The Day Lincoln Lost Page 17

  Lincoln was startled. “You’re married to the famous songwriter?”

  She laughed, loudly. “No, no, that is a different person, and although that man claims to be an abolitionist because he wrote ‘My Old Kentucky Home,’ the lyrics of other songs he has written tell me that he is no friend of Negroes.”

  “Oh.”

  “As I was saying, I will talk with my husband and let you know. Whichever way we decide, I thank you and Mr. Herndon for your kind offer.”

  “Thank you, Abby. I will wait to hear from you.”

  “Goodbye, Abraham. Perhaps I will see you in the White House.” She picked up the bag and took two apples from inside. “Here,” she said. “Take one with you. And here is another for the sheriff.”

  The sheriff arrived back shortly after that, asked Lincoln to step out of the cell and then relocked it.

  As they walked away, the sheriff said, “Did I hear her call you Abraham?”

  “You did.”

  “Isn’t that rather forward?”

  “She is a Quaker. That is their way.”

  “A weird way if you ask me.”

  “Perhaps so, but in any case, she is making you a gift of this apple.” He handed it to him.

  32

  When he returned to the office, Lincoln found Herndon at the big table, surrounded by stacks of case reporters, with his head buried in one. In their division of labor over the years, Herndon did legal research more often than Lincoln, but Lincoln did, too, on occasion. Lincoln’s enemies, though, enjoyed spreading the rumor that he’d hardly ever opened a law book, and was just good on his feet, telling stories and persuading juries to ignore the facts.

  “What are you doing, Billy?”

  “Researching how the Fugitive Slave Act has been interpreted.”

  “Aren’t you already familiar with it? You represented that captured slave, Edward Canter, earlier this year.”

  “This case is different. There, I was trying to find a way to prevent Canter’s return south. Here, we have someone charged with, among other things, attempting to rescue a slave from custody or assisting a slave to escape from her lawful master. Which is a violation of Section 7 of the Act.”

  “What, specifically, are you researching?”

  “Whether mere words can constitute an attempt to rescue or assist an escape.”

  “What’s the penalty if she’s convicted?”

  “Look for yourself.” He handed Lincoln a statute book. Lincoln took it, studied it and said, “Not as harsh as I would have expected—up to six months in prison and a $1,000 fine.”

  “Correct. But here’s the thing,” Herndon said. “They are also asking for a fine of $10,000 and imprisonment of up to five years.”

  “Connected with what charged crime?” Lincoln said.

  “It’s not connected to any charge in the indictment. Perhaps the original draft of the indictment included some other crime that carried those penalties. Then they took it out but left in the penalty. So it’s a mistake.”

  After a moment, Lincoln said, “Do you mind my calling you Billy?”

  “Instead of what?”

  “Herndon, just as you call me Lincoln.”

  Herndon paused for a few seconds before answering, then said, “I never thought on it before.” After a few more seconds, he said, “I’ve rather come to like it. And quite a few people call me Billy. I don’t know if I want you to call me Herndon.”

  They left it at that, and returned to the topic at hand.

  Lincoln said, “My guess is that Mrs. Foster might well welcome six months in jail. It would raise her reputation among abolitionists to the highest level and fill her lecture halls to overflowing.”

  “She wants to be a martyr to the cause?”

  “Perhaps. How well do you know the marshal, Billy?”

  “Red? Well enough. I’ve played poker with him a lot.”

  “Who wins?”

  Herndon got up and went over to the rolltop desk that stood against the wall. He burrowed in a cubbyhole and pulled out a sheet of paper. “I’ve kept track of who has won and lost in that game over the years.” He handed the paper to Lincoln.

  Lincoln looked it over and said, “Red won a lot more than he lost.”

  “I made sure of that,” Herndon said. “It pays to be on his good side.”

  Lincoln raised his eyebrows. “Small towns. They are the same everywhere.”

  “Be that as it may, I will need to interview Red about what he knows.”

  “I assume he’ll be truthful,” Lincoln said.

  “Or perhaps not.”

  “Why not?”

  “Section 5 of the Act says that if a marshal allows a captured slave to escape, he’s liable to compensate the slave owner for the full value of the slave’s lost labor.”

  “Only if the marshal’s at fault for the escape?”

  “He has to pay either way. Presumably to discourage an abolition-friendly marshal from looking the other way when a captured slave is about to escape.”

  “Did Edward Canter try to escape from Red’s custody?”

  “No. He went peacefully once we lost in court.”

  “Any idea what happened to him?”

  “I heard they sold him south to one of the cotton plantations in Mississippi.”

  “Did he have a wife and family?”

  “Yes, a wife and three children. They sold each one of them south, too, but to four different places.”

  The two of them were silent for a moment. Lincoln realized that he could treat this as Billy’s invitation for them to engage in still another conversation about abolition—and Billy’s view that now was the time, not later. Lincoln decided not take him up on it.

  “That is terrible” was all he said.

  The next morning, Lincoln and Herndon were again in the office together, and Lincoln was perusing a freshly arrived batch of newspapers, together with a selection of letters addressed to Lincoln that came in every day from men, women and children from around the country.

  “The problem with these newspapers is that they’re already old news,” Lincoln said to no one in particular, although he knew that only Billy was available to hear him. “And the letters don’t have much to say about the Abby Kelley indictment. It’s too new.”

  “You also get telegrams from people,” Billy said. “And the Republican National Committee has set up shop in town. A lot of them travel around the country and have news to impart when they get back.”

  “True, true. But it’s just not enough. If the newspapers are correct, this issue with Mrs. Foster and her prosecution has the potential to affect the vote in a lot of places, including in Indiana and Pennsylvania, where the voters are a mixture of abolitionists, Know-Nothings, and the German Catholics whom the Know-Nothings hate.”

  “It’s a problem,” Herndon said.

  “How well do you know Johnny Hay, Billy?”

  Herndon looked up from the case reporter he’d been studying. “Well enough. Why?”

  “I’m thinking of sending him out to do a little fact-finding, but I need to know if I can trust him.”

  “What do you want him to do?”

  “To go off and meet ordinary people from various walks of life in both Pennsylvania and Indiana and talk to them about the election. But not tell them who sent him.”

  “I think he can do that. If drinking in taverns is part of the plan, he’ll excel!”

  Lincoln laughed. “Alright, I may do it, then.”

  “Just one thing,” Herndon said. “Remind John that women can’t vote, and so he shouldn’t spend too much time talking to them. He has an eye for the ladies, you see.”

  Before Lincoln could respond, there was a loud knock on the door.

  “Now that you’re the Republican nominee, we really should post a g
uard on the stairway,” Herndon said, and got up to see who it was.

  When he opened the door, a tall man with graying muttonchop whiskers, well dressed in a three-piece suit, stood there. “Good evening, sir,” he said. “I’m looking for Mr. Lincoln and Mr. Herndon.”

  “I’m Herndon and that’s Lincoln over there,” Herndon said. “Who might you be?”

  “I’m Stephen Foster, Abby’s husband.”

  33

  “Do come in,” Herndon said, reaching out to shake Foster’s hand. “Please have a seat.” He pulled out one of the captain’s chairs that had been shoved up against the big table. “Our apologies for the clutter,” he said, pushing some of the stacks of books aside to clear a space in front of the chair he’d offered Foster.

  At that point, Lincoln unlimbered himself from his chair, came over and shook Foster’s hand. “A pleasure to make your acquaintance,” he said.

  When the three of them were seated, Lincoln said, “As I’m sure you know, I had a lengthy conversation with your wife yesterday at the jail. She is a formidable woman.”

  “Indeed she is, sir. And that is what I came to talk to you about. Because that formidable woman is still thinking seriously of representing herself in her felony criminal trial.”

  “I thought I had talked her out of that,” Lincoln said. “But then, I often overestimate my powers of persuasion.”

  “She appreciated your offer to have Mr. Herndon represent her for free, but...”

  Lincoln interrupted. “Ah, she must have misunderstood. I thought I had made it clear that we would need to find a wealthy abolitionist to foot the bill. Under the circumstances, I could hardly agree that we would do it for free.”

  “Because it would seem as if you were supporting the abolitionist cause?”

  “Yes.”

  “I think I can remove this problem,” Foster said. “I have persuaded Abby that she must not represent herself. But in that case she wants the best jury lawyer in Illinois, and that is you, Mr. Lincoln.” He looked over at Herndon. “With all due respect to your own great talents, sir. I don’t mean to give offense.”

  Herndon nodded his head. “And none taken.”

  “Good,” Foster said.

  “But there are many other very good lawyers in this city,” Herndon said. “If not me and not Lincoln, why not one of them?”

  “We will take only Lincoln,” Foster said. “It is either him or she will defend herself.”

  Lincoln listened, calculating how he might now avoid representing Abby without damaging his chances in the election by losing the entire abolitionist vote for his refusal. Finally, he said, “I will consider it, Mr. Foster. But that should not be taken to mean, ‘Yes, I am going to represent her.’ Nor will I, under any circumstances, represent your wife for free.”

  “We can afford your fee on our own, Mr. Lincoln. When can you let you let us know if you will undertake the representation?”

  “I think we can let you know by tomorrow morning.”

  “That will be fine.” Foster pushed back his chair, shook hands with both of them and headed for the door.

  As he was about to open it, Herndon said, “Mr. Foster, I just wanted to say that I have so admired your work as an abolitionist. I may not quite share your radical views on every point, but you are certainly an inspiration for us all.”

  Foster turned to face him. “Mr. Herndon, I think my wife is the one to be admired. She is almost fifty years old and has been at this since she was twenty-five. And while it is now in some quarters fashionable to be an abolitionist, when she began it was not. And she suffered not only the slings and arrows of ugly words, but people throwing manure at her.”

  Foster paused for a moment and no one of them spoke. Then he said, “And now the outrage of our government trying to put her in jail for doing nothing more than giving an abolitionist lecture in a church.” He looked directly at Lincoln. “You have the power to prevent that. I suggest you consult your conscience and decide.”

  Foster didn’t close the door behind him when he left, and Lincoln and Herndon stood there, looking at the open door and then at each other, neither one at first saying anything. Finally, Lincoln said, “I am in a pickle to be sure.”

  “To be sure you are. It’s too bad you don’t smoke or drink, Lincoln. This is a time when the calming effects of those items might help you see your way through this.”

  They went back to the table, and Lincoln said, “The problem is that if she defends herself, she will almost surely lose. Which will put great pressure on me to say what I will do if elected.”

  “And either way, it will cost you votes. And the newspapers will make hay out of it because it will sell newspapers.”

  Lincoln stood up, leaned against a wall and began tossing a small leather ball up in the air, smashing it against the ceiling, and catching it on its way back down. He assumed the ball had been left behind by his ten-year-old son, Willie, “Perhaps the government’s case is weak and she will be acquitted even if she is her own lawyer,” he said.

  “We don’t know much about the government’s case, do we?” Herndon said.

  “No, except that the woman supposedly never went to the square. So all she is accused of is speech. Can someone, in the words of the statute, ‘attempt to rescue a captured slave from custody’ by speech alone?”

  They looked at each other and said, almost simultaneously, “No!”

  “That can’t be what the statute means,” Lincoln said. He was continuing to toss the ball in the air and to catch it on its return. It did not always bounce true, though, and he could see that he was making Herndon nervous.

  “So we could just let her husband know the argument and let them accomplish an acquittal by making their own defense on that basis,” Herndon said.

  “Or, they can look for another lawyer on their own. There is surely someone in this city—or even from Chicago—who will do it, and it doesn’t take a brilliant legal mind to see the argument.”

  “I’m not sure that solves the problem,” Herndon said. “While we wait for someone else to get her acquitted, it will still look to all the abolitionists in the country as if you have abandoned her. And if she is convicted, then...”

  Lincoln finished his thought. “I’ll move from being in a pickle to leaping into a tub of scalding water.”

  “And the Fosters will no doubt let it be known that they asked you to represent Abby and you said no.”

  “So there we are. If I care about the vote of the abolitionists, I must do it,” Lincoln said.

  “And you must also win the trial, Lincoln, or you will not only make yourself no friends, you will look weak. No lawyer is ever really forgiven for losing.”

  Lincoln tossed the ball even harder against the ceiling. On its rebound it ricocheted onto the table, not far from where Herndon was sitting. Herndon got up and moved to the other side of the room.

  “There is a key question, though,” Lincoln said. “By doing it, will I gain enough votes from abolitionists to offset the votes I will lose? And the lost votes will be from Democrats who do not want an abolitionist in the White House, and who will assume, despite my denials, that representing Mrs. Foster proves I am one.”

  “What are you going to do, Lincoln?”

  “Most of the Republican National Committee has set up shop here in Springfield. I am going to visit them, tell them what I’ve decided to do—represent her myself—and get their advice. Although I most certainly also value yours...Mr. Herndon.” He smiled and tossed Herndon the ball as he left.

  * * *

  Before he set out for the state Capitol building, where the Republican National Committee and its staff were occupying three small offices, Lincoln walked next door to the law offices of Stephen Logan. He knew that John Hay was working as a law clerk for Logan, who was Hay’s uncle. And John was indeed there.

&nbs
p; “Johnny,” he said, “I need you to come along with me to a meeting, and then I think I will have a mission for you. My only request right now is that you say nothing during the meeting.”

  “Alright, Mr. Lincoln. I will do that.”

  Once they reached the Capitol and found the Committee Lincoln introduced Hay as one of his assistants for correspondence and then got down to business. “Gentlemen, I have agreed to represent Abby Kelley Foster in her upcoming federal trial for aiding and abetting a slave to escape.”

  As he later told Herndon, the Committee members were collectively aghast. And some were downright apoplectic.

  A few, though, like the radical Republicans on the Committee—and once they had calmed down—saw the logic of it. It might well attract abolitionist votes. Others, although Republicans, but of a more conservative mien, argued that the abolitionists were never going to vote for him in any case because they mostly didn’t vote. And that representing Mrs. Foster was going to alienate both conservative Republicans and those Democrats who had been edging toward him.

  One of the members pointed out one other thing: that Lincoln’s support was primarily in rural areas, not in big cities. And abolition lecturers like Abby Kelley were particularly unpopular in rural areas and small towns.

  “Reformers are rarely popular,” Lincoln said.

  One of the other members reminded everyone that although large numbers of people were flocking to big cities—perhaps someday most people would live in such cities—that was a long time away. The last census had shown that, yes, New York City and Brooklyn had over six hundred thousand people between them, but the entire state of New York—most of it still rural—had over three million. So most Republican voters were still to be found outside the cities, not in them.

  “I acknowledge your point,” Lincoln said. “Indeed, I will be surprised if I even carry the City of Springfield.”

  When they had all finally had their say—it took almost another hour—Lincoln said, “Gentlemen, I know that some of you were not in favor of my nomination.”