, and this desire she expressed decisively and upon repeated inquiries" hi at 1923 iquoting 20 Monthly L. Rep. at 457). Shaw concluded that Betty was free. since her os ners had soluntanl) brought her into a free state, and she was not a fugitive of labor. See id In this particular case. this "frcedotn" meant respecting Betty's decision to continue with the Swseets %%here she might remain a slase See td at 1924 (quoting 20 Monthly L. Rep. at 457). As Soifer's discussion shows, it is impossible to regard this choice as poised bctseen binary alternatives. Freedom itself was a profoundly contested concept in its application to Belt)', life The habeas petition apparently arose from an episode in which Betty declared that if she 'sere forced to return to Tennessee, her owner would die and she would be sold to strangers See id at 1916 n 23 Yet, if Betty did not return, she faced the bleak prospect of separation from her husband and "'other relati e s"-s ho. Soiter notes, included several children. See id. at 1923 n.29 (quoting 20 Monthl) L Rep at 457) At the same time, the ostensible reason for the habeas petition on her behalf-her fear of sale-rendered uncertain the eventual results of her choice to return to her family. As one antislaser) adsocate pointed out. slasCe were not actually permitted to marry, and therefore spouses and children uer all %ulnerable to their masters' "caprice in the head, or... deficiency in the purse." Id. (quoting TiE LIBERATOR. Dec 18. 1857. at 202) Soifer concludes, "In essence, the abolitionists' [decision not to interfere in Betty's reensla. ementl. Sha, "s decision, and Betty's choice shared a common feature: They all underscored the power of the mdi' idualistic assumptions at the core of nineteenth-century law.'" Id. at 1928. It followsed that Everyday intuitive notions of individual freedom inherent in contract lasu were at once a crucial part of, and a hindrance to, significant congressional efforts to undertake reform Freedom of contract was a critical element of the prevailing definition of ci' il rights, yet judicial efforts to enforce the right to contract formed a substantial barrier against protection of freedmen Id. at 1928-29. Struggling to keep their family intact. Dred and Hamet Scott would hase faced sinilarly complex decisions with indefinite consequences. For them, like Betty. "'freedom" would not necessarnl) hae meant escape from their servitude under Dr. Emerson. Inflected by the Scotts' desire to presere family relationships, the meaning of "freedom" in any gi'en situation would hase dersed largely from that situation's potential impact on their family. Thus. we argue that Dred Scott must be seen not simply as the drama of a lone man seeking freedom from enslavement. but as the story of a famil) sin' ing to realize their own conception of freedom at every juncture. 190. When Rosa Parks was asked why that day. of all days. she refused to walk to the back of the bus. she stated, "My feet were tired." See Jim W. Jones. Gospel Singer's Lot e of Life Brings People Together. FORT WoRni TELEGRAM, Jan. 21, 1996, at 8. This incident. which sparked a landmark episode of resistance in the civil rights movement of the 1960s. exemplified the importance of attending to the immediacy of material motivations without neglecting the social forces impelling people's actions that some commentators have emphasized exclusively in interpreting Rosa Parks's decision to resst oppression See, e.g., Barbara Reynolds, Lessons of Dignity from 40 Years Ago. DEs MoiNs REGisTER. Dec- 4. 1995. at 9 (interpreting Rosa Parks's protest as arising not from "hurting feet" but from sense of dignity) 1078 The Yale Law Journal [Vol. 106: 1033 possible because of their mutual support, necessary because they wanted to maintain that continuity and mutual support. Attempting to answer in isolation the question of why Dred was motivated to sue therefore misses the point on several levels: It overlooks Harriet's agency, the connections binding together the members of the Scott family, and the social realities possible under slavery. Nevertheless, several questions remain. It is difficult to know how to assess the truth of the pleadings in the Scotts' court documents.' 9' Harriet Scott's 1846 statement that Taliaferro had "sold" her to Emerson' 92 may have been necessary to stipulate as a legal matter to file for freedom. The documentary record is ambiguous. There is no record in Taliaferro's journals of selling Harriet, although there is reference to Taliaferro's sale of another slave, Horace.' 93 There is yet another reason to explain the timing of the suit, which was brought in 1846, by reference to Harriet's life. If contemporary assessments of Harriet's age were correct, Harriet turned twenty-eight in 1846-the age of emancipation under Pennsylvania law, if she had been registered to slavery there. Given that Taliaferro resided in Pennsylvania when he was not at Fort Snelling, the promise of being finally free at twenty-eight' 94 may have registered among Taliaferro's slaves and in Harriet's particularized expectations, whether or not it had any legal significance for a woman then living in St. Louis. Fearing further enslavement, Harriet and her family may have bided their time waiting out the years until she was twenty-eight before suing for her freedom.

B. Escape as Exit

In turn, the threat of family dissolution from sale must be contrasted with the possibility of escape.'95 Escape when? Escape to where? Escape secured

191. Betty's Case embodies a striking interplay between the subservient statuses of race and gender. For instance, Soifer notes that Shaw's practice of conducting private interviews of slaves may have originated in the procedure that states (other than Massachusetts) had adopted, requiring a judicial officer to interview a married woman privately to protect her against conveyances of her dower property. See Soifer, supra note 189, at 1921 n.20. Shaw's use of such a process was apparently innovative in the context of ensuring that slaves made "free," i.e., uncoerced, choices. Thus, a model developed to forestall coercion based upon gender was expanded to prevent coercion based on race. It is also interesting to consider the relationship between Betty and the female antislavery activists who sought to persuade her not to return to Tennessee: In their comments, we can discern a clear tension between their sympathy for her personal choices and their desire to regard her as the mere embodiment of an abstract, large-scale cause. Mrs. Grover, who arranged to bring Betty's habeas petition, gave Betty a bonnet after finding "the poor thing with nothing but a plantation hat on." Id. at 1922 n.23. On the other hand, an anonymous writer not only argued that Betty probably could have rescued her family had she accepted her freedom, but that her plight would have aroused sympathy and interest, thereby contributing to the antislavery cause. See id. 192. See Dred Scott v. Emerson Papers, supra note 150. 193. See Journals of Lawrence Taliaferro, supra note 42 (May 17, 1832). 194. See infra note 234 and accompanying text. 195. To reach the free states of the North, slaves had to evade both professional slave catchers and suspicious whites. To succeed in their escape, slaves adopted such devices as borrowing the identification papers of free blacks and shipping themselves in crates to the North. Although some fugitives were lucky 1997] Mrs. Dred Scott 1079

how? Fort Snelling's isolation meant that escape was virtually impossible. This isolated frontier garrison offered neither camouflage nor the means for escape that a larger city would have. If Harriet, or any of the servants, had set out in the wilderness, she might well have starved or otherwise met her death, as some of the Fort's deserters did.' 96 More likely, the Indians would have brought her back as they brought back some other army deserters, anticipating repayment and food. 97 The pervasive and widespread hunger of the Ojibwa and Sioux tribes during these years sometimes made them envious of the better-fed enslaved "servants" at the Fort.'98 Had she escaped to the native peoples, they could have brought her back for a small reward." As for avenues of escape, there was no railway at that time.2"° The Mississippi River, with its increasingly frequent summer traffic of steamboats, provided the only mode of flight. The rest of the year the Fort was frozen in. The Indian Agents and military, however, were the most frequent travellers on the stretch of the Mississippi leading to Fort Snelling. The first stop in the steamboat excursion, Prairie du Chien or Fort Crawford-where even a stowaway would have to have kept under cover-would have been four days away. Thus, the Fort's virtual isolation would have proved an even greater deterrent to escape than the more permeable borders of a city or a plantation. Dr. Emerson's decision to leave his slaves relatively unsupervised at the Fort during the winter months of 1837-38 provides additional evidence.1' " Professor Ehrlich interpreted this as evidence of their readiness "to remain in that status even

enough to receive food and shelter from sympathetic blacks and whites on theUnderground Railroad. most made the arduous trek alone, traveling by night and avoiding any contact with other people See KOLot"s. supra note 18, at 158. Legislation aimed at curbing these escapes made slaves' efforts at fleeing to the North all the more desperate. The Fugitive Slave Law of 1793 authorized slaveowners or their agents to cross state boundaries, seize fugitive slaves, take them along with proof of ownership before a federal judge or local magistrate. and receive a certificate entitling the owners to take their captives home. Financial penalties could be levied upon anyone who interfered in any way with recovering a fugitive. Thus. suspected slases were denied due process of law. See FEHRENBACHER, supra note 3,at 40-41 - CAROL WILSON. FREEDOM AT RISK 41 (1994). The Fugitive Slave Law of 1850, passed while the Scotts' lawsuit was ongoing, only tightened the restraints preventing slaves from escaping successfully. Administered by special commissioners appointed by United States circuit courts, the 1850 law denied due process to alleged slaves still further The law made it unnecessary to consider a suspected fugitive's testimony that he or she was in fact free. and effectisely suspended the right of habeas corpus. Finally, this statute increased the penalty for interfering with the removal of a fugitive from five hundred to one thousand dollars. See 2 HtRD. supra note 106. at 743-47, WILSON, supra, at 54. Simultaneously increasing the powers of slaveowners ,hile diminishing the rights of suspected slaves, the law lent itself to the machinations of kidnappers who used it as a shield for their illegal activities. See WILSON, supra, at 55. 196. Telephone Interview with Thomas Shaw. supra note 61. 197. Telephone Interview with Thomas Shaw, Historian. Histonc Fort Snelling. Min (May 24. 1996) 198. See Journals of Lawrence Taliaferro, supra note 42 (Sept. 15. 1829) (suggesting beginning of phase of intense seasonal hunger during winter months). This phase continued during the 1830s 199. Telephone Interview with Thomas Shaw, Historian. Historic Fort Snelling. Minnesota (Feb 12, 1996). 200. The railway that eventually flanked Fort Snelling was not built until 1865 Id. 201. See EHRLICH, supra note 3. at 22: FEHRENBACHIER. supra note 3. at 244 1080 The Yale Law Journal [Vol. 106: 1033 though they had an apparent opportunity to flee."2" One might otherwise interpret it as the lack of any realistic alternative. If the Scotts knew of Rachael's successful suit for freedom,. 0 3 they might have believed they risked nothing in returning to St. Louis. The Scotts' decision to return to slave territory with the Emersons must be contrasted not only with escape but with the potential oppressions of a continued residence in ostensibly free territory. In 1840, at the very time that the Emersons departed from Fort Snelling for the last time, staying on at Fort Snelling would have been impossible. There literally would have been no place for the Scotts to live. That very year, the military was actively engaging in a policy of uprooting the civilian squatters in the vicinity of the Fort by evicting them and 2 4 then destroying their homes. 0 This displacement of the civilian population meant that the Scotts would have had nowhere to turn for sanctuary. Remaining at Fort Snelling would have offered them little in the way of community except the community of other slaves. The Indian Agents and military formed a tight-knit society, the squatters at Camp Coldwater were unlikely to welcome them, and the French fur traders held their own slaves. Where would they have found shelter?2 5 How would they have supported themselves? The opportunities for free blacks in the extralegal (or prelegal) societies of the Forts must be contrasted with the opportunities available to African Americans in the more settled communities in the Northwest Territory. Illinois's practices in treatment of people of African descent was far from exemplary, despite the explicit provisions of the Northwest Territory.206 Life for Blacks in Illinois meant continued servitude well after 1824, when Illinois became a state and established its constitution banning slavery. A 1904 study of the conditions states:

202. EHRLICH, supra note 3, at 22. 203. Taliaferro must have been informed of the outcome of Rachael's case. Not only did Taliaferro receive letters from the principals during the time of trial, see Journals of Lawrence Taliaferro, supra note 42 (Nov. 26, 1835) (documenting arrival of letters from Lt. Stockton and quartermaster Brant by day's post), but he was also scanning the St. Louis and upper Mississippi Valley newspapers at this time for news about himself, see id. (Oct. 27, 1835) (noting that Taliaferro saw disturbing article in Galena Advertiser); id. (Apr. 30, 1836) (listing arrival of The Globe and Tire Bedford Gazette). If the incident had been reported, he would surely have read it. 204. See Journals of Lawrence Taliaferro, supra note 42 (Oct. 21, 1839). 205. Prairie du Chien, the point of "civilization" closest to Fort Snelling, was some 200 miles away. Prairie du Chien was even less attractive as a place of sanctuary at this time because of the social instability of the surrounding tribes. George Catlin, a traveller who visited both of these Forts during those years, reported on the excessive drunkenness and disorder at that fort. See id. (July 18-27, 1835). If Harriet and Dred had fled to Prairie du Chien there would have been little in the way of welcoming hospitable society there. At this time, even Governor Dodge, the territorial governor who resided near Prairie du Chien held slaves. See Louis PELZER, AUGUSTUS CAESAR DODGE 14, 39 (1908); Louis PELZER, HENRY DODGE 196-97 (1911). 206. See PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 34-79 (1996); N. DWIGHT HARRIS, THE HISTORY OF NEGRO SERVITUDE IN ILLINOIS AND OF THE SLAVERY AGITATION IN THAT STATE 1719-1864, at 53-56 (1904). 1997] Mrs. Dred Scott 1081

Colored persons found in the State without freedom papers and unclaimed by masters were arrested and sold at auction by the county sheriffs. In most cases of this kind, the negroes were bound out only for one month or a year ...It is safe to assume, however that many were not set at liberty till after the Supreme Court decision in 1845.207

The point here is not that the Scotts, who were unable to read, knew about legal precedent (although we assume Harriet knew about Rachael), but rather that legal precedent itself was unreliable even in Illinois, and, as a result, slavery remained in effect in free territory.

[Between 1820 and 1826,] there were two good reasons why the slaves [held in Illinois] should remain satisfied with their lot. These were, the almost unbearable position of the free colored people in the State, and the barbarous practice of kidnapping all unattached negroes. The former was caused by the strong public sentiment against the introduction of free negroes into the State, and the stringent statutes which deprived them of all civil and political rights, and tolerated their presence on the soil of Illinois merely as an unavoidable evil. °

Moreover, they may have feared that had they succeeded in escaping, they might have been kidnapped and returned to slavery. In the 1820s, kidnapping "assumed the proportions of an established enterprise," despite the passage of ' 9 an Illinois legislative act banning this practice in 1825 .2

Another method of procedure, which grew more popular as the danger of pursuit and recapture increased, was to carry the negroes to some spot on the Mississippi or Ohio River. Once there, they were smuggled on board ships and forwarded to Memphis or New Orleans, where they were sold into slavery.2t0

Some state laws were enacted to counter kidnapping, but other laws actively discouraged the classification of black individuals as "free." Under Illinois law:

No free negro or mulatto could settle or reside in the State without a certificate of freedom. This certificate must be shown to the Commissioner's Court of the county in which residence was desired. In addition, a bond as security that the negro would obey the laws and not become a county charge. Further, it was illegal for any person to hire a negro who possessed no certificate of freedom .... Under such

207. FINKELMAN, supra note 206, at 53 (citations omitted). 208. Id. at 53-54. 209. Id. at 54. 210. Id. at 55. 1082 The Yale Law Journal [Vol. 106: 1033

conditions, any negro who entered the State as a free man without a duly certified testimonial of freedom ... was a legitimate prey of the kidnappers.2 '

While it may have been possible for a lone man (or even a lone woman) to keep on the run living in the netherland of illegitimate dealings, this kind of life would have been almost impossible for a family with small children, who would of necessity be slower-moving and who would find it harder to hide and to live the lives of runaways. Thus, the choice between slavery and freedom, even in a purportedly free state like Illinois, was more constrained than a strict slavery/freedom dichotomy would suggest. Although the Scotts may have been "free" upon entering Illinois, black persons could not technically be free from constraints without the necessary legal papers. Papers of documentation were not available on the Minnesota frontier, where the requisite legal infrastructure did not exist to provide them. Major Taliaferro, by performing the public act of marriage, had done as much in advancing their status as free as the limited administrative capacities of his office could offer.212 The distinction between freedom and slavery was further glossed by the widespread practice of indenture, often forced by the county officials themselves.213 Indenture constituted a condition somewhat more autonomous than slavery, since indenture, like the hiring out that the Scotts had already experienced, offered the possibility of termination of the indenture; but indenture was by no means equivalent to freedom. Black persons could only settle in freedom if they had the requisite papers. These circumstances made it undesirable for the Scotts simply to slip across the river border from St. Louis to Illinois. Other instances during those times indicated that Illinois was not much more hospitable to free blacks or fleeing slaves.21a As Rachael's example would have illustrated, a suit for freedom provided the best chance for security for Harriet and her family. In these contested circumstances, continued life under the titular mastership of Dr. Emerson, a somewhat preoccupied and peripatetic master, who at least seemed to leave the Scotts alone, offered them greater security than attempting

211. Id. at 55-56 (citations omitted). 212. Even paper was in short supply at the frontier outpost. Major Taliaferro used the back of his own bonafides of social standing, a statement of membership in a society of learning, as note paper for other notes he made. See Taliaferro, supra note 103. The nearest territorial count or registry of any kind was 200 miles downriver in Prairie du Chien. Although Taliaferro maintained that he had given 21 slaves their freedom, no document in Prairie du Chien could be found to indicate that he had registered any individuals complete with duly issued freedom papers. 213. See, e.g., STEPHEN MIDDLETON, THE BLACK LAWS IN THE OLD NORTHWEST: A DOCUMENTARY HISTORY 185-93, 285-89 (1993) (describing system of indentured servitude in Indiana and Illinois that approximated slavery). 214. See infra text accompanying notes 225-28. 1997] Mrs. Dred Scott 1083 to fend for themselves in racially hostile, settled communities like Illinois, or culturally hostile, wilderness communities like the upper Mississippi Valley.

C. Filing Suit: Entering the Public Arena

In When and Where I Enter, Paula Giddings makes the point that much can be learned about agency and coercion from observing the position of black women as they become a focus of history." 5 In this case, the circumstances of the first filing of the Scotts' suits in 1846-the identity of the Scotts' first lawyer, the individuals who were summoned as witnesses, and the Scotts' connections to them-shed new light on the nature of the impulse to freedom within this family. Based upon the evidence already gathered by historians and the new evidence that we have found, we conclude that the choice to sue and the decision as to when to bring suit were Harriet's. Clearly, none of the many accounts of the lawsuit's origin adequately captures this relationship between the particularized impulses to freedom and the particularized circumstances of human bondage.1' 6 In this case, as in so

215. See PAULA GIDDINGS, WHERE AND WHEN I ENTrER 6-8 (1984). 216. Certainly, as an 1837 letter in a St. Louis newspaper lamented, the growth of urban slavery provoked several lawyers to develop practices that responded to slaves' search for legal advice about suits for freedom. The letter's author, "'Topaz," complained: This is but right, rational and humane ... but the liberty has become abused, at least in St Louis, by the ruthless encouragement of those who left-handedly profit by such suits.... Tom wants his freedom, and sallies in quest of legal advice: he states his case. and right or srong. is flattered to proceed. Pleased with his prospects, he brags to Dick. who after a little scratching of the bump of his reminiscences, takes a notion he has a right to freedom too. Then the hope spreads through the black community. Fired with untried hope. Dick flies to Ned Ned catches flame and communicates it to Big Bill-Big Bill to little Jim. and little Jim to everything that wears wool.... (The slave soon) grumbles at his master's commands, neglects his duties, and takes his chastisement with the sullen insolence of one %%ho thinks he shall shortly be able to set the white man at defiance. WADE, supra note 182, at 257. Paternalism and a focus on male slaves' interest in suing for their freedom clearly pervade this account. Its allusions to generic first names only. coupled with its contemptuous portrayal of exclusively male slaves foolishly pursuing a freedom they cannot truly comprehend, trivialzc the importance of slaves' information networks and wholly ignore enslaved womcn's capacity for resistance. At the same time, this passage perhaps inadvertently suggests a plausible description of the spread of legal information through St. Louis slave communities. The Scotts may hase imbibed this knowledge from Dred's acquaintance with other slaves in the city. A variety of contexts provided opportunities for the formation of these networks. During a few moments' reprieve from their work. slases and free blacks could have assembled at a friend's house, a street comer. or the market. At night. between the end of their working day and their curfew, more organized social events were possible. See td. at 48-51 Wade's description of male slaves' responsibilities in their masters' household contingents tacitly establishes a distinction between the opportunities male and female slaves were granted to leave the premises. Wade notes a number of duties masters called upon specifically male slaves to perform away from the household, but includes no comparable list for female slaves. Because Wade takes it upon himself to create a gendered category of male slave labor, it seems unlikely that this omission of female household slave work outside their masters' residence arises from a failure to use avadable information See id. at 44-46. 1084 The Yale Law Journal [Vol. 106: 1033 many others, the means available to the Scotts seem to have shaped the outcome as well. Although Harriet and Dred could have filed papers in forma pauperis and had the court appoint attorneys for them,1 7 neither of the Scotts elected to follow that route during Dr. Emerson's lifetime or in the four years after Dr. Emerson died. When they sued in 1846, they sued in tandem in two separate suits brought by the same lawyer, Francis B. Murdoch. The evidence suggests that Harriet initiated the suit. However, when Francis Murdoch precipitously moved to California, Dred turned to the Blow family-the people who had once been his owners-for help. The lawyers decided to streamline the case by pressing only one litigant's case-Dred's. Harriet's case was simply stipulated into the background. Several evidentiary aspects suggest that the impetus to sue for freedom was more Harriet's than Dred's. As between the Scotts, throughout the protracted litigation Dred appeared to be somewhat ambivalent about its outcome. In his later life, he described the lawsuit as "a heap o' trouble. '218 This alone would be little to go on, but more substantial evidence suggests that the connection between the Scotts and their first lawyer, Frances Murdoch, was a tie between the lawyer and Harriet Robinson Scott. The evidence gathered by historians so far suggests that Harriet obtained her connection to Murdoch through her church membership. 2 9 Harriet is listed as having joined the Second African Baptist Church of St. Louis, although Dred is not.220 There is strong support for the premise that for Americans of African descent, whether free or enslaved, church membership was an important means to transmit legal knowledge. Churches served as nodal points where slaves' organizational energies and desire for literacy converged. In organizing and

217. See TREXLER, supra note 113, at 211-12. Rachael had followed this procedure in her case. See Rachael Papers, supra note 97. 218. Brian McGinty, "A Heap O Trouble", in 16 AM. HIST. ILLUSTRATED 34 (1981). Frank Leslie's IllustratedNewspaper describes his feelings differently: Dred did not appear to be at all discouraged by the issue of the celebrated case, although it doomed him to slavery. He talked about the affair with the ease of a veteran litigant, though not exactly in technical language, and he was evidently hugely tickled at the idea of finding himself a personage of such vast importance. He does not take on airs, however, but laughs heartily when talking of "de fuss dey made dar in Washington 'bout de ole nigger ...."He would not [escape instead of litigate], however, insisting on abiding by the principles involved in the decision of the case. LESLIE, supra note 131, at 2. Somewhat incomprehensibly, the newspaper continues: He declares he will stick to his mistress as long as he lives. His daughters Eliza and Lizzie, less conscientious about the matter, took advantage of the absence of restraint on their movements a year or two since, and disappeared, and their whereabouts until recently remained a mystery. Id. It is unclear whether the expression of loyalty to his mistress in the passage refers to Mrs. Emerson- Chaffee, whom he had not seen in some time, or his wife, as mistress of his household. 219. Historian Walter Ehrlich, who has looked most carefully into the documents of the suit, believes that this would have been her impetus to sue for freedom. Telephone Interview with Walter Ehrlich, supra note 149. 220. This church later became known as the Central Baptist Church. See EHRLICH, supra note 3, at 1997] Mrs. Dred Scott 1085 creating their religious worlds, slaves forged networks that could also transmit valuable information about literacy and the law.22 I The minister of Harriet's church, Reverend John R. Anderson, was a man who had been born a slave, but who had purchased his and his family's freedom, and then had worked to free a number of other individuals from slavery. He may well have counseled Harriet to sue for freedom and he may have provided the link to their first attorney, Francis Murdoch. Who was Murdoch? Francis Murdoch was a relatively unknown lawyer who had been involved in racial enslavement suits as a city attorney in a small town in Illinois before migrating to St. Louis.22 3 Murdoch was not a slaves' lawyer-he was not appointed by the court, nor was he considered an abolitionist of strong ideological fiber. More importantly, both Murdoch and Reverend John R. Anderson, Harriet's minister, were involved in the notorious Lovejoy episode, the incident that set the tone for race relations in St. Louis in the antebellum period. 224 The Lovejoy incident became one of the cultural events in the locale that made establishing free status more difficult but also more of an imperative for families like the Scotts. On November 7, 1837, Elijah Lovejoy, the editor of an abolitionist newspaper, was murdered by a proslavery mob while defending his press across the Mississippi River in Alton, Illinois. Lovejoy had moved his newspaper from St. Louis to supposedly free Illinois in order to avoid some

221. These religious services were unique among slave gathenngs in the rclatise degree of approsal they received from slaveowners. See WADE. supra note 182. at 145. 160 Yet. as Wade descnbcs. hitcs tended to feel a residual distrust, lying beneath a veneer of pride. of slaves" churches Mhey feared the independence which separate churches implied Neser certain of %%hat ssent on inside, they became convinced that abolitionist literature was circulated clandestinely and that insurrection was nightly plotted. The churches were. as one Charlestonian put it. 'nurseries of self government' and hence dangerous. The slaves get 'excited by the pnvileges they enjoy, as a separate and to some extent independent society.' wared another. ....The fear of white townspeople was in part justified, for in these churches the Negroes did in fact get some experience in managing their own affairs In the life of these churches the first signs of traditional Negro leadership %ere visible in the cities e en before the abolition of slavery. Id. at 172. Discussing the connection between slave churches and violent resistance to slascry, Elizabeth Fox-Genovese argues that "churches and secret religious netw.orks undoubtedly pros ided the institutional links between acts of individual resistance and revolts in the name of collecti ty " Fox-GE%oVESE. supra note 104, at 33. 222. See THE HISTORY OF BLACK BAPTISTS IN MISSOURI 23 (Alberta D Shipley & Dasid 0 Shipley eds., 1976). 223. Murdoch is not listed in any of the gazetteers of this period in St Louis that %%ehave been able to find. 224. As an I l-year-old slave, Anderson was employed as a tspesctter in the office of Elijah Loejoy. an abolitionist minister and editor who was murdered. See THE HISTORY OF BLACK BAPTISTs ItSSOLRI. supra note 222, at 23. The Lovejoy episode figures prominently in many of the reminiscences and histories of the times. See WILLIAM W. BROWN. NARRATIVE OF WILLIAM W. BROWN. A Ft~cmvE SLAVE. WRrrrE.N BY HiMSELF 84-90 (Boston. The Anti-Slavery Office 2d ed. 1848): JOHIN FLETCiER DARBY. PERSOAL RECOLLECTIONS OF MANY PROMINENT PEOPLE WHOM I HAVE KNOW.% (Amo Press 1975) (c.1880). FRANCIS GRIERSON, THE VALLEY OF SHADOWS (1948); N. DWIGHTr HARRIS. TIE HIsTORY OF NEGRO SERVITUDE IN ILLINOIS (1904); ERNEST KIRSCHTEN. CATFISH AND CRYSTAL (1965) For Ehrlich's and Fehrenbacher's accounts of the incident, see EHRLICH. supra note 3. at 37: and FEtIRENBACHIER. supra note 3,at 698. 1086 The Yale Law Journal [Vol. 106: 1033

2 of the hostility that his views on emancipation had posed in St. Louis. 25 Lovejoy had advocated gradual emancipation for slaves. Setting up his printshop just across the river in the nearest town on the Illinois side proved futile. In a series of incidents, one after another of his presses were burned, until Lovejoy himself was killed. Harriet's minister, Reverend Anderson, was a young man working in Lovejoy's printshop on the very night that Lovejoy was murdered. Francis Murdoch, had been the Alton district attorney whose responsibility it was to bring to justice the mob that murdered Lovejoy. There is no doubt that given Francis Murdoch's role, he would have been remembered by Reverend Anderson. The Lovejoy incident rocked both the Alton and St. Louis communities and sent shockwaves throughout the territory.226 Whether Murdoch interviewed Anderson about the murder circumstances to bring the indictment and subsequent prosecution is not known. So far, however, historians have known of no tie of Murdoch to the Scotts, other than the possible link of Harriet to her minister and her minister to Murdoch. 227 This would suggest that Harriet's church network played a 228 decisive role in gaining legal representation for her family. The papers in the case also imply a closer connection between Murdoch and Harriet, as the primary client, than between Murdoch and Dred. Although the suits were filed at about the same time, Murdoch posted personal bond only in Harriet's suit.229 Even more importantly, Francis Murdoch read law in the small mountain spa town of Bedford, Pennsylvania during the same

225. In one account, after three successive presses were ransacked by proslavery hoodlums, a fourth press from Ohio arrived on the Alton riverfront November 7, 1837, a day made grim by a chill premonition of more than winter. Stores were closed and people remained off the streets as Lovejoy and his friends (authorized to carry firearms for the occasion) moved the new press to a warehouse. After nightfall a mob did attack the place. There was gunfire from both sides. A man named Bishop was killed. Some of his friends tried to set fire to the roof of the building. Lovejoy rushed out and was shot. He staggered back into the warehouse, up to its second floor, and fell dead, five bullets in his body. The other defenders, all wounded, escaped along the dark riverfront. The press was thrown into the water. The Abolitionists had a martyr, and by and by it dawned on American journalism that it had one too. KIRSCHTEN, supra note 224, at 184-85. 226. See id. 227. As a typesetter for Lovejoy's abolitionist press in Alton, Reverend Anderson was there when rioting followed Lovejoy's murder. At that time, Francis B. Murdoch was Alton's city attorney. Murdoch was personally opposed to slavery, but as the city's attorney he was responsible for prosecuting both antislavery and proslavery zealots charged with capital offenses tied to slavery. Although there is no direct evidence that Anderson and Murdoch knew each other, they both had antislavery inclinations, came from the same small town in Illinois, and had been involved in the notorious incident. See EHRLICH, supra note 3, at 37. 228. Harriet would probably have sought counsel from her spiritual advisor on this momentous a matter. Reverend Anderson, a man who had purchased his own freedom, would know that legal papers would have to be filed to establish freedom, and he may have called upon a sympathetic lawyer he knew in St. Louis from their mutual prior residence in Alton, Illinois. 229. See EHRLICH, supra note 3, at 36. If Murdoch could not afford to expend the credit to post bond for both of them, he may have selected between them by posting bond for the person for whom he had the greater attachment. There would have been no legally strategic reason for preferring Harriet to Dred at this point in the litigation. 1997] Mrs. Dred Scott 1087

years that Lawrence Taliaferro frequented Bedford for his long, three-to-four month furloughs from his Minnesota post.2 The young men were roughly the same age, were both members of the same small Presbyterian church congregation, and were both married to Bedford belles by the same minister of that church in the same year, 1828.23' The Presbyterian church to which they both belonged was the smallest of the denominational churches in Bedford at the time. As a young man reading law in Bedford, it would not have been uncommon for Murdoch to have taken rooms and meals at Dillon's Hotel, one of only three hotels in Bedford at the time, and the hotel nearest the train station and the courthouse. One can surmise that Lawrence Taliaferro also stayed as a guest at the hotel of his father-in-law to be. During the roughly five years that Murdoch read law, was admitted to the bar, and practiced law in Bedford, it would have been virtually impossible for these young men living in such close proximity and traveling in the same small circles not to have known each other. It is even possible that Murdoch knew Harriet from his Bedford years. Our efforts to place Harriet's whereabouts during those five years have been inconclusive, but it is known that Taliaferro sometimes took his servants with him to Bedford when he planned to stay for an extended visit.232 Whether Murdoch knew Harriet, who would have been only ten or twelve at the time, is not clear. When Harriet later came to him in search of a lawyer, Murdoch might have remembered Taliaferro, and possibly even Taliaferro's predilection to free his slaves.233 Murdoch's willingness to file the papers for the Scotts may have sprung from his sense of a tie to Taliaferro, a tie that may even explain why he posted bond for Harriet, but not for Dred. Murdoch's Pennsylvania connection may also explain the timing of the suit. If Harriet had spent time in the service of Taliaferro in Pennsylvania, she would certainly have been freed by her residence there, unless she had been registered in the Pennsylvania slave registry.2r If Harriet had approached

230. Francis Murdoch is listed as having been admitted to the bar at a -date unknown- but in a chronological lists placed some time between the August Term 1824 and the November Term 1825. See HISTORY OF BEDFORD, SOMERSET AND FuLTON COUNTIES. PFENNSYLVANIA 206 (Chicago. Waterman. Watkins & Co. 1884). 231. List of marriages and deaths recorded in the Democratic Inquirerfor 1828 (Old Pioneers Library. Bedford, Pa.) (on file with authors). 232. Taliaferro notes that he requested a furlough to take his "famly" to Pennsylvania. Tahaferro tended to use the designation "family" when he was referring to more than simply a husband and wife See Journals of Lawrence Taliaferro, supra note 42 (Apr. 7, 1829). Taliaferro also notes *'a miserable tnp to St. Louis with his wife & family, aboard the steamboat 'Huniress.""Id. (Sept. 26. 1829). Finally. Taliaferro notes that he went aboard the steamship Banner headed for Pennsylvania "with my 3 servants - Id (July 14, 1832). 233. Taliaferro had publicly expressed this predilection as early as 1829 In his May 1829 entry Taliaferro wrote: "Capt. Plympton wishes to purchase Eliza. I informed him that it was my intention to give her her freedom after a limited time." Id. (May 1829). 234. Under Pennsylvania law, new slaves brought into Pennsylvania from any other state were automatically free regardless of slaveholder attempts at registry. The only way that slavery could be 1088 The Yale Law Journal [Vol. 106: 1033

Murdoch to bring suit earlier, Murdoch may well have advised her of a significant feature of the gradual emancipation statute of Pennsylvania. Under Pennsylvania law, all slaves were released from slavery upon the age of twenty-eight.235 In 1846, by our estimates, Harriet would have just turned twenty-eight. If Murdoch had any concern that there was any outstanding registrations for her labor in Pennsylvania, he would be confident that upon her reaching age twenty-eight, those registrations would have been null and void. Other members of the Dillon family had registered the babies born to their slave women to indenture until age twenty-eight 236 (and Murdoch may have known that), but under Pennsylvania law, no one would have a claim on a registered slave once she reached that age. A Pennsylvania-trained lawyer would have known the significance of that magic age and, if Harriet had spent time in Pennsylvania, the significance of it for Harriet's life.

D. The Lawsuit

Although Murdoch filed the first set of papers, his precipitous departure for California left the Scotts with a lawsuit but without a lawyer. There is nothing to explain why Murdoch left. He might have been driven out of town by hostility or the threat of the cholera raging in St. Louis in 1849, or drawn to California by the appeal of the Gold Rush; or he might simply have drifted on as he had changed his situs of practice from Pennsylvania to Ohio to Michigan to Illinois to Missouri in the past.237 Historians believe that the Scotts then turned to the Blow family for help.238 The Blows hired the Scotts' second lawyer, and that second lawyer, or the Blows' patronage itself, was probably responsible for the decision to advance Dred's case at the expense of Harriet's. That decision may have been a crucial error. Certainly, given the precedent in the Rachael case, the Scotts' lawyers were justified in

maintained under Pennsylvania law was if the slaveholder registered babies born to enslaved women within six months after their birth. In these circumstances, the newborn babies would continue in servitude until age 28. Since many enslaved women bore children before they reached 28, in theory even this gradual emancipation statute could be perpetual since enslaved women's primary child-bearing years would occur before they reached 28. The first-born and early-born children to these women could be reregistered into slavery for 28 years, and the children born to those early-borns could in turn be registered, thereby perpetuating slavery for generations. See DUMOND, supra note 47, at 49. As late as 1828, Humphrey Dillon registered a child, newly born of his servant Eliza Diggs, to 28 years of servitude under the Pennsylvania law. This was the third child of Eliza Diggs registered in this way. See 1828 Slave Registry of Bedford, Pennsylvania (Old Pioneers Library, Bedford, Pa.) (on file with authors) [hereinafter 1828 Registry]. 235. See DUMOND, supra note 47, at 48-49. 236. See 1828 Registry, supra note 234. 237. Murdoch left Bedford after the death of his first wife. He left rapidly enough that he left a watch behind, perhaps pawned for traveling money, at the jewelers, which was then advertised in the Bedford Gazette. Interview with Kay Williams, supra note 45. 238. See EHRLICtH, supra note 3, at 38 ("[W]hen Murdoch left St. Louis, Dred Scott presumably was left without both counsel and assistance, and so he turned for help to 'them boys' with whom he had been 'raised.'... [There is no question that from this point on the Blows and their relatives were integrally involved."). 19971 Mrs. Dred Scott 1089 thinking that even Dred Scott had a strong claim to freedom. Yet, as we shall see, not only would Harriet's manumission, unlike Dred's, have freed two, and possibly three, members of her family, but her claim was also stronger than his. Establishing Harriet's freedom would have led to the conclusion that by virtue of maternity, her daughters were also free. This victory would have only strengthened Dred's claim to freedom as well. Nonetheless, the lawyers hired by the Blow family, perhaps feeling some desire to streamline the litigation2 39 and operating on the basis of unacknowledged biases, consolidated Harriet's into Dred's case. Thus, because Dred Scott could "represent" her, Harriet Robinson Scott's injuries and her autonomous desire for freedom did not warrant sufficient attention to justify a separate cause of action. Her specific grievances, including, among other things, bearing two children into slavery, were elided into her husband's case and thereby eliminated. The manner in which Harriet was situated within dynamics of racial and sexual oppression ensured that her name and life would be forgotten. The Blow family's sustained participation in this suit raises a number of questions. Why did the Blows not simply buy the Scotts' freedom and be done with it instead of financing their lawsuit? It is possible that the Sanford- Emersons would simply have refused to sell. But there is no claim in any of the accounts of the story that the Blows even made an offer. As demonstrated, under the Missouri manumission statute the Blows would not only have had to negotiate a price for the family, they would also have had to post a bond sufficient to provide for the family's subsistence.4. If, instead, the Scotts' freedom was established by lawsuit by virtue of residence in free territory, the only monies the Blows would have had to advance were those of the lawyer for one law suit, and the Blows were well enough connected in the legal world of St. Louis to have some of their friends and extended family provide the legal services, perhaps as a favor. By ignoring Harriet Robinson Scott's potential claim for freedom, her lawyers also ignored the complexity of slavery. This complexity existed on two levels. First, each characteristic that contributed to a slave's legal status-race,

239. One explanation for the consolidation locates the decision to eliminate Hamet's case in her attorneys' solicitude about a technical rule against joint actions in trespass. See FIIR-StBACHER. supra note 3, at 656 n.2 (citing Violet and 1illiam v. Stephens. I Litt. Sel. Cas. 147. 148 (Ky 1821). in %%hich the court declared: "The rule is well established, that for an injury done two. where the wvrong done one is no wrong to the other, they cannot join in an action, as in cases of trespass, assault and battery. etc *j While such a strictly practical reason may well have contributed to Hamet's decision to sue for freedom in her own name, accepting it as the sole basis for her suit strips her of agency and reduces her to Dred's appendage. Because slave marriage was such a tenuous institution anyway. Hamct's la%)er5 may hac believed that it would be all the more difficult to prove that one pariner's injury did in reality injure the other: They might not have been able to ascribe to the extralegal union of two slaves the community of legal interests that would have justified a single suit. 240. See supra note 138 and accompanying text. 1090 The Yale Law Journal [Vol. 106: 1033 marriage, and place of residence, among others-produced a range of sometimes contradictory social interpretations. Second, these variegated elements could be infinitely combined to yield complex amalgams.14t At this second level of differentiation, Harriet's and Dred's cases were quite distinct. However, the Scotts' lawyers failed to consider the implications of this disparity. By perpetuating the hierarchies that silenced Harriet as an agentive being, these lawyers may well have threatened the cause of freedom, unwittingly setting the stage for imminent battles over the spread of slavery into free territory. The protracted period of the trial must have wreaked havoc on the Scotts' lives. The family's freedom-indeed, its very existence-was in jeopardy for eleven long years, during which the Scotts' future was in limbo. We can only guess at the stress of enduring the trial. 2

241. See VanderVelde, supra note 15, at 100-01, 121. 242. For the best slave narratives about St. Louis city life, see BROWN, supra note 224; and JAMES THOMAS, FROM TENNESSEE SLAVE TO ST. Louis ENTREPRENEUR: THE AUTOBIOGRAPHY OF JAMES THOMAS (Loren Schwenger trans., 1984). The sparse information available on patterns of urban slaveholding does permit some speculation about the tenor of the Scotts' lives in St. Louis during the trial. For example, the practice of "hiring out," prevalent in Southern cities, allowed slaves sometimes to negotiate their own job arrangements; after they paid an agreed-upon sum to their masters each month, they were free to keep the profit that remained. Because owners often did not know where their slaves worked, they could not exert supervisory authority over them, especially when slaves began to rent housing away from their masters' residences. See WADE, supra note 182, at 48. In St. Louis during this decade, the liberty such arrangements conferred upon slaves provoked a rash of complaints: A local editor in 1824 endorsed legislation against the custom. It called it "one principal source of the irregularity and crimes of slaves in this place." A fellow townsman agreed, contending that "the prime source" of their "bad habits is the liberty,... of hiring themselves out." "While they remain slaves," they counseled, "they must, for their own good, as well as for the public benefit, be held under very rigid constraint." Nine years later, the city, finding that law unequal to the task, added its own ordinance because, as the Missouri Republican put it, "the evil is a very serious one." Yet in 1835 a public meeting could call the practice "one of the greatest evils that can be inflicted on a community" and urge the appointment of a "permanent committee" to stamp it out. Id. at 50 (citations omitted). Sentiment against St. Louis slaves hiring themselves out led eventually to a city ordinance rendering owners who permitted slaves this liberty subject to fine. See TREXLER, supra note 113, at 35. On the other hand, the practice was economically useful to owners and hirers alike, so there appears to have been little enforcement against hiring out. Albeit limited, this freedom that slaves enjoyed "to engage in business on their own account, to live according to their own fancy, to be idle or industrious," WADE, supra note 182, at 49, would have allowed the Scotts to see each other and to maintain some sense of family unity, even if they were all hired out to different masters. Thus, "hiring out" might have given them a measure of privacy that they would never have won in rural areas. However, urban slave life shared many of the drawbacks of plantation life. First, marriages had no more intrinsic stability in the city than in the country, due largely to white slaveowners' refusal to respect kinship ties, but due partly, at least, to the shortage of young black men in the cities. Hence, "even if other factors had been more normal, many slave girls could not have found an eligible mate." Id. at 121. As Eliza and Lizzie came of age, therefore, they would have had trouble finding husbands. Second, and in a related vein, an abundance of white men and a shortage of white women in the cities made the former especially apt to enter into liaisons with enslaved and free black women. See id. at 121-22. As with similar relationships that occurred on plantations, the disparity in social, economic, and political power that characterized these interactions should make us suspicious of their "voluntariness." 1997] Mrs. Dred Scott 1091

III. HARRIET'S CLAIM TO FREEDOM

A. Reconstructing the Legal Significance of a Set of Residences

By the time the case reached the Supreme Court, Harriet's case had been so completely submerged in her husband's that even Justice Curtis, in his dissenting opinion, treated Harriet's freedom as an offshoot of Dred's:

[I]t is proper to observe that the female to whom he was married having been taken to the same military post of Fort Snelling as a slave, and Dr. Emerson claiming also to be her master at the time of her marriage, her status, and that of the children of the marriage, are also affected by the same considerations.4- 3

The decision by the Scotts' attorney to stipulate Harriet's case into Dred's meant that the Justices never considered Harriet Robinson Scott as a candidate for freedom in her own right. It is this lost opportunity that we hope to recapture. Harriet had been in free territory in Missouri Compromise lands, the Northwest Territory, and possibly the free state of Pennsylvania. Both sides of the Mississippi River in the Fort Snelling area where Harriet had lived were within free territory. The east bank was in the Northwest Territory and the west bank was in the Missouri Compromise lands north of the parallel, declared to be free. In Rachael's case, the Missouri courts had made no distinction between her residence at Fort Snelling on the west bank of the Mississippi River, and at Fort Crawford, Prairie du Chien, on the east bank of the great river.24 But by its terms, the Northwest Territory only extended as far as the east bank of the river. Although at the time the Fort was built, it was selected to be built on high ground at the confluence of two waterways, it could not even be said for certain which of the two waterways was the Mississippi. 245 Article VI of the Northwest Ordinance creating the Northwest Territory stated: "There shall be neither Slavery nor involuntary Servitude in the said territory .... To this unambiguous statement of prohibition was attached the following proviso: "Provided always that any Person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.247 The west bank, where Fort Snelling stands, was governed by the Missouri Compromise

243. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 598 (1857) (Curnts. J.. dsscnting). 244. See Rachael v. Walker, 4 Mo. 350, 352-53 (1836). 245. Even today, standing at Historic Fort Snelling. it is difficult to see %,herethe main thread of the river originates. 246. THE NotRTH WEST ORDINANCE, 1787, supra note 66, at 72. 247. Id. 1092 The Yale Law Journal [Vol. 106: 1033 language, which provides in more absolute fashion: "Slavery and involuntary servitude ... shall be, and is hereby, forever prohibited. 248 The traditional means of analyzing the status of slaves who had been brought into residence in free territory was to determine whether a slave's residence in free territory was a temporary "sojourn" or a permanent 249 "domicile." Harriet's circumstances appear to be those of a domiciliary. Suits for freedom based on an individual's previous residence in free territory raised questions of conflicts of laws, which law would govern, and who would determine which law would govern2 0 Under an analysis of Missouri law, Harriet and Dred, like other slaves at Fort Snelling and Fort Crawford, had solid claims to freedom. Far from escaping into free territory, Harriet, like Dred Scott, had been brought there by her master. 5't Harriet Robinson was in residence in free territory. 52 Her

248. Missouri Enabling Act of March 6, 1820, ch. 22, § 8,3 Stat. 545, 548. 249. Technically, her residence at Fort Snelling was on the west bank of the Mississippi River at the juncture of the Mississippi and St. Peters Rivers. Thus, she resided primarily in the territory of the Missouri Compromise rather than that of the Northwest Territory. See supra note 66. 250. Somerset v. Stewart, Lofft 1, 98 Eng. Rep. 499 (K.B. 1772), was the seminal case exploring the problem of slavery's extraterritorial status. In Somerset, Lord Mansfield ordered the release of the slave Somerset, who had been taken from Virginia to England and had escaped from his master, only to be recaptured and transferred to a ship's captain for sale in Jamaica. The decision rested on the ground that no element of England's positive law authorized Somerset's imprisonment on the departing ship. See id., Lofft at 19. More importantly, Lord Mansfield described slavery as "so odious, that nothing can be suffered to support it, but positive law." Id. This declaration provided the basis for the American abolitionist argument that slavery was contrary to natural law and had no legal status beyond the borders of the jurisdiction that established it through positive law. See FE-HRENBACHER, supra note 3, at 54. In response to the Somerset doctrine, a sectional accommodation between Northerners and Southerners evolved. Northerners agreed that the Somerset doctrine did not apply to slaveowners who were in transit, sojoumed, or temporarily resided with their slave property upon free soil, while Southerners accepted the doctrine as long as it applied only to slaves domiciled by their masters on free soil. See id. at 54-55. Ultimately, accommodation gave way to conflict. First, Northern courts started to apply an extreme version of the Somerset doctrine to deny the right of slaveowners to sojourn and transit with slave property. See Commonwealth v. Ayes, 18 Pick. 193, 196-97 (Mass. 1836); see also Lemmon v. The People, 20 N.Y. 562 (1860) (ruling that slaves became free as soon as they entered New York State). Southern courts retaliated by refusing to liberate slaves who had established a residence in a free state, but had returned to a slave state. The 1827 English case of The Slave, Grace, 2 Hagg. Adm. 94 (1827) involved a slave who had willingly returned home after accompanying her mistress on a two year visit to England. The court ruled that although Grace had been free in England, she had surrendered her freedom and resumed her slave status once she returned to her home of Antigua. In the United States, as Northern states began to prohibit sojourning, Southern courts employed this framework as a defense against the emerging Northern adherence to immediate emancipation of the slave upon entry to free territory. However, this approach still recognized that states who lived permanently in a free state would become free. In Straderv. Graham, 51 U.S. (10 How.) 82 (1850), a case that considered whether slave musicians who were taken temporarily into Ohio had become free, the Supreme Court dismissed the case for lack of federal jurisdiction, holding that every state could determine the status of people within its borders. See id. at 93. According to this principle, Northern states could free visiting, but not escaping slaves, while Southern states could treat as enslaved a former slave who had lived in the North. 251. Thus, the proviso of the Northwest Ordinance would not apply to her or any of the Scott family. When Harriet entered the Northwest Territory, she did so at the behest of her master; once brought to the Northwest Territory, she was held to service nowhere else, nor did her master retain a domicile in slave territory any longer. By 1834, Taliaferro's only domicile outside of Minnesota was the mansion he had built in Pennsylvania. Taliaferro mentioned in his journals that he had not seen Virginia friends for 15 years. He saw members of his Virginia family only when they ventured to his wife's Pennsylvania home. See 19971 Mrs. Dred Scott 1093 master Lawrence Taliaferro's only other domicile since 1834 had been Pennsylvania, another free state.

Journals of Lawrence Taliaferro, supra note 42 (Sept. 16. 1835). 252. During the three decades before Dred Scott was handed down. Missoun courts created a strong series of precedents granting freedom to slaves on the basis of their residence in frec terrtory In lnn v. Whitesides, I Mo. 472 (1824), which involved a suit for freedom, the Missouri Supreme Court ruled in favor of the enslaved plaintiff, who had accompanied her owner from Carolina to the free soil of Illinois. where she resided for about three or four years before returning to Missoun suith her osuner The court based its decision upon the principle that: [T]he person who takes his slave into [free] terntory. and by the length of his residence there indicates an intention of making that place his residence and that of his sla e. and thereby induces a jury to believe that fact, does. by such residence, declare his slase to hase become a free man. Id. at 476. The element of"residence" was key: The court refused to conclude that indisiduals ,.ho merely traveled with their slaves through free territory automatically lost their property in their slases See d Yet once this property right was lost, it was lost forever. Asserting that "personal rights of disabilities, obtained or communicated by the laws of any particular place. are of a nature w hich accompany the person %%here% er he goes," id. at 475, the court refused to acknowledge a re'ival of thedefendant's property rights in the plaintiff once the parties returned to a slave state. Four years later, the Missouri Supreme Court reaffirmed the distinction bet %een an osncr permanently residing with a slave in free territory and intending to introduce sla.cry there, and an os ner "merely passing through the country with [a slave]." in LaGrange v Choutau. 2 Mo 19 (1828) While refusing to grant freedom to a slave whose owner repeatedly sent him to free terntory as part of his labors. the court declared: Any sort of residence contrived or permitted by the legal o%%ner. upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance [of 1787). and thereby introduce sla' cry defacto would doubtless entitle a slave to freedom, and should be punished by a forfeiture of title to the property. Id. at 22. Thus, although the court continued to regard an ossner's intention to introduce slaery as a prerequisite to granting freedom to a slave who had resided in free terrtory, the court also precluded owners from circumventing the form of this requirement. Moreover, by the time it handed down its decision in Julia i McK'nnei,. 3 Mo 270 (1833). the court had abandoned the intentionality test, electing a fact-based approach that focused on sshether a slaseossner actually introduced slavery in a free state: "If a person says he does not intend to introduce slasery. 'et if he does introduce it de facto, can the innocent intent save him from the forfeiture" We think it cannot. unless he can also show that his case raises a reasonable and necessary exception " Id at 274 Therefore. although the defendant slaveowner here declared her intention not to "continue [slasery in Illinois] for any length of time," she effectively introduced slaveiy into Illinois by going into Illinois %.sithher slase. Julia. under "an avowed view tomake that State her home." Id. at 273 The court rejected any defense resting upon the slaveowner's poverty, widowhood, or unfamiliarity ..ithnev. surroundings "'We are of opinion that the excused to raise an exception, must be something more than the mere conenience or inconvenience of the owner." Id. In Rachael v. Walker, 4 Mo. 350 (1836). the Missouri Supreme Court applied the rule of necessity enunciated in Julia to reject a military officer's claim of military necessity In a series of mo's that ssas quite similar to the Scotts' residential history. Rachael. the slase of an army officer stationed at Fort Snelling, accompanied her owner to Michigan. then returned to Missoun. shcre she sued for freedom The defense offered two arguments: first, a plea of necessity; second, a claim that Rachacl %%as employed only as a servant. The court rejected both. If a Virginia slaveholder and army officer %%as required to assume a post in a free state or territory, and he "thereby ha[d] a right to take ssith him as many slaves., as [ssouldl suit his interests or convenience," then "the convenience or supposed con enience of the officer [ssould repeal] as to him and others who have the same character, the ordinance and the act of 1821 admitting Missouri into the Union, and also the prohibitions of the seseral lasss and constitutions of the non- slaveholding States." Id. at 354. The court scoffed at the defense's attempt to portray Rachael as a servant "We are yet to learn that the law which gives to officers servants of a certain sort. authorize such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance " Id Coming after this long line of precedents restricting slaveowners' right to take their slase onto free soil, the Dred Scott decision seems particularly anomalous-especially sshen vc consider that the Missouri Supreme Court rejected the Scotts' claim to freedom just 16 years after it granted freedom to a plaintiff. Rachael, whose circumstances strikingly resembled the Scotts' 1094 The Yale Law Journal (Vol. 106: 1033

Given that many of the slaves in the Northern fort communities had been purchased and transported expressly for the purpose of providing labor in the territories where it was difficult to find workers, the Supreme Court's opinion had an even more disingenuous character. By isolating Dred Scott's claim as that of a single individual man, rather than seeing him as one of an entire colony of enslaved people brought into free territory to redress a labor shortage, both his lawyers and the Court failed to recognize that his arrival into free territory was far from temporary. Dred Scott, Harriet Robinson, Eliza Johnston, James Thompson, and others, were not accompanying owners incidentally traveling through free territory, such that their "temporary" presence there would have provided an unjust forfeiture of their owner's property rights. Mr. Scott was purchased expressly to assist Dr. Emerson during his service in free territory as a post doctor. Indeed, it appears that Emerson acquired title to Mr. Scott for the purpose of importing him into free territory: Every indication from Emerson's letters suggests that he intended to make the Northern territories, particularly the Fort Armstrong area, where he was engaged in land speculation, his permanent home.253 But by reducing the pattern of introduction of slavery to a single instance and reducing the instance of the Scott family still further to imagine a single plaintiff, the Supreme Court minimized the circumstances of the introduction of slavery to the territory and maximized the appearance of transiency. Consider the characterization of the colony's experience of servitude within the legal patterns that had arisen before the 1857 Dred Scott decision. Paul Finkelman divides slaveholders who entered free states into four categories, according to flexible temporal definitions:

A transient was someone traveling from one state to another (usually from a slave state to a slave state), passing through a free state. Being "in transit" implied continuous movement. A visitor was someone entering a free state with a definite intention to return to his or her home state at some time in the near future. A sojourner intended to leave a free state at some unspecified time in the future. A resident, of course, planned to remain in the free state.z 4

The colony of slaves brought to the forts of the Upper Mississippi Valley from the St. Louis slave markets could hardly be generalized as falling into either the first or second category: None of the slaves was simply in transit and none of their holders had purchased them with the intention of returning to a home state at some point in the near future. All of the slaveholders-whether military officers, Indian Agents, territorial governors, or fur traders-intended to stay either permanently or for at least a ten-year

253. See Snyder, supra note 27, at 443-44, 452. 254. FINKELMAN, supra note 45, at 9. 1997] Mrs. Dred Scott 1095

stint, as military officers were usually posted at some place for that duration.5 As for the third category, an examination of the disposition of the slaves of Fort Snelling indicates that only three individuals were ever sold back downriver: The Bliss's "nice-looking yellow girl," 25 who had become too much the favorite of the soldiers, the Langham's servant who was accused of attempted murder,25 7 and Rachael.58 In the pattern of dispositions of individuals in the Northern forts, slaves brought back to St. Louis appeared only rarely. The other persons held as slaves either died, were given their freedom, were sold, or were simply reassigned to other officers needing labor in the Territory. So even if these slaves' owners were indeed sojourners who intended to leave free states at some unspecified future date, they apparently evinced no intention of taking their "servants" with them to further service in slave territory. Taliaferro, in particular, had established his permanent home in Bedford, Pennsylvania, a free state in the process of gradual emancipation. ' Taliaferro evinced no intention to keep his servants as slaves by ever returning to a slave state.2 ° The Missouri Supreme Court furnished its own gloss on these distinctions, employing a factual test based on whether the master actually introduced slavery into a free state.26' Under this test, the extent of the entire colony's

255. Military officers were attached to divisions that were posted at forts for 10 year durations Telephone Interview with Thomas Shaw. supra note 61. Tahaferro was the primary Indian Agent at Fort Snelling from 1821 to 1839. 256. See supra text accompanying note 79. 257. See Journals of Lawrence Taliaferro. supra note 42 (May 17. 1832) 258. See Rachael v. Walker, 4 Mo. 350. 350 (1836). 259. The Taliaferros built an elaborate house in Bedford in 1834 on some land con%eyed to them by Mrs. Taliaferro's father. Interview with Kay Williams. supra note 45. 260. Taliaferro arguably was domiciled in Pennsylvania. He had not returned to his familial home of Virginia for 16 or 17 years, his wife had made her home in Pennsylvania. and he esentually retired there See Journals of Lawrence Taliaferro, supra note 42 (Sept. 16. 1835) ("Mr. F. Dined %%ith us this day. talked of Virginia friends not seen in 16-17 years."); id. (Aug. 12. 1832) (mentioning that Taliaferro's brother Monroe was sent by his mother and father from Virginia to Pennsylvania. %%here Tahaferro %%as on furlough, they having heard of Taliaferro's "long indisposition") Returning to his "home" state should thus have meant returning to the free state of Pennsylvania. 261. See Julia v. McKinney, 3 Mo. 270, 272 (1833). In practice, this test granted freedom to slaes whose masters had resided or sojourned in free jurisdictions, while upholding the nghts of masters to pass through free states with their slave property en route to slave states. This test also disposed of possible "good faith" objections that slaveowners might invoke to defend their property rights after taking slases onto free soil. In Julia. the court ruled that Julia was entitled to freedom because ir Camngton. from whom the defendant had bought Julia, had taken up residence in the free state of Illinois and had kept Julia there, "'treat[ing] the slave in all respects as slaves are treated in States where slavery is alloed " Id at 273. Chief Judge McGirk deemed unimportant, without a further showing of reasonableness and necessity. Mrs. Carrington's subjective lack of intention to introduce slascry into Illinois. Distinguishing between convenience and necessity, he refused to accept Mrs. Camngton's excuses for failing to take Julia to Missouri immediately. See id. at 273-74. One of the excuses Mrs. Carrington mustered to justify this failure rested upon her widowhood and her consequent inability to find a way to take Julia to Missouri with suitable dispatch- See id at 274 Juxtaposed with her other claims of poverty upon amval in Illinois. and her assertion that she needed a reasonable amount of time to settle herself and her family into a residence. see 1d. her widosed status conjures up a picture of a single woman struggling for survival. However. her ability to purchase land in 1096 The Yale Law Journal [Vol. 106: 1033 presence at Fort Snelling and Fort Crawford represented the introduction of slavery onto free soil. As measured by their residential histories and their owners' intentions, Harriet Robinson Scott was an even better candidate for freedom than Dred Scott. Not only did Harriet's case have the predominant features of Dred's that weighed in favor of freedom-such as extended membership in the slave communities of the Northern forts-but the particular circumstances of her life also provided bases for additional arguments for freedom. One of the arguments deployed against recognizing Mr. Scott's freedom was military necessity, that his owner's transfer into a free territory was not voluntary but was under military command. Although the Missouri Supreme Court had rejected the military necessity rationale in evaluating Rachael's case, Justice Nelson, concurring in the opinion of the U.S. Supreme Court, resuscitated this argument in addressing Dred Scott's case.262 The argument posited that the involuntariness of slaveholder's assignment should not be used to penalize him when he was thus required to transfer them with him into free territory. Strikingly enough, this portrayal of the defendant as submitting completely to his superior officer's commands evokes an image of the master's own involuntary servitude. In depicting himself as subservient, the defendant in Rachael v. Walker attempted to widen the scope of his servility to engulf even his presumably autonomous decision to keep Rachael with him as a slave.263 After all, how could someone who was himself virtually enslaved retain sufficient agency to be a master? However, the court refused to make special exceptions for army officers, professing itself not "yet to learn that the law which gives to officers servants of a certain sort, authorise such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance."264 But if Emerson could have defended against forfeiting his ownership of Mr. Scott because he was under a military directive when he was stationed at various forts, Taliaferro could not. During the entire time that "Major" Taliaferro worked at Fort Snelling, he was not subject to military transfer assignment nor was he even a member of the military. Instead, as head

Illinois belies this depiction. The two contradictory halves of the gendered portrayal (poor, helpless widow versus independent provider seeking the help of the court to maintain her autonomy) suggest that Mrs, Carrington was attempting to mine two potential sources of judicial sympathy. In his dissent, Judge Wash argued for the contrary view that courts must examine slaveowners' intentions, see id. at 276 (Wash, J., dissenting), an approach that would have been amenable to treating Mrs. Carrington's excuses as relevant. He also ended by characterizing Mrs. Carrington's conduct as "the kind and tender nursing by the master of [her] sick and helpless slave," or as benevolent actions that the majority view would transform into criminal acts. Id. at 277 (Wash, J., dissenting). He neglected to mention, of course, that Mrs. Carrington overcame her previous reluctance to sell Julia as soon as she had recovered from her illness. See id. (Wash, J., dissenting). 262. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 468 (1857) (Nelson, J.,concurring). 263. See Rachael v. Walker, 4 Mo. 350, 350 (1836). 264. Id. at 354. 1997] Mrs. Dred Scott 1097 of Indian affairs, he was a civilian. "Major" Taliaferro only carried the military title of "Major" honorifically, and he was under no military directive of involuntary transfer.265 Thus, the arguments of military compulsion or military necessity affected "Major" Taliaferro's position even less than it did Dr. Emerson's. 266 For all these reasons, in considering Harriet Robinson's case, the Court would have had to acknowledge that she had been taken into free territory by a civilian,267 who since 1834 had maintained his permanent residence in a free state. Second, although Mr. Scott retained the same owner, Dr. Emerson, throughout all Emerson's transfers to Illinois, to the Wisconsin Territory, and then back to Missouri, Harriet Robinson's ownership status changed while in free territory. The argument available to Harriet Robinson, but not to Dred Scott, was that for Harriet to have become Dr. Emerson's property under the law, the Court would have had to uphold the transferability of slaves while they were in free territory. The Court would have been forced to consider whether a transfer of ownership in free territory was legal, void, or voidable. In considering the legality of transferring slaves while in free territory, the Court would have had to consider the effect of such a ruling on the introduction of slaves and slave markets into free areas.

265. We presume from the circumstances surrounding his appointment that Tahaferro held his position as Indian Agent voluntarily. Taliaferro describes those circumstancs in his autobiography- [Taliaferro] passed on to Washington city, where he paid his respects to the President. his patron friend and connection. Here the President was pleased to say: "'He v%ished Licut- Taliaferro to resign his position in the army; he had heard a good report of him. he was aboe his rank; promotion was too slow; that he wanted his services in a responsible ci il capacity. where he would have more command of his time; go home to your mother, and remain until you hear from me." ... The office was duly accepted, and he. after filing his bonds, left tojoin the expedition under Colonel Leavenworth. already ordered with his regiment, the Fifth Infantry. to take post at the junction of the St. Peter and Mississippi. Taliaferro, supra note 12, at 197; see also HELEN MCCANN WiTrrE. GUIDE TO A MICROFILm EDiO% OF THE LAWRENCE TALIAFERRO PAPERS 6 (1966) (pamphlet. on file %%ith authors) (descnbing Tahafcrro's title as "honorary"). 266. Notwithstanding these many differences, Justice Nelson. lumping Major Tahaferro vIth Dr Emerson, effectively extended to Taliaferro the arguments centering on Dr Emerson's i%oluntary transfer to Fort Snelling as a member of the military. See Dred Scott. 60 US. (19 How ) at 468 (Nelson. J. concurring). This line of reasoning may be attacked facially, as wsellas in its application, since Rachuel discredited the notion of military necessity. See Rachael. 4 Mo at 354 ("*[Nloauthority of law or the government compelled [this army officer] to keep the plaintiff (in free temitory) as a slase ") It is also possible to surmise that Justice Nelson's blithe disregard for the actual facts of the case. vkhich evinced a predisposition to rule against Dred, would have prevented Hamet as %%ell from gaining her freedom 267. In terms of comparative commitment to the locale. Major Tahaferro was deeply committed to his work with Indians at Fort Snelling and lived there for 20 years. leasing onl, v hen a gradual disillusionment with the government's treatment of the Indians compelled him to resign his post See Taliaferro, supra note 12, at 214-39. Dr. Emerson, on the other hand. mosed from one posting to another He remained at Fort Snelling for two comparatively short periods of one and two years. respectively. See EHRLICH, supra note 3,at 18-25. His moves seem to be triggered in part by %%here the army needed to assign him (the Seminole war) and by how he could return to the vicinity of Fort Armstrong. near "shich he hoped tostake extensive land claims with his business partners. Thus. Dr. Emerson's passage through free territory was far more transitory than Taliaferro's. The fact-based Missoun test would more likely have classified Taliaferro as a resident, and Dr. Emerson as a mere sojourner or even as a transient 1098 The Yale Law Journal [Vol. 106: 1033

Moreover, this issue would have called into question the intentionality of the arrangement between Taliaferro and Emerson. Major Taliaferro would have been called in to testify. Taliaferro was still alive and living in Bedford.268 (Murdoch would probably have been able to find him, had Murdoch stayed with the case.) Taliaferro's testimony as to his intent of granting her and his 269 other slaves freedom could have turned the tide for the Scotts. There is no direct evidence that Dr. Emerson himself ever laid claim to Harriet or her daughters. The most that can be said is that she accompanied her husband and that she was assigned to Lieutenant Thompson by him, though this type of assignment of serving people at the Fort was not limited to people 271 of color.270 None of the Scotts were claimed as property in his will. Instead, it is entirely consistent with the evidence that she was released from servitude by her master, Taliaferro, and had married Dr. Emerson's slave as a free woman of color. This interpretation of the events is consistent with her prior owner's post hoc statement of his intentions about the circumstances. Although the Missouri courts rejected an intention-based test in assessing slaveholders who tried to deny freedom to their slaves by invoking their 272 subjective lack of intention to introduce slavery into free territory, presumably the converse was not true. If slaves' former owners had brought them into free territory fully intending to free them eventually, and had manifested that action in a transfer that could have had the effect of freeing them under certain principles of law, these slaves were not necessarily barred from claiming freedom based on their former owners' intent to relinquish them.273 In Harriet's case, the arguments of intentionality are consonant with the objective evidence of a public marriage. At the very least, this argument would have required those who sought to enslave Harriet Robinson to demonstrate documentation of transfer of ownership. Otherwise, the strength of the Emerson estate's claim to her would rest on a chain of title, broken by a transfer in free territory. The only means to have repaired the break in the chain of title would have been by the mere presumption that persons of color

268. See Taliaferro, supra note 12, at 189. Lawrence Taliaferro continued to live in Bedford, Pennsylvania until his death at age 77 in 1871. See id. He served as the county treasurer of Bedford, Pennsylvania in 1847. See HISTORY OF BEDFORD, supra note 230, at 220. 269. See infra note 280. 270. See Barbara Ann Adams, Early Days at Red River Settlement, and Fort Snelling: Reminiscences of Mrs. Ann Adams, 1821-1829, in 6 COLLECTIONS, supra note 12, at 75 (describing author's own assignment as servant help to other families in times of need). 271. See Will of John Emerson, Probated in the Scott County Court (Scott County Courthouse, Davenport, Iowa) (on file with authors). 272. See, e.g., Julia v. McKinney, 3 Mo. 270, 273-74 (1833). 273. Similarly, although the Rachael court rejected the distinction between slave and servant status that the defendant sought to draw to guarantee continued enslavement, the Rachael ruling would not encompass a "servant" label used to denote the possibility of eventual manumission. See Rachael v. Walker, 4 Mo. 350, 352-54 (1836). 1997] Mrs. Dred Scott 1099 were slaves or that persons of color without freedom papers were slaves.2" That interpretation would have been untenable even for slave states as it would have rendered any person of color subject to enslavement in a slave state. The legal papers fail to raise the issue of transfer. This too was stipulated away. Since to establish her right to freedom papers, Harriet had to assert her freedomfrom someone, the lawyers may have thought it to be more convenient to assert her freedom from the same owner who had claimed her husband, Dred. The legal pleadings assert that Harriet was transferred to Dr. Emerson. 75 Neither the lawyers nor any of the courts in the years of litigation questioned whether such a transfer would be legal. Major Taliaferro's intention to free Harriet is supported by other evidence. Major Taliaferro ultimately did release all of his slaves before emancipation.276 It is not clear that he took any greater legal steps to manumit the others than simply releasing them. In his own words, Taliaferro describes the Scotts' marriage in two ways. A newspaper interview Taliaferro gave referred to his "marrying the two and giving the girl her freedom." 2' He also said he "gave" Harriet Robinson, his "servant girl" (not his slave), to Dred Scott in marriage, 278 not that he gave Harriet to Dr. Emerson for the purpose of cohabitating with Dred. Unlike Emerson, Major Taliaferro was still alive at the time of suit; he had resigned from the Indian Agency, but he was well and living in Bedford.279 Had Harriet's claim been noticed, her lawyers could have argued that, absent documentation of transfer to Emerson, Taliaferro was still her owner and that his abandonment of her in free territory had freed her. Taliaferro no doubt would have supported this position, or at 2' least it would have put his intentions to the test. n Taliaferro lists the marriage he performed among a series of others he performed, with little distinction as to Harriet's status in servitude. While it is true that these words were written subsequent to the Civil War when Taliaferro could be suspected of burnishing his reputation as a benevolent slaveholder, these representations are nonetheless consistent with other statements he made

274. See TREXLER, supra note 113, at 58-59. 2 10-11. 275. See Original Court Papers and Transcripts, Harriet Robinson Scott v. Emerson (unrcported case) (Dred Scott Papers file, Mo. State Historical Soc'y St. Louis. Mo.) (on file wath authors). 276. See Taliaferro, supra note 12, at 235. 277. EHRLICH, supra note 3,at 21 (citing unidentified newspaper clipping in Mann. Historical Soc'y. supra note 42). Ehrlich recognizes the resulting ambiguity, concluding that a simple -transfer." rather than a gift, trade, sale, or manumission, occurred, since no records of any of the latter exist. As Ehrlich portrays the "transfer," however, it is indistinguishable from a sale: "[S]omc sort of arrangement was made w-hereby both would belong to Emerson." Id. He also asserts that Harriet never claimed to be a free person, without questioning the sequence of events that may have prevented her from advancing this claim See ad. 278. See Taliaferro, supra note 12, at 235 (recollecting that he performed marriage of Dred Scott and Harriet Robinson, "my servant girl, which I gave him"). 279. See id. at 189. 280. The testimony of Rachael's prior owner, Lieutenant Stockton. had been called despite the fact (or perhaps because of the fact) that her transfer occurred in Missouri It should be noted that when Lieutenant Stockton responded to the summons to testify an Rachaers case. his testimony changed the direction of that controversy's lower court ruling. See Rachael Papers. htpra note 97 1100 The Yale Law Journal [Vol. 106: 1033 at the time he lived in Minnesota. This suggests not only that he intended to free Harriet, but also that he may have believed that he had freed Harriet, as his 1864 newspaper interview attested.2"8' Although Harriet's case was stipulated into Dred's, Harriet's claim to freedom eclipsed her husband's. Had Harriet's case, tried separately, preceded Dred's, the judges would have been confronted with the greater need to distinguish situations of transfer and marriage occurring in free territory. In contrast, granting Dred Scott his freedom would more squarely have threatened slaveholders' right of transit with their slave property. Of course, the pronounced proslavery orientation of the Supreme Court majority282 might well have ignored such distinctions. The majority's proclivity to take slavery out of the control of Congress would not have stopped in the face of Harriet's case. Her case, however, would have cast a more searching light on the cracks in the legal justifications the judges mustered to support their positions. The opinions would have appeared more clearly as the paste and brickwork of personal ideology, rather than the transcendent products of reasoned legal reflection. This increased visibility would have resulted in greater vulnerability. As the true choices of laws governing slavery became increasingly clear, Taney's attempts to suppress that complexity would have been more patently apparent. By ignoring the potential of Harriet's case, her lawyers missed an opportunity to argue for freedom.

B. Reconstructing the Legal Significance of the Gifting: Major Taliaferro's Intentions

283 In "transferring" Harriet Robinson to Dred Scott in marriage, Taliaferro culminated a series of actions that exhibited a decisive inclination toward manumission. As described earlier, Major Taliaferro was a man with a mission in mind: to bring civilization's influences to the Northwest frontier. His views on marriage are clear from three entries in his journals. On July 3, 1835, Major Taliaferro writes:

I was called to marry a couple this day & at 2 p.m. united Potete Provosz & Miss Margaret Brunell at the office of the Indian agency.... Having the authority of a justice of the Peace I deem it a more righteous course to give some solemn form to these

281. See supra note 277. 282. See FINKELMAN, supra note 45, at 226, 277-78. 283. Harriet's married-and gifted-status helps us to envision the liberatory implications of the gift that "transferred" her to Dred in marriage. Thus conceptualized, Taliaferro gave chattel property to Dred, a slave. The case of Legrand v. Darnall, 27 U.S. (2 Pet.) 664 (1829), classified this type of gift as emancipatory, ruling that "a devise [sic] of property real or personal by a master to his slave, entitles the slave to his freedom by necessary implication." Id. at 670. Advancing the same premise, the Dred Scott dissenters cited Legrandto support the proposition that freedom inhered in ownership of property. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 600 (1857) (Curtis, J., dissenting). 1997] Mrs. Dred Scott 1101

proceedings and marry those disposed to be firmly as man & wife united-rather than see an indiscrimite [sic] intercourse-or a want of proper respect for the married state or the sex.2- i

On February 4, 1836, he remarked with apparent pride that he had followed through on his views and had performed five marriages in the past year.285 On June 21 of the same year, he documented a conversation on the subject that he had had with the Reverend Dr. Williamson, who had come to start a mission in the area. Taliaferro wrote:

Rev. Doct. Williamson called at the office to consult with the agent on the propriety & necessity of marrying certain half breeds & others-already living together as man & wife-as well also as those wishing to unite themselves. I gave Mr. Williamson my opinions & views very freely-& stated the course I had taken in such matters for some years-& that his being a minister of the Gospel & lawfully authorised-he should feel it his special duty to confirm all cases."-

Taliaferro would perform the Scotts' wedding within the next few months. We contend that it is consistent with Major Taliaferro's belief in the civilizing power of marriage to read into the ceremony Taliaferro's intention to manumit Harriet Robinson. This interpretation gains further support from Taliaferro's demonstrated patemalism.8 7 First, Taliaferro planned to manumit

284. Journals of Lawrence Taliaferro. supra note 42 (July 3. 1835). 285. See id. (Feb. 4, 1836). 286. Id. (June 21, 1836). 287. As revealed in his own autobiography, his contemporaries' reminiscences, and the assessment of his life and career that appeared in his obituary. Major Tahaferro was a complex and fascinating figure Couching his recollections in the third person, Taliaferro represented himself as deeply moral and religious, vigorously opposing "the introduction of ardent spirts into the Indian country." and emphasizing the paternal quality of his position as Indian Agent. Tahaferro. supra note 12. at 228 The Indians s%¢re "the children of his care," "his doomed people," from whom he was willing to stake his o%%nmoney, and who had twice saved his life. Id. He pointed an accusing finger at white officials, blaming them for the Indians' decline: 0, white man, what degradation has your thirst for gold brought upon the poor savage' The curse of God and the finger of scorn pointed at you by all Christian men. and unless ye repent ye shall all likewise perish, for the wicked now walk on every side while the Vilest of men are exalted. Id. Barbara Ann Adams, who had lived at Fort Snelling while Major Tahaferro was there, remembered him for the degree of control he exercised in quelling and punishing intertnbal assaults. See Adams. supra note 270, at 80. Taliaferro's conception of the Indians under his supervision as his -children" was borne out by William Snelling's account of Chippewas calling Taliaferro "their father." WJ Snelling. Running the Gantlet: A Thrilling Incident of Early Days at Fort Snelling. in I COLLEC'n0,S. supra note 58. at 439. 44 1 Most compelling, however, is the glimpse of Taliaferro's character that surfaces in the "Preliminary Note" that precedes his "Auto-Biography." Reprinting a sketch that appeared in the Saint Paul Daily Pioneer a few days after Taliaferro's death, the Note describes him as "active and faithful in the discharge of his duties ... scrupulously honest ... sometimes ridiculed for his egotism, of which he had a good share, but he was careful, correct, and methodical in his business matters, and prided himself on his successful performance of them." Taliaferro, supra note 12. at 189. The sketch proceeds to note intriguingly that "'*al half-breed daughter of his, subsequently married a discharged soldier at Fort Snelling. named Warren Woodbury." Id. Taliaferro's autobiography mentions his parents but neither this daughter. Mary. born in 1828, nor her mother, an unnamed Sioux woman whom he never marred. nor Eliza Dillon. whom he did 1102 The Yale Law Journal (Vol. 106: 1033 some of his slaves. In this context, Taliaferro's reference to people he held in bondage as his "servants," rather than his "slaves," probably was not simply a linguistic idiosyncrasy, but may have indicated his view of their transformed status.288 He more explicitly averred his intention to free his slaves at some future date when he refused to sell his slave Eliza to Captain Plympton. 89 The strength of his intention was also manifested in his eventual liberation of his remaining slaves.29 At first glance, the fact that Major Taliaferro hired out his slaves and allowed a period of years to elapse before he manumitted them seems to contradict this emancipatory inclination. However, true paternalism, more than simple self-interest, may have guided his actions. The paternalism that manifested itself in Taliaferro's dealings with the Indians, whom he called "the children of his care," may have overlain his emancipatory instincts to his "servants," making him reluctant to free them before he deemed them ready to leave his "care."'291 His willingness to reach into his own pocket to supply the Indians with necessities that the government refused to fund, a sign of his monetary generosity, also contradicts the conclusion that he was more committed to emancipation in word than in deed. 292 Moreover, religious feeling may have motivated Taliaferro to come to believe in the manumission of slaves. Presbyterians were among those who vigorously debated the evils of slavery293 and, beginning in the 1840s, participated in agitating for laws prohibiting the separation of slave families,294 thereby demonstrating their commitment to preserving bonds between spouses as well as between parents and children. Since Taliaferro's strong Presbyterian beliefs led him to support the fledgling Presbyterian church in Bedford and to become a deacon after he had ended his tenure as an Indian

marry at the time of Mary's birth. See id. This tangle of relationships is all the more striking in light of Taliaferro's expressed intention to "enforce morality as far as practicable, . . (by] induc[ing] many traders with growing Indian families to legitimize their children by marriage." Id. at 234-35. His insistence on performing a civil marriage ceremony for Harriet and Dred-the only time in his entire autobiography that his narrative persona breaks into the first person, see id. at 235-epitomized this internal tension. 288. Throughout all of his diaries and journals, Taliaferro always referred to his slaves as "servants." His only reference to their "slave" status was in the document purporting to document his having given them their freedom. See Taliaferro, supra note 103. 289. See Neill, supra note 76, at 21, 32. Neill does not mention when Taliaferro refused to sell Eliza. However, Walter Ehrlich does note that a Major Plympton became post commander in August 1837, around when Harriet and Dred's marriage occurred. See EHRLICH, supra note 3, at 22. Hence, it is possible to infer that Taliaferro's intention at the time of his refusal to sell Eliza extended to the time of Harriet's marriage. In addition, Taliaferro notes in his Auto-Biography that the "only colored woman" that was ever purchased at Fort Snelling was someone other than Harriet Scott. This suggests that Taliaferro did not perceive himself as having sold Harriet to Dr. Emerson, at least in retrospect. See Taliaferro, supra note 12, at 235. 290. See Taliaferro, supra note 12, at 235. Taliaferro does not specify when he manumitted his slaves. 291. Id. at 223. 292. See id. 293. See DONALD G. MATHEwS, RELIGION INTHE OLD SOUTH 69-70 (1977). 294. See BLASSINGAME, supra note 160, at 174-75. 1997] Mrs. Dred Scott 1103

Agent, the inclination toward manumission that his memoir indicates' g5 may have been rooted in religious convictions.

C. Reconstructing the Legal Significance of the Scotts' Marriage

1. The Northern and the Southern Views of Slave Marriage

At common law, the institution of marriage was thought to be legally antithetical to slavery. Slavery and marriage presented two competing models of patriarchy, only one of which could maintain dominance. American legal commentators from the North and the South resolved this contradiction in sharply opposing ways. Further deepening this complexity, slaveholders within the South differed in their visions of slave marriage and its attendant rights and responsibilities for slaves and their owners. In fact, these competing visions appear in different Justices' opinions in the 1857 Dred Scott opinion itself. The Dred Scott majority opinion, however, obscured this multiplicity of perspectives on the social and legal implications of slave marriage, by treating one interpretation of slave marriage among many as the only possible option. Accordingly, we argue that because the consequences of slave marriage were highly unsettled before the Supreme Court handed down Dred Scott, choosing another interpretation from the multiple views on slave marriage transforms Dred Scott from a foregone conclusion to a historically contingent possibility. As articulated in Blackstone's Commentaries on the Laws of England, the common law vision of the household included marriage in its set of three main hierarchical relationships that operated according to parallel dynamics: master and servant, husband and wife, and parent and child. Within each of these respective relations, the master, the husband, and the father reigned supreme within the domain of his household and was responsible for the actions of his servants, wife, and children, whom he simultaneously protected and commanded.9 By the 1830s the unity of master, husband, and father within parallel power structures meant that the authority of each of these spheres was best vested in one and the same man. Naturally, within such a construct,297 slaves could not have their own

295. See supra note 287 and accompanying text. 296. See I WILLIAM BLACKSTONE, COMMENTARIES *410-54. 297. Of course, Blackstone himself sternly repudiated the formal existence of slavery, calling at "repugnant to reason, and the principles of natural law, that such a state should subsist any where.- Id. at *411. Slaves became nominally free when they arrived in England. However, the model of private relationships that Blackstone described could easily be put to the service of male slavowners asserting their absolute authority within their households. Moreover, Blackstone created a loophole: Yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. Id at *412-13. 1104 The Yale Law Journal (Vol. 106: 1033

households; nor could slave men have their own wives; nor could slave parents have claims to their own children. There were a number of reasons why these important human relations would be denied to slaves. First, a marriage contract signified an autonomy that could not logically coexist with enslavement.29 Second, the responsibilities to the state attendant to being a husband or a father were incompatible with enslavement. To be a husband or father was to have and to exercise control and authority over one's subordinate wife and children. Such a man was supposed to hold the legal authority to defend them and to provide for them.299 He would have to be able to bring suits for the interference with their services, to perform the patriarch's obligation to the state to keep them off the streets by providing for them, and concomitantly, to collect the value or the wages for their labors. Yet these civil powers of manhood were customarily denied enslaved men. Third, a dual system of "mastery" would produce conflicts if the wife (or children) received orders from their respective husband (or father) that were contradicted by orders given by the husband's master. This posed the problem of rival systems of private authority.300 American legal society was not receptive to the type of subinfeudation that would have accommodated such a nested series of authorities.30' Thus, one of the hierarchies had to yield. States resolved these conflicts in one of two ways: either the slave status yielded and the act of marriage became emancipatory or the marriage status yielded and the marriage became a nullity. Northern states, not surprisingly, followed the former; Southern states followed the latter. Because there were relatively few legal commentators during the antebellum period, the Connecticut doctrine of Tapping Reeve, the eminent legal commentator, enjoyed wide currency among other scholars3' and in other Northern states where slavery was in decline. Reeve enunciated the North's dominant position on marriage and slavery, declaring that, in Connecticut, a slave who married a free woman with his master's consent was thereby emancipated:

298. See TAPPING REEVE, THE LAW OF BARON AND FEMME *341 (New Haven, Conn., Oliver Steele 1816). 299. See VanderVelde, supra note 22, at 655-57. 300. For analysis of parallel patterns of rival systems of private authority, specifically over women, see Lea VanderVelde, The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity, 101 YALE LJ. 775, 814-21, 849 & n.393 (1992), which documents the rivalry between successive theatrical employees of the same actress and rival systems of simultaneous control over the actress's labor when she was employed by theatrical producers and married to another man; and VanderVelde, supra note 22, at 817, 877-79, which documents conflicts between a working girl's father and her master. 301. Subinfeudation in this sense would have rendered an enslaved man something of a mesne lord, to whom his wife and family were vassals, but who himself was vassal in his master's household. Subinfeudation was a pattern by which the feudal system of land devise attempted to reconcile fealty obligation between the landlord and his vassal when either attempted to transfer his respective interest in the land relationship. See JESSE DUKEMINIER & JAMES KRIER, PROPERTY 200-01 (1993). 302. See STROUD, supra note 106. 19971 Mrs. Dred Scott 1105

If a slave married a free woman, with the consent of his master, he was emancipated; for his master had suffered him to contract a relation inconsistent with a state of slavery. The rights and duties of a husband are incompatible with a state of slavery. The master, by his consent, had agreed to abandon his right to him as a slave. So too, it has been holden, that a minor child is emancipated from his father, when he is married.0 3

Under Reeve's analysis, the Scotts' marriage probably would have been 3 liberating for both of them. 0' A sign of the popularity Reeve enjoyed is that Justice Curtis adopted a similarly emancipatory position in his dissent:

[T]here can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter into a contract of marriage, in a free State, attended by all the civil rights and obligations which belong to that condition.... [T]he consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emancipation.i

Following the Northern approach, Justice Curtis concluded that the Scotts' marriage should have freed Dred, since his owner had consented to his marriage in free territory. Justice Curtis, like Reeve, based his doctrine on the prototype of the emancipation of a male slave. Consonant with theories of coverture, he recognized Harriet Robinson Scott's legal rights only in a strictly derivative sense, lumping her loss of rights with her children's, all of which proceeded from Mr. Scott's: "The denial of his rights is the denial of theirs." ' This maneuver was simultaneously liberating and disempowering: The grounding of Harriet's dependency upon Dred would enable Dred to become independent and free. This construct, which highlighted the incompatibility of marriage and slavery, raised Mr. Scott to the position of the householder, thereby both subjugating and freeing Mrs. Scott. However, her lawyers had submerged her

303. REEVE, supra note 298, at *340-4 I. 304. Whether or not the ritual of marriage would have emancipated Drcd. it %,ould hac certainly strengthened the claims of Lizzie and Eliza to freedom as the children of the mamage of a free %oman to a slave. Several Northern states freed the children of slaves. "'Dunng the existence of !lacry in Ness York .... when a slave man and a free woman intermarred, the children \ ere to be deemed the free and legitimate offspring of the woman." 3 MARRIAGE IMPERFECtLY CONsTr'UTED ch X. § 155. at 131 Massachusetts took this trend even further, legislating that "all children of sla-,es cre by la%%free " Id Pennsylvania had taken a similar course in itsgradual move to emancipation. Pcnns, Ivania's gradual emancipation statute, enacted in 1780, freed all slaves' children born within the state, all slass %,ho%cre not registered before November I,1780, and any slaves kept in Pennsylvania longer than sixmonths See' FINKELMAN, supra note 45, at 46-47. 305. Dred Scott v. Sandford, 60 U.S. (19 How.) 393. 600-01 (1857) (Curtis. J . dissenting) 306. Id. at 599 (Curtis, J.,dissenting). 1106 The Yale Law Journal [Vol. 106: 1033 case in his early in the litigation; her freedom would arise only from-and therefore be inferior to-her husband's. Rather than being emancipatory of his status as householder and provider for her, by denigrating her claim to his, the marriage of a free woman to an enslaved man risked subjecting her to the coverture of reenslavement. In Southern states, where slavery reigned as the stronger hierarchy, the marriage relation yielded to become a nullity. Thomas R.R. Cobb, one of slavery's more prominent legal apologists, also recognized the incompatibility of the two hierarchies, but resolved the incompatibility to the other end: "The inability of the slave to contract extends to the marriage contract, and hence there is no recognized marriage relation in law between slaves."3 7 Cobb analyzed the possibilities by reciting the various compass positions that had been taken in ancient legal regimes. In Rome, contubernium existed to create a valid marriage on emancipation of both parties. 308 Among feudal "villains" in England, the status followed the man:

If the villain neife married a freeman, she became thereby enfranchised, and her husband compensated her lord for her loss. And, e converso, it would seem, that if a villain married a free woman, the woman became a neife. If the father and mother were both villains, and belonged to different lords, the issue were equally divided between the respective masters.

Cobb ran through other possibilities that he found in history. Germans were "the first who united their servants together in the name of Christ. Without the consent of the master, however, the marriage was void, and the parties punished severely."31 Hebrew law "did not recognize marriage among slaves of other than Hebrew origin..... In the Middle Ages,

[t]he marriage of free men and women with slaves was very much discouraged by the laws, civil and ecclesiastical .... Heavy penalties were annexed, and the right was even conceded to parents to kill a daughter who persisted in such an alliance .... Among the Germans

307. THOMAS R.R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE UNITED STATES OF AMERICA 242-43 (Negro Univs. Press 1968) (1858). The passage continues: This was true of the Roman slaves. There was among them a recognized relation, termed "contubemium," from which certain consequences flowed, especially after manumission. For instance, it was incest for a manumitted slave to contract marriage with his manumitted sister. The same effects have been held to flow from a marriage during slavery, after manumission, in Louisiana. In fact, the courts there seem to hold, that after manumission, the marriage contract becomes valid for all purposes. Id. at 243 (citing Girod v. Lewis, 6 Mart. (o.s.) 559 (La. 1819) (footnote omitted)). 308. See id. 309. Id. at 243-44 (footnotes omitted). 310. Id. at 244 (footnote omitted). 311. Id. 1997] Mrs. Dred Scott 1107

three years were given to a free woman to repent of her course and dissolve the relation. 1

Throughout this array of compass points, the gender of the freed person of the couple is significant. Free women marrying slave men can take the man's status, repent, or be killed. The concern here is for the maintenance of the free woman of the dominant class in a status to which she had been accustomed. One could not imagine the reverse: States taking the position of killing a free man who had chosen to marry an enslaved woman. Some sanctions, yes, but it would be unlikely that this would be a capital crime. Men could marry down without affecting their status level, but women who married down bore the risk that the lower status of their husbands might diminish their own free status. The concern for maintaining free women's status apparently did not motivate Harriet's legal contemporaries. If they were in fact able to see that she was a free woman who had been allowed to marry an enslaved man, they nonetheless denied her the privilege of the feminine pedestal-most likely because she was a woman of color. Cobb continued:

How far this contubemial relation between slaves may be recognized and protected by law, is a question of exceeding nicety and difficulty. The unnecessary and wanton separation of persons standing in the relation of husband and wife, though it may rarely, if ever, occur in actual practice, is an event which, if possible, should be guarded against by the law. And yet, on the other hand, to fasten upon a master of a female slave, a vicious, corrupting negro, sowing discord, and dissatisfaction among all his slaves; or else a thief, or a cut-throat, and to provide no relief against such a nuisance,313 would be to make the holding of slaves a curse to the master.

Here, the marriage relation was thought to need to yield because the slave husband's assertion of dominance within the marriage might extend to becoming "vicious," "corrupting," "sowing discord and dissatisfaction." In other words, the slave husband may become a rabble-rouser, even threatening to subvert the master's hierarchical authority and position of dominance. Or, Cobb continues, he (Cobb never suggests that marriage makes troublemakers of the slave women) may become a "thief' or "cutthroat." One possible

312. Id. at 244-45. 313. Id. at 245-46. The passage continues: It would be well for the law, at least, to provide against such separations of families by the officers of the law, in cases of sales made by authority of the Courts. such as sheriffs' and administrators' sales. How much farther the lawgiver may go. requires for its solution all the deliberation and wisdom of the Senator, guided and enlightened by Christian philanthropy. Id. at 246. In addition, Cobb included this statement of law: "The contract of marriage not being recognized among slaves, of course none of its consequences follow from the contubemial state existing between them. Their issue, though emancipated, have no inheritable blood." Id. at 245. 1108 The Yale Law Journal [Vol. 106: 1033 inference from this passage is that male slaves should not be accorded any legal protection to their marriages because they may become thieves or cutthroats, perhaps even in defense of or in support of their wives and families. These criminal "evils" as opposed to the evil of rabble-rousing, are more violent in nature. One must ask what raised Cobb's suspicion that violence would result if slave marriages were legally protected. Having explained the basic reasons why a slave marriage would be bad policy for the master, Cobb concluded: "The marriage relation not being recognized among slaves, none of the relative rights and duties arising therefrom, belong strictly to the slave., 314 This legal disability was especially stark for male slaves, whose enslaved status barred them from wielding the authority that would have been theirs at common law. Importantly, slave marriage was the source of this instability. Because of the hierarchical structure of common law marriage, the coexistence of slavery and marriage destabilized the logic of civil slavery. Enslaved men raised themselves on the shoulders of wives and children because holding the role of head of household through marriage and fatherhood gave them some degree of autonomy. But that autonomy coexisted uneasily with the hierarchical dimensions of slavery. Hence legal actors sought to restore stability to slavery by denying legal recognition of slaves' right to marry.3 t5 Moreover, as all marriages serve social purposes even as they aspire to serve the mutual individual purposes of the couple, the Scotts were married for a social purpose quite unlike Southern society's social purpose of cooptation where planters "permitted" broom-jumping slave marriages as long as they were convenient to the master.316 In the leading legal doctrine of the North, opponents of slavery had long resolved the contradiction of slavery and marriage by deeming the act of marriage to be emancipatory. The Scotts did have a family and a household.317 They stayed together and exercised several indicia of freedom. Since the Scotts were married in the North, Northern law arguably should have determined the marriage's legal significance. The Scotts were married by Taliaferro, a civil authority, to demonstrate and symbolize the

314. Id. at 261-62. 315. For instance, a leading treatise on slave laws maintained simply that "[a] slave cannot even contract matrimony." STROUD, supra note 106, at 64. Opponents of slavery sometimes also adopted this line of reasoning, attempting to represent slavery as bleakly as possible: The slave has no rights. Of course he, or she, cannot have the rights of a husband, a wife. The slave is a chattel, and chattels do not marry. The slave is not ranked among sentient beings, but among things, and things are not married. Slaves are not people, in the eye of the law. WILLIAM GOODELL, THE AMERICAN SLAVE CODE IN THEORY AND PRACTICE 105 (Negro Univs. Press 1968) (1853) (citation omitted). Because of the antithetical nature of slavery and marriage, it is not surprising that different ideologies resolved this contradiction in different ways. Opponents of slavery could choose to maximize the disabilities that accompanied enslavement. 316. See infra note 350 and accompanying text. 317. See supra notes 298, 303 and accompanying text. 1997] Mrs. Dred Scott 1109 importance of monogamous relationships in "acculturating" the frontier to the norms and mores of western culture.

2. Resolution by Reference to Race

It seems to be a maxim of the law that whenever two operative structures are in opposition, the resolution of the opposition is made along yet another, third axis. In the Scotts' case, where marriage and slavery were in opposition, both the Taney majority and the earlier Missouri Supreme Court were forced to rest their decisions on yet another axis: They resorted to race as the determining factor and used race in a hierarchical and dehumanizing way to fillthe breach. The incompatibility of marriage with slavery forced even the Taney majority to examine the circumstances of the combination of structures. The Taney court did this by citing primarily race-laden antimiscegenation statutes.318 For Taney, issues of slavery and marriage meant antimiscegenation. But antimiscegenation laws were irrelevant to resolving the legal significance of the Scotts' marriage. Both of the Scotts were persons of color. Alluding to statutes governing marriage, Justice Taney reasoned from an eighteenth-century Maryland enactment:

The province of Maryland, in 1717, passed a law declaring "that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court, where such marriage so happens, shall think fit, to be applied by them toward the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid. 31 9

318. Indeed, in the passage of his opinion revieving specific state statutes and cases that barred blacks from rights traditionally employed by citizens. see Dred Scott %Sandford. 60 U S (19 Ho%% ) 393. 412-16 (1857), Taney drew upon four examples of prohibitions on miscegenation and four examples of other disabilities, such as exclusion from participation in the militia. to drive home the logical impossibility of black citizenship. That Taney nonetheless felt compelled to use these statutes as thefoundation for his harangue against black citizenship exposes the highly biased racial ideologies lying beneath the apparently calm, objective surface of his opinion. In Taney's eyes. Dred. Harriet. and their children could not be human actors; rather, they were simply launching points for Taneys opposition to black citizenship and civil rights. 319. Id. at 408 (citations omitted). 1110 The Yale Law Journal [Vol. 106: 1033

While this statute evinces a strong policy against interracial marriage, it says nothing at all about a bound man marrying a free woman (or a bound woman marrying a free man) when the individuals were classified, as the Scotts were, as of the same race. Taney's stress was on the racialism of Maryland's marriage laws, particularly marriage laws that had been antimiscegenationist. 320 The instrumental purpose of the Maryland statute was to punish interracial marriage with servitude. (There would be no reason to punish Harriet Robinson with servitude for marrying a man of her own racial group.) Taney could not see Harriet Robinson Scott, a woman of color, as a free woman-free to marry and to bear free children. With utter conviction in his racism, Taney wrote the infamous lines: "[T]his stigma, of the deepest degradation, was fixed upon the whole race. 32'

3. The Conflict of Regimes

The contrasting Northern and Southern approaches to reconciling marriage and slavery leave us with a fundamental question: How do we analyze a marriage conducted on free soil once the married couple has come to reside in a slave state? Marriage always serves certain social functions. 322 The distinct social functions that marriage served in frontier territory also suggest the propriety of examining the validity of the Scotts' marriage, and its emancipatory impact, within that particular context. Analyzing these questions

320. The Court also cited a colonial Massachusetts law maintaining, "[Nior shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds." Id. at 409 (quoting colonial law passed by Massachusetts in 1705). 321. Id. 322. The philosopher William Paley, whose eighteenth-century philosophical works profoundly influenced social thought in the United States in the nineteenth century, listed some six objectives that marriage served: The public use of marriage institutions consists in their promoting the following beneficial effects, 1.The private comfort of individuals, especially of the female sex. It may be true, that all are not interested in this reason; nevertheless it is a reason to all for abstaining from any conduct which tends in its general consequence to obstruct marriage; for whatever promotes the happiness of the majority, is binding upon the whole. 2. The production of the greatest number of healthy children; their better education, and the making of due provision for their settlement in life. 3. The peace of human society, in cutting off a principal source of contention, by assigning one or more women to one man, and protecting his exclusive right by sanctions of morality and law. 4. The better government of society, by distributing the community into separate families; and appointing over each, the authority of a master of a family, which has more actual influence, than all civil authority put together. 5. The same end, in the additional security, which the state receives, for the good behaviour of its citizens, from the solicitude they feel for the welfare of their children, and from their being confined to permanent habitations. 6. The encouragement of industry. WILLIAM PALEY, THE PRINCIPLES OF MORAL AND POLITICAL PHILOSOPHY 241-42 (Garland 1978) (1785). 1997] Mrs. Dred Scott according to conflict of laws principles2 3 only confirms the legal indeterminacy of slave marriage. If this analysis leaves us with any tentative conclusion, it is that the Scotts' marriage could have been recognized as emancipatory under Missouri law, hence freeing the Scotts, without overturning any fundamental policy of the state of Missouri. Considered separately, both the relationships of enslavement and marriage posed perplexing conflict of laws issues. First, the nature of states' conflict of laws analysis of enslavement underwent a transition from attempt at accommodation to outright sectional hostility. In the early Republic, free and slave states alike. pursued accommodationist policies in appraising the related questions of the effect of slavery in free states and the impact of manumission." 5 Hence, while a state could legalize slavery within its borders, the status of enslavement beyond the state's borders was uncertain, especially since both free and slaveholding states rejected expansive interpretations of the reach of slave law during this period of cooperation. '6 However, beginning in the 1830s, this period of accommodation gave way to 3' a period of growing legal discord. 2 As cooperation between free and slave states diminished, Northern and Southern courts began to diverge in their interpretations of the legal status of slavery. 28 In this volatile context of deteriorating legal and political consensus, the eminent nineteenth-century scholar and Supreme Court Justice Joseph Story published his 1834 treatise on the conflict of laws.3"' Story's treatise advanced two different conflict of laws orientations. On the one hand, he favored a pluralistic system of territorially autonomous jurisdiction. All persons within a jurisdiction were subject to its laws, and its courts were under no legal obligation to recognize the laws of other states." Rather, the

323. As Eric Dean, Jr.. has pointed out. many scholars ha e erroneously regarded the Drrd Scott cas as hinging on whether the Missouri Compromise's ban on slavery should invalidate as unconstitutional contrary Missouri statutes and court decisions. Instead Dred Scott is best understood in terms of competing doctrines in the conflict of laws area. See Eric Dean. Jr.. Reassessing Dred Scott. The Possibiiies of Federal Power in the Antebellum Context, 60 U. CINN. L. RE%. 713. 738 (1992). In keeping w~ith this methodology, we apply conflict of laws principles to the issues of the Scots' mamage and its iberatory consequences. 324. See id. at 740. As another commentator has suggested: Mhe willingness of free states to recognize the bondage of slaves sojouming within their borders for limited periods of time, and the willingness of slave states to recognize the freedom acquired by former slaves who had remained beyond some time limit in a free state. was indicative of the accommodation which the states had reached and %hich was to last into the 1830s. Note, American Slavery and the Conflict of Laws. 71 COLUtM. L. REv. 74. 87 (1971) 325. Under the Somerset doctrine, slavery could only be established by positise la" See jupra note 250. 326. See Alfred L. Brophy, Note, Let Us Go Back and Stand Upon the Constitution. Federal-State Relations in Scott v. Sandford, 90 COLUM. L. REv. 192. 194-96 (1990). 327. See Note, supra note 324. at 92. 328. See id. 329. See JOSEPH STORY, COMMENTARIES ON THE CO\FLICT OF LAWS (3d ed. 1846) 330. See Dean, supra note 323, at 739. 1112 The Yale Law Journal [Vol. 106: 1033 permissive doctrine of comity33' allowed jurisdictions to take other states' laws into account simply "on the basis of convenience and mutual respect, with the hope of facilitating trade, travel, and relations between the two states. 332 Accordingly, recognizing foreign laws was the prerogative of sovereign states, rather than a mandate imposed by law. 333 On the other hand, however, Story drew upon a unitarian system that responded to conflicts with a superior legal order, a supranational law founded on universally 3 accepted principles of natural reason. ' The contradiction within Story's conceptualization may have given it its resiliency. Although Story never explicitly applied this approach to the problem of American slavery,335 he did comment about enslavement and marriage. He did not, however, examine the consequences of enslavement and marriage in conjunction, as called for by the Scotts' circumstance. Story's comments about enslavement were necessarily equivocal. 336 He pursued a commitment to compromise.3 7 In the context of Story's slavery jurisprudence, this recognition of the necessity of compromise produced his opinion in Prigg v. 33 Pennsylvania. ' By bringing the controversy over fugitive slaves within the ambit of federal law, Story may well have hoped ultimately to find a national solution to the slavery problem.339

331. Because of its permissiveness and its posture of neutrality, comity can be attacked as a "hermeneutic of acceptance," or "the elaboration through traditional patterns of legal reasoning of a discourse of exclusion that rationalized the vicious persecution of some while still maintaining ostensible norms of constitutional decency toward most others." Richard Weisberg, The Hermeneutic of Acceptance and the Discourse of the Grotesque, with a Classroom Exercise on Vichy Law, 17 CARDOZO L. REV. 1875, 1875 (1996). For instance, this dynamic is epitomized by a judge's agonized decision to reject a suit for freedom, despite a personal antipathy to slavery, on the ground that such a result was compelled by legalistic "duty." See id. at 1884. 332. Dean, supra note 323, at 739. 333. See Note, supra note 324, at 93. 334. See Dean, supra note 323, at 738-40. 335. See Christopher L.M. Eisgruber, Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism, 55 U. CHi. L. REv. 273, 276 (1988). 336. Story asserted that foreign jurists and foreign tribunals uniformly gave no effect to the state of slavery of a party, whatever it might have been in the country of his birth, or of that, in which he had been previously domiciled, unless it is also recognized by the laws of the country of his actual domicile, and where he is found, and it is sought to be enforced. STORY, supra note 329, at 165. 337. As Professor Eisgruber has noted: [I]n the absence of political compromise, constitutional interpretation might rest upon a unitary interpretive principle: one would need only to ascertain what interpretation would result in a state of affairs that was good and just, since there would be no good reason for constitution- makers to have imposed or have aimed at any other state of affairs. But the necessity of compromise compels constitution-makers to attend to matters of special interest and convenience as well as to what is just and good. Eisgruber, supra note 335, at 315-16. 338. 41 U.S. (16 Pet.) 539 (1842). 339. See id. 19971 Mrs. Dred Scott 1113

In his pronouncements on marriage, Story also acknowledged the law's aspirational sweep while adapting its application to considerations of public policy. Regarding the validity of marriages, he declared:

The general principle certainly is, as we have already seen, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere.3

Adhering to this rule was necessary to avoid the "ji]nfinite mischief and ' confusion ... with respect to legitimacy, successions, and other rights 31 that would ensue if one nation-and, by extension, one state-regarded as void the marriages contracted in another. A qualification to the rule involved possible conflicts between the law of the locus of the marriage's celebration and the law of domicile:

[W]hile the forms of entering into the contract of marriage are to be regulated by the ... law of the country in which it is celebrated, the essentials of the contract depend upon the ... law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated .... [I]f the contract of marriage is such in essentials as to be contrary to the law of the country of domicil, and it is declared void by that law, it is to be regarded as void in the country of domicil, though not contrary to the law of the country in which it was celebrated.""

By application of this principle, if the Scotts contemplated a return to slave territory at the time of their marriage-and there is no indication that they did-their Minnesota marriage, and Harriet's emancipation, may have been legal at Fort Snelling but void in Missouri. Another difficulty is that it may be impossible to resolve the issue of the Scotts' domicile without first addressing the question of their status-a question which, as we have demonstrated, depended in turn upon their domicile. The issue is infinitely circular."" Other cases involving conflict and marriage had considered marriages (or divorces and remarriages) between individuals who were otherwise prohibited

340. STORY, supra note 329, at 187. Story qualified his discussion by explaining that he considered "the nature and effect of the relation of marriage contracted by and between persons %%ho are admitted to be sui juris, and to possess competent capacity everywhere." Id at 184 Slases. hostclcr.%erc not admitted to possess competent capacity everywhere. 341. Id. at 201. 342. Id. at 219. 343. Another formulation is to be found in Hurd's collection: [S]ince the domicile of a person is determined, ina great degree. by his own act of choice the question of domicile may depend upon the status: for since a slave cannot. as such. elect a domicile, the question of his domicile may involve a prior determination of his status I HURD, supra note 106, at 109 n.] (citation omitted) 1114 The Yale Law Journal [Vol. 106: 1033 from marrying (or from divorcing), or who otherwise lacked capacity to marry. In these circumstances, "domicile" could mean the domicile of either party to the marriage." Because each of the parties to the marriage had to have the capacity to marry by the law of his or her own domicile, if the law of either party's domicile prohibited the marriage, it was invalid.345 One categorical exception to the rule premising the validity of a marriage upon the law of the site of its celebration obtained where a marriage that was "positively prohibited by the public law of a country from motives of policy."346 Yet such a policy-driven prohibition had to be strong indeed to outweigh the countervailing policy in favor of recognizing as valid those marriages that were valid at their site of celebration.347 By the law of situs of the Scotts' wedding, the Scotts' marriage was valid, Once the Scotts removed from Fort Snelling to St. Louis, a Missouri court could declare that the couple's out-of-state marriage on free soil did not deserve legal recognition. That would not be the end of the deliberation, however: It would then become necessary to consider whether the public policy underlying Missouri's "positive prohibition" had to yield to the need to avoid the "public mischief' of the consequences of declaring the marriage invalid. In Missouri, slave marriages were hardly counter to public policy. The Catholic church consecrated slave marriages in St. Louis at this time. Indeed, as Trexler reports, "the Catholic church regularly married slaves and held the tie to be as sacred as any other marriage."' 48

344. English case law declared void a marriage that was contrary to the act of parliament, although only the prospective husband was domiciled in England. See id. 345. Modem commentaries have criticized this suggestion, which seems to ignore the need for a significant contact between the marriage and the state aiming to invalidate it: No American case has been found invalidating an otherwise valid marriage in which the forum's only contact was as the domicile of but one party at the time of the marriage. On principle, it seems clear that to be sufficiently concerned with a marriage to declare it invalid under its local policy, a state should have more substantial contact with the marriage than solely as the domicile of one of the parties at the time of the marriage. EUGENE F. SCOLES & PETER HAY, CONFLIcr OF LAWS 455-56 (2d ed. 1992). As one English judge commented, "[Il]t is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicil." STORY, supra note 329, at 220. 346. STORY, supra note 329, at 188. 347. Indeed, even in the case of an interracial couple domiciled in Massachusetts who had celebrated their marriage in Rhode Island to evade Massachusetts' policy of antimiscegenation, their "fraudulent evasion" of Massachusetts law did not prevent a Massachusetts court from declaring the marriage valid. The court justified upholding the validity of the marriage "to prevent the disastrous consequences to the issue of such marriages, as well as to avoid the public mischief which would result from the loose state in which people so situated would live." Id. at 224-25 (quoting Medway v. Needham, 16 Mass. 157 (1819)). In another case with identical facts, the widow by the second marriage was held to be entitled to dower in the real estate of her deceased husband. See id. at 207. Of course, this reasoning did not meet with universal acceptance in other state courts. See id. at 226. 348. TREXLER, supra note 113, at 87-88. Trexler continues: "Father Phelan stated that Catholics never sold their slaves and thus escaped the predicament of severing a Church marriage." Id. at 88 n.25. As Trexler points out, Missouri law never formally recognized slave marriage; consequently, an 1865 statute required a legal marriage of all ex-slaves in the state, with penalties for noncompliance. See id. at 88. Nonetheless, even the fact that severing chureh-sanctioned slave marriages was constructed as a "predicament" suggests that these marriages had some validity in St. Louis. 1997] Mrs. Dred Scott 1115

What distinguishes Harriet and Dred's marriage from these circumstances was not only that they had had separate masters before marrying, such that their marriage could not be said to have been performed in an attempt to prevent the two from trying to escape, but also that their marriage was performed and recognized by the legal authorities, not the religious ones." In fact, the Scotts could also assert the affirmative benefits of validating their marriage, which had served the social purpose of "civilizing" the frontier and legitimating their children. Although Southern slaveholders only permitted marriages between slaves as a means of social control, this function of marriage did not apply on the Minnesota frontier. Many Southern slaveholders, guided by self-interested motives, saw marriage as a way to keep potential runaways in check. These owners wished to discourage their slaves from escaping by manipulating affective ties. 350 Thus, marriage was permitted

349. Religious beliefs also strongly influenced man), slaveowners' vews on mamage Slaveoncrs' religious convictions sometimes imbued them with special consideration for slase unions Again. houcvcr. religious attitudes ran the gamut from shoring up the total domination of master over slase to carving out a space for slaves' personal liberties. For instance. Catholic theologians saw slavery as a function of "human need and invention," not natural law. See STAFFORD POOLE & DOL.GLAS I SLASON. CltLRCi! AND SLAVE IN PERRY COUNTY, MISSOURI 1818-1865. at 53 (1986) (footnote omitted) Hence. Catholics could also acknowledge slaves' inalienable natural rights that withstood their servitude In contrast with American civil law, Catholic law recognized slaves' capacity to form a "valid. legitimate, and stable union.- Id. at 56 (quoting 1685 Code Noir of Louisiana, which attempted to give government sanction to accepted Catholic doctrines concerning slavery). Accordingly. Catholicism prohibited slaveowners from separating spouses or selling away children under 14. and gave slaves some latitude in choosing their spouses. forbidding masters from forcing slaves to marry or unreasonably withholding their consent to a mamage See id. at 53-56 (citations omitted). A similarly complex vision of the human attnbutes that slavery left intact pervaded the Southern Evangelical denominations of Christianity that gradually came to dominate the religious traditions of the Old South. Southern Evangelical Christians were beset by a fundamental ambivalence about slavery: "[B]elie[ving] that slaves were and should be treated as morally responsible human beings." they nevertheless placed their own expansion--their need to bring both masters and slaves within the "community of faithful people"--above opposition to slavery. MATEWS. supra note 293. at 71. 77 Clearly, many of the religious stances accommodated the dominant legal order of maintaining slavery Cited for this proposition was the Christian invocation: Give to God that which is God's and to Caesar that which is Caesar's. The separation of the marital status into spiritual and secular components was more difficult within the religious construct than separating the division of souls and taxes. 350. For example, one slaveholder attempted to use mamage to stimulate an enslaved man's interest in an enslaved woman to keep the former from growing enamored of escape See BROW%,. supru note 224. at 84-90. In a notable example of resistance. Brown thwarted his mistress's efforts by skillfully feigning affection for Eliza to hide his plan to escape. A similar attitude appeared in an article in De Bow's Review: "I have [my slascsj as near equally divided as possible of males and females. I do this in order that each man may hase his own wife on the premises. They then have no excuse for leaving home." Alabama Planter. Management of Slaves. 13 DE Bow's REV. 193 (1852). Other slaveholders. anticipating the children that would result, welcomed the increase in their property. Some slaveowners limited their benevolence to acknowledging. perhaps even celebrating unions initially, see, e.g., GENOVESE, supra note 85. at 475-81 (descnbing wedding ceremonies that slaveowners planned and performed with and for their slaves), leaving undisturbed their readiness to sell spouses apart The numerous instances of sundering marriages by selling husbands and wives to different purchasers, as evidence of the larger phenomenon of separating families according to the dictates of the slave market, bear witness to many slaveowners' strictly instrumental regard for slave mamage See supra note 160 and accompanying text. 1116 The Yale Law Journal [Vol. 106: 1033 between slaves only when it served Southern slaveowners' objectives in preserving and augmenting the enslaved workforce. This function of marriage was unnecessary on the Minnesota frontier. The Fort community was sufficiently isolated that there was no place to escape to and few means of traveling very far.35' Frozen rivers and sub-zero temperatures confined the community to the Fort from the time the rivers iced over until the spring thaw each year. It was hardly necessary to limit marriage's function to the purpose of reinforcing subservient persons' sense of servitude. Rather, marriage served a civilizing purpose of humanizing the sensibilities of individuals on the territorial margins of larger society. In this context, the Scotts' marriage, countering no public function of the institution and enhancing the civilization of the frontier, might have won validity.352 Under this analysis, the most significant argument persuading Missouri courts to recognize the liberatory effect of the Scotts' marriage was that such a recognition would not have threatened slavery in Missouri. As we have shown, Harriet could assert a strong claim to freedom at the time of her marriage. Any children she had with Dred would follow her status, and would thereby be free as well. Freeing Dred through his marriage to Harriet would not have seriously undermined the institution of slavery in Missouri. Nor would recognizing the Scotts' marriage as emancipatory of Dred necessarily have had the effect of emancipating slaves married in Missouri without the sanction of a justice of the peace. This partial submission to slaveowners' interests would have effectuated Story's general policy of comity: accommodation and compromise. The permissive nature of comity and the increasing fragility of cooperation between free and slaveholding states after 1830 precludes easy conclusions of any kind. Rather, they suggest a route the Scotts' lawyer might have pursued

351. See supra text accompanying notes 200-01. 352. Similar arguments surround the second legal issue arising from the phenomenon of Harriet and Dred's marriage: the question of the effect of the marriage on slave status. Joseph Story set out the basic rulesgoverning the incidents of marriage. [A]lthough a marriage which is contracted according to the lex loci will be valid all the world over, and although many of the obligations incident to it are left to be regulated solely by the agreement of the parties, yet many of the rights, duties, and obligations arising from it are so important to the best interests of morality and good government that the parties have no control over them, but they are regulated and enforced by the public law, which is imperative on all who are domiciled within its jurisdiction, and which cannot be controlled or affected by the circumstance that the marriage was celebrated in a country where the law is different. In expounding or enforcing a contract entered into in a foreign country, and executed according to the laws of that country, regard will be paid to the lex loci, as the contract is evidence that the parties had in view the law of the country, and meant to be bound by it. But a party who is domiciled here cannot be permitted to import into this country a law peculiar to his own case, and which is in opposition to those great and important public laws which our legislature has held to be essentially connected with the best interests of society. STORY, supra note 329, at 187. In keeping with the flexibility of this analysis, Story noted that "[a]lthough, in a general sense, the law of the matrimonial domicil is to govern in relation to the incidents and effects of marriage, yet this doctrine must be received with many qualifications and exceptions." Id. at 270. 1997] Mrs. Dred Scott 1117 to argue that the Scotts' marriage was valid and that it freed them from slavery. On a broader level, exploring the many countervailing considerations inhering in a conflict of laws approach reveals the gap between the law's complex, indeterminate interior and its falsely stable facade.

IV. DRED SCOTT V. SANDFORD WRITTEN IN THE CONTEXT OF "HE"

At the very least, this Article should change the popular image customarily associated with the case of Dred Scott. Mr. Scott was not the stereotypical powerful man brutalized in leg shackles and chains lifting his head and ascending from the plantation to assert his rightful freedom. In conventional scholarship, the Dred Scott litigation has yielded two conflicting portrayals. On one side stands the individual plaintiff, Dred Scott, with an intensely personal stake in the outcome of an eleven-year conflict. On the other are arrayed the massive political forces agitating for a resolution of the slavery question, buffeting Dred Scott as a pawn in national federalism and slavery disputes. Both visions have understood the case as essentially an individual man's suit 35 for freedom. 1 Dred Scott was a man who had already contributed to the advancement of the frontier by assisting Dr. Emerson in inoculating and treating both military men and Indian tribes for whooping cough, small pox, and the devastating effects of starvation. The social consequences of these basically humanitarian acts should have emancipated him; they should have elevated him to the status of a man deserving of respect and stature. Instead, by denying that he even had the right to appear in the U.S. Supreme Court, the majority prevented him from claiming the privileges of citizenship and manhood.3" Conventional analysis of freedom was based on residency and domicile, on being in the right place at the right time. There was no precept in American slavery law that slaves could win their freedom by the work they performed, the deeds they did, or the accomplishments they achieved. Slaves became free because of their masters' actions, not their own. American slavery law explained away this lack of recognition of achievement by positing racial and gender inferiority. Thus, the Dred Scott opinion, as the Taney Court and the dominant culture, was blind to the people that Dred and Harriet Scott actually were.

353. See supra text accompanying notes 113-24. 354. From the outset, the majority embraced a specifically masculine %ision of entitlement and citizenship. That this conception of citizenship was male.oriented is plain from the Court's discussion of the first militia law of 1792. The Court construed the command that ever) "fr ablc-bodied wAhitc male citizen" should be enrolled in the militia to exclude unnaturalized foreigners ("citizen"). and the African race ("white"). Id. at 420 (citation omitted). The Court left unquestioned and undiscussed the adjcctie "male" that necessarily described an identity whose bearers assumed "the duties and obligations of citizenship." Id. The core duty of citizenship-defending the community in a .ar-cxcludd both African Americans and women. 1118 The Yale Law Journal [Vol. 106: 1033

Further evidence of the Court's blindness to the Scotts is found in the Justices' redundant recitation of the same stipulated facts without nuance or interpretation.? Dred Scott, the person, is rarely described. One rarely even finds the pronoun "he" referring to the man. Dred Scott is not a person to the Court; he is only a cipher on which the Justices project their theories of federalism and their assessments of the relative rights of slave owners or free nonslaveholding whites to move into the frontier. If the Supreme Court denied Dred Scott the right to aspire to a masculinized citizenship, Harriet Robinson Scott-Mrs. Dred Scott- experienced a confluence of race and gender discrimination that placed her qualitatively even farther away from that ideal of citizenship. Although Taney referred to the issue of his freedom and of the freedom of his family,356 Harriet warranted no such consideration. Like her daughters, once introduced for a brief moment, she disappeared into the backdrop. Both her claim to marriage and to the circumstances of her transfer in free territory to Dr. Emerson are elided as already accomplished facts in the Court's recitation. 3 7 Drawing upon feminism and intersectionality theory, we have argued that it is only when we recognize all the aspects of Harriet's identity that we can fully understand the true contingency of the categories underlying the lawsuit. For instance, Harriet's solicitude for her daughters and husband may well have compelled her to see freedom, not in escape, but in family continuity and safety from sexual predation-two goals that she may have believed could be achieved only by remaining with Dr. Emerson. Her decision is all the more comprehensible in light of the legal gap between de facto and de jure freedom that resulted from the restrictions on African Americans' civil rights that states of the Northwest imposed. In the social location that Harriet inhabited, both freedom and slavery were highly contested. One cannot read the historical case substituting "Mrs. Scott" for "Dred Scott" and "she" for "he" and get the same impression. In part, substituting "she" for "he" does not work because there are so few references even to Dred Scott, the man; in part, substituting "she" for "he" does not work because it would merely present a woman clothed in a man's rights.35" Instead, acknowledging Harriet Robinson Scott's unique personhood transforms the very basis of the rights analysis by expanding that analysis to incorporate the reasons Harriet Robinson Scott went to court: to seek legal recognition of her family, her daughters' freedom, her right to mother those daughters, and her

355. See id. at 431 (Taney, J.); id. at 457 (Nelson, J.); id. at 470 (Daniel, J.); id. at 493 (Campbell, J.); id. at 529 (McLean, J.). 356. In fact, Taney considered the question of Dred's freedom, by virtue of his removal to Rock Island, independently from the question of the freedom of Dred and his family. See id. at 431-32. 357. See supra text accompanying note 243. 358. For further examples of the law's inability to recognize rights uniquely necessary for women's independence, see generally VanderVelde, supra note 22. 1997] Mrs. Dred Scott 1119 family's right to remain together. She went to court to prevent other private parties from interfering, under operation of law, with their privacy, their autonomy and their rights to self-determination and fulfillment. In this case, the impulse to freedom should properly be seen as part of another historic line of cases including Pierce it Societn of Sisters,'" Wisconsin v. Yoder,3'6 Griswold v. Connecticut," ' Roe i. Wade, 6 2 and Moore v. City of East Cleveland.63 It represents those instances where an individual seeks legal recognition of an essential social aspect necessary to human flourishing.36 Why did this case, of all of the cases slaves brought for freedom, endure the eleven years to the U.S. Supreme Court? Why did Dred and Harriet Robinson Scott sue rather than flee? The answers to both questions are the same: An individual could run, hide, stow away, and take the risks of escape; a family needed the stability and security of freedom papers. An individual might well flee rather than undertake and sustain a legal battle for such a major portion of his lifetime. Sustained litigation was both possible and necessary because of family integrity claims. Why did Dred Scott and his family not head for the wider universe of free territory in the North Country? In words that resonate strangely with Dred and Harriet's life story, philosopher Charles Taylor answers that question:

Man is a social animal, indeed a political animal, because he is not self-sufficient alone, and in an important sense is not self-sufficient outside a polis. What then does it mean to say that men are self- sufficient alone? That they would survive outside of society? Clearly, lots of men would not. And the best and luckiest would survive only in the most austere sense that they would not succumb .... What is

359. 268 U.S. 510, 534-35 (1925) (invalidating state la%%that "unreasonably intiferc[d] with the liberty of parents and guardians to direct the upbnnging and education of children under their control") 360. 406 U.S. 205 (1972) (finding that State's interest in universal education must be balanced against fundamental rights to free exercise of religion and traditional parental interest in making decisions concerning children's upbringing). 361. 381 U.S. 479, 485 (1965) (protecting marital relationship, which lies "'i thin the zone of privacy created by several fundamental constitutional guarantees." from intrusive state birth control law). 362. 410 U.S. 113 (1973) (holding that right to privacy includes women's qualified nght to terminate pregnancies). 363. 431 U.S. 494 (1977) (extending Court's strong constitutional protection of family sanctity beyond limits of nuclear family to woman living with son and two grandsons). 364. See Michael J. Sandel, Moral Argument and Liberal Toleration. Abortion and Homose.rualty. 77 CAL. L. REv. 521, 528-29 (1989). The tendency to identify privacy with autonomy Sandel descnbes not only obscures shifting understandings of privacy; it also restrcts the range of reasons for protecting it. Although the new privacy typically relies on voluntarist justifications, it can also be justified in other ways. A right to be free of governmental interference in matters of mamage, for example. can be defended not only in the name of individual choice, but also in the name of the intrinsic value or social importance of the practice it protects. See id. at 521. As the Court has acknowledged. "certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State." Roberts v. United States Jaycees, 468 U.S. 609. 618-19 (1984). "The Court's greater tendency, however, has been to view privacy in voluntarist terms, as protecting 'the ability independently to define one's identity."' Sandel, supra, at 524-25 (quoting Roberts. 468 U.S. at 619). 1120 The Yale Law Journal [Vol. 106: 1033

at stake is not self-sufficiency in the sense [of being dropped off north of Great Slave Lake with only a hatchet and a book of matches,] but rather something else. It is not just that men cannot physically survive alone, but much more, that they only develop their characteristically human capacities in society.365

For Dred and Harriet Scott, continuity as a family was one of those characteristically human capacities. On the frontier, in the eyes of the man responsible for bringing civil peace-Major Taliaferro, the man who performed their wedding-consecrating marriages was necessary even for the men of the northwoods. Taylor continues:

Attributing rights ... [is] bound up with discerning a capacity which we sense we must respect, in the sense of something which we ought to foster and which we are forbidden to impair.... [B]ehind the conviction that certain beings have rights to A, B, or C, is that these beings exhibit a capacity which commands respect, which capacity helps determine the shape of the rights, or what the rights are rights to.... Certainly humans need others in order to develop as full human beings .... We must all be nurtured by others as children. We can only flourish as adults in relationship with friends, mates, children, and so on.... [I]t is clear that men must live in families (however families are constituted); they need families even to grow up human; and that they continue to need them to express an important part of their humanity. 366

The image of freedom in this important lawsuit should not merely be the image of a "he"-an individual male plaintiff, isolated from the family ties that were the very basis of his humanity. Rather, the image of freedom should include the image of a "she"-Harriet Robinson Scott: a mother, a wife, a servant in the Indian Agent's house, a woman who served dinner to the important exploring men of her generation and who provided food to the Ojibwa and, Sioux tribes at times of starvation. Harriet Robinson Scott, a laundress, earned an honest living, did the best that she could within her circumstances. By seeking to better the lives of her family, she contributed greatly to the lives of her children and ours. Her story does more than reveal to us the perfidy of Dred Scott v. Sandford; it transforms our understanding of the claims that women of our own time have brought before the Court in the continuing search for security, dignity, and freedom.

365. CHARLES TAYLOR, PHILOSOPHY AND THE HUMAN SCIENCES: PHILOSOPHICAL PAPERS 11,at 189 (1985). 366. Id. at 209. 19971 Mrs. Dred Scott 1121

APPENDIX A

Photographs of Harriet Robinson Scott, Dred Scott, and their children Eliza and Lizzie, originally printed in Visit to Dred Scott-His Family-Incidents of His Life-Decision of the Supreme Court, FRANK LESLIE'S ILLUSTRATED NEWSPAPER, June 27, 1857, at 1 (layout and proportions altered from original). 1122 The Yale Law Journal [Vol. 106: 1033

APPENDIX B

0.. . I ,

A/ ,

, ld¢, , -- /l /1 . >

..l-'> -fl? ... 1i~ ,

1836 Wisconsin Territorial Census Listing (Minn. Historical Soc'y, St. Paul, Minn.).