I first encountered the 1857 Dred Scott decision in a high school textbook as a blip in a chapter about a series of events that precipitated the United States Civil War. I’d learned that Scott was a slave who had lived with his master in the free state of Illinois and the free territory of Wisconsin and who, upon return to the slaveholding state of Missouri, had unsuccessfully appealed to the Supreme Court for his freedom. I had no idea that the landmark case hinged on whether Scott’s civilly recognized marriage conferred upon him other inalienable legal rights as a person.
As I’d been taught it, Scott’s prior residence in places where slavery was illegal had been lain out in court as grounds for his emancipation. When Chief Justice Roger Taney wrote out his ruling against Scott’s freedom, it was on the premise that blacks had ‘no rights which the white man is bound to respect.’ With Scott held up as an example, Taney declared that, yes, a slave could absolutely be taken into non-slaveholding territories and, no, a Black American could never be considered a free US citizen. As I learned in high school, the Dred Scott decision is now broadly recognized as one of the chief catalysts for the American Civil War, and it is retold today primarily from that perspective. But it is also equally a story of the legal implications of family-making for Black people in the US during and after slavery, specifically with regard to marriage, if seldom presented as one.
Sometime in 1837, or possibly 1838, in Fort Snelling, Wisconsin Territory, the marriage of Harriet Robinson and Dred Scott was presided over by US Army Major Lawrence Taliaferro. As an Indian agent assigned to the fortification, Taliaferro mediated relations between American Fur Company traders and the Ojibwa and Dakota peoples who lived in and around the settlement, brokering treaties to further US government interests in westward expansion. Taliaferro served as Justice of the Peace within the outpost and, as a member of the Presbyterian Church in an area without a designated priest or chaplain, oversaw the Robinson-Scott wedding vested in the powers of both Church and state.
Harriet Robinson was Taliaferro’s slave, despite living north of the Mason-Dixon line in a territory where slavery was not technically legal. Though the purchase and sale of slave chattel was prohibited outside of the designated slave-holding southern states by 1804, the Army tolerated slavery in and around its fortifications, including those in the north.
Scott was enslaved by the army surgeon Dr. John Emerson, who assumed ownership of both Dred and Harriet after the wedding. Emerson’s army duties required that he switch posts frequently, and it wasn’t long after the ceremony that the doctor would be called to relocate to the Jefferson Barracks Military Post near St. Louis, at which point he left the Scotts behind to live something resembling a free life as a family. It would be short-lived.
In early 1838, during his travels, Emerson met and married Eliza (Irene) Sanford at Fort Jesup in Louisiana, and sent for Dred and Harriet to join them. Over the next two years the Emersons, with the growing Scott family in tow, would bounce from Fort Jesup back up to Fort Snelling, then to St. Louis.
Then in 1842, Dr. and Mrs. Emerson left St. Louis for Florida, where John was to fight in the Second Seminole War – more accurately, a guerrilla rebellion on the part of Seminoles in Florida, and a number of Black allies, in the face of US government efforts to push them west. It’s likely the Emersons left Dred, Harriet, and their two young daughters behind in Missouri; slaveholders were discouraged from bringing their slaves to the Florida front, out of a widely held concern that slaves would be sympathetic to the Seminole resistance. During this time, in the absence of their slaveholders, the Scotts would again have lived a family life that hinted at freedom.
Four years later, emboldened by the abolitionist preacher at Harriet Scott’s church, Dred and Harriet each individually filed suits against their mistress, Irene Emerson, in the St. Louis County Circuit Court, to petition for their freedom. Their legal case hinged on the argument that a state-sanctioned marriage, performed in a territory that did not recognize slavery, conferred free status upon both parties that could not be revoked. Their suits merged and made it to the US Supreme Court, which, in 1857, ruled against the Scotts in a decision that sent shockwaves across the Union.
Legal scholars have since considered whether the case would have ended differently if Harriet, and not Dred, had been the plaintiff. Harriet had lived in free territory for longer, a free person in the eyes of the law even if that was not reflected in the reality of her situation. In a fascinating (and retrospectively heartbreaking) 1997 case study for the Yale Journal of Law, authors Lea VanderVelde and Sandhya Subramanian propose that Harriet had the stronger case; in ‘giving’ Harriet to marriage and presiding over its attendant civil ceremony as Justice of the Peace, Major Taliaferro was granting Harriet her freedom. By extension, as her legally recognized husband, Dred would be free as well. A legally married slave was effectively a contradiction in terms.
For both free and enslaved Blacks in the American Antebellum period, the systemic suppression of both basic humanity and free will rendered the bond of partnership precarious at best. In law and in practice, freedom was a transient state that a Black person living either in or outside of the South might enter and leave throughout the course of their life. One generation of free people did not guarantee the next. And yet, despite the constant threat of separation and intergenerational upheaval, marriage was observed among slaves and free Blacks alike. Or, at least, a version of marriage.
By and large, the law didn’t recognize marriage between slaves, because the law didn’t recognize slaves as people. But over the course of the Antebellum period, some jurisdictions adopted stances on slave marriage that could be construed (and, at the time, likely were) as marginally less inhumane than the status quo. An 1819 Louisiana ruling granted slaves the right to so-called ‘moral marriage’ upon a master’s consent, which would become a fully recognized civil marriage in the event of emancipation. The State of Tennessee similarly acknowledged de facto slave marriages, which could be created and ended at the whim of the couple’s master or masters – an amendment that state lawmakers felt would ‘ameliorate the condition of the slave.’ But such case-specific provisions didn’t change the fact that enslaved southerners of African descent were chattel, devoid of civil rights and the basic certainties enjoyed by free people. And besides, enslaved Blacks didn’t own property that marriage would protect; rather, the logic went, they were property, so why bother?
But despite what was and wasn’t legal, many slave owners allowed – and even encouraged – informal slave marriages. Likely unsurprising to modern readers, slave owners’ permissiveness was influenced less by altruism than sheer economic self-interest. Enslaved husbands took care to help provide for their wives and families by whatever means available, whether hunting, fishing, or selling handmade goods. Wives, in turn, helped to mend and maintain the family’s clothing and perhaps tend gardens for supplemental produce. The increased interdependency that slave marriage facilitated eased, for slave owners, the material burden of feeding and clothing their captive workforce.
Marriage also fit neatly into slaveholders’ efforts to Christianize their slaves, a trend that echoes so many historical narratives of domination and conquest. As with the centuries of Western European colonizers (and their descendants) who have turned to religion as a means of rationalizing brutality and theft against Indigenous peoples’ land, property, and lives, southern men of the cloth torqued scripture to defend the institution of slavery.
In 1850, the Baptist minister Thornton Stringfellow reasoned that slavery had bestowed upon millions of Blacks ‘the range of Gospel influence,’ without which they would have otherwise ‘sunk down to eternal ruin.’ Slavery, according to this reasoning, was actually a gift of eternal salvation disguised as barbarism. By encouraging informal Christian marriage between slaves, slaveholders reaped the incidental benefit of maintaining control over slaves’ reproductive lives, ultimately multiplying their captive workforce. Slaves, meanwhile, didn’t necessarily have a choice in who they would end up marrying.
Likewise, slaveholders had the power to separate families at will – and, all too frequently, they exercised it. Henry ‘Box’ Brown, who gained his nickname (and his freedom) by mailing himself from Richmond, Virginia, to Philadelphia in 1849, would later write: ‘[N]o slave husband has any certainty whatever of being able to retain his wife a single hour; neither has any wife any more certainty of her husband; their fondest affection may be utterly disregarded, and their devoted attachment cruelly ignored at any moment a brutal slave-holder may think fit.’
In the absence of personal liberty, Christian marriage – even if not legally upheld – may have provided some loose semblance of social capital within the confines of white, slave-owning society. As historian Tera W. Hunter writes, ‘Membership in the Christian church affirmed community recognition of their bonds, provided a forum for airing and resolving disputes, and could potentially lead masters to think twice about spousal separations that were neither honorable nor obedient to the Christian spirit.’
Of course, the sheer existence of a slave economy makes clear that, legally and in practice, monetary self-interest had a nagging tendency to trump considerations of ‘the Christian spirit’ among the many who benefited from the material fruits of forced labour. Nonetheless, abolitionists appealed to the God-fearing sensibilities of slaveholding society by citing the callous separation of slave families as a damning strike against the institution. In an oft-cited 1858 address to the American Abolition Society, the Presbyterian minister George B. Cheever bellowed that ‘for those most miserable outcasts of humanity, the American slaves,’ the ‘divine injunction’ that husbands love their wives had been perverted, by slave owners, in the name of profit. ‘[Slave husbands] are not permitted to love,’ said Cheever, ‘but only in subjection to the price of the market, the necessities of [their] master, and the grand rule of [their] domestic institution, the slave and its increase.’
Ultimately, Cheever was right: whether or not everyone at the time could recognize the inherent inhumanity of slavery as an institution, slaveholders’ concretely un-Christian treatment of slave families was tough to refute. In turn, Hunter writes that the Church contorted itself to reconcile the biblical hypocrisies that riddled its pro-slavery position. Certain Church concessions around slave marriage flew in the face of both civil and scriptural law, ironically affording slaves an unusual degree of leniency in some aspects of formal partnership. For instance, divorce was theoretically easier to obtain by slave couples than by free members of society (though it’s worth repeating that such marriages were never civilly affirmed in the first place); the same is true of remarriage. That these minor potential freedoms were a function of the overall lack of control slaves had over their own family lives rendered their execution, as expressions of individual human will, effectively moot in the eyes of the lawmakers.
The records suggest that divorce was not a significant part of the family experience of slaves. Family separation resulting from the purchase and exchange of slaves, however, was. An estimated one-third of marriages between slaves born in slave-selling states were ripped apart by the interstate slave trade, which also separated one out of five enslaved children from one or both parents. Some one million more slaves were hired out on long-term contracts, swapped, or redistributed within slave-owning families onto different plantations.
It was common in the wake of a slaveholder’s death for slaves to be divided among heirs; in the event of a wedding, slaves might be given as gifts. It was up to white slave-holding families to determine who would stay and who would go. In his lifetime, Henry ‘Box’ Brown would experience both forms of forced separation. By age fifteen, Brown’s own brothers and sisters would be counted among the assets scattered away from the plantation they all had lived on, as a family, upon their master’s death. Later, Brown would see his wife and three children taken to the auction block, purchased, and sent away – he has left a record of his memory of walking alongside the cart that carried them to their uncertain destination, holding, for several miles, the hand of his wife.
‘[B]oth our hearts were so overpowered with feeling that we could say nothing,’ Brown later wrote, ‘and when at last we were obliged to part, the look of mutual love which we exchange was all the token which we could give each other that we should yet meet in heaven.’
When Brown made the choice to build a family, he knew what he was likely getting himself into. He married anyway, pledging to do anything in his power to keep his brood together. He obtained his (purportedly Christian) master’s blessing before marrying his wife, Nancy, and she the same of hers; later, when Nancy and their children had been sold to a different master, Brown negotiated a payment plan to purchase his family’s freedom. In a callous act of betrayal, it was the same master who had collected Brown’s incremental payments who turned around and sold the family off. Brown, despondent, plotted his escape from bondage – a final desperate grasp toward some semblance of human agency.
Agency was what propelled slave families forward. In spite of the persistent existential threat faced by slave couples, a majority of slave marriages survived both the whims of the couple’s masters and of each partner’s own hearts. Within the confines of a society that treated them as less than human, the family was where slaves grew and shared a culture of their own. Cultivating a marriage-based kinship under slavery was rebellion: a claim to humanity, an assertion of love.
It was also, in its bleak way, a privilege. Shirley A. Hill and other scholars have pointed out that the meticulous property records from large plantations might give a misleading idea of what constituted a ‘normal’ family life under slavery. Most slaves did not live on large plantations, and many did not live within close enough proximity to other slaveholding properties to form cross-plantation relationships. Because large plantations were a mark of wealth (hence, their rarity), slaves living on smaller plantations were likelier to be sold in moments of financial hardship, Hill writes. On small plantations, master-slave sexual relationships, early childbearing, and single-mother families were also far more common.
And while a prominent historical narrative emphasizes the efforts made by slave couples to reunite post-emancipation, Hill points out that the diversity of slave family experience, on account of economic difference, produced differing outcomes. Hill cites Lalita Tademy’s Cane River, which uncovers that author’s own family history, as evidence: ‘Once slavery ended they scrambled to reunite their families, but not necessarily their marriages.’ Nancy and Henry ‘Box’ Brown were damned; they were also, in the context of an institution that damned generations, perversely lucky to be able to choose, if fleetingly, each other.
In 1850, because life is nothing if not full of surprises, Irene Emerson – the widow of the Scotts’ master – moved to Massachusetts and married known abolitionist and congressman Calvin C. Chaffee. As you might expect, the Supreme Court decision against Dred Scott wasn’t exactly a boon to the Chaffee couple’s reputation. The Chaffees transferred the Scott family to the son of Dred’s former owner, who then filed manumission papers to free the Scott family on May 26, 1857. Dred Scott died a year and a half later, of tuberculosis. Harriet lived nearly two decades longer, and died in 1876. Some of their descendants are reported to live in St. Louis to this day.