Chapter One: The Petition

Scene I

The National Intelligencer came under the door while the room was still dark, the paper skidding across the floorboard with a dry whisper. Taney was awake before it stopped moving — his mind surfacing, as it did each morning, into the ordered catalogue of what was known and what remained to be established.

He rose before the coal grate had yielded any warmth. The room was iron-cold; he could see his breath. He carried the newspaper to the writing desk and sat.

The petition notice was on the third page.

He read it through, then again. He set the paper flat and pressed both palms upon it — not from agitation, or not only, but with a deliberate, almost tactile attention, as though the ink might yield something the words withheld.

A petition has been presented to the Honourable Committee of Finance, signed by Nicholas Biddle, President of the Second Bank of the United States, praying for the renewal of the Bank's charter, the present instrument being due to expire in the year eighteen thirty-six—

Eighteen thirty-six. Four years hence. And the petition filed on — he checked the date at the head of the column — January the third, eighteen thirty-two. The very day the Twenty-Second Congress had convened.

He pulled his coat tighter, rose, moved the chair three inches nearer the inadequate grate. Then he pushed it back.

On the desk: a letter from Anne, sealed, which he had placed there the previous evening with the intention of reading it before sleep and had not. Beside it, three briefs awaiting attention on matters of no consequence whatever. And now the Intelligencer.

A fit of coughing came on, bending him forward over the desk. He pressed a handkerchief to his mouth and waited. When it passed he found the line again. Outside, a cart horse struck the frozen cobbles with a sound like a rifle shot, and somewhere above him a door opened and closed and opened again, and the smell of boiled oats came down through the floorboards — the whole ordinary machinery of a January morning proceeding without the least interest in what he had just read.

The petition was, on its face, an ordinary legislative instrument. A bank seeking renewal of its operating authority. The sort of filing that occupied clerks and committeemen and produced, in the ordinary course, months of deliberate inquiry. Nothing in the printed notice suggested anything other than the routine exercise of corporate prudence.

The date, however, would not release him.

He opened the drawer at his left and withdrew the almanac he kept there — a battered thing, its spine cracked, its margins annotated in his own small hand. He turned to the congressional calendar. The Twenty-Second Congress: first session opened January the second. The Finance Committee would constitute itself within the week, organise its docket within a fortnight, and could reasonably be expected to take up the filing by mid-February. A recharter bill — if the committee reported favourably — might reach the Senate floor by spring. Both chambers by summer. A presidential decision required before the November election.

He set the almanac beside the newspaper and looked at them together.

Then he rose from the desk, went to the window he had not yet gone to, and stood there with his hands clasped behind his back. The street below was grey and iron-hard. A woman crossed it with a basket, her breath in clouds, her step careful on the ice. He watched her until she was gone.

Senator Clay had announced his candidacy in the autumn. Clay's managers had been working the Western states since September, building the argument that Jackson was a man of passion rather than principle, of executive appetite rather than constitutional fidelity. They needed a text. They needed Jackson to do something that confirmed the indictment.

A veto of the recharter would serve admirably.

The logic of it was, once perceived, so clean as to be almost elegant — and that elegance was the thing that disturbed him most, the way a well-constructed falsehood disturbs more than a clumsy one. Biddle had filed not four years early from institutional anxiety but precisely on the day Congress opened, so that the question could not be deferred past the election without seeming a deliberate evasion. Jackson would be compelled to act. If he signed, he surrendered a principle he had stated publicly for three years and handed Clay nothing. If he vetoed — as every man in Washington who had listened to him for five minutes knew he would — Clay had his text. The veto as the act of a tyrant. The president as king. The frontier general who would not be constrained by the will of Congress or the precedent of the Court.

Taney turned from the window. He crossed to the desk, sat, picked up his pen. Set it down. He picked up Anne's letter, turned it once, set it back precisely where it had been, the seal unbroken, the wax gone dark in the cold.

What he required first was not comfort but confirmation — and the confirmation was already before him, in the almanac and the newspaper and the arithmetic of a political calculation so transparent it could only have been designed by someone who believed no one in the administration would read it in time.

He took a clean sheet, set his pen to it, and wrote in his small compressed hand: McLane. Treasury. What does he know, and since when.

He underlined the words twice, then sat looking at them.

Biddle had set the clock. The question was not what hour it showed. The question was who else in this government had heard it strike.

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Scene 2

The Attorney General's office smelled of damp plaster and something older beneath it — legal volumes long undisturbed, their bindings releasing a slow must that no fire could have addressed, even had there been one. There was not. Taney had ceased requesting coal for the basement room in November, when the third successive requisition had returned unanswered, and he wore his coat through the working day, his breath faintly visible in the chill.

Louis McLane was not cold. His coat — dark broadcloth of the kind produced by Philadelphia tailors who understood the difference between cloth and wool — sat upon him with the ease of a garment that had cost what it should cost. Taney noted the lapels, the precise fall of the collar, the absence of any strain at the shoulders, and thought: Philadelphia. He set his eyes on the briefs before him.

"I am grateful for the visit," Taney said, "and I would not detain you beyond the departmental matter. But there is a question I have been turning over since yesterday's paper, and I confess it presses upon me."

McLane settled into the chair across the desk — unhurried, already composing his departure. "The petition," he said.

"The petition." Taney moved the topmost volume on his desk to the left. "It must be observed that the filing date is — shall we say — notable. The charter does not expire until 1836. Congress has scarcely convened. Senator Clay has returned to his lodgings in fine health and conspicuous purpose." He aligned a second volume against the first. "I find myself curious whether the Treasury has prepared any contingency analysis of the charter expiration — the effect upon the deposits, the circulation, the federal revenue operations. Any analysis at all."

McLane's expression held. "The Treasury has standing obligations to assess matters of financial continuity. That is its nature."

"Quite so." Taney set a third volume flush with the others. "And in the course of those assessments — have there been communications with the Bank's officers? With Philadelphia?"

A pause. The smell of damp plaster thickened in the silence.

"There have been," McLane said, "certain preliminary exchanges. Of a technical character."

"Technical."

"The Bank holds a considerable portion of the federal deposits. Any analysis of charter expiration must necessarily involve some degree of — consultation."

Taney's hands stilled on the desk. He looked at McLane with an expression of such perfect courtesy that it required a moment to perceive there was nothing behind it. "Secretary McLane," he said, "I wonder if you might tell me on what date those consultations began."

McLane blinked — small, involuntary. "I cannot say precisely. The preliminary exchanges were—"

"Before or after the first of December?"

"I — before, I believe. The Treasury's planning horizon necessarily—"

"Before the first of November?"

"Mr. Taney." McLane's voice carried the warmth of one who has decided that reasonableness is the more effective posture. "I think you are reading a great deal into a filing that may yet prove to be exactly what it presents itself as — a petition for recharter, submitted through the ordinary channels, which Congress will consider in the ordinary manner. The President has much before him. South Carolina is not finished. The administration need not commit itself on every legislative question before the session is a week old."

A knock at the door. A clerk entered without ceremony, deposited a stack of briefs on the corner of the desk, glanced at neither man, and withdrew.

Both men waited until the latch clicked.

"You suggest," Taney said, "that the administration should take no position."

"I suggest the administration should take no premature position. There is a difference."

"The difference, I should think, depends upon whether the petition is premature." Taney looked at him directly. "Senator Clay's campaign schedule is not preliminary. The congressional calendar is not preliminary. And if the filing date were coordinated with the opening of the session by design rather than by coincidence, then what presents itself as ordinary procedure presents itself falsely. The Treasury's prior consultations with Philadelphia would be germane to that question."

McLane's face was composed. "That would be a serious allegation."

"It would be a serious fact." Taney's voice had not risen. "I am not yet in possession of the fact. I am in possession of the arithmetic, and of the knowledge that the Treasury was in communication with the Bank before the matter was publicly raised." He paused. "Which is itself a fact of some interest."

McLane rose, smoothing his coat — the broadcloth fell back into its perfect order — and offered Taney a nod that contained within it a great deal of courtesy and nothing else. "I would counsel patience, Mr. Taney. The recharter question will find its proper moment, and the Treasury will ensure the administration's interests are protected in any outcome."

He was at the door before Taney spoke again.

"Secretary McLane." The tone was mild, almost apologetic. "You will understand that I intend to raise this matter with the President directly. I mention it only so that you are not surprised."

McLane turned. Something moved across his face — not alarm, not quite, but the territory adjacent to it. "I see," he said. Then he went out.

Any outcome. Taney turned the phrase in his mind. The Treasury would protect the administration's interests in any outcome. Any outcome whatsoever. He found himself wondering whether McLane had heard himself say it, and concluded that he had, and had not cared.

The unlit grate offered nothing. The damp plaster smell thickened slightly in the silence.

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Scene 3

The tallow candle had burned past its shoulder and was guttering in the draught, throwing unsteady light across the papers on the desk. Outside, freezing rain had settled into a rhythm against the glass — not the sharp percussion of sleet but something softer, more patient, a sound that intended to continue through the night and into the morning without apology.

Taney had not eaten since noon. He was aware of this the way a man is aware of a dull ache in a tooth he has resolved not to examine — registered, set aside, not yet retrieved.

He sat with his coat still on, his fingers stiff with cold, the draft notes before him covering a single sheet. The handwriting was more compressed than usual, the margins already crowded with cross-references and objections in a smaller hand. The question is not whether the Bank may be chartered. The question is whether the executive branch is bound, in perpetuity, by the Court's determination in McCulloch — whether one branch's construction of the instrument forecloses all subsequent construction by the others. He had written this three times in slightly different formulations, and each time the sentence arrived at the same difficulty: the argument was sound, and it was dangerous, and those two qualities were not separable.

Going to Jackson over McLane's head. He turned the phrase in his mind the way a lawyer turns a statute, looking for the provision that resolves the ambiguity. There was no such provision. The cabinet was not, strictly speaking, a body with jurisdiction over the communications of its individual members; the Attorney General was the President's officer as fully as the Secretary of the Treasury. And yet. The cabinet operated by the conventions of collegial consultation — conventions that existed not in any written instrument but in the accumulated practice of forty years of constitutional government. Conventions, Taney understood better than most, derived their authority precisely from the fact that men of standing honoured them even when they were not compelled to.

McLane had been in private communication with Biddle's agents before the filing. The phrase surfaced again, as it had done all evening. McLane had let it fall with the ease of a man who had not yet understood what he had said — or who had understood perfectly and calculated that Taney would not act upon it. The latter possibility was not comfortable to contemplate, and Taney contemplated it with some thoroughness.

He set the nib to paper and added a line: The timing is not incidental. It is the argument itself, translated from constitutional language into electoral mathematics. Then he stopped, and flexed his right hand slowly against the cold, the joints aching.

Anne's letter lay at the edge of the desk. He had been avoiding it with the particular efficiency of a man who has convinced himself he is merely postponing. He picked it up now, broke the seal with his thumbnail, working along the join, and unfolded the pages.

Anne's hand was clear and even, shaped by a household where precision was a form of courtesy. She wrote of Frederick first — the weather, the condition of the roads, a dinner where the conversation had been tedious. He read this without impatience, grateful for the ordinariness of it, the smell of the paper faintly carrying something he associated with the house, with the particular quality of winter light in the upstairs rooms. Then:

I must tell you what I have heard from Mrs. Haller, whose husband farms the Monocacy bottom. The Bank's branch in Frederick has called in their notes — all of them, without warning given, though the accounts were in good standing. Mr. Haller has had to sell his winter grain at a loss to cover the demand, and he is not alone in this. There are three other families I know of in similar circumstance, and I am told by those who would know that the branch acted on instructions from Philadelphia, not on any local consideration. The men who hold these notes are not speculators, Roger. They are farmers who borrowed against their crops in good faith, and they are being stripped of the margin that keeps them solvent.

He read the passage twice. He set the letter down. He sat for a moment with his hands flat on the desk, looking at nothing in particular, while the candle guttered and the freezing rain continued its patient work against the glass.

He uncapped the inkwell, pulled the paper before him, and wrote.

His hand cramped mid-sentence — a sudden seizing in the joints of his fingers — and he had to set the pen down and flex his hand slowly, staring at the half-formed words on the page. The candle threw his shadow large and unsteady against the wall. He thought of Mr. Haller selling his winter grain in the cold, in January, at whatever price the market would give him, because a bank in Philadelphia had sent instructions to a branch in Frederick, and the branch had obeyed them, and those instructions had preceded the filing by weeks, and the filing had come on the day Congress opened, and Senator Clay was in his lodgings in fine health and conspicuous purpose.

He flexed his fingers. Took up the pen.

At the top of the fresh sheet he wrote: For private audience — matters requiring the President's attention prior to Treasury briefing, January 10.

Below this he began to write, and did not stop until the candle failed.

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Scene 4

The corridor outside Jackson's private study smelled of oak smoke and tallow and the cold particular to government buildings in January — a cold that had settled into the plaster and the floorboards and would not be shifted by any quantity of firewood. A servant passed Taney carrying an armload of split oak, the resinous smell sharp and brief, and then the man was gone around the corner and the corridor was empty again.

Taney sat on a wooden bench against the wall. He had not removed his hat. He had been waiting eleven minutes.

He kept both hands on his knees and looked at the closed door at the corridor's end and thought about what he intended to say and in what order he intended to say it. The argument was intact. The evening was fixed. What remained was the doing of it.

The door opened and Andrew Jackson Donelson came through it at speed, checked when he saw Taney, and continued forward.

"Mr. Attorney General." Neither warm nor cold.

Taney rose. "Mr. Donelson. I am grateful for a moment of your time."

"You have rather less than a moment, I fear." Donelson moved without stopping, and Taney fell into step beside him — not the meeting he had planned, but he adjusted. "The President has three South Carolina delegations this morning, two more this afternoon, and Senator Hayne is expected at four. The nullification correspondence alone would occupy a full staff. What is it you require?"

"A private audience. This evening, if it can be arranged. A quarter of an hour would suffice."

Donelson stopped. Turned. His eyes were careful and somewhat red at the rims — sleepless, and with the promise of worse nights still to come. "On what matter?"

"The Bank's recharter. The filing Monday with the Finance Committee."

"The President's calendar does not presently—"

"I am not asking the President's calendar," Taney said. "I am asking you. This evening. Seven o'clock. I will take twenty minutes and no more, and I will not trouble you with a written memorandum, because no memorandum in this city remains where it is placed."

Donelson regarded him. "You are very direct this morning, Mr. Attorney General."

"The occasion warrants it."

"The occasion, as I have just described it, is a President managing a constitutional crisis in South Carolina, a Senate session barely commenced, and a campaign season—"

"The occasion," Taney said, "is that the recharter has been filed four years early, on the first day of the session, in coordination with Senator Clay's campaign schedule, and the Secretary of the Treasury was in communication with the Bank before that document was ever presented to Congress. That is the occasion, Mr. Donelson. I will be brief, and I will be plain, and the President may do with what I tell him as he sees fit. But I will tell him."

The corridor was very quiet. Somewhere beyond the closed door, a clock measured the silence with the slow authority of a thing that had been keeping time since before either of them was born.

Donelson said nothing for a moment. Then: "He has been asking after the original charter since before that document arrived on the Hill. The 1816 instrument. He asked me which members of the cabinet had examined it."

"Which had?"

"None." Flat. "The inquiry did not appear to surprise him."

Taney said nothing.

"This evening," Donelson said. "Seven o'clock. You will have twenty minutes." He moved to go, then stopped with his hand already on the door. "He signed the order on South Carolina this morning. Whatever he tells you tonight — understand that he is not a man who has been resting."

The door closed. The corridor was empty.

Taney stood in the cold and the oak smoke and the tallow smell and turned over what Donelson had just told him — not the audience, which he had expected to obtain, but the other thing. Jackson had been asking after the 1816 instrument before the filing reached the Hill. Before. Which meant that Jackson had known, or suspected, or been told, something that Taney had only this morning reasoned his way toward from a newspaper and an almanac.

He settled his hat and turned toward the entrance.

The notes were in his coat. The argument was intact. The evening was fixed at seven o'clock, and he had twenty minutes, and what he did not yet have — what was, at this hour, somewhere between Philadelphia and Washington in a courier's saddlebag, moving at whatever pace the frozen roads permitted — was the letter from his correspondent that would arrive before morning and confirm what he had been treating as political arithmetic was in fact a conspiracy, documented, named, and datable to the previous October.

He walked out into the January air. The cold struck him across the face, sharp and unambiguous, and the door swung shut at his back, and somewhere behind it the clock continued its indifferent work, measuring out the hours that remained before the thing he did not yet know would find him.