Chapter 4: The Instrument

Scene 1

The fourth of July, 1832. Independence Day. He noted it without ceremony and drew the curtains.

The oil lamp burned despite the morning light, because the light served nothing — it came through linen the colour of old bone and dissolved before it reached the desk. Better the lamp. Better the narrow radius of amber in which a man might work without consolation.

Taney dipped his pen. Wrote three words. Crossed them out. Dipped again, and the nib scratched dry across the page.

He had been at the desk since before five o'clock. The foolscap before him held nine lines of text, each one struck through, and beneath the desk his stockinged feet pressed flat against the floorboards as though resistance to the floor might purchase something from the next sentence. On his left: Marshall's McCulloch v. Maryland, open to the page he had read so many times the binding had begun to separate at that precise latitude. On his right: Clay's pamphlet, delivered by an unknown hand two days ago and smelling still of the printer's shop on F Street, its cover decorated with the word TYRANNY in letters large enough to be read across a dining table.

He did not need to read the pamphlet again. He had absorbed it the way a physician absorbs a diagnosis he disputes — not with pleasure, but with the close attention of one who intends to refute it on its own terms.

The difficulty was Marshall.

He pulled the McCulloch volume toward him and read, once more, the passage he could not escape. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it. And then the critical sentence, which every lawyer in the Eastern states had memorised as children memorise catechism: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.

There it was. The wall. The wall that Webster had built his speech upon, that every supporter of the recharter had invoked like scripture. The court has spoken. The court has found the Bank constitutional. The question is settled. He had heard this in six formulations since January, each carrying the same implicit corollary: that a president who vetoed the recharter was not exercising a constitutional prerogative but committing an act of constitutional vandalism. If the veto message reached Congress with that objection unmet — if it arrived naked of an answer to Marshall — Webster would read the silence from the floor of the Senate and the administration would have furnished its own indictment.

A cramp took his writing hand without warning, the fingers curling inward against his will. He set the quill down and pressed his palm flat against the desk's edge until the spasm released. The wood was warm beneath his hand, the grain smooth from years of use.

He flexed his fingers and looked again at the page.

Let the end be legitimate.

He read it again. And then — not with excitement, which would have been unseemly, but with the cold, precise recognition of a man who has located the flaw in the opposing structure — he read it a third time.

Let the end be legitimate.

Marshall had not said the end was legitimate. He had made the constitutionality of congressional means conditional upon the legitimacy of the end those means served. He had written a conditional sentence, and every man who had quoted it since 1819 had read it as settled law.

But it was not settled law. It was a test.

And the president — whose oath bound him, as fully as any justice's oath bound the court, to preserve, protect, and defend the Constitution — was not exempt from applying that test. He was obligated to apply it. The oath made it so. If Taney could not establish that obligation on the page — could not make the doctrine hold its own weight without a qualifying clause that Webster could work loose and discard — then the message would arrive at Congress not as a constitutional act but as a political one, and the distinction was everything. A political veto could be overridden. A constitutional argument, properly built, would survive the men who opposed it.

He rose from the desk. Crossed to the window, drew the curtain back an inch, and looked out at Pennsylvania Avenue in the early morning — empty save for a dog nosing at something in the gutter, the sky above the rooftops still carrying the grey residue of night. He stood there until the argument assembled itself in the silence. Then he returned to the desk, turned to a clean sheet of foolscap, and wrote.

The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

He read it back. The lamp's heat reached his forearm as he leaned over the page. From somewhere on Pennsylvania Avenue, someone discharged a firearm in celebration of the holiday. The sound arrived flat and distant, swallowed by the linen. A second report followed, then a third — irregular, celebratory, the sound of men with nothing to finish before the Senate reconvened.

He wrote three more lines. Then six. The sentences arrived with their qualifications already installed, as was his habit — but the qualifications were not retreats now; they were load-bearing members, each one distributing the weight of the doctrine across a wider constitutional foundation. The president's oath. The co-equal obligation. Marshall's own conditional phrasing, turned upon itself, transformed from the wall into the door.

Taney did not lift his head.

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Scene 2

The knock came without preamble — a single sharp rap, and then Taney's servant appeared at the study door with the expression of a man who has admitted a visitor he cannot quite justify.

"Mr. Kendall, sir."

Kendall did not wait to be invited. He moved through the doorway with the brisk economy of one who regarded hesitation as a form of concession, and he carried under his arm a sheaf of papers he had not troubled to bind or fold. The window stood open to the July evening, and from somewhere downstream on the Potomac came the distant percussion of a celebration — someone's cannon, someone's patriotism, still burning itself out two days past the fourth. The sound arrived in irregular bursts, like a quarrel that keeps resuming. The air through the window was thick with river smell, warm and without relief, and the room tasted of tallow and stale ink.

"Mr. Kendall." Taney did not rise.

"Attorney General." Kendall dropped his papers on the corner of the desk and pulled a chair toward him without asking. He was a lean man, spare in his movements, his gaze perpetually occupied with something just past the surface of whatever he appeared to be examining. "I have been at this since morning. I thought it time we compared our work."

"I had not understood this to be a collaboration."

"The General understands it to be one."

Taney squared the pages of his draft into a precise stack, then turned the stack face-down. "What the General has communicated to me," he said, "is that the message is my responsibility. I take that charge seriously."

"As do I." Kendall opened his sheaf. "Which is why I have brought what the General's political instincts require — the language that will speak to the man who holds no Bank note and wants none, who owes nothing to Mr. Biddle and knows it."

"I am aware of that man's existence."

"Are you." Not a question. Kendall drew out a page and held it with the proprietary ease of a man presenting a document he expects to be purchased. "Let me read you something."

He did not wait for permission. His voice, when he read aloud, took on a different quality — less transactional, more considered, as though the words had been arrived at over many hours and he wished that labour to be audible.

It is to be regretted that the rich and the powerful too often bend the acts of government to their selfish purposes. Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth cannot be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law—

"Stop." Taney had not moved his hand from the draft. "Read that last clause again."

Kendall read it.

A fit of dry coughing seized Taney mid-thought, cutting off whatever he had been preparing to say. He turned away and pressed his handkerchief to his mouth — four hard coughs, five — while Kendall waited with his page half-raised and an expression of patience so deliberate it announced itself as performance. Taney folded the handkerchief and set it aside.

"The sentiment," he said, "is not wrong. The expression is intemperate."

"The expression is what will be remembered."

"The expression is what Clay will read to the Senate as evidence that the President of the United States has declared war on property itself." He rose from his chair — the legs scraping against the floorboards — and crossed to the window, putting his back to Kendall and the sheaf of papers. Below, the street was empty save for a boy driving a mule cart south toward the river, the animal's hooves loud on the dry earth. Taney turned. "Give me the page."

Kendall hesitated — one beat, no more — and then extended it.

Taney took it. He did not return to his chair. He stood at the window, turned the sheet over, drew a clean piece of foolscap from the desk, and dipped the quill. He wrote without pausing, his hand moving in the rapid motion of a man setting down a thought already fully formed. When he had finished, he placed the new sheet before Kendall on the desk.

The substance was Kendall's. The construction was not. Where Kendall had written bend the acts of government to their selfish purposes, Taney had written make the acts of government the instruments of oppression against the very people those acts are sworn to protect. Where Kendall had written every man is equally entitled to protection by law, Taney had written when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society have a right to complain.

Kendall read it twice. His jaw moved slightly, working the phrases against his teeth.

"The fire is still there," Taney said. "The law is there as well."

Kendall looked at the sheet a moment longer. Then: "That will do."

He reached for it.

Taney's hand came down on the page. "You will leave it with me. The draft is mine until the General receives it. Those were his instructions, Mr. Kendall — and I believe you were present when he gave them."

Kendall's hand remained extended. Then he withdrew it and gathered his sheaf. He crossed to the door and paused with his hand on the frame.

"The General expects the completed draft by Friday morning." A pause — calibrated, not incidental. "He has not asked me to communicate that. I communicate it nonetheless."

He left without waiting for a reply. The door did not quite close behind him.

Taney looked at the new sheet — Kendall's fire, his own structure — and placed it beneath the draft. The candle on the windowsill had burned low enough that the wax was pooling on the sill, and the smell of it was sharp and faintly animal in the warm air. Friday. Three days. He sat, pulled the draft toward him, and dipped the quill.

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Scene 3

The clerk arrived at half past nine the following morning, a young man of careful dress and the practised blankness of one accustomed to delivering unwelcome communications. He carried the letter on a small salver — a courtesy that announced, more plainly than any seal, the importance of the sender. Taney recognised the handwriting before the clerk spoke.

"From Senator Webster, sir. I am instructed to wait upon your reply."

Taney set down his quill. The study had grown close in the morning heat, the smell of four days' work risen into something almost physical — ink going stale in the pot, the sourness of foolscap written upon and set aside and written upon again, the faint sweetness of tallow from candles burned to their sockets through the previous night. He took the letter.

Webster's hand was everything the man was: assured, deliberate, each letter formed with the self-possession of a jurist who has never composed a sentence he was not prepared to defend before a full gallery. The salutation occupied three lines before the substance began.

It has come to my attention, through channels I need not specify, that a document is presently in preparation which purposes to assert, on behalf of the Executive, an authority to disregard the settled constitutional determinations of the Supreme Court in the exercise of the veto power. I write not as your adversary, Mr. Taney, but as one who holds in genuine regard the reputation you have earned at the bar, and who would be grieved to see that reputation committed irrevocably to a proposition which the Senate — speaking, as I believe, for the considered opinion of the bar and of the bench alike — must receive as a direct assault upon the constitutional order.

There was more. There was always more with Webster. The censure threat arrived in the third paragraph, dressed in the subjunctive mood: should such a document be transmitted to this body, should the Senate be compelled to take cognizance, the consequences to any officer of the Executive whose name may be associated. The last paragraph returned, with some elaboration, to Webster's sincere personal regard.

Taney read it through once. Then he set it on the corner of the desk.

He was aware of the clerk standing at the door, hat in hand, waiting. He was aware, with equal precision, that Webster had timed this letter to arrive before the draft was complete — that the communication was not an inquiry but a procedure, a formal act of pressure designed to be cited later, in the Senate or before the bar, as evidence that the administration had been warned and had proceeded regardless. The letter was not correspondence. It was a record.

His stomach seized with hunger — he had eaten nothing since the previous evening, a circumstance he had not noticed until this moment — and he reached for the glass of water at his elbow and drank half of it before setting the glass down. The water was tepid and tasted faintly of the earthen jug. He pulled the draft toward him.

The passage in question occupied the better part of a page. He had written it twice already, had struck the original and restored a version of it, and in the early hours of the morning had inserted a subordinate clause he knew, even as he wrote it, to be a concession to fear rather than to the doctrine. Except insofar as the question may be considered finally and definitively settled by the Supreme Court's determination in McCulloch v. Maryland — that was the clause. Six words at its core: finally and definitively settled by. Six words that made the whole principle conditional, that offered the Court a hand to reclaim what the passage purported to deny it. Six words that Webster, reading the final message, would seize upon and declare the administration's own admission that McCulloch was binding. Webster had not seen the draft. He had written his letter without knowing the clause was there. But the clause was there, and if it remained — if Taney carried it to Jackson, and Jackson carried it to Congress — then Webster would not need to defeat the doctrine. It would have already surrendered.

He took up his pen.

Here was the moment, then. Not the drafting — that had been labour, even pleasure of a severe kind — but this: the choice, made in full knowledge of its cost, to set the nib against his own retreat. If he struck the clause, the doctrine stood absolute. The president of the republic, in the performance of his constitutional functions, would not be bound to conform his interpretation of that instrument to the determinations of any other branch. The oath of office required no less. The independence of the executive, as a co-ordinate branch possessed of equal dignity and equal obligation under the Constitution, required no more. And every court in the Eastern states would read it so. Every counting-house. Every lawyer who had built his practice on the settled authority of Marshall's court would find Taney's name in the document and understand what he had done to the ground beneath their feet.

He drew a single stroke through the clause. Clean across the line.

What remained was unhedged and irreversible. He gathered the pages into order — four days' argument, four nights without adequate sleep, the accumulated weight of what he had agreed to become — and rose from the chair.

The clerk was still waiting, hat held before him.

"You may convey my compliments to Senator Webster," Taney said, "and inform him that he shall have his answer when the president has given his."

The clerk opened his mouth, thought better of it, and withdrew.

Taney crossed to the window. The morning outside was bright and indifferent — a cartman calling to his horse, a woman shaking a rug from an upper storey, the ordinary machinery of the city proceeding without reference to the document now squared and ordered on the desk behind him. He stood there long enough to feel the heat of the glass against his face. Then he turned, took up the pages, and called for his coat.

The White House messenger was already in the anteroom.

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Scene 4

Jackson did not look up when Taney entered. He sat beside the window — not at his desk, which would have suggested the transaction of ordinary business — in the straight-backed chair he used when the pain in his chest made the upholstered ones intolerable. The curtains were half-drawn against the afternoon, and the light that fell across the writing table was amber-grey, thick with suspended dust. The room smelled of camphor and old wood and, faintly, of the pipe that lay unlit in the dish at Jackson's elbow beside the untouched whiskey glass.

Taney placed the document on the table. He withdrew to the chair opposite and sat.

The silence in the room was not the silence of repose. It was the silence of two men in a small space, one of whom held the other's work in his hands and was taking its measure. Taney kept his feet flat on the floor. A bead of sweat traced his jaw and fell onto his collar. He did not wipe it away. From somewhere below came the sound of Donelson's voice — the cadence of authority, the words indistinct — and then quiet again.

Jackson turned the first page. The second. His reading was unhurried, and Taney had learned, in the months since January, that unhurried reading from this man was not inattention. It was the opposite.

The third page. Jackson's eyes slowed.

Taney knew the passage. He had reinserted the qualifying clause at two o'clock in the morning — eight words appended to the doctrine of coordinate review: in the absence of legislative provision to the contrary. Eight words that softened the principle from an absolute executive obligation into a contingent executive discretion. He had told himself it was precision. He had told himself it was the honest rendering of what the Constitution permitted rather than what political passion demanded. He had known, setting down the quill with the candle guttering and the cold air of the small hours pressing at the window glass, that it was neither of those things. It was the sound a man makes when he steps back from the edge and calls it prudence.

Jackson set down the document. He picked up the pen from the table beside him — did not dip it, the nib dry — and drew a single line through the clause, scoring the paper with what ink remained on the nib. Faint. Legible.

He set the pen down and read on.

Taney rose, crossed to the table, and bent over the page. The emendation was spare and final, the line thin but unambiguous, and what it left behind was what Taney had composed before the fear had come and added its eight words. He straightened. Returned to his chair. Said nothing.

Jackson finished the final page. He held the document a moment — not reading, only holding it, his large hands still on the paper — and then looked across at Taney with the pale eyes that had always seemed, to Taney's observation, to be the one feature of the man that age had not diminished. If anything, the years had burned them cleaner.

"The rest stands."

"It does, General."

"This" — the faintest motion of one finger toward the struck clause — "weakened the whole."

Taney held his gaze. "It was weakness in the author."

Jackson studied him. Something shifted in the old man's expression — not warmth, precisely, but a species of recognition, the silent acknowledgment between those who have known the hour when conviction and nerve diverge. He set the document on the table.

"Then we understand each other."

Taney had not expected that. He had expected dismissal, or approval, or the brisk transition to logistics that Jackson preferred when sentiment threatened to make itself visible. He sat with it a moment, the way a man sits with an unexpected weight to determine whether it is burden or ballast.

"Donelson will carry it to Congress before the evening bell," Jackson said. He reached forward and lifted the whiskey glass — not to drink, but to hold, turning it once in his fingers before setting it back precisely where it had stood. "Have you eaten today, Mr. Taney?"

"I have not, General."

"Nor have I." He set the glass down. "The body makes its protests and we ignore them. It is a habit of this house."

Taney rose, collected the pages, and squared them against the table's edge. Jackson's emendation stood in the middle of the coordinate review passage, the line thin and certain as a surveyor's mark.

"Sir," he said, "Senator Webster has communicated to me — through a clerk, this morning — that this message will bring a formal censure upon the administration and upon my own prospects in every court of this republic."

Jackson did not answer immediately. He turned the whiskey glass once more, and the light caught it, and set it down.

"Let Clay explain to the farmers of Ohio," he said, "why he stood with London bankers against their President." A pause. "Can he do that, Mr. Taney?"

Before Taney could answer, the door to the anteroom opened. Donelson stood in the frame, a folded paper in his hand, his face arranged in the careful neutrality of one who has heard rather more than he was intended to hear and considers discretion the better part of his office.

"A rider from Senator Clay's office, sir. The Senator has called a special session of his committee for tomorrow morning and wishes to know whether the administration intends to send a representative."

The document lay on the table between them — four days' argument, the struck clause still legible beneath Jackson's line, the whole of it now committed and irreversible. Before the evening bell, Donelson had said. Before the bell, and Clay already had his rider in the anteroom, already had his committee convened, already had the morning arranged to receive what the administration had not yet released.

Someone had told him. Someone in this house, or near enough to it, had told him.

Taney looked at Donelson. Donelson looked at the middle distance. The folded paper was very still in his hand.

Jackson had not moved.