Hastings Race and Poverty Law Journal


This Article is an in-depth study of the early commercial law career of Salmon P. Chase, U.S. Secretary of Treasury between 1861 and 1864 and President Abraham Lincoln's choice to replace Roger B. Taney (author of the Dred Scott opinion) as the Chief Justice of the U.S. Supreme Court. Occasionally portrayed in his latter political career as "the most radical" member of Lincoln's war cabinet, Chase's early law practice is best known for its defense of people of color seeking to escape slavery, at the time earning him the nickname as the "Attorney General for Fugitive Slaves." In recent years, Chase's reputation as a legal "radical" has been in decline. Focusing narrowly on Chase's reading of the U.S. Constitution, subsequent historians have categorized Chase as merely taking a "moderate" approach to ending the peculiar institution, with some even suggesting that his work had a conservative bent containing a latent "apology for slavery."

Looking broadly at Chase's active Cincinnati-based law office work for both white and black clients between 1831 and 1849 while drawing upon unpublished materials from Chase's papers, this Article suggests ways that the "radical" label may still fit. At the heart of Chase's radical side, it suggests, was a strain of utopian egalitarianism-modeled upon the theoretical equality imagined as existing between trading partners on western waterfronts-that relentlessly denied the power of American legal institutions to honor any distinctions between litigants based on their actual or perceived social position. At a time when some contemporaries viewed the world as divided into a series of "patriarchal relations," Chase's was an outsider's perspective, disciplined through nearly two decades of commercial law services provided to a socially marginal clientele from both sides of the color line.

Retelling Chase's early story makes two contributions to existing legal historiography. First, it challenges a dominant narrative within legal history scholarship depicting everyday private law institutions like property and contract as largely functioning during the 19th century as the near-perfect weapons of the strong over the weak. Second, it hints at the private law dimensions of Civil War-era emancipation, a familiar story usually told in public law terms. In particular, Chase's early legal career identifies a "subaltern" form of emancipation relying upon private commercial initiative rather than exceptional military force, Constitutional amendment, or a frontal attack on the institution of private property itself. Rather than presenting slavery as the historical rule and emancipation as a one-time exception, telling the story of Chase's early career sketches the legal contours of one nonviolent variant of "self-emancipation" made available to a group of entrepreneurial working class clients before the U.S. Civil War. Because of the possibility that Chase's style of thinking could be used to inform lawyering in newer contexts, this Article remaps Chase's path today.

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