408 CAPITAL UNIVERSITY LAW REVIEW [43:407
emanated from approximately three hundred “freedom suits” brought by
slaves in the courts of the state of Missouri,5 perhaps the best known being
the United States Supreme Court’s decision in Dred Scott v. Sandford.6
These “freedom suits,” filed between 1840 and 1861, were based upon a
statute providing enslaved persons with what may have been
unprecedented access to the courts.7 Twenty-three of these cases were
brought by enslaved mothers who, once having gained their own freedom,
subsequently returned to court to petition for the freedom of their enslaved
children based upon the legal doctrine of partus sequitur ventrem.8 These
women were mothers who had lost or feared losing “custody” of their
children9 through slave trading, because families were separated by cruel
5 David Thomas Konig, The Long Road to Dred Scott: Personhood and the Rule of Law
in the Trial Court Records of St. Louis Slave Freedom Suits, 75 UMKC L. REV. 53, 53
(2006). See also History of Freedom Suits in Missouri, ST. LOUIS CIRCUIT COURT
HISTORICAL RECORDS PROJECT, http://stlcourtrecords.wustl.edu/about-freedom-suits-
history.php (last visited Jan. 5, 2015) [hereinafter ST. LOUIS PROJECT].
6 60 U.S. 393 (1857).
7 ST. LOUIS PROJECT, supra note 5.
8 See generally Gloria Ann Whittico, “A Woman’s Pride and a Mother’s Love”: The
Missouri Freedom Suits and the Lengths and Limits of Justice, FREEDOM CENTER J.,
9 Id. Economist and social historian Colin Heywood has explored the dynamics of the
enslaved family from the perspective of the chil d:
[G]ruelling days working in the fields left slave mothers in the
American South with little time or energy for their children. Jennie
Webb informed a researcher, ‘All my childhood life, I can never
remember seeing my pa or ma gwine to wuk or coming in from wuk in
de daylight, as dey went to de fiel’s fo’ day an’ wukked till after dark. It
wuz, wuk, wuk, all de time.’ In addition, these slave mothers faced the
peculiarly debilitating circumstances of plantation life for close family
relationships: rivalry from the all-powerful masters and mistresses for
the affections of their children, and the constant threat of separation
through being sold on to different owners.
COLIN HEYWOOD, A HISTORY OF CHILDHOOD: CHILDREN AND CHILDHOOD IN THE WEST
FROM MEDIEVAL TO MODERN TIMES 85 (2001) (citations omitted). It can be argued that the
protection of children is one of the most basic of our cultural and moral values. Brian
Simmons, Child Welfare Ethics and Values: Participants Guide, CAL. SOC. WORK EDUC.
CENTER 7 (2003), http://calswec.berkeley.edu/files/uploads/pdf/CalSWEC/Participant_
Ethics_Values.pdf. The value of childhood is embodied in the following Biblical account: