The Day Lincoln Lost

by Charles Rosenberg

  “What’s your plan, then?”

  “Congress is required by law to count the electoral votes on February 13. After none of us gets the needed 152 votes, the House is required to move immediately to a contingent election. Voting state by state, where each state gets only one vote, the House will choose a winner from among the top three electoral vote-getters. I plan to win that contingent election.”

  “What if no one gets a majority of the states?”

  “In that case...”

  Lincoln’s answer was interrupted by a knock on the door, and Herndon went to answer it. It was Clarence Artemis.

  “I’m sorry, Clarence,” Herndon said. “We’re having a private meeting and...”

  “I invited him, Billy. Show him in, please.”

  Herndon raised his eyebrows, but did as Lincoln asked.

  After they were all seated at the table, Lincoln said, “Clarence, I am prepared to give you another interview, even though I have not reached the White House quite yet. But some topics are not to be covered, and I will let you know what they are when and if you get to them.”

  “Alright, my first question is what do you plan to do if you lose the electoral college vote on February 13? By my calculation no candidate will get the 152 votes needed to win.”

  “I don’t want you to publish this, Clarence, but I agree with you about that.”

  “I apologize for being blunt, Mr. Lincoln, but when the House then moves to a contingent vote state by state, I don’t see how you win that election, either.”

  “Well, Mr. Artemis, by the time that contingent vote happens there will be 34 states, since Kansas will come into the Union in January. Is my count correct?”

  Clarence had brought with him a pad of paper on which he had apparently written down the vote counts he’d been studying. He looked down at the top page and said, “Yes, after Kansas is added, there will be 34.”

  “And in the House, I will need a majority of all the state delegations to vote for me, correct?”

  “That would be 18,” Clarence said. “How many are you confident of, Mr. Lincoln?”

  “Mr. Artemis, I’m sure an enterprising journalist like yourself has already calculated that number. So you tell me.” He smiled a broad smile.

  Clarence looked down once again at his papers and said, “I count 16 House delegations, by state, that have a majority of Republican congressmen. Those states will almost certainly cast their votes for you.”

  “I am therefore 2 states short.”

  “What are you going to do to get 2 more?”

  “Good old Illinois persuasion. All I need to do is convince a few congressman to switch parties and throw their states to me so I might be elected. I think I already know who they are.”

  “Are you gonna promise them appointments, as Quincy Adams is said to have done in 1824 to get the three additional states he needed?”

  “Certainly not. Particularly in this time of a crisis of the Union, doing that would destroy the presidency of any man who does that even before he takes the oath of office.”

  While Clarence was writing that down, word for word, Lincoln looked over at Herndon, who had been sitting at the table, grim-faced, arms folded. Lincoln had learned, belatedly, that Herndon had made promises of cabinet posts at the Republican convention back in May in order to secure Lincoln the nomination. And Herndon was aware that Lincoln knew and was not pleased.

  Still looking at Herndon, Lincoln said, “Nor is anyone else going to make such promises on my behalf. Please write that down, too, Mr. Artemis, and put it in your newspaper.”

  “I need to go out for a spell,” Herndon said. “I need coffee,” he added, and left abruptly.

  “I’d appreciate it, Mr. Artemis, if you did not report Mr. Herndon’s departure in the middle of this discussion.”

  “Well...”

  “It will help assure you of future interviews.”

  “Alright. But there is another important question I’d like to ask you.”

  “What is it?”

  “Three states, South Carolina, Mississippi and Florida, are threatening to secede even before the matter comes to a vote in the House.”

  “Even without waiting to see if I come out on top?” Lincoln said. “I am apparently poisonous even as an almost-winner. But what is your question, Mr. Artemis?”

  “If those three states leave the Union—and they are certainly not states whose Congressional House delegations are ever going to vote for you—that will leave only 31 states in the Union. The 16 states whose delegations will almost surely vote for you will then make up a majority and can elect you to the presidency.”

  Lincoln stood up, stared down at Clarence and said, “Mr. Artemis, the Union is perpetual. No state may leave it without the consent of the others. I will not permit anyone to assure my victory in the House by claiming those three states have left.” He paused. “You can put that in your paper, too!”

  “I will.”

  As Clarence was about to leave the room, Lincoln said, “Oh, there’s one more thing, Mr. Artemis.”

  “Yes, sir?”

  “Give Mrs. Carter my regards.” He winked.

  65

  Washington, DC

  The Speaker’s Room

  November 17, 1860

  Before November 6, Pennington, despite being Speaker, had not had a lot to do. As he had explained to Trenton, he had been elected as a consensus caretaker and was not expected to have to make any important decisions. As Speaker, he had, of course, presided over the House and swung the gavel as needed. He had also, without complaint, dealt with the slew of paperwork—proposed bills and committee reports—that came with the job. But there had been a lot less legislating than he had anticipated. The Pacific Telegraph Act had been the only major bill. It was almost as if everyone was waiting to see who would be chosen as the new president. In any case, he had two clerks to handle the bulk of what there was.

  That changed after Election Day. Within a few days, a horde of people had descended on his office. It seemed that almost all of them assumed that no candidate for president would win the needed majority of the electoral votes, and that there would be a contingent election in the House, presided over by him.

  Some of the people who came proffered advice on how to go about the process. Some asked for a prominent role in the proceedings. And a few, like Mr. Trenton from the Douglas campaign, wanted assurance that their candidate would be treated fairly—or perhaps even a bit more than fairly. A representative of the Breckinridge campaign suggested, for example, that there should be only one ballot and, later, in what he hoped seemed an unrelated matter, had asked if Pennington had ever wanted to be attorney general.

  Pennington knew why the man was suggesting there be only one ballot. Under the peculiar provisions of the Twelfth Amendment, while the House was choosing the president from among the top three electoral vote-getters, the Senate would be choosing the new vice president from only the top two vice presidential electoral vote-getters.

  He had expected someone from the Lincoln campaign to arrive sooner, but was not surprised when William Herndon, Lincoln’s law partner in Springfield, had that morning made an appointment to see him.

  Herndon came into the Speaker’s Room riding on what seemed a burst of energy, striding across the room, extending his hand, and saying, “It is an honor to meet you, Mr. Speaker! I think you were a delegate to the convention in Chicago last May that nominated Abe Lincoln, were you not?”

  “Yes, I was. And it was an honor to be there.”

  “I wasn’t a delegate, but as Lincoln’s law partner, I was there, too, of course. I think we may have met briefly.”

  “I apologize for not recalling it, Mr. Herndon, but, then again, there were over six hundred delegates and a lot of other people, as well.”

  “Of course.”
/>   “Won’t you be seated?” Pennington said.

  Herndon sat down on one of the couches, declined an offer of something to eat and said, “I come on behalf of Abe Lincoln.”

  “I’ve already seen men who came on behalf of Douglas and Breckinridge, so your visit is not unexpected.”

  “To go directly to the matter, Lincoln respectfully makes two requests.”

  “Which are?”

  “First, he wishes the process to be scrupulously fair to all, and for it to be understood that no promises of office will be made to any man.”

  “Lincoln doesn’t want to end up in a presidency like that man’s?” Pennington pointed to the bust of Quincy Adams.

  “Precisely.”

  “That is the kind of request I would expect of Lincoln,” Pennington said. “I can assure him of fairness, but of course I don’t control who makes what offer of what office to whom.”

  “We appreciate that.”

  “What is the second thing?”

  “That when the contingent election is inevitably held in the House, that you assure that there are at least three ballots before the matter is closed.”

  “Before I ask the reason for that, is Mr. Lincoln so sure the contingent election will be needed? That no man will have a majority of electoral votes when they’re counted?”

  “Lincoln, with a likely 140 if we assume he gets California and Oregon, too, does not have the required majority of 152, and none of the other three even come close,” Herndon said.

  “Perhaps so,” Pennington said. “Yet everyone, so far as I can tell from what my various visitors have had to say, is shopping for faithless electors.”

  “The Republican National Committee is casting about for those. Lincoln himself is not. He calls it a fool’s errand.”

  “Well, I agree with Mr. Lincoln about that. And at my request, the Architect of the Capitol has gone and found some old ballots left over from the Quincy Adams contingent election in the House back in 1825.”

  Pennington walked over to his large desk, unlocked a drawer and pulled out two yellowing pieces of paper. He gave the pages to Herndon, who looked them over.

  “I see that the first ballot had the expected three names,” Herndon said. “Clay, Jackson and Adams. With a box to check next to each, plus a space for the name of the state casting the vote.”

  “Correct.”

  Herndon looked next at the second piece of paper. “It’s blank,” he said. “Except for a place where a state’s name can be written in.”

  “That is for states whose House delegations were tied,” Pennington said. “An equal number of Whig and Democratic congressmen in the state’s delegation. In which case, no candidate got that state’s vote. To indicate that, the state was asked to hand in a blank ballot that had no candidate names on it.”

  “So no one could surreptitiously check off a candidate name on that ballot even though the state delegation had not voted for that candidate?”

  “Correct,” Pennington said. “What the Architect of the Capitol tells me is that when the ballots were counted, those were announced as blank votes.”

  Pennington took back the two pieces of paper from Herndon and locked them away again.

  “Now, let me ask,” Pennington said. “Why does Lincoln want at least three ballots to be held?”

  Herndon took a piece of paper out of his vest pocket and unfolded it. “We have done some calculations,” he said. “As you know, when Kansas comes into the Union in January that will create a country of 34 states. To win the contingent election, Lincoln needs a flat majority—18 states—to vote for him.”

  “And?”

  “Right now, there are 16 states whose House delegations are solidly Republican, 16 that are solidly Democratic, and 2 that appear, one way or another, tied.”

  “I have made my own list,” Pennington said. He removed a piece of paper from his own coat pocket and he and Herndon compared their lists.

  When they were done, Pennington said, “Alright, we agree. Now, how do you plan to get the 2 additional states you will need to make 18 for Lincoln?”

  Herndon named them and went over the strategy for each.

  “I wish you luck,” Pennington said. “It might work. Although what Lincoln did in representing that radical Republican woman in her trial will make it hard to bring the Democratic congressmen you want on board.”

  “You may be right, Mr. Speaker, but we will try.”

  “Again, why at least three ballots?”

  “It’s similar to the strategy at the Republican Convention that got Lincoln the nomination,” Herndon said. “We will need multiple ballots to gain strength. No one will win on the first ballot, but Lincoln will hope to gain at least one state on the next one and win with more added on the third. But if there is only one ballot...”

  Pennington finished the thought for him. “No one will win for president. And then the vice president, who will be chosen by the Senate from among the two top finishers in the earlier-counted electoral vote for that office, will become the acting president for the next four years.”

  “Who could well turn out to be Senator Douglas’s running mate,” Herndon said. “Herschel Johnson, the slave-owning former governor of Georgia.”

  “How could that happen?” Pennington said. “There are many more senators from the North than from the South. Won’t those Northerners vote instead for Lincoln’s vice presidential running mate, Hannibal Hamlin of Maine?”

  “Some will, some won’t, Mr. Speaker. Some Northern Democratic senators will vote for Johnson over Hamlin simply because they are pro-slavery. As for those who aren’t pro-slavery, if they thought Lincoln might win the presidency here in the House, they will want to balance Lincoln out with a pro-slavery Southerner as his vice president. Senator Hamlin is strongly antislavery, while Governor Johnson owns more than a hundred slaves.”

  They both sat for a few seconds and contemplated what a Herschel Johnson presidency would mean for the country.

  Pennington spoke first. “A President Herschel Johnson would likely let the Southern states who want to secede go their way in peace. He would be worse than that drunkard Buchanan.”

  “Then, if I had to guess,” Herndon said, and paused, “Georgia would wait a year or two to secede as the final state to go, Johnson would resign the presidency, go with them, and become the president of some kind of Southern confederacy.”

  “You could be right.”

  “We are counting on you, Mr. Speaker, to be fair,” Herndon said. “But not so fair as to permit anyone but Lincoln and Hamlin to be elected.”

  66

  Law Offices of Lincoln and Herndon

  November 18

  Lincoln was in his office and, for the first time in many days, alone. The weather had turned suddenly colder, and there was hickory wood burning in the fireplace.

  He had sent Herndon to Washington, and banished the law clerks who were usually working and studying in the office. Hay had gone to spend time with his ailing mother, and his correspondence secretary, Nicolay, was over at the statehouse.

  Lincoln had spent hours and days with members of the National Committee, who were still convinced they could find 12 faithless electors and thus provide him the necessary 152 votes (California and Oregon had been confirmed for him) he needed to be elected when the votes were counted in Congress on February 13.

  He had tried to persuade them to concentrate instead on winning the contingent election in the House that would follow when no candidate garnered a majority of the electoral votes. They had said that effort could come later. But there was nothing to stop him starting work on the problem himself.

  One of the states that looked likely to cast a vote for Senator Douglas instead of Lincoln in the contingent election was, embarrassingly, Illinois. Five of its nine congressmen were Democrats, but only fou
r were Republicans.

  Lincoln was to a large extent a self-made politician. Which meant that when he really wanted something, he often went directly to the person involved instead of sending an emissary. And living right there in Springfield was a Democratic congressman from Illinois whose mind and vote he could try to change.

  His name was John McClernand—a lifelong Democrat and one of Senator Douglas’s strongest supporters.

  McClernand and Lincoln had been, at the same time, both political enemies and good friends for more than twenty-five years. They had served side by side in the Illinois legislature in the ’30s and in the Congress in the ’40s. They were both lawyers, and had tried cases together as cocounsel, and on other occasions opposed each other in court. Eighteen years ago, the man had also married Sarah Dunlap, one of Mary Lincoln’s closest friends.

  When the knock on the door came, it was, as he expected, McClernand, a wiry man who seemed, as usual, to be brimming with energy.

  They shook hands and Lincoln said, “I know Sarah has been ill with consumption. How is she faring? Better I hope.”

  McClernand looked down at the floor, and the energy with which he came in seemed to drain out of him. “Not well. I fear the worst, but perhaps God will see to her recovery.”

  “I fervently hope that will come to pass,” Lincoln said and, sensing that his friend wished to move on to a less painful topic, said, “John, I don’t think we’ve seen each other since the patent case we tried together as cocounsel last year.”

  “Well, we’ve both been busy campaigning, albeit on different sides of the aisle, as we’d say in the House.”

  “That’s true,” Lincoln said, as he cleared a space for them both at the table, pushing aside the usual piles of newspapers.

  “I had expected to be calling you Mr. President the next time we met,” McClernand said.

  Lincoln laughed. “Perhaps so, although you have been working hard to provide Senator Douglas with that title.”

  “Yes, but now it’s almost in your hands. The rumor is that your National Committee is searching for errant electors who will come over to you and give you the electoral college win when the votes are counted in February.”