Senator Stephen A. Douglas of Illinois introduced legislation to organize the Territories of Kansas and Nebraska. As finally passed, the Kansas-Nebraska Act specifically repealed the Missouri Compromise and, applying the popular sovereignty principle of the 1850 Compromise, permitted the newly organized Territories to determine whether they would be free or slave." The Supreme Court was shortly to find that the Congress, which had adopted a doctrine of nonintervention in the Territories, lacked constitutional authority to determine whether a Territory would be free or slave."

The fundamental question presented in the Dred Scott case was that of the legal status of slaves who had lived in free territory and subsequently returned to the State of their original owners. Actually this had been decided six years earlier in Strader v. Graham.50 The Court had ruled that the Negro's status depended entirely on the law of his State of current residence. Thus, if the laws of the State to which he returned still considered him a slave, a slave he was. But what created the interest in Dred Scott was the presentation of the question of the constitutionality of the Missouri Compromise of 1820.

Scott had lived in the free State of Illinois and the Territory of Minnesota and claimed that this residence entitled him to freedom in Missouri, the State to which he subsequently returned. According to one constitutional historian the Court, by confining itself to the Strader doctrine, could have settled the matter without provoking great controversy.51

Scott sued for his freedom in a Federal court under the provision of the Constitution giving Federal courts jurisdiction to hear suits between "Citizens of different States."

48 Simkins, op. cit. supra note 13, at 196-97.

49 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

The first issue to be decided in his case was whether Scott was a citizen in this constitutional sense. The Constitution, as it stood in 1857, had no provision defining citizenship, State or Federal, for any purpose. Second, if Scott was a citizen and therefore had properly brought his suit in a Federal court, the court would then have to determine whether he was free or slave by following the Strader rule or by creating a new rule. These issues were argued before the Court in 1856. Reargument was ordered to avoid rendering an opinion relating to the controversial issue of the Missouri Compromise until after the Presidential election of 1856. The long awaited decision came in 1857.

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The Court actually disposed of the case by holding that Scott as a Negro could not be a citizen as the meaning of the word was understood by the framers of the Constitution."2 Chief Justice Taney wrote that "for more than a century" prior to the adoption of the Constitution the Negro had been regarded as inferior and "had no rights which the white man was bound to respect. This historical judgment was of course not the holding of the case and consequently was not, from a technical standpoint, a statement of law. Nonetheless, Taney's assertion symbolized in the public mind what the Supreme Court had said and done. Typical of the reaction was the editorial comment of the New York Tribune. This opinion, said the Tribune, "will be found to exhibit all the characteristics that have marked his [Taney's] career. It is subtle, ingenious, sophistical, and false. It is the plea of a tricky lawyer and not the decree of an upright judge.

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Of these and similar remarks, one Supreme Court historian comments: "Such ridicule and abuse, published and republished and quoted by other newspapers throughout the Northern States, could not fail to weaken the Court's status

52 Dred Scott v. Sandford, supra note 49, at 406.

58 Id. at 407.

4 New York Tribune, Mar. 17, 1857, p. 5.

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with the people." Moreover, Taney's assertion that the Missouri Compromise was unconstitutional became the tragic prologue for the Civil War.

Emergence of Lincoln

While the slaveholding interests welcomed the Dred Scott decision, disapproval was vocal and active among antislavery elements. Among the Court's critics was an Illinois lawyer, Abraham Lincoln, who declared, in June 1857, that the decision was unsound, that the Court had often overruled its decisions in the past and that "we shall do what we can to have it to over-rule this." 56

The following year Lincoln contested with Stephen A. Douglas for election to the United States Senate from the politically pivotal State of Illinois. Their campaign gave rise to the famous Lincoln-Douglas debates in which slavery was the most prominent issue. The interest of the entire country centered on these debates which saw an eloquent Democratic Senator with aspirations to the Presidency pitted against a rising spokesman of the new Republican Party. Lincoln's position was that the Republic could not exist forever divided into free and slave States and that slavery must be accepted everywhere or done away with entirely." Lincoln lost the election but his party captured the congressional elections of that year. Both Lincoln and Douglas gained national stature and momentum toward their Presidential candidacies in 1860.

55

56

2 Warren, op. cit. supra note 42, at 319.

2 Basler, The Collected Works of Abraham Lincoln 401 (1953). 57 See, e.g., 3 id. at 117. During Lincoln's term in the House of Representatives in 1848, he introduced a bill providing that no person from without the District should be held to slavery and all children of slaves subsequently born in the District of Columbia would be free and authorized compensation for their owners. Cong. Globe, 30th Cong., 2d Sess. 212 (1848).

In 1860, the Republican Party adopted a pragmatic slavery platform taking a position against the further extension of slavery into the Western Territories but also adopting a policy of no interference with the institution of slavery in the States. Lincoln was nominated on the third ballot and went on to triumph in the November elections of that year.

The reaction of the slaveholding States to Lincoln's election was swift. On December 20, 1860, a convention summoned by the South Carolina Legislature met at Charleston and unanimously declared "that the Union now subsisting between South Carolina and other states under the name of "The United States of America' is hereby dissolved." 58 By the time of Lincoln's inauguration on March 4, 1861, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas had followed South Carolina into secession and the Confederate States of America had been formed. The new President's inaugural address contained the following conciliatory passage on the burning slavery issue: 5

59

I have no purpose, directly or indirectly, to interfere
with the institution of slavery, in the states where it
now exists. I believe I have no lawful right to do so,
and I have no inclination to do so.

But just one month later the sectional differences erupted into civil war. During the early months of the war, Lincoln was repeatedly urged to abolish slavery in the rebellious States. On several occasions Congress attempted to act, but the bills failed to pass.

Soon, however, the events of the war served as a catalyst for action toward emancipation. One of the first steps was the Confiscation Act of August 6, 1861, declaring that when slaves were used in the military service of those in rebellion,

58 Journal of the Convention of the People of South Carolina, Held in 1860, 1861 and 1862, ch. 8, vol. 283, at 42-43 (1862).

597 Richardson, op. cit. supra note 47, at 3206.

61

60

the claims of the owners to such slaves were forfeited." In April 1862, Congress passed the District of Columbia Emancipation Act 1 containing the features favored by Lincoln. The act provided for gradual emancipation with compensation to slaveowners. The act also authorized the appropriation of funds for colonization of the gradually freed slaves. In July, Congress provided that slaves taking refuge within the lines of the Union Army and those deserted by the rebels were to be declared free.62

By this time, many northerners had grown impatient with the President's apparent inaction and Horace Greeley addressed "The Prayer of Twenty Millions" to Lincoln informing him that "what an immense majority of the loyal millions of your countrymen require of you, is a frank declared, unqualified, ungrudging execution of the law of the land." 63 The President replied:

64

My paramount objective in this struggle is to save the
Union, and not either to save or destroy slavery. If
I could save the Union without freeing any slave,
I would do it, and if I could save it by freeing all the
slaves, I would do it; and if I could do it by freeing
some and leaving others alone I would also do that.
What I do about slavery, and the colored race, I do
because I believe it helps to save the Union; and
what I forbear, I forbear because I do not believe it
would help to save the Union.

60 Act of Aug. 6, 1861, 12 Stat. 319.

61 Act of Apr. 16, 1862, 12 Stat. 376. Congress also passed a law appropriating funds to effectuate the emancipation. Act of July 16, 1862, 12 Stat. 582.

62 Act of July 16, 1862, 12 Stat. 589, 591.

63 2 Greeley, The American Conflict: A History of the Great Rebellion in the United States of America 1860-64, at 249–50 (1886).