Journal of Supreme Court History

C h ie f J u s tic e S a lm o n P . C h a s e a n d UTSRQPONMLK th e P e rm a n e n c y o f th e U n io n JIHGFEDCBA C Y N T H I A N I C O L E T T I zyxwvutsrqponm Chie fJu s ticeSalm o n P. Chas e is p ro bably be s tkno wn fo r what o ne his to riancalle d the m o s t e ndu ringthing Chas e e ve rsaid: that the Union was “an indestructible Union of in­ destructible states.”1 Chase made this state­ ment in the 1869 Supreme Court opinion in TSRQPONMLKJIHGFEDCBA T e x a s v. W h ile, in which he rejected the doc­ trine of state secession from the Union and the legal theory undergirding the establishment of the Confederacy. The case thereby vindicated the Union’s view of the Civil War and rejected the Confederate theory of the conflict.2 As the author of the opinion in T exa s v. W h ite, Chase is best known to the law world, or at least to the legal history world, as the person who es­ tablished the permanency of the Union, who enshrined the idea that Union victory had rested on a firm legal foundation. Chase’s de­ cision solidified the judgment of the battlefield and made it apparent that the permanency of the Union was not only the result of the mili­ tary might of the Union army. In T exa s v. W h ite, the Supreme Court told the nation that it was also what the Constitution required. Today, Chase’s decision in T e x a s v. W h ite seems like a foregone conclusion or the natural analog of the Union victory. It seems like the fitting legal cornerstone capping the Civil War, and so lawyers and historians tend not to think very much about it. It is the type of decision that slides into our legal and his­ torical consciousness, to the extent it even does that, as totally unsurprising, the way the American legal system would inevitably have confronted and resolved the question of the permanency of the Union in the aftermath of the Civil War. We rarely look any deeper than that, perhaps because this is a stone we em­ phatically want to leave unturned. Historians are bad at leaving well enough alone, however, and I am no exception. If we go back to a time before T exa s v. W h ite was decided in the spring of 1869, what we see is a far less straightforward picture about the ulti­ mate legal significance of the Civil War. It was not at all clear before the decision that the Supreme Court—or any court—would find that secession was unconstitutional. In April 1865, victory on the battlefield was the sole deter­ minant of the Union’s permanency. In the af­ termath of the Civil War, Chief Justice Chase confronted the secession'issue in another case, one fraught with much more danger. This was a case where secession would be much harder C H IE F J U S T IC E C H A S E A N D T H E P E R M A N E N C Y O F T H E U N IO N 1 5 5 zyxwvutsrqpon to re s o lve in favo ro fthe Union, where it would be harder to ensure it would come out in the “right” way. Indeed, it seemed quite possible that Chase would have to preside over a case that could instead vindicate secession and the Confederate cause. As a circuit court judge, Chase had to face the secession question headon in a case with a much higher profile than TSRQPONMLKJIHGFEDCBA T exa s v. W h ite ever had: Jefferson Davis’s prosecution for treason in federal court in Virginia. Jefferson Davis, the president of the Confederacy, had fled the Confederate capital of Richmond on April 2, when the city had fallen to the Union...