Chapter 7: The Refusals

Scene 1

The memorandum was complete. Taney knew it with the cold finality he brought to a finished brief — not satisfaction, but the recognition that every argument had been placed in its proper position and that the structure would hold. Forty-one pages establishing that the authority over the federal deposits derived from the 1816 charter and was exercised at the President's direction; that the co-ordinate branches of government were each bound by their own constitutional interpretation, not the Court's alone; that the deposits could be removed without congressional sanction and without the approval of any officer who found the removal inconvenient to his own ambitions. The argument was sound. He had tested every joint.

He was signing the final page when the knock came — not the impatient percussion of knuckles too long kept waiting, but the measured rap of someone instructed to appear unhurried.

The private secretary was perhaps thirty, with a narrow face and the stillness of a trained observer. He carried a letter sealed with the Treasury's mark.

'From Mr. McLane, sir.'

Taney set down his pen. A fly had been circling the inkwell for some minutes; it chose this moment to settle on the wet nib. He lifted the pen, blotted it on his handkerchief, laid it on its rest. He took the letter without haste, though his pulse had quickened in a way he did not permit his face to acknowledge. McLane had moved faster than expected.

'You are to wait for a reply?'

'I am to wait, sir.'

He broke the seal. McLane's hand was controlled, each letter formed with a deliberateness designed to appear effortless — the correspondence of a man who understood that every document he produced was also a performance. The substance emerged within three sentences. It has come to my attention that certain documents, prepared within the Attorney General's office, touch upon matters presently within the Treasury's jurisdiction. Should any such documents reach the President's desk before the appropriate consultative process has been observed, I should be compelled, in the discharge of my duty, to make my own views upon the removal question known through whatever channels remain available to me — including, if necessary, channels beyond the administration itself.

Taney read to the end. He did not read it again.

He folded it into thirds and slid it beneath a stack of correspondence relating to a pending land dispute in Georgia. The letter vanished as neatly as a card palmed at a gaming table — present, then absent, the absence itself a kind of reply.

'You have read the letter, sir?' The secretary's tone was careful.

'I have received it.' Taney rose and moved to the window, standing with his back to the room. He needed to know whether McLane had sent a copy to the Senate already, or whether this letter was itself the opening move — the warning before the shot. Three days, perhaps. If McLane's transfer to State was not yet formalised, three days in which he might reach Clay's ear, or Webster's, and the memorandum would be known before Jackson had read a word of it. 'You may tell Mr. McLane that I am in receipt of his communication and shall give it the consideration it warrants.'

'He wished me to convey that the matter is rather urgent—'

'I expect he did.' Taney turned from the window. 'Is Mr. McLane presently at the Treasury?'

'He is, sir.'

'Then he is precisely where a Secretary of the Treasury ought to be.' He crossed to the cabinet beside the door and withdrew his coat. 'You will convey my respects. Good morning.'

The secretary did not move. He stood in the doorway with the unanswered letter between them — McLane had sent him for a reply, and he was returning without one, and no amount of composure could obscure it.

'Sir, if I might—'

'Good morning,' Taney said again. The same tone. The same temperature.

The secretary left.

Taney waited until the footsteps had descended the first flight of stairs. Then he opened the desk's lower drawer, withdrew a fresh sheet, and wrote four lines to the White House — the memorandum was complete; he would present it in person before the noon hour; McLane had made his intentions plain and had perhaps three days before his transfer to State was formalised, which was three days in which he might yet reach the Senate's sympathetic ear. He folded the note, sealed it with a plain wafer, addressed it to the President's private secretary, and pressed it into the hand of his own man waiting in the corridor with instructions to go by the back lane, not the avenue.

He shrugged on his coat and moved to the door. The note would travel faster than McLane's secretary could walk back to the Treasury building. McLane would understand, within the hour, that the consultative process he had demanded had been declined without the courtesy of a refusal — and that the memorandum was already beyond his reach.

Let him understand it. Let him compose his next letter to Clay with that knowledge sitting in his chest.

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Scene 2

The study smelled of camphor and cold tobacco, the camphor so dense it coated the back of the throat. A single window faced south, its glass admitting the late June light in a pale band that fell across the floor without warmth. On the wall beside a map of the western territories, the portrait of Rachel Jackson looked out with an expression that might have been patience or might have been something harder — Taney had never been able to determine which.

Jackson stood at the window when Taney and Blair were admitted. He did not turn immediately. His coat was dark, and his shoulders beneath it had the drawn-in quality of long bracing — a posture held so many years against so many things that it had ceased to be posture and become simply the shape of him. When he turned, his colour was poor — that grey thinness first observed in January, deepened now through the spring into something more settled and more alarming, as though the illness had stopped announcing itself and begun simply residing.

Francis Preston Blair set his papers on the corner of the writing table. He had come from Kentucky, and the road was in him still — dust at his cuffs, a faint agricultural smell about his coat that the camphor did not quite suppress. He spread a single folded sheet, close-written, and held it toward Jackson, who did not move to take it.

'General,' Blair said, 'I would not bring this before you if the intelligence were uncertain. The canvass in Kentucky and Ohio is complete. Three state legislative contests in October. Our men in Frankfort reckon we lose two of them if the deposit question is decided before the session. The mechanics in Cincinnati are with us on the Bank entire, but the merchants are not, and the merchants control three swing districts in Hamilton County alone.'

Jackson looked at the sheet on the table's edge. He did not pick it up.

Taney crossed from the cold hearth and set his memorandum down — not beside Blair's summary but directly atop it, covering it. 'The window is not indefinite, General. Congress reconvenes in December. Senator Clay calls hearings. The Bank's allies on the Committee of Finance spend the autumn preparing a resolution to prohibit the removal by statute, and we arrive at the session with the legal ground already occupied against us. It is this autumn or it is never.'

Blair pulled his summary free from beneath the memorandum. His jaw tightened. 'I am asking the General to weigh six weeks against three legislative seats. That reckoning deserves an answer.'

'Then here is the answer.' Taney opened the memorandum and read aloud, his voice even and without inflection: The removal power, as established under the charter of eighteen sixteen, resides with the Secretary of the Treasury. The Secretary's exercise of that power is not subject to congressional approval, ratification, or delay. The instrument confers the authority. The instrument does not condition it upon the pleasure of the legislature. He closed the document. 'If we defer to the electoral calendar, we concede by implication that Congress may determine the timing of an executive act. We do not recover that concession. It follows us into December and into every December thereafter.'

'That is a constitutional argument,' Blair said, 'not an electoral one. I am not persuaded they are the same thing.'

'They are not. One of them matters after November.'

The room held the two arguments in suspension. The camphor burned at the back of the throat. Somewhere beyond the south window, a mockingbird ran through three other birds' songs and found none of them satisfactory.

Then Jackson bent forward over the window ledge, seized by a cough so deep and wrenching it seemed to originate somewhere below the chest — not the brief, clearing cough of a man in a dusty room, but something with weight and persistence, as though the body were contesting the right of the man inside it to continue standing. Blair looked at his papers. Taney looked at the floor. The fit subsided by degrees, releasing Jackson into a silence rawer than the one before it. He straightened, one hand braced against the window frame, the other pressed flat to his sternum, and stood there gathering himself with the concentrated stillness of a man who has learned not to waste the breath that follows.

No one spoke. The mockingbird had stopped.

'Mr. Blair.' Jackson's voice, when he found it, was rougher than it had been — scraped thin, the edges gone. 'I am obliged for the intelligence from Kentucky. You will understand me when I say that I did not win two hundred and nineteen electoral votes to purchase three legislative seats in Hamilton County.'

Blair inclined his head. He folded the summary and put it in his coat.

'Mr. Taney.' Jackson turned from the window, and the effort of the turn showed. 'Will Duane sign?'

Taney held his answer for a moment — long enough that Blair looked up. 'No,' he said. 'He will not.'

Jackson moved toward his chair. The room understood, without any of them speaking it aloud, that they had just passed the point from which there was no orderly retreat.

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Scene 3

The humidity had been building since noon, and by mid-afternoon the office held it the way a brick oven holds heat — not as current air but as a property of the walls themselves, radiating inward from every surface. Taney's collar had wilted against his neck within minutes of entering, the linen gone soft and clinging, and he kept his hands folded on the arm of the chair and his jaw level and gave no sign of it.

Duane sat behind the mahogany desk as a man occupies a fortification. The green baize cloth was perfectly smooth. The inkstand — a handsome piece in Sheffield silver, a gift from the Philadelphia merchants' committee at some public dinner two years previous — caught the light from the tall windows and threw a small bright star onto the ceiling. Outside, through the glass, the unfinished grounds of the Washington Monument stretched pale and unlovely toward the river, and the smell of the river came through the sash at intervals, brackish and faintly rotten in the heat.

'I will read it entire,' Duane said. 'I think that is proper.'

Taney inclined his head.

Duane lifted Jackson's directive with both hands and read it aloud in the measured cadence of a man performing a legal act, not merely a clerical one. His voice was steady and not unpleasant — trained to carry conviction without heat — and the words of the directive filled the room with the full weight of presidential authority. From somewhere below the window, the iron-shod wheels of a dray cart rang against the cobblestones and faded south toward the wharf. The clerk near the door — a compact, grey-coated figure whose name Taney had not been offered — stood with his hands clasped and his eyes directed at some neutral point between the two principals. He would remember every word. He had been placed here precisely to remember every word.

Duane set the directive down. He aligned it to the desk's edge with one precise motion, then lifted his hands away as though the paper had been ruled hot.

'I will neither execute this order,' Duane said, 'nor tender my resignation.'

The room was quiet enough that Taney heard the scratch of the clerk's boot sole against the floorboard as the man shifted his weight.

Duane continued. His voice had acquired a quality Taney recognised — not defiance, which would have been easier to work with, but the particular register of constitutional argument delivered for an audience beyond the room. He had been composing this speech for weeks. The Secretary cited the charter of 1816. He cited his oath. He drew the distinction, with lawyerly precision, between the Secretary's obligation to the executive and his prior and superior obligation to Congress, under whose authority the deposits resided and under whose charter the Bank itself existed. Every sentence had been polished for the Senate record.

When Duane finished, the silence held.

'I am grateful,' Taney said, 'for the clarity of your position.' He rose — not in deference, but to place himself on equal footing — and reached forward, lifted the directive from the desk's edge, and held it. 'I have one request, which I believe you will find reasonable.'

Duane's eyes moved to the document in Taney's hand.

'Put it in writing.' Taney set the directive back — not where Duane had left it, but squarely before himself, on his own side of the desk's centre. 'And be good enough, in that document, to specify the nature of your objection. Whether you hold the removal to be unlawful under the charter — a question of legality — or whether your objection concerns its present timing, pending some further action by Congress. The distinction is not trivial. The Senate will wish to know which ground you stand upon. So, I confess, will I.'

Something moved across Duane's face. A calculation.

'The distinction is yours, Mr. Taney, not mine.'

'Then it should cost you nothing to make it.' Taney did not move his hands from the desk's surface. 'I ask because the President will require a written record before he acts further. If your objection is one of timing, there may yet be room for discussion. If it is one of legality—' He paused. The river smell came through the sash again, heavy and close. 'Then the President will proceed accordingly. Today, if necessary. He is not a patient man, Mr. Duane, and his patience has been considerably exercised of late.'

Duane rose, which was meant to end the conversation. He was a tall man, and the gesture was not without authority. 'You will carry my verbal refusal to the President this afternoon. If he requires a written document, he may communicate that requirement to me directly. I have said what I mean, and I mean what I have said.'

Taney remained in his chair. He sat there long enough that Duane was required to stand above him, which altered the geometry of the room in a way that was not comfortable for either of them — the standing man waiting for the seated man to rise, and the seated man declining to oblige. Then Taney rose, collected his hat, and turned toward the door.

'The President will communicate his requirements before the week is out.' He did not look back. 'I would not delay the written statement, Mr. Duane. The occasion moves considerably faster than either of us would prefer. And the week—' a brief pause, his hand on the door frame, the heat of the room pressing at his back like a hand '—the week is already shorter than it was this morning.'

The clerk stepped aside. Behind him, Taney heard Duane's chair scrape against the floor. He descended the stairs into the heavy afternoon air, the directive folded inside his coat, and did not permit himself to think about what came next until he had reached the street and the Treasury door had closed behind him.

He stood for a moment on the pavement. The heat was no less brutal here than inside, but it was at least honest — the sun's own work, not a room's accumulated pressure. He had known, before he entered, what Duane would say. He had known it the way one knows the verdict before the jury files back in, when the foreman will not meet the defendant's eye. The knowledge had not made the hearing of it easier. It had made it exact.

He turned north toward the White House, and the afternoon swallowed him.

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Scene 4

The study held the warmth of a room too long inhabited — not the clean warmth of a good fire, but something closer to exhalation: heat that had nowhere left to go, that had been breathed and rebreathed until the air itself had absorbed his presence and given nothing back. Two candles burned on the writing table. The others had not been troubled.

Jackson was in his day coat still, the collar turned up at one side and not corrected, and he sat with the stillness of exhaustion — not repose, but the body's final economy, every resource directed inward. His hands lay on the chair's arms. The right one had pressed flat against his chest at some point in the evening and remained there.

Taney closed the door behind him.

'He refused,' Jackson said. Not a question.

'He refused, and he declined to resign.' Taney set his hat on the table beside the door and remained standing. 'I asked him to set his objections in writing, specifying whether his remonstrance concerned the legality of the removal or merely its timing. He will do so. The document, when it arrives, will be comprehensive.'

'I expect it will.' No heat in it. 'Biddle coached him.'

'The correspondence I examined in the office—'

'I don't require the particulars tonight.' Jackson turned his head toward the darkened window. Beyond the glass, the avenue lay in silence — no wheels, no voices, nothing but the wind moving through the lindens and the distant bark of a dog somewhere south toward the river. 'What I require tonight is a man who will sign.'

The candle nearest Taney guttered as a draft moved through the room. Jackson reached across and cupped his hand around the flame, holding it until the wax steadied and the light straightened. His palm was close enough to the fire that it should have burned. It did not seem to trouble him.

Both men waited until the candle held on its own.

'You are my Secretary of the Treasury,' Jackson said.

The words arrived without inflection, without the preliminary of a question or the courtesy of a conditional. They were a surveyed line. The deed was written; he was simply reading it aloud.

Taney removed his spectacles. He cleaned them on his handkerchief — one lens, then the other, the cloth moving in small deliberate circles — and replaced them on the bridge of his nose. The room sharpened: the two candles, Jackson's grey face, the portrait of Rachel above the mantel catching nothing in this thin light.

He had written to Anne three days ago. The letter was already in Frederick.

'I understand what you are asking,' Taney said. 'And I understand what it will cost. I will serve.'

Jackson looked at him for a moment. Something moved in the old face — not gratitude, not relief; something older than either.

'The order wants signing before October,' Jackson said.

'I am aware of the date. I will attend to it in the morning.'

'The state banks—'

'Kendall's list is sufficient. I have read it twice.'

Jackson nodded once, the motion costing him something. His hand had not moved from his chest.

'They will reject your confirmation,' he said. 'Clay will see to it. He has the votes, and he has been saving them for precisely this occasion.'

'I expect he will use them.'

'It won't be the last word.'

Taney said nothing. He retrieved his hat from the table beside the door, settled it, and drew on his gloves. The leather was cold — the night had turned while he was inside, and the walk back to his lodgings would be sharp.

'There is one further matter.' Jackson's voice had dropped to the register he used when he wished to be heard precisely and not repeated. 'Duane will not sit quiet once he is removed. He will go to the Senate. He will go to the press. He will carry whatever Biddle has furnished him, and Biddle has furnished him a great deal. You will have perhaps a fortnight before the Committee of Ways and Means calls for your papers — the memorandum, the correspondence, the directive entire. They will want it all in the record before your confirmation vote.'

Taney stood with his hand on the door.

'A fortnight,' he said.

'If we are fortunate.' Jackson's right hand pressed harder against his chest. 'I would not count upon fortune, Mr. Taney. I have found it an unreliable instrument.'

Taney opened the door. The hallway beyond was dark, the candles at the far end burned to their collars, and the cold air that moved through it carried the smell of extinguished wax and the particular staleness of a house shut against the autumn for too long.

He stood for a moment on the threshold.

Behind him: the warmth and the two candles and the old man in the chair with his hand pressed to his chest. Before him: the dark corridor and the cold and whatever the fortnight would require.

He had weighed the cost three days ago, when he wrote to Anne. He had weighed it again this afternoon, sitting across from Duane in the heat of that office, watching the clerk's eyes move between them. He had weighed it a third time in the moment before he spoke his acceptance, and the sum had not changed.

What he had not reckoned — what he found, standing in the doorway with the cold at his face and the warmth at his back, that he could not reckon — was the sensation of having committed so completely that the self who might have refused was no longer available for consultation. He had supposed, in the abstract, that such moments felt like resolution. They did not. They felt like a door swinging shut on a room one had not finished examining.

He stepped into the dark and pulled the door closed behind him. The latch caught with a small, final sound — and somewhere below, already, a servant's footstep crossed the entrance hall, moving with the unhurried purpose of a house that did not know it had just changed, carrying a lamp toward a room that would need to be prepared for a new occupant by morning.