The Day Lincoln Lost

by Charles Rosenberg

  “I am aware of that,” the judge said. “I know you have had the high honor of being nominated in that city to lead your party’s presidential bid. But that is neither here nor there inside this courtroom.”

  Herndon, who had been sitting in the back listening, raised his eyebrows. The judge might think now that Lincoln’s candidacy was neither here nor there, but if Lincoln got himself elected, and the judge hoped for a more prestigious federal job, it would be both here and there. Well, the man was probably a Democrat, so he wouldn’t likely be in line for any important job anyway.

  Lincoln ignored the judge’s remark and said, simply, “Your Honor, I have a motion to bring in this matter that I think is very much both here and now.”

  The judge peered down at him. “That’s fine, Mr. Lincoln. But Mr. Lizar—” Lincoln noticed that the judge had very carefully pronounced the man’s name Lee-sar “—has let me know he also has some matters to bring to the court’s attention. As a matter of courtesy, I think I should permit the government to go first.”

  “Well, I have no objection to that,” Lincoln said and sat down.

  The judge had been swiveling back and forth in the high-backed wooden chair that Lincoln knew Treat had had specially built for himself several years before. It squeaked noticeably.

  “Did this chair always squeak like this when Judge Treat was presiding?” Judge Garrett asked.

  “No, Your Honor,” Lincoln said. “Perhaps it needs a little whale grease or something to lubricate it.” Lincoln didn’t say what he was truly thinking—that Judge Garrett appeared to weigh a great deal more than Judge Treat, which might be the problem.

  Lizar rose from his chair and, ignoring the squeak issue, said, “Thank you, Your Honor, and you, too, Mr. Lincoln, for your courtesy. The government moves for a continuance of this matter until after the election.”

  “On what ground, sir?” the judge said.

  “On the ground that Mr. Lincoln is a candidate for the presidency, which will distract the jurors. It is just too bright a light for them to ignore.”

  “What do you mean by too bright a light?” the judge said.

  “I mean that we will have jurors voting by party. Republican jurors will simply vote to acquit Mr. Lincoln’s client.”

  “What do you say to that, Mr. Lincoln?”

  “Well, first, Mr. Lizar—” Lincoln made a point of pronouncing the man’s name as it was spelled “—has now made the issue of my candidacy either here or there. I’m not quite sure which. Perhaps both.”

  The audience tittered. The judge silenced them with a sharp look, and Lincoln continued. “Your Honor, the government’s case is so weak I would be happy to have as jurors only those jurors who will swear an oath to vote for Senator Douglas or even that other Democratic candidate who is running.” Lincoln scrunched up his brow. “I’m sorry. I have forgotten his name.”

  “Breckinridge,” the judge said.

  “That’s right,” Lincoln said. “Vice President Breckinridge. The only good-looking candidate for the presidency.”

  There was a burst of laughter in the courtroom.

  The judge, apparently deciding that it was best to ignore the humor breaking out around him, said, “I’m going to deny the government’s motion. If, during jury selection, it appears that Mr. Lincoln’s celebrity is a problem, I will reconsider the government’s motion. Now, Mr. Lincoln, I believe you said you had a motion to bring.”

  “I have two,” Lincoln said. “But if the first one is granted I won’t need to get to the second.”

  “Alright, but before we get to your motions, we need to discuss the fact that the defendant is not here.”

  “As I said earlier, she is feeling poorly.”

  “I take your word for that, sir. But we do not try people in absentia in this country unless they appear for trial and then flee after the trial has begun or voluntarily absent themselves.”

  “Your Honor, may I consult with my partner, Mr. Herndon?”

  “Yes, of course.”

  Herndon came forward and whispered in Lincoln’s ear.

  “Your Honor,” Lincoln said, “my more learned partner, Mr. Herndon, informs me that the pretrial motion phase is not considered in this state to be the start of the trial.”

  “I agree,” the judge said. “The trial begins when the first juror is sworn in. Will your client be here for that?”

  “I hope so, Your Honor.”

  “If not, Mr. Lincoln, we will have a problem.”

  Lizar rose from his table. “Your Honor, the government would be willing to continue the trial until Mrs. Foster is feeling up to it.”

  The judge smiled. “Why does it not surprise me that the government would be willing to do that?”

  Lincoln didn’t wait for Lizar to respond. “Your Honor, I don’t think we will need to take Mr. Lizar up on his generous offer. I will endeavor to make sure that Mrs. Foster is here when the real trial begins.”

  “Very well, Mr. Lincoln. Now, let’s turn to your motions. What is your first motion, sir?”

  “It is one that I think will end this case today,” Lincoln said.

  “Let’s hear it, Mr. Lincoln.”

  42

  “Yes, Your Honor,” Lincoln said. “My client has been indicted for violation of Section 7 of the Fugitive Slave Act of 1850, for assisting a captured slave to escape again. The maximum penalty for violating the Act is a fine of $1,000 and six months’ imprisonment. The indictment asks for the maximum penalty.”

  “What is the problem, then, Mr. Lincoln?”

  “In a separate section of the indictment, at the very end, the government has asked for a penalty of five years’ imprisonment and a fine of $10,000, but without alleging that Mrs. Foster committed any crime that carries that penalty. She is only charged with violating the Fugitive Slave Act.”

  “What is your motion, then, Mr. Lincoln?”

  “That the excessive penalty be struck or, in the alternative, that the entire case be dismissed.”

  “Mr. Lizar?”

  “Uh, I think Mr. Lincoln could be right, Your Honor, but only because there is an inadvertent error in the charge. Somehow, the allegation of the other crime, the one that would justify the longer sentence, got left out of the indictment.”

  “Left out by you?”

  “Uh, no, I believe it was an error made by the regular United States Attorney in this District, who is, uh, not here at the moment.”

  “We have all been wondering,” Lincoln said, “what happened to him?” He raised his eyes to the ceiling as if seeking Divine guidance on the man’s fate.

  The judge seemed not to be offended that Lincoln had interrupted but instead followed his lead and said, “Yes, where is he, Mr. Lizard?”

  “He was called back East on an urgent matter,” Lizar said, apparently deciding not to notice that the judge had added a d to his last name. Or perhaps, Lincoln surmised, it was such a common occurrence that Lizar had simply not noticed. And what did the G.W. stand for?

  “Well, Mr. Lizar, I don’t hear you volunteering to strike the improper request for additional punishments from the charge,” the judge said. “So, whosever fault it was, I’m going to grant Mr. Lincoln’s motion and dismiss the entire case.”

  “But, Your Honor...”

  “Mr. Lizar, the government can always refile, of course, with the indictment properly drawn.”

  “The government instead requests that you continue the case,” Lizar said. “That will give me time to consult with the, uh, proper people to see what crime was left out of the charge, so it can be put back in.”

  Lizar kept looking down at a piece of paper on the table, as if the names of the people to consult with were listed there.

  “Won’t you have to impanel a new grand jury to do that, Mr. Lizar?” the judge said.

  L
izar looked back up. “Perhaps,” he said.

  “Perhaps? Well, my understanding of the law may be limited, but I don’t think you can willy-nilly add a new crime to a filed indictment just because you feel like it.”

  “Yes, that’s right,” Lizar said.

  “Of course, it’s right!” The judge’s face was getting red and he was breathing hard. “Here’s how it works, Mr. Lizar. The grand jury, after considering the evidence put in front of it, decides whether the government has shown probable cause that a crime has been committed by the defendant.”

  Lincoln had to suppress his laughter because he knew, as every criminal defense lawyer in Illinois did, that grand juries would usually indict whomever the government wanted to indict, for whatever crime the government wanted to indict them for.

  Lizar, meanwhile, was trying to recover his standing with the judge. “Your Honor, I didn’t supervise the grand jury that brought these charges.”

  “Charge, Mr. Lizar,” the judge said. “And why is dismissing the case while the government fixes the indictment such a big problem? Cases are delayed all the time. In fact, you yourself just moved to delay this one.”

  “Well, Your Honor, if you dismiss it instead of continuing it, the defendant will no longer be in custody.”

  “That’s not my problem,” the judge said. “Mr. Lincoln, do you have anything you want to add before I dismiss the case?”

  Lincoln had long ago learned that if you’re winning, you should just be quiet, but he couldn’t resist. “Your Honor, your question reminds me of the question asked of a pig who was being led to slaughter...”

  “No jokes, Mr. Lincoln, remember? Save it for the White House if you get there. Although in all candor, I was hoping we’d have a new president with at least some small sense of poetry to buttress his political rhetoric. Buchanan has been such a disappointment in that regard.”

  Lincoln shrugged. “Sorry, Your Honor. If I get there I’ll see what I can do poetically.”

  Lizar did have something to add. “Will Your Honor maintain Mrs. Foster’s arrest and incarceration while I look into this matter?”

  “I would have no authority to do that once the case is dismissed, which is what I am going to do today. Even if I did have the authority, I wouldn’t keep someone in custody while the government attempts to fix a problem of its own creation.”

  Lizar turned to Lincoln. “Will your client voluntarily remain in the City of Springfield in the interim?”

  “No.”

  Lincoln tried to suppress his glee. Because if the charge was dismissed for even an hour, he was going to hustle Abby out of town on the first available train East.

  The judge was still staring at Lizar. Finally, the judge said, “Mr. Lizar, you represent the United States of America, is that not correct?”

  “Yes, sir.”

  “And the government that has filed this indictment is seeking an impermissible penalty, given the crime charged. Isn’t that right?”

  “Well, it was the grand jury, but yes, sir.”

  “The entire grand jury walked over to the clerk’s office and filed this? All of them?”

  “Well, no, it was the United States attorney’s office on their behalf.”

  “Why can’t you, as the current attorney for the United States, just strike out the improper part of the indictment? Then we can go forward without a problem. You don’t need the grand jury to take something away.”

  “I may not have the authority. I might have to telegraph Washington. They may want to add additional charges.”

  “Washington? I thought we were here in Illinois, doing justice as a local grand jury thought appropriate.”

  “Well...”

  “Well nothing, Mr. Lizar, if you can’t or won’t strike the five-year part out and substitute $1,000 for $10,000, I’m about to lift up my gavel and dismiss this case.” He put his hand on the gavel.

  Lizar said nothing, but just twisted his hands together.

  Instead of picking up the gavel, the judge picked up a wooden-handled pen from a pen stand on the bench and held it up. Lincoln could see the gold nib glinting in the light.

  “Here’s the pen, Mr. Lizar.” The judge lifted up a piece of paper that had been lying on the bench. “And here’s the charging document. Please make a decision.”

  Lizar waited a few seconds and, finally, said, “May I approach, Your Honor?”

  “Yes.”

  Lizar walked up to the bench, took the pen, dipped the nib in the inkwell and struck out the offending clause. Then he scribbled some more, clearly striking out $10,000 and adding $1,000 in its place.

  The judge examined it and waved the paper back and forth as if to aid the ink in drying. “Alright,” he said. “Mr. Lizar has struck out the request for five years’ imprisonment and modified the fine, leaving the only penalty demanded a fine of up to $1,000 and imprisonment for up to six months in jail. Is that correct, Mr. Lizar?”

  “Yes, sir.”

  “Now, Mr. Lizar, I know you’re a lawyer, but I want to be sure you understand, on behalf of the United States of America, that if we go forward with the trial on this single charge, the government cannot later charge Mrs. Foster with a different, more serious crime based on the same set of facts or related facts. Do you agree with that?”

  Lincoln thought Lizar gulped before saying, “Yes, Your Honor.” Lincoln wondered what Lizar’s superiors were going to say when they heard what he had done. Even if Abby were to be convicted, but was sent to jail for only six months, she’d not equal Frederick Douglass in fame—but she’d be a much brighter star in the abolitionist firmament.

  Lincoln had drifted off into his reverie of Lizar being upbraided by his superiors when he realized that the judge was talking to him. “Mr. Lincoln, do you have anything you want to add?”

  “No, Your Honor.”

  Lincoln was getting to like this new judge more and more.

  “Now, Mr. Lincoln, you said you had two motions. What is your second one?”

  43

  “Your Honor,” Lincoln said, “I move to dismiss the charge against Mrs. Foster on the ground that it violates the First Amendment to the Constitution of the United States in that it seeks to punish protected political speech.”

  “What speech do you refer to?” Judge Garrett said.

  “In the charge, it says that defendant did willfully violate Section 7 of the Fugitive Slave Act of 1850—which criminalizes attempting to rescue a slave who has escaped—by saying to an audience gathered in the Second Presbyterian Church of Springfield, Illinois, ‘Go out and do something about it.’ The charge claims that those words caused the enslaved girl known as Lucy Battelle to be torn violently from her lawful owner by a mob and further causing her lawful owner to be injured, and further permitting said slave to abscond with herself.”

  “Abscond with herself?” the judge said.

  “Ah, I can see you have not been much involved with these fugitive slave cases, Your Honor,” Lincoln said. “It means she stole herself away from her master. Like a table running away.”

  “I see. Well, it is an odd locution.”

  “I want to respond, Your Honor,” Lizar said.

  “Go ahead, Mr. Lizar.”

  “Your Honor, speech can of course cause illegal actions. The First Amendment does not protect against inciting to riot.”

  “We do not concede that that is what happened here,” Lincoln said. “But even if there was a riot, the phrase ‘go out and do something about it’ could mean a thousand things to a thousand people. Indeed, we don’t even know if the people in the church who heard the speech were the same people who did whatever they did in the square.”

  “Mrs. Foster’s words clearly meant only one thing here,” Lizar said. “Go seize the slave from her lawful owner.”

  “The phrase ‘go out and do some
thing about it’ meant go and do something about slavery,” Lincoln said. “Under Mr. Lizar’s interpretation of the Constitution, any words uttered by a person, which are then followed by bad acts by others makes the speaker a criminal. If that is the law, the First Amendment would be the most gossamer of protections. Surely the Founders didn’t face down George III, at peril of their very lives, to give us only that.”

  Lincoln felt good about how he had finished up. The Founders, he had learned, despite most having been dead for nigh on forty years, still played well in courtrooms, to both judges and juries alike.

  But not this time.

  “I am going to deny your motion for now,” the judge said. “Much of what the two of you are arguing is facts, not law. But, Mr. Lincoln, as we develop those facts during the trial, my denial is without prejudice to your bringing your motion again at the close of the government’s case.”

  “Thank you, Your Honor.”

  The judge might not, Lincoln thought, turn out to be so bad after all, even though he had clearly been sent down from Chicago by someone who wanted either a long delay or a speedy conviction. But judges were like that—hard to order around. Especially federal judges, who were appointed for life. If he were elected president, he’d need to take special care as to whom he appointed to those lifetime positions.

  “Let us get started with jury selection,” the judge said. “Where is our marshal?” He looked toward the back of the room. “Ah, there you are, Marshal O’Connor.”

  “Most people call me Red, Judge.”

  “That’s fine. Red, how many potential jurors do we have lined up?”

  “I have thirty waiting in various parts of this building—not a lot of room here, you know.”

  “Good. Would you please put the names of those thirty people in a hat, draw out sixteen at random and have those men come in and sit in the jury box? That’s about all we can fit in right now.”

  “Will do, Your Honor.”

  “Alright, we will stand adjourned for fifteen minutes while the marshal gets that done.”