The Day Lincoln Lost

by Charles Rosenberg

  “Thank you. Mr. Lizar, please call your first witness.”

  47

  “The United States calls Wilbur Jenkins,” Lizar said.

  An elderly man rose from a seat in the back of the room and walked slowly forward. When he got to the bar, Lizar opened it for him and directed him to the witness chair, which was a simple black captain’s chair set on a raised platform between the bench and the chairs in which the jurors were sitting. Two steps led up to it.

  Jenkins looked at the steps with what was clearly trepidation. Lizar sprang forward and helped him climb up.

  Once he was seated, the clerk asked Jenkins to raise his right hand. He raised instead his left hand. “No,” the clerk said, grinning, “your other right hand, sir.”

  Jenkins raised the proper hand and was sworn.

  “What is your full name, sir?” Lizar said.

  “Wilbur A. Jenkins.”

  “Does the A stand for something?”

  “Nothing so far as I know. My parents thought I oughta have one.”

  “One what?”

  “A middle initial. It was popular back around then. I think it was ’cause John Adams done gave his son a middle name. Quincy, you know.”

  Everyone in the courtroom laughed.

  “The Founders didn’t need ’em,” Jenkins said. “Tom Jefferson didn’t have one. But when they got to me, well, there it is. A.”

  “Thank you for that, Mr. Jenkins,” Lizar said. “But if I might turn to another question. Where were you on the evening of August 24 of this year, Mr. Jenkins?”

  “Well, I was lot o’ places I guess.”

  “I want to focus you on the evening. Where were you in the evening?”

  “Oh, that’s what ya want. Sure. Went over to Second Presby.”

  “Why did you go there?”

  “T’ hear somebody speak.”

  “Do you recall who that was?”

  “Sure, Reverend Hale. They usually call him Father Hale for some darn reason.” He looked at the judge. “Scuse my profanity.”

  “Did anyone else speak?” Lizar said.

  Jenkins paused a moment and screwed up his face. Finally, he said. “Yes! That radical lady, Mrs. Foster.”

  “Do you recall what she said?”

  “Uh-huh, yes.”

  “Well, what did she say?”

  “All kinda things.”

  “Can you recall any of the specifics?”

  “Sure.”

  Lincoln felt almost sorry for Lizar, who was having that most worrisome of experiences for a lawyer—a witness who, on direct examination, can’t remember what he was supposed to say. And on direct Lizar wasn’t allowed to lead him.

  “Well, Mr. Jenkins, can you tell the jury what you heard Mrs. Foster say?”

  “Yes, sir. She said slaves were treated right bad down South, and that there be an escaped Darkie—” he looked up at the judge “—regular, I’d use a differen’ word but we is in court, so...”

  “Please go ahead, Mr. Jenkins,” Lizar said.

  “Alright. What it were about was a Darkie what fled is gonna be give back to her owner. Down in the square.”

  “Did she say what she thought about that?”

  “Who?”

  “The speaker. Mrs. Foster.”

  “Oh, her. She was agin it.”

  Lincoln tried hard to keep a straight face. The jury would draw its own conclusions about the witness, and he didn’t want to be seen smiling at an old man struggling with his memory.

  Lizar, who’d been standing halfway between his table and his witness, moved closer, so that he was almost on top of the man.

  “Did Mrs. Foster say anything specific about what to do?” Lizar said.

  “I ’member that real good. Real good. She said go down an’ do somethin’ ’bout it.”

  “When did she say that?”

  “Who?”

  “Mrs. Foster.”

  “Oh. Right at th’ end.”

  “I have no further questions,” Lizar said.

  Lincoln was tempted not to ask any questions at all. But the man was presumably the first of a series of witnesses who were going to try to put words in Abby’s mouth, so he would try to use a razor on this one instead of an ax.

  Lincoln leaned over to Abby, who’d been sitting calmly beside him, her hands folded in front of her on the table, and whispered to her, “Do you recall seeing this man in the church that night?”

  “No,” she whispered back.

  Lincoln walked toward Jenkins until he was only about a foot from him. “Mr. Jenkins, do you have any problems with your hearing?”

  “I don’ think so. No. I heard you jess’ fine there.”

  “Do you recall where you were sitting in the church?”

  “Way back. Was late gittin’ there.”

  Lincoln walked casually back to counsel table, pretending to look at a piece of paper he picked up from the table. It was the oldest trick in the book, but sometimes it worked. In the same tone and level of voice he had used earlier, he said, “Mr. Jenkins, are you sure you don’t have any problems with your hearing?”

  “Like I said, Mr. Lincoln, I was in the back.”

  “Thank you for explaining that.”

  Lincoln glanced over at the jury. They seemed quite attentive. One was trying to cover up a snicker.

  Lincoln walked back up to the witness and raised his voice. “Mr. Jenkins, did anyone else speak that evening besides Mrs. Foster?”

  “Uh-huh. Father Hale.”

  “What did he say?”

  “I don’t know.”

  “You don’t recall?”

  “Right.”

  “At the very end, were there women collecting money?”

  “Yep. Three or four. Perhaps five.”

  “Did they say anything?”

  “They said a whole lot.”

  “What about?”

  “Givin’ money to end slavin’.”

  Lincoln considered asking him if perhaps it wasn’t those women who had said to do something about slavery by contributing. But Jenkins might just say no. It would be better to argue to the jury later that Jenkins likely misremembered who said what.

  He decided to risk one final question. “Mr. Jenkins, did you contribute any money?”

  Lizar was on his feet. “Objection! Irrelevant.”

  “Overruled.”

  “Let me ask again,” Lincoln said. “Mr. Jenkins, did you contribute any money?”

  “Hell no!” He looked up at the judge. “Sorry. Heck no! Hope heck is alright here.”

  “I have no further questions, Your Honor.”

  The judge looked down at Lizar. “Any redirect, Mr. Lizar?”

  Lincoln could almost hear Lizar asking himself: Was there a way to fix this? Certainly, Lizar could try to fix it later with other witnesses who were more certain. Those witnesses, if they confirmed what Abby had said, would give credibility to Jenkins’s memory—if Lizar actually had anybody who was more credible.

  Perhaps Lizar had the same thought, because he said, “No further questions.”

  The judge raised his voice. “You may step down, Mr. Jenkins. Mr. Lizar, please call your next witness.”

  48

  “The United States calls George Putnam, Jr.” Lizar said.

  A tall man got up from his seat in the audience and strode up to the bar. Unlike Jenkins, he didn’t wait for Lizar to open the gate for him, but pushed it open himself and, without being asked, walked up the steps to the platform and took his seat in the witness chair. Lincoln looked closely at him. He moved like a young man, but his skin, especially around his neck and on his hands, made it clear he was quite old.

  The clerk asked Putnam to raise his right hand and said, “Do you, sir,
swear to tell the truth, the whole truth and nothing but the truth, so help you God?”

  “I do!” Putnam said, in an unnecessarily loud voice.

  Lizar began his questioning, “Mr. Putnam, do you recall where you were the evening of August 24 of this year?”

  “I sure do. I was at the Second Presbyterian Church.”

  He was, Lincoln noted, a man with a big, booming voice. Some jurors, he knew, took that kind of thing as showing confidence and credibility. Others thought it made the person a show-off. He glanced at the jury but couldn’t tell what any of them thought about the man, although it was early.

  “What were you doing at the church that evening?” Lizar said.

  “I was attending a lecture by that lady there.” He pointed directly at Abby. Abby stared back at him but gave no hint she cared that he was pointing at her.

  “Who is that, sir?”

  “Abby Kelley Foster, to my understanding.”

  Lincoln leaned over to Abby and said, in a low voice, “Do you know him?” Abby nodded her head up and down, leaned over and said, “He yelled foul things at me the whole time.”

  “Were you there for her whole lecture, Mr. Putnam?” Lizar said.

  “Every word.”

  “Do you recall what Mrs. Foster said?”

  “Yes.”

  “Please tell the jury what you remember.”

  Putnam looked over at the jury and said, “She said a lot, but the meat of it was that slavery is bad, that slaves suffer a lot, that the Constitution is a slave document and a lot of other things abolitionists say along those lines.”

  “Did she mention politics?”

  “Well, she called Mr. Lincoln over there—” this time he pointed straight at Lincoln and then looked over at the jury “—a slave hound.” He grinned.

  Lincoln decided not to object, even though the man’s testimony was quite irrelevant to the subject matter of the trial. He did manage to glance at the jury, but caught no reaction.

  “Did she say who to vote for?” Lizar said.

  Lincoln had finally had enough. “Objection! This is far from relevant.”

  “Sustained,” the judge said. “Mr. Lizard, please confine yourself to eliciting testimony from this witness that more fits the evidence you told the jury you were going to present.”

  Lincoln glanced at the jury to see if they’d noticed the judge’s latest slip on Lizar’s last name. A few clearly had because they were trying to suppress smiles. He thought Lizar had, perhaps, once again not noticed.

  “The witness’s testimony to this point is just background, Your Honor,” Lizar said.

  “Background?” the judge said. “Are you proposing to paint a painting, Mr. Lizar?”

  “No, Your Honor. It’s a recent use of the term, to mean information needed to understand something. I fear I picked up the term in the East.”

  “I see. Well, here in the West, let’s try for more foreground, then.”

  Lizar turned back to his witness. “Do you recall the end of Mrs. Foster’s lecture?”

  “Yes.

  “What did she say?”

  “She mentioned that a recaptured slave was about to be returned to her master in the courthouse square, only a few blocks away.”

  “Did she say anything else?”

  Putnam again looked directly at the jury. “Yes. She said, ‘Go out and do something about it.’”

  “Are you sure?”

  “Yes, because at the time I was quite shocked that she would say such a thing.”

  “Why?”

  “Because my understanding was that she was urging the audience to—”

  Lincoln rose to his feet and interrupted, “Your Honor, I object. The witness seems about to give his interpretation of what he claims Mrs. Foster said. But she is charged here with, in effect, inciting to riot. So the issue here is her intent in saying what she said—if she even said it at all—not Mr. Putnam’s interpretation of it.”

  “The objection is not well-taken,” Lizar said. “The reaction of members of Mrs. Foster’s audience to what she said is highly relevant.”

  “Your Honor,” Lincoln said, “if Mrs. Foster had said, ‘Robins come back in the spring,’ would Mr. Putnam’s belief about what Mrs. Foster was urging anyone to do as a result of hearing that be worth even a thimbleful of birdseed?”

  The judge put his finger on his chin, as if he were thinking about it. Finally, he said, “Mr. Lincoln, your objection is overruled. I think the reaction of a member of Mrs. Foster’s audience to her words is relevant.” He smiled. “And I’m happy to see you’ve moved on from pigs.”

  Lincoln hadn’t expected his objection to be sustained. He was simply trying to educate the jury about the importance of intent, and, looking over at them, he sensed that it had worked.

  Lizar resumed. “To remind you, Mr. Putnam, my question was, Why were you shocked that Mrs. Foster said, ‘Go out and do something about it’?”

  “Because I had always heard she was a pacifist, and here she was urging us to go seize the slave girl from lawful authority.”

  “I renew my objection,” Lincoln said. “And request the jury be instructed to disregard the answer.”

  “Overruled,” the judge said, without waiting for Lizar to reply. “Go ahead, Mr. Lizar.”

  “Mr. Putnam, if you recall, at what point did Mrs. Foster say, ‘Go out and do something about it’?”

  “At the very end of her lecture. They were the last words out of her mouth.”

  Lincoln noticed that Abby was shaking her head slowly back and forth, in the negative. He hoped the jury was watching her.

  Lizar had noticed, too, and said, “Your Honor, Mrs. Foster is shaking her head back and forth, trying, no doubt, to communicate something to the jury. I ask that she be admonished not to do so.”

  The judge looked bemused. He had probably, Lincoln assumed, had the same thought he did, which was that Lizar’s request had simply called the jury’s attention to what Abby was doing. And interrupted the flow of his witness’s testimony.

  “Mrs. Foster,” the judge said, in not too stern a voice, “please don’t make head motions indicating your opinion of testimony.”

  “I’m sorry, Judge,” Abby said.

  Lizar was resuming. “Mr. Putnam, did anything happen after Mrs. Foster said, ‘Go out and do something about it’?”

  “Yes. A great many people rushed out of the church. I heard one of them yell, ‘Let’s go!’”

  Abby rolled her eyes. Lincoln didn’t think Lizar saw it because he was facing away from her, but he was quite sure the jury saw it because they had been riveted on Abby ever since Lizar’s objection to her head turning. If the judge saw it, he said nothing.

  “I have no further questions, Your Honor,” Lizar said.

  Lincoln looked over at Abby, in a way he hoped the judge would interpret as concern for her health. “Your Honor, could we have a few minutes before I begin my cross-examination of the witness?”

  “Of course, Mr. Lincoln. Let’s take fifteen minutes.”

  Lincoln turned to Abby. “Let’s leave this room. I’ve arranged for a small room elsewhere in the building where we can meet. We have some things to discuss before I cross-examine Mr. Putnam.”

  49

  The room they repaired to was small, with no windows. In the middle was a scuffed wooden table with four chairs. Lincoln and Abby sat down across from one another, but they had been seated for barely a minute when Herndon came in, carrying a small bag. He sat down next to Lincoln, put the bag on the table and said, “Mrs. Foster, I have brought you some of Dr. Graham’s cakes, which, to my surprise, I was able to find here in Springfield. And here is a bottle of spring water, filtered and then boiled.”

  “Why, thank you, William. But you must call me Abby.”

  “Alrigh
t, but people call me Billy, not William.”

  “How old are you?”

  “Forty-one.”

  “I still find it odd that someone of your age is called Billy, but I gather you like it, and people should get to choose what they wish to be called, certainly. So Billy it will be.”

  “Will your husband join us?” Herndon said.

  “No. He has been attending the trial, but has abolitionist business of his own to attend to during the breaks. He is in some ways busier with that than I am.” She paused and smiled. “And in some ways even more radical.”

  Herndon raised his eyebrows. “I thought you were the ultimate radical.”

  “Well, South Carolina and some other Southern states have threatened to secede if Abraham is elected president,” Abby said. “Stephen says we should just let them go. I used to think so, too. Now I am not so sure.”

  “What does he think would happen after they left?” Herndon said.

  “Before I answer that, would either of you like to share this Graham cake?” She had taken one of the cakes out of the bag, broken it into several pieces and laid them atop the bag.

  Lincoln wrinkled his nose, and Herndon politely declined.

  “Alright, then, Stephen claims that the departed states will fail to prosper because the world is more and more opposed to slavery and, more and more, buying cotton from elsewhere, like Egypt.”

  “We would still buy it to feed our own clothing factories in the North,” Herndon said.

  “Stephen thinks antislavery voters would soon force the Congress to adopt high tariffs on the import of Southern cotton,” she said. “And that more and more slaves would escape from the Border states, and then begin to escape from farther south. The Fugitive Slave Act would of course be gone, and the South would collapse on itself. He believes they would come back with their tail between their legs and beg to rejoin the Union.”

  Lincoln had listened to the discussion with an amused look on his face. Finally, he broke in. “Abby, would Stephen let the Southern states take federal property with them as they go?” he said.

  “Knowing Stephen, he would make them pay for it.”