The Day Lincoln Lost Page 24

  There was another burst of laughter in the courtroom.

  “Do you have any opinion about this case?”

  “I’m not sure what you mean, Mr. Lizar.”

  “Do you have an opinion about whether Mrs. Foster is guilty of the crime with which she’s been charged?”

  “Well, I’m not exactly sure what the crime is supposed to be—” he looked over at the judge “—it wasn’t described with a lot of detail. But in any case, I’ve got no opinion.”

  “No further questions,” Lizar said. “The United States would like to defer any possible challenge to this juror until all have been questioned.”

  “Alright,” the judge said. “Mr. Lincoln, your turn.”

  “Good morning, Mr. Humphreys. Tell me, are you a churchgoing man?”

  “Well, my wife, Nancy, is a charter member of Second Presbyterian in Springfield. I’m not a member, but I go often enough.”

  “How often is that, Mr. Humphreys?”

  “Well, when it’s easy to get there.”

  Laughter again rolled through the room.

  “When is that?”

  “You know, in the summer when it hasn’t rained and made the roads muddy and it isn’t too hot. And in the winter when it’s not too cold, and it hasn’t snowed and made the roads muddy.”

  “I see Father Hale is in the room,” Lincoln said. “Have you heard him preach?”

  “Yes, sir. But, in all candor—and no offense, Father—” he looked over at Hale “—I think the young assistant minister you’ve got now is better. Doesn’t put me to sleep. I’d want him for my funeral.”

  “Are you ill, Mr. Humphreys?” Lincoln said.

  “Oh, no. Not at all. It’s just that I’ll be fifty-seven next month, and so the funeral reference just meant, well, you know.”

  “We all know,” Lincoln said.

  Lincoln wasn’t troubled at all by Humphreys. He was looking for jurors who were independent enough to reject the government’s case, and Humphreys seemed to be one who would. Lincoln also wanted to communicate to the other jurors in-waiting that the defense was confident of its case, even if a juror was something of a skeptic.

  “The defense accepts Mr. Humphreys,” Lincoln said.

  The judge looked down at Lizar to see if he wanted to change his mind about reserving on Mr. Humphreys, but Lizar said nothing, and they moved on to the next juror.

  They moved rather quickly through the next fifteen jurors, who included a cobbler, a saddler, a farmer, a man who described himself as a large landowner, a baker, a man who had just opened a new hotel and a man who stunned the courtroom by saying he was a “driver” for the Underground Railroad.

  Lizar tried to get the “driver” for the Railroad dismissed for cause. To Lincoln’s surprise, the judge refused. After that, with sixteen jurors remaining in the box and no more waiting in the hallway, Lizar used one of his peremptories on the Underground Railroad man and his remaining two on two others, but spared Humphreys.

  Lincoln used none of his peremptories, leaving them with a jury of twelve and one alternate.

  “We are ready to go, it appears,” the judge said. “Let’s take a fifteen-minute break and then we will have opening statements.”

  During the break, Lincoln crossed the bar and approached Father Hale, who shook his hand vigorously. After a bit of chitchat, Lincoln said, “So, Father, did Mr. Humphreys tell the truth about his churchgoing?”

  “Well, Mr. Lincoln, let me put it this way. His wife is a good Christian woman and is an anchor of our church. One of the founders, in fact. She attends often, even in inclement weather.”

  “And Mr. Humphreys?”

  “Let’s just say that he has found the roads very muddy for the last couple of decades. But I think he will be a good juror for you.”

  “Is there anything else I should know about him?”

  “Hmm. Well, his grandfather was an officer in Washington’s personal guard, the Commander-in-Chief Guard. He likes to talk about it. If you can find a way to mention the Revolution, he’d sit up and listen.”

  “I will keep that in mind.”

  “There is one other thing, Mr. Lincoln, which I should mention to you. Mr. Lizar came to the church and asked to interview me about what I heard during Mrs. Foster’s lecture.”

  “Did you consent to an interview?”

  “No. Generally, I don’t think it’s appropriate for a preacher to testify.”

  “I see.”

  “But I think he plans to subpoena me.”

  “Will your testimony be helpful or harmful to Mrs. Foster’s case, Father?”

  “I think neither. But I will make you aware that I met with Mrs. Foster for supper before her lecture, and we did discuss the imminent return to her master of that poor girl who was ‘bound to service.’” He smiled. “As Mr. Lizar would put it.”

  “Would you like to say more?”

  “No, but if I am asked about that supper meeting, I don’t think what I have to say will be harmful, and it might be helpful.”

  “Thank you for that.”

  They were interrupted by a man who approached and, ignoring Hale, looked at Lincoln and said, “May I speak with you, sir?”

  “Why, Mr. Artemis, how nice to see you again,” Lincoln said. “Do you know Father Hale?”

  Clarence turned toward Hale prepared to shake hands, as Hale said, “Oh, Clarence and I do know each other. Not that long ago, I gave him a tour of our church.”

  “Indeed he did, and I am most grateful,” Clarence said. “But what I am here to ask, Mr. Lincoln, is if you might grant me an interview about this trial.”

  “As you already know, Mr. Artemis—I don’t know how many times I have to say it—I am not giving interviews these days for the reason you full well know.”

  “But this would not be about the campaign. It would be only about this trial.”

  “I’m afraid I must still decline. Perhaps after the election.”

  They both watched Artemis walk back to his seat in the courtroom.

  “He’s persistent,” Lincoln said. “I like that in a man.”

  “Within limits, it can indeed be admirable,” Hale said. “And speaking of the election, I wish you the best of luck in that, sir. I cannot in good conscience directly tell my parishioners how to vote, but I have hinted in every way I can that those who have the vote should vote for you.”

  “Why, thank you, Father. In truth, I will be surprised if I carry Sangamon County, even though I have lived here most of my adult life and am well-known. It is still too Southern a place. But I do hope to carry the city of Springfield and the nation.”

  “Godspeed, Mr. Lincoln,” Hale said.

  “Thank you. I will need all the help I can get, especially if I am privileged to be elected. And now I hear the judge calling us back to the trial.”

  46

  The jury was seated, the judge was in his chair behind the bench, and Lincoln and Lizar had taken their seats at their respective tables.

  The judge looked down at Lincoln. “Mr. Lincoln, I see that your client, Mrs. Foster, is still not in the courtroom, even though I am about to swear in the jury.”

  “She is still feeling poorly, Your Honor, but I believe she will be here momentarily. The sheriff has kindly agreed that if my partner, Mr. Herndon, will accompany her, she may come here without handcuffs, and we will return her to the jail at the end of the proceedings.”

  “How long do you think it will be, Mr. Lincoln, before she arrives here?”

  “Perhaps five minutes. Perhaps a little longer.”

  The judge looked down at Lizar. “Mr. Lizar, do you wish to make your opening statement now or do you want to wait for the defendant’s arrival? If you want to start now, I will need Mr. Lincoln’s consent on behalf of the defendant.”

 
“I will begin now, Your Honor, so as not to waste the time of our jurors.”

  It was, Lincoln thought, a nice move on Lizar’s part to try to suggest to the jury that Mrs. Foster was somehow about to inconvenience them. Getting jurors to dislike the defendant for reasons having nothing to do with their alleged crime was a common prosecutorial tactic.

  In this case, Lincoln had no choice but to consent or the jury would think that he was the one about to inconvenience them.

  “My client has no objection,” Lincoln said.

  On hearing Lizar’s decision and Lincoln’s acquiescence, the judge turned to the jury and swore them in as a group, pledging under oath to decide the case only upon the evidence presented and to follow the law.

  After the jurors had finished by saying, “So help me God,” the judge said, “Mr. Lizar is going to make an opening statement to you. In it, he will tell you what he expects the evidence in the government’s case to show. But what he says is not in itself evidence. For that, you will have to await the actual testimony of the witnesses who will appear here and testify under oath. Then I will tell you what the law is.

  “Mr. Lizar, please proceed.”

  Lizar got up, walked up to the jury box and let his eyes linger on the jurors for a few seconds, as if he were trying to make personal contact with each and every one.

  “Good morning, gentlemen,” he said. “I am G.W. Lizar. I am an assistant United States attorney. I represent the United States of America.”

  He paused as if to let the importance of who his client was sink in. Lincoln had been watching the jury, and Lizar’s naming of the United States as his client seemed, so far as he could judge, not to have impressed anyone. Lizar, as a newcomer to Illinois, seemed unaware that many people in Illinois, despite the rapid growth of the state, still thought of themselves as pioneers settling the frontier. Except in time of war, when patriotism tended to run hot, governments were none too popular in Illinois.

  “Gentlemen,” Lizar said, “the government’s case is fairly simple. The evidence will show that on Friday, August 24, a federal commissioner held a hearing here in Springfield to consider a claim by Ezekiel Goshorn. Mr. Goshorn alleged that one Lucy Battelle, a woman bound to his service in the Commonwealth of Kentucky, had run away and been captured near Springfield. Mr. Goshorn sought the court’s order permitting him to return Lucy Battelle to his tobacco plantation in Kentucky.”

  Lincoln noted that Lizar had avoided calling the commissioner a slave commissioner and had chosen to describe Lucy Battelle with the evasive legal words the Founders had inserted into Article IV, Section 3, Clause 2 of the Constitution to describe slaves—“a person held to service.” Lizar made the phrase sound, Lincoln thought, as if Lucy was an apprentice of some kind, and not a person bound by law to spend the rest of her life working for Goshorn without pay or any rights of any kind.

  Lizar was continuing. “The evidence will show that after Mr. Goshorn was granted the order of return that he sought, the United States marshal and the sheriff of this county escorted Lucy Battelle out of the courthouse...”

  “Excuse me,” the judge said, “I don’t usually interrupt a lawyer’s opening statement, and I apologize for doing so. But I want the jury to understand—” he looked over at them “—that when Mr. Lizar refers to a court hearing and a courthouse, he is referring to something that took place under federal law, but not before this judge or in this courtroom or in this building. To my understanding it was in a hearing room in the Sangamon County courthouse, not here.” He sat back in his chair and said, “Please proceed, Mr. Lizar.”

  Lincoln found Judge Garrett’s statement quite interesting. Was the judge, against all odds, a judge who was uncomfortable with slavery and the judiciary’s role in enforcing it? If so, he would try to make use of that.

  Lizar resumed. “Gentlemen, when the marshal and the sheriff escorted Lucy Battelle out of the Sangamon County Courthouse, the evidence will show that they found a mob waiting for them. Wisely, they went back into the courthouse to wait until the mob had dissipated.

  “Or so they thought. But what the evidence will further show is that, just as they were about to try again, a radical abolitionist speaker named Abby Kelley Foster—the defendant here—had just finished a speech inside the Second Presbyterian Church. In that speech she riled up the audience about the imminent return to service of Lucy Battelle.”

  Lincoln had to suppress a laugh. Did Lizar seriously think that no one on the jury knew that return to service meant a return to slavery?

  Lizar continued. “The evidence will further show that Mrs. Foster knew, in advance of her speech, about the near-riotous situation in the courthouse square and intentionally, at the end of her speech, urged the audience to action by saying ‘Go out and do something about it!’ She lit the flame.”

  “Objection,” Lincoln said, without getting up, while looking at the jury instead of the judge. “This is argument, not evidence.”

  “I agree. Gentlemen of the jury you are to disregard the phrase ‘lit the flame.’ Mr. Lizar, please confine yourself to what you contend the government’s evidence will show.”

  As the judge was speaking, Lincoln wondered if Abby Kelley Foster, a pacifist, had really said that. So far, he had not turned up any witnesses who remembered anything like what Lizar claimed. Lizar must have found someone willing to testify that he’d heard her say it.

  “The evidence will further show,” Lizar said, but he didn’t get to finish his sentence because at that moment the courtroom door swung open with a loud creak, and everyone turned to look.

  Mrs. Foster appeared in the doorway, holding on to Herndon’s arm. She was wearing a white bonnet, her hair put up under it, and a gray dress that covered her from neck to ankles. The outfit had been carefully chosen, Lincoln thought. On the one hand, it was very plain. On the other hand, it was fitted and quite clearly showed that Mrs. Foster still had quite a nice figure. Perhaps some of the twelve men on the jury would find themselves attracted to her.

  “Mr. Lincoln, I assume this is the defendant, Mrs. Foster,” the judge said.

  Lincoln rose. “Yes, Your Honor and members of the jury, this is Mrs. Abby Kelley Foster, the defendant. She is accompanied by my law partner, William Herndon. With the court’s permission, Mrs. Foster will come forward and sit beside me at counsel table.”

  “Yes,” the judge said. “And since this courtroom has done away with a separate dock for the defendant, the court has no objection unless Mr. Lizar has one.”

  “No, Your Honor, I do not,” Lizar said.

  Mrs. Foster and Herndon walked very slowly down the aisle, making it clear, Lincoln thought, that Abby was not only ailing, but frail. Herndon opened the gate in the bar for her, and when they reached the counsel table Lincoln pulled out the chair for her. She sat down with a sigh, and removed her bonnet, placing it on the table in front of her.

  “Please resume, Mr. Lizar,” the judge said.

  “Just a moment,” Lizar said, and looked down at the piece of paper he’d been holding, apparently trying to find his place in the outline of his opening.

  “Ah, yes,” he said. “Here we are.” He looked back to the jury. “Gentlemen, the evidence will show that upon hearing Mrs. Foster’s words, ‘Go out and do something about it,’ numerous people, both men and women, rushed out of the church, poured into the courthouse square and turned over the carriage in which both Lucy Battelle and Mr. Goshorn were by then sitting, badly injuring Mr. Goshorn and permitting Lucy Battelle to escape again from service.”

  Lincoln was watching the jury. It seemed to him that they were hardly listening. Instead, they were looking at Mrs. Foster. He hoped they were wondering how such a frail-looking woman could possibly have incited a riot.

  Lizar was continuing. “The judge will tell you what the law is in this case. But I will summarize what my understanding of it is.” Lizar looke
d up at the judge in case the judge was going to object to Lizar saying a single word about the law.

  Apparently seeing no hint of disapproval, Lizar went on. “Section 7 of what we call the Compromise of 1850, makes it unlawful for any person to ‘rescue or attempt to rescue a fugitive from service or labor.’” He paused. “It is also illegal ‘to assist the person owing service, directly or indirectly, to escape from the claimant.’

  “And, gentlemen, as the evidence will show, that is exactly what Mrs. Foster, through her words, did here. After you’ve heard all of the evidence, the government will ask you to bring in a verdict of guilty.”

  Lincoln was amazed. Lizar had managed to get through his whole opening statement without once mentioning the words slave or slavery. He had even avoided calling the Fugitive Slave Act by its real name. Compromise of 1850 indeed! He would correct that when he got the chance.

  “Thank you for your kind attention, gentlemen,” Lizar said, and returned to the table.

  “Mr. Lincoln?” the judge said. “Do you wish to make an opening statement?”

  There were times when Lincoln thought defense opening statements were useful, and it was tempting to get up and begin by saying that the evidence would show that Lucy Battelle was a girl who had been enslaved from birth, would be rendering her service without pay ’til the day she died and that her children and her children’s children would also be slaves. Which would be objected to by Lizar, but Lincoln thought he could probably get it said before the judge sustained the objection.

  He sat thinking about it. An opening statement would be risky when he knew so little about the facts. His experience had been that if the government, in its opening, got some of its facts wrong, juries tended to be forgiving. But if the defendant’s lawyer got the facts even a little wrong, juries tended to think the defendant had personally lied to them. And in this case, he had little idea who the government’s witnesses were going to be or what they would say.

  Finally, the judge pressed him. “Mr. Lincoln?”

  Lincoln rose from his table. “Your Honor, the defense will defer its opening statement to the close of the government’s case.”