The Ballad of Frankie Silver (15 page)

He is also a lawyer. He read law not far from here—with Spruce MaCay in Salisbury, North Carolina. In 1787, when my father-in-law the squire was a young clerk of court in Morganton, Andrew Jackson was the public prosecutor for the Western District of North Carolina. The older gentlemen remember him as a hard-drinking, quick-tempered scarecrow who would sooner fight than gamble.

People still talk about the incident that occurred when Jackson was practicing law over the mountain in Jonesborough in the months before he moved on to Nashville. He was invited to an elegant ball at the home of one of the county’s prominent families. Jackson asked if he might bring a companion, and the request was granted, no doubt in hopes that he might introduce another eligible frontier gentleman to polite society. Instead Andrew Jackson arrived at the home of his host in the company of five bawds, tavern women of easy virtue whom he tried to pass off as “ladies.” The shock and outrage of those present meant nothing to Andrew Jackson; it only satisfied him that the gentry had correctly interpreted his message of contempt.

Now gentlemen everywhere talk bitterly of President Jackson’s 1829 inaugural party, when a drunken mob of his beloved “common people” were allowed to rampage through the White House, leaving a trail of mud and broken china in their wake. The aristocrats are afraid that if this ruffian is allowed to run the country for another term of office, ruin will follow. There is talk of placing tariffs on imported goods, which worries a good many people. They do not criticize the president so publicly, however, for Jackson was a hero in the war with England twenty years ago, and his ties to western North Carolina are cherished by many. Jackson’s popularity with the local farmers and backwoodsmen is as undeniable as it is bewildering. I confess, though, that I sometimes wonder what it would be like to be independent of rich and powerful old men, and to be able to oppose them with impunity. Andrew Jackson is every inch a self-made man, and it heartens me to see that such a feat is possible, although I would wish to have more respect from educated and wellborn gentlemen were I in his place.

Besides these political and economic topics, and the ever-present discussions about the weather, we all spoke endlessly, obsessively, perhaps even morbidly, of Frankie Silver. Her trial was but a month away.

She alone of her family languished in the Burke County jail now. Her mother and brother had been let go after the hearing before the magistrates in January. Mr. Burgner quite rightly set them free, declaring that no one had offered any evidence to show that they had known of or participated in the death of Charlie Silver. They were, however, to be witnesses in the forthcoming trial, and to ensure their appearance in court on the appointed day, he made them post a bond of one hundred pounds to secure their liberty. Isaiah Stewart paid the requested sum, and he lost no time in putting forty miles of mountains between them and the law in Morganton, for he took his wife and son back up the Yellow Mountain Road to their land on the Toe River. Frankie Silver was well and truly alone in her prison cell, for the journey across the mountains was too great for a family visit, especially in winter. She must have missed her baby daughter dreadfully, but we did not speak of that. The ordinary folk of Morganton recounted the crime to one another, thrilling anew to the horror of it with each retelling, while we in the legal profession had a more prosaic matter to contemplate. Which of us would defend this wretched young woman?

We had gathered at a secluded table in McEntire’s tavern to discuss this delicate matter. I was there as an impartial participant, for as clerk of Superior Court, I could not have defended her even if I had wanted to. And I most certainly did not want to.

Nobody did.

I looked at the faces of my fellow lawyers gathered round the table. Their expressions ranged from wariness to mulish obstinacy. We were here to decide what must be done about her, and I thought that someone was bound to dislike our solution. For a frontier town, Morganton had a goodly number of lawyers, but not all of them cared to practice their calling in court. The fact that the western circuit court met in Morganton was reason enough to have a fair crop of lawyers about, but that was not the only reason they were plentiful. Wealthy planters sent their sons off to study law because a knowledge of legal matters was considered to be the final polish on the education of a gentleman. A trained legal mind made a man proficient in his business affairs, well able to understand deeds and contracts. Perhaps it was a vestige of the old pioneer spirit that inspired the elderly gentlemen to make lawyers of their sons: in that way, the family’s commercial ventures would not be at the mercy of outsiders when it came to interpreting and utilizing the law. The family would not have to take anyone’s word for the rightness of a business transaction or the meaning of a statute. If knowledge was power, then legal knowledge meant commercial and fiscal supremacy.

Some of these “gentlemen” lawyers, who practiced law for their own benefit only, did not attend our tavern conference, for the present legal dilemma was no concern of theirs. Others were there perhaps out of curiosity, but it was very much a family discussion. There were but six of us to settle the matter—it would have been seven if my brother Alfred had lived, and how I wished he had been there to offer his counsel. I was the youngest man present by a decade. My colleagues were my father-in-law Squire William Erwin; his eldest son and my brother-in-law Adolphus Erwin; Colonel James Erwin, their cousin; Mr. Isaac T. Avery, a former state legislator, who is married to my wife’s sister Harriet; Mr. D. J. Caldwell; and Mr. Thomas Wilson, who had represented Mrs. Silver’s relatives at the habeas corpus hearing with great success. Mr. Wilson’s wife Catherine is a niece of the Erwins, as her mother is Mrs. Erwin’s sister Ruth.

“You ought to take it on, Cousin James,” Adolphus suggested. “You could make a name for yourself with this case.”

“Yes, but not a name to be spoken in polite company,” growled Colonel Erwin. “The woman is an object of loathing to the entire county. Whoever takes her part in court will be branded with her villainy. The criminal cases are tried but twice a year, gentlemen, and they constitute at best a few weeks of work. What would become of the rest of my practice?”

“He’s right,” said my father-in-law. “Deeds and wills and civil lawsuits are the bread and butter of every country lawyer. Defend that woman, and no honest citizens will cross the threshold of your office thereafter.”

“What about you, Mr. Avery?” asked Adolphus.

The silver-haired gentleman shook his head. “I am the bank president now. I have no wish to dabble in criminal law. Particularly not in this case.”

“You ought to defend her, Wilson,” said Colonel Erwin. “You represented the family at the habeas corpus hearing. An admirable performance.”

“And so I have done my part,” Wilson growled. “Let someone else take up the burden. Any of you could afford the loss of income better than I.”

Thomas Wilson was the next youngest of the group, and not the least distinguished. He had served a term or two in the North Carolina legislature before he moved west to Morganton to set up his law practice, and as I have noted, he is related to the Erwins by marriage, which is useful. Wilson’s older brother Joseph, a prominent circuit court judge in Charlotte, had died within months of my own brother’s death, and because of this loss so similar to my own, I had always felt an unspoken bond of sympathy with the man. He had been kind in my bereavement, talking of his own loss and offering wise counsel about what I should do now that I had lost my future as a junior partner in a family law firm. Wilson was a good man, well respected by the community. Still, I had misgivings about him for such a momentous case. Thomas Wilson was a competent enough fellow for ordinary matters, but he always struck me as humorless and unimaginative. In my heart I knew that if I were ever in the dock in fear of my life at the whim of a loutish jury, I would want someone other than Thomas Wilson pleading my case.

“Regardless of one’s financial circumstances, it would be a pity to put a lifetime’s work on the rocks for the sake of a two-day trial with a foregone conclusion,” said Adolphus. “It would be folly.”

“Surely this one case could not harm a man’s career so grievously,” I said. “The public must be made to understand that everyone is entitled to a defense in court. Someone must side with an accused person, whether that defendant is guilty or not. I put it to you that our very legal system is built on that premise.”

“You might as well teach catechism to a mule,” drawled Adolphus. “The layman has no understanding of such matters, and no patience to have it explained to him. I consider myself lucky if I face a jury that is tolerably sober; I don’t ask them to think. The fact is, the townspeople are after that young woman’s hide. There’s not a doubt in anybody’s mind that she’s as guilty as Jezebel and twice as wicked. That mob will tar Frankie Silver’s lawyer with the same brush that convicts her of cruel murder, and while there will be no trial for her attorney, he will be sentenced to poverty as surely as she is bound to die. Let us be clear on that.”

“I wouldn’t even let my son Joseph take the case if he finished his study of law and passed the bar today,” said Colonel Erwin. “Not for the experience or the fame, or even for triple the fee that anyone is likely to get for defending her. No one who is going to practice law in this town can afford the taint of her society.”

“I can say the same for my own son Waightstill,” said Avery. “He will finish his studies at the university in a few months’ time, and he means to make the law his profession, but I would not wish this case on him for any consideration.”

The others nodded in somber agreement, and I could not doubt them. Between them they had a good half century’s experience in the practice of law, while I was barely past my first year, and, thanks to my clerkship, I was independent of the whims of clients. “But this is unfair, then!” I protested. “How can we ask any man to risk his livelihood by representing a hated defendant who is by all accounts guilty as charged?”

“You are well out of it, Burgess,” said Squire Erwin. “And much as I am tempted by the sheer challenge of the matter, I fear that my age and infirmity prevent me from such exertions, so I, too, must be exempted. Gentlemen, we would all be wise to keep out of this matter, but we cannot. We must make some provision for this poor creature’s defense, because that same mob who would shun us for defending the woman would be just as quick to condemn us for negligence if we abandoned her to her fate. We must steer a safe course between these two evils.”

“But what is the alternative? No lawyer wants this case.”

Colonel James Erwin looked thoughtful. “There may be one that does.”

*   *   *

“But
who
is Nicholas Woodfin?” Elizabeth asked me when I returned from the lawyers meeting at McEntire’s tavern (but for the presence of Mr. Wilson, I might have termed the gathering a family reunion with perfect truth).

“I have met him but once, I think. He has been a licensed attorney now for precisely one year, but we hear good things of him—at least your cousin James says so.”

“Woodfin … Woodfin…” Elizabeth shut her eyes and wrinkled her forehead. A sign, no doubt, that she was flipping through the pages of that great studbook-cum-social register that all the frontier gentlewomen seem to have indexed in their brains.

“Asheville,” I said helpfully.

She opened her eyes wide. “Asheville! So near! And his wife is—?”

“He doesn’t have one. He’s only twenty-one, and doubtless he has been working too hard in his studies to find time for courtship. But there is someone of your acquaintance who may vouch for him, and you will value his opinion even above mine—Mr. David Lowry Swain.”

Elizabeth gave me a look. “I might have guessed that, Burgess. Cousin James would not recommend a young novice for an important case unless there was some sign of distinction about him. For an Asheville attorney, that sign could only be a clerkship with the honorable David Swain, who is surely one of the most promising young men on the frontier—excepting yourself, my dearest.”

I smiled at her generosity of spirit, but I did not think I merited the comparison. I am a simple country lawyer, content with my lot in life. Never was I as driven to succeed as the tireless Mr. David Swain of Asheville, whose ambition might pass for ruthlessness in the eyes of more humble folk. In the score of months that I had been an attorney in Burke County, I had heard much about him and his aspirations. Although he was not from a prominent family, he had struggled and sacrificed to attain a good education, after which he worked harder than any three so-called gentlemen to better his lot in life. He was barely thirty, yet already he had served five terms in the North Carolina legislature. His days of toil and poverty were behind him, and I daresay he was now as much a gentleman as anyone in Carolina.

“David Lowry Swain,” said Elizabeth thoughtfully. “But he is forever traveling, and he stays for months in Raleigh, does he not? One wonders that he would have had time to mentor a lawyer in Asheville. Is he still the member for Buncombe County in the House?”

“No. He refused a sixth term. He is a circuit court judge now.”

Elizabeth sighed. “He married exceedingly well.”

“Really? Pretty, is she?”

That look again. Elizabeth takes a dim view of my teasing. “Eleanor White is the daughter of a North Carolina secretary of state,” she said primly. “Her maternal grandfather was Richard Caswell, governor during the Revolution. Thanks to Eleanor, and to his own efforts, of course, David Swain has connections that extend well beyond Asheville. That whole family has prospered in state politics. James Lowry of the State House of Commons is his half brother, you know.”

I didn’t know. Latin verbs are child’s play compared to unraveling the tangled lineages of the North Carolina gentry. “David
Lowry
Swain and James
Lowry
are half brothers? Curious coincidence of names.”