Law professor shines light on 'Mrs. Dred Scott'

Professor of law Lea Vandervelde and students Michael Bruce and Julie Ogawa review maps of places the Scotts lived and worked. photo by Rex Bavousett

Harriett Robinson Scott--mother, wife, slave--slipped unnoticed into American legal history, barely a footnote in the U.S. Supreme Court case that bears her husband's name.

Now, more than 140 years after the Dred Scott decision became a touchstone in America's divisions over slavery and race, College of Law professor Lea VanderVelde is uncovering new evidence that "Mrs. Dred Scott" deserves at least an equal-if not a larger-claim on Americans' understanding of their history.

Far from being forgotten, Harriett Robinson Scott should be heralded as a courageous fighter for her family who probably brought the original lawsuit that became Dred Scott v. Sandford, VanderVelde says. She adds that Scott should be credited for trying to redefine the nature of freedom for women and families.

"We tend not to see women as actors in history; we tend not to see black people as actors in history; and we tend not to see slaves as actors in history," VanderVelde says. "Here's a woman who was all three and who affected history enormously: she triggered a lawsuit that changed history."

An expert on American labor law, VanderVelde outlines much of her new research in an article, "Mrs. Dred Scott," that appeared in the January, 1997 issue of The Yale Law Journal (106 Yale L.J. 1033; with Sandhya Subramanian). She is at work on a popular history book on the Scott family.

The research began as a book on slavery, freedom, and labor in American law. Tentatively titled, A Master Narrative of American Law, the book could not be written without closely examining the 1857 Dred Scott decision.

In the case that set the stage for much of the history that would follow, Dred Scott based his claim for freedom on his residence in free territory. Supreme Court Chief Justice Roger Taney, arguing for the majority of a divided court, ruled against Scott, saying, in effect, that slaves were the property of their owners regardless of where the owners happened to live or for how long. Freeing Dred would violate the Fifth Amendment Due Process Clause of slaveholders, the court ruled.

VanderVelde found plenty of historical and legal scholarship on Dred Scott-a new biography has been written almost every generation after his death in 1858-but only a few passing mentions of his wife, Harriett, and his daughters, Eliza and Lizzie.

Ruling in the Dred Scott case Dred Scott v. Sandford [60 U.S. How. 393 (1857)] was decided in a 7-2 United States Supreme Court opinion by Justice Roger Taney. The court held that: 1. Congress had no authority to eliminate slavery in any of the federal territories. 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 slavery in the federal territories and because Dred Scott was not a citizen of the United States, the federal courts did not have jurisdiction over Dred Scott's claim. 4. Dred Scott's residency in free territory did not make him free because the 1820 Missouri Compromise violated the Fifth Amendment Due Process Clause by depriving slaveholders of their property. 5. Dred's residence in another state, Illinois, had no effect on his status as a slave once he returned to Missouri, at which point Missouri law, not Illinois law, applied. From "Mrs. Dred Scott," by Lea VanderVelde and Sandhya Subramanian in The Yale Law Journal (106 Yale L.J. 1033).

Intrigued by the omissions, she and her research assistants set to work, trying to piece together the lives of the entire Scott family, a difficult process because so little of the lives of slaves was documented in ante-bellum America. VanderVelde began a painstaking journey that required the skills of a trained historian, the tenacity of a field archeologist, and the insights of a storyteller who can read between the lines.

VanderVelde was lucky in one regard. Harriett was the slave of Major Lawrence Taliaferro, the U.S. Indian Agent for the Upper Mississippi River who spent much of his federal career at Fort Snelling, Minn., and other outposts in what was then the Northwest Territories and the Louisiana Purchase.

Taliaferro, who was born in Virginia and lived in Bedford, Pa., before being posted to the Territories, was an inveterate chronicler of his life, writing journals and faithfully corresponding with family, friends, and his government superiors.

Using Taliaferro's records as well as trips to the former federal forts and the National Archives, VanderVelde and her team were able to recreate the outline of Harriett Scott's life:

Harriett Robinson may have been born in Virginia, but likely spent a good deal of her early life in Pennsylvania. She arrived at Fort Snelling with Taliaferro between the mid-1820s and 1835. She married Dred Scott when she was 17 years old (he was about 40) in a ceremony presided over by Taliaferro. The couple, working for Dr. John Emerson, left for Fort Jesup, La., in 1838, but returned later that year to Fort Snelling, where they lived until 1840. They then moved to St. Louis with Emerson.

When Emerson died in 1843, Mrs. Emerson returned to Massachusetts, leaving the Scotts in partial control of her brother-in-law in St. Louis. He hired them out to Samuel Russell in March, 1846, the year the lawsuit began.

By 1846, Dred Scott, afflicted with tuberculosis, was past the age of 50, a relatively old man by the standards of the day, particularly for a slave. Harriett Scott was younger than 30 with two adolescent girls who depended on her.

"Dred is nearing the end of his working life, which makes it less likely that he would want to sue for his freedom, unless the objective was securing freedom for his daughters," Vandervelde says.

The outline of the family's history raises interesting legal questions. First, the research points to evidence of widespread slavery in supposedly free territories. Slavery was illegal in the Louisiana Purchase and the Northwest Territories north of Missouri, yet the federal outposts included communities of slaves who were brought to the territories as slaves and remained there for several years, or who were bought in St. Louis or other slave markets expressly for the purpose of working in the territories.

In addition, the family's history calls into question the nature of marriage among slaves. Marriage and slavery were always seen as incompatible, both culturally and legally. In the North, when a slave married a free person, the slave became free; in the South, when a slave married a free person-if it was allowed at all-the free person became a slave. Marriage was recognized by slaveholders as socially beneficial since it was seen as giving slaves a sense that they had a "family." But most marriages were cultural, rather than civil, ceremonies.

But the biggest question is the role women play-or are forgotten to have played-in legal history.

Using her research, VanderVelde is convinced that Harriett Robinson Scott initiated the original lawsuit, but because of legal rules of coveture and because Harriett's lawyer left Missouri, Harriett's lawsuit was folded into Dred's as it passed through the Missouri court system.

"This is an example of how married women, in order to sue, had to sue through their husbands," Vandervelde says. "This suggests that a lot of the law from the 19th century may have been instigated by married women, but the formal party is the husband."

VanderVelde argues that Harriett had the stronger case for freedom:

• Harriett Scott would have been at least 28 years old in 1846, which, according to Pennsylvania laws of manumission, would have made her a free woman. 
• She was "given" to Dred in a marriage that followed the traditional civil ceremony of the day and that was presided over by one of the highest civil authorities in the Northwest Territories, an indication that Taliaferro knew he was freeing her. 
• She likely knew the lawyer who brought her case through Taliaferro (the two grew up in the same area of Pennsylvania) and through her church. 
• She had been friends with, or at least acquainted with, a slave named "Rachel" while at Fort Snelling. Rachel had been returned to St. Louis and successfully sued for her freedom on the grounds that she had resided in free territory. 
• Perhaps most importantly, Harriett had the most to lose. As the primary caretaker for her family, she worried that her growing daughters would be taken from her and sold to other slaveowners.

"The valuable work life at stake is really the working lives of Harriett and her daughters in the composition of this family," she says.

After filing their lawsuits, Harriett, Dred, Eliza, and Lizzie Scott spent the next 11 years in the "eye of the hurricane," as their case wended through the Missouri court system, the federal system, and then to the U.S. Supreme Court.

The court's decision further divided the nation along abolitionist and pro-slavery lines, escalating enmities that would lead to the Civil War seven years later.

The Scotts, still in St. Louis, were freed by their then-owners shortly after the case was decided. Dred died a year later, in 1858, and his grave is marked in a St. Louis cemetery. Harriett worked as a washer woman for several years, but otherwise disappeared.

Her gravesite is unknown.

VanderVelde admits her research raises interesting questions about American history.

"This case was based on family dynamics rather than on a sole man championing his abstract right to freedom," Vandervelde says.

More fundamentally, the new research forces a reevaluation of the roles women and families play in history.

According to Vandervelde, the question is not whether history would be different if Harriett Robinson Scott had been the primary plaintiff.

Rather, it's a question of honoring the memory of people who were willing to stand up for their families but are rarely recognized.

"What if this woman had never sued at all?" Vandervelde asks. "I don't think Dred would have sued. Once their case gets brought, it becomes something that is out of their hands. It becomes a political football.

"It was Harriett's and Dred's lives on which history was written," she says. "If Harriett hadn't chosen to sue, all of history might have been different."

by Scott Hauser