CHASE, SALMON P. (1808–1873)

Born in New Hampshire, Salmon Portland Chase enjoyed an elite education as a private pupil of his uncle, Episcopal Bishop Philander Chase of Ohio, as a Dartmouth student (graduating 1826), and as an apprentice lawyer (1827–1830) to United States Attorney General william wirt. Subsequently, Chase rose quickly as a Cincinnati attorney, beginning also his numerous, seemingly opportunistic, successive changes in political party affiliations. Abandoning Whig, then Democratic ties, Chase became in turn a member of the Liberty party and of the Republican organizations, winning elections to the United States Senate (1848–1855, 1860–1861), and to Ohio's governorship (1856–1860). He was an unsuccessful candidate for the Republican presidential nomination in 1860. abraham lincoln appointed Chase secretary of the treasury (1861–1864), and Chief Justice of the United States (1864–1873). Yet in 1864 Chase tried to thwart Lincoln's second term, in 1868 he maneuvered for the Democratic presidential nomination, and in 1872 he participated in the "Liberal Republican" schism against ulysses s. grant.

Such oscillations reflected more than Chase's large personal ambitions. Constitutional, legal, and moral concerns gave his public life coherence and purpose. These concerns derived from Chase's early conviction that men and society were easily corrupted, that slavery was America's primary spoiling agent, and that political corruption was a close second. Although Chase, observing Wirt in the Antelope litigation (1825), found the doctrine in somerset ' s case (1772) an acceptable reconciliation of slavery and the Constitution as of that year, later events, especially those attending fugitive slave recaptures, unpunished assaults on abolitionists, and increases in slave areas due especially to the Mexican War and the treaties that closed it off, brought him to accept abolitionist constitutional theory. Chase concluded that slavery's expansion beyond existing limits would demoralize white labor.

The first steps on this ultimately abolitionist road came from Chase's association with and brave defenses of Ohio antislavery activists, including james birney, and of fugitive slaves; such defenses won Chase the nickname "attorney general for runaway negroes." A merely opportunistic Cincinnati lawyer would have had easier routes to success than this. Defending runaways and their abettors, Chase abjured higher law pleadings popular among abolitionists; he focused instead on technical procedures and on a carefully developed restatement of state-centered federalism in which he insisted that nonslave jurisdictions also enjoyed states ' rights. Slave states were able to export their recapture laws into free states via the federal fugitive slavery statutes. Chase argued that residents of free states also deserved to have the laws of their states concerning the status of citizens enjoy reciprocal effect and respect within slavery jurisdictions. Such a traffic of free state laws and customs across the federal system was impossible (and was to remain so until Appomattox). Chase insisted that residents of free states possessed at least the right to protect their co-residents of any race within those states from being reduced to servitude without due process.

Chase's evolving ideas culminated in a "freedom national" position, a general program for resolving the dilemma that slavery posed to a federal society based on assumptions of legal remedies, civil rights, and civil liberties. In his thinking, free labor was more than a marketplace phenomenon. It was a moral imperative, a complex of ethical relationships that the nation, under the Constitution, must nurture. Reformed, corruption-free two-party politics, with even blacks voting, was the way Chase discerned finally to nationalize freedom, a nationalization based upon acceptance of the declaration of independence and the bill of rights as minimum definitions of the nation's interest in private rights adversely affected by state wrongs or private inequities.

The civil war and the wartime and post-Appomattox reconstruction of the southern states were the contexts in which Chase refined his thinking about individuals' rights and the nation's duty to protect them. Lincoln found a place in his cabinet for every one of the major competitors for the Republican presidential nomination in 1860, and Chase became secretary of the treasury. Once the war started, Chase had responsibility to provide an adequate circulating medium for the suddenly ballooning marketplace needs of the government, of the banking and commercial communities of the Union states, and of the millions of urban and rural entrepreneurs who rushed to expand production. Chase helped key congressmen to shape the historic wartime laws on national banking, income taxation, and legal tender (the legitimacy of the last of which Chase himself was to question as Chief Justice, in the legal tender cases).

The most outspoken abolitionist in Lincoln's cabinet, Chase also carved out a role for Treasury officials, who were responsible for administering rebels' confiscated property, in the Army's coastal experiments for abandoned, runaway, or otherwise freed blacks. He applauded the confiscation acts, the emancipation proclamation, the major elements in Lincoln's military reconstruction, the freedmen ' sbureau statute, and the thirteenth amendment. Upon roger b. taney's death in late 1864, Lincoln, well aware of Chase's antipathy to the decision in dred scott v. sandford (1857) and his commitment to irreversible emancipation, both of which the President shared, named the Ohioan to be Chief Justice.

After Appomattox, Chase, for his first years as Chief Justice, found that the work of the Court was almost exclusively with white men's rights rather than with the momentous, race-centered public questions that faced the Congress and the new President, andrew johnson. On circuit, however, Chase's In re Turner opinion sustained broadly, in favor of a black female claimant, the provisions of the 1866 civil rights act for enforcing the Thirteenth Amendment. In his opinion, Chase insisted that federal rights against servitude were defendable in national courts as against both state or private action or inaction, and he emphasized that a state's standard of right could serve as an adequate federal standard so long as the state did not discriminate racially.

Some contemporaries applauded In re Turner as an articulation of the new, nationalized federal system of rights that the Thirteenth Amendment appeared to have won. Chase's other circuit opinions did not, therefore, disturb race egalitarians, and generally won favor in professional legal and commercial media. These opinions dealt with numerous litigations concerning private relationships such as marriage licenses, trusts and inheritances, business contracts, and insurance policies made under rebel state dispensation. Chase recognized the validity of these legal arrangements. His decisions helped greatly to stabilize commerce and family relationships in the South.

The course of post-Appomattox Reconstruction as controlled both by President Johnson and by Congress, troubled Chase deeply. He knew, from his work in Lincoln's cabinet, how narrowly the Union had escaped defeat and tended, therefore, to sustain wartime measures. Yet he revered both the checks and balances of the national government and the state-centered qualities of the federal system reflected in the Constitution. Therefore, in ex parte milligan (1866), Chase, still new on the Court, joined in the unanimous statement that Milligan, who had been tried by a military court, should preferably have been prosecuted in a civilian court for his offenses. But Chase, with three other Justices, dissented from the majority's sweeping condemnation of any federal military authority over civilians in a nonseceded state. The dissenters insisted instead that Congress possessed adequate war power to authorize military courts.

Chase again dissented from the 5–4 decision in the test oath cases (1867). Though privately detesting oath tests, Chase held to a public position that legislators, not judges, bore the responsibility to prescribe professional qualifications and licensing standards. By this time Congress had decided on Military Reconstruction. Mississippi officials, appointed earlier by Johnson, asked the Court for an injunction against the President's enforcing Congress's reconstruction law, and for a ruling that it was unconstitutional. For an unanimous Court, Chase refused to honor the petition (mississippi v. johnson, 1867), relying on the political question doctrine. He agreed with his colleagues also in Georgia v. Stanton (1867) in refusing to allow the Court to intrude into political questions involving enforcement of the Reconstruction statutes. Mississippians again tried to enlist the Court against Congress. In early 1868 ex parte mccardle raised Milligan -like issues of military trials of civilians, and of the Court's jurisdiction to hear such matters under the habeas corpus act of 1867. Congress thereupon diminished the Court's appellate jurisdiction under that statute. Chase, for the Court, acquiesced in the diminution, though pointing out that all other habeas jurisdiction remained in the Court.

He supported Congress's Military Reconstruction as a statutory base for both state restorations and black suffrage, but he was offended by the Third Reconstruction Act (July 1867), providing that military decisions would control civil judgments in the South. The impeachment of Andrew Johnson, with Chase presiding over the Senate trial, seemed to threaten the destruction of tripartite checks and balances. Chase drifted back toward his old Democratic states' rights position, a drift signaled by his advocacy of universal amnesty for ex-rebels and universal suffrage. He had tried, unsuccessfully, to have the fourteenth amendment provide for both. His enhanced or renewed respect for states' rights was evident in United States v. DeWitt (1869), in which the Court declared a federal law forbidding the transit or sale of dangerous naphtha-adulterated kerosene, to be an excessive diminution of state police powers.

This decision, the first in which the Court denied Congress a capacity to act for regulatory purposes under the commerce clause, like the decisions on Reconstruction issues, suggests how far the chase court engaged in judicial activism. Striking in this regard were the Legal Tender Cases. The first of these, Hepburn v. Griswold (1870), resulted in a 4–3 decision that the 1862 law authorizing greenbacks as legal tender was invalid as applied to contracts made before passage of the statute. Chase, for the thin majority, insisted that the statute violated the Fifth Amendment's due process clause, concluding that the spirit of the contract clause, though by its terms restraining only the states, applied also to the federal government. The trio of dissenters—all, like Chase, Republican appointees—saw the money and war powers as adequate authority for the statute.

Then, later in 1870, President ulysses s. grant named two new Justices to the Court: joseph p. bradley and william strong. The new appointees created, in Knox v. Lee (1871), the second Legal Tender Case decision, a majority that overruled Hepburn. The new majority now upheld the nation's authority to make paper money legal tender for contracts entered into either before or after enactment of the statute, an authority not pinned necessarily to the war power.

Chase was in the minority in the slaughterhouse cases (1873) in which the majority found no violation of the Thirteenth or Fourteenth Amendments in a state's assignment of a skilled-trade monopoly to private parties. The doctrine of Slaughterhouse, that the privileges of United States citizenship did not protect basic civil rights, signaled a sharp retreat from Chase's own In Re Turner position, and was a fateful step by the Court toward what was to become a general retreat from Reconstruction.

Slaughterhouse, along with Chase's anti-Grant position in 1872, closed off Chase's long and tumultuous career; he died in 1873. His career was consistent in its anticorruption positions and in its infusions of moral and ethical ideas into constitutional, legal, and political issues. Party-jumping was incidental to Chase's ends of a moral democracy, federally arranged in a perpetual union of perpetual states; he gave this concept effective expression in texas v. white (1869).

To be sure, neither Chase nor "his" Court created novel legal doctrines. But he, and it, helped greatly to reclaim for the Court a significant role in determining the limits of certain vital public policies, both national and state. In the tumults of Reconstruction, while avoiding unwinnable clashes with Congress, Chase bravely insisted that effective governmental power and individual rights could co-exist. He and his fellow Justices advanced novel constitutional doctrines drawn from the prohibitions against ex post facto laws and bills of attainder, and from the commerce and money powers. In retrospect, such experiments with doctrine take on the quality of interim defenses of judicial authority between prewar reliance on the contract clause, as example, and the post-Chase development of the due process clause of the Fourteenth Amendment.

At the same time, Chase tried to focus the Court's attention on individuals' rights as redefined first by the Thirteenth and then by the Fourteenth Amendment, as against both private and public wrongs. As one who for years had observed at first hand the capacity of nation and states and private persons to wrong individuals, Chase, as Chief Justice, brought a particular sense of urgency to the goal fo protecting individual rights. He failed to convert a majority of his brethren to this task. Instead, America deferred its constitutional commitments.

(See constitutional history, 1865–1877.)

Harold M. Hyman
(1986)

Bibliography

Fairman, Charles 1971 History of the Supreme Court of the United States: Reconstruction and Reunion, 1864–1888. New York: Macmillan.

Hughes, David 1965 Salmon P. Chase: Chief Justice. Vanderbilt Law Review 18:569–614.

Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. Chaps. 11–13. New York: Harper & Row.

Walker, Peter F. 1978 Moral Choices. Chaps. 13–14. Baton Rouge: Louisiana State University Press.