From antislavery lawyer to chief justice: the remarkable but forgotten career of Salmon P. Chase.

• Author: Barnett, Randy E.
• Position: II. The Chief Justiceship of Salmon P. Chase through Conclusion, with footnotes, p. 676-702

2. THE CHIEF JUSTICESHIP OF SALMON P. CHASE

   1. Chase's Duties as Chief Justice

      On March 4, 1864, Chief Justice of the United States, Salmon P. Chase, administered the oath of office to his political rival Abraham Lincoln, inaugurating Lincoln's second term. The evening before, Chase was visited in his Sixth Street home by the radical abolitionist orator, and future U.S. Marshall of the District of Columbia, Frederick Douglass. Douglass recalled helping Chase's dynamic daughter Kate "in placing over her honored father's shoulders the new robe then being made in which he was to administer the oath to the reelected President." (122) Douglass recalled the "early anti-slavery days" of their first meeting, when Chase had "welcomed [Douglass] to his home and Iris table when to do so was a strange thing." (123)

      Douglass's faith in Chase was not to be disappointed. Chase readily agreed to the proposal by his friend Charles Sumner that Massachusetts attorney John Rock be admitted to the Supreme Court bar. The previous year, Rock, a black, had been denied admission by the Taney Court on the basis of his race. Now, upon Sumner's formal motion, Rock was sworn in as the first black lawyer admitted to the Supreme Court bar. Harper's Weekly observed that this event represented an "extraordinary reversal" of Dred Scott, and would "be regarded by the future historian as a remarkable indication of the revolution which is going on in the sentiment of a great people." (124)

      When Lincoln was murdered by the Maryland-born actor and Southern sympathizer John Wilkes Booth on April 14, 1865, Chief Justice Chase administered the oath of office to Vice President Andrew Johnson, a Democrat from Tennessee. Two years later, when Johnson was impeached by the Republican House of Representatives for resisting its efforts to "reconstruct" the South, Chase presided over his trial in the Senate.

      Without any precedent to guide him, the physically imposing Chase swept into the Senate chamber in his flowing judicial robes, dramatically dominating the scene. (125) Chase assumed control of the proceedings and insisted on them being administered as a judicial rather than a political tribunal. In part because of this, Johnson escaped conviction and removal from office by a single vote.

      Chase conducted Johnson's trial "in a manner that diminished public anxiety about a rigged judgment either way and so fended off possibly recrudescing mob violence." (126) But it also cost him political support among congressional Republicans. "[O]ld comrades of the antislavery crusade berated him for his scrupulously neutral conduct during the impeachment. His relative evenhandedness at the trial ... helped to kill his chances to be either party's 1868 presidential candidate ..." (127)

   2. Chase's Opinions on Reconstruction

      As Chief Justice, Chase had two opinions affecting Reconstruction that vindicated Lincoln's confidence in him. One, Texas v. White, is well known, though criticized. The other, In re Turner, a case he decided while riding circuit, is now forgotten. (128)

      1. In re Turner

         In re Turner (129) involved Elizabeth Turner, a "young person of color" in Maryland who was freed after the passage of its new Constitution. (130) After her emancipation, she and others were gathered by local authorities and pressed into apprenticeships, typically to their previous owners. The century-long fight by Southern Democrats to reimpose the subordination of the freed blacks after the abolition of slavery was just beginning. Turner's apprenticeship to her former master had been entered into by her mother on her behalf. After she came of age, Turner brought suit for her freedom.

         In 1867, Chase heard the case as a circuit court judge in the same courtroom in which Chief Justice Taney delivered his circuit court opinion in Ez Parte Merryrnan. (131) Turner's lawyer argued that Turner's apprenticeship contract, entered into by her mother, violated the Thirteenth Amendment and the Civil Rights Act of 1866.

         In a case of first impression, Chase agreed and issued a writ of habeas corpus for Turner. Chase ruled that the apprenticeship contract constituted involuntary servitude in violation of the Thirteenth Amendment. (132) He also ruled that, because it did not conform to Maryland regulations concerning indentures of whites, the indenture was also in violation of the Civil Rights Act. (133) He then went on to rule that the Civil Rights Act was constitutional under Congress's enforcement powers under the Thirteenth Amendment a then-controversial position, even among some Republicans in Congress. (134) Notably, his decision affirmed that a woman such as Turner was among those protected by both the Thirteenth Amendment and by the reference to "all persons" in the Civil Rights Act. As we will see, this assumption about the legal equality of women will reappear at the end of Chase's life.

         Harold Hyman tells us that Chase hoped that the Turner case would make it to the Supreme Court to provide a national platform on which "to clarify in concrete, workaday terms the ways that the Thirteenth Amendment and the Civil Rights Act had altered federalism."(135) To Chase, "even a black female juvenile who as a slave had almost no legal rights was [now] a national citizen, according to the Civil Rights Act,"(136) a proposition that was not completely accepted until the ratification of the Fourteenth Amendment. Chase believed that his Turner decision "resolved inarguably not only the issue of blacks' legal rights and status of both in the former slave states and throughout the nation but also of all Americans' basic civil rights."(137) According to Hyman, "Elizabeth Turner's situation caught Chase's conscience because slavery, though illegal, was regenerating under covert guises provided by states' black codes." (138)

         Turner never made it to the Supreme Court. But Chase's 1867 ruling protecting the citizenship rights of blacks, and other like actions, contributed to his failure to capture the Democratic presidential nomination in 1868. (139) Some Democrats hoped, with the antislavery activist Chase as its standard bearer, "the party could advertise itself as purged of Copperheadism, a reformed and penitent new party." (140) But "Chase and his supporters failed adequately to gauge the passion with which unregenerate Democrats viewed his antislavery past, wartime record, role in the Johnson impeachment, and postwar rulings on the legal status of emancipated blacks like Elizabeth Turner." (141) At the same time, his impartial conduct while presiding over Johnson's impeachment trial in the Senate in 1867 alienated him from some of his former radical Republican allies. (142)

         Whatever else can be said about Chase's presidential ambitions, he always expected the presidency on his terms, rather than deviate from his core principles to acquire his coveted prize. Perhaps this fact undercuts to some degree the harsh assessments of his character discussed below.

      2. Texas v. White

         In Texas v. Whitem the Court considered a claim by the provisional reconstruction government of Texas that United States bonds owned by Texas since 1850 had been illegally sold by the Confederate state legislature during the American Civil War. (144) The Court ruled that Texas had remained a state ever since it first joined the Union, despite its joining the Confederate States of America and its being under military rule at the time of the decision in the case. For this reason, the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null." (145)

         The case was politically tricky. By the time the suit was filed, Republicans in Congress were opposing President Johnson's reconstruction policy of extending swift recognition of southern state governments upon their ratification of the Thirteenth Amendment. Some Republicans began to abandon the position adopted by Lincoln and others that the states had never left the Union. Instead, they considered the South as legally similar to conquered provinces over which they could exercise the same authority as they had to regulate territories. On this theory, the Supreme Court should reject jurisdiction in the case because Texas, as yet, had no legally recognized government.

         Conversely, Democrats wanted the Court to acknowledge the existence of an official state government in Texas. Such a ruling would have the effect of accepting Texas as fully restored to its place in the Union and thus render unconstitutional the Military Reconstruction Act, which listed Texas as a "rebel State[]" with reduced status. (146) Wall Street was also concerned with the case, being opposed to any actions that threatened bondholders and investors. For this reason, as Hyman observes, Chase's decision to assign himself the writing of the majority opinion, rather than dodge the task, was not one that "a truly driven would--be presidential candidate or mere placeholder" would have made. (147)

         In his opinion upholding the jurisdiction of the Court, Chase began by identifying what is meant by "state." He distinguished the territory and people of a state, which remained in the Union, from its government, which was hosthe to the United States and therefore properly unrepresented in Congress. In the text of the Constitution, wrote Chase, "a plain distinction is made between a State and the government of a State." (148)

         Chase then affirmed Lincoln's position that the Southern states, properly defined, had never legally left the Union. Although the states continued to maintain their separate existence, they were bound in perpetuity to the Union until they received its consent for them to secede. The Articles of Confederation, said Chase, had "solemnly declared" this union to "be perpetual." (149) And the Constitution was created "to form a more perfect Union." (150) "What can be indissoluble," he asked, "if a perpetual Union, made more...