Mrs. Dred Scott.

• Author: VanderVelde, Lea
• Position: Race and gender issues in Harriet Robinson Scott's emancipation claims

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(1) 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.(3) No one has 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 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 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 modern 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";(8) 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.(10) 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 laboring people owed obedience to, and followed the orders of, those who commanded them. Whipping and physical chastisement were considered appropriate punitive responses for the infractions and crimes of many types of subordinate persons--enlisted men, tribal people, and children, as well as servants. Further blurring the distinctions between categories, some masters even referred euphemistically to the subordinate persons, who in other contexts would be deemed slaves, as "servants." Hence, within this region there was no single signifier, no sine qua non of slave, indentured servant, or "hired man" status. The terms and the indicia of status among and between these subordinated groups were continually contested.

Moreover, among these several tribes, cultures, and races, the primary racial, ethnic, and cultural divide was not between black and white, it was between Native American and settlement culture. Within this divide, Americans of African origin were affiliated with the dominant settlement culture. African Americans who married Sioux or Ojibwa women were denominated as part of the fur traders rather than the tribal peoples." One observer noted that the "Indians thought much of negroes--called them black men, or black Frenchmen."(12)

As Tushnet writes:

Every legal rule imposes an artificial order upon social reality by

ignoring the complexity of that reality and focusing instead on some

elements that can be identified and manipulated without too much

conceptual or practical difficulty.... [T]here are limits to acceptable

artifice, set by the importance of these aspects of social reality that

are treated artificially. The difficulty for slave law was that

categorization forced the law to disregard the reality of the very

institution that defined slave society. The vacillation between race and

status as the ground for classifying illustrates the problems, for

whichever ground was chosen, the rules would have to ignore the actual

interplay between race and status.(13)

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.(14) 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...