The Day Lincoln Lost

by Charles Rosenberg

  “And if he loses?”

  “He will not only have the pardon issue still in front of him, but will also become a laughingstock—the supposedly great lawyer proven not so great.”

  The wind was rising, and Buchanan thrust his hands into his coat pockets. He had forgotten to bring gloves. “Perhaps he will not even become president,” he said.

  They walked on for a while in silence, until finally Black said, “I have also been trying to gain a better understanding of Lincoln as a lawyer so that we can figure out how best to oppose him.”

  “Don’t our chances turn on the strength of our case?”

  “Of course, and the government’s case is strong. But it is all hearsay, which can easily be attacked on cross-examination. My informants tell me Lincoln is especially good at that. Savage, even.”

  “What do you recommend be done, then?”

  “For one thing, I have been talking about Lincoln with my friend and yours, Edwin Stanton, who, it turns out, knows him. Stanton was cocounsel with Lincoln on a case last year out in Missouri. Something for the Illinois Central Railroad.”

  “And?”

  “He thinks he is a total rube whose main talent is telling jokes to get everyone to like him. Stanton says if our case is strong and the government prosecutor competent we shouldn’t worry about Lincoln.”

  “Should we not worry about our case, then?”

  “Perhaps not. But to be sure, I have talked to the Solicitor of the Treasury Department about certain steps that might be taken to buttress our case, and he has already sent someone to Springfield to start the process. I can explain those steps to you if you like.”

  “Fine, but I am getting colder and colder. Let us head back to the White House, and you can explain it all to me there while you join me for a drink.”

  “That sounds excellent, Mr. President.”

  “Jeremiah, will the steps you have in mind require my approval?”

  “No, I don’t think so. Not at all.”

  40

  Law Offices of Lincoln and Herndon

  “Well,” Lincoln said, “the trial starts tomorrow and still no Lucy.” He was sitting across a table from Allan Pinkerton.

  “We have looked and looked,” Pinkerton said. “But we have not found her anywhere. I’m quite confident she is not in Canada or anywhere else along the Railroad’s routes. Nor has Annabelle found any trace of her.” He gestured at Annabelle, who was sitting beside him.

  “I’ve asked many people,” Annabelle said. “And gone to many likely places and snooped around. I’ve even befriended a few slave catchers and pretended to be a female slave catcher. There are a lot of slave catchers out there looking for Lucy. A large reward has been posted.”

  “There is indeed a lot of interest in her,” Lincoln said, and pointed to the large stack of newspapers sitting on the table beside him. “The upcoming trial and Lucy are the lead articles in almost all the papers I read, national and local.”

  “There’s another reason, too,” Annabelle said. She took a folded-up piece of paper out of her bag, opened it and smoothed it out on the table. It was a reward poster, with, at the top, two drawings side by side. The first showed a tall, thin Negro girl with curly hair, dressed in homespun with the words Lucy Battelle Escaped Slave over it. The second showed a tall, thin black boy, his head shaved, wearing a cap and dressed in a suit, with the word Disguised over the drawing.

  “A two-thousand-dollar reward for her recapture?” Pinkerton said. “That’s a lot of money.”

  “Lincoln, do you still think it’s important for us to find her?” Pinkerton said.

  “Yes. I continue to think—indeed I am quite certain—that if she is found, the public’s interest in Mrs. Foster and this trial will quickly wink out. Instead, people will want to know how Lucy got away the first time, how she got away the second time and so forth. It will be a great adventure story, and she will be the hero. At least in the North.”

  “How will that help you?” Annabelle said.

  “At the very least, abolitionists will stop asking if I’m going to pardon Mrs. Foster if she’s convicted and I’m elected.”

  “I don’t understand what you’re saying, Abe,” Pinkerton said. “Because you will still have to get Mrs. Foster acquitted.”

  “Of course, Allan. But even though jurors aren’t supposed to consider evidence outside what they hear in the courtroom, they always do. And Lucy found will make them less likely to want to convict Mrs. Foster. Trust me on that.”

  “Isn’t it now too late?” Pinkerton said. “Because we haven’t found her.”

  “The trial could last several days,” Lincoln said. “Let’s keep looking.”

  “To increase our chances of success,” Annabelle said, “I have made common cause with Clarence Artemis. He is looking for Lucy, too. And we both now think she is somewhere in Springfield or nearby. If we can divide up the city in terms of looking, we might make more progress.”

  “Yes,” Lincoln said. “I noticed the two of you just outside the hotel yesterday, as you may recall. You were deep in conversation.”

  “We were discussing how to further our search.”

  Lincoln laughed. “Well, after I passed you by, I turned to look behind me and saw that you had taken his arm.” He grinned. “It looked as if you were courting.”

  Annabelle’s face reddened. “We are not!”

  “I’ve stayed in that hotel,” Pinkerton said. “The sidewalk outside thereabouts is rough, Abe. Anyone would need an arm to lean on.”

  “True,” Lincoln said. “So, Annabelle, what will you and Clarence look for in your search?”

  “People who’ve noticed suspicious activity around a house or business—extra food being brought in, unusual activity at night and so forth.”

  “Well, let me know if you find her.”

  “We will,” Pinkerton said.

  “Thank you,” Lincoln said, getting up. “And now if you’ll all excuse me, I need to go over to the jail and meet with our client.”

  * * *

  When Lincoln arrived at the jail, the sheriff said, on seeing him, “Let me go find out if she wants to see you. She has not been feeling well and has been quite out of sorts of late.”

  Lincoln watched him leave and busied himself looking around the office. Nothing much had changed since his most recent visit, except that the cows on the desk were gone.

  When the sheriff returned a few minutes later, Lincoln said, “What happened to the cows, Sheriff?”

  “It’s a sad thing, but I dropped them and broke them.”

  “Beyond repair?”

  “Afraid so.”

  “That’s too bad. I liked them.”

  “Me, too. Anyway, Mrs. Foster will see you. I’ll take you back.”

  When they reached the cell, Abby was sitting toward the back of the wooden bench. She seemed listless, but looked up when Lincoln approached.

  “Oh, good morning, Abraham,” she said.

  “Good morning, Abby. I’m here to talk to you about the trial, which starts tomorrow.”

  “I know, but I don’t know if I am well enough to attend.”

  “Have you asked to see a doctor?”

  “Yes, and he has been here. He says I am not eating well enough. But I did finish the apples.” She smiled up at him. “It is impolite to ask, but did you bring any more?”

  “No, but I will see that some are brought to you.”

  The sheriff, who had been listening, said, “I will leave the two of you. Mr. Lincoln, I’m going to unlock the cell door and leave it open. I assume you’ll not let Mrs. Foster leave the cell unless you accompany her or bring her out to me.”

  “Agreed, Sheriff.”

  After the sheriff had unlocked the door and left, Lincoln said, “What did the doctor think was the problem with your
eating, Abby?”

  “I have been trying to follow the Graham diet in here, but even with Stephen buying things and bringing them in it has been difficult to get enough to eat.”

  “Have you gotten any exercise?”

  “Yes and no. There is no exercise yard here, but the sheriff has permitted me to go outside, accompanied by one of his deputies, and walk around the square.”

  “Have you done that?”

  “A few times. The problem has been that we attract a crowd of people who follow us, some in support of me and some not and they begin to yell at me and at each other.”

  “Do you think you can find the wherewithal to come to court?”

  “I don’t know. Would it have to be tomorrow?”

  “Yes, but not necessarily at the start of the day.”

  “Perhaps I will skip the trial entirely. Because I consider it an illegitimate process put on by an illegitimate government.”

  Lincoln thought about it for a moment. “Well, that is a problem. If you tell the judge in open court you are refusing to attend on principle, he might be willing to try you in absentia.”

  “Is that done often?”

  “Almost never, but I don’t think my friend Judge Treat—he is the only federal judge here in Springfield—is the kind of man who would handcuff you to the chair to make you attend if you wish not to.”

  “What if I just say I am too sick, which would not be a lie.”

  “If the judge comes to believe you are too sick to attend, he will likely delay the trial until you are better.”

  Lincoln looked at her again, more carefully. She was pale and seemed much frailer than the last time he had seen her.

  “Would you like to walk up and down the hall for a few minutes?” he said. “I didn’t see any other prisoners in the other cells at the moment.”

  “That would be most appreciated.” She rose from the bench and took his proffered arm. They went out into the hallway and began to walk up and down it.

  “Let us return, Abraham, to the idea of my being too sick to attend. Would a delay in the trial be good or bad for your campaign?”

  “I thought you weren’t even going to urge men to vote for me, Abby.”

  “I’m not, nor to vote for any other candidate. But I would hate to think that my trial created more problems for you than I have already—albeit inadvertently—sent your way.”

  “As a lawyer, I am ethically bound to do what is best for you, without regard to my own interests.”

  “Alright, in that case my desire is get this trial over with as quickly as possible. If I am convicted, I will go to jail for six months and work to bring people I meet there to the cause of abolishing slavery. Perhaps I will start an abolitionist newspaper for prisoners.”

  “What if you are acquitted?” he said.

  “If I am acquitted I will go back to our farm in Worcester, recover there for a few weeks and—” Lincoln noticed a tear in her eye “—spend time with my daughter. She is already thirteen. It is so hard to believe.”

  “Tempus fugit,” Lincoln said.

  “So it does, so it does.”

  “It is unusual for a mother to leave a teenager behind.”

  “I don’t take that as a rebuke, Abraham.”

  “It was not intended as such.”

  “Well, I hate to leave her behind each time I go out on the lecture circuit. But I felt, starting many years ago, that I ought not to advantage myself when slave women are often forced to leave their children behind at an even younger age.” She paused. “Or, indeed, see them sold away.”

  “How old was your daughter when you first went back out to lecture?”

  “She was five.”

  They had now traversed the hallway several times, and Lincoln could tell that she was tiring.

  “I think it is time to return you to the custody of the sheriff,” Lincoln said. “Before I do, are you able to make a decision now about attending the trial tomorrow?”

  “I think I will be able to attend so long as I don’t have to get there bright and early.”

  “Alright. I will send Herndon to get you, and he will escort you to the court when you are ready.”

  After that, Lincoln walked her back the sheriff’s office, with her still holding on to his arm.

  When they got there, Lincoln said, “Sheriff, I am returning your prisoner to you.”

  The sheriff looked up from the newspaper he had been reading, saw them and grinned. “You two look like you’re betrothed,” he said.

  “He is much too young for me, Sheriff,” Abby said.

  “Oh, what is the age difference?”

  “I think it is only two years,” she said. “But I think Mr. Lincoln is already spoken for, as am I. Not only that, but we have some political disagreements.”

  Lincoln said nothing but wondered, not for the first time, what it would be like to be married to someone who was so different from Mary Todd. But no less political, he reminded himself. If only... Well, and now he wanted to be president of the United States, and, should he win, Mary would be coming with him into that maelstrom. She would almost certainly bring her emotional problems with her, but the social pressures on her in Washington would be even greater than they were in Springfield. He did not look forward to that.

  41

  United States District Court

  Springfield, Illinois

  October 16, 1860

  The federal courtroom Lincoln entered on the morning of October 16 was hardly unfamiliar to him. It was not only in the same building his own law firm had occupied earlier in the decade—the courtroom being just one floor down from his old offices—but the ornate room, with its high bench, white railings and green felt-covered tables, had been the seat of the United States District Court for the Southern District of Illinois since 1855.

  Lincoln had tried cases in that very courtroom dozens of times. So when he walked into the room that morning, he felt as comfortable there as he did in any other courtroom in the state. He planned to make himself at home in it and show the jury that he owned it.

  What surprised him, then, was not the packed gallery he saw, with reporters from all over the country filling every seat, including, in one of them, Clarence (and right next to him, Annabelle). It was instead the man he saw sitting up on the bench. He had expected, as he had told Abby, to find his old friend Judge Samuel Treat there. Instead, there was a man whose nameplate said Judge Benjamin Garrett.

  Treat was the only federal judge in the district and a man with whom Lincoln was extremely comfortable. Lincoln had tried hundreds of cases before him back when Treat was a state trial judge, and argued dozens of appellate cases before him when Treat was later promoted to sit on the Illinois Supreme Court. Then, when Treat had been appointed to the Federal District Court by President Pierce back in ’55 he had presided over still more of Lincoln’s cases.

  As for Judge Garrett, Lincoln had never before laid eyes on him. Nor, for that matter, had he ever heard of him.

  Garrett had clearly heard of him, however, because before Lincoln could open his mouth to say a word, the judge said, “Welcome to my courtroom, Mr. Lincoln.”

  “Thank you, Your Honor. I am pleased to make your acquaintance.”

  “Well, I hate to start out our acquaintanceship on a sour note, Mr. Lincoln, but you are late for this hearing.”

  “I apologize, Your Honor. I was visiting my client in the jail. She is too ill to attend today, and I was gathering up her wishes on certain motions that may arise.”

  “Be that as it may, Counsel, you have inconvenienced not only me, but the court’s clerk and counsel for the United States of America.” The judge nodded his head toward the man sitting at the table to Lincoln’s left. Lincoln, who was by then standing behind the counsel table but had not yet taken his seat, leaned his long frame out ov
er the table and swiveled his head so he could read the man’s nameplate. It said G.W. Lizar.

  Lincoln realized it would be hard to resist making a pun on the man’s last name, and he wondered if he could also somehow work the man’s initials into it. But G.W. Lizar was another person Lincoln had never before seen in Springfield. The regular United States attorney, the government’s principle lawyer in Springfield, was missing from his usual place.

  “Let us move quickly forward, Mr. Lincoln,” Judge Garrett said. “You are probably wondering where Judge Treat is. I have here his written recusal from this case.” He lifted a piece of paper from the desk in front of him. “I will hand it to the clerk to hand to you.”

  The clerk, a large man named Craig Laurence, whom Lincoln had known for many years, took the paper from the judge and brought it to Lincoln, who read it over and said, “Well, I see that, as is often the case with a recusal, it doesn’t say why he is recusing himself.”

  “I think it’s fairly obvious,” the judge said. “He told me the two of you are close friends.”

  “I don’t know if I’d say close,” Lincoln said. “But however near or far apart we are in our friendship, we’ve been at the same distance, whether it be measured in feet or furlongs, for many years now, and he’s never felt the need to recuse himself before.”

  “I think the core of it, as I understand it, is that the two of you play chess together frequently,” the judge said.

  “I would put it more that Treat plays while I have the honor of watching him win.”

  “That is precisely the point, Mr. Lincoln. He may have felt you were letting him win and thus currying favor with him.”

  Lincoln paused a moment and said, “That reminds me of the story of the man who took his pig to market...”

  The judge interrupted. “Mr. Lincoln, I have heard it said that you like to tell stories in court and that they are often very funny, but I am a judge in Chicago, where we focus on the facts and the law. So we will have to leave the man and his pig behind for the moment.”

  “I have been to Chicago once in a while,” Lincoln said.