McGinty Brian. Lincoln and the Court

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8 A New Chief

almon p. chase was in Covington, Kentucky, on the day that Taney

died, speaking in support of Lincoln’s bid for reelection.

Chase had no real af-

fection for the president, despite the nearly three and a half years the two

men had spent working together. Lincoln had depended heavily on Chase’s ef-

forts to bridge the frightening gap between military expenditures and revenues,

but the men had never developed a warm relationship, or anything that ap-

proached mutual trust.

Chase’s decision to take to the campaign trail in the fall of 1864 was, like

so many of his actions, a political calculation. If he had never been very im-

pressed by Lincoln’s performance as president, he was even less enthusiastic

about George B. McClellan, who was hoping to replace him. He had no strong

antipathy to the Democratic Party, which had nominated McClellan as its

presidential candidate at their convention in Chicago, for he had once been a

Democrat himself, and he would become one again in a few years. For now,

however, he was a Republican, and he realized that his political fortunes were

tied to the Republican candidate. What’s more, he disagreed on some funda-

mental points with the Democratic platform, which condemned government

efforts to put down the Southern insurrection as “four years of failure” and de-

manded an immediate cessation of hostilities, with “the rights of the States un-

impaired” (that is, the preservation of slavery). Chase was willing to compro-

mise on some issues, but not on slavery, for which he had an unwavering

hatred.

Chase had left Lincoln’s cabinet the previous July in a dispute over the

control of Treasury Department appointments in New York, but Lincoln was

now running for reelection, and Chase rightly calculated that he would proba-

bly be reelected. So he decided to take to the hustings, in the words of his biog-

rapher, John Niven, “to place the President under obligation.”

He toured his

home state of Ohio, then traveled through Michigan, Missouri, Kentucky, and

Pennsylvania, speaking before crowds large and small. Hearing that Roger

Taney had at long last died, he ﬁnished up his speaking tour and returned to

Washington, where Lincoln would soon be naming a new chief justice.

Everybody in ofﬁcial Washington knew that Chase coveted Taney’s posi-

tion, for he had not been shy about dropping hints. He would much rather

have been president, as he was convinced that he was better qualiﬁed to oc-

cupy the chief executive’s chair than any man in the nation in 1864—certainly

better qualiﬁed than the man who now occupied it. But recent military victo-

ries led by Major General Philip Sheridan in the Shenandoah Valley, and Ma-

jor General William T. Sherman’s sensational capture of Atlanta on September

2, had strengthened the voters’ conﬁdence that the president deserved a sec-

ond term. Chase had been one of the last to give up hope that the Republicans

would turn their backs on Lincoln, for if they did, he believed that they might

ask him to lead their ticket. Even after Lincoln’s renomination at the Republi-

can convention (renamed the National Union Convention) in June, he

thought that a third party might be formed to nominate him. Chase was a man

of exceptional intelligence and even more exceptional ambition; if there were

limits to his intelligence, there were none to his ambition (or so his detractors

claimed).

The death of Taney had been expected for so long that Lincoln had natu-

rally assumed he would be called on to pick his successor. He had talked about

the possibility with some of his close associates, discussed the names of likely

nominees, and given some thought to their qualiﬁcations. Attorney General

Bates had broached the subject with him, telling him of his own interest in the

chief justiceship, and Chase had done the same. Both were highly qualiﬁed

lawyers with distinguished careers in public service. Bates, in particular, was

noted for his even, sober disposition—what some people might call a “judicial

temperament”—and as a member of the cabinet he had always given the presi-

dent his best. But Bates was not young (he had just turned seventy-one), and

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he would soon be ready for retirement. Chase was younger (he would turn ﬁfty-

seven the following January) and more vigorous, but he had never demon-

strated any loyalty to the president. Chase had a host of friends in and out of

the government, but he also had many enemies.

In the ﬁrst days following Taney’s death, Lincoln was barraged with recom-

mendations. Bates even sent him a letter reafﬁrming his own interest in the ap-

pointment. “I will only add that I could not desire to close my public life more

honorably,” Bates wrote, “than by a brief term of service in that eminent posi-

tion. I would not if I could desire to occupy that place more than two or three

years, and so that it would still be within your disposal during your second

term. In fact, I desire it chieﬂy—almost wholly—as the crowning, retiring

honor of my life.”

Chase did not write the president to solicit the appointment, but he did

not have to, for his political associates and admirers were already doing that for

him. The day after Taney’s death, Lincoln’s personal secretary John Hay re-

corded in his diary that the old chief justice was gone, and then he wrote: “Al-

ready (before his poor old clay is cold) they are beginning to canvass vigorously

for his successor. Chase men say the place is promised to their magniﬁco. ...I

talked with the President one moment. He says he does not think he will make

the appointment immediately. He will be, he says, rather ‘shut pan’ in the mat-

ter at present.”

Lincoln had good reason to keep his counsel. The fall elections were ap-

proaching, and his reelection was by no means a sure thing. The nomination of

a new chief justice would have political ramiﬁcations, and whatever name he

advanced might roil the political waters unnecessarily. Although Chase had a

host of supporters, it was not certain that Lincoln would choose him, for even

if the president had previously assured Chase that he would be chosen, much

had happened since then. Chase had left the cabinet under unpleasant circum-

stances, and in the interim he had done all he could to wrest the Republican

nomination away from Lincoln.

salmon portland chase was an interesting man with enough interest-

ing characteristics to keep the gossipy tongues of Washington wagging

throughout the war years. Born in New Hampshire in 1808, he was the eighth

child in a large family from old New England stock, better educated than most

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of their neighbors but without any substantial wealth. He owed his distinctive

ﬁrst name to the family’s tradition of giving its sons memorable (some might

say peculiar) ﬁrst names: one of his uncles was also named Salmon Chase, an-

other uncle was Philander Chase, and his own father was Ithamar Chase.

Salmon Portland Chase himself detested his name and as a young man toyed

with the idea of changing it to Spencer de Cheyce or Spencer Payne Cheyce.

But he stuck with the “awkward, ﬁshy” designation and eventually made it

famous.

When Salmon was nine years old, his father died and his widowed mother

sent him to live and study with his uncle Philander, who had recently become

the Episcopal bishop of Ohio. With the bishop acting as his surrogate father,

Chase studied at an Ohio boys’ school and then at the College of Cincinnati,

of which his uncle was president. When Bishop Chase left for England to se-

cure funding for a new college in Ohio (to be called Kenyon College), Salmon

returned to New Hampshire and enrolled at Dartmouth. After graduating with

a Phi Beta Kappa key, he moved to Washington, D.C., where he taught school

and studied law with William Wirt, one of the capital’s most distinguished at-

torneys.

Born in Maryland, Wirt had practiced law in Virginia and the District of

Columbia and represented the prosecution in the famous conspiracy trial of

Aaron Burr before serving as attorney general of the United States under Presi-

dents James Monroe and John Quincy Adams. Over the course of his long ca-

reer, Wirt argued more than 170 cases in the Supreme Court. Though ad-

vanced in years, he was still attorney general and still an important personage

in Washington when Chase read law in his ofﬁce between 1827 and 1829.

Chase passed the bar in 1829 in Washington and then moved to

Cincinnati, where he began his life as a practicing lawyer. Ambitious to build a

successful practice, he studied industriously, wrote articles for literary journals,

and worked hard to hone his speaking style (he had a lisp that he was eventu-

ally able to mask but not entirely eliminate). He represented local businessmen

and avoided involvement in politics until 1836, when a dramatic event thrust

him into the controversies of the times. A political activist named James G.

Birney had recently come to Cincinnati and begun to publish the Philanthro-

pist, a weekly newspaper dedicated to the peaceful abolition of slavery. Located

across the Ohio River from Covington, Kentucky, Cincinnati depended for

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much of its thriving trade on commodities produced by slave labor, and local

attitudes toward the peculiar institution were volatile. Birney himself had been

a slave owner in Alabama and Kentucky before he converted to the abolition-

ist cause, and his Cincinnati newspaper aroused strong emotions.

Outraged by the abolitionist journal in their midst, a group of

Cincinnatians broke into Birney’s printing shop, ransacked the building, and

tossed his printing press into the river. Hearing that the mob intended to tar

and feather Birney and run him out of town, Chase went to the hotel where he

lived and planted himself ﬁrmly in the front door, defying the mob to pass. He

was a ﬁne ﬁgure of a man, six feet, two inches tall, with broad shoulders, a mas-

sive head, and a handsome face. Impressed by Chase’s calm courage, the mob

backed away. Reports of the confrontation quickly spread through Cincinnati,

earning Chase a justiﬁed reputation for bravery and effecting a revolution in

his own thinking. He was already disposed by his religious convictions to re-

gard slavery with disgust. Now he became convinced that somebody should op-

pose the slaveholders, and that he was the best man to do so.

In the years to come, Chase took the cases of free blacks and fugitive slaves

who were pursued into Ohio from Kentucky plantations. Convinced that slav-

ery offended God’s law, he began to develop innovative legal theories under

which Ohio courts could resist the “slave catchers” who came over the river

from Covington in search of “runaways.” He researched English and American

legal precedents, studied the history of the Northwest Ordinance of 1787

(which formed the basis for the law of Ohio and other northwestern states),

and became convinced that slavery was not supported by natural law. Accord-

ing to Chase’s theory, unless slavery was upheld by the positive provisions of

“municipal law” (that is, the statutes or ordinances of a state), it could not be

sustained. Thus when a person held in slavery in one of the Southern states

was brought into a free state, he or she became free, because there was no mu-

nicipal law to hold him or her in bondage. It was an important legal theory,

and one that would gain some acceptance in the years ahead. Chase took sev-

eral high-proﬁle cases into the federal courts in Cincinnati, where he estab-

lished important legal precedents. His reputation began to spread to neighbor-

ing states, and even to the nation’s capital, where he was referred to as the

“Attorney General for Runaway Slaves.”

In 1842 Chase became the attorney for a farmer named John Van Zandt,

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who was charged in the United States Circuit Court in Cincinnati with har-

boring escaped slaves in violation of the Fugitive Slave Law passed by Congress

in 1793.

Van Zandt, a former Kentuckian who had moved to Ohio because

of his opposition to slavery, had been driving his wagon at night along a road

north of Cincinnati when he encountered a party of nine blacks. He stopped

his wagon and allowed them to get in, then proceeded on his way, but two

white men soon began to pursue the wagon. The blacks were slaves who had

recently escaped from their master, a Kentuckian named Wharton Jones, and

Jones had hired the two men to catch them and bring them back. Van Zandt

tried to elude the pursuers, but they soon caught up with his wagon, seized

eight of the black passengers (one was able to escape), and carried them back

to slavery in Kentucky. A complicated series of legal procedures then ensued in

Ohio, some prosecuted in state court and others in the U.S. Circuit Court,

where Supreme Court Justice John McLean presided as circuit judge and

Humphrey H. Leavitt as district judge.

With the cooperation of an attorney named Thomas Morris, Chase repre-

sented Van Zandt in a jury trial presided over by McLean and Leavitt. After

the verdict went against his client, Chase persuaded McLean and Leavitt to

certify important questions of law to the Supreme Court in Washington. By

that time the case had attracted so much notice that former governor William

H. Seward of New York (like Chase, a bitter opponent of slavery) had offered

to help. Chase and Seward worked together in preparing Van Zandt’s appeal,

but the crowded condition of the high court’s calendar and the apparent reluc-

tance of some of the justices to take up the case resulted in several postpone-

ments. Finally, Seward informed Chase that if the case was to be considered at

all it would have to be submitted on written arguments, without any oral pre-

sentation. So the Ohioan set about the laborious task of crafting a 108-page

brief in which he advanced a series of groundbreaking arguments against slav-

ery and the Fugitive Slave Law.

Chase argued that slavery was inconsistent with the Declaration of Inde-

pendence’s promise that “all men are created equal”; that the Fugitive Slave

Act violated provisions of the Bill of Rights, including the Fifth Amendment’s

guarantee that “No person shall...bedeprived of life, liberty, or property,

without due process of law”; and that Congress had no power under the Con-

stitution to pass the Fugitive Slave Act. Article IV, Section 2, provides (in rel-

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evant part): “No person held to service or labor in one state, under the laws

thereof, escaping into another, shall, in consequence of any law or regulation

therein, be discharged from such service or labor, but shall be delivered up on

claim of the party to whom such service or labor may be due.” Chase argued

that this provision (the Fugitive Slave Clause) was a statement of policy, re-

quiring states to surrender fugitive slaves as a matter of comity but not as a judi-

cially enforceable obligation. It was not one of Congress’s “enumerated pow-

ers,” and it did not give the national legislature any authority to set up a

statutory procedure for the return of fugitive slaves.

The case of Jones v. Van Zandt was submitted to the Supreme Court in

February 1847 and decided the following month. In an opinion by Associate

Justice Levi Woodbury of New Hampshire, the Court denied all of Chase’s ar-

guments. Woodbury said that the Fugitive Slave Clause was “one of [the] sa-

cred compromises” upon which the Constitution rested, and that, whatever

judges might think about the morality of slavery, they were bound to uphold

the constitutional provisions that sustained it.

The unanimous decision was

supported by all of the justices then serving, including Justice McLean and

Chief Justice Taney.

Chase lost this high-proﬁle case in the Supreme Court, but he won it in

the court of public opinion, for his argument caught the attention of lawyers

and judges all over the country, and began to raise hopes in opponents of slav-

ery that effective legal arguments against the hated institution would one day

succeed. His legal brief also helped inspire the most powerful literary argument

ever advanced against slavery, the best-selling novel Uncle Tom’s Cabin. The

novel’s author, Harriet Beecher Stowe, was living in Cincinnati while the Van

Zandt case was wending its way through the courts, and she used Van Zandt

himself as the inspiration for her ﬁctional John Van Trompe, a courageous con-

ductor on the Underground Railroad who helped the runaway slave Eliza Har-

ris escape through Ohio into Canada. After its publication in the early 1850s,

Uncle Tom’s Cabin raised the level of antislavery fervor throughout the United

States.

The Van Zandt case also raised Chase’s political proﬁle and encouraged

him to make a new effort to win elective ofﬁce. He had begun his political life

as a Whig, winning election to the Cincinnati city council in 1840. But he lost

his ofﬁce the following year because of his strong temperance views and de-

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cided to cast his lot with the Liberty Party, an association of antislavery activ-

ists that swirled around the abolitionist publisher James G. Birney. In 1848

Chase became one of the organizers of the new Free Soil Party, which per-

suaded former president Martin Van Buren to carry its banner into the presi-

dential campaign that year. The Free Soil Party had no intention of interfering

with slavery in any of the states, for its leaders recognized that the regulation of

slavery within states was a matter that the Constitution reserved to the states.

But they opposed slavery in any place where Congress had the power to legis-

late on the question, such as the District of Columbia (where slavery was still

open and notorious) and the western territories.

In late 1848, ﬂush with the fame he had won in the case of Jones v. Van

Zandt, Chase made a successful run for one of Ohio’s seats in the United States

Senate. In Washington, Chase aligned himself with the Democrats, but he bit-

terly opposed the efforts of Democratic senator Stephen A. Douglas of Illinois

to ﬁnesse the controversy over the expansion of slavery by advancing the doc-

trine of popular sovereignty. Chase believed that Douglas’s Kansas-Nebraska

Act broke the “sacred pledge” made to the nation when the Missouri Compro-

mise was adopted in 1820. Then, Congress had banned all slavery north of lati-

tude 36° 30´. Now Douglas argued that slavery should be allowed wherever a

majority of voters (all of whom, of course, were white and male) could be per-

suaded to allow it, even in territory north of 36° 30´. When Douglas and his

supporters succeeded in passing the Kansas-Nebraska Act in 1854, Chase told

his Massachusetts Senate colleague Charles Sumner: “They celebrate a present

victory, but the echoes they awake will never rest until slavery itself will die.”

Chase was a candidate for governor of Ohio in 1855, this time running as a

Republican (though he preferred to call himself a Democratic-Republican) and

basing his campaign in large part on opposition to the Kansas-Nebraska Act.

His inauguration in 1856 was a milestone, for it was the ﬁrst time a major state

had elected a Republican governor. He used his new platform to launch his ﬁrst

serious bid for a presidential nomination. He was one of the leading contenders

for the nomination at the Republican national convention, held that year in

Philadelphia; but Ohio’s delegation was deeply divided, with some supporting

Chase, others the charismatic “Pathﬁnder” John C. Frémont, and yet others

Ohio’s perennial presidential aspirant, Justice John McLean of the Supreme

Court. Chase’s inability to rally his own state’s delegates to his candidacy re-

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vealed a weakness that would plague him for the rest of his political life: while

he always had enthusiastic supporters, he also had equally passionate enemies.

Chase was deeply disappointed when Frémont received the Republican nomi-

nation and grumbled that the delegates had ignored better men (like him) who

“personiﬁed the great real issue before the country.” McLean was also bitter,

but he blamed his defeat on Chase. “Chase is the most unprincipled man polit-

ically that I have ever known,” the Supreme Court justice declared. “He is

selﬁsh beyond any other man.”

Chase was reelected to a second term as governor of Ohio in 1857. In

1858, he went to Illinois to campaign for the little-known Springﬁeld lawyer

who was seeking to unseat Senator Douglas. Chase shared Lincoln’s belief that

slavery was a moral issue, and not merely a political one (as Douglas conceived

it), and he shared Lincoln’s opposition to the Kansas-Nebraska Act. Like Lin-

coln, he was profoundly disturbed by the Supreme Court’s decision in the Dred

Scott case. He agreed with Lincoln that the issue of slavery in the states was to

be decided within those states. Unlike Lincoln, however, he was not willing to

concede that the Fugitive Slave Law was constitutional, and he still held out

hope that it could be repealed. Chase took to the campaign trail for Lincoln in

Illinois, speaking to thousands in Chicago, Galena, Warren, Rockford, and

Mendota. In the end, Lincoln lost the senate race to Douglas, but he did not

forget the help that Chase had given him.

The Ohio legislature elected the out-going governor Chase to a second

U.S. Senate term early in 1860. But that election did not calm his presidential

aspirations. Carl Schurz was a prominent Wisconsin Republican who was sup-

porting William H. Seward’s bid for the Republican nomination for president

that year. Schurz visited Chase at his home in Columbus, Ohio, and found that

he had a serious case of “presidential fever.” He seemed genuinely hurt by the

notion that anyone would prefer Seward (or any other candidate) to himself.

Schurz breakfasted with the governor and his beautiful teenage daughter, Kate,

who had become a political adviser and hostess for her thrice-widowed father.

Kate “had something imperial in the pose of the head,” Schurz later wrote,

“and all her movements possessed an exquisite natural charm.” The conversa-

tion inevitably turned to politics. Chase honestly believed, as Schurz put it,

“that he owed it to the country and that the country owed it to him that he

should be President.” Schurz admired Chase but thought his consuming presi-

dential ambitions were “a pathetic spectacle.”

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Seward and Chase were the two leading candidates for the Republican

presidential nomination in 1860, but there were some others as well, “favorite

son” candidates like Pennsylvania’s Senator Simon Cameron; Missouri’s old-

line Whig, former congressman Edward Bates; and Illinois’s unsuccessful Sen-

ate candidate from 1858, Abraham Lincoln. All of these men were opponents

of slavery, though they differed on some other issues. Lincoln’s convention

manager was the affable circuit judge (later Supreme Court justice) David Da-

vis of Bloomington. For his part, Chase did next to nothing to prepare for the

balloting, for he was convinced that the fact that he was “the best man” for the

presidency would be apparent to all and would automatically put him over the

top. But his enemies again surfaced in the Ohio delegation, and his support

steadily eroded. It took three ballots to give the nomination to Lincoln. Chase

“felt betrayal, indignation, and hurt.”

But he did not yet feel defeated. He

wrote Lincoln to congratulate him on his victory, and then methodically made

plans for his own political future.

Chase had not yet begun his new term as senator from Ohio when Lincoln

invited him to Springﬁeld, Illinois, in late December 1860. When Chase ar-

rived in Springﬁeld, the president-elect walked to the hotel where Chase was

staying and quickly got down to business. “I have done with you,” he said,

“what I would not perhaps have ventured to do with any other man in the

country—sent for you to ask you whether you will accept the appointment of

Secretary of the Treasury, without, however, being exactly prepared to offer it

to you.” The problem, Lincoln explained, was getting support for the nomina-

tion in Pennsylvania, where Simon Cameron also expected a high appoint-

ment, possibly the Treasury post. Many Republicans thought Cameron unwor-

thy of a cabinet post, but he was an important politician and had done much

to help Lincoln win the election. Chase was disappointed, for he thought

he was entitled to the highest post in the cabinet, which was secretary of state,

but that had already been offered to Seward. Chase and Lincoln continued

their discussions in Lincoln’s law ofﬁce, and on Sunday they attended church

together. Chase left Springﬁeld on Monday, promising to consider the post

of secretary of the treasury “under the advice of friends.” After Chase had

left, Lincoln wrote Illinois senator Lyman Trumbull that he had decided that

Chase’s appointment was “not only highly proper, but a necessity.”

On his way

back to Ohio, Chase came to the same conclusion.

As ﬁnally constituted, Lincoln’s cabinet was made up of Seward as secre-

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